Dennis Wawia v. Inco Metals Company, 1982 CanLII 1037

Ontario Labour Relations Board

[1982] OLRB Rep. September 1315

2319-81-OH Dennis Wawia, Complainant, v. Inco Metals Company, Respondent

BEFORE: Ian Springate, Vice-Chairman, and Board Members W. G. Donnelly and H. Kobryn.

APPEARANCES: K. A. Valentine, D. Sweezey and D. Wawia for the complainant; D. K.Gray and R. E. Drewe for the respondent.

DECISION OF VICE-CHAIRMAN IAN SPRINGATE AND BOARD MEMBER W.

G. DONNELLY; September 21, 1982

1. This is a complaint under section 24 of the Occupational Health and Safety Act alleging that the complainant, Mr. D. Wawia, has been disciplined for acting in compliance with the Act.

2. The complainant is employed as an overhead craneman at the respondent's copper refinery in Sudbury. Prior to the events in question he had been employed in this capacity for about two years. The crane operated by the complainant runs on rails located near the ceiling but has a lifting device which can be lowered to floor level.

3. The events giving rise to this complaint occurred during the "grave-yard" shift which commenced at 11:30 p.m. on May 10, 1981. At about 6:15 a.m. a number of employees were preparing to open a tap hole on the no. 1 furnace. For these employees to complete their work, a large cement tray situated on the floor near the furnace had to be moved. Mr. G. Timmins, a trainee foreman, went into the lunchroom where the complainant was sitting to tell him that the crane was required to move the cement tray. The complainant testified that he nodded his assent and then sat there "for a few seconds or minutes". Some time later Mr. Timmins returned to the lunchroom and again told the complainant to move the tray. The complainant first went to the washroom and then headed towards the steps which lead up to a catwalk from which he could enter the cab of the crane. Before climbing the steps, the complainant stopped to see what was going on at the no. 1 furnace. While the complainant was so engaged, Mr. Timmins again approached him and reminded him of his earlier directions. The complainant, who was upset that a trainee foreman would tell him three times to do a task when he had agreed to do it the first time, replied "I take my orders from the men on the floor and you can go fuck your hat". Presumably this was a reference to the hard hat which Mr. Timmins was wearing at the time.

4. The complainant then went up to the cab of the crane. The crane at the time was sitting beside one of the walls with its lifting device in a raised position. The established procedure in such a situation is for the craneman to first perform a number of safety checks on the crane and then to move the crane to where some chains are normally kept. The lifting device is then lowered and an employee classified as an "anode helper" attaches the chains to the lifting device. If an anode helper is not already in position to put on the chains, the craneman will motion with his hand or use his horn to attract the attention of a helper. After the chains are attached, the crane is then moved to where the concrete pan is located and an anode helper hooks the chains to the pan. Again if no helper is in position, the crane operator will catch the attention of one of them. Once the chains are hooked to the pan, the operator will generally (and in our view should always) wait for the appropriate hand signal from the anode helper before moving the pan away. The evidence indicates that this procedure had been followed by the complainant himself on numerous occasions without any objection and that he had never previously voiced any concern about the safety of the procedure. It should be noted that in other work areas the crane operator is assisted by an employee classified as a "crane follower". However, in the area where the complainant works, the anode helpers have been given instructions on crane signals and they perform the duties of a crane follower.

5. On the day in question the complainant did not follow the above procedure. Instead, he first performed the appropriate safety checks on the crane and then finding no problems he moved the crane out about six feet from the wall and stopped, with the crane's lifting device still raised. In this location he was still a long way from either the place where the chains are usually kept, or the spot where the cement pan was situated. According to the complainant, he had stopped to wait for someone to signal him, and since no one gave him a signal to put the chains on, there was nothing he could do but just sit there. In light of the established procedure set out above, none of the anode helpers would likely have thought that the complainant might be waiting for a signal. The complainant himself did nothing to attract the attention of any of the anode helpers. The result was that the crane remained motionless about six feet from the wall with its lifting device raised. It is not at all clear how long the crane remained in this position, but before too much time elapsed, Mr. Timmins sent another employee to relieve the complainant.

6. After being relieved, the complainant had a conversation with Mr. Canley, the foreman on duty. Mr. Canley testified that during this conversation the complainant did not seek to justify his refusal to move the crane more than six feet from the wall on safety grounds. For his part, the complainant testified that he told Mr. Canley that all he had done was to refuse to do unsafe work. Whether or not the complainant actually made this statement to Mr. Canley, we are satisfied that the issue before us is whether the complainant's conduct was in fact likely motivated by safety considerations. It is to be noted that even in the complainant's version of his conversation with Mr. Canley, he did not state why he felt the work had been unsafe. The complainant did testify that he referred Mr. Canley to a "reminder card" which had been issued by the respondent to its overhead cranemen. The provisions of the reminder card which could possibly be of any relevance in these proceedings are set out below:

"Rules for Cranemen

5. All crane loads are to be rigged and attached by personnel authorized by the supervision of the department in which the crane operates or by qualified Maintenance personnel assigned to the work.

