John Cesaroni v. T. W. Johnstone Co. Limited, 1982 CanLII 914

Ontario Labour Relations Board

[1982] OLRB Rep. May 685

2234-81-OH John Cesaroni, Complainant, v. T. W. Johnstone Co. Limited, Respondent

BEFORE: R. D. Howe, Vice-Chairman and Board Members C. G. Bourne and D. B. Archer.

APPEARANCES: C. J. Abbass, John Cesaroni and W. Weatherup for the applicant; R. R.

Nicholson, W. Johnstone, Ron Dagg, Bill Hopper and Louis Eldridge for the respondent.

DECISION OF R. D. HOWE, VICE-CHAIRMAN AND BOARD MEMBER D. B. ARCHER; May 10, 1982

1. This is a complaint under section 24 of the Occupational Health and Safety Act (the "Act") in which the complainant alleges that he has been dealt with contrary to section 24(1 )(a) of the Act. In particular, he alleges that foreman Bill Hopper threatened to dismiss him on June 18, 1981, and did in fact dismiss him on June 22, 1981, because he "acted in compliance with this Act in refusing to work with tools (electrical fusion tools) that did not bear the C.S .A. label" and because he "asked for an inspector to attend on the site resulting in an Order being made against the Respondent under the Act."

2. Section 24 of the Act provides, in part, as follows:

"(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 thereunder or has sought the enforcement of this Act or the regulations.

(2) Where a worker complains that an employer or person acting on behalf of an employer has contravened subsection (1), the worker 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, with all necessary modifications, to the complaint.

(3) The Ontarion Labour Relations Board may inquire into any complaint filed under subsection (2), and section 89 of the Labour Reiations Act, except subsection (5), applies with all necessary modifications, as if such section, except subsection (5), is enacted in and forms part of this Act.

(4) On an inquiry by the Ontario Labour Relations Board into a complaint filed under subsection (2), sections 102, 103, 106, 108 and 109 of the Labour Relations Act apply, with all necessary modifications.

5. On an inquiry by the Ontario Labour Relations Board into a complaint filed under subsection (2), the burden of proof that an employer or person acting on behalf of an employer did not act contrary to subsection (1) lies upon the employer or the person acting on behalf of the employer."

6. The respondent, which operates out of London, Ontario, installs natural gas pipelines, primarily for Union Gas Limited. As a result of a successful bid, the respondent obtained a contract to install gas lines in a new subdivision in the Burlington area from April 1, 1981 to December 31st of that year. The contract called for the installation of both steel pipe and plastic pipe. Unlike sections of steel pipe, which are joined by welding, sections of plastic pipe are "fused" through a heat transfer process whereby an electric heating iron is attached to the plastic pipe for a number of seconds before removing it and allowing the fused pipe to cool.

7. William Weatherup is a pipeline business representative for Local 46 of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada ("Local 46"). The Territory for which he is responsible includes the Burlington area. On Friday June 5, 1981, Mr. Weatherup attended at the site and expressed concern to the respondent's general superintendent, Ron Dagg, that the respondent was not employing members of Local 46 on the job. The complainant, who was unemployed at that time, accompanied Mr. Weatherup as a "witness". (The evidence indicates that the complainant had previously accompanied Mr. Weatherup from time to time during periods of unemployment, while Mr. Weatherup was "policing" various jobs.) As a result of his conversation with Mr. Dagg, Mr. Weatherup sent the complainant and another member of Local 46 to the site the following week. The complainant is a 37 year old journeyman pipe fitter who has been a member of Local 46 since 1961. The other worker sent to the site by Local 46 was classified as a welder but agreed to work as a welder's helper after his first three welds were rejected by Union Gas X-ray technicians.

8. The complainant commenced employment at the site on Tuesday June 9th, as a journeyman "spacer" and "stabber", guiding pieces of steel into clamps which hold them the appropriate distance apart in the trench for welding puposes. He was also appointed by Local 46 as the union steward on the site. During his first week of employment, the complainant performed to the satisfaction of management, although it appears that some conflict developed between the complainant and a crane operator concerning "who was going to do the setting in of the pipe".

