FPSLREB Decisions

Files: 165-2-114 to-132

Canada Labour Code, Before the Public Service Part II Staff Relations Board BETWEEN PAUL DOIRON AND OTHERS Applicants and TREASURY BOARD (Solicitor General Canada - Correctional Service)

Employer RE: References under subsection 129(5) of the Canada Labour Code Before: P. Chodos, Deputy Chairperson For the Applicants: Gary Bannister, Public Service Alliance of Canada For the Employer: André Garneau, Counsel Heard at Bathurst, New Brunswick, December 17 and 18, 1996.

Decision Page 1 DECISION This decision is in respect of a referral of a safety officer’s report to the Board, pursuant to Part II, subsection 129(5), of the Canada Labour Code, which provides as follows: 129.(5) Where a safety officer decides that the use or operation of a machine or thing does not constitute a danger to an employee or that a condition does not exist in a place that constitutes a danger to an employee, an employee is not entitled under section 128 or this section to continue to refuse to use or operate the machine or thing or to work in that place, but the employee may, by notice in writing given within seven days of receiving notice of the decision of a safety officer, require the safety officer to refer his decision to the Board, and thereupon the safety officer shall refer the decision to the Board.

The applicants, who are listed in the Appendix to this decision, invoked their right to refuse to work, pursuant to subsection 128(1) of the Code, on November 7, 1996. Their reasons for so doing were outlined in the “Refusal to Work Registration” form which was completed by each of the applicants; while each applicant submitted his or her own form, the reasons given therein are common to all of them and are reproduced below: Because the management of Atlantic Institution has issued bleach to the inmates of Atlantic Institution, I am exercising my right under Part II of the Canada Labour Code, which states that the worker has the right to refuse to do a job if he or she believe (sic) that:

1. There is a condition at work that is a danger to himself or herself.

2. The use of a machine or thing at work presents a danger to himself/herself or co-worker.

I feel that the issuing of Bleach falls under the above two (2) conditions because for some (not all) examples:

1. Inmates are allowed to obtain as much bleach as they wish (ie condom) in privacy and it can be used as a weapon by throwing it in my eyes.

2. It can be obtained by inmates and put in our food/drink in the kitchen that can poison us.

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Decision Page 2 3. A Gallon of bleach mixed with potassium chloride (which is sold as a salt substitute at Health and Nutrition Stores) and a few other ingredients, then you have a bomb of plastic explosives.

4. M.S. Datasheet states that bleach has incompatibilities to other substances - ie - heavy metals, reducing agents, acids, ammonia, glychos, alcohols, and most other solvents or materials.

5. According to M.S. Datasheet, if bleach is mixed with ammonia, it will give off dangerous fumes.

6. Enclosed is a M.S. Datasheet that has numerous pieces of information that makes bleach a dangerous substance.

7. On the bottom of the M.S. Datasheet, the company states that it is up to the user to experiment with bleach as there are many tests that they have not done. Has CSC done any tests to see how dangerous bleach really is?

8. Because of the environment we work in, we feel that this bleach becomes a very dangerous tool to put in the hands of offenders.

The relevant facts are for the most part not in dispute. In late 1994, following a recommendation by the Expert Committee on AIDS and Prisons (ECAP), a pilot-project was initiated at Matsqui Institution in British Columbia to allow freer access by inmates to household bleach for the sterilization of needles. The objective of this program was to reduce the transmission of HIV/AIDS, as well as Hepatitis C, which had become a very serious problem throughout prison institutions worldwide, including Canada.

Dr. Robert Climie, a doctor of public health and currently Corporate Adviser for Health Services for the Correctional Service of Canada, testified that the prevalence of Hepatitis is between 22 and 40 percent of the entire inmate population and the reported rate of HIV is about one percent, which is ten times higher than the general population. Approximately 90% of intravenous drug users have been found to be positive for the Hepatitis C virus; it is also known that there is a disproportionately large number of intravenous drug users among the inmate population. Dr. Climie noted that in 1993 the World Health Organization published guidelines concerning the management of HIV in prisons; both that organization and the Center for Disease Control in Atlanta recommended that bleach be utilized for cleaning needles used by

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Decision Page 3 intravenous drug users. It has been concluded that household bleach is a highly effective means of sterilizing needles against HIV, and is also effective, although less so, in reducing the spread of Hepatitis.

