BETWEEN:

COMINCO LTD. (the ‘Employer’)

AND:

UNITED STEELWORKERS OF AMERICA,

LOCAL 9705 and UNITED STEELWORKERS OF

AMERICA, LOCAL 480

(the ‘Union’)

 

Smoking Policy

ARBITRATOR: Dalton L. Larson

COUNSEL FOR THE EMPLOYER: Bruce R. Grist

COUNSEL FOR THE UNION: Mark Rowlinson

PLACE OF HEARINGS: Trail, British Columbia

DATES OF HEARINGS: October 19, 20, 21, 22

and 23, 1998

March 2, 3, 4, 1999

May 4, 5, 6, 1999

June17 & 18, 1999

1. Introduction

At issue in this arbitration is a smoking policy that prohibits the use and personal possession of tobacco in any form anywhere on Company property. The policy was implemented on February 1, 1998. It was said to apply to anyone coming onto the property including, but not limited to, all employees and visitors such as truckers, vendors, clients, consultants, and contractors. Prior to that time there had been restrictions against smoking inside office buildings and other enclosed areas.

It is also worth noting, at this point, that in 1996 a total smoking ban had been implemented within the boundaries of the lead operations, which included all outside areas. Although there was initially some resistance, the policy eventually received the support of the Union based upon a peculiar health concern posed by the potential ingestion of lead by smokers. That is to say, that within the defined boundaries of the lead operations there is a relatively higher level of lead contamination in the form of dust in the atmosphere, which is deposited literally everywhere, so that there is a risk that lead will be ingested, particularly by smokers, when cigarettes are transferred from hand to mouth.

That situation is to be distinguished from the policy that is the subject of this dispute, which is directed at contamination from the cigarette smoke itself. The cigarette smoke is the hazard. In that case, the risk extends not only to the smoker but to non-smokers who breathe the smoke and the hazard is highest in enclosed areas where the smoke tends to concentrate. Obviously, there is relatively less risk that non-smokers will be contaminated by environmental tobacco smoke in outside areas.

Prior to the total ban, smoking had also been prohibited in specified areas where there were known safety risks, such as in the fertilizer plant where there is a risk of explosion from high dust concentrations. But with the total ban, the more limited restrictions were made redundant because it is expressly stated to apply to all areas within the boundaries of the Trail Operations including offices and plants, indoors and outdoors, parking lots and private vehicles and to Company vehicles both on and off the property.

The magnitude of the edict becomes more clear from the sheer size of the property. The evidence was that the Trail Operations exceed 450 acres; and there is another large area at Warfield where a fertilizer plant and other smaller industrial plants are located.

The policy applies to over 1900 employees of which almost 1600 belong to the two local unions which are party to this dispute.

The Union concedes that smoking involves significant health risks both to smokers and to persons who may be exposed to environmental tobacco smoke. Further, Mr. Rowlinson, Counsel for the Union, stipulated that the smoking ban in the lead areas of the plant is reasonable. However, he took the position that to the extent that it applies to outdoor areas, it is overly expansive in that it intrudes upon personal life style choices made by employees who are smokers which, he says, is not an interest that the Employer is entitled to protect. He argued that while the Employer may well be entitled to restrict smoking where the health or safety of other persons may be affected, to prohibit smoking in outside areas unduly encroaches upon the rights of employees who wish to smoke.

The risks of smoking have been well documented. Dr. Stanley M. Pier, an environmental toxicologist, summarized them in a report that he submitted to this board @ pp.2-3 as follows:

‘Smoking has been shown to result in significant increases in risks for the development of diseases, including lung cancer, throat cancer, cancers of the lip, tongue and oral cavity, bladder cancer, kidney cancer, myelogenous leukemias, both acute and chronic, various cardiovascular conditions and nonmalignant lung diseases including emphysema, bronchitis and chronic airways obstruction. There is also strong evidence for the causation of respiratory diseases in children living in smoking households, as well as an increased risk for low birth weights in children born to smoking mothers; low birth weight itself is associated with a number of pediatric problems.

Estimates have been made for the proportion of lung cancer deaths that can be attributed to smoking. In Canada, in 1978 there were 6435 lung cancer deaths in men, of which 90% were attributed to smoking. There were 1681 deaths among women, of which 71% were ascribed to smoking. For the United States in 1979, there were 72,803 cancer deaths among men, 92% attributable to smoking and 25,648 lung cancer deaths in women, 78% due to smoking.

Recent studies have shown that a two pack per day smoker has a risk for the development of myelogenous leukemia two to three times that of a nonsmoker.

The smoking of tobacco provides a chemical factory generating more than 2000 derivative compounds, all of which are intentionally being drawn into the respiratory system of the smoker. This represents what is probably the most intimate form of contact with airborne pollutants, having a greater diversity than almost any conceivable polluted atmosphere, with many of the pollutants at higher concentrations than would be found in the ambient environment.’

Indeed, it would appear that the statistical evidence is overwhelmingly to the effect that smoking is harmful to the health of the smoker. Nonetheless, one cannot predict at the onset of the habit who will die from smoking; nor will all smokers contract a disease attributable to smoking; and some persons who do not smoke will die from the same diseases. However, what one can say is that the risks that smokers take are considerably higher than persons who do not smoke.

The evidence relating to environmental tobacco smoke is less compelling. Yet as Dr. Pier said in his report @ p.5:

‘It is highly likely that exposure to ETS at a sufficient, but not clearly known level, does increase the risk for the development of lung cancer. It is less certain that a realistic estimation of the magnitude of the effect or the number of cases attributable to the effect can be made.’

 

Nevertheless, it is probably safe to say that the potential contamination of other persons by environmental tobacco smoke has become the major driving force behind the public policy affecting smokers. It recognizes that smoking is a legal activity but that it should not be carried out in places where the smoke might contaminate the air of third parties. The policy has most recently been given expression in this province in the form of Occupational Health & Safety Regulations issued by the Workers Compensation Board, which requires employers to protect all employees from being exposed to such smoke. The regulation was made effective on April 15, 1998 and reads as follows:

‘Environmental Tobacco Smoke

4.81 The employer must control the exposure of workers at any workplace to environmental tobacco smoke by:

 

(a) prohibiting smoking in the workplace, or

(2) restricting smoking to designated smoking areas or by other equally effective means.

4.82 (1) A designated smoking area provided under section 4.81(b) must be clearly identified to the workforce by signs or other effective means and be a

(1) safe outdoor location, or

(2) room structurally separated from other work or break areas.

(2) If necessary to prevent tobacco smoke from entering a workplace, the designated smoking room must be provided with a separate, non-recirculating exhaust ventilation system which

(1) meets the requirements for a smoking lounge specified in ASHRAE Standard 62-1989, Ventilation for Acceptable Indoor Air Quality or other standard acceptable to the board,

(2) is designed in accordance with expected occupancy rates,

(3) maintains adequate air flows from non-smoking areas, and

(4) discharges directly to the outdoors.

(3) Except in an emergency, an employer must not require a worker to enter an indoor area where smoking is permitted under section 4.81 until the tobacco smoke has been effectively removed.’

Counsel for the Company argued that, on the issue put by the Union, the onus is not on the Company to demonstrate that the policy imposing a total ban is reasonable, but rather the Union must demonstrate that it is invalid which, he asserted, could only be done by showing that a right has been negotiated in the collective agreement, either expressly or implicitly, for employees to engage in such an activity on company property.

It is not disputed that no such express right has been negotiated into the agreement, but the Union says that the issue is not whether it can be found in the agreement but rather whether employees derive the right to smoke from other sources. It was the position of Mr. Rowlinson that smoking is a personal right similar to the right of an employee to bring his lunch onto company property and that, in perspective, what the Employer is really seeking to do is regulate the personal habits of its employees. According to Counsel, the policy goes well beyond protecting other employees from environmental tobacco smoke which, he says, is obvious from the approach taken by the Company to justify the policy by attempting to show that it will likely improve the overall health of employees in the bargaining unit.

Beyond that, Mr. Rowlinson argues that nicotine addiction and the related effects of nicotine withdrawal constitute a disability within the meaning of the British Columbia Human Rights Code. He says the consequence is that the policy discriminates against smokers because if they cannot control their addiction, the end result of the policy is that they will be discharged. At the very least, he says that the legislation requires that addicted smokers must be accommodated in ways that would permit them to continue to work and that the best way to do that is to permit them to smoke in outside areas, provided always that steps are taken to ensure that their exhaled smoke does not contaminate the environment of other employees.

