Archived - Decision: 99-024
CANADA LABOUR CODE PART II OCCUPATIONAL SAFETY AND HEALTH

Review under section 146 of the Canada Labour Code,

Part II, of a direction given by a safety officer

Decision No.: 99-024

Applicant:Canadian Airlines International Limited

Represented by: Mr. P.G. Howe,

Director, Safety Security and Environmental Services

Other Parties: Mr. G. Powell

Occupational Health and Safety Coordinator

International Association of Machinists and Aerospace Workers, Transport District 140

Mis-en-cause: Todd Campbell

Safety Officer

Human Resources Development Canada

Before:Douglas Malanka

Regional Safety Officer

Human Resources Development Canada

Background:

On July 12, 1999, an airline Ramp Attendant assigned to handle baggage in the cargo pits of F-28 aircraft exercised his right to refuse work fearing that fiberglass dust in the cargo pits would cause him to develop skin rashes as in the past. He held that the protective coveralls provided by the employer had large openings around the wrists and ankles and said that, for the past approximately 12 months, he had developed skin rashes in the exposed areas following work in

F-28 cargo pits. The employer contacted a safety officer from Human Resources Development Canada (HRDC).

The safety officer who investigated the refusal to work found that the F-28 aircraft cargo pits were lined with fiberglass panels[1] that, according to the manufacturer’s Material Safety Data Sheet (MSDS), could release fiberglass dust when abraded. The MSDS also confirmed that the dust could produce itching and transient mechanical skin irritation. When the safety officer inspected the fiberglass panels in the F-28 cargo pits serviced by the employee, he found signs of abrasion and small areas of untreated fiberglass. The safety officer then decided that the employee was placed in a situation of danger when he was required to enter the cargo pits of F-28 aircraft without wearing protective clothing prescribed by the MSDS for the Gillner 1066 panels. He issued a direction pursuant to paragraph 145(2)(a) of the Canada Labour Code, Part II, (hereto referred to as the Code or Part II) and directed the employer to protect any person from the danger no later than July 23, 1999.See appendix.

The employer subsequently requested a review of the direction within the 14 day time limit specified in section 146 of the Code and a review hearing was held in Vancouver on September 8, 1999.

Safety Officer:

Safety officer Todd Campbell submitted a written report to the Office of the Regional Safety Officer concerning his investigation of the refusal to work and testified at the hearing. I retain the following facts from his report and testimony.

On July 8, 1999, Mr. St-Pierre, a Ramp Attendant with Canadian Airlines International Limited (Canadian), complained to his supervisor that he had again developed a skin rash and experienced difficulty breathing after handling baggage in the cargo pits of F-28 aircraft. He told his supervisor that he could not take it any more and that he feared that he had developed an allergy to the fiberglass dust found therein. He insisted that he would refuse to work if reassigned to handle baggage in F-28 cargo pits unless he was provided appropriate and personal coveralls. He also suggested that the cargo pits be vacuumed out.

On July 12, 1999, Mr. St-Pierre was assigned to handle baggage in the cargo pit of an F-28 aircraft. He advised his supervisor that he was refusing to do the work because he feared developing another skin rash, partially due to the lack of adequate and personal coveralls for each employee. The employer contacted a safety officer from Human Resources Development Canada (HRDC) and safety officer Todd Campbell investigated the refusal to work.

The MSDS for the 1066 type panels installed in the cargo pits of several F-28 aircraft states that the panels may release fiberglass dust, a transient mechanical skin irritant, when abraded. Safety officer Campbell said that he inspected the cargo pits of several F-28 aircraft, including one assigned to Mr. St-Pierre at the time of his refusal to work, and observed that the panels were abraded and he could see small areas of untreated fiberglass. He further observed that procedures for loading and unloading cargo pits in F-28 aircraft require employees to lay on the cargo pit panels, and held that this would result in a large part of the employee’s body being in direct contact with the panels. He estimated that it takes approximately 30 minutes to load or unload the cargo pit of an F-28 aircraft, and that, on an average shift, a three person crew might service two or three F-28 aircraft.