9. On Thursday June 18th, the complainant commenced work at 7:30 a.m. and assisted the crew's welder (and fuser), Louis Eldridge, in making about a half dozen fusions, during the course of which the complainant remarked to Mr. Eldridge that he had never before seen such "good looking" irons, as they were shiny and new. However, when the complainant examined the irons more closely, he discovered that they did not have a C.S.A. (Canadian Standards Association) sticker on them. Accordingly, he advised Mr. Eldridge that they could not use them any more because they were not C.S.A. approved. Mr. Eldridge then examined the irons and confirmed that there was no C.S.A. sticker on them. Although Mr. Eldridge was not aware that the complainant was the "safety rep on the job", he nevertheless ceased to use the irons "because he (the complainant) was the steward." The complainant then told Mr. Eldridge that he was going to check with his union representative concerning the safety of the irons and that "while doing this [he] would also check on the fact that the labourers were installing what [he] believed to be [Local 46's] piping work." Since the foreman was not present at that time, the complainant asked Mr. Eldrige to tell him that he (the complainant) had left to go to the washroom.

10. The complainant then telephoned Mr. Weatherup and discussed the two matters that were causing him concern. Mr. Weatherup said that he would take care of the jurisdictional matter by calling the respondent, and instructed the complainant to "go back and inform the Company of the safety infraction." During the complainant's absence, Mr. Eldridge informed Mr. Hopper of what had occurred that morning. When the complainant returned to the site, Mr. Hopper was quite angry with the complainant and threatened to dismiss him as of the end of that work day. (Although Mr. Eldridge did not hear the precise words which Mr. Hopper spoke to the complainant, he agreed in cross-examination that Mr. Hopper and the complainant had a "heated" discussion and that Mr. Hopper was "riled up" because "a job shutdown costs money".) In the ensuing discussion, the complainant told Mr. Hopper that "the work would progress the way it was with the labourers" and that he wanted a safety representative from the Company or from "Construction Safety" to check the irons.

11. Approximately half an hour later, superintendent John Richmond came to the site, examined the irons and then sought out Mr. Hopper. A few minutes later, Messrs. Richmond and Hopper approached the grievor and asked him if he wanted to be a welder's helper since there was no more work for him as a spacer and stabber. The complainant stated that he was hired as a journeyman pipe fitter and that there was "fitter's" work to be done. Although Mr. Hopper denied that there was any discussion of the wage rate that would be paid to the complainant as a welder's helper, we accept the complainant's evidence that he asked what his rate of pay would be and was told, "if you work as a helper you will be paid as a helper." With respect to our resolution of that conflict in the evidence, we note that Mr. Richmond, who was present during that important discussion, was not called by the respondent as a witness in these proceedings. Under the circumstances, it is reasonable to infer that Mr. Richmond's evidence would have been unfavourable to the respondent's case or at least would not have supported it (see B & S Furniture Manufacturing Limited, [1980] OLRB Rep. May 645, and the authorities cited therein). Furthermore, even if the Board were to accept Mr. Hopper's evidence that there was no discussion concerning what the complainant's wage rate would be if he accepted a position as a welder's helper, this would not preclude a finding that the respondent was attempting to penalize the grievor by offering him what amounted to demotion from the position of journeyman to the position of "welder's helper" on a "take it or leave it" basis Thus, under the circumstances, management's failure to assure the complainant that he would not suffer any wage reduction, as the respondent's president assured the Board would have been the case if the complainant had accepted the position, would itself permit the Board to infer that the discussion in question, which occurred shortly after the complainant had raised the safety issue, was intended to cause the complainant to believe that he was going to be penalized, and to lay the groundwork for the complainant's resignation or discharge from employment. The complainant's reaction to management's "offer" was what management must under the circumstances have anticipated that it would be; he stated that he was not willing to work as a welder's helper under those terms. Mr. Hopper then turned to Mr. Richmond and said, "I guess he's gone." Mr. Richmond concurred.

12. The complainant then telephoned Mr. Weatherup again and arranged for him to attend at the site. When Mr. Weatherup arrived, he asked Mr. Richmond if he could take the complainant off the site to discuss the matter with him. Mr. Richmond's response was that the complainant was still in the employ of the Company and that he could not leave because he was not "on hs own time". Accordingly, the complainant and Mr. Weatherup decided to wait until lunch period to discuss the matter.

