Richard Arnold and Other Members of Local 127 U.A.W. International Harvester Bargaining Unit v. International Harvester Company of Canada, Limited, 1983 CanLII 877

Ontario Labour Relations Board

[1983] OLRB Rep. June 898

1589-81-OH Richard Arnold and Other Members of Local 127 U.A.W. Interna­tional Harvester Bargaining Unit, Complainants, v. International Harvester Company of Canada, Limited, Chatham, Ontario, Respondent.

BEFORE: Corinne F. Murray, Vice-Chairman, and Board Members L. Hemsworth and S. Cooke.

APPEARANCES: Jim Gill for the complainants; E. L. Stringer, Q.C., B. Crosby, J. Vanest and J. Crete for the respondent.

DECISION OF CORINNE F. MURRAY, VICE-CHAIRMAN, AND BOARD MEMBER S. F. COOKE June 24, 1983

1. This is a complaint pursuant to section 24 of the Occupational Health and Safety Act, R.S.O. 1980, c.321 (hereinafter referred to as "the Act").

2. All the complainants were employed by the respondent and were at work at the commencement of the day shift on December 10, 1980. They were a group who refused to continue to work that day because of the smell of gasoline fumes in the respondent's plant in Chatham. They complain that a penalty was imposed on them contrary to section 24(1)(c) as a result of their refusal because they did not receive their regular wages for their scheduled hours of work between 9:30 a.m. and the decision of the inspectors from the Ministry of Labour (5 p.m. on December 10, 1980). These complainants were not named but counsel for the respondent estimated that they numbered about 50. Mr. Gill did not dispute this approximation. For ease of reference this group of employees will be referred to as refusers.

3. Richard Arnold, in addition to the complaint he has as a part of the group of refusers, complains that he was intimidated on December 10, 1980 by Robert Coutts, his General Foreman, contrary to section 24(1)(d). He also claims individually that he was penalized contrary to section 24(1)(c) for exercising his right to refuse to work pursuant to the Act on December 10, 1980, because he should have received his full pay for the hours between the time he left the respondent's plant (approximately 9:30 a.m.) and the time when the inspectors of the Ministry of Labour made their decision regarding the condition of the respondent's plant. Since Mr. Arnold was a part of the group of complainants identified in paragraph 2 above, the Board has decided to treat Mr. Arnold's claim for compensation for the hours between 9:30 a.m. and 5 p.m. as an alternate claim to that of the group.

4. Finally, complainants Robert Tindale, Chairman of the Plant Committee for Local 127 U.A.W. International Harvester Bargaining Unit, (hereinafter referred to as "Local 127") and Harry Warner, Safety Chairman for Local 127 alleged they were threatened with discipline contrary to section 24(l)(b), on December 10, 1980, by Joe Vanest, Manager of Human Relations for the respondent in Chatham and Richard Tolhurst, Manager of Manufacturing-Operations in Chatham.

5. The events that directly bear upon the allegations are those which occurred on December 10, 1980 at the respondent's truck manufacturing plant in Chatham. However, counsel for the respondent in his opening statement said that the events of December 9, 1980 provided general background to understand what took place on the next day. Counsel for the respondent invited the complainants' counsel to take issue with his description of events and indicated that while he would be calling no evidence regarding December 9th, he would not object to his witnesses being cross-examined by the complainants or questioned by the Board regarding the events of December 9th. Counsel for the complainants did not take issue with the description the respondent's counsel gave of December 9, 1980 nor did the complainant's counsel cross-examine any of the respondent's witnesses who mentioned the events of December 9, 1980. It was undisputed that on December 9, 1980 the respondent had shut down the plant at approximately 11 a.m. because of concerns about a strong odour of gasoline in Department 6, the Press (Sheet Metal) Shop, in the main Chatham plant. Prior to making the decision to shut down, there had been a work refusal pursuant to the Act in Department 6 because of the gasoline fumes but the respondent shut the plant down because it could not determine the cause of the fumes and whether there was a safety problem. While the plant was shut down on the 9th, external engineers, who had been retained by the respondent, came to the plant and measured with testing equipment whether the fumes were hazardous. A number of remedial measures were taken by the respondent on the 9th and early on the 10th and the respondent was satisfied it could resume operations on the 10th at or about 6:30 - 7:00 a.m.

6. At about 7:30 a.m. on December 10th, Harry Warner and another representa­tive of Local 127 asked John Ancocik, Supervisor of Safety & Security for the respondent's Chatham plant, to provide them with the engineers' test readings from the night before. After a short discussion (between 7:30 and 8:00 a.m.) among various officials of the respondent and Local 127, these readings were made available to Mr. Warner and other officials of Local 127. The respondent's officials took the position in this meeting that the plant had been confirmed as safe by the engineers. The respondent also at this point directed the engineers, accompanied by Mr. Ancocik and Mr. Warner, to continue taking tests of the storm drains (the believed location of the problem of fumes the day before).

7. At approximately 8 a.m. Mr. Vanest informed Mr. Ancocik, Mr. Warner and other officials of both the respondent and Local 127 who had gathered to discuss the engineers' test results that there was a work stoppage in the Harcan building, a building separate from the main Chatham plant. Mr. Ancocik and Mr. Warner left immediately to investigate. They removed a storm drain cover in the Harcan building and could not smell any gasoline fumes and, consequently, the employees assigned to work in this building were persuaded to return to their duties.

8. After the Harcan incident was over, Mr. Ancocik, Mr. Warner and the personnel from the engineering firm were about to resume testing in the respondent's main plant when Mr. Vanest reported by walkie-talkie that employees in Departments 3 (the Cab and Panel Department), 50 (the Frames and Axle Department) and 53 (the Chassis line) in the main plant building had stopped work. He directed Messrs. Ancocik and Warner to go to those Departments. By the time Mr. Ancocik, Mr. Warner and the sundry others reached these departments, all the employees had left the plant altogether. Mr. Ancocik reported this to Mr. Vanest via walkie-talkie and Mr. Vanest directed him to come to his office. We will divert at this point from events generally to the incidents relating particularly to Mr. Arnold because the actions complained of by Mr. Arnold allegedly occurred at or around this point in time.

