Archived - Decision: 95-017 CANADA LABOUR CODE PART II OCCUPATIONAL SAFETY AND HEALTH

Review under section 146 of the Canada Labour Code, Part II

of a direction issued by a safety officer

Decision No.: 95-017

Applicant: Clipper Navigation Inc.

Victoria, B.C.

Represented by: Leonard Tall, and

Darrell E. Bryan

Respondent: Canadian Auto Workers

Vancouver Island District Council

Represented by: F.C. (Frank) Greenlay

Mis en cause: Jim Beynon

Safety Officer

Human Resources Development Canada

Before: Serge Cadieux

Regional Safety Officer

Human Resources Development Canada

An oral hearing was held in Victoria, B.C. on September 27, 1995

Background

This case began with a refusal to work that was exercised at Clipper

Navigation's Belleville terminal in July 1994. After being informed of

the situation, the safety officer determined that there was not a

continuing refusal to work as the employee had returned to work.

Nonetheless, the safety officer informed Mr. Greenlay, the union

representative who had reported the refusal to work to him, that the

situation would be investigated as an occupational safety and health

complaint.

The safety officer reported in his Narrative Assignment Summary that:

The issue was with the moving of containers of luggage with a

manually operated hydraulic pallet jack with metal wheels with a

gross weight often up to and over 1000 pounds. The distance to be

moved is approximately 200 feet, 100 relatively flat, smooth

concrete and 100 bumpy asphalt with a slight grade (1' in 100'

approx.).

It was agreed that the terminal manager would look into the feasibility

of acquiring electric pallet jacks. In the meantime, a two person

procedure to move containers of luggage would be implemented. The need

to evaluate the force necessary to move the said containers was also

discussed and a direction was given to the employer on June 12, 1995

under paragraph 141(1)(a) of the Canada Labour Code, Part II (hereafter

the Code) to ensure that the employer would have the appropriate tests

conducted. That direction was not appealed by the employer.

On June 17, 1995 another employee exercised his right to refuse

dangerous work. The employee had been instructed that the containers

had to be moved by one person and, as reported by the safety officer,

was sent home as a result of his refusal to work. The safety officer

advised Mr. Greenlay that the responsibility to address the

disciplinary action taken against the refusing employee rested with the

Canada Labour Relations Board (CLRB). However, in discussing the issue

of handling materials with pallet jacks, the safety officer was made

aware that this longstanding issue remained unresolved. The safety

officer reacted by issuing a direction (APPENDIX-A) to the employer

under paragraph 145(2)(a) of the Code in which the safety officer

directed the employer "to take measures immediately to protect any

person from the danger". That direction was appealed by Clipper

Navigation Inc..

Submission of the Employer

The employer submitted that although it has purchased two electrically

operated pallet jacks at a significant cost (approximately $5000.00

each) in response to the direction, it wishes to "pursue an appeal or

reconsideration of this matter so that it is clear that in the event

that an electric pallet jack is inoperative, we can utilize one

dockhand to pull a bin to the Customs Clearance area." Furthermore,

the employer insists that the direction is not valid because it is not

supported by the evidence. The results of the tests (APPENDIX-B) that

were conducted by two independent engineering firms1 show that the

breakaway force necessary to start the movement of a bin filled with

luggage and the force necessary to sustain its movement are well below

the acceptable standard values referenced by the safety officer.

Mr. Tall also suggests that this issue is an issue of manning as

opposed to safe operation.

Submission for the Employees

Mr. Greenlay states that the real issue here is what constitutes a safe

method of moving the bins full of luggage. He is asking the Regional

Safety Officer to look beyond the physical nature of the equipment and

the safe operation of the equipment and focus on the human health

aspect of the operation. According to Mr. Greenlay, there is a need to

look at the connection between a single dockhand moving the said bins

and the injuries that are occurring. The safe method of moving the

bins is by using two employees to do the job.

Decision

The issue to be decided in this case is whether a bin loaded with

luggage, and weighing approximately one thousand pounds (1000 lbs.),

can be moved safely by a single employee by using a manual pallet jack.

The safety officer gave a direction under paragraph 145(2)(a) of the

Code and consequently, found the above situation to constitute a danger

to an employee while at work. The basis for the direction given by the

safety officer is the excessive force required to both initiate the

movement of the bins and to sustain their movement and the high injury

rate amongst Clipper Navigation's employees.

In support of the force required to initiate the movement of the bins

and to sustain their movement, the safety officer referenced the work

of Dr. K.H.E. Kroener, Professor of Ergonomics and Industrial

Engineering, Wayne State University, Detroit, Michigan. Specifically,

the safety officer suggested that the maximum force acceptable to pull

the bins should not exceed the following values , i.e.

ACCEPTABLE PULLING FORCES

MATERIAL HANDLING: KHE KROEMER

WAYNE STATE UNIVERSITY

SEX BREAKAWAY SUSTAINED

Male 29 kg (63.8 lbs) 17 kg (37.4 lbs)

Female 24 kg (52.8 lbs) 14 kg (30.8 lbs)

__________

1 One test was carried out by a Mr. Paul Brodeur who is likely an

employee of Clipper Navigation Inc.. Notwithstanding this, since Mr

Brodeur is not an independent consultant or engineering firm, I will

disregard his results on the basis that they are not issued from an

unbiased source.

