2480-98-HS; 3048-98-HS National Steel Car Limited, Applicant v. United Steelworkers of America, Local 7135 and Ministry of Labour, Responding Parties.
BEFORE: Christopher J. Albertyn, Vice-Chair.
APPEARANCES: Brent Foreman; Jeremy Shorthouse, Kevin Farris, Ted Olsen and Greg Naherne for the applicant; Al Reichert, Maurice Rozon, Grantley Howell and Ron Crawford for United Steelworkers of America, Local 7135; Bridget Lynett, Inspectors Brian Yasvinski and Kim Oliver for the Ministry of Labour.
DECISION OF THE BOARD; July 28, 2000
The issue
1These are employer appeals filed pursuant to the provisions of subsection 61(1) of the Occupational Health and Safety Act ("the Act") against conclusions, decisions and orders issued by Health and Safety Inspector BrianYasvinski, under Field Visit No. 825531 on October 7, 1998 and under Field Visit No. 796669 on October 8, 1998. (Inspector Yasvinski was accompanied throughout by Inspector Oliver. Both issued reports, although the orders which are appealed against were issued in Inspector Yasvinski's name. At times during this decision I will refer to the reports and orders as being issued by both inspectors because they actually collaborated in formulating them, and at times as if they were issued by Inspector Yasvinski only because he was officially responsible for the orders which are the subject of these appeals).
2The following orders were issued under Field Visit No. 825531:
Pursuant to section 57(4) of the Act the employer is required to submit a compliance plan to the Ministry detailing actions to be taken to comply with order #2 of this report.
Pursuant to section 4 of Ontario Regulation 833/90 the employer shall take all measures reasonably necessary to reduce worker exposure to welding fume (NOC) in the Con/Fab area to below the TWAEV of 5 mg/m3. The measures are to include hygiene practices and engineering controls.
The applicant ("the employer"/"the company") does not appeal against these orders and it has complied, or is in the process of complying, with them. The investigation, findings, conclusions and decision of Inspector Yasvinski were:
INVESTIGATION:
Grantley Howell, a welder, refused to weld "cross bearer" units in aisle 1 of the Con/Feb area. He refused at 2:45 p.m. on Oct. 5, 1998. Mr. Howell reported that the respirator that he is required to wear is no longer fitting him properly. A "stage 1" investigation was completed.
FINDINGS:
Air sampling for specific jobs in the area where Mr. Howell works was completed by the employer on June 2, 1998 and the results show levels of welding fume to be above the TWAEV of 5 mg/m3. As a result the employer has required all workers in that area to wear appropriate respirators. Mr. Howell was fit tested on the US Safety model 100-M respirator (half face piece) with P100 filters on Oct. 5, 1998 using a quantitative fit test method. The employer arranged to have a Porta Count unit with trained personnel available to conduct the test. A fit test was completed. Mr. Howell proceeded to perform his assigned welding duties and at 2:45 p.m. refused to work because he felt that, due to changing conditions, he no longer had a proper respirator fit. At this point no further fit tests were carried out by the employer as the Porta Count unit was no longer available.
CONCLUSIONS:
A half face piece, negative pressure, air purifying respirator may not provide all individuals with an effective face respirator seal under all work conditions. As the worker felt that the face respirator seal was no longer effective and the employer had previously determined air-borne concentrations of welding fume to be in excess of exposure standards it is likely that the worker would have been exposed to these fumes.
DECISION
Based on the above information it is the decision of this inspector that Mr. Howell's refusal is "likely to endanger".
The employer disputes the above conclusions and decision of Inspector Yasvinski.
3The following order was issued under Field Visit No. 796669, pursuant to Inspector Yasvinski's above conclusions and decision:
Pursuant to section 25(2)(h) of the Act the employer shall ensure that Grantley Howell is provided with a respirator that is appropriate in the circumstances while welding "cross bearers" in the Con/Fab area.
The employer contends this order was unnecessary, and therefore should be set aside, because it was in compliance with its content at the time of Inspector Yasvinski's investigation, alternatively that a declaration should issue that the company is in compliance with the order.
4These matters involved several days of hearing. Eleven witnesses testified. At root the issues involve a simple matter: whether the US Safety, "Comfort-Air", Model 100, dual cartridge, half-mask (or half-face) air-purifying respirator ("the US 100") issued to Mr. Howell fitted him. The employer says it did; Mr. Howell, the responding union ("the union") and the Ministry say it did not. In the alternative, Mr. Howell, the union and the Ministry say that the employer ought to have offered an alternative respirator to Mr. Howell. The employer responds that it was not obliged to offer an alternative respirator until its testing of the fit of Mr. Howell's US 100 proved that respirator to be unsuitable. That never occurred and, according to the employer, it was therefore not obliged to provide an alternative respirator. The conclusions and decision reached by Inspector Yasvinski, and his orders, were made on the basis that the respirator did not fit or that Mr. Howell should have been offered a different respirator.
The company and its respirator policy
5The company manufactures steel cars for the railroad industry: rail cars, box cars and freight cars. It employs approximately 2800 employees, of whom about 2320 are in the union's bargaining unit. About a thousand of them are welders. They are required to wear safety equipment in appropriate circumstances. When welding fumes are being emitted from the work performed, employees are required to wear a respirator. The welders are not required to wear their respirators when they are not actually welding, unless they are in an area of the factory which requires it. In practice, the use of a respirator is required only when a welder is actually welding.
6The company's policy is to use only one type of respirator as far as possible. This is the US 100. This aspect of the policy ensures that there is always an adequate supply of respirator sizes, parts and accessories. Approximately 90% of the company's employees use the US 100. There are other respirators which are used for specific tasks for which the US 100 is less well suited or in individual circumstances if a worker has a particular medical requirement. These respirators are the Racal full-face, air-fed (through air lines) respirator and the battery operated, power air pack (the PAPR), air-fed, half-face MSA (Mine Safety Appliances) respirator. These respirators are described more fully below. A US full face cartridge respirator is used by employees doing spray painting.
7The US 100 is not suitable in areas which are immediately dangerous to life and health - a more powerful mask is needed, such as the Racal full-face, air-vent mask. The US 100 is effective up to a factor of 10 of the threshold limit value (TLV). The TLV is 5 parts per million - the limit which can apply without respiratory protection. So, the US 100 is effective in an environment containing 50 parts per million. Another measure of contamination is the Time Weighted Average Exposure Value (TWAEV). This is "the average of the airborne concentrations of a biological or chemical agent determined from air samples of the airborne concentrations to which a worker is exposed in a work day or a work week" (Regulation 833/90, as amended: the Control of Exposure to Biological or Chemical Agents, Part 2A of Schedule, p. 197). In Ontario, under that regulation, for welding, the maximum allowable concentration is 5 mg/m³, except that a worker may be exposed to weld fumes of up to 15mg/m³ for up to 30 minutes. For concentrations of weld fumes at that level or below, no respiratory protection is required. Concentrations above that level require protection. (In the US, respiratory protection is not required unless the weld fume concentration level is above 15 mg/m³. The Ontario regulation is therefore three times more stringent than the US standard). In studies done at the employer's workplace in June 1998 in the Con-Fab area where Mr. Howell worked, the concentration was found to be between 10 and 17 mg/m³. The employer is endeavouring by changing welding conditions and improving local ventilation to reduce the weld fume level to below 5 mg/m³, but in the interim respirators are necessary. In tests done some months later, in about February 1999, the level had dropped to between 7 and 8 mg/m³. Using the US model 100 provides a protection factor of 100; or 10 times that required in the welding shop.