9. Mr. Arnold has been employed by the respondent for 12 years, 11 of them in Department 50. At approximately 6:20 a.m. on December 10, 1980, he came to work and immediately noticed that the smell of gasoline was "very strong" in his Department. Nevertheless he proceeded to his work area. By approximately 7:00 a.m. his concern about the fumes caused him to call the union office (at the plant) and inform the safety committee about the strong fumes. He was told that the union's safety committee was already out in the plant checking on the fumes. Mr. Arnold also complained to the three foremen to whom he usually reported - Robert Locke, John Jeans and Ken Burns - about the fumes. These three foremen are supervised by Robert Coutts, the General Foreman. At approximately 7:15 he saw Mr. Warner and others in Department 50. He approached Mr. Warner and told him about the strong fumes, following which he returned to his work area and again complained to his three foremen about the excessive fumes. Mr. Arnold testified that "nothing materialized" either from the union or the respondent by 8:00 a.m. so he told the foremen that he felt the plant was in an unsafe condition and, particularly, that he felt his own work area was unsafe. He advised them that under "Bill 70" he was removing himself to a safe area. The safe area he selected was the gatehouse outside the plant. It seems that Mr. Arnold was acting independently of any of the rest of the employees in Department 50 because there is no evidence he consulted with any of these employees or was joined at this time by any of them in leaving the plant. At some point after Mr. Arnold removed himself to the gatehouse, the other employees who refused to work in Departments 3, 50, and 53 also sought safety in this vicinity as well.

10. Shortly after he arrived at the gatehouse, Mr. Arnold was told by the security officer there that his foreman was telling him to get back to his job. Mr. Arnold asked and received permission to use the phone in the gatehouse. He called the union's office and told Bob Tindale that he was out in the gatehouse under Bill 70 because of the excessive fumes. Mr. Tindale said he knew Mr. Arnold was out there and that the safety committee would be out to see him shortly. Apparently he gave him no advice or guidance on what his attitude should be if his foreman was directing him back to work. While at the gatehouse, Mr. Arnold was approached by Mr. Coutts and Mr. Locke. There is no dispute that Mr. Coutts advised Mr. Arnold that engineers had tested the plant and had pronounced it safe. Mr. Arnold informed Mr. Coutts that until the "proper authorities" (by whom he says he meant the Ministry of Labour) advised him that the plant was safe, he would remain where he was. It is also not disputed that Mr. Coutts ultimately told Mr. Arnold that his "time was stopped", which meant he would receive no more pay for the day. What happened prior to this statement is in dispute.

11. Mr. Arnold testified that after he told Mr. Coutts he was waiting for the proper authorities to confirm the plant's safety, Mr. Coutts got very red in the face and gave him "a direct order to return to his job". Mr. Arnold said that he responded to this order by explaining his position under Bill 70 a second time. Mr. Coutts then told him to accompany him to Mr. Vanest's office, at which point Mr. Arnold requested his union committeeman. Mr. Arnold claimed that it was at this point Mr. Coutts told him his time was stopped. He said he made the request for his committeeman because he felt that he was going to Mr. Vanest's office to be fired. Mr. Arnold described himself to be "shaking". Mr. Coutts and Mr. Locke both testified about this encounter. Mr. Coutts confirmed that he told Mr. Arnold twice that he would have to go back to work. When Mr. Arnold refused and requested his committeeman, Mr. Coutts told him that he would have to go to the Personnel office. ,Mr. Coutts said that he told Mr. Arnold this because he wanted "to leave" Mr. Arnold in the Personnel office and go get Mr. Arnold's steward. Mr. Locke testified that the reason for taking Mr. Arnold to Personnel was to allow "them" to make a ruling or a judgment on where "they" would go from there. He also indicated that it was after Mr. Arnold requested the committee man that Mr. Coutts and he took Mr. Arnold to Personnel. Both Mr. Coutts and Mr. Locke deny that Mr. Coutts was red in the face, angry, frustrated, lost his cool or had a higher pitch to his voice during any part of this encounter. They both described his manner throughout as normal and business-like.

12. The evidence of Gerry Nagle, the respondent's Labour Relations Manager, is relevant with respect to determining the effect of Mr. Coutts' actions vis-a-vis Mr. Arnold, because if Mr. Nagle's evidence is to be believed, he countermanded any directives given by Mr. Coutts to Mr. Arnold that he was required to go back to work. According to Mr. Arnold's testimony, Mr. Nagle could not countermand any of Mr. Coutts' directives because Mr. Nagle preceded Mr. Coutts in visiting Mr. Arnold at the gatehouse. Mr. Arnold claimed that prior to Mr. Coutts' arrival at the gatehouse and after he placed his call to Mr. Tindale at the union's office, Mr. Nagle came into the gatehouse and advised him that the union's safety committee and the engineering firm had conducted tests of the plant and confirmed its safe condition. He advised him that he should return to work. Mr. Arnold says he told Mr. Nagle that he felt the plant was in an unsafe condition and that until he was notified by the "proper authorities" (meaning Ministry of Labour inspectors), he had the right to refuse to not go back into the plant. Mr. Arnold described Mr. Nagle as getting "frustrated" at his response and, as he left the gatehouse, saying that as far as he was concerned, Mr. Arnold could stay out there for 30 years. About 5 minutes later, Mr. Coutts and Mr. Locke entered the gatehouse and the encounter set out in the preceding paragraphs happened. According to Mr. Arnold, on the way to the Personnel office and after he had conferred with a committeeman for Local 127 about his situation, Mr. Nagle reappeared. He told Mr. Arnold and the committeeman that he would meet with them shortly, but that first he had to go out to the plant because there was a work stoppage in progress. Mr. Arnold indicated again that he was removing himself from the plant and that he was seeking the safety of the gatehouse. Mr. Arnold did this and joined a group of employees gathered there.

13. Mr. Nagle testified that his purpose in going to see Mr. Arnold was to "rectify the situation" created by Mr. Coutts' direction to Mr. Arnold that he go back to work. He claimed he had a previous conversation with Mr. Coutts during which Mr. Coutts reported that he had directly ordered Mr. Arnold to return to work, even though Mr. Arnold had said he was refusing to work under the Act. (It should be noted that Mr. Coutts testified in reply, without objection, to rebut the testimony of Mr. Arnold and therefore did not give any evidence regarding this conversation he had with Mr. Nagle.) Mr. Nagle said he was "immediately concerned" at what Mr. Coutts had done "because of the provisions of the Act". Mr. Nagle testified that when he met with Mr. Arnold at the gatehouse, he simply "reinforced with Mr. Arnold" his rights under the Act, i.e., if he felt there was a problem, he had every right to leave the operation and to stay in the gatehouse which he had chosen as the safe place to go. Under cross-examination Mr. Nagle said that he thought he told Mr. Arnold the test results by the engineers showed that the fumes were within acceptable limits, but he denied making any suggestion, based on the results, that Mr. Arnold return to work. Mr. Nagle said that after he "reinforced" Mr. Arnold's rights, he left the gatehouse. Mr. Nagle gave no evidence as to a subsequent encounter with Mr. Arnold in the company of the steward. Mr. Arnold was asked in cross-examination whether he disagreed with Mr. Nagle's evidence that he met with Mr. Arnold after Mr. Coutts gave his directives and Mr. Arnold said he disagreed with it "100 per cent".

