[1981] OLRB Rep. August 1113
2625-80-M United Brotherhood of Carpenters and Joiners of America, Local Union 38, Applicant, v. Cooper Construction Company Limited, Respondent.
BEFORE: Ian Springate, Vice-Chairman, and Board Members M. J. Fenwick and J. Wilson.
APPEARANCES: David McKee and Arthur Varty for the applicant; Mark Contini and Paul Hansen for the respondent.
DECISION OF IAN SPRINGATE, VICE — CHAIRMAN, AND BOARD MEMBER J. WILSON; August 21, 1981
The name: "Cooper Construction Co. Ltd." appearing in the style of cause of this application is hereby amended to read: "Cooper Construction Company Limited".
This is a referral of a grievance to the Board for final and binding determination pursuant to section 1 12a of The Labour Relations Act.
This matter arises out of the respondent's discharge of Mr. A. Varty on February 19, 1981. Mr. Varty commenced working for the respondent in November 1980 as a carpenter employed on the construction of a parking garage in St. Catharines. The respondent is bound by the terms of the Carpenters' provincial agreement. In the St. Catharines area the agreement is administered by United Brotherhood of Carpenters and Joiners of America, Local Union 38 ("Local 38"). Mr. Varty is a member of Local 38 and at the time of his discharge was the Local's job steward at the parking garage project. It might also be noted that Mr. Varty has had a long connection with Local 38, and, indeed, until fairly recently was the Local's business agent.
On February 24, 1981, Local 38 filed a grievance with the respondent alleging that Mr. Varty had been unjustly dismissed contrary to Article 14.02(2) of the provincial agreement. It appears that the grievance was in fact meant to refer to Article 14.02(a) of the agreement which provides as follows:
The employer acknowledges the right of the Union to elect or appoint stewards and the employer agrees to recognize such stewards. The Union undertakes to keep the employer informed of such appointments in writing. No discrimination shall be shown against a steward for carrying out his duty, but in no case shall his duties interfere with the general progress of the work.
At the hearing, the respondent indicated that having regard to the wording of the grievance it would not contest the right of the union to also rely on Article 22.08 of the provincial agreement which states:
In determining any grievance arising out of discharge or other discipline, the arbitration board may dispose of the claim by affirming the employer's action and dismissing the grievance or by setting aside the disciplinary action involved and restoring the grievor to his former position with or without compensation or in such other manner as may in the opinion of the board be justified.
- At the hearing, counsel for Local 38 contended that Mr. Varty's discharge was due to his having acted in compliance with The Occupational Health and Safety Act or regulations under the Act, or because he had sought to enforce the Act and regulations. If this was in fact the case, then Mr. Varty's discharge would have been in violation of section 24(1) of the Act, which provides, in part, as follows:
No employer or person acting on behalf of an employer shall,
(a) dismiss or threaten to dismiss a worker...
because the worker has acted in compliance with this Act or the regulations or an order made there under or has sought the enforcement of this Act or the regulations.
Having regard to the wording of section 24(2) of The Occupational Health and Sqfety Act it may well be that this Board, acting under section 1 12a of The Labour Relations Act, has authority not only to apply the provisions of the provincial agreement set out above, but also to deal with the alleged violation of section 24(1) of The Occupational Health and Safety Act. In the instant proceedings, however, this issue need not be finally decided. If Mr. Varty was in fact discharged because he had been acting in compliance with The Occupational Health and Safety Act, or seeking the enforcement of the Act or its regulations, just cause would not have existed for his discharge, and accordingly we would in any event exercise our discretion under Article 22.08 of the provincial agreement and direct his reinstatement with compensation.
Before reviewing the events leading up to Mr. Varty's discharge, we would note that we found Mr. Varty to be a highly unsatisfactory witness. His answers to many questions were extremely vague and off topic, and at times he exhibited what can only be described as a highly selective memory. On a number of occasions Mr. Varty contradicted his own previous testimony, and much of his testimony on key issues ran directly counter to the testimony of other witnesses who we found to be highly credible. In these circumstances, we have accepted the evidence of other witnesses wherever it has conflicted with that of Mr. Varty.