8There are other half-face, cartridge, air purifying respirators like the US 100 on the market. There are tiny differences between the different makes - all operate in the same way and are very similar. The company decided to have the US 100 as its standard stock because it is sturdier than the other makes, it has a simple method for replacing cartridges and other replaceable parts and it usually provides for an easy and effective fit. It also provides better nose protection than the other makes, providing more contact around the face, hence providing a better fit.
9There is a considerable cost difference between the US 100 and the air-fed respirators. The US 100's cost about $25 each; a full face respirator costs several hundreds of dollars. The filters on the US 100 last between a day to a week, depending upon the degree of fume concentration in which they are used. The filters cost between $5 and $8 a set. The Racal full-face mask is used in the turnover area of the company's factory, where the welders work inside the rail cars, which rotate, and the weld fumes cannot escape. The air supply units cost between $400 and $700. The unit for providing the inflow of air, recently installed, costs between $60,000 and $70,000. There are also ongoing costs of maintenance, repair, electricity and testing. In management's assessment operating the air-powered units costs tens of thousands of dollars a year. The MSA PAPR battery pack respirator is used mainly by employees with respiratory problems. It costs upwards of $1,400, depending upon its features. The batteries need replacement about once a year, at a cost of about $400. The PAPR filters last longer than the US 100 filters, but they are more expensive, between $30 and $50 a set.
10Welders are trained by the employer to keep their heads away from the plume - the direct line of gases given off during welding, and to move around the table on which they are welding in order to take advantage of better ventilation. Welders are also trained in the fitting and sealing of their respirators, and in checking the seal.
11Welders usually wear a safety helmet, safety glasses, a respirator (because the fume concentrations are not yet at the level when no respirator is required, although, as explained above, the work sites for welders are getting close to that level), hearing protection (ear plugs) and, while welding, a welder's flip-up helmet, which attaches to the safety helmet. There is no interference with the US Model 100 respirator by the other safety equipment.
Mr. Howell
12Mr. Howell has been with the employer for over 20 years, since July 4, 1978, working as a welder. He suffers from allergies. He is currently the union's Recording Secretary and the Chairman of the union's Political Action Committee. He helps on human rights issues. He served for many years on the Joint Health & Safety Committee during the 1980's and early 1990's.
13During the period of Mr. Howell's tenure on the Joint Health & Safety Committee, in about 1991, there was a work refusal by Mr. Reichert (who represented the union in the hearing), perhaps a decade ago. Mr. Howell himself initiated a work refusal concerning the use of his respirator in 1994. Those were the only incidents of work refusal occasioned because of complaints concerning the use of a respirator before Mr. Howell's work refusals in 1998, which are described below. Following Mr. Reichert's work refusal, the company introduced the Racal full-faced air-inflow respirator.
14Prior to the circumstances giving rise to the orders which are the subject of the appeal, Mr. Howell has made use of the US 100 of his own volition on several occasions, without complaint. He used the US 100 because he thought it provided him with some respiratory protection.
Respirators
15There are air-purifying respirators and atmosphere-supplying respirators (SCBA or airline supplied). The air-purifying respirators come in quarter, half and full face masks. They come in two types: negative pressure respirators, like the US 100; and powered air-purifying respirators (PAPR's). With the negative pressure respirators the user's breathing creates negative pressure that sucks in air, which is purified through the filters fitting to the front of the mask. A good seal is essential to maintain the negative pressure. Some air-purifying respirators are battery powered, known as PAPR's. Air is pumped into the mask through a tube. The airline atmosphere-supplying respirators come in half-mask, full-face, helmet/hood and loose fitting. They come in two types - those with airline pressure on demand and those with a continuous flow. The hood respirators do not need a seal.
16The US 100 is a half-face, air-purifying mask. It is not a PAPR. It covers the mouth and nose. It consists of a yoke suspension cover, which fits over the user's head and a facepiece, with inhalation and exhalation valves and diaphragms. The full facepiece assembly includes silicone filters or cartridges which are fitted into filter holders on the front of the facepiece, and which are designed to protect inhalation. The US 100 comes in three sizes: small, medium and large. The evidence at the hearing suggested that the medium size US 100 respirator will fit over 90% of working people. The wearer must be clean shaven to obtain a proper seal. The remaining 10% will be fit by a small or large model of the US 100.
17The US 100 provides a protection factor of 10. The full-face masks provide a protection factor of 50. The loose-fitting PAPR's give a protection factor of 25. The half-mask PAPR's give a 100 protection factor, and the full-mask PAPR's a protection factor of 1000.
18A US 100 half-face mask weighs about 8 ounces. A PAPR weighs between 5 and 6 pounds.
19The US 100 contains two air-purifying cartridges, which are fitted to the front of the mask. The cartridges or filters get filled with gas fumes over a period of time, and they need to be changed periodically. The user breathes through the vents containing the filters. The air passes through the filters, which absorb the gas fumes, and purify the air which passes into the nose and mouth of the user. The user is required to breathe slightly more heavily than would normally be the case, but not significantly so. Exhalation is assisted by a valve which is ribbed, and lifts, so there is more surface area for breathing out. The harness of the US 100 has a yoke suspension, designed to distribute the respirator's weight equally across the face, with the straps constructed in such a way that they do not slip down on the user's head or face. The straps are easily reached to allow for adjustments - tightening or loosening.
20The US 100 differs very slightly from other manufacturers' half-mask air purifying respirators. There are only minor modifications as between them.
21The US 100 is a practical respirator - it fits under a welding helmet without occluding the wearer's vision or restricting his or her movements. The cartridges can be changed easily, depending upon the conditions of work and the particular hazard for which the respirator is being worn.
22There is a difference between the seal and the fit of a respirator. The fit concerns how snugly the respirator sits on the face of the wearer. A good fit will usually entail a good seal. The seal may be broken - e.g. if the wearer moves the respirator mask, or if there is excessive moisture - but, if there is a good fit, it can always be re-established. By tightening or adjusting the straps of the respirator, the seal may be re-secured. If there is no proper fit, then there is no likelihood of the wearer obtaining a proper seal. During the course of an ordinary working day, a welder will adjust a well-fitting face mask several times to improve or re-establish a seal which might have been broken for some or other reason. That is normal. Perspiration will have a minimal effect upon the seal, and no effect upon the fit of a respirator. To the extent the respirator moves as a result of excessive sweating, the user can make an adjustment to the respirator straps to tighten the mask back onto the face. In the opinion of one of the experts called by the employer, Mr. Farris, some perspiration will actually improve the seal. That is so because sweat fills the space between the pores of the skin, creating a more even surface for a better seal.