Canadian told safety officer Campbell that they were aware of employee concerns regarding fiberglass dust since April, 1998. He further established that there had been at least six other incidents since August 1998 where Canadian Ramp Attendants had reported rashes and itches after handling baggage in the cargo pits of F-28 aircraft. In response, Canadian had contracted two environmental studies to investigate employee concerns. These were carried out by Agra Earth and Environment (Agra), in June of 1998 and in March of 1999. Both studies found that airborne fiber concentrations were far below the TLV[2] for fiberglass and concluded that the level was unlikely to cause any harm to an employee’s respiratory system. From these results, safety officer Campbell concluded that no danger existed for Mr. St-Pierre relative to his respiratory system.

Canadian held that the skin rashes do not pose a health risk to employees and noted that Mr. St-Pierre had not sought medical attention on July 8, 1999, when he complained to his supervisor regarding his skin rashes and the fiberglass dust. Nevertheless, Canadian told the safety officer that the company consulted Canadian Regional Airlines (CRAL), the owners of the F-18 aircraft, to find a better panel. They said that when an existing 1066 type panel is in poor condition (e.g., a deep gouge) and cannot be repaired with adhesive tape and still maintain the required fire resistance rating, it is replaced with a 1366 type (new) panel which is more resistant to abrasion. As a result, the cargo pits of the F 28 aircraft may be lined with a combination of the 2 different panels. Canadian estimated that the process of full panel replacement could take over 2 years to complete.

At the conclusion of his investigation, safety officer Campbell decided that a condition of danger existed for Mr. St-Pierre that could be reasonably expected to cause him illness or injury before the condition could be corrected. He rationalized that Mr. St-Pierre had developed a rash on his arms and legs four days earlier following work in F-28 cargo pits, that Mr. St-Pierre was being asked to perform similar work under similar conditions at the time of his refusal, and
that Mr. St-Pierre was not provided with the protective clothing prescribed by the MSDS necessary to prevent skin irritation. Safety officer Campbell held that a skin rash is an injury and that the possibility[3] that the injury will heal itself once the irritant has been removed does not alter the fact that the injury occurred. He opined that the definition of danger in the Code does not require the injury to be chronic, life threatening or require medical intervention to heal.

Applicant:

According to Mr. Howe, Director, Safety Security and Environmental Services, Canadian is concerned over the sole solution reflected in the direction leaning toward the mandatory wearing of Personal Protective Equipment (PPE) being the protective coveralls.He stated that Canadian is ensuring that any employee who has a history of skin irritation wears appropriate coveralls when handling baggage in the cargo pits of F-28 aircraft, and that all other employees are made aware of and encouraged to use the PPE. However, he held that not all employees develop rashes after handling baggage in cargo pits of F-28 aircraft and that the direction should not make it mandatory for all employees handling baggage in F-28 cargo pits to use protective coveralls. He added that the use of protective overalls on hot days could create problems with heat stress, another health and safety concern. Mr. Howe requested that the direction be varied to reflect that it is not mandatory for all employees to wear protective coveralls when handling baggage in the cargo pit of F-28 aircraft.

Respondent:

Mr. Powell, Occupational Health and Safety Coordinator International Association of Machinists and Aerospace Workers, Transport District 140, stated that a “danger” by definition under the Code, does exist with respect to

Mr. St. Pierre and therefore a direction is appropriate. However, he said the current direction is being interpreted by many to apply to every employee handling baggage in F-28 aircraft cargo pits which, itself, could constitute a danger relative to heat stress. He held that, while it may be necessary for employees who are or become sensitive to fiberglass dust to wear protective coveralls, not all employees are sensitive to the dust, and the direction should not make it mandatory for everyone to wear protective coveralls while handling baggage in the F-28 aircraft cargo pits. He felt that the hierarchy of control versus personal protective equipment is an issue that should be addressed in the direction. He requested that the direction be varied to clarify that the direction does not make it mandatory for all employees to wear protective coveralls.