6. When the crane operator is handling loads with crane follow­ers, he is to move his load only in accord with standard signals given by authorized persons; this reminder card contains a list of standard signals.

7. The craneman is held responsible for the results of any crane movements. In any situation in which he feels there is danger to persons, or damage to materials or equipment, the crane is not to be moved until he is satisfied that it is safe to do so, no matter what signals are given."

Rules for Crane Followers

12. When two or more men are working on the floor with the same crane one man is to be designated as the one to give signals to the craneman. This will usually be the most experienced man, and throughout the shift or operation he will so position himself as to be able to signal clearly. The signaller is responsible for the result of any crane movement he signals."

13. Following the events set out above, Mr. Canley sent the complainant home for the remainder of his shift, and issued him with a written warning for "(insubordination) refusing to do assigned work". Subsequently, an official of the Ministry of Labour's Health and Safety Branch investigated the matter. This official's report, which is not binding on this Board, stated as follows:

"After investigating the work refusal by D. Wawia on the 11:30 p.m. to 7:30 a.m. shift on May 10, 1981 and after discussions with my supervisors I find that under the Act Section 23(8) that there was no unsafe act or condition, 'machine, device, thing or the work place or part thereof is likely to endanger the worker or another person'.

A craneman does not require signals to move a crane from its place of rest to the workplace unless —

(1) The craneman's vision is obstructed

(2) There are electrical wires which may be hazardous

(3) Attaching or detaching a load."

8. The position being taken by the complainant is that the company's action in sending him home prior to the end of his shift and issuing to him a written warning violated section 24 of the Act in that section 23 protects the right of an employee to refuse to perform work he believes to be unsafe. The relevant portions of these sections provide as follows:

"23. - (3) A worker may refuse to work or do particular work where he has reason to believe that,

(a) any equipment, machine, device or thing he is to use or operate is likely to endanger himself or another worker;

(b) the physical condition of the work place or the part thereof in which he works or is to work is likely to endanger himself; or

(c) any equipment, machine, device or thing he is to use or operate or the physical condition of the work place or the part thereof in which he works or is to work is in contravention of this Act or the regulations and such contravention is likely to endanger himself or another worker.

24.-(1) 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 there under or has sought the enforce­ment of this Act or the regulations."

9. There can be no doubt that an overhead crane operator must be constantly alert for potentially dangerous situations. However, in assessing the complainant’s actions, we are struck with the fact that at the point in time when he stopped the crane, there was no possible danger to anyone. The complainant had performed the required safety checks on the crane without finding any problems, and since the lifting device on the crane was still elevated, it posed no threat to anyone on the floor. Had it been the case that the complainant was performing his task in accordance with the established procedure and a dangerous situation arose with respect to himself or someone on the floor, then he would have been fully entitled to stop the crane until the dangerous situation no longer existed. At the time that the complainant refused to work, however, there simply was no danger to anyone. Further, we are satisfied that when the complainant stopped working, he did not have any reasonable grounds to believe that he or any other employee was likely to be endangered by his continuing to operate the crane. Instead, we feel that the complainant's conduct was likely due to the fact that he was upset that a trainee foreman would tell him three times to do an assigned task.

10. The provisions of the reminder booklet do not, in our view, assist the complainant's position. Rule 5 of the Rules for Cranemen provides that crane loads are to be rigged and attached by authorized personnel. According to standard procedure any load would in fact be rigged and attached by one of the anode helpers who have been authorized to do so by management. Rule 6 provides that when a crane operator is handling loads with crane followers, he is to move his load only in accord with standard signals. There can be no question as to the wisdom of this rule. However, at the time in question no load was attached to the crane. Indeed, its lifting device was still raised, and accordingly, Rule 6 simply did not have any application. Rule 16 provides that a craneman is not to move a crane if he feels that it would endanger people, materials or equipment. We are satisfied that no reasonable basis existed for the complainant to feel that such a danger existed at the time when he stopped the crane. Rule 12 of the Rules for Crane Followers (which in this case applies to the anode helpers) is meant to ensure that only one employee at a time is giving signals to a crane operator. At the relevant time, however, the crane was still close to the wall with its lifting device raised and the complainant did not yet require signals from anyone.