23Mr. Howell and the union's witnesses testified that they had found, when using the US 100, that their breathing was restricted, yet none had filed any complaint of difficulty breathing while using the respirator. Management conceded that it may be marginally more difficult to breathe through a filter, as occurs when wearing a half-face mask, but that, they say, is a necessary and not particularly onerous hardship.
Respirator fit tests
24There are no specific regulations in Ontario for the testing of respiratory equipment. The Ministry and the employer rely upon the standards produced by the Canadian Standards Association. That body is accredited by the Standards Council of Canada to the National Standards System. The Association has approved A National Standard of Canada for the Selection, Use and Care of Respirators (CAN/CSA-Z94.4-93). I refer to it as "the Standards" herein. All parties to the proceedings accepted the Standards as a proper basis for evaluating this matter, despite the absence of any regulation to that effect. The company endeavours to comply with the Standards.
25There are several tests to establish a proper fit and a proper seal, ranging from relatively simple, inexpensive tests to complex, quantitative tests. Some are performed each time the user dons the mask; others require elaborate equipment. The tests are divided broadly into qualitative and quantitative fit tests. The qualitative respirator fitting tests (known in the industry as QLFT's) include the positive and negative fit tests; and the various odour and taste tests: the isoamyl acetate test; the saccharin solution aerosol test; the irritant smoke test; the bitrex test. The quantitative respirator fitting test (QNFT) requires the use of specialized equipment to measure the exact degree of the respirator's fit.
26The tests required of all users when they put on the mask are the positive and negative tests. The positive fit test involves covering the exhale pipe while the user exhaling gently out of his or her mouth. If the user blows too hard, exhaling unnaturally, the seal will be broken and the test will fail. If the test is done properly and the respirator fits, it will bulge on the user's face as the mask fills with the exhaled air, showing an effective seal. The negative test involves covering the inhale pipes or inlet opening of the respirator and the user inhaling gently, holding his or her breath for at least 10 seconds. If the mask fits, the mask will contract. If the user sucks in too forcefully, the mask will collapse on the user's face, the test will fail and the seal will be broken. The positive and negative tests anticipate exhaling and inhaling normally, approximately 30-50 ml. of air with each breath. That is sufficient to have the mask billow during the positive test and contract during the negative test.
27The banana oil or smell fit test involves the use of isoamyl acetate, which gives off a banana smell. An organic vapour cartridge is used in the respirator. If the user wearing the mask does not smell the odour, the test establishes a proper fit. The bitrex test, involving the use of a different cartridge, has the user test whether he or she can taste the bitrex when the mask is on. The test should be done about once a year to determine the continuing effectiveness of the respirator.
28The most complex test is the quantitative test done. It is done with a TSI Porta Count. The test must be done in an ambient location. Like some of the qualitative tests, it involves a series of exercises with the Porta Count attached to the respirator, to determine the respirator's effectiveness during the performance of various movements with the mask fitted. The exercises include normal breathing, deep breathing, turning the head from side to side, nodding the head up and down and talking. The talking exercise involves the reading of what is known as "the Rainbow passage", which has been written to capture a wide range of facial movement during ordinary speech. The passage reads:
Rainbow Passage
When the sunlight strikes raindrops in the air, they act like a prism and form a rainbow.
The rainbow is a division of white light into many beautiful colours. These take the shape of a long round arch, with its path high above, and its two ends apparently beyond the horizon. There is, according to legend, a boiling pot of gold at one end. People look, but no one ever finds it. When a man looks for something beyond reach, his friends say he is looking for the pot of gold at the end of the rainbow.
29There are few TSI Porta Count units in Canada available to test the effectiveness of respirators. They are expensive pieces of equipment, costing about $14,000 each, and are therefore difficult to come by. One unit is used constantly by Ontario Hydro in its high radiation areas. There are only two units available for rental use generally in Ontario. They are in constant use and must be booked approximately two months in advance. The cost of hiring the unit is between $50 and $60 an hour.
30The principal use of Porta Count equipment is in IDHL (immediate danger to health and life) situations, not in the mildly toxic situations which are typical of manufacturing operations like that of the employer. The equipment is used, for example, among fire fighters who might face extremely toxic and dangerous fumes.
31The Porta Count measures minute amounts of particles and is accurate to a fine degree. The test is conservative, in the sense that it errs towards finding inadequacy in respirator functioning. For instance: the National Institute of Occupational Safety and Health (NIOSH) in the US has set a safety level for half-mask respirators at the level of 10, i.e. a factor of 10 of the TLV. The Porta Count imposes a ten times more severe test on the same mask before finding it to be adequate. It requires a factor of 100 of the TLV to be proven satisfactory.
32The Porta Count test is done by attaching a sensor between the cartridge and the respirator to determine the quality of air passing into the respirator. The Porta Counts tests the adequacy of the filter and its operation while the user wears the respirator. The usual six exercises are done and measured: normal breathing; deep breathing; breathing with head side to side; breathing nodding, up and down; reading the Rainbow passage; and normal breathing again. The movements covered during the six exercises are intended to simulate those the worker might perform as part of his or her work. The Porta Count requires a result of 100 or more for each of the six tests for a finding that the respirator fits adequately.
33In order to conduct a proper test of the effectiveness of a respirator it is usually not possible to have the test done in the actual workplace where the employee concerned usually works and where the hazard exists. The fit of the respirator can be tested effectively only away from the actual hazard site. Porta Count tests are not done ever at the workplace site. They are always done in "clean" conditions, such as an office. The reason for the "cleanliness" of the location is that the test is so sensitive it cannot function in any circumstances where there is some degree of contamination. If, for example, it were used to test a respirator in a welding workshop it would be contaminated by the ambient fumes to such an extent as to be unable to produce a measure of the respirator's effectiveness.
34The usual causes of a poor half-mask respirator fit are facial hair, disfigurement or excessive weight loss. Changing work conditions should not affect a respirator's fit. Excessive perspiration may cause a break in the seal, but it will not affect the fit. Adjustments to the mask straps can re-establish a proper seal if there is a proper fit.
35The exercises performed during the tests provide for the full range of movement which a welder would do in the ordinary course of his or her work. Hence it is not necessary for the tests to be performed under actual working conditions.
The sequence of events
May 1998
36On May 21, 1998 Mr. Howell initiated a work refusal. A Ministry Health & Safety Inspector was summoned. Inspector Yasvinski, accompanied by Inspector Oliver, an expert in occupational health, came to the factory. The outcome of the investigation was that the employer was obliged to test for welding fumes in Mr. Howell's work area, the Construction Fabrication (Con/Fab) department. The fume tests had to be completed by June 10, 1998. In addition, the employer was required to provide Mr. Howell with a respirator suitable for providing protection from welding fumes.