Those values are taken from Dr. Kroener's publication MATERIAL

HANDLING, LOSS CONTROL THROUGH ERGONOMICS, table 4.8, MAXIMUM

ACCEPTABLE FORCES OF PULL. They represent, for both sexes at a hand

height of 64 centimetres, the maximum force acceptable to ninety

percent (90%) of the subject population (all experienced workers).

However, "the data do not represent individual capacity limits; rather,

they represent the opinions of a sample of experienced material

handlers as to what they would handle willingly and without

overexertion." Of particular interest in this case is that the data

reported represents the force required every two (2) minutes to pull a

distance of two point one meters (2.1m). In the case at hand, the

employees are required to pull the bins on a distance of two hundred

feet (200 ft).

The results of the tests carried out by the engineering firms and

submitted as evidence by Clipper Navigation Inc. which, incidentally,

do not appear to take into consideration limits for female employees,

are lower than the values referenced by the safety officer. On that

basis alone, it would appear that Clipper Navigation does not require

its male employees to overexert themselves. However, as I noted

above, the results are, in my opinion, flawed because they do not

represent the force required to pull the bins the full distance of

200 feet. The Kroener study above does not look at the forces required

on such a distance.

The DRAFT ERGONOMICS REGULATIONS issued by the Workers' Compensation

Board of British Columbia that was also submitted by the safety officer

reports values for sixty one meters (61m) which corresponds to the 200

ft. distance above. According to those regulations, the maximum force

acceptable for males and females for a pull occurring every thirty

minutes (30 min.), decreases significantly with the distance. It is as

follows:

DRAFT ERGONOMICS REGULATIONS

SEX BREAKAWAY SUSTAINED

Male 21 kg 13 kg

Female 18 kg 6 kg

The values that were reported by the two engineering firms are as

follow:

ENGINEERING FIRMS

BREAKAWAY SUSTAINED

18 kg and 19.32 kg 13.6 kg and 10.45 kg

On the basis of this evidence as it would apply to male employees only,

Clipper Navigation Inc. cannot be found to be in contravention of the

Code and the Canada Occupational Safety and Health Regulations

(hereafter the Regulations). Further support for this conclusion is

that the values reported by the Kroener study or by the DRAFT

ERGONOMICS REGULATIONS issued by the Workers' Compensation Board of

British Columbia are not statutory limits referenced in the

Code or the Regulations. Those values can only be used as a

guide in the field of ergonomics and, technically speaking, have no

force of law. Nonetheless, an unacceptably high number of injuries have

occurred as a result of pulling the bins loaded with luggage and, I

would suspect, that was the issue the safety officer attempted to

resolve.

In my opinion, the injuries are not occurring strictly as a result of

having to use an excessive force to pull the bins. They are occurring

because an improper and therefore, unsafe method is being used. The

photograph of one employee pulling a loaded bin shows the employee

initiating the pull, facing the bin, both hands on the handle of the

pallet jack and exercising the force necessary to get the bin in

movement. However, the next photograph shows the employee pulling the

bin with his back turned to the bin and only one hand on the handle.

The result of using this technique is that the employee has to exercise

twice as much force with a single hand than he would have if he was

using both hands. The likely reason for doing this is that the

employee can accelerate the pace of work and see the distance that he

must cover. The consequence is that injuries occur.

In my opinion, a safer method2 of pulling the bins is for both hands

to remain on the handle at all times and to have the employee take more

time to cover the distance since he or she must look behind his or her

back to ensure safe operation of the pallet jack. Consequently, for

those circumstances were the electric pallet jacks are inoperative, the

employer could be allowed to use one male employee to pull the bins if

this method is strictly adhered to by the employee. It is impossible

for me to comment as to whether female employees could do the same

since the data reported by the engineering firms is inconclusive in

this respect. More tests would be needed to decide this aspect of the

case.

__________

2 It is not my contention that the following method is the safety and

preferred method to be used. The safety and health committee for the

work place in question or the safety officer could assist the employer

in this respect.

In those circumstances where that method cannot be used or is not

recommended, a two person team should be used where one person pushes

the load resting on the pallet jack and the other person pulls the load

using just enough force to guide the pallet jack. Another method, such

as using an electric pallet jack, could also be used. Obviously,

there are many options.