2. Background

The current expansive operations of the Company had humble beginnings. Gold and copper were discovered in the Rossland area with Joe Moris and Joe Bourgeois staking the first successful mining claim on July 2, 1890. The ore was originally carried on horseback to Trail Landing for smelting in the United States. Five years later a copper smelter was constructed on the present site which began production on February 1, 1896.

When the Rossland mines started showing signs of depletion the Company, then called the Canadian Smelting Works, started looking for ore in the Slocan district and convinced the Canadian Pacific Railway to back a lead smelter for Trail. The first lead furnace was installed in 1898.

In 1906 five companies operating in the area merged to become the Consolidated Mining and Smelting Company of Canada Ltd., which subsequently purchased the Sullivan mine at Kimberley, B.C. in 1913, one of the largest zinc-lead deposits in the world. Over the years the operations were modernized and expanded, particularly during the war years. In 1966 CM&S restructured its corporate organization and became officially known as Cominco.

The production of zinc has come to predominate the operations. The zinc plant was modified and expanded to its current capacity of 290,000 tons while the production of lead had fallen to 100,000 tons annually. To increase that production, the Company invested $150 million to build the Kivcet plant, the world’s most modern lead smelter, which was put on stream in the second quarter of 1997. It uses an oxygen flash smelting process and has a design capacity of 120,000 tons.

Environmental performance has been a major driver in the decision to upgrade both the zinc and lead plants. Goals were established to reduce particulate air emissions by better than 90%, and to reduce metals and sulphur dioxide emissions by 75%. A comprehensive year around monitoring and assessment program was introduced for that purpose, as will be discussed.

Part of the concern over environmental performance has been an intense focus by both the Company and the Union on the health and safety of employees. That became increasingly important as the workforce got older. The current average age of all employees is 47 with service averaging 23 years.

For that purpose, an Environmental Department was established to deal with such things as stack emissions, sewer outfalls and effluent treatment. A separate Hygiene Department deals more specifically with employee issues, such as exposure to toxic substances. That program is operated primarily through a system of monitoring. Regular blood samples are taken of all employees who are exposed to known hazards. Depending upon the extent of their exposure, the frequency of the sample may vary from every two months to once per year. Or an employee may request a sample at any time. In addition, atmospheric testing is regularly done not only on Company property but at various locations within the City of Trail and the surrounding area. Personal protection equipment including respirators and other breathing apparatus are required to be worn in certain areas. Finally, permissible concentrations, threshold limit values, and exposure standards have been established in conjunction with the Workers Compensation Board.

The Company has not always met the legislated standards and, in fact, commencing around 1977 it entered a lengthy period in which it was regularly fined $28,500 per month because it was unable to meet the Workers Compensation Board exposure limits for lead. In 1978 the permissible level of leads in the blood was set at 80 micrograms per decilitre. If an employee were determined to exceed that limit he was required to be moved out of the lead hazard area, called the ‘move level’. However, while there was a lot of discussion about what could be done to decrease exposure limits in that period, employee blood lead levels did not generally decline.

The situation started to change in the early part of the new decade when tri-partite meetings were initiated with the Unions and the Workers Compensation Board, all of whom participated in the establishment of a Lead Task Force to develop a comprehensive hygiene program, including a rather ambitious goal of moving the acceptable tolerance level for blood/lead down to 50 micrograms/ decilitre. The work of the Task Force took more than ten years to complete but eventually resulted in the ‘Health Protection Program’, which was officially put into place in 1996.

In the meantime, the Company initiated many changes designed to improve the quality of life and the health of employees. Some of the changes were made independently of the Task Force while others were initiated as a direct result of their work. The overall plant hygiene improvements made in that period included:

(1) lunchrooms upgraded,

(2) clean air stations,

(3) full face respirators,

(4) hired full-time permanent technician,

(5) doubled sampling routine,

(6) all vent systems investigated, redesigned, repaired and improved,

(7) production cuts to improve hygiene,

(8) Dracco bag house upgraded, and

(9) more efficient fans and motors were installed.

 

The reference to production cuts refers to the fact that monitors were mounted on the smoke stacks and when they indicated that discharges into the atmosphere were excessive, production would be curtailed to bring the stack emissions back into line. The total of those costs was estimated to be in excess of $10 million.

Other costs associated with the hygiene program included such things as shower time at a cost of $163,000/ year. A new change room with shower facilities and separate lockers cost around $3 million. Also, because concentrate is moved partly by truck, the roads were identified as a source of contamination. Not only were the trucks tracking toxic residues throughout the property but they were taking them outside. A program was, therefore, initiated to clean the roads regularly and a truck washing facility was built to wash down vehicles before they leave the work site. The road cleaning itself costs $200,000/ year. More expenses were incurred for laundry and purchasing clothing. The Lead Task Force itself cost $2 million.

It is important to understand that part of the reason for the development of the Health Protection Program was a recognition that the permissible concentrations of blood leads prescribed by the Workers Compensation Board may not be practicable in a primary lead smelter. It is to be remembered that the Company was being regularly fined because it was not able to meet the standards but the WCB undertook to exempt the Company from the regulations on condition that the HPP would be implemented. The statutory authority for enabling the HPP to serve as an alternative to compliance with the permissible concentration for lead was provided by a Board authorization under Reg.2.10, as an interim measure, which was subsequently superceded by an amendment to section 36 of the WCB regulations.

The general policy objective of the HPP is that each of the Company, the Union and the employees will work together to provide the direction, the controls and procedures necessary to maintain blood leads and air lead concentrations as low as may be reasonably achievable. Under the program, employee exposure to hazardous contaminants is to be minimized, partly by training them to comply with established procedures, in order to ensure a healthy working environment. Amongst other things, the plan requires exposure/ risk hazard assessment, primarily in the form of ambient air monitoring to determine the general air quality in the area and personal sampling to establish an actual exposure value for specific jobs; there are also requirements for process, engineering, administrative and housekeeping controls, hygiene facilities, instruction and training, reporting and, most importantly, biological monitoring and medical surveillance.

The actual details of the HPP are not important for our purposes here. The point of that evidence is only to demonstrate the joint commitment of the parties to make every effort to improve the health of employees. That commitment has also been imported into the collective agreement. In the case of Local 9705, Article 8.01 provides:

‘The Company and the Union, recognizing the benefits to be gained from a safe and healthy place of employment agree that they shall cooperate in continuing and improving the measures now in effect for the prevention of accidents and the elimination of health hazards.’

An identical provision also appears in the Local 480 agreement. In addition, there is a requirement in both collective agreements to establish a Joint Safety and Health Committee to (a) make regular inspections, (b) meet regularly to discuss safety and health issues, (c) investigate all accidents and make recommendations for remedial or preventative action, and (d) provide suggestions on the operation of the Safety Program. There is also a provision that is unique to the Local 480 agreement, which expresses a commitment of the parties to attempt to achieve a pollution-free environment. That provision reads as follows:

10.01 The Company and the Union affirm their joint objective of achieving a work environment in the Company’s operations, and a general environment in the communities which these operations affect, which is pollution-free to the extent practical, recognizing the nature of the Company’s industrial operations.

 

3. History of Smoking Policies

The Company has issued a progression of smoking policies over the years. The first was in 1987. It purported to prohibit smoking where it might affect others, or where it might involve safety issues or cause production problems. It even permitted employees who worked in a particular location to designate their area as a non-smoking area, which would have to be respected by all visitors to the area. In particular, it prohibited smoking:

1. where process conditions presented a recognized risk of fire and/ or explosion and which were designated and posted as no smoking areas;

 

2. where necessary to control toxic exposures such as in lead hazard areas, except in locations and under conditions specified in each plant;

 

3. where product contamination and degradation could otherwise result; or

 

4. in specific areas designated by employee agreement or as a consequence of a management decision, failing such an agreement.

 

According to John Owens, Superintendent, Occupational Health & Safety, that policy was primarily an attempt to control the interactions of smokers with non-smokers because it permitted the workers to vote to protect their work area. However, he said that it caused considerable problems relating to enforcement. For example, in certain instances it ended up concentrating the smokers into confined areas, such as the lunchrooms which, amongst other things, caused sanitation problems because cigarette butts were left all over. The Company even tried to stagger lunch breaks but that caused operational problems.