14. If we accept the sequence of events as described by Mr. Coutts and Mr. Locke, there would have been no opportunity for Mr. Nagle to "rectify the situation" created by Mr. Coutts until after Mr. Arnold had returned to the gatehouse because Messrs. Coutts and Locke were with Mr. Arnold continuously. We find it unlikely that Mr. Nagle met with Mr. Arnold after he went to the gatehouse a second time because, according to the chronology of the day described by witnesses for both the respondent and the complainant, employees who were refusing to work, in addition to Mr. Arnold, began to leave their work areas and the plant at approximately 8:15 a.m. — 8:30 a.m. A meeting between the respondent's officials and the officials of Local 127 to consider this situation took place in Mr. Vanest's office at approximately 8:45. Mr. Nagle claimed he was at this meeting for 90-95% of its duration. Immediately after this meeting, Mr. Nagle, Mr. Ancocik, Mr. Warner and Mr. Tindale went out to the gatehouse area to address the refusers. While it is possible that Mr. Nagle could have returned to the gatehouse in the half hour between 8:15 and 8:45, we find it is unlikely he would have, at that point in time, spoken only with Mr. Arnold when other refusers were nearby. More importantly, considering the perception of events officials of the respondent had prior to and during the 8:45 a.m. meeting and the reasons for Messrs. Nagle, Ancocik, Warner and Tindale speaking to the refusers after the meeting, it is unlikely Mr. Nagle would have spoken to Mr. Arnold in the terms he said he did.

15. We have concluded that the prevailing view among the respondent's officials until approximately 9:30 was that the employees who were refusing to work ought to return to work, or, put another way, that the employees should return to work because they had no reason to fear for their safety since the plant was in fact safe. It is clear that during the meeting in Mr. Vanest's office Mr. Vanest indicated that the employees should return to work because the plant was determined by the engineers to be safe. Mr. Vanest testified he received word that several employees had left their work areas and the plant at approximately 8:15 a.m. He immediately called Mr. Tindale and asked if he knew why employees were leaving the plant. He said Mr. Tindale claimed he did not have very good information and he said he would come up to his office immediately. When Mr. Tindale arrived in Mr. Vanest's office at approximately 8:45, Mr. Vanest told him he was not sure what they were dealing with. Mr. Vanest claimed that he continued not to know what he was dealing with until after Messrs. Nagle, Ancocik, Warner and Tindale returned from addressing the refusers (following the meeting) at approximately 9:30. Between 8:30 and 9:30, as the circumstances were assessed, he said he and other officials of the respondent came to the conclusion that the work stoppage "should be treated as a work refusal under the Act". It is clear that while the respondent's officials may have been in doubt as to why the employees were stopping work, there was a consistent attitude that the employees should be at work. Mr. Nagle was a part of the respondent's managerial team which considered, at least until 9:30 a.m. on December 10th, that the plant was safe and that the ref users should resume work. We have concluded Mr. Nagle would have acted consistent with the prevailing view. Firstly, Mr. Vanest testified that as of 7:30 a.m. he, Mr. Nagle and other officials of the respondent were trying to persuade Mr. Warner and other Local 127 officials that the plant was safe, relying on the engineers' test results. In all probability the decision was made to give the engineers' test results to the union and to invite Mr. Warner to accompany the engineers on further testing so that Local 127 could be persuaded that the plant was indeed safe. Secondly, Mr. Nagle testified that the purpose of a four-man delegation (including himself) meeting with the ref users congregating at the gatehouse was to persuade them the plant was safe and that they should return to work.

16. For these reasons we find it unlikely that Mr. Nagle would have before 8:45 a.m. (the only time at which he could have spoken to Mr. Arnold) become immediately concerned at Mr. Coutts' directives to Mr. Arnold, and it is equally unlikely that he would have, in the face of Mr. Arnold's refusal, simply advised Mr. Arnold that it was his right under the Act to refuse to work if he felt conditions were unsafe. We therefore conclude that Mr. Arnold was directed back to work by Mr. Coutts and told that his pay would be stopped if he did not do so. Mr. Nagle did not subsequently advise Mr. Arnold that these directives did not have to be followed, nor did he, in any other way, rectify the actions of Mr. Coutts. We find that Mr. Arnold was told he would have to go to Personnel or Mr. Vanest's office and at some point (when is not important) he requested a committeeman. We find that the purpose of his going to the Personnel office was not explained to him. We find that the purpose was to have someone higher up the management ladder determine what, if anything, would happen to Mr. Arnold in the circumstances.

17. The allegations that Messrs. Tindale and Warner were threatened by Messrs. Vanest and Tolhurst allegedly occurred during the meeting referred to above, which took place at approximately 8:45 a.m. in Mr. Vanest's office. In this regard we heard extensive and conflicting evidence as to what was said and what happened at this meeting. We will not set out the full evidence on this issue because even if the evidence, as given by Mr. Tindale and Mr. Warner, were found to be the correct version of what happened at the meeting, they could not be successful in arguing that they were threatened with discipline. Mr. Tindale testified that Mr. Vanest said he considered what the refusers were doing was an illegal work stoppage for which they would receive discipline. He also testified that Mr. Vanest told him that if he and Mr. Warner did not get the people back and the crucial production line had to be shut down, the discipline imposed would be more severe. Mr. Warner, interestingly enough, did not mention any such threats by Mr. Vanest. He testified that it was Mr. Tolhurst who said that if the line went down, the penalties would be more severe. Neither Mr. Warner nor Mr. Tindale relayed these statements to the refusers, so it cannot be said that the refusers were threatened by Mr. Vanest or Mr. Tolhurst through Mr. Warner or Mr. Tindale. Mr. Tindale admitted that the threats he was alleging Mr. Vanest to have made were not directed at him personally, but rather to the refusers. We conclude, considering all of the evidence, that Mr. Warner also could not have concluded Mr. Tolhurst's alleged statements to have been directed at him. On this basis we have concluded that portion of the complaint alleging threats to Mr. Warner and Mr. Tindale to be unfounded.

18. It is undisputed that all employees, whether the group of refusers or the ones sent home as a result of the refusal, were not paid their regular hourly rate for the hours after 9:30 a.m. on December 10th. All employees (except Mr. Arnold) left the plant on December 10th not knowing whether or not they would be paid anything for the hours after 9:30. The respondent explained the alternate method of payment to the employees in these terms on December 15, 1980, (Exhibit 4):

December 15, 1980

TO ALL CHATHAM PLANT EMPLOYEES

On Wednesday morning, December 10, 1980, at 9:30 a.m. we had to cease plant operations because a few employees left key operations in Departments 3, 50 and 53. They stated that they were concerned about gasoline fumes in the plant.