Decision:

The issue I must decide in this case is whether a danger as defined under

Part II, existed for Mr. St-Pierre at the time of the safety officer’s investigation. In this regard, the term’ “danger” is defined in the Code as follows:

“danger" means any hazard or condition that could reasonably be expected to cause injury or illness to a person exposed thereto before the hazard or condition can be corrected.” [My underline.]

Therefore, to decide that a danger existed for Mr. St-Pierre at the time of safety officer Campbell’s investigation, I must agree that it was reasonable to expect that the fibreglass dust could cause an injury or illness to Mr. St. Pierre, consistent with the definition of danger, before the hazard or condition created by the fibre glass could be corrected.

For interpreting and applying the right to refuse work provisions in the Code which include reference to the definition of danger, it is useful to consider past decisions of the Canada Industrial Relations Board[4]. In this regard the Board has consistently held that the right to refuse provisions, in conjunction with the definition of danger in the Code, is an emergency measure to deal with situations where the danger perceived by employees is imminent or immediate. In his unreported decision in the case of Terminus Maritimes Féderaux Regional Safety Officer Serge Cadieux referred to the case of David Pratt & Grey Coach Lines Ltd., (1988) CLRB Decision no. 686. In that case, H. R. Jamieson, Vice-Chair Canada Labour Relations Board (CLRB), wrote:

“Danger is defined in the Code as:

“danger” means any hazard or condition that could reasonably be expected to cause injury or illness to a person exposed thereto before the hazard or condition can be corrected.

If one recalls that Part IV of the Code referred to “imminent danger” prior to the adoption of the present definition of danger in 1984, it is readily apparent from the carefully chosen works in the definition that the legislators intended to retain an essence of immediacy in the concept of danger as it relates to an employee’s right to refuse under section 85 and 86, and also to a safety officer’s powers to issue a direction in dangerous situations under section 102(2).”

This view that the right to refuse is only to be used in situations where employees are faced with immediate danger is reaffirmed in the case of Stephen
Brailsford & Worldways Canada Ltd., (1992) Decision no. 921.In her decision, CLRB member Mary Rozenberg wrote:

“The right to refuse is an emergency measure to deal with dangerous situations that crop up unexpectedly and with those that require immediate attention and not as the primary vehicle for attaining the objectives of Part II of the Code or for setting long-standing disputes or differences. The safety provisions in the Code are intended to ensure that employers provide safety work places in terms of equipment and environment. The right to refuse is designated to be used in situations where employees are faced with immediate danger when injury is likely to occur right there and then if the danger is not removed. It is not meant to be used to bring ongoing disputes to a head and, where refusals coincide with other labour relations, disputes, particular attention should be paid to the circumstances of the refusal.”

By the her last sentence, CLRB member Rozenberg also held that the use of the right to refuse work is not to be used to bring ongoing disputes to a head.

This view that the right to refuse provisions in the Code are not to be used to bring concerns regarding chronic or systemic potential hazards or conditions to a head, but rather to deal with acute or immediate hazardous conditions was further confirmed in the case of Ed. Koski and Dave Boose & Canadian Pacific Ltd., (1993) Decision no. 1030.In his decision, CLRB member Michael Eayrs wrote:

“…The refusals giving rise to the safety officer’s decisions [no danger under the Code], subsequent referrals and these proceedings, took place, in my opinion, in the context of what might be characterized as a chronic or systemic potential hazard as opposed to an acute or immediate hazardous condition.”

“In the instant case, Messrs Koski and Boose clearly invoked their rights of refusal in an attempt to “bring to a head” concerns which they had with respect to the existence of a potential danger to health and the interim protective measures in place at the time and thus obtain, through the vehicle of a safety officer’s decision, a satisfactory resolution to those concerns.