On January 8, 1981 all of the carpenters working on the parking garage site stayed in the carpenters' construction shack for some additional fifteen minutes after the end of the lunch period. Very little direct evidence was led with respect to this work stoppage, and because of the lack of evidence we decline to make any specific finding as to what caused the men to overstay their lunch break. Further, the evidence falls far short of establishing that Mr. Varty had any responsibility for what occurred. However, whatever the true state of affairs, it is clear that both Mr. Paul Hansen, the respondent's job superintendent, and Mr. B. Wunovic, Local 38's current business agent, were of the view that Mr. Varty had been behind the fifteen minute work stoppage and that the stoppage had been aimed at pressuring the respondent into altering a work assignment with respect to the stripping of formwork. In consequence of this, Mr. Hansen advised Mr. Varty that he would not accept this type of conduct on the job, and Mr. Wunovic told Mr. Varty that under no circumstances were the carpenters on the project to stop work over a work assignment.
On January 27, 1981, all of the carpenters on the job stopped work at 1:30p.m. and did not return to work. Mr. Varty testified that on the day in question it was snowing, and he noticed that three men working on "beam bottoms" were sliding because it was slippery underfoot, and that out of a concern for their safety he called them off the job into the carpenters' shack. Once in the shack, according to Mr. Varty, he noticed that all the other carpenters had followed them in. Mr. Varty testified that the men then held a "safety meeting" during which he advised them that they were working under unsafe conditions due to a lack of sand to prevent sliding, and the fact that pieces of lumber with nails in them were being left on the ground and once covered with snow might go unnoticed. Mr. Varty stated that during the meeting there was also a brief discussion concerning a disputed work assignment.
Mr. Varty's testimony as to the events of January 27th did not accurately reflect what we are satisfied actually occurred that day. Rather, Mr. Adolph Polap, the respondent's carpentry foreman, came across a carpenter passing up four-by-four pieces of wood to another carpenter standing on a scaffold. Mr. Polap immediately assigned a labourer to pass up the four-by-fours and sent the carpenter who had been doing this work to also work on the scaffold. Shortly thereafter, Mr. Varty approached Mr. Polap and said that the passing up of four-by-fours was carpenters' work, and that if it was not reassigned to carpenters Mr. Varty would call the men off the job and call it a safety meeting. At this time Mr. Varty also suggested that certain areas be sanded. Mr. Polap in turn indicated that he would discuss Mr. Varty's concerns with Mr. Hansen. Shortly after this, Mr. Varty called all of the carpenters off the job into the carpenters' shack. Although Mr. Varty stated that he called only the three carpenters working on the beam bottoms into the shack, we are satisfied he called in all the carpenters, including those working in areas which Mr. Varty did not claim to be unsafe.
At one point that afternoon, Mr. Hansen went into the carpenters' shack to try to get the men back to work. Mr. Varty told Mr. Hansen that if the job of passing up the four-by-fours was reassigned to carpenters the men would go back to work.
During the hearing Mr. Varty sought to paint the respondent as being uncaring and not at all concerned with job safety. We are satisfied, however, that the respondent was safety conscious and at all times open to suggestions to improve the safety of the work site. Indeed, during the afternoon of January 27th, Mr. Hansen indicated to Mr. Varty that if he had any concerns about safety he should raise them with himself. While the carpenters were in the shack, the respondent assigned a number of labourers to spread sand over the work areas. This action on the part of the respondent, however, did not result in the carpenters going back to work. In cross-examination, Mr. Varty was asked why he had not called a safety inspector, and his response was that the company had put down sand. Asked why he did not tell the men to return to work after the sand had been put down, Mr. Varty's response was that he did not keep them in the shack. Asked why he himself did not go back to work, his reply was simply "because no one else did".
On the morning of January 28, 1981, it was snowing lightly. The respondent's practice on days when it was snowing was to allow the carpenters to take a vote among themselves to see if they wanted to work, with the respondent accepting the results of the vote. Starting time on the job was 8:00 a.m., and at 8:00 Mr. Polap asked Mr. Varty if the carpenters were prepared to work. Mr. Varty replied that he would have to analyze the weather reports. The carpenters did not start to work, even though no vote had been taken among them to determine whether or not a majority wanted to work. It might be noted that at 8:00 all of the trades other than the carpenters on the respondent's job site started to work, as did the carpenters on other projects in the area. There was no change in the weather conditions between 8:00 and 9:00 a.m. However, at about 9:00 Mr. Varty advised Mr. Hansen that the men were now prepared to work. Mr. Hansen, upset at what had occurred, however, responded by sending all of the carpenters home.