13. During the complainant's lunch break, the Construction Health and Safety Branch of the Ministry of Labour was contacted at its Hamilton office and a Construction Safety Officer was requested to attend at the site to examine the heating irons. The Construction Safety Officer (hereinafter referred to as the "Inspector") arrived at the site at approximately 1:30 p.m. After checking the irons and their cords, he advised Mr. Hopper that the complainant could not be discharged for seeking enforcement of the Act and Regulations, and ordered the respondent to comply with "Regulation 103(1) and (2)". Section 103 of Regulation 691 (R. R. 0. 1980) under the Act provides:

"103(1) Subject to subjection (2). any cord-connected electrical equipment or tool shall have a casing which is effectively grounded.

(2) Subsection (1) does not apply to any cord-connected electrical equipment or tool that is effectively double-insulated and that does not show any evidence of cracks or defects in the insulated casing."

The inspector further ordered the respondent to "provide proof that these irons are approved in accordance with the Electrical Safety Code under the Power Compensation Act, R. S. 0. 1970, c. 354, as amended, [through] Canadian Standards certification or Ontario Hydro Special Inspection". However, the inspector did not find that the respondent's contravention of the Regulations was a danger or hazard to the health or safety of a worker. Accordingly, he authorized the respondent to continue using the irons while arrangements were made to comply with the order. In accordance with that order, the respondent arranged for a "Special Inspection" by Ontario Hydro on the following day and obtained the necessary approval for the equipment.

11. Although the respondent had used the heating irons of that type for "two or three years" without ever having any problems with them, it was readily conceded on behalf of the respondent that the complainant, who had never previously worked with that type of heating iron, was acting within his rights under the Act in questioning the absence of a C.S.A. sticker. Moreover, it was Mr. Weatherup's uncontradicted evidence that short circuits in fusing irons have been a serious problem in the pipe laying industry in Ontario.

12. Several of the management witnesses testified that the effect of the complainant's actions on the respondent's operations was minimal. Mr. Dagg testified that although the welder "may have lost an hour or two while the Inspector came out, the rest of the crew continued to dig trench and string out pipe." Thus, he told the Board that "the job disruption wasn't particularly significant". However, as noted above, Mr. Hopper was quite upset when he heard that the complainant had brought the pipe fusion work to a standstill by questioning the safety of the heating irons. As noted earlier in this decision, Mr. Eldridge, whom we found to be a very candid and credible witness, confirmed that the complainant and Mr. Hopper had a "heated" discussion and testified that Mr. Hopper's angry reaction resulted from the fact that the complainant had "shut thejob down". Moreover, we are satisfied on the totality of the evidence before us that the respondent did not "lose merely an hour or two" of fusing, but rather lost most of that working day since fusing had ceased by 9:00 a.m. and did not recommence until after 3:00 p.m.

13. At the end of the work day, the complainant contacted Mr. Hopper and "asked about his standing as of that evening". Mr. Hopper told him to come in the next day since he was "still working there". The complainant then reminded him that he (the complainant) would be absent on the following day due to the OLRB hearing with respect to his discharge grievance against Cliffside Pipelayers Limited. When the complainant attended at the site on the following Monday, Mr. Hopper gave him his "dismissal papers", which included payment of five hours wages for that day.

14. The complainant subsequently grieved his dismissal but for reasons not disclosed by the evidence, Local 46 did not pursue his grievance to arbitration. It was contended on behalf of the respondent that Local 46's failure to proceed with that grievance demonstrated that the complainant's case lacked merit. However, we are not prepared to draw any such inference in the circumstances of this case. Under section 24(2) of the Act (as set forth above), the complainant was entitled to "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". It is apparent that in light of the failure by Local 46 to refer his grievance to arbitration, the complainant elected to file the instant complaint with the Board. Under section 24 of the Act, the validity of a complaint filed with the Board under that section is a matter to be determined by the Board, not by the complainant's bargaining agent.