“…With the greatest respect to Messrs. Koski and Boose and CAW-Canada whose concerns for safety can, in one sense, only be viewed as commendable, I cannot conclude that work refusals pursuant to the Code provide them, in the circumstances of the instant case, with the appropriate mechanism to attempt to reach their intended goals. The proper and feasible resolution of the type of safety concerns exemplified in this case is, in my opinion, embodied in the other provisions of Part II of the Code which encourage the use of joint co-operative efforts to resolve the health and safety issues in the work place.”

The CLRB has also established that the risk to employees must be serious.In the case of Montani & Canadian Railway Company (1994), CLRB, Decision no. 1089, Board member Mary Rozenberg wrote:

“Danger within the meaning of the Code must be perceived to be immediate and real. The risk to employees must be serious to the point where the machine or thing or the condition created may not be used until the situation is corrected.” [My underline.]

In my view, the aforementioned CLRB decisions confirm that the right to refuse provisions in the Code, which include reference to the definition of danger, are meant to apply to situations where the danger perceived by employees, relative to their refusal to work, is unanticipated, serious and imminent or immediate. They also confirm that the right to refuse provisions are not meant to bring long standing safety and health concerns to a head. I agree with these findings.

According to the facts in this case, Mr. St-Pierre had developed transient skin rashes on his arms and legs after handling baggage in the cargo pits of

F-28 aircraft over a period of approximately 12 months.Thus, on July 12, 1999, the possibility of Mr. St-Pierre developing another skin rash after handling baggage in the cargo pit of an F-28 aircraft was neither new nor unanticipated.

On July 8^th, 1999, Mr. St-Pierre complained to his supervisor that he had developed a skin rash on his arms and legs and experienced difficulty breathing shortly after having handled baggage in the cargo pit of F-28 aircraft. He said he felt he had developed an allergy to the fiberglass dust and feared developing another skin rash. He insisted that he would refuse to handle baggage in a

F-28 cargo pit unless provided with proper coveralls for his personal use. However, despite Mr. St. Pierre’s stand that day, no evidence was submitted to show that something new had occurred relative to the skin rashes he developed after exposure to fiberglass dust.

For their part, Canadian provided safety officer Campbell with incident reports respecting other employees who complained about the effects of skin irritation after having worked in F-28 aircraft cargo pits. Canadian also advised safety officer Campbell of measures they had taken to address the health and safety complaints. It is clear from this that Canadian was aware, for a considerable period of time, that some of its employees developed irritation and skin rashes after handling baggage in the cargo pits of F-28 aircraft. That being the case, the issue of skin irritation was not an unanticipated and immediate safety and health concern requiring use of the right to refuse work to bring it to the attention of the employer.

The morning of July 12^th, 1999, Mr. O’Brien, Ramp Safety Coordinator, advised HRDC of the possibility that Mr. St-Pierre might exercise his right to refuse if assigned work in the cargo pit of an F-28 aircraft. The safety officer said that he made arrangements to be in the area should this occur and, at approximately 10:00 a.m., Mr. St-Pierre did in fact exercise his right to refuse. That being the case, it is my view that all parties, being the employer, the employee and the safety officer, had time to investigate the situation and to take whatever remedial action was needed. For his part, the employee, anticipating being assigned to work in the cargo pit of an F-28 aircraft could have complained to a member of his safety and health committee or to a safety officer at HRDC and insisted on immediate action on his complaint.

After being notified that Mr. St-Pierre was threatening to refuse to work, the safety officer could, and I would suggest, should have investigated the complaint. If he felt a danger under Part II existed, he could have issued a direction pursuant to paragraph 145.(2)(a). If, on the other hand, he felt that there was no danger for Mr. St. Pierre under the Code, he could have issued a direction pursuant to subsection 145.(1) and ordered the employer to cease the contravention of Part II or the pursuant Canada Occupational Safety and Health Regulations (COSHRs) if any existed. The difficulty I have should safety officers wait for an employee to exercise his or her right to refuse, after learning that an employee has threatened to do so, is that the employee might abandon the idea of refusing to work at the last minute, for fear of being perceived as going against the employer, or as a result of being uncertain of the right to refuse work process, when, in fact, a danger existed.