On February 18, 1981 Mr. Hansen noticed that two carpenters were hooking a wooden panel, which had been used as part of a form, onto a crane. There had earlier been an understanding reached between the respondent and the business agents representing both the carpenters and the construction labourers on site that although carpenters would release the forms, hooking panels to a crane would be done by labourers. Accordingly, Mr. Hansen assigned two labourers to do this type of work. About forty-five minutes later, Mr. Donald Gordon, the respondent's project engineer, heard Mr. Varty making the comment that the job was running too smoothly, that it looked as if Paul Hansen is trying to "stir up shit" and that it looked like Mr. Varty was going to have to "stir up some more shit too". The normal quitting time on the project was 4:30, with the men actually stopping work and packing up their tools at 4:25. Commencing at 4:10 p.m., Mr. Varty was seen going around talking to each of the carpenters on the site, and as he finished talking to each carpenter, that individual would stop involved to pack up his tools. On this evidence, we are led to the conclusion that Mr. Varty told all of the carpenters to pack up their tools early.
On February 19, 1981 it was raining, and the respondent decided only to assign men to work in covered areas. At about 8:15 a total of six men, four carpenters and two labourers, were assigned to release some forms in a fairly large area under a poured slab of concrete which was enclosed by tarpaulins. At the time the men were assigned to work in the area, there were a number of propane gas heaters being used to heat the concrete. The area, however, was ventilated by a window, and by the flaps of two tarpaulins being tied back. The respondent often assigned men to work in this type of situation in the winter, and the only complaints it had ever previously received concerned the heat in the enclosed area, particularly since the men were wearing winter clothing. Shortly after the men started work in the enclosed area on February 19th, one of the carpenters complained about the heat to Mr. Polap. This resulted in the heaters being turned off. It should be noted that none of the employees working in the area complained about a gaseous smell. Further, at about 8:00, when the propane heaters were still on, Mr. Varty and Mr. Polap held a conversation within the area in question. During this conversation, Mr. Varty made no mention of the area possibly being unsafe. The evidence of all witnesses other than Mr. Varty was that on the day in question only a slight odor of propane could be detected in the area.
At about 8:40 a.m., Mr. Varty approached Mr. Polap and advised him that he had telephoned Mr. Sylvester, the area manager of the Ministry of Labour's Occupational Health and Safety Branch, and advised him that he was concerned with the safety of the air in the enclosed area and that he wanted a test taken. According to Mr. Varty, Mr. Sylvester told him that he would be sending a safety inspector to the site, and that Mr. Varty should advise management to take the employees out of the area in question until the inspector arrived. Although we do not know what Mr. Varty actually said to Mr. Sylvester, the safety inspector later went to the site with the incorrect understanding that Mr. Varty had himself been working in the enclosed area. Mr. Polap's reaction to Mr. Varty's comments was that Mr. Varty should himself take the men out of the enclosed area. Mr. Polap indicated that he said this in disgust because of his feeling that Mr. Varty's actions had not in fact been motivated by any true safety concerns. Mr. Varty, however, declined to call the men out of the enclosed area, and accordingly ,Mr. Polap did so.
In justifying his actions, Mr. Varty testified that some three or four weeks previously he had been working in an area similarly enclosed and had experienced a sore throat, a headache and nausea. Further, said Mr. Varty, he had also noted that another carpenter had been off work for two days after working in a similar situation, and from this he had concluded that there was likely a problem with this type of work situation. It should be noted that Mr. Varty did not raise his concerns with Mr. T. Taylor, the employee health and safety representative on the job or with the respondent until the day in question, and even then not until after he had already phoned Mr. Sylvester.