This interruption occurred in spite of actions taken and assurances by the Company that the plant was safe. The under-floor lines had been flushed Tuesday and fume detection readings confirmed there was no hazard present.

When our appeals and those of your Union leadership were unsuccessful in convincing these employees to return to work we had no recourse other than to suspend operations and send our employees home.

When production operations are suspended in conditions such as occurred on Wednesday, pay is affected. Accordingly, regular hourly pay for all employees ceased as of the time they were sent home and an S.U.B. Short Work Week Benefit will be paid to those eligible. This payment will appear in cheques released on Tuesday, December 23, 1980.

"J. 0. Vanest"

The relevant portions of the S.U.B. Plan which were interpreted by the respondent to be applicable to the situation prevailing on December 10th are:

Section 3 - Conditions With Respect to Layoff

(a) A layoff for the purposes of this Plan includes any temporary layoff, layoff resulting from a reduction in force, or from the discontinuance of a Plant or operation, or a layoff occurring or continuing because the Employee was unable to do the work offered by the Company although able to perform other work in the Plant to which he would have been entitled if he had had sufficient Seniority;

(b) An Employee's layoff for all or part of any Week will be deemed qualifying for Plan purposes only if:

(1) such layoff was from the Bargaining Unit;

(2) such layoff was not for disciplinary reasons, and was not a consequence of:

(i) any strike, slowdown, work stoppage, picketing (whether or not by Employees), or concerted action, at a Company Plant or Plants, or any dispute of any kind involving Employees or. other persons employed by the Company and represented by the Union whether at a Company Plant or Plants or elsewhere;

(ii) any fault attributable to the Employee.

Not all employees were eligible under the Plan for payment, however. Due to the low amount of funding in the Plan, in order for any employee to receive any short work week benefits, he/she had to have 10 or more years seniority. Mr. Arnold, for one, did not have sufficient seniority at that time, so he received no pay beyond 9:30 a.m. (while, initially, he was not paid even for the space of time between 8:00 and 9:30, he grieved, and this was ultimately rectified short of arbitration). The complainants do not dispute that the Plan requires this seniority. They claim that the respondent acted contrary to the Act in applying the Plan to them. When Mr. Vanest was questioned about how the decision on the method of payment for employees that day was conveyed to the union, he said that he and Mr. Tindale had a discussion at 3:30 p.m. on the 10th recapping what had happened that day. He claimed that Mr. Tindale asked him the question: "Are they going to be paid a short work week?" (a reference to the short work week payment under the S.U.B. plan). Mr. Vanest says that this is the first mention of the short work week payment in any communication with Local 127 officials or refusing employees. Apparently Mr. Vanest could not give a definite answer to this question until about a week later because he had never handled a mass refusal to work like this before and he had to await the collection of information and advice from the respondent's head office in Hamilton. The Board received no evidence as to how hours not worked on December 9th were treated in terms of pay.

19. Part of the complainants' basis for claiming entitlement to a full day's pay is their right, as refusers, to participate in the inspection process. Therefore, it is necessary to describe briefly that process as it unfolded on the 10th. The inspectors were called in Windsor at approximately 9:00 a.m. on December 10th by the respondent. Both Mr. Warner and Mr. Tindale knew the Ministry inspectors had been called. No evidence was led by the respondent as to whether it was known how long it would be before an inspector arrived. They arrived at the plant between 11 a.m. and 11:20 a.m., 1-1/2 hours after virtually all the employees had gone home. They asked Mr. Ancocik and Mr. Warner where the refusers were. Mr. Ancocik replied that so many employees had refused to work that the respondent was forced to send the whole plant home. The inspectors told Mr. Ancocik to call in three employees who would be representative of the employees who had refused because of unsafe conditions. Although Mr. Warner was present, he did not voice any objections to the number or selection of employees for this task at this or any other time. Mr. Ancocik said that three employees (none of whom was Mr. Arnold) were called in for 1 p.m. At 1 p.m. the Ministry inspectors, Mr. Ancocik, Mr. Warner and the three employees who had been called in assembled in the coffee room. Questions were asked and answers given as to the events of the 10th. Mr. Ancocik testified that employees explained why they felt there was a hazard on the basis of the gasoline fumes. After the meeting, the group proceeded to the work areas to perform a "sniff test". At 5 p.m. they wrote up an order that the respondent ventilate and purge the sewer system. The three employees and Mr. Warner were paid for the period of time they participated in the investigation.

20. The respondent argued that it was not required to pay the complainants beyond 9:30 a.m. because they were not at the plant premises beyond this point in time. The respondent argued in an alternative way as to the reason the refusers were not at the plant beyond 9:30 a.m. The respondent argued that the evidence showed that the complainants were never directed to leave; so that they really left of their own accord and, alternatively, even if the respondent did direct them to leave, the respondent was entitled to give such a direction under section 23(10) of the Act. We have reviewed the evidence of the respondent's witnesses and have come to the conclusion that the respondent gave a general direction to all the employees (refusers and non-refusers) that they could go home. Mr. Ancocik testified that his response to Ministry inspectors' inquiries as to the whereabouts of the refusers was that there had been so many people off key operations the entire plant was "sent home". Mr. Vanest, in response to questioning by Mr. Hemsworth about what had happened with previous individual refusers pursuant to the Act, testified that the individuals had remained in their work area so that their "time" continued and so did their pay. He went on to comment that he had never run into a situation, before December 10th, where individuals were "sent home" prior to the conclusion of the shift, except on December 9th. While both Mr. Arnold and Mr. Cammart (another witness called by the complainants who was a part of the group of refusers) could not tell the Board who specifically directed them to go home, both felt that this directive had come from the respondent. This basically coincides with the language used by Messrs. Ancocik and Vanest in describing what happened to the refusers on December 10th and also the language used in Exhibit 4 (see paragraph 18, supra) to the effect that "all employees" were sent home. Therefore, we conclude that the respondent did send the refusers home on December 10th at or about 9:30 and stopped their normal pay at that point. We also find that Mr. Warner and Mr. Tindale knew that the respondent was going to send everyone home if the refusers could not be persuaded that the plant was safe. Mr. Warner gave extensive evidence regarding his knowledge of and training in the procedures of the Act. There is no evidence that either informed the respondent or any of the refusers of the refusers' right to be present for a Ministry investigation.

21. Relevant portions of Sections 23 and 24 of the Act state:

22. (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.

(4) Upon refusing to work or do particular work, the worker shall promptly report the circumstances of his refusal to his employer or supervisor who shall forthwith investigate the report in the presence of the worker and, if there is such, in the presence of one of,

(a) a committee member who represents workers, if any;

(b) a health and safety representative, if any; or

(c) a worker who because of his knowledge, experience and training is selected by a trade union that represents the worker, or if there is no trade union, is selected by the workers to represent them, who shall be made available and who shall attend without delay.