In his testimony, safety officer Campbell explained that he consulted Mosby’s Medical Dictionary, Fourth Edition, for deciding that a skin irritation constitutes an injury or illness referred to in the definition of “danger” in the Code.However, except for this, and the fact that the MSDS confirms that fiberglass dust from their panels may produce itching and transient mechanical irritation, no medical or scientific evidence was submitted to confirm that the skin irritation feared by Mr. St-Pierre on July 12, 1999, constituted an immediate injury or illness for him that warranted the use of the right to refuse work provisions in the Code. Nor was any medical or scientific evidence submitted to confirm that the immediate injury or illness feared by Mr. St-Pierre on July 12, 1999, related to any cumulative injury or illness effect for him resulting from repeated exposures to the fiberglass dust over the approximately one year period. In fact, the MSDS for the panels confirmed the absence of chronic effects.

In my view, Canadian failed to adequately address Mr. St-Pierre’s safety and health concern and this led to his frustration with their response. I would further suggest that Canadian’s uncertainty at the hearing, as to how to react to the direction issued by safety officer Campbell, reflected an incomplete understanding of their obligations under the Code. For example, with regard to
their question of when, where and by whom should protective coveralls be worn, section 12. 1 (Part 12, Safety Materials, Equipment, Devices and Clothing) of the COSHRs, specifies:

“ S.12.1 Where

(a) it is not reasonably practicable to eliminate or control a safety or health hazard in a work place within safe limits, and

(b) the use of protection equipment may prevent or reduce injury from that hazard,

every person granted access to the work place who is exposed to that hazard shall use the protection equipment prescribed by this Part.” [My underline.]

In terms of paragraph 12.1(a), Mr. St-Pierre had suggested to his supervisor that the cargo pits be vacuumed, and that Agra, in its March 25, 1999, report to Canadian, had recommended that the joints/edges of panels could be taped to seal the bottom section of F-28 aircraft cargo pits, that a thin polyurethane membrane could be applied to the lower portion of the cargo holds, and that the fiberglass material could be painted with several layers of durable paint. I note that Canadian did not produce evidence to show that anything was done in this regard.

With regard to their concern that wearing protective coverall might cause heat stress for employees, paragraph 12. 2 (b) specifies:

S.12.2 All protection equipment referred to in section 12.1

(a) shall be designed to protect the person from the hazard for which it is provided; and

(b)shall not in itself create a hazard.” [My underline.]

The facts in the case persuade me to conclude that, on July 8, 1999, Mr. St-Pierre threatened to refuse to handle luggage in the F-28 cargo pits in the future if his employer did not address his health and safety concern. Not feeling that his concerns were addressed by his employer, he exercised his right to refuse on July 12, 1999, to force the company into action. While I may understand and sympathize with his motives, I do not believe that a condition of danger as defined under Part II existed for Mr. St-Pierre at the time of his refusal to work.

For this reason, I Hereby Rescind the direction that safety officer Campbell issued to Canadian Airlines International Limited on July 20, 1999, pursuant to paragraph 145.(2)(a) of the Canada Labour Code, Part II.

Before closing, I wish to confirm that the decision to rescind the direction does not imply that there is no hazard or danger in the general sense of the meaning of the word for Mr. St. Pierre. Nor does it imply that the employer has no further
obligations under the Code. On the contrary, section 122.1, the purpose clause in the Code, reads:

“122.1 The purpose of this Part is to prevent accidents and injury to health arising out of, linked with or occurring in the course of employment to which this Part applies.”

and section 124 of the Code requires that:

“124. Every employer shall ensure that the safety and health at work of every person employed by the employer is protected.” [My underline.]