A safety inspector, Mr. D. Brown, arrived at the job site shortly prior to 10:00a.m. and inspected the area in question. Mr. Brown subsequently set out his reactions in a report which stated as follows:
A complaint was received by Mr. Geo. Sylvester from Mr. Art Varty, shop steward, about a potentially hazardous condition on the above project. Mr. Varty complained about fumes from the propane heater making him dizzy. The area that he was working in is quite large — 300' x 50' x 8- app. — and is protected by tarpaulins on the open sides. There is a circular opening in the wall approx. 5'0" in diameter about 20'0" from where he was working and The two areas the tarpaulins are tied back leaving a 3'0" to 4'0" opening. There is provision for more tie backs where required. The heater in question is quite some distance away; about 200'0". Upon my arrival I walked into and climbed up the ladder where the workman had been. The air was stale and there was a slight smell that could be recognized as from the propane heater. The carpenter foreman and the health and safety representative told me that the condition now is the same as it was earlier prior to the complaint being received. It should be noted here that the shop steward bypassed the foreman and the health and safety rep. They were made aware of the complaint after Mr. Varty had called my office.
It would be very foolish for any workman to stay in an enclosed area that he suspects may have toxic fumes. If the level in this area was dangerous and I don't believe it was, the simple remedy would have been to lift a couple of the tarpaulins. Mention was made of taking a reading for toxic fumes in the area and I feel that this was not required.
Shortly after 10:00, Mr. Brown met with Mr. Hansen, Mr. Taylor, the employee health and safety representative, and Mr. Varty. Earlier that day, the respondent had indicated to the carpenters that the work day would end at 10:00 due to a shortage of covered-in work, and as it happened Mr. Varty was called into the meeting just as he was about to leave the job site with two other carpenters. The meeting began with Mr. Brown indicating that he felt Mr. Varty had not followed the proper procedure in dealing with the situation. Mr. Varty then replied that he was on his own time and was leaving, which he did. In giving his testimony, Mr. Varty stated that he left the meeting with the safety inspector only because the other carpenters were waiting for him. Later the same day, Mr. Hansen telephoned Mr. Varty at his home and advised him that he was being discharged.
We are satisfied that Mr. Varty's conduct prior to February 19th was highly improper. Any challenges Mr. Varty had to the respondent's work assignments should have been dealt with either under the terms of the provincial agreement or the jurisdictional dispute provisions of The Labour Relations Act. Any concerns about health or safety should have been raised with either the respondent or the health and safety representative on the job. In fact, however, the evidence leads us to the conclusion that in his conduct prior to February 19th, Mr. Varty was not motivated by any health or safety considerations, but that rather he used a claim about being concerned with health and safety as a cover for his actions. This was made clear by Mr. Varty's conduct on January 27th when he called the carpenters off the job allegedly for safety reasons, and then indicated to management that the men would return to work if the respondent altered one of its work assignments, and also later when after the respondent had corrected the one alleged safety problem he had raised with Mr. Polap, Mr. Varty did not try to get the men to go back to work.
As already indicated, at the hearing counsel for Local 38 contended that Mr. Varty's discharge had been contrary to section 24(1) of The Occupational Health and Safety Act in that he had been discharged for acting in compliance with the Act or seeking the enforcement of the Act or its regulations. Counsel never did specify how he thought Mr. Varty had been acting in compliance with the Act or seeking its enforcement. However, presumably counsel was taking the position that by his call to the Occupational Health and Safety Branch, Mr. Varty was seeking the enforcement of section 13 of the Act, which requires that a construction employer protect the health and safety of employees, as well as of section 106 of the construction projects regulation under the Act which provides that a fuel-fired heating device is to be used only when there is provision for adequate ventilation. We are satisfied that if Mr. Varty did feel a real concern for the safety of the men working in the enclosed area, he should have first raised the matter with either management or the health and safety representative on the job prior to taking any other action. However, for the purpose of these proceedings we are prepared to assume that if Mr. Varty had truly been concerned that the other employees were working in a potentially unsafe situation, and that his call to the Occupational Health and Safety Branch had been made in good faith, then no proper cause would have existed for him to be disciplined.