Following the successful introduction of a bleach program in Matsqui, the Correctional Service decided to implement it throughout all prison institutions under its jurisdiction. A communiqué was issued to staff on April 15, 1996 directing that the bleach program be introduced at each institution; the program called for providing each inmate with a bleach kit consisting of a one ounce plastic bottle of bleach and a one ounce plastic bottle with rinse water. In addition, dispensers of bleach were to be set up at various locations within each institution, in such a way as to allow inmates free and private access to fill up the one ounce bottles with bleach, as needed. It should be noted that prior to the introduction of this program, household bleach was available to inmates, however, access was controlled by staff. The policy on bleach distribution also called for the appointment of a coordinator within each institution “with credibility with both staff and inmates”. This aspect of the policy, which was outlined in some detail in a memorandum from the Commissioner dated April 16, 1996, states that the coordinator should be “someone with extensive networking capability and ongoing contacts with a broad cross-section of staff and inmates...”.

Mr. Doug Robichaud is a correctional officer at the Atlantic Institution and is president of the union local; in that capacity he regularly attends the labour- management committee meetings. He testified that there was only one occasion at these meetings, approximately four or five months ago, when he was informed that the bleach program was to be implemented. Mr. Richard Price is also a correctional officer and has been since September 23, 1996 co-chair of the Occupational Health and Safety Committee; prior to that he was the union representative on that committee for about a year. He stated that the only discussion concerning the bleach program was on May 21, 1996. Mr. Price did not attend that meeting; however, he noted that the minutes state only, under the subheading of “Eye Wash Bottles”, that “there was some discussion about the possibility of distribution of bleach packets to inmates sometime in the future. Roy MacLean stated there would then be a requirement for eye wash bottles on the units” (Exhibit C-4). Mr. Price stated that

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Decision Page 4 there was no further discussion on this matter from May to September 23rd when he became the co-chair.

When Mr. Robichaud was informed of the imminent implementation of the bleach program a couple of days prior to November 7, 1996, he approached Mr. Luc Sarrazin, a Labour Affairs Officer from Labour Services, Human Resources Development Canada, who had been visiting the Institution on another matter. Mr. Robichaud explained that he had received complaints from a number of correctional officers concerning the implementation of the bleach program and he indicated to Mr. Sarrazin that in their view this program posed a danger to the staff. Mr. Sarrazin advised him of their right to refuse to work under the provisions of Part II of the Labour Code. On November 7, Mr. Robichaud was informed by senior management at the Institution that the program would be instituted that day; as a result, he and a number of other correctional officers invoked their right to refuse to work because of their perception that the program constituted a danger to their health and safety. Mr. Robichaud noted that he had no advance notice of the memorandum from the Commissioner (Exhibit C-3), nor was he part of the working group involved in the implementation of the bleach program. He observed as well that Ms. Linda Quann, a nurse under contract who was named as the institutional coordinator for the program, was not known to him or many of the other staff and he thought this would pose a problem in terms of her fulfilling her role of coordinator, as set out in the memorandum. However, Mr. Robichaud stated that “this was not a big issue”.

Mr. Robichaud elaborated on the concerns he and his colleagues had with respect to the bleach program which he said were outlined in the report provided by the correctional officers to Mr. Sarrazin. He observed that the bleach dispensers are in a private room beside the Correctional Officer 2 station; nearby are condom machines. He noted that inmates are supposed to have privacy and accordingly an inmate could take a condom, fill it with bleach, and then throw it in the correctional officer’s face. He also noted that inmates often work in the kitchen. While they are watched by guards from the gallery, it would nevertheless be easy for inmates to put bleach in the soup and other foods. While he is not aware of whether the bleach would make them sick, he was concerned that it might be poisonous. He also noted their concern that the inmates might use the bleach with other substances to make a bomb; one of the Public Service Staff Relations Board

Decision Page 5 correctional officers obtained information off the internet which outlined how the chief ingredient in bleach, sodium hypochlorite, could be mixed with other substances to create a bomb (reference: “Making Plastic Explosives from Bleach”, by the Jolly Roger, Exhibit C-8). He also referred generally to the possible incompatibility of bleach with other substances; he noted as well the corrosive properties of bleach. In this respect, he observed that the padlocks used on the bleach dispensers had corroded within a month because of exposure to the bleach. Mr. Robichaud also stated that the employer had provided no information about the possible hazardous nature of bleach; the staff had obtained a “Material Safety Data Sheet” (Exhibit C-1) which outlines some of the hazardous aspects of bleach. He is not aware of any tests that have been done by the employer, notwithstanding he had asked for information about these hazards.

Mr. Robichaud acknowledged that his primary concerns about bleach arise out of the possibility that larger quantities than one ounce might be accumulated. He agreed that many things can be put in food by inmates, and that incidents happen in the kitchen all the time. He does not know if bleach would cause blinding if it were thrown in his eyes, nor has he ever become aware of a bomb being made from bleach.