11. Having regard to the above, we are satisfied that the complainant's refusal to move the crane at the time in question was not motivated by a belief that to do so would endanger himself or others. Accordingly, we are of the view that the respondent's disciplinary response to the complainant's conduct did not violate section 24(1) of the Act. It was not contended at the hearing that this was a case where the Board should exercise its discretion under section 24(7) of the Act and substitute another penalty for that imposed upon the complainant. We have, nevertheless, put our minds to the issue, and have concluded that the respondent's response to the complainant's conduct was not so out of line or so unreasonable that the Board should substitute another penalty in its place.

12. In the result, this complaint is hereby dismissed.

DECISION OF BOARD MEMBER H. KOBRYN;

1. I have no quarrel with the facts as outlined in the majority decision but I interpret these facts from the point of view of a professional in the safety field with many years experience.

2. This company has a training program for crane operators and crane followers after which they are supplied with a "reminder card" which sets out rules for the safe operation of the overhead cranes. The preamble of this "reminder card" reads as follows:

"The operation of overhead cranes requires careful attention at all times by both cranemen and crane followers. Work in a safe manner having regard to the safety of your fellow worker and yourself."

(emphasis added).

This preamble indicates that safety is to be a full time preoccupation for everyone in the work place including supervisors, cranemen and crane followers. It is not a "sometime thing" which can be turned on or off. Neither can it be approached in a haphazard way as was happening in this department.

3. The "reminder card" rules state that there will be personnel authorized by the supervision of the department to attach all crane loads. Further, one man is to be designated to give signals to the craneman and the signaller is responsible for the result of any crane movement he signals. These rules have a definite purpose, namely the safe operation of overhead cranes in the company's plants. Notwithstanding this, the trainee foreman stated that he has seen the complainant move the crane in the past without signals, and further, that he believed the complainant should have done so again on the day in question.

4. This case reminds me of a newspaper article which appeared in the Toronto Star on June 29, 1982 under the title "An Effective Job Safety Law." The article dealt with the right of workers employed by the Toronto Transit Commission to refuse work if they felt that the work or the surrounding conditions were too dangerous. At one point, the article stated as follows:

"That action led to an immediate investigation of T. T. C. safety requirements — an investigation that concluded the work was safe as long as all the rules laid out in the T T C. safety handbook were followed."

(emphasis added)

Now let's relate this statement to the facts in this case. The trainee foreman told the complainant to get the crane started and move it. At no time did the trainee foreman designate an "anode helper" to be the craneman's designated crane follower. I suppose you can't blame him for this because there was no procedure in this department to do so. The rules on the "reminder card" were simply ignored.

5. There was a haphazard approach to dealing with the movement of the overhead crane. The craneman had to move the overhead crane on his own to get the chains required to make the lift. Then after he lowered the lifting device an employee classified as an "anode helper" would attach the chains. If an "anode helper" was not already in position to put on the chains, the craneman would have to motion with his hand or use his horn to attract the attention of an "anode helper". After the chains were attached, the crane was then moved to where the lift has to be made and an "anode helper" hooked the chains to the load. Again, if no "anode helper" was in position, the craneman would have to catch the attention of one of them.

6. In reading all of the rules set out in the "reminder card", I am satisfied that the general theme and intent of the rules is to ensure that the craneman is experienced and has the knowledge to operate the overhead crane. Likewise, the crane followers are to be experienced in their job and have the know-how to work with the craneman and signal him properly. Also the craneman is to know with whom he is working. Rule 12 of the Rules of Crane Followers demonstrates this point most clearly when it states:

"When two or more men are working on the floor with the same crane one man is designated as the one to give signals to the craneman. This will usually be the most experienced man."

No craneman should be faced with the situation described in paragraph 5 above. He should know with whom he is working before he moves the overhead crane.

7. The company's existing procedure does not conform with the rules laid out in the "reminder card". Not following the rules set out for the safe operation of overhead cranes makes a mockery of the company's safety program and its safety rules. The complainant's decision to suddenly stop ignoring the safety rules laid out in the "reminder card" may be compared to a case of "battle fatigue" where a person who has in the past accepted existing conditions reaches a state of mind where these conditions are no longer tolerable. Consciously or subconsciously, right or wrong, a person must at times take a position.

8. The operation of overhead cranes can be safe if all the safety rules are observed by the supervisors, the cranemen and the crane followers. If the present procedure is allowed to continue, the company may be lucky for a long time but in reality it is playing Russian Roulett with the safety of the people in that particular department. I am sure this is not the intent of the parties. I feel the complainant should not have been disciplined for his actions. Rather, he should have been commended for alerting management to the present haphazard procedure for the movement of overhead cranes.