In light of the importance of health and safety matters, one should be extremely reluctant to conclude that an employee who claims to have been acting out of health and safety concerns was in fact motivated by other considerations. Any serious doubts about the truth of the matter should be resolved in favour of the employee. In the instant case, however, we are fully satisfied that Mr. Varty's conduct was not motivated by any health and safety considerations, but rather by a desire to continue to disrupt the respondent's job project, and that the method he chose to do so was by raising a false health and safety issue.
We have not reached our determination on this matter lightly, but are compelled to the result by a number of considerations. Firstly, there is the fact that on January 27, 1981 Mr. Varty caused a work stoppage allegedly for safety reasons but in reality in an attempt to pressure the respondent into changing a work assignment. Accordingly, it is clear that Mr. Varty had no compunctions about raising a claim of a health and safety concern when no such concern existed. Further, Mr. Varty had been engaged in a pattern of conduct aimed at disrupting the job site. On the day prior to his call to the Health and Safety Branch, Mr. Varty indicated he was going to "stir up some more shit". Mr. Varty indicated that he was concerned about fumes in the enclosed area, and yet he himself had been in the area on the day in question talking to Mr. Polap and had not raised any such concerns. Mr. Varty had been advised by Mr. Hansen that any safety concerns should be raised with him, and yet the alleged problem with the enclosed area was never raised with him. The evidence establishes that there was only a trace of propane smell in the air at the relevant time and no employee working there had any complaints. When Mr. Varty telephoned the Health and Safety Branch the propane heaters had already been turned off. However, even assuming Mr. Varty had been unaware that they had been turned off, if he had been truly concerned about gas fumes, he could simply have asked that the heaters be turned off, or for additional tarpaulins to be pulled back to provide greater ventilation. When all these considerations are taken into account, we can reach no other conclusion but that Mr. Varty's conduct was motivated by a desire to disrupt the job site and that his false claim of a health and safety problem was merely the device he used to achieve this result.
Mr. Varty's action on February 19, 1981 resulted in the men not working in the enclosed area that day. We feel that not only must Mr. Varty have reasonably foreseen that this would be the result of his actions but that this was in fact the result he desired to attain. Mr. Varty's invoking of a knowingly false health and safety claim was abusive and improper, and clearly justified the imposition of a serious disciplinary penalty. The fact that Mr. Vartywasa steward does not change this situation. The respondent did not discriminate against Mr. Varty because he was carrying out his duties as a steward, but rather it disciplined him because he was an employee who had engaged in improper conduct. Accordingly, the respondent did not violate Article 14.02(b) of the collective agreement. Similarly, the respondent did not violate section 24(1) of The Occupational Health and Safety Act. Further, there is nothing in Mr. Varty's short work record with the respondent, punctured as it was with his active involvement in causing a number of unlawful work stoppages, which would cause us to exercise our discretion under Article 22.08 of the agreement to mitigate the penalty of discharge imposed on him by the respondent.
The grievance is accordingly dismissed.
DECISION OF BOARD MEMBER M. J. FENWICK;
I dissent. I am not persuaded that the grievor, Arthur Varty, is the villain the employer witnesses made him out to be. Nor do I agree with my colleagues that Varty's testimony be disregarded.
Varty was union shop steward on the job site. As such, he took various initiatives which he considered would assure him and his workmates of a healthy and safe working environment.
On the other hand, management persons, knowing that Varty had been a union business agent and shop steward, took a defensive posture whenever he referred to safety problems. The foreman, Adolph Polap, accused Varty of "making political hay". Whether or not this was reference to internal local union politics was not clarified by the foreman. In any case, it was clear that management persons felt Varty was a disturbing influence on the job.
Varty's workmate, Philip Bukator, testified that on an earlier occasion the air was very "gassy". He said he felt ill and as a result did not appear at work the next day.
It would appear that there was a lack of communication between Barney Wunovic, the union's business agent, and Varty in respect to job site problems. As an example, Varty and another witness testified that they were unaware that Terry Taylor was the safety representative on the job.
The record shows that Varty was never specifically warned about his conduct on the job or that management felt his duties of steward were interfering with the progress of the job.
If adequate warning were given and Varty chose to ignore it then management would be justified in terminating his employment. In the absence of such warning the discharge, in my opinion, was not justified. I would have reinstated Varty to his job without loss of pay or benefits.