GSB#2008-2324, 2008-2325, 2008-2327, 2008-3708, 2008-3709, 2008-3710, 2008-3711, 2008-3712, 2009-3380, 2009-3430, 2010-1564, 2010-1565, 2010-1566, 2010-1567, 2010-1568, 2010-1569,

2010-1570, 2010-2334, 2010-2336

UNION#2008-0521-0007, 2008-0521-0008, 2008-0521-0010, 2009-0521-0001, 2009-0521-0002, 2009-0521-0003, 2009-0521-0004, 2009-0521-0005, 2010-0521-0010, 2010-0521-0032,

2010-0521-0073, 2010-0521-0074, 2010-0521-0075, 2010-0521-0076, 2010-0521-0077,

2010-0521-0078, 2010-0521-0079, 2010-0521-0108, 2010-0521-0110

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Archer)

Union

• and -

The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)

Employer

BEFORE

Deborah J.D. Leighton

Vice-Chair

FOR THE UNION

Christopher Bryden Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Roslyn Baichoo Ministry of Government Services Legal Services Branch Counsel

HEARING

October 1, 2013

Decision

1The parties entered into minutes of settlement resolving various grievances on July 24, 2012. Subsequently the grievor alleged that the employer breached the minutes. The employer denied that there had been a breach. The parties agreed to a second memorandum of settlement on April 19, 2013, resolving the disputes between them, which provides in part as follows:

1. The grievor shall undergo a mask fitness test on October 1, 2013. It is understood that the grievor will be given adequate time to grow his facial hair and his daily duty assignments would be adjusted accordingly. In any event, the period should be no longer than two weeks.

2. The test shall be conducted by a Ministry Certified MSA Instructor/Portacount tester and shall be in the presence of V.C. Leighton, two union representatives, counsel and a representative from the Institution’s management. It shall be conducted as per the Employer’s Respiratory Protection Program and Policy.

3. The Vice-Chair shall be the final arbiter as to whether the test was fairly administered.

2Mr. Murray Burrill, senior staff development officer, Ontario College who is a ministry certified MSA instructor, conducted the test at the GSB. He administered the test in accordance with the Respiratory Protection Program, released on June 19, 2012 (hereinafter the “Respirator Policy”). The test is a two-step process. The first step is a visual examination and the second step is a quantitative test. Step one must be successfully completed before going on to step two. The Respirator Policy provides as follows:

a. Every employee designated to wear a respirator and all prospective new employees in the designated categories will be advised in writing that the ability to wear the apparatus in accordance with the manufacturer’s specifications and compliance with relevant correctional services policy are conditions of employment in those categories.

i. Qualified individuals (e.g. an accredited MSA Instructor and Certified Portacount PlusTester) complete mask fitness tests at least annually.

ii. For staff required to wear the respirator, the mask fitness test comprises of the following two components (both must be fully satisfied to ensure compliance.)

Step 1: A visual examination is conducted with the employee wearing the appropriate respirator to ensure that the skin is cleanly shaven where the mask comes into contact with the face. (The areas of consideration for this test include the beard, mustache and side burn areas. A person designated by the superintendent to conduct the test is the final arbiter.)

Note: Step 1 must be successfully completed prior to proceeding to step 2.

Step 2: A quantitative test is to be conducted using the Portacount Plus Respirator Fit Tester. The prescribed test is completed according to the manufacturer’s instructions. Upon completing the prescribed series of tests the Portacount Plus unit will identify if the staff member passed or failed the test.

3Mr. Burrill demonstrated how the equipment worked and explained the test to those in the hearing room. The grievor put the respirator on. Mr. Burrill established that the grievor had a seal. Then Mr. Burrill did a visual examination of the grievor’s face and indicated that there was hair impeding the seal. Mr. Burrill said that the grievor failed the first step of the required test. Step 2 was not conducted.

4Counsel for the ministry submitted that the requirements under the memorandum of settlement had been satisfied. Counsel noted that the parties had agreed to abide by the Respirator Policy in administering the test to the grievor and that he had failed the first step. Therefore, the second step of the testing was not completed.

5Counsel argued further that given the manufacturer’s warranties, if there was hair touching the seal, there was no guarantee that the seal would hold. She said that management was sympathetic to the grievor’s desire to have some facial hair, but the employer must be consistent in its application of the policy. She argued that it was important for the safety of all correctional officers through the ministry that the masks fit properly.

6Counsel for the union argued that it was significant that the grievor did achieve a seal. Even though visually there was hair along the seal line, counsel maintained that there was a seal. He argued that the grievor was entitled to have step two completed with the test. Counsel argued further that it was up to the board to decide whether the test had been administered fairly. However, if the policy was not fair then the test was not fair. He argued that the visual examination was very subjective. In summary counsel argued the test was not fair, because the grievor did achieve the seal at step one, but step two was not administered.

7In reply, counsel for the employer argued that the union could not assert that the policy is not fair. The union has not filed a grievance challenging the policy. The only issue before the board is whether the second memorandum of settlement has been satisfied. She argued that this is a case about safety. If a correctional officer has to wear a mask, the employer must ensure that it fits according to the manufacturer’s requirements in order to protect them.

Decision

8The union agreed in the memorandum of settlement that the grievor would undergo a mask fit test according to the Respirator Policy cited above. It is too late for the union to argue that the test is not fair. They agreed to the terms of the test in the minutes of settlement.

9Although a seal was achieved by the grievor during step one, a visual inspection by the certified MSA instructor showed that where the mask came into contact with the grievor’s face, it was not cleanly shaven. I was also able to observe facial hair under the seal. The policy is clear that if there is facial hair impeding the area where the seal touches the face then the correctional officer fails the test. While it is understandable that the grievor wishes for personal reasons to have facial hair, the ministry has a duty to ensure the safety of all correctional officers who may have to wear the masks in an emergency. Further, the ministry must comply with the manufacturer’s specifications: there must be no facial hair in contact with the seal or there is a risk of the seal failing. If the seal was lost, a correctional officer could be injured.

10Having considered the submissions of the parties and the evidence put before me, I must conclude that the mask fit test conducted on the grievor on October 1, 2013 was fair. Thus, there has been no breach of these minutes of settlement.