[1981] OLRB Rep. June 616
1525-80-OH United Electrical, Radio & Machine Workers of America, Local 524, Complainant, v. Canadian General Electric Company Limited, Respondent.
BEFORE: G. Gail Brent, Vice-Chairman, and Board Members F. W. Murray and M. J. Fenwick.
APPEARANCES: L. C. Arnold and J. Gooley for the applicant; E. T. McDermott, J. Denham and D. Turnover for the respondent.
DECISION OF G. GAIL BRENT, VICE-CHAIRMAN, AND BOARD MEMBER F. W. MURRAY; June 16, 1981
The complainant has complained that the respondent has dealt with certain of its employees contrary to section 24 of The Occupational Health and Safety Act, 1978, S.O. 1978, c.83.
This matter was set down for hearing on November 20, 1980, but was adjourned sine die on the agreement that any hearing would be based on the statements of fact filed by each of the parties. These two statements therefore constitute the agreed facts upon which the Board is acting and they are set out in their entirety below:
STATEMENT OF FACTS
RE: COMPLAINT UNDER SECTION 24 OF
OCCUPATIONAL HEALTH AND SAFETY ACT
There is no conflict between the parties as to the conditions that led up to and justified the shutdown of the jobs in question because of unsafe conditions.
Due to the presence of fumes caused by trichloroethylene vapour in the welding environment of Unit 676, welding work was suspended by agreement of the parties five or six times a week, for short periods averaging three to four hours per week, in order to allow such fumes to subside.
Subsequent to the filing of the grievance by the employees concerned, the conditions giving rise to the suspension of work have been corrected.
The dispute between the parties brought before this Board for your determination involves the method of wage compensation for all periods of time involved in these shutdowns.
The employees involved are incentive employees who normally have earnings in excess of the hourly rate of pay for their classification. These employees, like all other incentive employees, have an average hourly earnings (A.H.E.) that is paid to them under various abnormal conditions of work.
For the periods of time involved in this dispute the Company paid these employees the hourly rate of pay for their job.
The Union contends that the grievors should have been paid their average hourly earnings (A.H.E.) for all time involved in the shutdown of work because of this unsafe condition.
This is the substance of the dispute on which the complaint is made and the Board is requested to make a determination.
COMPANY STATEMENT OF FACTS
The Company's operations at Park Street in Peterborough include an aluminum welding operation in Building 16A which is part of switchgear equipment and components. This complaint arises out of a grievance by 9 filter-welders working in the aluminum welding operations.
The Company has encountered air contamination problems in the aluminum welding area. The Company has taken a number of steps to try to rectify the situation including modifying, relocating and ultimately in several cases shutting down major equipment. The Company has also made other efforts to control the situation including; installing exhaust systems at various locations, including the welding area; installing other equipment; and installing a make up air ventilation system in Building 16A which brings fresh air in from outside the plant.
Pending a solution to the problem, the Company established an administrative control procedure to deal with the situation where the fumes became a source of irritation to the employees in the welding area. The situation may occur once a month or less or sometimes several times a week. The procedure is that where the employees notice any odour or experience any discomfort from the contaminants, one of two designated employees (the union steward and the working leader) will use a tester located in the welding area to test for air contamination. If the levels of contamination are approaching unacceptable levels the employees are under instructions to notify the foreman, to stop work and, if necessary, vacate the area. In the summer months, the employees may go outside or in the winter, they may go to another area of the plant. Fans are turned on and doors opened and the area clears up within 30 to 45 minutes as the air contaminants disperse relatively quickly. The employees have behaved in a resp3nsible and cooperative manner in carrying out the administrative control procedure.
The employees are not assigned other work during this time although on rare occasions, they may have been given clean up tasks. Assigning alternative work would not be practicable in view of the short period of time involved nor was such alternative work available on this short term basis.
Once the foreman was advised of the situation by the employees assuming he was not in the area to notice the condition himself, he would call an employee from Manufacturing Engineering to do further testing to locate the source of the problem. On the afternoon shift when no foreman is on duty, the employees may not report to a foreman before leaving the area although they are expected to enter the results of their tests in a log.
The employees in question work on an incentive rate. When employees working on incentive are interrupted, for example, when they are assigned different tasks or when there is idle time while they wait for machinery or equipment, they are paid either their day rate or their average hourly earnings depending upon which provision of the collective agreement applies. Average hourly earnings (A.H.E.) is defined in Article 8.15 of the collective agreement as follows:
"2. Average Hourly Earnings (A.H.E.) — is the average of an incentive employee's total earnings excluding overtime premium and night shift bonus. These earnings will be calculated as soon as possible after the end of each fiscal quarter and will be used during the following fiscal quarter whenever or wherever they are authorized."