One positive outcome of the policy was that various employee groups sought to protect their work areas from environmental tobacco smoke. On July 1, 1988, the following areas were designated smoke-free: (a) the 2nd floor of the Trail Operations Building, (b) the Information Systems area on the main floor of the Trail Operations Building, and (c) the 4^{th floor of the Cominco Building. The latter is a location off the property in downtown Trail. It is to be noted, however, that the smoking ban was only effective in the public parts of the designated areas. Employees in private offices were permitted to continue to smoke.}

The next development was that, at the urging of a number of employees, a survey was taken of the entire Trail Operations Building with the result that a majority voted to restrict smoking throughout the building. As a consequence, the entire building was designated as a non-smoking area effective April 16, 1990 including the washrooms, all private offices, the vault, hallways and common areas. In addition, the Company elected to discontinue smoke breaks because it considered them to be an ineffective utilization of time. Employees who wished to stop smoking were given access to a program sponsored by the Company, at cost.

Because the Trail Operations Building is an office building, it affected primarily members of Local 9705. However, one advantage that they enjoyed derived from the fact that they had an unpaid lunch break, which meant that the smokers could use that time to go outside and have a smoke. No employee was permitted to use paid breaks to smoke. In fact, Local 9705 filed a grievance claiming that the policy was unreasonable and that employees should be permitted to take a modest number of smoke breaks during the day, but it ended up dropping the grievance after Dawn McKessock, Senior Industrial Relations Officer, outlined the reasons for the policy and, in addition, agreed to make temporary arrangements to permit addicted smokers to briefly leave the building to have a smoke. But she emphasized that it was ‘a temporary arrangement as it results in lost production.’

In the course of the dispute, Jim Saare, President of Local 9705, wrote an article in the May 1990 edition of the Union magazine called, ‘The Picket’, in which he stated that the Union concurred with a clean air policy in the workplace but he said that it should be applied consistently and fairly to all Cominco employees. In particular, he complained that managers in the Administration Building, just across the street from the Trail Operations Building, were able to smoke. He urged tolerance of employees who smoke and urged that the situation be handled, as was being done in other industries, by providing designated smoking areas.

One year later, on November 18, 1991 the Control Systems Building was designated as a non-smoking building following a vote by the employees. That was followed in the spring of 1992 by a By-law passed by the City of Trail, called the ‘Smoking Control By-law No. 2194, 1992', which prohibits smoking in all ‘places of employment’ except a smoking area designated by the proprietor. It was not disputed that the jurisdiction of the City of Trail extends to the Cominco Trail Operations. It is important, however, that the By-law defines ‘place of employment’ as an ‘indoor place of work’, with certain exceptions that do not apply to the circumstances of this case.

The result of the definition is that the prohibition against smoking in a place of employment in the City of Trail does not extend to outside areas. It is expressly made to apply only to ^{interior spaces.}

It also contains some interesting provisions relating to the accommodation of smokers as follows:

8.1 No person shall smoke in a place of employment, except that a person may smoke in a smoking area designated by the proprietor.

 

 

8.2 The proprietor shall take all reasonable steps to ensure that no person shall be involuntarily exposed to smoking in the workplace.

 

8.3 Any worker may object to the proprietor about smoking in his or her workplace. The proprietor shall attempt to reach a reasonable accommodation, insofar as is possible, between preferences of smoking workers and those workers who do not smoke.

 

8.4 If an accommodation cannot be reached which is satisfactory to all of the workers in any given workplace, then the preference of non-smoking workers shall prevail and the proprietor shall prohibit smoking in the workplace of such workers, to the end that those workers will work in a smoking free environment.

 

8.5 The areas in which smoking is prohibited shall be clearly marked with signs as prescribed by section 10.4 of the By-law.

 

The evidence does not disclose that any action was taken to enforce the By-law against the Company property although it clearly went well beyond the Company policy then in existence, which, as we have seen, was to permit employees to elect to designate non-smoking areas. The effect of the By-law was just the opposite. It prohibited smoking inside any workplace unless the employer designated smoking areas.

It was not until almost two years later that Mr. Owens issued an Employee Bulletin dated February 17, 1994 where he said that in order to be more consistent with the By-law, smoking would be prohibited in the following locations:

1. lunchrooms

2. change rooms

3. meeting rooms, and

4. washrooms.

 

He also reiterated the original 1987 policy that smoking was prohibited where it might cause operational or safety problems or in specific areas designated by employee agreement or as a consequence of a management decision, failing that agreement. On the other hand, he stated that smoking would be permitted where the above conditions did not apply except that in close quarters, the decision would have to be made with the agreement of all the people affected on a shift-by-shift basis, provided that adequate ventilation was in place and proper housekeeping standards were ensured. The policy also included a complaint procedure where employees could identify any alleged departure from the policy.

Perhaps the most significant smoking policy to be issued prior to the one in dispute in this case, referred to earlier, was the total ban on smoking in all lead operations, implemented effective September 1, 1996. The boundaries of the lead area were defined and employees were notified as early as the spring that not only would smoking not be permitted in that area but, in addition, the possession of tobacco products would be forbidden, and any infractions would be subject to disciplinary action, up to and including dismissal. As part of the policy, the Company offered several different smoking cessation programs to both employees and their spouses, at no cost.

Around the same time, there were a couple of instances when employees working in areas where smoking was permitted, refused to work on the grounds that it was unsafe. In the case of D. Mitchell, who worked in the Zinc Melting Plant, the dispute was settled on the basis that the WCB policy at that time on the enforcement of Reg.13.01, dealing with hazardous contaminants, explicitly exempted offensive odours, germs, tobacco or tobacco smoke. However, the Company undertook to make efforts to bring about a restriction on smoking in his immediate area and advised him that plans were under way to institute a total smoking ban for Cominco operations.

Following the implementation of the ban on smoking in the lead operations, Mr. Owens testified that he assembled a committee to review the Company’s existing smoking policies with a view to imposing a total ban on the entire property. Representatives from the Unions were invited to participate but they refused. Tom Wynn, the Chair of the Health & Safety Committee, Local 480, testified that he told Mr. Owens, ‘You know my position. We support the ban in hazard areas or where other employees are working but otherwise it should be a matter of choice.’

Mr. Owens remembered the conversation differently but no point would be served in attempting to reconcile the differences. In his testimony, Mr. Wynn further asserted that, the Health Protection Program does not require such a ban. Rather, it requires only that smoking be considered in relation to other occupational health issues. He said that the bigger problem is that where a total ban has been implemented in other places it has had a seriously detrimental effect on addicted employees who have a very tough time with it. He expressed the view that, particularly employees required to work 12 hour shifts without a cigarette, would likely find it to be an almost impossible thing to do. Further, he said that the ban would be difficult, if not impossible, to enforce.

The position taken by Mr. Owens was that a smoking ban in the hazard areas is a fundamental requirement of the Health Protection Program and that while individual employees working in lead operations initially experienced problems in going without smoking during their shifts, they were able to adjust. He said that around that same time the WCB started to develop a much stronger position on smoking in the workplace and the committee discovered that there were other employers in the industry, such as Sheritt-Gordon and Brunswick Mining & Smelting, that had imposed comprehensive smoking bans. He said that the Company decided to retain consultants, at that point, to advise them and, in the end, decided that a total ban would be appropriate, provided that it were properly implemented.

Accordingly, on November 6, 1997 he issued an Employee Bulletin outlining the manner in which the ban would be put into place. The effective date for enforcement was set for February 1, 1998 with the official implementation date being January 1. The Bulletin not only set out the scope of the ban but also discussed certain things that would be done to facilitate implementation and some of the factors considered by the Company in concluding that the ban should be total.

If for no other reason the document is important because it sets out a fundamental disclaimer that it was the intention of the Company to ban the use of tobacco products while people are at work but not to direct anyone to quit using them altogether. He said that a smoking management program would be offered to all tobacco-using employees and their spouses to teach them how to control their tobacco habits while at work.

Following the bulletin, the Company hired Addiction Management Systems Inc. (AMS) to assist smokers to manage their addiction. Every smoker was required to take the program. Spouses of employees were given the option of attending. Approximately 450 employees were put through the program at no cost to them. The cost to the Company was $90,000. In addition, a counsellor was retained, Gordon DeRosa, to provide individual assistance following completion of the AMS program.

