Ontario Labour Relations Board

[1980] OLRB Rep. May 700

1182-79-U Joseph William Martin, Complainant, v. General Motors of Canada Limited, Respondent.

BEFORE: R. O. MacDowell, Vice-Chairman and Board Members J. D. Bell and O. Hodges.

APPEARANCES: Harry Kopyto for the complainant; E. T. McDermott for the respondent.

DECISION OF R. O. MACDOWELL, VICE-CHAIRMAN AND BOARD MEMBER J. D. BELL; May 22, 1980

1. This is an application under "Bill 139" — The Employees' Health and Safety Act, 1976, S.O. 1976, c. 79. The complainant, Joseph William Martin, contends that he has been penalized and subjected to a concerted campaign of discrimination and harassment because, on December 28, 1978 he filed a complaint against the respondent alleging a breach of section 9 of The Employees' Health and Safety Act. In particular, the complainant contends that he has been improperly disciplined, transferred to another shift, pressed to supply explanations for his absenteeism when none were requested previously, and continually ordered to wear hearing protection when, in his view, no protection was required. The statutory provisions relevant to this complaint are as follows:

"2. Where an employee in a work place has reasonable cause to believe that a machine, device or thing is unsafe to use or operate because its use or operation is likely to endanger himself or another employee or a place in or about a work place is unsafe for him to work in, or the machine, device thing or place is in contravention of The Industrial Safety Act, 1971, The Construction Safety Act, 1973 or Part IX of The Mining Act, or any regulations there under, as the case may be, the employee may refuse to use or operate the machine, device or thing, or work in the place.

3. (1) Where an employee in a work place refuses to use or operate a machine, device or thing or refuses to work in a place therein because he has reasonable cause to believe that the machine, device or thing is unsafe to use or operate because its use or operation is likely to endanger himself or another employee or the place is unsafe for him to work in, or the machine, device, thing or place is in contravention of The Industrial Safety Act, 1971, The Construction Safety Act, 1973, or Part IX of The Mining Act or any regulations there under, as the case may be, he shall forthwith report the circumstances of the matter to his employer or the person having control and direction over him who shall forthwith investigate the report in the presence of the employee and, if there is such, in the presence of either a health and safety representative, a committee member who represents employees, or a person authorized by the trade union that represents the employee.

(2) Where the employer or the person having control and direction over the employee disputes the report or takes steps to make the machine, device, thing or place safe or comply with The Industrial Safety Act, 1971, The Construction Safety Act, 1973, or Part IX of The Mining Act, or any regulations there under, as the case may be, and the employee has reasonable cause to believe that the machine, device or thing is or continues to be unsafe to use or operate because its use or operation is likely to endanger himself or another employee or the place is or continues to be unsafe for him to work in or the machine, device, thing or place is or continues to be in contravention of The Industrial Safety Act, 1971, The Construction Safety Act, 1973, or Part IX of The Mining Act, or any regulations there under, as the case may be, he may continue to refuse to use or operate the machine, device or thing, or work in the place unless a collective agreement binding the employees expressly provides otherwise.

(3) Where the employee continues to refuse to use or operate the machine, device or thing, or work in the place or having returned to work in compliance with the express provisions of a collective agrement binding the employee files a grievance concerning his right to continue to refuse to use or operate the machine, device or thing or work in the place, the employer or person having control and direction over the employee shall notify an appropriate inspector or an engineer, as the case may be, who shall investigate the matter in the presence of the employer or the person having control and direction over the employee, the employee and, if there is such, either a health and safety representative, a committee member who represents employees or a person authorized by the trade union that represents the employee.

(4) The inspector or engineer shall, following his investigation, make a decision whether the machine, device or thing is unsafe for the employee to use or operate or the place is unsafe for the employee to work in or the machine, device, thing or place is in contravention of The Industrial Safety Act, 1971, The Construction Safety Act, 1973 or Part IX of The Mining Act, or any regulations there under, as the case may be.

9. (1) No employer or person acting on behalf of an employer shall,

(a) dismiss or threaten to dismiss an employee;

(b) discipline or suspend or threaten to discipline or suspend an employee;

(c) impose any penalty upon an employee; or

(d) intimidate or coerce an employee,

because the employee has acted in compliance with this Act.