37The employer's investigation and fume tests revealed that the volume of weld fumes in the area where Mr. Howell worked was above the requisite maximum for work without a respirator. Corrective steps were undertaken by the company in accordance with a compliance plan approved by the Ministry.
38On May 25, 1998 Mr. Howell initiated another work refusal. He complained that his respirator did not fit. The employer explained that the reason for the absence of a proper fit was the fact that Mr. Howell had a beard at the time. He was required to return to work the next day, clean shaven. He did so. The Ministry's investigation continued on May 26 and 27 and air sampling was done by an expert, Maxxam Analytics Inc., on behalf of the Ministry on May 27. The outcome of the test was that the weld fume exposure where Mr. Howell was working was an average of 7.62 mg/m³, or 8.1 mg/m³ if a worker were exposed to weld fumes before and after each period of work. An order was issued on May 29 requiring the employer to take all reasonable measures necessary to reduce a worker's exposure to weld fumes at the bolster welding operation in aisle no.1 of the Con/Fab department (where Mr. Howell was working then) to below the TWAEV of 5 mg/m³. Compliance was to be achieved through engineering controls and hygiene practices by July 31, 1998. (Compliance was in fact achieved by that date. The bolster welding operation was changed to a robotics process resulting in less welding fumes being produced in that area).
39There is some dispute as to what occurred on May 27. Mr. Shorthouse, the company's Safety Supervisor, was summoned to the tool room, where Mr. Howell had refused to work, claiming that his US 100 respirator did not fit. A union Health & Safety representative, Mr. Jerry Bell, was in attendance, as was Mr. Ramsbottom, the tool room supervisor. Mr. Howell was asked to do the positive and negative fit test, but he refused to do so, claiming that the respirator had a lemon smell. He wanted another respirator. A different US 100 respirator was ordered and, about an hour later, those present gathered again for another fit test to be done.
40Mr. Howell put on the new respirator (US 100) and began to do the positive fit test. He covered the exhale pipe, but then blew out with such force that the mask lifted off his face, breaking the seal. The test can be done effectively only if the user exhales normally. Mr. Howell is a large man. Mr. Naherne, an Occupational Health & Safety Consultant described below, estimated that his lung capacity would be about 7 to 8 litres. The US 100 will hold about 150ml. before being blown off one's face. Mr. Howell blowing hard easily dislodged the mask from his face.
41Mr. Howell's reaction was that the respirator did not fit. He was told not to blow out so hard by all three persons present with him, and to repeat the test. Again Mr. Howell blew too hard, causing the mask to lift off his face. In the view of Mr. Shorthouse, Mr. Howell deliberately obstructed the proper exercise of the positive fit test. An attempt was made to use the banana smell test, but, given what appeared to Mr. Shorthouse to be Mr. Howell's deliberate refusal to cooperate with the tests, Mr. Shorthouse decided that the test should be done elsewhere. He was concerned that the tool room smelt of bananas and he wanted to start over in another venue.
42Mr. Howell denies deliberately blowing the respirator off his face during the tests.
43Mr. Shorthouse moved the testing to the maintenance locker room facility. Again, according to all of the witnesses, except Mr. Howell, Mr. Howell blew too hard, preventing the positive fit test from being applied correctly. Mr. Shorthouse did an odour test next. After the test, Mr. Howell said that he could smell something. Mr. Shorthouse said he should re-adjust the mask and they would try the test again. Mr. Howell did not want to do so. In Mr. Shorthouse's view that changed the nature of Mr. Howell's work refusal which required the presence of a Ministry Inspector. A Ministry of Labour Health & Safety Inspector was summoned. Mr. Shorthouse also called Mr. Kevin Farris, who represents Neath Industrial Safety Corporation, the supplier of the US 100 respirators to the company. Mr. Farris and Inspectors Yasvinski and Oliver arrived at about the same time.
44Mr. Farris has tested the respirator fit on between 600 and 700 people in the past 7-8 years. He has visited the employer's premises at least once every week over that period. In that experience he has not had a single occasion on which the US 100 respirator did not fit. He has seen welders working without any difficulty with the US 100 respirator on thousands of occasions.
45Inspector Yasvinski records what happened as follows:
At my arrival at 11:05 a.m. I was informed that there were other possibilities that were available to resolve the refusal without the intervention of the MOL. All parties were advised to continue the stage I investigation.
At 12:30 p.m. I was advised that the work refusal could not be resolved and I returned to the workplace. At my arrival I was advised that the work refusee, Grantley Howell, was ill and was at first-aid. Mr. Howell recovered somewhat but was not in a state of health to participate in the investigation. He was eventually sent to a medical clinic by the employer. The investigation will resume when the refusee is available.
46The stage 1 investigation continued. Mr. Farris explained to Mr. Howell the purpose of the fit tests and how they were to be done. Mr. Farris asked Mr. Howell to do the positive and negative fit tests, having explained to him how they should be done; warning him not to breathe too deeply or to blow too forcefully. Mr. Howell started with the positive fit test. At first the respirator bulged, showing that he had a proper fit, but Mr. Howell then blew harder, blowing the respirator off his face. Mr. Farris then requested Mr. Howell to do the negative fit test. He did so properly, and the mask contracted, collapsing slightly on his face, with seal holding. That showed a proper fit.
47Mr. Farris then moved to another qualitative fit test: the Bitrex solution test. Bitrex is an odourless substance with a bitter taste. The test involves the user being given a minute portion of the substance, tasting it so as to be able to identify the bitter taste. The user is given a glass of water to drink to get rid of the taste. The user is then fitted with the respirator for a period of about ten minutes. Bitrex is released. This occurred, and all those in the room witnessing the test (and not wearing respirators) tasted the Bitrex. Mr. Howell, who had on his mask, was asked to indicate if he could smell or taste anything. Mr. Farris took Mr. Howell through the various tests: one minute of normal breathing; a minute of deep or heavy breathing; a minute of moving his head from side to side; a minute moving his head up and down; and then a reading of the rainbow passage. Lastly Mr. Howell did a minute of normal breathing. According to Mr. Farris and Mr. Shorthouse, throughout the tests Mr. Howell indicated that he was not tasting or smelling anything. That showed a good fit and seal. Mr. Howell disputes that he did not complain during the course of the Bitrex test. When Mr. Farris and Mr. Shorthouse testified, Mr. Howell did not challenge their version of the event. His contention was expressed in reply only. In the circumstances I accept the version of the event as explained by Mr. Shorthouse, and as confirmed by Mr. Farris.
48At the conclusion of the test, Mr. Farris asked Mr. Howell to remove the respirator. As he did so he visibly winced, ostensibly because he was tasting the bitter Bitrex for the first time since it was first administered to him. Mr. Farris asked him if he smelt or tasted anything while his mask was on and he said that he had smelt something at the beginning, but then it went away. Mr. Shorthouse and Mr. Farris concluded that Mr. Howell had not tasted the Bitrex during the time he had the respirator on. That confirmed the other qualitative test results that Mr. Howell had a proper fit.