Day rate means the starting rate, the job rate, (the rate for a fully qualified and experienced employee in a particular classification) or an approved rate in between.
The employees and the Union are claiming that for the period of time employees were not working and remained at a location nearby, they should be paid their average hourly earnings. It is the Company's position that the employees are entitled to their day rate in those circumstances.
The issue which the parties are asking this Board to determine is whether the employees ought to receive average hourly earnings or day rate for the brief time periods for which work stopped and the employees waited nearby while the air contaminants were dispersed from the welding area.
The following documents are submitted for this Board's consideration:
(i) the grievance;
(ii) the Company's replies;
(iii) the collective agreement.
The Union has elected pursuant to section 24(2) of The Occupational Health and Safety Act, 1978 to have this complaint heard by this Board instead of proceeding to arbitration on the grievance.
The provisions of section 24(1) of The Occupational Health and Safety Act, 1978 are set out below:
24.-(l) No employer or person acting on behalf of an employer shall,
(a) dismiss or threaten to dismiss a worker;
(b) discipline or suspend or threaten to discipline or suspend a worker;
(c) impose any penalty upon a worker; or
(d) intimidate or coerce a worker,
because the worker has acted in compliance with this Act or the regulations or an order made thereunder or has sought the enforcement of this Act or the regulations.
Subsection 3 of that section imparts into the section the provisions of section 79(4a) of The Labour Relations Act. Accordingly, we proceeded with the burden of proof on the respondent that it did not act contrary to The Occupational Health and Safety Act, 1978.
The facts as presented to us indicate that both parties agreed that under certain conditions work in an area would cease and employees would vacate that area until the fumes were cleared. Given the agreement of the parties, we may assume that the condition leading up to the temporary evacuation was considered to be unsafe and that, absent the agreement about evacuation, the employees exposed to the fumes would have been justified in refusing to work in the area while the air was so contaminated. The facts also indicate that the respondent treated the employees concerned as though they were on "lost or idle time over which the employee has no control" within the meaning of Article 8.10 of their collective agreement and paid them accordingly. The complainant is claiming that such a treatment penalizes the employees to the extent of the difference between what they were paid and what they could have earned on incentive rates over the period of idleness. The complainant further claims that such treatment is a disincentive to employees seeking enforcement of health and safety legislation and i therefore prohibited by the legislation. Nine employees were effected and idle time ranged anywhere from four hours per week to half an hour per month, depending on conditions.
There is no dispute that the respondent could have assigned some or all of these employees to alternate work and paid them according to the appropriate collective agreement rate which may not necessarily have been either the incentive rate or the A. H.E. claimed by the complainant. It is apparent from the agreed facts that no alternative assignments were made because the interruption was usually too short to make such arrangements practical.
The question for this Board to answer is whether the respondent has shown that it did not breach section 24(l)(c) (supra). Counsel for the respondent spent a considerable amount of time defining "penalty" for the Board and trying to convince us that there was no penalty imposed on the employees here. With respect to the arguments made by both counsel concerning the definition to be ascribed to "penalty~', it is sufficient for these purposes to acknowledge that the payment of a smaller sum of money than that which the employee would otherwise be en titled to receive could be capable of being construed as a "penalty". The intent of section 24(1) was surely to prevent an employer from doing any act which would place an employee in a worse position than he would otherwise be in because the employee has sought compliance within the legislation. The two aspects of the subsection are inseparable and it would be wrong to overlook that aspect of the legislative prohibition.
In this case, there can only be a "penalty" in any sense of the word if the employees were paid less than they would otherwise receive in the same situation. The respondent has interpreted its obligation to pay an analogous to its obligation under the "idle time" provisions of the collective agreement. If that is what the employees are entitled to receive under the collective agreement, then there is no "penalty" being imposed, unless the statute specifically overrides the collective agreement in that regard. If that is not what the employees are entitled to receive under the collective agreement and the respondent has erred in its interpretation of the collective agreement, then, depending on the sort of error made, there may be a "penalty" in fact; but if that "penalty" is not imposed "because the worker has acted in compliance with this Act", then there is no violation of the Act and the matter becomes one of contract interpretation only.