(2) Where an employee complains that an employer has contravened subsection 1, the employee may either have the matter dealt with by final and binding settlement by arbitration under a collective agreement, if any, or file a complaint with the Ontario Labour Relations Board in which case any regulations governing the practice and procedure of the Board apply mutatis mutandis to the complaint."

2. The hearing in this matter consumed some ten days. During that time the Board heard the evidence of a number of individuals, including officials of the respondent and the UAW — the trade union representing the complainant. The complainant gave evidence on his own behalf for almost three full days. Having regard to the demeanor of the various witnesses, the manner in which they gave their evidence and their relative credibility, we are satisfied that we should generally accept the evidence of the respondent's witnesses wherever that evidence is in conflict with that of the complainant. His statements were inconsistent, and were contradicted on material points by the evidence of all of the other witnesses. It is understandable that an individual might not have a perfect recall of events which occurred some months previously and which might not have seemed significant at the time; however, on numerous occasions Mr. Martin gave clear, definite and precise answers, which he subsequently varied, contradicted or denied. In the circumstances, except as expressly noted hereunder, we are able to give his evidence little weight.

3. There is little doubt that there is considerable animosity between the complainant and the respondent's officials, and that they regard him as a difficult employee. His defiant and hostile attitude was evident in the manner in which he gave his evidence. His answers were often frivolous or sarcastic — even in response to questions from his own counsel. He asserted that he didn't trust any of the respondent's managerial personnel since they were all "liars". In his view, anyone who was not an hourly-rated employee was, ipso facto, a liar. He "didn't do the company any favours" since he "owed the company nothing"; and didn't owe E. G. Williamson (the personnel supervisor) "the time of day". He said that, occasionally, "I would go out of my way to be insubordinate", and agreed with counsel that he often had a rude and insolent attitude. He took things absolutely literally when it suited his purpose to do so, and he acknowledged that he would taunt Frank Matthews, the general supervisor, whenever he thought he could get away with it. In the grievor's opinion, Matthews was a "stupid little man", and Ed Egan, the foreman, was "even stupider" and "not worthy of sarcasm". The grievor told the Board that he was not "good at sarcasm, but practice makes perfect", and he had been "practicing over the last year". The complainant testified that he would file a grievance if he even "imagined" that the company might be wrong. In this respect his evidence is corroborated by that of the various trade union witnesses. The complainant was a prolific grievor. Frank Douglas, the union committee man, testified that Mr. Martin was the most prolific grievor in the plant, and filed more grievances than all of the other employees in the zone put together. Most of these grievances have been withdrawn or abandoned because they were regarded as without merit. It was clear to the Board that many of the complainant's problems are of his own making and are directly related to his attitude to his supervisors.

4. The complainant has been employed as machine repairman at the respondent's Scarborough van plant since December, 1976. There are approximately three thousand employees working at the plant. All employees working in the plant area are required to wear eye protection, and there are a number of "mandatory hearing protection" areas. The respondent supplies various kinds of hearing protection, including Bilsom earplugs and "earmuffs". There is a joint Union/Management Health and Safety Committee, and a full time health and safety representative. Each union zone committee man has a particular day designated to perform health and safety inspections. There are monthly safety meetings, established rules, and training films designed to promote safety in the work place. By and large, the company has sought to achieve safety objectives by discussion and persuasion rather than discipline and threat. There is an on-site medical facility with a resident nurse and doctor, who treat individuals who are injured or ill on the job, and examine persons returning from sick leave before they go back to work.

5. A machine repairman is a skilled tradesman who, as the name suggests, is responsible for the installation, maintenance and repair of mechanical devices. There are a number of machine repairmen in the maintenance department, including the grievor. The department is divided into two "crews": the construction crew which installs and repairs equipment when the assembly line is shut down; and the "service crew" which makes "on-line repairs" while the assembly line continues to operate. Some employees consider the construction crew preferable because it permits the full exercise of trade skills, whole others prefer the service crew because there is more overtime available. Until November, 1978, the complainant worked on the construction crew. There is no question that he is a competent machine repairman, and prior to November, 1978 his conduct and attendance were considered satisfactory.

6. The events giving rise to the present complaint can be traced to November 1978, and a series of incidents which evidenced, or resulted in, a profound change in the grievor' s attitude towards the respondent. In November 1978, there was a significant deterioration of the employer-employee relationship. The grievor began to exhibit the hostile, rebellious and insolent attitude, to which we have already referred. It may be useful to examine these incidents in some detail, for in them one can discern the origin of a conflict which subsequently assumed more serious proportions.