It is critical to understand, however, as Mr. Owens explained, that it was never an objective of the ban to get employees to stop smoking. Nonetheless, to the extent that a number of employees might quit, it would be considered to be a bonus. Indeed, in its promotional presentation to the Company to get the contract, AMS projected a savings of $285,000 after training costs based on the assumption that: (1) the total annual cost of a smoker to an employer is $2500 more than an employee who does not smoke (based on Labour Canada estimates); and (2) the typical quit rate is 20% of employees who take the program. It was even estimated that break-even would be achieved at a very modest 7% quit rate.

Mr. Owens was unable to say how many employees quit smoking as a result of the program or how many smokers continue to be employed because, as he said, that was not the focus of the program and they did not keep track of those numbers.

He testified that other factors, not related to health, considered by the committee in deciding on a total ban were: (1) that smoking takes time that often encroaches on productivity; (2) that a partial ban would discriminate against those who are able to leave the job site; and (3) it would be difficult to identify a completely clean or safe location on the property because of the nature of the operation and the types of contaminants produced.

^{4. Arbitral Jurisdiction of Review}

^{5. Justification of the Policy}

I have already observed that when Mr. Owens published his memorandum dated November 6, 1997 announcing the total ban on tobacco products, he indicated that there were several reasons why the Company decided to take that action. While the Union did not dispute the validity of the reasons, in a general sense, Mr. Rowlinson argued that they could not be seen to apply since the declared objective of the policy was not to get employees to quit smoking.

The first set of reasons that Mr. Owens gave related to hygiene. Firstly, he said that hand-to-tobacco-to-mouth contact transmits industrial contaminants. That was not disputed by the Union insofar as it applies to the lead hazard area. Secondly, he said there was an ever increasing intolerance of non-smokers to, what he called, second-hand smoke which equally was not disputed. Mr. Rowlinson said that was why they were advocating an outdoor smoking policy. The Union agrees that no smoking should be allowed indoors. Thirdly, Mr. Owens said that the Health Protection Program requires a smoking ban in the lead-hazard areas and minimal exposure to all contaminants. The position taken by the Union was that the program does not actually require a smoking ban but they still have no trouble accepting it for that area.

The second set of reasons related to costs. Mr. Owens recited certain estimates given by Labour Canada that a smoking employee costs between $2300 to $2600 more per year to employ than a non-smoker as the result of higher absenteeism, increased health and life insurance premiums and lost productivity. The position taken by the Union on this issue was two-fold. Firstly, it argued that no direct evidence was put to the board that smokers in this workplace have greater levels of absenteeism, or that premiums are higher for smoking employees, or that they have lower rates of productivity. Secondly, it said that since the declared purpose of the policy was not to get employees to quit smoking altogether but only while at work, the Company could hardly rely on cost savings as a reason to buttress the policy. The second alleged item of cost to the Company associated with smoking related to the construction and maintenance of designated smoking facilities but, once again, the Union says it does not advocate any special facilities. It seeks only the right to smoke outside. Indeed, Mr. Rowlinson concedes that the Unions would not have a right to compel the Company to construct and maintain such facilities precisely because it would require the expenditure of considerable amounts of money.

The third set of reasons for the policy outlined by Mr. Owens related to regulatory requirements. He cited the regulations of the Workers Compensation Board on environmental tobacco smoke and the City of Trail Smoking By-law. The problem for the Company is that neither of those statutes require that employers impose a ban on smoking in outside areas. What they require is that employees be protected from environmental tobacco smoke. Both permit employers to construct specially ventilated areas separated from other places of work where employees can smoke in circumstances where they do not impose a health hazard on other employees. In neither case is it required that employers provide separate facilities for smokers but it is equally possible to accommodate them without construction and maintenance expenses by permitting them to smoke outside in an area where environmental tobacco smoke cannot infiltrate into an enclosed area or otherwise contaminate the air of other persons.

Other reasons for the ban were advanced at the hearings. The most important was that there really are no safe areas on the property on which to smoke. This proposition was based on the fact that the operations involve the handling and production of toxic materials. Dr. Pier described the toxicity of those materials. While I do not intend to discuss all of his evidence on this point, I think that it would be helpful to outline some of the more important health risks associated with the major metals produced at the smelter:

(1) Lead. The target organs for lead toxicity are comprised primarily of the gastrointestinal system, the central and peripheral nervous systems, the kidneys, blood and gums. Lead exposure occurs most frequently through ingestion. Inhalation of particulates occurs as well but this has been significantly reduced in the general population by the elimination of lead from gasoline used in automobiles. There are no significant exposures to lead as vapours because there are very few volatile lead compounds. It is cumulative in the body. Ingestion can result in cramping and nausea. It can affect the development of the neurophysiologic system, especially in children resulting in developmental delays and learning disabilities. It can interfere with the formation of blood haemoglobin and result in anaemia, and finally, it can produce motor abnormalities, hypertension and gum disease.

(2) Zinc. This metal is both a micronutrient and a toxic agent. The target organs for zinc toxicity are the respiratory system, the skin and the eyes. Ingestion can produce severe gastrointestinal distress resulting in abdominal cramping, nausea and vomiting. Inhalation of zinc fume is associated with ‘metal fume fever’ which is manifested by shivering, fever, profuse sweating, nausea, headache and pain in the limbs. It is not cumulative in the body.

(3) Thallium. Although it is not produced in large quantities, thallium has a long history of use in consumer products including rat poisons and depilatories. It affects the central nervous and gastrointestinal systems, the liver, kidney, eyes and hair. Early symptoms of thallium intoxication is hair loss. The neurologic impact can result in emotional disturbances to the point of psychosis, loss of balance and impacts on motor performance. Gastrointestinal symptoms can be cramping, nausea and vomiting. It is cumulative in the body. In general, it is considered to have a greater toxicity than lead, similar to the toxicity of arsenic.

(4) Germanium. Although the toxicity of germanium is not well-documented, it would appear that compounds can produce irritation to skin and eyes, as well as liver and kidney damage. Inhalation produces irritation to the upper respiratory tract which can result in bronchitis and pneumoconiotic disease.

(5) Mercury. The toxicity of mercury is dependent on the form in which it is encountered. The free metal is highly toxic by inhalation. Organic mercurial such as methyl mercury are the most toxic of all. It affects the respiratory and central nervous systems, kidneys, eyes and skin. The most serious effects of over-exposure are to the central nervous system and the brain. It can produce severe learning disabilities, personality changes, irritability and affects the system controlling the muscles. The syndrome is called ‘Minimata Disease’ stemming from a severe outbreak resulting from the ingestion of organic mercurials in food. It can also affect the kidneys resulting in impairment of the organ and can produce nausea and vomiting.

(6) Silver. The adverse effects of exposure to silver involve the skin, eyes and nasal septum but overwhelmingly the concern relates to the skin. When silver is absorbed, it deposits in the skin. When the skin is then exposed to light, there is a phenomenon similar to what happens in the development of photographic film. It results in the skin becoming grayish-blue, a condition called, ‘argyria’. It is not toxic and the problem is considered to be primarily cosmetic, although silver compounds can cause shortness of breath and there are reports of lesions in the lungs and kidneys.

(7) Antimony. This metal is in the same chemical family as arsenic. Target organs are the respiratory, cardiovascular, gastrointestinal, the central nervous systems, and the skin and eyes. Compounds are highly irritating to nasal and respiratory mucosa. Dust in the lungs can produce antimonosis which is exacerbated by silica. Over-exposure can also affect the heart which can result in cardiac failure.

(8) Arsenic. This metal is an essential micronutrient but is also both toxic and carcinogenic. Target organs are the liver, kidneys, skin, lungs, lymphatic system, neurologic system and the respiratory system. It can produce gastrointestinal disturbances, a decrease in the production of both red and white blood cells and nervous system toxicity manifested by ‘pins and needles’ in the hands and feet. It can cause darkening of the skin, which can transform into skin lesions that may ultimately become malignant. Arsenic exposures have also been associated with cancers of the liver, bladder and kidney. It has also been shown to cause adverse effects in blood vessels, resulting in a circulatory condition known as ‘Blackfoot Disease’.

