International Association of Machinists and Aerospace Workers, Lodge No. 771 v. Boise Cascade Canada Ltd.

[1983] OLRB Rep. January 20

1100-82-OH International Association of Machinists and Aerospace Workers, Lodge No. 771, Complainant, v. Boise Cascade Canada Ltd., Respondent

BEFORE: R. A. Furness, Vice-Chairman, and Board Members B. Lee and I. Stamp.

APPEARANCES: W Dubinsky and Robert Pollard for the complainant; R. C. Filion and W Murray for the respondent.

DECISION OF THE BOARD; January 20, 1983

1. The complainant has complained that the grievor, Keith McKinnon, has been dealt with by the respondent contrary to the provisions of section 24 of the Occupa­tional Health and Safety Act. The complainant has requested that a three-day suspen­sion of the grievor be rescinded and that he receive his full retroactive pay and benefits. The respondent denied the allegations of the complainant and specifically denied that it has breached any provision of the Occupational Health and Safety Act.

2. The respondent operates a pulp and paper mill in Fort Frances and the complainant is the collective bargaining agent for certain employees (including the grievor) of the respondent at Fort Frances. There are three paper machines within the respondent's facilities. These machines require regular maintenance approximately every three to four weeks. Such maintenance is usually performed on Thursdays. On Thursday, June 24, 1982, paper machine number six (the "machine") was scheduled for maintenance. This required the machine to be shut down from 8:00 a.m. to 4:00 p.m. and this in turn required an employee of the respondent to come in to work at 7:00 a.m. and shut down the machine. The shutdown is regularly performed by a pipefitter who is in the bargaining unit represented by the complainant.

3. During the week of Monday, June 21, 1982, Paul Ewacha, the supervisor in the respondent's machine shop, was relieving Brian Wayland, the maintenance supervi­sor on the paper machines, who was on holidays. Between 2:00 and 3:00 p.m. on Tuesday, June 22, 1982, Ewacha commenced to inquire whether any of the pipefitters would be interested in reporting for work at 7:00 a.m. on Thursday, June 24, 1982, in order to shut down the machine so that maintenance work could be performed on it. The shutdown by a pipefitter takes about an hour.

4. Initially, Ewacha asked Angelo D'Attaro, the most senior and the most experienced pipefitter. D'Attaro asked if he would receive a four-hour call in and a meal ticket. Ewacha informed him that he would not receive either of these items but would instead receive one and a half hours' pay for one hour of work. It should be explained that a meal ticket is a voucher worth four dollars and twenty-five cents and which may be redeemed in Fort Frances for a meal or other services. Ewacha then asked other pipefitters whether they would come in and shut down the machine at 7:00 a.m. on Thursday, June 24, 1982. Ray Degagne, Doug Brown, Lynn Cain and the grievor, Keith McKinnon, each indicated that they would not come in and perform the shutdown on the machine. Ewacha then proceeded to put the same question to pipefitters in other crews. He asked Vic Alberts who asked him if he would get a four-hour call in and was informed he would get one and a half hours' pay for one hour of work. Alberts indicated he would not come in under these conditions. Ewacha then asked Terry Robinson who refused to come in. He then asked Alvin Wekner, who replied that he had never previously shut down the machine and did not know how to do the job. After receiving these replies, Ewacha did not ask anyone else.

5. During the evening of Tuesday, June 22, 1982, Ewacha told Cliff Hall, the maintenance superintendent and his immediate supervisor, that he had been unable to obtain anyone to perform the shutdown. Hall informed Ewacha that he would have to ask the grievor on Wednesday, June 23, 1982, because he was the junior man on Wayland's crew, to come in at 7:00 a.m. on Thursday, June 24, 1982, and shut down the machine. In accordance with these instructions, Ewacha spoke to the grievor on Wednesday, June 23, 1982, between 9:00 and 10:00 a.m. and told him that as the junior man he would have to come in and shut down the machine on Thursday, June 24, 1982. The grievor replied that he would not come in. Ewacha pondered the reply for a while and then repeated the request to the grievor and informed him that there could be a reprimand if he did not come in. The grievor again refused to come in as requested and asked when Ewacha came in to work. Ewacha replied that he came in to work at 7:00 a.m. and that ended the conversation. Ewacha testified that the grievor during these conversations never said anything about being unable to shut down the machine.

6. On Thursday, June 24, 1982, Ewacha was on the respondent's premises at about 7:00 a.m. He changed his clothes and at about 7:10 a.m. he saw the grievor at the location where the pipefitters congregate and drink coffee. Ewacha approached the grievor and asked him if he had shut down the machine. The grievor replied that he had not shut down the machine because he did not know how to do it. Ewacha then sought Hall and told him what had transpired with the grievor. Both of the men went over to the grievor to speak to him. It was about 7:20 a.m. and the grievor was sitting on a bench at the same location. Hall asked the grievor if he showed him the location of the valves would he shut off the valves. The grievor replied that he would not go with Hall because Hall was not qualified to shut off the valves. At this point Ewacha left the two men because he was required at a meeting at 7:30 a.m.