15. It was Mr. Dagg's evidence that the complainant was dismissed because of the complaints about his work which Mr. Dagg received from the superintendent and the foreman during the second week of the complainant's employment, and because the grievor refused to work as a welder's helper. It was Mr. Dagg's evidence that the complainant's actions caused morale to be "very bad in the crew", to the point that welder Louis Eldridge was so "frustrated" that he was on the verge of quitting. However, Mr. Eldridge's testimony did not indicate that the situation was that dramatic. Mr. Eldridge has over twenty years' experience as a gas line welder and is qualified to do both welding and fusion. He has been employed by the respondent for almost twelve years. One of the irritants in the relationship between Mr. Eldridge and the complainant was the latter's tendency to tell the former that he was not performing fusions in the manner which the complainant thought to be proper as a result of his prior experience. The evidence also indicates that when the crew began working with plastic pipe, the complainant took issue with the fact that labourers were handling the pipe. The complainant told Mr. Eldridge that the labourers should not touch the pipe at any time since that was pipe fitter's work. Mr. Eldridge who was "riled up" by the complainant's attempt to interfere with the respondent's standard procedure of having labourers unroll the plastic pipe, told the complainant, "If you think I am going to start doing their (the labourers') job, you're wrong!" Mr. Eldridge expressed his dissatisfaction with the complainant to Mr. Hopper, who was the foreman of the crew on which the complainant worked throughout his brief period of employment with the respondent. It was Mr. Hopper's evidence that the welder's complaint resulted in the aforementioned "little discussion" with the complainant in which Mr. Hopper asked him if he was willing to be a welder's helper. When Mr. Hopper subsequently reported this discussion to Mr. Dagg, and told him that they were having "too many problems" with the complainant, Mr. Dagg authorized Mr. Hopper to terminate the complainant's employment. It was Mr. Hopper's evidence that the complainant was dismissed because he was "too disruptive" and because there was "too much dissension

16. Mr. Dagg testified that he made the decision to dismiss the complainant because he concluded from the information provided to him by Mr. Richmond and Mr. Hopper that the complainant was not doing what he was hired to do. It was his evidence that the "complainant was to be dismissed on Thursday night" (June 18th) but that "for some reason or other" it was not done then. Mr. Hopper told the Board that the reason the complainant was not dismissed on Thursday night was that a request had been made to Local 46 for a welder's helper to be sent to the site. He intended to dismiss the complainant when that welder's helper arrived but that did not occur because "no one came from the union". Since the complainant was absent from work on Friday June 19th, he was not discharged until Monday June 22nd.

17. The reason specified for the complainant's discharge on the "Record of Employment" submitted by the respondent to Employment and Immigration Canada was "shortage of work". However, we accept Mr. Dagg's evidence that this form was prepared by a clerk in the office without any specific instructions from management concerning the actual reason for discharge. We also accept the evidence of Thomas Johnstone, the President of the respondent, that it was not unusual for the respondent to indicate "shortage of work" as the reason for dismissal regardless of the actual reason, in order to avoid delaying the employee's entitlement to unemployment insurance benefits. However, management's explanation for the discrepancy between the reason for discharge specified in its reply to this complaint, namely, that the complainant was dismissed "due to his refusal to work as welder's helper, when no other work was available", and the reason specified in its answer to the complainant's grievance, namely, that the complainant "was unable to do the job he was hired to do from the Local", is less convincing. When confronted with this disparity, Mr. Dagg testified: "Unable or not doing, to me, is the same thing." Mr. Hopper, on the other hand, suggested that the words "unable to do the job he was hired to do" referred to the fact that the complainant "was hired to be a spacer" and "the spacer's job was over". Mr. Johnstone, who dictated and signed the respondent's answer to the grievance, told the Board that management was "tricked originally" because they "thought [the complainant] was a welder". However, as readily conceded, the respondent "hired him anyway." Mr. Johnstone asserted that the complainant "was unable to be a welder's helper according to [the complainant's] own statement." However, it is clear from the evidence that the complainant was hired as a journeyman pipe fitter and was quite able to perform such work. Moreover, Mr. Hopper, who appears to have been the person who effectively recommended the complainant's discharge, agreed with counsel for the complainant (during cross-examination) that the complainant "was fired because he was being disruptive and others wouldn't work with him". In the light of that testimony, his subsequent assertion that "the main reason" for the complainant's discharge was that he "wouldn't be a welder's helper" gives rise to some legitimate skepticism. It is also not without significance that the reason for the discharge put forward by management to Mr. Weatherup, when he met with them to discuss the complainant's discharge, was that the complainant "was always causing trouble and couldn't get along with people".