(5) Until the investigation is completed, the worker shall remain in a safe place near his work station.

(6) Where, following the investigation or any steps taken to deal with the circumstances that caused 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.

(7) An inspector shall investigate the refusal to work in the presence of the employer or a person representing the employer, the worker, and if there is such, the person mentioned in clause (4)(a), (b) or (c).

(8) The inspector shall, following the investigation referred to in subsection (7), decide whether the machine, device, thing or the work place or part thereof is likely to endanger the worker or another person.

(9) The inspector shall give his decision, in writing, as soon as is practicable, to the employer, the worker, and, if there is such, the person mentioned in clause (4)(a), (b) or (c).

(10) Pending the investigation and decision of the inspector, the worker shall remain at a safe place near his work station during his normal working hours unless the employer, subject to the provisions of a collective agreement, if any,

(a) assigns the worker reasonable alternative work during such hours; or

(b) subject to section 24, where an assignment of reasonable alternative work is not practicable, gives other directions to the worker.

(11) Pending the investigation and decision of the inspector, no worker shall be assigned to use or operate the equipment, machine, device or thing or to work in the work place or the part thereof which is being investigated unless the worker to be so assigned has been advised of the refusal by another worker and the reason therefore.

(12) The time spent by a person mentioned in clause (4)(a), (b) or (c) in carrying out his duties under subsections (4) and (7), shall be deemed to be work time for which the person shall be paid by his employer at his regular or premium rate as may be proper.

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.

22. The claim for regular wages between 9:30 a.m. and 5 p.m. on December 10th is a novel claim which has not thus far been raised in any reported decision of the Board either under the Act or under its predecessor The Employees' Health and Safety Act, S.O. 1976, c.79. With the exception of one decision (Canadian General Electric, [1981] ORLB Rep. June 616), our decisions thus far have required a determination of whether refusing employees had reason to believe that their work places presented a hazard to their safety. Where it was found that the refusal was based on a reasonable belief, and therefore, the discharge or discipline imposed on the employee for engaging in a work refusal was found to be unlawful, compensation has been ordered for wages lost due to the discharge or discipline with or without reinstatement (see, for example, Canadian Gypsum Construction, 11978] OLRB Rep. Oct. 897 and AMS Diamonds, [19811 OLRB Rep. Nov. 1534). In Canadian Getieral Electric, supra, there was no dispute that the shutdowns, were necessary to remedy acknowledged hazardous conditions. The shut­downs were by agreement of the employer and the union (who was the complainant) and, therefore, the time lost was not for the purposes of an investigation by either the employer or Ministry of Labour inspectors. The Board found no penalty was imposed on the employees when they were paid a day rate for the time instead of an average of their incentive rates because they were treated the same as any employee under the collective agreement who had "lost or idle time" due to circumstances beyond their control (the words of the collective agreement). Even if a penalty, this treatment of the hours of shutdown was not found to have been done because the employees sought compliance with the Act. The respondent, throughout the proceedings before us, never took the position that the complainants' refusal to work on December 10th was not based on a reasonable belief that the gasoline fumes were likely to endanger them. We therefore have concluded, for the purposes of section 24, that the complainants were, during all relevant times, "acting in compliance with the Act".

23. Section 23 sets out a code of conduct for employees and employers where employees have reasonable concerns about hazards to their health and safety in their work places and their employers disagree. First of all, employees can refuse to work but must report the circumstances of that refusal to their supervisors. Section 23 provides for a two-tiered investigation - initially by the employer immediately upon receiving the employee's report, and subsequently by Ministry of Labour inspectors after a continua­tion of the refusal. While the first tier occurs, the refusing employee must remain at a safe place near his work station (subsection 5) except, presumably, when his presence during the investigation requires something else (subsection 4). The employer, during this time, is given no right to assign alternate work, presumably because this would interfere with the employee's presence at the investigation and because the time taken up in the investigation is totally within the control of the employer. If, after this investigation, the employee continues to refuse to work because he has reason to believe his work or work place puts his safety in jeopardy and the employer continues to disagree with the employee's belief, then the inspectors from the Ministry must be called in. Pending this second-tier investigation, the employer can either assign "reasonable alternative work" or, where none is practicable, "other directions" which do not violate section 24. These options were made available at this stage presumably because the inspection might not get underway immediately and its duration, up to and including the inspectors' decision, is not fully within the employer's control. Once the inspector commences the investigation, it must proceed in the presence of the refusing employee (subsection 7). Therefore, while the employee (who continues to refuse after the first-tier investigation) may be directed to do other work or be given any other lawful direction prior to the commencement of the investigation or after its conclusion, he retains the right to participate in the investigation itself.

24. Section 24 ensures that an employee who properly seeks to utilize or has utilized section 23 is not interfered with through dismissal, suspension or other discipline, threats of dismissal, suspension or other discipline, penalties or intimidation because he/she is acting in accordance with the Act. It is important to note that section 24 does not provide remedies for failure to follow the procedures of section 23. Section 37 does. It provides that:

37.-(l) Every person who contravenes or fails to comply with,

(a) a provision of this Act or the regulations;

(b) an order or requirement of an inspector or a Director; or

(c) an order of the Minister,

is guilty of an offence and on conviction is liable to a fine of not more than $25,000 or to imprisonment for a term of not more than twelve months, or to both.

(See, for example, R v. Algoma Steel Corporation Limited, (unreported), released January 22, 1981, Boyd, Prov. Ct. J.; R v. Ornamental Precast Limited, (unreported) released March 1981, Greco, Prov. Ct. J.). It provides that a person who contravenes or fails to comply with the Act is subject to a summary conviction punishable with fine and/or imprisonment. Our jurisdiction is not to remedy breaches of the Act (in particular section 23) but, rather, to determine whether section 24 has been violated. Similarly, proving section 23 has not been followed will not result in a finding that section 24 was violated. Proof that the procedures of section 23 were not followed, however, could be an ingredient in a determination that section 24 has been breached. A failure to follow the steps set out in section 23 would have to be explained and that explanation weighed with all the other evidence to assess whether section 24 had been violated.

25. Between the initial work refusal and the decision of the inspector, the refusing employee and the employer are essentially locked in a contest of persuasion. Each must assess the situation and make difficult judgement calls. If at any time the employer correctly assesses the employee's beliefs as unreasonable, the full range of disciplinary action is available and this Board will not have any jurisdiction to interfere. Since employees only have the protection of the Act in circumstances where they can show their beliefs were reasonable, the Act provides for the employee's participation in both tiers of investigations. The Board has recognized in previous decisions (see, for example, Canadian Gypsum Construction, supra) that after the completion of the first tier of investigation, there is an increased onus on the refusing employee to show that the refusal is reasonable. The limitations on what techniques the employer can utilize to persuade a refusing employee are set by section 24.