Having regard to the provisions of section 23 and specifically subsections 10 and 12 thereof, there is no specific provision which would prevent the respondent from treating this situation as being analogous to "idle time" within Article 8.10 of the collective agreement, provided that it does not thereby run afoul of section 24. In other words, it would appear that the Legislature was concerned lest an employer take action against an employee because of the employee's refusal to work under the guise of an alternate work assignment or temporary layoff, etc. In other words, the Legislature determined that no employee could be singled out for special treatment if he sought enforcement of his rights. Inco Metals Co., [1980] OLRB Rep. July 1981, appears to reinforce this reasoning because, there, employees were reimbursed for the compensation lost when they were sent home, and the Board noted that it was not normal" for the company to send employees home while repairs were being affected.
In this case, these employees were being treated in the same manner as any other employee who would have "lost or idle time" due to circumstances beyond his control. Therefore, unless the very act of thus categorizing them was a "penalty" in the sense that it was done to put them in a worse position than they would otherwise be in, it is not obvious to this Board that the employees have been penalized.
In any event, the action taken by the respondent if it is a penalty, must be taken because the employees sought compliance with the Act. It is impossible to ignore the presence of "because" in section 24(1). That word demands that the Board find a motivating causal connection between the actions of the respondent and the actions of the employees. In other words, the Act prohibits the respondent from reacting to certain employee conduct by taking action detrimental to the employee's interest. To paraphrase the Board's jurisprudence in areas where an unfair labour practice is alleged in relation to conduct involving a particular employee, there must be an anti-safety animus involved. The Act does not prohibit the respondent from taking any action, free of such animus, which as a consequence causes loss to employees. For example, if an employee seeks to have the Act complied with, and the employer reacts to such attempts by taking action against the employee in whole or in part on account of his attempts, then section 24(1) has been violated. However, if an employee, in seeking to have the Act complied with, discloses a situation which is so unsafe that the employer must shut down for a period of time and, as a consequence of this shutdown, the employee suffers to the same extent as all the other employees, then he cannot complain that there has been a violation of section 24(1) because the employer is not reacting by taking action against him, but, rather, he is suffering as a natural consequence of the shutdown.
In this case there is absolutely no evidence to suggest that the respondent was in any way moved to take action against these employees because they sought compliance with the Act. The facts suggest a shared concern about the situation and an agreed upon procedure for removing employees from any potential risk to their health or safety. It seems inconsistent with such a concern to conclude that the respondent would adopt a particular method of calculating pay which was intended to harm employees because they wanted to have their workplace free of contaminating fumes. There is nothing to suggest that the method of payment chosen was chosen because the employees sought compliance with the Act.
As adverted to above, one argument put before the Board was that if the employees are paid less than they would have earned had they continued working at their incentive rates, then it must be concluded that a penalty has been imposed. It would seem that the test should be whether the employee was receiving less for safety-related idle time beyond his control than for non-safety-related idle time beyond his control. If that is not the test, then the natural result of the complainant's argument would be to conclude that whenever idle time was compensated at a different rate than non-idle time, there was a penalty to the employee. Such a conclusion is patently uncalled for and would mean that the parties themselves had agreed to a penalty clause of some sort in Article 8.10 of the collective agreement. Surely the parties intended only that the financial impact of a certain sort of idle time would be lessened in the case of incentive workers rather than that they should be penalized for idle time that resulted from matters beyond their control.
For all of the reasons set out above, the Board concludes that there was no violation of section 24(1)(c) of the Act either because there was no penalty imposed on the employees or because there was no penalty imposed on the employees because they acted in compliance with the Act.
The complaint is dismissed.
DECISION OF BOARD MEMBER M. J. FENWICK;
I dissent from the decision of my colleagues.
The instant case is one of the few that have come before this Board since the Occupational Health and Safety Act, 1978, came into effect. The Act now makes it more possible for employees to insist on a safe and healthy work environment.
The parties agree on the facts. They part company on payment to the incentive workers for work time lost because it was necessary to evacuate and air their welding department premises.
The company contends that it has made payment of day rate for idle time in keeping with Article 8.10 of the collective agreement. I do not agree that Article 8.10 covers matters concerning safe and healthy working conditions.
It is not disputed that the company attempted to cope with the air contamination. However, no permanent relief has been devised as yet.
It is incumbent on the employer to provide a safe and healthy work environment. It has been unable to do so in the welding department.
I would find that failure to pay employees affected their average hourly earning (A.H.E.) imposes a pecuniary penalty on the employees contrary to the spirit of the Occupational Health and Safety A ct, 1978.