7. On November 27, 1978, Martin reported for work and complained of intense pain resulting from a welding flash (eye injury) which he had suffered the previous day. He was referred to the plant medical department, but refused to permit the plant doctor to examine, or treat him. This refusal, he advised the Board, was based upon his poor opinion of the medical staff — although he admitted that he had had no previous contact with these individuals. Martin demanded that the company send him to St. Michael's Hospital so that he could be treated by "a doctor of his choice". He conceded, however, that there was no particular physician whom he wished to see, he was simply asserting his "right" to go to the hospital of his choice. Martin advised the Board that, in his view, he was entitled to be sent to the hospital of his choice even if it were fifty miles away, and further that he might well choose another hospital next time. The respondent offered to send him by taxi to Scarborough General Hospital, which was both the closest hospital, and the one to which the respondent usually sends injured employees. This was not acceptable to Martin, who continued to demand that he be sent to St. Michael's Hospital. Eventually he left the respondent's premises claiming that he would walk to the hospital (12 miles away) despite the driving snowstorm which was occurring that day.

8. Martin testified that he had no particular complaint against the staff of Scarborough General Hospital, but he regarded it as a "company hospital" because the plant manager was on the Board of Directors. He told the Board that he was also concerned because the Minister of Labour had privileges there, and that this would ensure that the hospital was prejudiced in favour of the company. Two months later (on February 1, 1979) he again had occasion to seek medical attention. He was given a pass out of the plant so that he could visit a doctor of his own choosing. Martin testified that he was suffering from headache, was in great pain, and had to get to a hospital quickly. He chose to go to Scarborough General Hospital. In the circumstances, it is difficult to accept that Martin's expressed concern about the hospital was bona fide.

9. On November 30th Martin reported for work at 7:00 a.m., was cleared to return to work by the plant medical department, and upon doing so asked for a meeting with his trade union representatives. While he was waiting for them to arrive, he repaired a smoke monitor on the plant ceiling. When the trade union officials appeared, he advised them that he intended to invoke Bill 139, and refuse to work because the "entire plant was unsafe". The plant was unsafe, in his view, because, if he were injured, the company would not send him to the hospital of his choice (only, it would appear, the closest one) The trade union officials were incredulous. They advised Martin that an employee could only refuse to work if there was reasonable cause, that it would be difficult to demonstrate that the entire plant was unsafe, and that if there was no reasonable cause he might be subject to discipline. Nevertheless, Martin refused to work. He told Frank Matthews, the general foreman, that if he tripped, or was hit by a forklift truck, or suffered a welding flash, the company would not send him to the hospital of his choice and "consequently" the plant was unsafe. Matthews and Pat Cowling from the respondent's labour relations department, attempted, without success, to reason with the complainant. They advised him that there was no reasonable cause for his refusal to work and that ''reasonable cause ~' was a condition precedent to the exercise of the right to refuse under Bill 139. In this respect, the advice of these management officials was similar to that of the trade union representatives, but Martin persisted. Matthews and Cowling directed that, until the issue of the plant's safety was resolved, Martin should work outside the plant shovelling snow. Again, he refused, claiming that if he slipped on ice and injured himself the company would not send him to the hospital of his choice; "therefore", it was unsafe to shovel show. At this point, in obvious frustration, Cowling fired the complainant for insubordination.

10. At no time on November 30th did the complainant specify any device, thing or area of the plant which was unsafe. His sole complaint was that if he were injured, the respondent would not send him to the hospital of his choice. Throughout this entire sequence of events the grievor was laughing or wearing an amused smile. He was obviously pleased at the foremen's discomfiture, and believed at that time, that he could not be disciplined unless or until an inspector from the Ministry of Labour visited the plant. We are satisfied that the grievor had no reasonable grounds to believe the plant was unsafe, nor did he in fact believe that there was any safety hazard. He may have believed that he could not be disciplined if he purported to act under Bill 139; but we are satisfied that he did not honestly believe that there was any threat to his safety.

11. The following morning a meeting with Ministry of Labour officials was convened pursuant to section 3(4) of The Employees' Health and Safety Act. The respondent telephoned Martin to notify him of this meeting. Martin advised the respondent that he would not attend unless the respondent sent a taxi to pick him up. Martin lives within easy walking distance of the plant. No taxi was sent.