26. We note that Mr. Arnold specifically denied that he was seeking to rely on section 24(1)(c) for the loss of pay he experienced for the time between 8:00 and 9:30 a.m. on December 10th, notwithstanding the fact that his pay was withheld for this period of time until settlement of his grievance. We therefore only must consider his claim that he was intimidated contrary to section 24(1)(d). We have found on the evidence that Mr. Coutts directed Mr. Arnold back to work repeatedly and threatened to stop his pay if he did not do so. These directions occurred during what was for Mr. Arnold the first-tier investigation stage, a time during which the employer is given no right to assign the refusing employee alternate work or give any other directions normally available to employers. It is obvious from the design of section 23 that an employer also cannot direct an employee who is rightfully refusing to work, pursuant to section 23(3), to return to his work. The Act gives employees the right to refuse to work in reasonable circumstances and the direction by an employer that an employee cease to refuse to work negates this right.

27. As pointed out earlier, proof of violation of section 23 does not necessarily lead to the conclusion that section 24 has been violated. We have concluded that these directions did amount to intimidation. The relationship between an employer and an employee is one where normally the employer has the right to direct the employee to do work and the employee has the obligation to comply with the direction. Where an employee refuses to comply, the employer can not only stop the employee's pay and send the employees home, but also can take disciplinary action. One of the longstanding exceptions to these consequences is in the areas of health and safety insofar as organized employees are concerned. Arbitrators have recognized that discipline should not be upheld where the refusal to work arises out of a reasonably held belief that work conditions are unsafe. Section 24 applies this standard to the unorganized employees and also applies further limits on employers' actions in this area. Not only is disciplinary action forbidden but also actions that are coercive, intimidating or amounting to a penalty. We interpret this extension to be reflective of a legislative intent to eliminate actions by an employer which pit the power of the employer over the employees' work life against the employees' stamina to stand up for their statutory rights. We find the repeated order to return to the very work which Mr. Arnold had an undisputed statutory right to refuse, accompanied by the threat that his pay would be stopped if he did not do so, is beyond the boundaries of persuasion and is an intimidating action. The threat that his pay would stop was tantamount to sending him home and was a graphic illustration of the respondent's control over his work life. The direction that Mr. Arnold accompany Mr. Coutts to Personnel in these circumstances could reasonably be interpreted to be a sign that the situation was escalating to a more serious level and could entail disciplinary action. If Mr. Coutts' intention was as he described it to us, we would have thought that the purpose of the trip to Personnel would have been explained. We find that the real purpose was as stated by Mr. Locke, i.e., to have someone higher up decide what to do with Mr. Arnold. On these facts we have therefore decided that the respondent has violated section 24(1) (d) in connection with Mr. Arnold.

28. We will now deal with the claim by the refusers for payment for the period of time between 9:30 a.m. and 5 p.m. on December 10, 1980. In this regard it is important to note that there was no claim made for payment in connection with the early termination of the plant's operations on the previous day, December 9th, and there is no general claim that so long as an employee is rightfully refusing to work pursuant to the Act, he or she is entitled to be paid, even after an inspector has rendered a decision pursuant to section

23(4).

29. The complainants did not argue that they were in the first-tier investigative stage at 9:30 on December 10th. Presumably, they recognized that the events of December 9th and the call to the Ministry of Labour rendered the first tier redundant. The primary argument of the complainants is that an employer can never direct properly refusing employees to go home without pay where the Ministry investigation is pending and there is no reasonable alternative work available, because such a direction is always a penalty within the meaning of section 24. The complainants do not dispute that there was in fact no reasonable alternative work for them on December 10th. They say that notwithstanding this, the respondent imposed a penalty on them by directing them to go home because the words "other directions" in section 23(10) do not encompass such a direction. We cannot agree that an employer, faced with a work refusal, especially of this magnitude, could never direct employees home while the Ministry inspection or decision was pending and where there was no alternative work available. If the Legislature had intended absolutely to outlaw such an accepted and common employer response to a lack of work situation, it would have expressed this intention in a less oblique way. We have concluded that section 23(l0)(b) permits an employer, in the proper circumstances, to give a full range of "other directions" to employees who are rightfully refusing to work and for whom no alternate work is available. One of these directions could be laying off the employees while the inspectors are awaited. Other directions might include attendance at the nurse's or doctor's office or conferring further with the employer's safety officials or experts dealing with the situation. The right to lay off refusing employees for whom no alternate work is available (and subject to seniority rights in the collective agreement), is not unqualified. It cannot be exercised in contravention of section 24. Therefore, employees cannot be laid off in a fashion which amounts to a penalty or discipline. For example, if the employer has normally paid an employee who has been sent home because there is no work due to a power failure, the employer could not (all other things being equal) send home, without pay, an employee refusing to work pursuant to the Act without risking being found in violation of section 24. In those circumstances an otherwise lawful direction could be transformed into a penalty contrary to section 24 if the change of approach was motivated by a desire to punish the refusing employee for using the procedures of the Act.

30. The secondary argument of the complainants is that the direction that they go home interfered with their right to be present for the Ministry inspection and that they were penalized to the extent that they did not participate and were denied the pay they would have received if they had participated. As we have already stated, section 24 is not an "enforcement" provision for the procedures laid down in section 23 or any other section of the Act. Therefore, the only way in which the complainants could succeed on this argument is to argue that the reason why the respondent directed the ref users home was to eliminate their participation in the Ministry investigation. Section 24 provides that a penalty must have been imposed because employees were acting in compliance with the Act. The complainant asked us to find "anti-safety" motivation from the fact that proper procedures laid down in section 23 were not followed.

31. The onus of explaining or proving that a direction to refusing employees, pursuant to section 23(10), is not intended to and does not penalize properly refusing employees is upon the employer by reason of section 24(5). We are satisfied on the evidence that the respondent, in giving the direction dispersing refusers and other employees, was not seeking to punish them for resorting to the Act. Having considered all of the evidence, we are convinced that the respondent shut down the plant because it failed to persuade the refusers that the plant was safe; and without their production lines operating, the respondent felt that there was nothing else to do. We do not find that the direction was motivated by an intention to eliminate the refusers' participation in the Ministry's investigation. The evidence discloses that neither the respondent nor officials of Local 127 were thinking about the Ministry's investigation at 9:30 a.m.. Neither Mr. Warner (who had official responsibility for safety matters insofar as Local 127 was concerned) nor Mr. Arnold (who went to great lengths in his testimony to prove to us he was very conversant with the Act) nor anyone else in Local 127's officialdom raised the fact that if the refusers were sent home, none of them would be present at the investigation. Mr. Warner and Mr. Tindale knew that the inspectors were being called during the meeting in Mr. Vanest's office and they also knew that the respondent intended sending all of the refusers home, without pay, if they could not be persuaded to return to work. Neither thought' to advise the refusers of their right to be at the Ministry investigation. Mr. Warner did not object or take issue with the inspectors' request for three representative employees only. All of this has led us to conclude that all the participants in the event realized that the direction of the respondent was a practical one in the circumstances and not a nefarious scheme to punish the ref users or eliminate them from the Ministry investigation. Even the inspector who has the actual statutory duty to conduct the investigation in the presence of the refusing employees did not request the recall of all 50 refusers.