18. Counsel for the respondent contended that the complainant is a "professional litigant" who "has been before the Board before and will be before it again". He further submitted that the complainant had deliberately created as many problems as possible on the respondent's job site in the hope that he would be discharged so that he could launch this type of proceeding. However, the evidence does not support that contention. The fact that the grievor was discharged by another employer and that his bargaining agent referred a discharge grievance to the Board for determination pursuant to section 124 of the Labour Relations Act, which application was subsequently withdrawn by leave of the Board (see the Board's unreported decision dated July 23, 1981, in File No. 2609-80-M) after the parties thereto achieved a mutually acceptable settlement of the grievance, does not provide the basis for any such inference. The respondent concedes that the complainant raised a legitimate safety issue with respect to the heating irons in question, as confirmed by the fact that the inspector issued an order pursuant to section 29 of the Act, which provides, in part, as follows:

"29(1) Where an inspector finds that a provision of this Act or the regulations is being contravened, he may order, orally or in writing, the owner, constructor, employer or person whom he believes to be in charge of a work place or the person he believes to be the contravener to comply with the provision and may require the order to be carried out forthwith or within such period of time as the inspector specifies.

Moreover, it appears that the complainant was acting within his rights as a union steward in questioning the jurisdiction of labourers to handle the pipe, an issue on the merits of which the Board will, of course, refrain from making any comment in these proceedings. Thus, if the complainant's discharge was based in whole or in part on that matter, it might well be in contravention of sections 64 or 66 of the Labour Relations Act, which contravention could provide a basis for relief under section 89 of that Act (see, for example, Valdi Inc., [1980] OLRB Rep. Aug. 1254). However, in the circumstances of this case, it is unnecessary for the Board to further pursue that matter since we are satisfied that the discharge, if not motivated by anti-union animus, was motivated by "anti-safety" animus. As stated by the Board in Canadian General Electric Company Limited [1981] OLRB Rep. June 616, the Act prohibits an employer from reacting with "anti-safety animus" to certain employee conduct (namely, acting in compliance with the Act or the Regulations or an order made thereunder, or seeking the enforcement of the Act or Regulations) by taking action detrimental to the employee's interest, such as dismissing or threatening to dismiss the employee. (See also AMS Diamonds, [1981] OLRB Rep. Nov. 1534, and Inco Metals Co., [1980] OLRB Rep. July 981.)

19. It is clear from the evidence that the complainant caused some disharmony within the crew during his second week of employment. His criticism of the welder's fusion technique, and his contention that pipefitters should handle the plastic pipe and should not permit labourers to touch it, clearly did not endear the complainant to the welder or to Mr. Hopper. However, having regard to all of the evidence and the submissions of the parties, and having particular regard to the fact that the decision to discharge the complainant was made shortly after he raised the safety issue which led to the loss of several hours of fusion time and also led to the issuance of a compliance order against the Company under section 29 of the Act, the fact that the immediate reaction of his foreman upon being apprised of the safety issue was to threaten to dismiss him, the fact that it was that foreman's input to Mr. Dagg which effectively led to the complainant’s dismissal, and the fact that the respondent offered disparate, inconsistent explanations of what motivated it to dismiss the complainant, the Board finds that the respondent has not met the burden of proof imposed upon it by section 24(5) of the Act. For the foregoing reasons, the Board finds that the respondent contravened section 24 of the Act by dismissing the complainant worker because he sought the enforcement of the Act and the Regulations.

20. The evidence indicates that the complainant was unemployed from the date of his dismissal until July 16, 1981, when he went to work for another employer with whom he remained employed until late December of 1981. Thus, he is entitled to be compensated only for the period from June 22nd to July 16th. An order of reinstatement would not be appropriate since the project on which the complainant was employed has been completed by the respondent, which has no other current or planned projects within the territorial jurisdiction of Local 46.

21. In view of the limited period for which the grievor is entitled to receive compensation, it is unnecessary for the Board to consider the effect which his delay in filing this complaint might otherwise have had upon quantum of compensation (see, for example, Auto Jobbers Warehouse Limited [1981] OLRB Rep. Dec. 1715).

22. The Board therefore orders:

(1) that the respondent fully compensate the respondent for all lost wages and benefits sustained by him from June 22, 1981, to July 16, 1981; and

(2) that the respondent pay interest on the compensation for lost wages ordered by the Board, such interest to be calculated in the manner described in Practice Note 13, dated September 8, 1980.

23. The Board remains seized of this matter in the event that a dispute arises concerning the implementation of the Board's order.

DECISION OF BOARD MEMBER C. G. BOURNE;

1. After considering the evidence I would find that the applicant was not dismissed for having filed a complaint under the Occupational Health and safety Act.

2. I would also conclude that the failure of the union to process the grievance supports this contention. The present application was filed some six months later.

3. I would dismiss the grievance.