12. The meeting convened about 9:00 a.m. Martin was in attendance, as was Jack Brennen, the plant chairman of the union, Frank Douglas, the union's zone committee man, various company officials, including Pat Cowling and Ed Williamson from the personnel department, the personnel director, and two representatives from the Ministry of Labour. After dealing with certain "preliminary objections" which Martin raised, (a request that his lawyer be present, a request to taper cord the meeting, and a request that the meeting be moved to "neutral territory") the Ministry of Labour Inspector began to question him about the alleged unsafe plant condition. Martin repeated what he had said before, then refused to discuss the matter further because he had been fired, and, in his view, was no longer an employee within the meaning of Bill 139. In order to expedite the discussion, the personnel director reinstated him forthwith. At this point Martin commented (with a derisive laugh as if the entire affair was a joke) "I now declare the plant safe, it's as safe today as it was yesterday."

13. The company officials were astounded and angry, but were content, at that time, to simply notify Martin of possible future discipline. In his evidence before the Board, Martin himself admitted that he realized that he had gone too far and might have to "back off'. He told the company he was not prepared to work the rest of that day, nor did he wish to work overtime on the following weekend.

14. Martin eventually returned to work on December 8th and on December 19th was given a five-day suspension for refusing a reasonable request to work. In the circumstances, this penalty cannot be considered unreasonable and is not a breach of The Employees' Health and Safety Act. On December 27, 1978 Martin filed a complaint alleging that he had been dealt with contrary to section 9 of The Employees' Health and Safety Act. This complaint was eventually adjourned sine die (by a decision of the Board dated January 17, 1979).

15. On, or about, December 18, 1979, the complainant was transferred from the construction crew to a line (service) crew to replace an individual who was disabled. There are no contractual restrictions on transfers of this kind. None of the other employees wished to transfer, and the grievor had the lowest seniority. We are satisfied that the grievor's transfer was properly made in accordance with his seniority and the terms of the collective agreement. There was no improper motive and no breach of Bill 139.

16. The grievor raised no immediate objection to his transfer but two weeks later, on January 3, 1979, he filed a grievance alleging that the transfer was contrary to the collective agreement. Before this Board he contended that the transfer was a penalty or a reprisal for filing a complaint under Bill 139. There is no foundation whatsoever for this contention. The respondent did not receive notice of the complaint until January 4, 1979 — well after the transfer had taken place.

17. The grievor testified that work on the service crew was less desirable because of the frequent requirement to work overtime. While this may well be a legitimate concern, it is curious in the context of this complaint, for one of the grievor's contention is that he has been denied the opportunity to work overtime on several occasions. He alleges for example that Ed Egan, a foreman, denied him the opportunity to work overtime on December 30th and December 3 1st. We are satisfied that Egan approached Martin to see if he wished to work overtime, Martin said he would let him know later and then failed to advise him further. Before this Board Martin testified that, in any event, he had no wish to work December 30th. The allegations respecting lost overtime opportunities are patently without foundation.

18. In January, Martin missed all or part of twelve working days; and in February, he missed some sixteen working days. This was the beginning of a serious absenteeism problem which prompted a concern on the part of the respondent about the reasons for these many absences. From December 1, 1978 to October 10, 1979, Martin worked only forty-four out of a possible 208 working days.

19. On February 1st Martin complained of headaches, and was sent to the nurse. He refused treatment. The nurse sent him back to work, and Fred Matthews gave him a personal pass to leave work. It was on February 1st that he apparently went to Scarborough General Hospital — the hospital which he had considered totally inadequate just two months before. Martin was off work without reason from February 2nd to February 16th. February 16th marked the beginning of his alleged difficulties with the company's ear protection policy and a series of events which he characterized as harassment.