32. We are satisfied that the respondent sent the refusers home because there was nothing else it could practically do. The refusers were obviously of the belief that the whole plant was unsafe because the safe spot they sought near their work stations was the gatehouse, a distance from and outside the plant building. It is clear Mr. Tindale at least did not think that the ref users' regular pay should continue despite the direction, because he initiated inquiries about the short work week benefits. This is not surprising because, normally, the regular hourly pay of an employee ceases when he/she is sent home. Undoubtedly, Mr. Tindale and Mr. Warner were more concerned about discipline which might be imposed on the refusers - this was indeed the gist of their complaint before us. We have found it unnecessary to decide whether, if the refusers had been present for the investigation, they would be entitled to their regular pay. We have determined the direction not to have been made because the refusers were complying with the Act and, therefore, it is unnecessary to decide whether the direction removed an opportunity for payment that would have been otherwise present during the investigation itself. The facts of this case also do not require us to render a determination of whether refusing employees are entitled to pay throughout the procedures of section 23 and whether failure to pay them is in and of itself a violation of section 24 or whether these moneys must be recovered through other legal processes (for example, the Employment Standards Act, R.S.O. 1980 c.137; see Ingersoll Machine and Tool Company Limited unreported decision of referee M.G. Picher, appointed under section 51 of the Employment Standards Act, dated August 9, 1982 No. 1263)

33. We have concluded that section 24(l) (c) was not breached by the respondent directing the refusers home on December 10th and stopping their regular pay. The respondent has satisfied us that it was a "no work" situation and the directive was merely to avoid paying in circumstances where no work was being performed. There was nothing in the evidence from which to infer or conclude that the direction was intended to penalize the refusers. We are unable to find that Mr. Arnold has any greater claim to payment for the period claimed by the other complainants because he was, by 9:30 a.m., part of the group of refusers, and the direction given to him was the same as given to them in all respects. We cannot leave this segment of the complaint without commenting that the complainants never argued that the manner in which the respondent informed them of their payment for time lost on December 15th (Exhibit 4) constituted intimidation or coercion contrary to section 24(1)(d).

34. To remedy the results of this unlawful conduct, in connection with Mr. Arnold, we order that:

(i) the respondent's Manager of Human Relations and Manager of Manufacturing Operations jointly post the attached Notice on all bulletin boards at the Chatham plant;

(ii) a copy of the Notice be circulated to all managers at the Chatham plant, including first-line supervisors.

35. For the reasons stated in paragraph 17 we hereby dismiss the complaints by Messrs. Warner and Tindale.

DECISION OF BOARD MEMBER S. COOKE;

I concur with this decision, but comment that I do not agree with the narrow interpretation of section 24 as outlined in paragraph 24 of this decision. Section 24 of the Occupational Health and Safety Act makes section 89 of the Labour Relations Act a part of this Act and thereby makes other remedies available than prosecution under section 37.

DECISION OF BOARD MEMBER, LLOYD HEMSWORTH;

1. My reading of the evidence in this case differs from that of my colleagues in two major respects.

2. Firstly, I find it necessary to weigh the evidence to determine whether there were reasonable grounds for the belief that a safety hazard actually existed. Concisely stated, I am not satisfied to ignore, as my colleagues seem to have done, the results of the tests conducted by the professional consulting engineers - technical tests which were conducted before and throughout the period of this incident.

3. Secondly, my evaluation of the evidence of the witnesses necessitates, for reasons listed below, questioning the credibility of the complainant Richard Arnold.

4. My colleagues appear to have accepted as valid the "report" of the Ministry safety inspectors. This "report" is based solely on the uncalibratable readings of the inspectors' corporal olfactory equipment.

5. This so-called "sniff test" resulted in an official order to the respondent to re-flush the drains. This order has been taken to imply that a serious explosive hazard existed and that, therefore, the complainant, Arnold, had grounds for leaving his work place and initiating the costly shutdown of the plant that ensued.

6. I am unable to give any weight to the "sniff test", in the light of the results of the tests conducted by the professional engineers and conveyed, according to the evidence, to the complainant Richard Arnold, to the union officers, and to the bi-partite safety committee, repeatedly, before and during the incident and as early as 0730-0800 hours on the morning of the day of the work disruption, 10th December, 1980.

7. The technical equipment employed by the consulting engineers recorded readings of 1,100 ppm, whereas the minimum reading for an explosive mixture would be, we are advised, in the order of 14,000 ppm.

8. This objective evidence was not recorded by my colleagues in their decision for a reason not clear to me.

9. Needless to say, the professional integrity of this consulting engineering firm ensures that the report of their test results would be the same regardless of who employed them or who paid their fee.

10. I am persuaded on the basis of the evidence that there was no reason to believe that a hazard existed on 10th December and, further, that the complainant had been repeatedly so advised by his supervisors and other responsible management officials.

11. The Occupational Health and Safety Act confers a frightening capability on an individual or group to do damage to our industrial enterprises - the source of our economic wealth and wellbeing.

12. Clearly the Legislature recognized the possibility that some mis-directed people or even well-intentioned people swept up, for example, by the adversary concept of our current collective bargaining system, might be able to use the Act for their own purposes.

13. Because of the danger of such untoward incidents, our Legislature believed it necessary to write a safeguard into the Act. A safeguard designed to discourage abuse or to allow the Act to be used, as one person described it, to "legalize a one-man strike".

14. This safeguard appears in the Act in two subsections. Initially, in section 23(3), a worker may refuse to work only when, the Act states, "he has reason to believe" that the work place is unsafe. (Emphasis mine) Later in section 23(6), the Act is more explicit. To continue to refuse to work, the worker must have "reasonable grounds to believe;.. (emphasis mine). It is not sufficient that he believes the work place is unsafe. He must have reason to believe that it is unsafe.

15. Here, then, is an essential ingredient to the application of the Act. Did the complainant have reason to believe or reasonable grounds to believe that the work place was unsafe?

16. The answer, in my opinion, is "no". The only valid evidence of whether there was, or in this case was not, a hazard lies in the technical tests — available to the complainant and all others interested before and throughout this incident.