Whichever method is used, it should be tailored to each individual by

taking into consideration factors such as the following:

1) the worker is male or female;

2) the horizontal distance of the push or pull;

3) the frequency of the push or pull;

4) the height of the worker's hand;

5) the presence of a grade in the surface;

6) the type of surface;

7) the training in the proper procedure to push or pull;

8) the physical condition of the employee;

and any other condition appropriate to the task. To the extent that an

improper and unsafe method for pulling bins loaded with luggage was

being used, I find that the direction is justified. However, I note

that the direction makes reference to the wrong provision authorizing

the provision contravened in the Regulations. In fact, section 14.46

of the Canada Occupational Safety & Health Regulations is not

authorized by paragraph 125(t) of the Canada Labour Code, Part II. It

is authorized by paragraph 125(q) of the Code which provides as

follows:

125. Without restricting the generality of section 124, every

employer shall, in respect of every work place controlled by the

employer,

(q) provide, in the prescribe manner, each employee with the

information, instruction, training and supervision necessary to

ensure the safety and health at work of that employee;

For all the above reasons, I HEREBY VARY the direction issued under

paragraph 145(2)(a) of the Canada Labour Code, Part II on June 20, 1995

by safety officer Jim Beynon to Clipper Navigation Inc., by replacing

the two references in the direction to paragraph 125(t) of the Canada

Labour Code, Part II by references to paragraph 125(q) of the Canada

Labour Code, Part II.

Decision rendered on October 25, 1995

Serge Cadieux

Regional Safety Officer

APPENDIX-A

IN THE MATTER OF THE CANADA LABOUR CODE -

PART II (OCCUPATIONAL SAFETY AND HEALTH)

DIRECTION TO EMPLOYER UNDER SS. 145(2)(a)

The undersigned Safety Officer, did, on the 20th day of June 1995,

attend at the work place operated by Clipper Navigation Ltd., being an

employer subject to the Canada Labour Code, Part II, at 254 Belleville

Street, Victoria, B.C., V8V 1W9, the said work place being sometimes

known as Terminal, and having conducted inquiries at the said work

place; consider that the use or operation of a machine or thing

described hereunder or that a condition exists in the work place which

constitutes a danger to an employee while at work;

The pulling of full luggage containers of unknown weights on manual

or hand pallet jacks (trucks) on the walk from the dock to the

Customs unloading area by one person, contravenes paragraph 125(t)

of the Canada Labour Code, Part II;

125. Without restricting the generality of section 124, every

employer shall, in respect of every work place controlled by the

employer,

(t) ensure that the machinery, equipment and tools used by

the employees in the course of their employment meet

prescribed safety standards and are safe under all

conditions of their intended use;

and 14.46 of the Canada Occupational Safety & Health Regulations;

Where, because of the weight, size, shape, toxicity or other

characteristic of materials, goods or things, the manual

handling of the materials, goods or things may be hazardous to

the safety or health of an employee, the employer shall issue

instructions that the materials, goods or things shall, where

reasonably practicable, not be handled manually.

HEREBY DIRECTS the said employer pursuant to paragraph 145(2)(a) of the

Canada Labour Code, Part II, to take measures immediately to protect

any person from the danger;

Issued at Victoria, B.C., this 20th day of June 1995.

Jim Beynon

Safety Officer

To: D. Pirog

Terminal Operations Manager

Clipper Navigation Ltd.

254 Belleville Street

Victoria, B.C. V8V

APPENDIX-B

ACCEPTABLE PULLING FORCES

MATERIAL HANDLING: KHE KROEMER

WAYNE STATE UNIVERSITY

(provided by Jim Beynon)

SEX BREAKAWAY SUSTAINED

Male 29 kg (63.8 lbs) 17 kg (37.4 lbs)

Female 24 kg (52.8 lbs) 14 kg (30.8 lbs)

SEATTLE TEST BY CRANE CONSULTANTS

680 lbs baggage + 240 lb tare wt. = 980 lbs (445.45 kg)

BREAKAWAY SUSTAINED

40 lbs (18 kg)30 lbs (13.6 kg)

SEATTLE TEST BY PAUL BRODEUR

665 lbs baggage + 240 lbs tare weight = 905 lbs (411.36 kg)

BREAKAWAY SUSTAINED

30 lbs (13.64 kg) 20 lbs (9 kg)

VICTORIA TEST BY MARTIN HOLDEN, P. Eng

Baggage weight 730 lbs

Container 240 lbs

Total 970 lbs (440.9 kg)

TEST PULL BREAKAWAY FORCE SUSTAINED PULL

Westerly 40 lbs 23 lbs

Easterly 45 lbs 23 lbs

Mean 42.5 lbs (19.32 kg) 23 lbs (10.45 kg)

SUMMARY OF REGIONAL SAFETY OFFICER DECISION

Decision No.: 95-017

Applicant: Clipper Navigation Inc.

Respondent: Canadian Auto Workers

KEYWORDS: Pull, force, pallet jack, ergonomics

PROVISIONS: Code: 145(2)(a), 125 (q)

Regs: 14.46

SUMMARY:

A direction was given to Clipper Navigation Inc. because a

safety officer determined that employees were required to use excessive

force to move a container loaded with luggage and weighing

approximately 1000 lbs, using a manual pallet jack on a distance of 200

feet.

The Regional Safety Officer VARIED the direction. The RSO found that

it was not the force required to move the bin that was causing the

injuries but the method used. The RSO also found that the direction

quoted the wrong provision of the Code and corrected it accordingly