20. When Martin was hired in 1976, he was examined by the company doctor, and advised that his hearing was impaired. He was told that hearing loss would increase with exposure to noise, and that he should wear ear protection at all times. There are no quiet areas in which a machine repairman can work. The nature of the job involves exposure to considerable noise. A number of areas in the plant are designated as "mandatory hearing protection areas" for all employees, but Dr. Doke, the company doctor, testified that, in his view, Martin should wear hearing protection at all times. Martin admitted that this view was confirmed by his own doctor and the specialists that he consulted. All of them agreed that he had a hearing problem and to safeguard his health, he should wear hearing protection. While Dr. Doke's evidence was uncontradicted and corroborated by Martin's own doctors, Martin himself asserted that it was his right to wear hearing protection when, and where he pleased, since it was his hearing which could be damaged. He testified that he was willing to "take a chance". The respondent was not. The company believed it had both a moral, and legal obligation to safeguard the health of its employees (in this regard see The Industrial Safety Act, sections 24, 26,27 and 29).

21. The events of February and March reveal a pattern of periodic absences, and a continuous dispute with his superiors over the wearing of hearing protection. It is unnecessary to review each aspect of this dispute. We are satisfied that the company made considerable, bona fide, efforts to find a form of ear protection which was suitable for the grievor, while the grievor remained insistent on his right to determine when ear protection should be worn. The grievor's refusal to comply with the company's rule was accompanied by a flood of grievances. During this period there was what might best be called a "running battle" between the grievor and his supervisor. Sometimes the grievor refused to wear one form of hearing protection or another; sometimes he refused to wear it altogether, and on one occasion he persisted in wearing two forms of hearing protection at once — with the result that he was unable to hear well enough to perform his duties.

22. There was also a continuing dispute about the grievor's attendance, and his refusal to supply adequate evidence that he was unable to work. The evidence strongly suggests that for at least some of this period, the grievor was intentionally malingering. On March 21st, after being reused a leave of absence by the medical department, Martin told Egan that because of his headaches he wouldn't see him until mid-August. Although these headaches never lasted more than a day or two, Martin's prediction turned out to be right. Except for a few hours on March 22nd, and a couple of days in mid-April, he was absent throughout this period. When asked in cross-examination about this apparent coincidence, Martin testified that it was "just a lucky guess."

23. On March 22nd Martin appeared for work, filed a grievance, and left early because he said he was ill. This grievance involved the events of March 20th. Martin had not been answering the whistles which signal the need for a machine repairman. Egan found him sitting in the tool crib and, since Martin said he couldn't hear the whistles, Egan told him to make himself visible, and walk up and down the aisle so that he would be available if needed. Martin consequently filed a grievance alleging harassment, and at the same time, claimed that the aisle was unsafe (relying on Bill 139). Yet he also asked that a chair be placed in the aisle for him. Before this Board he remarked that he simply didn't like walking, and that his next request would have been for a soundproof room. This incident was typical of the events in that period, and aptly illustrates the complainant's frivolous and facetious attitude. We are satisfied that there is no impropriety on the company's part with respect to the wearing of hearing protection.

24. On April 19th the grievor appeared with a note from his doctor advising that he should wear hearing protection. Again, he would not let the company doctor examine him, declaring that his health was "none of his business." Williamson advised the grievor that there was no work available for him which did not require the wearing of hearing protection. The possibility of janitorial work was discussed but not pursued. The grievor was not being disciplined or suspended, and was so advised. It was simply that there was no work available. This incident subsequently led to a complaint before The Labour Relations Board that the grievor had been unlawfully "locked out". There was, however, nothing improper in the company's conduct.

25. The respondent heard nothing further from the grievor until July 31st, when it received a telephone call from a Mrs. Croft of a local unemployment insurance office requesting details of "Martin's layoff". Williamson advised Mrs. Croft that there was, and had always been, work available if Martin was able to wear ear protection. In response, Martin sent a telegram indicating that he was "anxiously awaiting recall." By letter dated July 3 1st, the respondent advised Martin that he should report for work on the evening of August 1st. This letter contained an error with respect to his starting time. A second letter was delivered correcting the error, and Matthews telephoned Martin at 8:00 a.m. to inform him of the time when Martin should report that evening. Martin refused, with a comment which he seems to freely and frequently use to all his superiors. He said, "no fucking way". (It should be noted that the grievor had not been disciplined for his free use of profanity — even when he told the superintendent of labour relations to "go fuck himself." Apparently the respondent considers this to be merely "shop talk" and not a matter for discipline.)

26. When the complainant reported for work on August 1st (at the time stated in the original letter which he knew to be incorrect) he wrote out several grievances and was assigned to the mill room. Shortly thereafter he was nowhere to be found, and after a brief search by the evening supervisor was eventually discovered in the cafeteria area. He was put on notice of discipline, and subsequently given permission to leave work because he said he was too ill to work. He returned on August 27th and received a three-day suspension.