49Mr. Shorthouse told Mr. Howell of his conclusion and suggested that Mr. Howell go back to work. Mr. Howell said that he was still refusing to return to work. That meant the start of stage 2 of the work refusal. Mr. Howell said that he was feeling ill as a result of the bitter taste in his mouth. He needed some air. Mr. Howell sought medical attention and he took sick leave on May 28 and 29, although he was not confined to bed, spending some of the 29th in downtown Hamilton. He was on vacation thereafter.
50Inspectors Yasvinski and Oliver returned to the site. By then Mr. Howell had gone to the company's medical clinic for attention. It was not possible for Inspector Yasvinski to pursue the investigation and those involved agreed to resume the investigation when Mr. Howell had recovered and returned to work. As part of their discussions Inspector Oliver, an expert in the use of respirators, suggested that another respirator be tried. She discussed the possibility of a full face respirator being used. That was not really an option, though, because it would have interfered with Mr. Howell's welding helmet. She suggested other respirators in use in the workplace, e.g. the PAPR, but that was not an option management was prepared to accept. Ms. Oliver then suggested that the employer obtain a quantitative test through a TSI Porta Count. She explained its use and purpose. Mr. Shorthouse agreed to consider the suggestion and later decided, after talking to, and obtaining the approval of, the employer's Vice-President of Human Resources, Mr. Bruckner, to pursue the Porta Count suggestion.
June 1998
51The employer made inquiries and established that it could rent a TSI Porta Count on June 9, 1998. The quantitative test was set for that date, in the company's conference room. Through a miscommunication, Mr. Howell was not aware the test would take place then. He was not present at the appointed time and place. Mr. Farris was present, and he brought with him some alternative respirators which Mr. Howell might have tried, had the US 100 proved not to fit. Mr. Shorthouse made contact with Mr. Howell and asked him to come to the plant to perform the TSI Porta Count test. He explained that everyone else who needed to be there was present. Mr. Howell refused. He was not at work on that day. He was at the union hall and said that the test could be done there.
52The TSI Porta Count equipment was moved to the union office. Mr. Olsen of Levitt Safety Ltd., which owns the TSI Porta Count equipment, made his first visit to the employer. He was there to supervise the test. Mr. Olsen is an expert in respect of hazardous substances and how to deal with them, particularly as regards the suitability of appliances and equipment to deal with particular hazards. He has substantial training and experience as regards respiratory protection and the manufacture of respiratory protection equipment. Over a period of more than 20 years Mr. Olsen has fit tested and trained many thousands of employees in the use of respiratory equipment. He has done hundreds of Porta Count tests on workers wearing respirators.
53Mr. Olsen explained the Porta Count testing process to Mr. Howell. He asked Mr. Howell to put on the respirator, a US Model 100. Mr. Howell was under the impression that he was to be given the opportunity to test another model of respirator. That did not occur. There were other models available, but he was given only the US 100 to test. Management's thinking on the matter was that if the US 100 proved not to fit Mr. Howell, then other models were to be tested on him. Mr. Howell responded by saying it did not fit. Mr. Olsen asked Mr. Howell to put it on nonetheless so he could see where it was leaking so that that he could advise management whether another respirator should be used. Mr. Howell donned the mask and immediately said that it did not fit. Mr. Olsen explained how the positive and negative fit tests were to be done and he asked Mr. Howell to do them. Mr. Howell did the positive fit test. Initially it showed a good fit, but he blew too hard, dislodging the seal from his face. Mr. Olsen asked him to do the test again, and again, after initially appearing to fit, it failed for the same reason. Mr. Olsen asked Mr. Howell to do the negative test, and it proved that Mr. Howell had a proper fit. Mr. Olsen then did a more conclusive version of the negative fit test - he took out the cartridges and inserted business cards in their place. If there was no proper fit, the business cards would have fallen out of the mask during the test. They did not; suggesting a proper fit.
54Mr. Olsen tried again to have Mr. Howell do the positive test, but each time, despite being told not to exhale too heavily, he did so, blowing the mask from his face.
55Mr. Olsen decided then to do the TSI Porta Count test. Mr. Howell was reluctant, recalling his experience with the Bitrex test, and Mr. Olsen explained that only ambient air was being used, and there would be no chemicals. Mr. Olsen explained there would be no harm to Mr. Howell during the test because no chemicals were needed for the Porta Count test. Mr. Howell still refused to do the test. The TSI Porta Count machine was packed up and Mr. Olsen left with it.
56Mr. Shorthouse, Mr. Howell and his union representative then went to Mr. Bruckner's office. The matter was discussed there and Mr. Howell agreed that he would undergo the TSI Porta Count test. Mr. Shorthouse contacted Mr. Olsen to see if the company could get use of the TSI Porta Count again. Mr. Olsen advised the TSI Porta Count would next be available in October 1998. A date was arranged, October 5, 1998.
57Mr. Howell was suspended from work without pay for a period of 13 days as a result of this incident. The letter of suspension stated:
This letter is to confirm that you have been suspended for 13 working days from June 10, 1998 to June 26, 1998.
You have been suspended for engaging in a frivolous work refusal regarding the proper fit of your respirator. It is the Company's position that you acted in bad faith throughout the work refusal which began on May 25, 1998 and during attempts by the Company to ensure the proper fit of your respirator through testing.
Please be advised that further violation of plant rule [sic] or unsatisfactory conduct will result in discipline up to and including discharge.
58Mr. Howell's suspension was grieved to arbitration. Arbitrator Bendel issued a decision on August 18, 1999 upholding the suspension and denying the grievance. He found that Mr. Howell's refusal to participate in the June 9, 1988 testing was unjustified and constituted insubordination.
59Upon returning to work after his suspension, on June 29, Mr. Howell was given alternative work in the steel fabrication department so that he did not have to use a respirator. That situation obtained until the Porta Count test was done in October 1998.
October 1998
60Mr. Olsen returned with the TSI Porta Count machine on October 5, 1998. Besides Mr. Olsen, there were many in attendance: Mr. Howell; Mr. Shorthouse; Mr. Farris; Mr. Greg Naherne, an expert in Industrial Hygiene and a consultant to the company, described below; Mr. Lane Lehman, the union's Joint Health & Safety Committee representative; Mr. Hartley Archer, the union's Vice-President; and Mr. David Riddell, the Regional Manager of Levitt Safety Ltd. They gathered in a conference room, some 200 metres from the Con/Fab area of the factory.
61Mr. Olsen went through the various test procedures, explaining to Mr. Howell how the tests were to be done. Mr. Olsen asked Mr. Howell whether he wanted to do the test with his safety glasses on (typically they do not interfere with the respirator, but sometimes workers want the test done with their safety glasses on and Mr. Olsen thought he should give Mr. Howell the option). Mr. Howell said he did not. Mr. Olsen asked if Mr. Howell suffered from asthma. He said he did not, although he mentioned he suffered from allergies. Mr. Olsen was not concerned with that because it would not interfere with Mr. Howell's use of the respirator. Mr. Howell was provided again with the US 100 respirator. The process started with the positive and negative tests. As occurred previously during the positive test, Mr. Howell blew the respirator off his face, breaking the seal. He was repeatedly told by Mr. Olsen to breathe normally, even heavily, but not suddenly, and not to blow. Mr. Howell did not heed this advice and continued to blow the respirator forcefully, causing the seal between the mask and his face to break. Mr. Olsen says that he saw the mask billow before Mr. Howell blew it off his face, momentarily suggesting a fit. Mr. Olsen then asked Mr. Howell to do the negative test. That proved successful. It showed a positive fit.