Mr. Price testified that it was his belief that the introduction of the uncontrolled access by inmates of bleach constituted a danger to the health and safety of correctional officers, for the reasons noted on the “Refusal to Work Registration” form. He felt that the bleach could be easily accumulated and then thrown at him or injected in him by inmates. Mr. Keith Sonmor, who was also a correctional officer at the Institution, encountered the “Material Safety Data Sheet” near his workstation two weeks prior to the exercise of their refusal to work. He referred to the number of hazards identified in this document, including that it was “extremely corrosive” to eyes, that a coma could result from the release of chlorine gas if the bleach was set on fire. He noted that when he worked at Drumheller Institution the entire prison was set on fire by the inmates; he was concerned that the inmates might set fire to the bleach in order to create fumes which, according to data sheet, could cause irritation to the membranes. He had received no information from the employer to counter these concerns.

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Decision Page 6 Mr. Brian Mullin is a correctional officer level 2 at the Institution. He testified that he had been subjected to an assault on a couple of occasions and had had things thrown at him, as well as being punched in the eye by an inmate. He considered the availability of bleach to be another tool which the inmates could use against him. He noted that in the past inmates have converted several different kinds of objects into weapons to be used against guards. He observed that he spends 80 to 90 percent of his time working with the inmate population; part of his duties involve searching cells. While the normal objective is to search approximately five cells a day, at times it is not possible to reach this target because of staffing constraints. Mr. Mullin stated that there is an eye wash station beside his desk, which consists of a bottle on the wall containing about one litre of water. He acknowledged in cross-examination that he is not aware of bleach having been used as a weapon in other institutions.

Mr. Luc Sarrazin, the Labour Affairs Officer who responded to the refusal to work at Atlantic Institution, testified as to his investigation and the reasons behind his conclusion that “the possession of 4% bleach by the inmates is not a situation of danger as per the Canada Labour Code Part II” (page 5 of the report of the Safety Officer). The reasons for Mr. Sarrazin’s conclusion are the following: ... a) A bottle of bleach by itself does not constitute a dangerous situation.

b) The same bottle of bleach in a dispenser does not constitute a dangerous situation.

c) Inmates using the dispenser for acquiring bleach to disinfect personal items does not constitute a dangerous situation.

d) An inmate in possession of bleach does not constitute a dangerous situation.

The possibility of injury or potential for danger is not sufficient to be a dangerous situation.

Inmates with bleach with the intent of committing a crime with the substance, however, could present a security and safety concern to the staff. As such, it is treated as contraband when volumes exceeding those which would

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Decision Page 7 normally be considered sufficient for its primary intent, are procured.

A review of the reasons why the employees have evoked their right to refuse has confirmed that indeed if all substances needed are available to inmates, toxic gas and bombs could be created. However, for an inmate with dangerous substances to present a dangerous situation, it would have to be clearly established that the intent of that person was to cause harm to an employee.

The employer has introduced bleach to the population as a means of controlling the spread of “HIV”/AIDS and other infectious diseases in the prisons.

Upon being advised of the employees’ exercise of the right to refuse to work under Part II of the Labour Code, Mr. Sarrazin spoke with the employees concerned, who indicated that the introduction of the bleach program giving free access to bleach was the basis for their refusal to work. He took note of their specific reasons for that refusal, as outlined in the “Refusal to Work Registration” form. It was agreed that he could take a few days to gather information for his investigation; on Friday, November 15, he issued his report. In the course of his investigation he examined the concerns as outlined by the employees. He spoke with a number of officials, including Mr. Bob Reid, an industrial hygienist with Labour Affairs; Mr. Grant Mitton, a senior technical adviser for the region with Labour Services; Mr. Jacques Morin, program consultant for Labour Affairs; as well as Dr. O’Brien, a medical adviser with Labour Services, and Mr. Pierre Delorme, a lab technician. He noted that Mr. Price was with him when he did a preventive maintenance inspection. In addition, he also spoke with Mr. Robichaud and Mr. Bannister, the Alliance health and safety representative, as well as other employees. He then consulted with a number of representatives of the employer, including Dr. Robert Climie, Charlene Sutherland, the Acting Assistant Warden, Management Services, Ms. Linda Quann, the health promotion nurse at the Institution, and Sandra Barrieau, Chief, Health Services, Atlantic Institution. He also spoke with members of the Health and Safety Committee and two regional health nurses at Kingston and Kent Institutions. He reviewed the documentation concerning the bleach program, in particular a manual entitled “Education Package - National Bleach Kit Distribution Program, April 1996” (Exhibit E-1).