(9) Cadmium. Target organs are the respiratory system, kidney, blood, prostate and gastrointestinal system. Inhalation of cadmium fume can produce serious pulmonary problems; a single exposure to a sufficiently high concentration can cause death. Depending on the dose, it can produce chemical pneumonitis, emphysema and pulmonary edema. There are some suggestions that it can produce lung cancer but the data on that issue are equivocal. It has a very long half-life in the human body in the order of 20 to 30 years.

In the ordinary course of events, that evidence would not be relevant to the issue of whether a total ban on smoking could be justified. Without more, the fact that the operation produces toxic metals or that the site is contaminated neither advances nor detracts from the issue whether the Company has an interest in preventing employees from smoking while they are at work. However, that brings us to the most critical aspect of the evidence of Dr. Pier, who testified that the medical evidence is that smoking impairs the mucociliary clearance system so that a smoker who works in a dirty environment is more likely to suffer from disease associated with the inhalation of a contaminant because he will be less able to expel it.

Dr. Pier testified that a pulmonary protective system exists in the lungs from the trachea, through the major and minor bronchi and into the bronchioles. These airways are lined with two highly specialized types of cells, the cilial cells and the mucus cells. The cilial cells have microscopic hairs in each cell. The mucus cells produce a mucus blanket that flows over the layer of ciliated cells. It is that combination that is referred to as the mucociliary clearance system. At p.19 of his report he explained how the system works:

‘When a particle in the size range of 1-5 um diameter reaches the trachea, bronchi or bronchioles in which the mucociliary system is functioning normally, it will become embedded in and retained by the mucus blanket. The microscopic hairs in the cilial cells are in synchronous motion, moving the mucus blanket upward so that it flows toward the throat. The mucus thereby carries the captured particles toward the throat where they will be expectorated or swallowed.

 

It has been established that smoking can paralyse he mucociliary clearance system and render it non-functional. The extent of the impact is a function of the extent to which the respiratory system is assaulted by cigarette smoke, and the impairment can be transient, with recovery, or in extreme cases, permanent.

 

In cases where the mucociliary clearance system is not functional, particles reaching the trachea, bronchi or bronchioles will not be captured in a mucus blanket and there will be no cilial action to carry the particles away from the lung. In these circumstances, particles can intrude into the most critical area of the lungs, the alveoli, where toxic impacts can occur.’

 

 

He testified that studies had been done with smokers exposed to lead which demonstrate that their blood lead concentration is higher than persons who do not smoke. While he did not assert that a causal link had been empirically established, he said that it was his view that the higher blood lead levels in smokers was likely attributable to residual damage to the mucociliary clearance system. He said that a person who smoked one to 20 cigarettes a day on average had a blood lead content 24% greater than that of a non-smoker, and a person smoking more than 20 cigarettes a day showed a blood lead level 45% greater than that of a nonsmoker on average.

Other research has shown that cigarette smoking is a source of cadmium which, as we have seen, is highly toxic and can cause immediate death. The data also demonstrate that smokers who are occupationally exposed to cadmium have higher blood levels of cadmium than nonsmokers.

For purposes of his report, Dr. Pier also reviewed the results of research done by the Company of the ambient air and dust both on the property and in the adjacent community. He said that, in his view, those studies reveal that there is no site that is free of metal-containing particulates either within the boundary of the plant or within the general community, although particulate loadings vary over the area.

His conclusions are found at pp.27-28 of his report as follows:

‘Based on this review, it is entirely reasonable to conclude that smoking imposes an increased risk to Cominco workers, proportional to the extent of smoking, on at least two counts beyond the obvious fact that smoking is inherently a hazard to health, these being:

 

1. the effects of smoking on the mucociliary clearance system makes smokers more likely to have particulates penetrate more deeply into the respiratory system and to suffer toxic impacts both within the respiratory system and in other organ systems within the body; and

 

2. exposures of nonsmokers to environmental tobacco smoke presents some risk for the development of diseases, both nonmalignant and malignant.

 

Though the incremental risk in either case cannot be calculated with any precision, it is eminently clear that toxic exposures will be reduced by the prohibition of smoking and the net effect is certain to be beneficial.’

 

The position taken by the Union is that the evidence is to the contrary, that there are safe areas to smoke on the property. In the first place, Mr. Rowlinson pointed to the fact that the research conducted by the Company did not include monitoring in locations where there was no known occupational hazard. Gerry Saunders, a Registered Occupational Hygienist, employed by the Company, testified that monitoring was done only in areas considered to be a hazard. Counsel went on to assert, correctly I might add, that there was no evidence that anyone who worked outside the lead hazard area had ever been moved because their blood lead was too high; similarly no one working outside of the cadmium plant has ever been moved because their blood cadmium levels were too high. Within those areas, however, the Union supports a total ban on smoking and, in fact, Mr. Rowlinson emphasized that it was the employees in the cadmium plant who took the initiative to conduct a vote some three years ago, which resulted in a ban in that area.

Mr. Rowlinson acknowledged that the air and dust samples demonstrate that metal levels are higher in and around the plant than in the surrounding area but he points out that none of the samples taken even approach an occupational level of concern. By that he means that while metal levels in the air and soil are elevated, they do not exceed the exposure limits set by the Workers Compensation Board. He acknowledged that one sample was close to the limit but it was taken in the middle of the lead hazard area.

Based on those data, Tom Wynn identified six outdoor areas where he thought there would be absolutely no environmental hazard whatsoever for smokers. They are:

1. the Warfield parking lot,

2. the E & M parking lot,

3. the main parking lot,

4. the green house parking lot,

5. an area near the 270 changing room, and

6. outside the Trail Operations Building.

 

As for the evidence of Dr. Pier, Mr. Rowlinson took a position similar to that taken with respect to other reasons advanced by the Company for the policy, that it was relevant only if one assumes that the policy is intended to get employees to quit smoking. He said that since the policy is not directed at getting employees to quit smoking, for most employees the damage, if any, will persist because they will smoke at home with the result that their mucociliary clearance systems will continue to be impaired. He admitted that to the extent that some employees quit smoking voluntarily, they would be less vulnerable. In fact, Dr. Piers testified that one could expect that 20% of the employees who smoke will have quit after one year. More importantly, Mr. Rowlinson challenged the validity of Dr. Piers thesis saying that the two studies that Dr. Piers cited did not support his conclusions.

The problem with those arguments is that they do not account for the essential fact conceded by the Union at the outset of these hearings, which is that smoking is hazardous to health. It is entirely possible, for example, that in the ordinary course of events, the paralysis of the cilial cells referred to by Dr. Piers, is transitory and persists only during the time the person is actually smoking. That would account for the fact that there is no direct evidence that it is the failure of the mucociliary clearance system that is the primary contributor of disease caused by smoking. But that does not get us anywhere. The fact remains that, regardless of how it happens, smoking is a primary cause of disease and disability. It follows, therefore, that to the extent that some employees are persuaded to stop smoking it would be a valuable contribution to the overall health of employees even if it is only an incidental outcome of a policy which is directed primarily at controlling smoking at work.

The matter of the enforceability of the policy I do not see to be a real issue because, in the first place, it is universal and applies to all employees equally. Mr. Rowlinson said that employees will continue to smoke in secret places and in circumstances that would make it far more dangerous than if it were done out in the open. The Union points to the resentment that was generated when workers in the lead hazard area were unable to smoke while those outside the area could smoke. Mr. Wynn also testified that a main concern was that supervisors were able to leave the area while the workers were not.

The problem is that while all of that may be true, it does not support the argument that the ban is unenforceable. I accept it to be likely that some employees have continued to smoke, but there was no evidence that it is a significant problem, precisely because no one really knows whether it is happening. More to the point, there was no evidence that the Company had ever become aware that an employee was smoking and had failed to take action. Indeed, it is committed to enforcing the policy. In the circumstances, it seems to me that the ban is more likely to result in less resentment than more. Nor am I prepared to find that it is unenforceable in any general sense.

It still leaves the issue whether a ban on smoking during work is invalid as encroaching on the personal rights of employees who smoke and, in the first instance, that must depend on a determination of fact whether a smoker can leave his addiction at the plant gate, the issue to which I now turn.

6. Ability of Smokers to Abstain

As distinguished from other cases in the jurisprudence, a great deal of effort and resources were invested by both parties in this arbitration. Virtually no fact was left open to be presumed. The latest cutting-edge scientific and medical evidence was presented to this board by which to evaluate the policy.