17. The requirement imposed by the safety inspectors that the drains be re-flushed cannot be taken as a repudiation of the professional engineers' tests. The inspectors unfortunately were not equipped to determine whether or not the fumes were present in enough of a concentration to constitute a hazard. It may be that they saw their order as a mediation attempt to chart a middle course in the hope that it would solve the affair and get the employees back to work and the plant back into operation. Whatever their reasons, I find they were not equipped to ignore or counter the test results of the consulting engineers.

18. Their "order", if it was a determination that a hazard existed (as it has been interpreted as being) it was nothing less, in my opinion, than a bureaucratic blunder and an abuse of bureaucratic authority.

19. Parenthetically, this is the sort of unnecessary industrial expense we can ill afford if our enterprises are to fulfill their wealth and employment-generating roles, particularly in these difficult times.

20. In making this finding I am not unaware that I am pursuing a moot point not mentioned by the respondent's counsel in his argument. This does not deter me. I am, to the best of my ability, reading the evidence and recording the facts I consider relative to the interpretation and application of the Occupational Health and Safety Act to this situation.

21. Significant, as I see it, is the fact that the respondent's counsel, bearing the burden of proof, rested his case early when the complainant's counsel abstained from any detailed cross-examination of the chief witnesses. A bit of a hiatus arose over the question of the right of complainant's counsel to introduce contrary evidence without prior indication. This resulted in the respondent's counsel subsequently recalling his chief witnesses to confirm and reinforce their earlier testimony.

22. In any event, it seemed clear to me, then as well as later, that respondent's counsel saw no grounds for the complaint. By way of example, the early evidence revealed the respondent's quick action in closing the plant the previous day when there was clear evidence of a fume hazard. There seems no logic in assuming that the respondent would act differently on the following day, if indeed there had been any reason to believe a hazard still existed.

23. I turn now to the credibility of the complainant, Richard Arnold. Most of the relevant statements in Mr. Arnold's testimony were contrary to statements of the respondent's witnesses and some he himself denied in cross-examination.

24. For example:

(1) It only came out in cross-examination that he had been advised as early as 0700 hours that readings indicated the plant was safe. Subsequent evidence reveals that he was told first by his foremen and shortly thereafter by the safety committee carrying out an inspection.

(2) His only response when he was told repeatedly that the test revealed that the plant was safe was: "I'm out here under Bill 70 and not going back until proper authority arrives."

(3) He tried to reflect a threatening attitude and one of intimidation by Coutts and Locke. In the absence of any verbal threats by these people, he injected colourful words into his testimony e.g., "furious, red in face, did not seem too cool", etc. The evidence of the principals and other witnesses contradict these allegations.

In addition, a memorandum written by Arnold shortly after the incident does not record these colourful words. It appears from his testimony they may have been inserted in a later draft which was not available to the Board.

(4) When he stated in the guardhouse that he wished to discuss the matter with one of his committeemen, he was invited to go to the Personnel Department for this purpose. In his evidence he stated that the invitation to go to the Personnel Department was a threat. As it turned out he stopped before entering the office and returned to the yard and no disciplinary action was taken against him nor were any threats issued. At one point he said that the reason he wanted to see his committeeman was because he thought he was about to be fired. When he was asked why, he replied that the visit was not for "tea and crumpets". He went on to say people had been fired for similar acts of "insubordination". In cross-examination he stated, under pressure, that there were no threats made when he was asked to go to the office; there was no talk of any discipline. In answer to these questions, he kept referring to the "red face" and "furious" attitudes. When he was asked if anyone had been fired in similar situations in the last ten years he said "yes". This evidence was subsequently denied. According to the records no one had been fired in this kind of situation.

25. My notes reflect other inconsistencies in Arnold's testimony and I am left with the general impression, growing out of his and other testimony, that here we have an employee imbued with the power of his rights under this relatively new legislation who is most desirous of testing these rights at the first opportunity.

26. I would dismiss the complaint on the grounds that there was no reasonable grounds to believe that a hazard existed.

27. 1 would be remiss if I failed to comment on the remedy proposed by my colleagues. In principle I cannot condone the Ontario Labour Relations Board ordering one of the parties in a collective-bargaining relationship to demean itself by a public declaration of unlawful conduct under an Act such as the Labour Relations Act.

28. The Labour Relations Act in the words of its frequently-misconstrued Preamble is designed "to further harmonious relations between employers and employees...

29. Forcing one of the parties to sign and post in the place of employment a confession of this type can hardly be viewed as contributing to harmonious relationships.

30. If, however, such posting should become a Board policy, then in view of my finding in this case, I would order, as remedy, that Mr. Richard Arnold have the following Notice posted on all bulletin boards at the Chatham plant:

NOTICE

I have posted this Notice in compliance with an Order of the Ontario Labour Relations Board after a hearing in which I and the union and the Company participated. The Ontario Labour Relations Board found that I did not have the right to walk off the job and leave my work place without permission on 10 December, 1980, when I did not have reasonable grounds to believe that my work place was unsafe.

In the future I will exercise my rights under the Occupational Health and Safety Act in accordance with the provisions of that Act.

Signed: Richard Arnold

Appendix

NOTICE TO EMPLOYEES

Posted by Order of the Ontario Labour Relations Board

WE HAVE POSTED THIS NOTICE IN COMPLIANCE WITH AN

ORDER OF THE ONTARIO LABOUR RELATIONS BOARD ISSUED AFTER A HEARING IN WHICH WE AND YOUR UNION PARTICIPATED. THE ONTARIO LABOUR RELATIONS BOARD FOUND THAT WE VIOLATED THE OCCUPATIONAL HEALTH AND SAEFTY ACT BY DIRECTING RICHARD ARNOLD TO RETURN TO HIS WORK ON DECEMBER 10, 1980, WHEN HE WAS EXERCISING HIS RIGHT TO REFUSE TO WORK UNDER SECTION 24(1) OF THE OCCUPATIONAL HELATH AND SAFETY ACT.

THE OCCUPATIONAL HEALTH AND SAEETY ACT PROVIDES:

23.—(3) A WORKER MAY REFUSE TO WORK OR DO PARTICULAR WORK WHERE HE HAS REASON TO BELIEVE THAT,

(A) ANY EQUIPMENT, MACHINE, DEVICE SR 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, ON

(C) ANY EQUIPMENT, MACHINE, DEVICE OR THING HE IS TO USE OR OPERATE OR THE PHYSICAL CONDITION SF THE WORK PLACE SR 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 ON ANOTHER WORKER.

WE WILL NOT DO ANYTHING WHICH INTERFERES WITH YOUR RIGHT UNDER THIS SECTION.

INTERNATIONAL HARVESTER COMPANY OF CANADA LIMITED

PER:

This is an official notice of the Board and must not be removed or defaced.

DATED This 24TH day of JUNE 1983