62Mr. Olsen then explained the Porta Count test (described above). The various physical exercises were carried out and measurements of the fit were taken. The minimum required fit effectiveness for the US 100 is a factor of 10. In other words, with a fit factor of 10 an employee can work in conditions which have ten times more contaminants than normal air. Hence with a fit factor of 10, an employee could safely wear the respirator in the working conditions faced by Mr. Howell. The average measurement of Mr. Howell's respirator revealed a fit of 2350. That means that the respirator fitted 235 times better than is required on the NIOSH standard to ensure effective use of the respirator. The Porta Count test showed that Mr. Howell had an exceptionally good fit. Mr. Olsen explained at the hearing that users usually get a 500-700 score for the fit of the US 100. Mr. Howell's fit was more than three times as good as theirs. With that fit, according to Mr. Olsen, Mr. Howell would be more than adequately protected when wearing the US 100 while doing his welding work. In Mr. Olsen's view, there was no need to look for another respirator.
63As Mr. Naherne wrote in his report of the quantitative respirator fit testing done for Mr. Howell:
The results show that the medium size U.S. Safety 100-M half facepiece mask with P100 filters (NIOSH Approval Number TC-84A-0943) provided to Mr. Howell passed the quantitative fit test protocol on its first test sequence with an average measured fit factor of 2,350 or some 235 times greater than the Protection Factor of 10 assigned to the respirator by NIOSH. There was no need to repeat the test.
In my opinion, the quantitative respirator fit test was conducted according to established protocol with a properly operating test instrument by a competent test instrument operator. The test demonstrated that the respirator provided to Mr. Howell fit correctly.
If I can be of further assistance, please do not hesitate to contact me.
64With such a good fit, in the context of the contamination exposure level (assuming it to be 20mg/m³ - higher than was actually the case) at Mr. Howell's workplace, he required the face mask to be only 0.17% effectiveness to remain within the exposure standard. That means that Mr. Howell could have lost 99.83% of the fit of the US 100 which was tested on him, and he would still have been within the maximum permissible exposure level.
65Mr. Howell was told of the effectiveness of the fit. He was then told to return to work, which he did. He was welding cross-beams. He required a respirator for that work in the area in which it is done. At about 11:00 a.m. his supervisor, Mr. Blanchard, noticed that he was not wearing his respirator while welding. Mr. Blanchard went to Mr. Howell and asked him why he was not wearing his respirator. Mr. Howell replied that it did not fit. Mr. Blanchard told him he had to wear it, and Mr. Howell put on his respirator. He worked wearing it, without incident until about 2:30 p.m. when Mr. Howell stopped welding and appeared to be breathing heavily, as if trying to break the seal on the respirator. Mr. Howell went to Mr. Blanchard and showed him that his safety glasses had steamed up. He said his respirator did not fit and that the seal was breaking. He said he was not going to continue wearing the respirator. Mr. Blanchard asked if he was initiating a work refusal, and Mr. Howell confirmed that to be so. Mr. Blanchard informed Mr. Doherty, the Safety Coordinator. Mr. Shorthouse was called to deal with the matter. He saw no purpose in going through stage 1 of the work refusal procedure. Mr. Shorthouse accepted that Mr. Howell's glasses may have fogged up, but, in his view, that meant only that the seal had been broken and needed to be re-established, not that there was any problem with the respirator's fit. Mr. Shorthouse informed the Ministry of the work refusal, thereby initiating stage 2 of the process.
66Inspectors Yasvinski and Oliver came to the factory on October 6. Nothing was done on that day. The investigation resumed on October 7, the date referred to in the Inspectors' report in Field Visit No. 825531. The inspectors suggested that the Porta Count test should have been done on the work site, in the situation in which Mr. Howell was working. (In fact, for reason explained above, Porta Count tests are always done off the actual work sites). Mr. Shorthouse explained the difficulties of getting access to the Porta Count and how unlikely it would be to get it back in the near future for a further test.
67Inspectors Yasvinski and Oliver sought to perform their obligations under section 43 of the Act when investigating Mr. Howell's work refusal. Subsection 43(8) of the Act imposes the following obligation upon inspectors:
(8) The inspector shall, following the investigation referred to in subsection (7), decide whether the machine, device, thing or the workplace or part thereof is likely to endanger the worker or another person.
68The inspectors had to make a decision as to whether Mr. Howell's workplace, in the context of his refusal to wear his respirator and the circumstances surrounding that refusal, was likely to endanger him. They decided that it was. They came to this conclusion because they accepted Mr. Howell's view that the US 100 respirator did not fit him and that it was not unreasonable to expect the employer to provide an alternative respirator which Mr. Howell was willing to wear. It is that decision by the inspectors which is, in part, the subject of this appeal.
General factual considerations
69After Mr. Howell's work refusal on October 5, 1998 and the investigation which followed, Inspectors Yasvinski and Oliver issued a further order against the employer on November 20, 1998. It required that the employer take all reasonable measures necessary to reduce worker exposure to welding fume in the Con/Fab area to below the TWAEV of 5mg/m³. By letter dated February 28, 1999 the employer explained in detail the steps it was taking to achieve this objective. The Ministry accepts the employer's efforts as being in compliance with the November 20 order.
70Mr. Howell was not wearing his safety equipment and welding glasses on any of the occasions when he was tested. The Ministry takes issue with this, relying upon paragraph 7.1.6 of the Standards. Paragraph 7.1.6 reads:
When other personal protective equipment, such as eye, face, head, and hearing protectors, are required to be worn, these shall be worn during the respirator fit tests to ensure that they are compatible with the respirators and do not break the facial seal.
71Mr. Howell was not sweating when he was tested, as would likely have been the case under normal working conditions. Furthermore the note to Paragraph 7.2.2. of the Standards, states: "Whenever possible, testing should be performed under conditions which simulate actual work practice". The employer responds by pointing out that there was no suggestion by anyone that Mr. Howell's welding glasses in any way impeded or interfered with his use of the US 100 respirator. Furthermore, sweating will not affect the fit of a respirator; it may affect the seal on occasion. As explained above, the seal can be re-established by adjustments to the mask straps. In other words, on the evidence before me, it made no difference to the effectiveness of the fit testing that it occurred in conditions other than those that prevailed at work. What was important in the testing was to establish the maintenance of the fit during all of the phases and exercises of the tests, particularly over the simulated range of different movements which a welder might be required to perform under actual working conditions.