7. On Tuesday, June 22, 1982, Hall had previously been consulted by D'Attaro about the remuneration for coming in early and shutting down the machine. He confirmed that D'Attaro would neither receive a meal ticket nor a "call in". Hall testified that D'Attaro then said he would not come in to shut down the machine and would tell all the other pipefitters not to come in. Hall gave evidence that on the morning of Wednesday, June 23, 1982, he was approached by the grievor and Robin Bowes, the complainant's representative on the occupational health and safety commit­tee and job steward, and confirmed to the grievor that he would not receive a "call-in" if he shut down the machine. Upon being informed that he would receive one and a half hours' pay for one hour of work, and would not receive a meal ticket, the grievor then for the first time adopted a different position and said that he was not trained to do the job and could not shut down the machine. Hall informed the Board that he had been told by Wayland that the grievor had previously spent time with the pipefitters learning how to shut down the machine. As stated earlier, Hall offered to show the grievor how to shut down the machine and he told the grievor that the grievor knew how to shut down the machine. Hall testified that he told the grievor that if the grievor was unsure of how to shut down the machine he would show him how to do it. The grievor again refused to shut down the machine. At this point Hall left for his regular 7:30 a.m. meeting. On this occasion the meeting lasted only five minutes because there were no problems in maintenance and production. Hall returned to the place where the grievor was sitting and again offered to show him how to shut down the machine. Again the grievor refused Hall's offer and again stated that Hall did not know how to do it. At this point Hall informed the grievor that if he was refusing to go to work he had no choice but to send him home. Once again Hall offered to show him how to shut down the machine. Once again the grievor refused the offer. The grievor then thanked Hall and left to go home. Subsequently, the grievor was notified that he was suspended for three days.

8. The Board heard additional evidence from Wayland, D'Attaro and from the grievor. The evidence from D'Attaro indicated that he performed most of the shutdowns on all of the respondent's paper machines and that the respondent had recently changed its method of remuneration for these tasks. This did not find favour with D'Attaro as the most experienced pipefitter and it reduced his payments for performing the shutdowns. There was a conflict in the evidence among these three witnesses concern­ing whether the grievor had received instruction in how to shut down the machine since it had been remodeled in February of 1982. The evidence of Wayland was persuasive and supported by records from his daily reports. In addition, Wayland did not waiver under cross-examination. On the other hand, D'Attaro, while most forthcoming as a witness, was vague on the issue of the training which the grievor had received. The grievor, in his testimony, was a most unconvincing witness and changed his evidence in cross-examination. We do not believe the grievor when he gave evidence that he had not received instructions on the shutdown of the machine after February of 1982. We find that the grievor received such instruction in June of 1982. In addition, we do not believe the evidence of the grievor that he raised issues of safety concerning the shutdown of the machine before any of the respondent's supervisory staff at any time up to and including the time of his final refusal to shut down the machine on June 24, 1982, and his subsequent suspension for three days.

9. The complainant has characterized this complaint under section 89 of the Labour Relations Act as conduct contrary to section 24 of the Occupational Health and Safety Act in that the respondent refused to abide by the provisions of section 23(6) of the Occupational Health and Safety Act. By virtue of the provisions of section 24(5) of that statute, 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. Sections 24(1) and 23(6) of the Occupational Health and Safety Act provide:

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 there under or has sought the enforce­ment of this Act or the regulations.

23. -(6) Where, following the investigation or any steps taken to deal with the circumstances that cause the worker to refuse to work or do particular work, the worker has reasonable grounds to believe that,

(a) the equipment, machine, device or thing that was the cause of his refusal to work or do particular work continues to be likely to endanger himself or another worker;

(b) the physical condition of the work place or the part thereof in which he works continues to be 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 continues to be likely to endanger himself or another worker,

the worker may refuse to work or do the particular work and the employer or the worker or a person on behalf of the employer or worker shall cause an inspector to be notified thereof.

10. The respondent has satisfied the Board that it did not act contrary to the provisions of sections 24(1) and 23(6) when it administered a three-day suspension to Keith McKinnon, the grievor, on or about June 24, 1982. There was no evidence before the Board of an investigation pursuant to section 23(6) of the Occupational Health and Safety Act and the Board finds, on the basis of the evidence before it, that Mr. McKinnon was disciplined for insubordination when no issue of safety was being raised by either Mr. McKinnon or the complainant.

11. It appears that there lies behind this complaint an issue over the value to be placed on the task of shutting down paper machines. There was mention by counsel of a pending arbitration on this issue. The Board expresses no opinion on the merits of such an issue and does not minimize the caution required in handling steam and condensate. The matter of the interpretation of the collective agreement between the parties is a matter for a board of arbitration and not this Board.

12. This complaint is dismissed.