With these provisions in mind, I appreciate safety officer Campbell’s statement at the hearing to the effect that it is unacceptable for an employee to suffer skin rashes connected with carrying out the work of his or her employer.Canadian is encouraged to consult with its safety and health committee(s) or representative(s) as the case may be to resolve the matter without delay.

That stated, I further clarify that nothing in this decision precludes safety officer Campbell, or any other safety officer, from reviewing the matter further and taking any action they deem to be appropriate in accordance with their findings and authority under the Code.

Decision issued October 26, 1999.

Douglas Malanka

Regional Safety Officer

APPENDIX

IN THE MATTTER OF THE CANADA LABOUR Code PART II - OCCUPATIONAL SAFETY AND HEALTH

DIRECTION TO THE EMPLOYER UNDER PARAGRAPH 145(2)(a)

On July 12^th, 1999, the undersigned safety officer conducted an investigation following the refusal to work made by Christian St. Pierre in the work place operated by CANADIAN AIRLINES INTERNATIONAL LTD., being an employer subject to the Canada Labour Code, Part II, at Vancouver International Airport, Richmond B.C., the said work place being sometimes known as the Domestic Terminal Ramp.

The said safety officer considers that Christian St. Pierre was placed in a situation of danger when he was required to enter the cargo pit of the F-28 aircraft 133, a location known to contain fiberglass dust particles, a recognized skin irritant, without wearing protective clothing prescribed by the material Safety Data Sheet for the Gilliner 1066 cargo panels, specifically long sleeve clothing and long pants. At the time of his refusal Mr. St. Pierre was wearing short pants and a short sleeve shirt, and this would have resulted in the skin of his arms and legs making direct contact with the cargo liner panels, and with any fiberglass dust particles that had accumulated. Given that only four days earlier

Mr. St. Pierre had developed a skin rash on his exposed extremities after working in another F-28 cargo pit lined with the same type of panel, it could reasonably be expected that he would have developed the same rash if he had entered the cargo pit of aircraft 133 without wearing clothing effective at preventing contact between his skin and the fiberglass dust particles in the F-28 cargo pits.

Therefore, you are HEREBY DIRECTED, pursuant to paragraph 145(2)(a) of the Canada Labour Code, Part II, to protect any person from the danger no later than July 23^rd, 1999.

Issued at Surrey, this 20^th Day of July 1999.

Todd Campbell

Safety Officer

1998

To: CANADIAN AIRLINES INTERNATIONAL LTD.

Mail Drop: YVR 0907

Vancouver International Airport

Richmond, B.C.

V7A 1K3

SUMMARY OF REGIONAL SAFETY OFFICER DECISION

Decision No.:99-024

Applicant:Canadian Airlines International Limited

Respondent: International Association of Machinists and Aerospace Workers

KEY WORDS:

Danger, fiberglass dust, cargo hold or pits, F-28 aircraft, skin itching and irritation, rash, allergy, injury, protective coveralls, heat stress

PROVISIONS:

Code: 122.1, 124, 145.(1), 146

Reg: 12.1 and 12.2

SUMMARY:

On July 12, 1999, an airline Ramp Attendant assigned to handle baggage in the cargo pits of F-28 aircraft exercised his right to refuse work. He held that the protective coveralls provided by the employer had large openings around the wrists and ankles and feared that fiberglass dust in the cargo pits would cause him to develop skin rashes over exposed areas as it had over the past approximate 12 months. The safety officer who investigated the refusal to work held that a skin rash was an injury and decided that the employee was placed in a situation of danger when he was required to enter F-28 cargo pits without proper protective coveralls. He issued a direction pursuant to paragraph 145(2)(a) of the Canada Labour Code, Part II, and directed the employer to protect any person from the danger no later than July 23, 1999.

The Regional Safety Officer reasoned that the right to refuse provisions do not apply to resolving long standing safety and health concerns and rescinded the direction.