72As explained above, Porta Count testing cannot be done properly in most workplaces. It must be done in a regular room on a flat surface. This is because the equipment is so sensitive that the usual range of particles in a production work area might clog and contaminate the sensors on the Porta Count. Furthermore the tube leading from the Porta Count to the respirator cannot be longer than 5½ ft. The Porta Count is not designed to be used for testing respirators in the workplace.
73The Ministry suggests that vigorous movement by a welder would not be adequately tested away from the actual working conditions of a welder. Management answers this by pointing out that the usual movements performed by a welder are tested under the testing protocols, and that sudden, vigorous movement might have the effect of temporarily dislodging a fitting respirator, which can be readily re-sealed by adjustment to the respirator straps.
74A requirement in the Standards is that the views of the worker being fit tested with a respirator must be taken into account by the person conducting the test.
75The Ministry made reference to the US OHSA equivalent to the Standards, particularly to Appendix A to § 1910.134: Fit Testing Procedures (Mandatory), Part I OHSA-Accepted Fit Test Protocols, A. Fit Testing Procedures - General Requirements, which, includes the following:
The test subject shall be allowed to pick the most acceptable respirator from a sufficient number of respirator models and sizes so that the respirator is acceptable to, and correctly fits, the user.
If the employee finds the fit of the respirator unacceptable, the test subject shall be given the opportunity to select a different respirator and to be retested.
76When these references were put to the company witnesses, they accepted the validity of taking seriously the views expressed by the employee fitting the respirator, but they preferred those views to be considered in the context of the objectively ascertainable indications of a proper fit. The witnesses did not accept the US OSHA requirement that the employee be entitled to select the model of respirator. The mandatory portion of the Standards do not require that in Canada.
77The Ministry takes the view that the US 100 did not fit Mr. Howell comfortably and the seal on the mask was continuously being broken. Counsel for the Ministry relies upon the US OHSA standard, referred to above, particularly paragraph 11. If that standard were applied, then the employer ought to have offered Mr. Howell another respirator.
78Mr. Howell made clear throughout that he did not believe the US 100 respirator fitted him. He said so repeatedly over the relevant period. Management took the view, though, that, while Mr. Howell's impression had to be taken into account, his opinion was not the determinative factor as to which respirator he would wear. In the absence of some objective support for his view of the matter, management was unwilling to jettison a respirator which clearly fitted.
79The company did not, at any stage, offer Mr. Howell an alternative respirator. In management's view, it was not necessary to do so. Management takes the position that, if the fit testing had established that Mr. Howell did not have a proper fit with the US 100, then, and only then, would it have been appropriate to test an alternative respirator.
80I have, in the course of this decision, referred to two principal experts in the field of occupational health and safety who testified at the hearing: Mr. Naherne, for the employer, and Ms. Oliver, a Health & Safety Inspector of the Ministry and a certified industrial hygienist, for the Ministry.
81Mr. Naherne is an expert in health hazards and ways to control them. He runs a private practice as an industrial hygiene consultant. He consults to the employer. He is an expert in welding and the safe use of welding. He trains welders in the hazards of welding, whether from fumes, gases, materials or the physical surroundings. He is a member of the Canadian Standards Association W117.2, Welding Health and Safety Standard Committee. He is a former delegate to the International Institute of Welding Commission VIII, Health and Safety. He has been involved with the employer since about 1992 evaluating the extent of weld fumes and weld fumes exposure, and developing methods to diminish such exposure. He provided expert testimony. Following the issue of the conclusions, decision and orders by Inspector Yasvinski which are appealed against by the employer, Mr. Naherne produced a report for the employer which challenged those conclusions, decision and orders. Some of the technical information described above is drawn from Mr. Naherne's report and his evidence at the hearing, which have been of much assistance.
82Since the incidents giving rise to this application Mr. Howell has been using the US 100 as his respirator without incident.
Consideration
83I am satisfied that when Mr. Howell was asked to perform the positive fit test he deliberately blew off the respirator, preventing a proper result being achieved. He denies doing so, but the evidence of the other witnesses is clear that he did so on several occasions.
84The Ministry submits that the sensible method for the employer to have dealt with Mr. Howell's respirator would have been to do what is required in paragraph 11 of the US OHSA mandatory Fit Testing Procedures: to have allowed him to select a different respirator and be tested with it. Similarly, the union's representative referred to the provisions of Appendix "B" of the Standards, particularly the provisions of Clause B1.2.1 which read:
The test subject shall be allowed to select the most comfortable respirator from a large array of various sizes and manufacturers that includes at least three sizes of elastomeric half facepieces and units of at least two manufacturers.
The union's representative refers also to the provisions of Clauses B1.2.9 and B1.2.10, which read:
B1.2.9
After passing the fit test, the test subject shall be questioned again regarding the comfort of the respirator. If it has become uncomfortable, another model of respirator shall be tried.
B1.2.10
The user shall be given the opportunity to select a different facepiece and be retested if during on-the-job wear the chosen facepiece becomes unacceptably uncomfortable.
85The employer's counsel responds by pointing out that all of Appendix "B" is not a mandatory part of the Standards. The Note at the start of Appendix "B" reads:
This Appendix is not a mandatory part of this Standard but is written in mandatory language to accommodate its adoption by anyone wishing to do so.
86It seems clear that the employer was entitled under the Standards to require the testing of one particular model of respirator and to persist with that testing, as it did, until it was satisfied either that the respirator fit Mr. Howell properly, or that it did not fit. Only once the testing established that the US 100 did not fit Mr. Howell was he entitled, as of right, to have another respirator tested. The employer could have tried another model of respirator, but it was not obliged to do so. Although the employer has no legal obligation to comply with the Standards, it does endeavour to do so. However, even assuming a requirement of compliance with the Standards, Appendix "B" thereof is expressly voluntary.
87The employer argues that it has complied with its statutory obligations. In its submission, when the qualitative test is done, the opinion of the employee as regards the fit and the seal is important, but not decisive. Management established, in the employer's submission, that the respirator fit properly during the qualitative tests, and that was confirmed without any doubt when the quantitative test was done. In those circumstances the opinion of the employee on the respirator's fit becomes a secondary and subordinate consideration, not decisive as is suggested in the American fit test procedures.
88The employer's counsel referred to Gary Nail and Chrysler Canada, decision of March 30, 1990, File No. AP89-118 (Blair). In that case the adjudicator decided that an inspector is obliged to make a decision on the best available objective criteria. In counsel's submission Inspector Yasvinski did not adopt that standard. The best available objective information, in counsel's submission, was the result of the qualitative tests and the quantitative (Porta Count) test, and not Mr. Howell's subjective opinion of the matter.
89The parties accept that the proper meaning of the conclusion reached by Inspector Yasvinski, which is appealed by the employer, is the following: Mr. Howell found himself to be in a condition which was likely to endanger him and accordingly his refusal to wear the face mask was legitimate. The employer challenges that Mr. Howell found himself to be in a condition which was likely to endanger him.