Dr. Ray Baker is probably the most pre-eminent expert in this province on addiction medicine. He is a Clinical Assistant Professor at the Faculty of Medicine, University of British Columbia; he is the Regional Director (Canada) of the American Society of Addiction Medicine; he is a member of the Canadian and British Columbia Medical Associations, serving on a number of committees of the College of Physicians and Surgeons including the Opiate Advisory Committee, the Pain Management Committee and the Addiction Medicine Credentialling Committee; he has written numerous articles and given many public presentations on addiction and substance abuse; and has testified in several provincial and supreme court actions and before labour arbitration boards in the area of addiction medicine.

While he testified about the health impacts of smoking, I do not intend to review that evidence in detail, although it is probably worth noting that he said that not only does smoking affect the respiratory system but also cardiovascular, neoplastic (lung, mouth, throat, stomach, kidney, pancreas, bladder, uterus, cervix), immune, haematological, musculoskeletal, perinatal, neurological and psychological systems. With specific reference to a question about the ability of smokers to abstain from smoking in the workplace, he said:

‘In the nicotine dependent person, conscious awareness of the symptoms of nicotine withdrawal onsets within several hours of the last cigarette. In all but the heaviest and most severely addicted smokers it is possible to remain abstinent for 8-12 hours without significant discomfort. They do so every night when they sleep. The phenomenon of craving has been studied and is thought to be due to environmental cues, triggering a conditioned release of neurotransmitters in the mesolimibic area of the brain. In an environment where there is no possibility of obtaining and using the drug, there is less likelihood of craving and the associated discomfort. As well as craving, withdrawal is associated with irritability, anxiety, muscle tension and reduced concentration. Significant withdrawal syndrome is not likely to be seen in a person who is able to use nicotine periodically during each 24 hour period. The withdrawal syndrome will last from several days to two weeks following abstinence from the drug.’

 

Dr. Frederic Bass testified for the Union. He is also a highly qualified expert in addiction medicine except that he specializes almost exclusively in nicotine addiction. He developed an interest in cigarette smoking while doing a PhD. in hygiene at Johns Hopkins University after receiving his medical training from Case-Western Reserve University and a Master of Science in epidemiology from the Harvard School of Public Health. While he does not currently maintain a clinical practice, he is a Clinical Associate Professor, Department of Health Care & Epidemiology, and research associate, Faculty of Medicine, U.B.C.; he is also a member of the American Society of Addiction Medicine and has written extensively on controlling smoking.

He disagreed with Dr. Baker on the rapidity with which nicotine withdrawal takes effect and the extent of nicotine withdrawal symptoms. They also disagreed, to a certain extent, on the effectiveness of nicotine withdrawal treatment, and most particularly on the efficacy of Cominco’s property wide smoking ban in maximizing the number of employees who quit smoking.

What Dr. Bass said is that nicotine addiction is equally as compulsive as heroin and cocaine but, in addition, responds to conditioning by reference to social and environmental factors, which he called, ‘pairing’. He explained that the pairing of the powerful chemical reinforcement of the nicotine with hundreds of specific stimuli which are acquired over time, such as the morning alarm clock, finishing the evening meal, an upsetting event such as a car accident, or a friend offering a cigarette, combine to create the addiction. In other words, nicotine addiction is not just a chemical dependency but that every smoker also develops ‘triggers’ that stimulate the desire to smoke. And to extinguish the addiction, it is necessary not only to stop the chemical dependancy but also to eliminate the many conditioned responses that have been acquired by the smoker. Dr. Baker referred to them as, ‘cues’.

It is the conditioned response that is the most difficult to control since, as Dr. Baker testified, the nicotine patch and gum and bupropion (Zyban), in adequate dosage for persons ready to stop smoking, will relieve most of the symptoms of tobacco withdrawal, with the exception of thoughts about smoking. In other words, nicotine replacement is effective to eliminate many of the ordinary features of withdrawal but it will not as readily reduce thoughts, urges, desires or cravings for cigarettes.

Dr. Bass testified that there are several ways to classify a smoking addiction but four of the main ones are: (1) the Fagerstrom test, (2) the Diagnostic and Statistical Manual of Mental Disorders used by psychiatrists and physicians to diagnose addiction, (3) the ‘hard core’ test of Seidman and Covey used to define the number of smokers who have great difficulty stopping, and (4) the COMMIT (community-based smoking cessation) trial which uses a limit of 25+ cigarettes/ day as an effective predictor of those who will have difficulty stopping.

The social group in which the smoker is located will have a major influence on that person’s smoking. If family, friends and co-workers have a high proportion of smokers, the person is more likely to smoke. Age is also important. Dr. Bass said that only persons between the ages of 9 and 25 start to smoke. The number of years of education also tends to be a factor, which is inversely related to smoking prevalence. Blue and pink collar workers smoke more than white collar workers. A Canadian survey of occupations in 1994 showed that 55% of those employed in mining, amongst other industries, are smokers compared with an overall rate of 29%. A B.C. Ministry of Health survey in 1997 showed that 23% of the population were smokers but in the interior and northern regions, smokers outnumber nonsmokers in a ratio of 3:2.

A 1998 B.C. survey indicated that 16% of smokers were preparing to stop within the next month, 47% were thinking about stopping in two to six months and 33% were not thinking about stopping at all. Using those numbers, Dr. Bass surmised that since only 16% of smokers are currently engaged in stopping smoking, that leaves 84% who are not stopping. Thus, a major component of any strategy to help all smokers stop smoking must involve reaching and motivating those who are not engaged in stopping which, he says, requires effective, sensitive communication. For that reason, he said that it was his experience that the most effective smoking control programs involve co-option of the smokers through the active involvement of both the union and management simultaneously. He said that the social aspects of smoking are so important that a program that does not have the full support of the employees is not likely to succeed.

Dr. Bass was of the opinion that a heavy smoker who was previously able to take smoke breaks at work, who is not ready to stop smoking and is not receiving well-supervised stop-smoking medication would likely be in great distress if he/ she could not smoke for an eight hour period. He felt that a small portion of that population would be able to survive but that most would not. He said they would find their concentration impaired; they would be easily distracted; and their cognitive function would be impaired. In some cases, he said that the symptoms could be disabling.

At p.14 of his report he graphically described the physiology of smoking as follows:

‘The initial surge of nicotine from one puff on a cigarette can reach 150 to 250 ng/ml as compared to 25 to 40 ng/ml twenty to thirty minutes later when the blood is mixed. Further, the liver clears nicotine so rapidly that the half life of nicotine in the body is 90 to 120 minutes. In other words, the smoker who smokes one cigarette an hour experiences dramatic variation in nicotine concentration while smoking and during the course of the day. Suddenly going from self-administered, inhaled nicotine to no nicotine at all is an impossible task for most heavy smokers. Therefore, most addicted smokers will feel substantial withdrawal within a few hours of not being able to smoke at a time when they are used to smoking. Many are likely to be handicapped by the symptoms of withdrawal within 3 to 4 hours.’

 

 

He explained the reason why smokers are able to go through a lengthy period of sleep and other activities without smoking by reference to what he described as a ‘zone of comfort’ where each smoker develops an upper and lower limit for blood nicotine that is specific to each hour of the day. Just as thermostats can be programmed to keep the temperature of a room within a certain range, according to the time of day, so the brain adjusts the level of nicotine for each smoker. In fact, the term ‘nicostat’ has been used to describe this phenomenon. On that theory, he said that the addicted smoker is accustomed to a low nicotine level at night but must be relieved the next morning with the first cigarette of the day.

He related that theory to the situation of underground miners who must work for long periods without smoking and yet have the highest rate of smoking of all Canadian occupational groups. He suggested that the wide divergence between smoking and non-smoking may lead them to smoke more rather than fewer cigarettes per day.

Finally, he commented on the statement of Dr. Baker that one of the most effective components of the Cominco policy was their decision to make the entire property a tobacco-free zone, by saying that while it was comprehensive, well-announced, included spouses, and did not expect all employees to stop smoking, it did not meet the fourth component recommended by Health Canada that a sensitive and supportive environment be provided for quitting. He said that he did not know of any well-controlled experimental or observational study that provides evidence that a property-wide ban on smoking decreases overall cigarette smoking. He went on to say that the policy might help those who were ready to quit but they would not exceed one-third of the smoker population. For the two-thirds who continue to smoke, he thought it could only lead to anger, lack of cooperation and an undermining of some smokers’ sense of self-esteem. Further, he said that some smokers are likely to ‘stoke up’ to high levels prior to and on return from work which is likely to harden their addiction and cause more health problems

than might otherwise happen; and this ‘could occur even if the total number of cigarettes did not change or decreased slightly.’