27. The complainant's erratic attendance continued even after the filing of the present complaint. On September 19th he left work early complaining of high blood pressure, and did not return to work until October 9th. On October 9th there was some confusion respecting his status. Matthews believed that he had terminated his employment in accordance with section 54 of the collective agreement. Matthews was unaware that Martin had already been cleared to return to work by Ed Williamson, and Martin did not tell Matthews that this was the case. Accordingly, Matthews sent Martin home. When he discovered his mistake he telephoned Martin, asked him to return to work, and told him he would be paid for his full shift. Martin hung up several times, and told Matthews he was going on holiday. Subsequently, Williamson telephoned, recognized Martin's voice, and also asked him to return to work. Martin identified himself as a relative and said that he (Martin) was out. The following morning Martin requested the decidamptype earplugs; but subsequently confronted Matthews, told him he was not going to wear ear protection and demanded to know what he intended to do about it.

28. It might be noted that the recollection of Egan and Matthews was assisted by notes which they had made contemporaneously with the events in question. These notes had been made after the events in November, when they (correctly) assumed that Martin's subsequent conduct, and the company response might give rise to grievances. As it turned out there were numerous grievances — only some of which have been mentioned herein. Moreover, after the first Bill 139 complaint, counsel suggested that it would be prudent to keep complete notes in the event that there was a proceeding before this Board. We are satisfied that there is nothing sinister in the respondent's desire to keep a careful record of the complainant's conduct.

29. Under Bill 139 the legal onus lies upon the respondent to demonstrate that it has not contravened the Act. To meet this onus the respondent makes two submissions which for ease of reference it referred to as its "legal argument" and its "evidentiary argument".

30. The respondent argues that on November 30, 1978 Martin did not have an honest and reasonable belief that the entire plant was unsafe, nor was he acting in compliance with the Act on that day. In the respondent's submission, both the earlier Bill 139 complaint, and the present one are frivolous, vexatious, and entirely without merit. The respondent further contends that even if the complainant were able to demonstrate that he has been penalized for filing a Bill 139 complaint, that is not a substantive offence under The Employees' Health and Safety Act. The respondent points to the language of section 71 of The Labour Relations Act, and section 24 of The Occupational Health and Safety Act — both of which create a specific offence in this regard.

31. We have carefully considered the respondent's "legal argument", but we are satisfied that it is unnecessary for us to express any opinion on its merits. Before such question arise, it must be established, on the evidence, that the subject employee has been penalized because he has exercised rights or has sought a remedy under the Act. We are satisfied that such is not the case here.

32. The respondent came forward with affirmative evidence establishing a credible explanation for its conduct free from any improper motive. Indeed, the respondent has acted with moderation and restraint in the face of considerable provocation. The evidence disclosed numerous occasions of flagrant insubordination, abusive language, defiance and rudeness to all of the management persons with whom the complainant had contact. The complainant freely acknowledged his antagonism and hostility, and openly admitted that he would taunt his superiors if the thought he could get away with it. It is apparent that much of his conduct was intentionally irritating and designed to goad his superiors into a reaction. The weight of the evidence suggests that the complainant was not seeking to further a legitimate concern for his health or safety, but rather was seeking to antagonize and aggravate the respondent.

33. We do not reach this conclusion lightly for the rights guaranteed by Bill 139 are critically important to all employees. The concept of insubordination is singularly inappropriate in situations where an employee is refusing to work in an honest (although mistaken) belief that his health or safety may be threatened. We accept the view, so accurately expressed by Doke, that in such matters one should err on the side of caution and prudence. An employee should not be penalized for doing so, nor should this Board be unduly concerned if bona fide concerns for employee safety result in occasional disruptions of the employer's production process. In the present case, however, there is not only no evidence to sustain the complainant's original refusal to work, but we are satisfied that there has been no pattern of harassment referable to the December 28th complaint. Despite considerable provocation, the employer's response has been a measured one, which was not out of proportion to the degree of the complainant's misconduct.

34. In the result, we are satisfied that there is no merit to any of the complainant's charges. The application is therefore dismissed.

DECISION OF BOARD MEMBER O. HODGES:

The decision of Board Member O. Hodges will follow shortly.