90The employer seeks a declaration that there was no reasonable basis for Inspector Yasvinski to conclude that Mr. Howell did not have a proper respirator fit on October 7, 1998; and that, by issuing Mr. Howell with a US 100, the employer has complied with its obligation to provide Mr. Howell with a respirator that is appropriate in the circumstances while welding cross bearers in the Con/Fab area.
91Counsel for the Ministry argues that the level of weld fume exposure in the area in which Mr. Howell was working at the relevant time after the Porta Count test was done in October 1998 was such that, if he could not wear his respirator with a secure seal, he was likely to be endangered. In counsel's submission, the conclusion reached by Inspector Yasvinski was therefore reasonable and correct in the circumstances.
92This submission would be persuasive if the objective evidence established that Mr. Howell could not get a secure seal on his respirator. The evidence was not of that sort. What was clear at the time was that if a worker has a properly fitting respirator then he or she can make the necessary adjustments to the respirator straps to ensure a proper seal. In Mr. Howell's case he did have a properly fitting respirator and, accordingly, he was able to effect a secure seal of his respirator. Furthermore, the Porta Count test revealed that Mr. Howell would not have been endangered even if he had lost up to 99.83% of the effectiveness of the mask.
93Counsel for the Ministry correctly suggests that a worker's subjective opinion of the situation must be taken into account. That is clear from the Standards as regards respirator fitting and testing. However, while that is a necessary consideration for the inspector investigating the matter, it is not, on its own, a sufficient consideration. It is one consideration among many, the others of which are objective determinants.
94The evidence at the hearing establishes overwhelmingly that the US 100 fit Mr. Howell. In fact he had an extremely good fit, one 235 times better than was required to ensure safe respiration by him. The evidence showed that he would not have been endangered unless he lost 99.83% of the respirator's effectiveness. This result was established beyond doubt by the Porta Count test which confirmed the results of the less exact qualitative tests which were done during the relevant period.
95In coming to the conclusions they did, Inspectors Yasvinski and Oliver appear to have treated the Porta Count test as being of no greater value than Mr. Howell's subjective views of the situation because the Porta Count test was done outside of Mr. Howell's usual work environment and without his wearing his personal protective equipment. The inspectors took into account also that Mr. Howell was not sweating, as he would have been under normal working conditions. It appears that the inspectors were not aware that the Porta Count test cannot be done in the usual work environment, and must be done in the more pristine circumstances of an office or clean area. It appears too that the inspectors assumed (incorrectly) that the Porta Count test could not be done properly without Mr. Howell wearing his personal protective equipment. They incorrectly assumed that Mr. Howell's personal protective equipment might interfere with his use of the respirator, when the evidence at the hearing has established the opposite. From Inspector Oliver's evidence it appears that she and Inspector Yasvinski assumed, at the time they reached the conclusions they did and issued the orders they did, that the absence of Mr. Howell's personal protective equipment and his not sweating at the time of the Porta Count test diminished the value of the findings of the test. There was no scientific basis for them to have made those assumptions.
96Under cross-examination at the hearing, Inspector Oliver conceded that she and Inspector Yasvinski had no reason to believe that the US 100 respirator on Mr. Howell would not provide adequate protection to him with his personal protective equipment on. Despite being aware that the positive and negative fit tests showed that Mr. Howell had a good fit with the US 100, and being told of the employer's view that Mr. Howell was deliberately frustrating management's efforts to ensure a proper fit of the US 100 on him, the inspectors appear to have treated Mr. Howell's views as particularly significant and persuasive because he was trained in the use of the US 100 respirator. Inspector Oliver explained at the hearing that, when in doubt, an inspector will tend to favour the view which most encourages safety, rather than the opposite. That might have influenced the inspectors' conclusion that Mr. Howell was potentially in danger when he said that the mask did not fit him.
97In my view, while there is nothing improper in an inspector favouring the view which most encourages safety, the inspectors erred in reaching the conclusions they did. They paid too much heed to Mr. Howell's views of the situation when the objective observations and tests manifested clear proof that Mr. Howell was able to achieve a proper fit with the US 100. The finding that something is likely to endanger an employee must be a finding that the danger is a "real or significant possibility": Re Woodbridge Foam, [1995] O.O.H.S.A.D. No.22, Decision No. OHS 95-23, June 7, 1995 (Blair), at p.13, ¶31. At the time the inspectors reached the conclusions they did and made the orders they did there was no real or significant possibility of Mr. Howell being endangered as a result of his use of the US Model 100 respirator. In fact, on the contrary, the information available at that time made plain that he had considerable respiratory safety when using the respirator. The inspector's inquiry must be an objective one: all relevant information must be taken into account (including, but not only, the subjective views of the employee) before a decision is made as to whether something is likely to endanger the employee. The inspector must reach his or her conclusion on the basis of an objective standard: Ontario (Ministry of Solicitor General and Correctional Services) [1998] O.O.H.S.A.D. No. 201, July 17, 1998 (Randall), at p. 33, ¶167.
98What is clear from the evidence at the hearing is that Mr. Howell did not like using the US 100. That is not a sufficient basis for rejecting its use. The employer is required to provide a respirator which fits the wearer, i.e. one which provides adequate respiratory protection. There is no doubt that the US 100 did so in Mr. Howell's case. There was no obligation upon the employer to provide an alternative respirator to Mr. Howell merely because he did not like the way it felt on his face. The employer did not act unreasonably by refusing to test another model of respirator until it was satisfied that the US 100 did not fit Mr. Howell. As is clear from the evidence, that never occurred. Hence it was not unreasonable for the employer to persist with its efforts to require Mr. Howell to wear the US 100 respirator.
99In the circumstances I find that there was no likelihood of Mr. Howell being endangered by his use of the US Model 100 half-face mask. The Inspector erred in concluding that because Mr. Howell felt that "the face respirator seal was no longer effective", in the context of the employer earlier determining that air-borne concentrations of weld fumes were in excess of exposure standards, that "it is likely that the worker would have been exposed to these fumes." That was not a sufficient basis for reaching that conclusion. The evidence at the hearing proved that at the time the inspectors reached the conclusions they did and issued their orders, there was no likelihood of Mr. Howell being exposed to weld fumes when using the US 100, and that any loss of seal could have been readily corrected by adjustments to the mask's straps.
Disposition
100Consequently the written decision reached by Inspector Yasvinski, that Mr. Howell's refusal [to work, wearing the US Model 100 respirator] was occasioned by a reasonable apprehension that his health or safety was likely to be endangered was erroneous. There was no likelihood of Mr. Howell being endangered by his use of the respirator. In the circumstances, Inspector Yasvinski's conclusions and decision in his report of Field Visit No. 825531 Case ID 797991 of the visit on October 7, 1998 are set aside.
101I find that the employer has complied with Inspector Yasvinski's Order in Field Visit No. 796669 of the visit on October 8, 1998. Mr. Howell has been provided with a US Model 100 respirator which is appropriate in the circumstances while welding "cross bearers" in the Con/Fab area.
102The employer's appeals are accordingly granted.
"Christopher J. Albertyn"
for the Board