He concluded his report at p.23 by saying:

‘We do not have good scientific evidence on:

 

1. The dynamics of resetting the zone of comfort for a smoker’s 24 hour nicotine curve,

2. The range of time required for this readjustment process over a population of smokers,

3. The extent to which an extended no-smoking restriction (4-8 hours, ie., several half-lives of nicotine), reduces or worsens nicotine withdrawal.

 

Judging from my clinical and workshop experience with smokers, I estimate that at least half of heavy smokers (25+ cigs/day) and a quarter of smokers of 10 to 24 cigarettes would have seriously bothersome or disabling nicotine withdrawal if they were not permitted to smoke at least every 2.5 hours. If such smokers used nicotine replacement or bupropion, I would estimate that bothersome/disabling withdrawal would be halved.

 

With a good support system for smoking cessation in place [over the] long term, I believe the optimum strategy for minimizing the negative effects of withdrawal and maximizing the rate at which people quit smoking would be to permit smoking in places where tobacco smoke will not create a risk for non-smokers and where the environment does not materially increase the already substantial risks of smoking for the smoker.’

 

Based on that evidence, it would appear on a superficial level, that the two experts are in fundamental disagreement on the main issue in dispute, which is whether addicted smokers could be expected to be able go through a shift without smoking. However, on a close analysis, I am not convinced that they are that far apart. Both of them agree that heavily addicted smokers would probably experience difficulties.

Dr. Bass estimates that at least 50% of ‘heavy smokers’ and 25% of ordinary smokers would experience seriously bothersome or even disabling nicotine withdrawal if not permitted to smoke every 2.5 hours although that estimate does not appear to be supported by his earlier analysis. At p.12 of his report he says that a ‘heavy smoker ... would likely be in great distress if he or she could not smoke for an eight hour period’, while at p.14 he says that most addicted smokers would experience ‘substantial withdrawal within a few hours of not being able to smoke’ and that many are likely to be ‘handicapped’ within 3 to 4 hours.

While Dr. Baker obviously does not agree with the lower estimate of Dr. Bass that serious withdrawal symptoms could normally be expected within 2.5 hours of stopping, he concedes that the heaviest and most addicted smokers will not be able to go 8 to 12 hours without significant discomfort.

In both cases, their estimates were based on an assumption that the heavily addicted smoker would not be under treatment and, in that respect, it is important that the clear evidence is that nicotine replacement therapy is effective to reduce or eliminate withdrawal and that it is the social and behavioural conditioning that is associated with craving. Under the Cominco policy, employees have access to a nicotine patch and/ or Zyban to help them manage withdrawal. On the other hand, while I accept the evidence of Dr. Baker that a total ban would assist in managing the behavioural conditioning because it eliminates the ‘cue’ of other persons smoking, I do not take that to mean that it would significantly eliminate discomfort because obviously there are many other cues that trigger craving.

Not unimportantly, there is also the anecdotal evidence relating to the ban that has been in place in the lead hazard area for many years. No evidence was led that even one smoker in that area was unable to go without smoking for up to 12 hours. There were two employees called as witnesses, who clearly suffered severe withdrawal symptoms as a result of the total ban but both of them are members of Local 9705 being from the office and technical side of the operations. I will discuss their evidence shortly but it seems to me that the experience with the ban in the lead area must be seen to be some of the very best evidence that smokers can generally be expected to be able to tolerate lengthy periods of abstinence. Dr. Bass said that there is not currently any good scientific evidence that the ‘nicostat’ of smokers can be easily reset to permit them to adjust to imposed bans of this nature but the experience in the lead hazard area certainly cannot be ignored on that point.

Clearly, the consensus of the experts is that some of the most heavily addicted smokers can be expected to experience problems with the ban. Many of those will be able to manage their addiction with medical and other forms of assistance. Some probably will not be able to cope, particularly those who have to work the longer shifts and who are not able to take intermittent unpaid breaks sufficient to permit them to leave the property to have a smoke. Other smokers who are less heavily addicted and who work shorter shifts or who have longer breaks will not experience undue discomfort. Yet, as Dr. Bass stated, there will be some, even from that group, who can be expected to experience severe withdrawal symptoms sufficient to impair their productivity.

Sharon Sadler would appear to be one such person, although it is difficult to come to grips with the etiology of her symptoms since many of them derive from causes unrelated to smoking. She is currently a Cost Analyst working in the Trail Operations Building on an eight hour shift with an unpaid one half hour lunch break. She said that until 1989 she was a fairly heavy smoker at around 20 cigarettes per day but by the time of the ban she had reduced her consumption to about 13 per day. She testified that she tried to quit on a couple of occasions but experienced severe symptoms from insomnia, weight gain and anxiety to heart arythmia. On one occasion she tried the patch for a period of 2 ½ weeks but she said that she had such a strong reaction to it that it was ‘scarey’. She also said that she experienced fever and even delirium but she added that within 2 hours of her taking the patch off the symptoms disappeared.

Prior to the smoking ban she attended the AMS lectures, along with all other smokers, but she said she did not attempt to follow the program because she didn’t think she would be able to quit ‘cold turkey’.

On the first day of the ban, February 1, 1998 she managed to get through her shift not ‘too badly’ but the next day she said she fell apart. She experienced a sudden onset of depression which caused her to start crying; she shook uncontrollably; finally, she was asked if she wanted to go home, which she did. On the third day she went to see her family physician, Dr. Elizabeth McCoid, who prescribed ‘lorazepam’, normally used to treat depression, but it did not work. It put her to sleep. She couldn’t concentrate so she ended up going to work without medication. Dr. McCoid did not prescribe a nicotine substitute because Ms. Sadler had reacted to it in the past.

She said almost immediately that she started work, she experienced tension and anxiety which got worse as the morning progressed. Her neck muscles cramped; she said that she felt like she was going crazy. She could not concentrate; and it only got worse in the afternoon even though she was able to walk to the edge of the property during her lunch break and have a cigarette. She took some time off work but generally worked full time until May 19 when she said that she was near a nervous breakdown. She said that in that period she experienced stress, including angina, as well as pain in her stomach and back. Her legs came to be covered with scabs. She said that she made so many mistakes that there was no point being at work.

In the result, her doctor told her to take time off work, which stretched into two months. During that time, of course, she was able to smoke normally although she said she reduced her use to about 5 cigarettes per day. Within three days her angina stopped but her stomach pain continued. She started taking St. Johns Wort, which is a mild herbal treatment for depression.

When she came back to work in August she started to be able to get through her shift without great discomfort but she only works four days per week. That regimen was continued through the rest of the year. Nonetheless, she said that she continues to experience withdrawal within 1 ½ hours of the start of her shift. She says she sometimes looks at a spread sheet and it doesn’t mean anything to her. By 2:30 in the afternoon she said that she starts to lose it; she is not productive in the last hour of the day.

A medical report written by Dr. McCoid on October 3, 1998 became a subject of considerable controversy on the basis that the medications that she prescribed were not appropriate for the symptoms described by Ms. Sadler and, further that those symptoms were not typical of withdrawal. It was the position taken by Mr. Grist, therefore, that the evidence of Ms. Sadler was of little assistance because what she experienced really derived from other pre-existing medical problems and not from the smoking ban.

The diagnosis of Dr. McCoid was that Ms. Sadler was suffering from increased anxiety and nicotine withdrawal because she was physically and psychologically addicted to nicotine. For that she prescribed ‘lorazepam’ but not a nicotine substitute. Dr. McCoid described a number of symptoms suffered by Ms. Sadler, which she attributed to her addiction to nicotine: she confirmed that in the early period following the ban, Ms. Sadler had eczema which spread and worsened; and she had a recurrence of palpitations, reflux oesophagitis, headaches and insomnia. For those conditions Dr. McCoid prescribed ‘alprazolam’ and recommended time off work. Ms. Sadler was also given ‘cimetidine’ for her stomach pain. Finally,

Dr. McCoid concluded that Ms. Sadler was clinically depressed. For that she prescribed ‘clonazepam’.