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Decision Page 8 In light of this information, Mr. Sarrazin came to a number of conclusions concerning the bleach program. Mr. Sarrazin concluded that unless the inmates actually used the bleach as feared by the correctional officers, it constitutes only a potential danger; he believes that the Institution has the means to prevent the potential harm identified by the staff. For example, the staff can remove the bleach from the possession of the inmate, or whatever the inmate may be producing with the bleach, if there is a possibility of turning that bleach into a harmful substance. He noted that if an inmate is suspected of having more than one ounce of bleach, the bleach would be seized and the inmate would be subject to disciplinary measures.

Mr. Sarrazin acknowledged that he had referred to the former definition of “imminent danger” in his report, which definition is no longer found in Part II of the Labour Code. He noted that he used that term in order to distinguish between danger and “imminent danger”. He stated that given the current jurisprudence, that distinction is still relevant in the view of Labour Services. Mr. Sarrazin observed that at the time of his investigation “La Parisienne" Javex was in use at the Institution, which had a concentration of only 4 percent sodium hypochlorite; however, other brands have a higher concentration. He agreed that the employer had indicated that it is possible that in the future these other brands might be used. With respect to first aid measures, he stated that correctional officers have access to showers and bathrooms throughout the Institution where skin and eyes can be flushed out; he noted that there are eye wash bottles located next to the bleach dispensers where eyes could be rinsed pending medical assistance. Mr. Sarrazin identified Exhibit C-2, a directive dated November 19, 1996, issued by him pursuant to subsection 145(1) of the Canada Labour Code. The directive in effect noted the breaches of several paragraphs of section 125 of the Code and issued a number of directions to the employer, including “that all employees that may be exposed to bleach be given information on the handling and exposure...; provide eye wash station to area where employees may be faced with risk of being exposed to bleach...; an eye wash prevention program shall be introduced in the work place...; the safety committee shall be involved and/or informed on the introduction of safety/health program in the work place.”

Mr. Sarrazin acknowledged that bleach is a corrosive material; to his knowledge no tests were done by the employer concerning the interaction of bleach with other Public Service Staff Relations Board

Decision Page 9 substances. In his conversation with Mr. Reid, Mr. Sarrazin was told that in the right environment it would be possible to manufacture a bomb using bleach and other substances. Mr. Sarrazin stated that, had household bleach been available with greater concentrations than “La Parisienne”, it would not affect his conclusions. He agreed with the employer’s counsel that the manual (Exhibit E-1) provides that the bleach would not be available to inmates who might cause injury to other persons through misuse; as well it may be precluded to inmates in Special Handling Units. It was noted as well that under the employer's policy bleach in quantities of more than one ounce is considered as contraband and would be seized by staff.

Mr. Sarrazin responded to several specific concerns identified by the employees. He observed that in his opinion the making of a bomb was very unlikely as the other ingredients were not available. According to his information, no permanent damage would result to normal eyes if bleach were thrown at them. Also, one ounce of bleach would not be an effective poison and if placed in a large container of food would not likely make anyone sick. According to his understanding of the Code, the danger must be immediate for the Code to apply. He observed that in his view employees did not have the policy information available at the time and consequently this was part of his direction to the employer pursuant to Exhibit C-2. However, it was his view that this lack of information did not create a danger to employees as that term is understood in the Code. Mr. Sarrazin explained that his direction with respect to the eye wash stations was in response to the fact that there was no program for maintaining and inspecting eye wash stations at the time. Again, he did not view this as a “danger”. Mr. Sarrazin also observed that in British Columbia the provincial institutions have had a similar program in place for several years and he was not aware of any incidents arising therefrom, nor have there been any incidents in the other federal institutions that have had the policy in place for approximately six months.

Dr. Climie also gave testimony concerning the specific concerns identified by the employees as a danger to their health or safety. He noted that the “Material Safety Data Sheet” is provided by the manufacturer and outlines a worse case scenario, even if the concern is only a one in a million possibility. He observed that, while bleach would be extremely irritating if thrown in the eyes, it is not known to cause damage even if not immediately flushed. With respect to the concern about adulterating food Public Service Staff Relations Board

Decision Page 10 or drink, if the bleach was put in sufficient quantities to cause harm it would not be edible or drinkable and its presence would be readily apparent to anyone. With respect to the possible reactions of bleach with other substances, he has been advised by chemists at the Occupational Health and Safety Unit of the Medical Services Branch that in rare instances bleach can be used with other substances to produce chlorine gas which would only be of a significant danger if released in confined spaces. He had no information or knowledge of reproduction of bombs with bleach. It was his conclusion that bleach could be an irritant, but was not a danger to health or safety of staff particularly when used as outlined in the bleach program. It was also his view that the use of bleach would reduce the rate of infection of HIV and Hepatitis and thereby provide greater protection to staff as well as to inmates and the general public.