Dr. McCoid then concluded her report by saying:

‘I believe that Sharon’s medical problems, dating back to February ‘98 are directly related to the smoking ban on Cominco property and to her having to withdraw from nicotine during her working hours. She has been through extreme anxiety, depression and even suicidal ideations because of this edict. She also developed further somatic symptoms of insomnia, palpitations, chest pain, reflux oesophagitis, back pain and dermatitis due to the pressures of trying to conform to the new smoking ban.’

 

Although Dr. Baker stated that it was not his intention to impugn her professional qualifications, he testified that some of the therapies provided by Dr. McCoid were not appropriate to the condition of her patient. Firstly, he said that lorazepam is a benzodiazepine which is not a recognized treatment for nicotine withdrawal but rather is used as a short term therapy for anxiety. He said that clonazepam is another version of the same family of drugs which is not used to treat depression.

Dr. Baker further observed that it appeared that it was the patient who was driving the therapy because, in first place, Dr. McCoid did not prescribe a nicotine substitute ‘as she had reacted to this in the past’ and, in the second place, Dr. McCoid stated, ‘I also felt she was clinically depressed but past experience of antidepressants made Sharon leery of any antidepressants’.

Dr. Baker then went on to deal with the series of symptoms that Dr. McCoid appeared to attribute to withdrawal. What he said about them was that they were complaints that were clearly documented as part of her medical history prior to any change in the workplace smoking policy which, therefore, had to have other causes. He said that the record showed that Ms. Sadler had a history of ‘emotional dysphoria, anxiety and depression with a variety of somatic complaints’. He concluded by saying that he did not think that Dr. McCoid had established a causative relationship between her patient not smoking during a portion of the day and those particular symptoms and that it appeared to him that what Dr. McCoid was doing was endorsing the patient’s attempt to blame her ‘chronic stress-related problems’ on the new smoking policy when it really had other causes. He was particularly critical of her conclusion that her ‘suicidal ideations’ were a direct result of the ban. He concluded by saying:

It appears that Ms. Sadler has chosen this change in policy by her employer as the focus upon which to blame all of her considerable angst. There may well be environmental stressors in this woman’s life, both at home and at work, which are exacerbating all of her stress-related somatic and psychological complaints. However, based upon my review of the chronology of her medical and psychological symptoms and my knowledge of nicotine addiction and withdrawal, I do not believe the workplace ban on smoking is a significant contributing factor to her medical or psychological problems. In fact, I believe, because of the great risk to her health with continued smoking, the total ban on smoking may ultimately increase her chances of success in quitting smoking and extend her life.’

 

The situation of Darcy Ashby is less complicated. She is a Process Information Support Analyst, which she said involves designing and programming the display screens that monitor and control the plant. For our purposes, it means that she sits at a computer terminal all day. She has worked for the Company for over 20 years and has been in her current position since 1993.

She testified that she started smoking 30 years ago when she was 16 years old but that she managed to quit after seven years. In fact, she remained abstinent for 13 years but in 1988 she went through a stressful divorce and started smoking again. Once having started, she said that it was like she had never stopped. She said that she has tried to quit several times since then but only managed to stop for two or three weeks at a time.

When the smoking ban was announced by the Company she said that she thought that it was inhumane. She said that it made her angry and frustrated but mostly she was scared that she would not be able make it through the day. She attended the AMS program ^{because, as she said, she was forced to go but she thought it was a waste of money. She was not ready to quit.}

Once the ban was implemented on February 1, 1998 she said that she experienced considerable stress and anxiety. At first she got headaches, which she described as being like migraines with heavy pressure under her eyes. She was unable to concentrate. In the end, she said that what she did was go to the Land Department where she discovered that there was a small piece of property at the south end of the Trail Operations that the Company does not own. She said that once she was able to get the word out, she and several other employees started to go there at their lunch break where they are able to smoke.

She said that in January of this year she tried to stop smoking with Zyban and found that it helped alleviate some of the symptoms of withdrawal but she experienced side effects and has not been able to quit. Nevertheless, it would appear that her ability to cope has improved over the two years that the ban has been in effect. She only gets headaches, anxiety and stress on occasion. It is not constant.

^{7. The Right to Smoke}

As one might expect, there are a lot of cases on smoking but there are only a few that involve the scope of the ban at the Trail Operations. In a certain sense, one must admire the tremendous commitment of the Company to attempt to pioneer a new direction in to improve the health of its employees. I have no doubts that the policy is a bona fide effort to achieve one of the goals set out in the collective agreements, which is the elimination of health hazards in the workplace.

The Union equally asserts that it is committed to the safety and health of the employees. Mr. Rowlinson said that is why they recognized the need for a lead hazard area smoking ban. It is also why they have recognized the need for employees to be protected from environmental tobacco smoke. He said that both of those situations have an occupational connection and, therefore, go beyond a mere matter of personal choice. But he says that where smoking does not present a risk to other employees, there is no justifiable commercial reason why smoking should not be permitted on Company property.

That was the effect of the decision in Lee Manor Home for the Aged and Christian Labour Association of Canada (1998) 14 LAC (4th) 201 (MacLean) where the grievor was given a three day suspension for violating the employer’s no-smoking policy. With certain exceptions, the policy prohibited all smoking on the property except in designated outside areas. The smoking infraction occurred on a second floor balcony roof garden while the grievor was off shift. Under the policy residents and guests were entitled to smoke in that location but not employees.

In finding the suspension improper, the arbitrator held that a rule which is unconnected to the protection of non-smokers or is unduly broad in its objectives or is unnecessarily intrusive or discriminatory and which cannot be justified on the grounds of efficiency is beyond the power of the employer. He acknowledged that an employer always has an interest in promoting the general health of employees by maintaining a smoke-free environment and is therefore entitled to prohibit smoking where it will endanger the health of others or adversely affect its property or business. However, at p.220 he found that there were limits on an employer’s right to regulate behaviour when the employee is off-shift even though the activity might take place on employer property:

‘Its right to regulate the personal choices of its employees to smoke or not to smoke, however, is limited to its legitimate business objectives. While it is open to an employer, in the interests of improving the health of its smoking employees, to seek to assist them in refraining from smoking or in kicking the habit, the right of the employee, however ill-conceived from a health perspective, to smoke on her own time when off duty, where such action does not endanger the health of others is, in our society, still a matter of the employee’s freedom of choice.’

 

There are many other cases where arbitrators have dealt with the right of employees to smoke on a wide variety of grounds, many of which would no longer be considered to be appropriate. For example, in Re I.O.O.F. Senior Citizen Homes Inc. and Christian Labour Association of Canada (1995) 45 LAC (4th) 423 (Marcotte) the arbitrator struck down a policy which prohibited smoking by employees anywhere inside the building, because no evidence had been put to demonstrate that smoking in that room interfered with the employer’s legitimate interests in safety, production or efficiency; or in Re Thames Valley Beverages Ltd. (Pathfinder Beverages Ltd.) and United Food & Commercial Workers, Soft Drink Workers Joint Local Executive Board of Ontario (1988) 3 LAC (4th) 430 where arbitrator Ted Jolliffe held that a policy which prohibited smoking in ‘our enclosed premises’ was unduly broad, although he noted that new regulations were then being considered by the Workers Compensation Board in Ontario for the protection of ‘co-worker rights’, which he characterized as ‘vague concerns’; but primarily his decision was based upon the fact that no evidence had been presented that indicated that an area previously designated as a smoking area for the warehouse workers was required for any other purpose or that the rights of non-smokers ‘at least in that area of the operation present a problem’. He went on, however, to distinguish the situation of the service and office sections where he felt that non-smokers’ rights might be more compelling.

In some cases, the implementation of a smoking ban has been determined to be a breach of certain procedural or substantive rights in the collective agreement. In Re Ottawa General Hospital and Ontario Nurses’ Association, Local 083 (1986) 27 LAC (3d) 64 (Frankel) a total smoking ban within the hospital, while not discriminatory, was determined to have been improperly implemented because the union had not been consulted prior to implementation of the policy; or in Re Corporation of City of London and Canadian Union of Public Employees, Local 107 (1992) 31 LAC (4th) 224 (Dissanayake) a smoking ban in all city buildings and vehicles was found to be in breach of a collective agreement which contained a status quo clause that purported to preserve existing benefits and privileges. See also: Northern Telecom Canada Limited and National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (C.A.W.) and its Local 1915, unreported, November 28, 1998 (O’Shea).

Howe