Stanley Gray v. L. J. Bergie, 1984 CanLII 1065

Stanley Gray v. L. J. Bergie

[1984] OLRB Rep. February 177

1713-82-U Stanley Gray, Complainant, v. L. J. Bergie, Respondent

BEFORE: M. G. Mitchnick, Vice-Chairman, and Board Members I. M. Stamp and S. Cooke.

APPEARANCES: J. K. A. Hayes, D. Bloom and S. Gray for the complainant; H. P. Rolph and L. J. Bergie for the respondent.

DECISION OF THE BOARD; February 2, 1984

1This is a complaint filed under section 89 of the Labour Relations Act, alleging that the respondent has dealt with the complainant in a manner which violates sections 70 and 3 of the Act. The latter two sections provide:

70. No person, trade union or employers' organization shall seek by intimidation or coercion to compel any person to become or refrain from becoming or to continue to be or to cease to be a member of a trade union or of an employers' organization or to refrain from exercising any other rights under this Act or from performing any obligations under this Act.

71. Every person is free to join a trade union of his own choice and to participate in its lawful activities.

The complaint alleges that the respondent sought to unlawfully restrain or discourage the complainant in the carrying out of the complainant's lawful trade union activities under the Labour Relations Act, and more specifically under the provisions of the province's Occupational Health and Safety Act. The complaint seeks relief in the form of a declaration that the Act has been violated, and, secondary to that, a posting by Mr. Bergie, presumably at the work place of the complainant's employer, Westinghouse. It should be noted that the complainant sought to have this complaint heard together with a complaint of unlawful discipline against his employer, Westinghouse Canada Inc., under section 24 of the Occupational Health and Safety Act, but the employer successfully persuaded the Board that that was inappropriate (see Board File No. 1714-82-OH, interim decision, reported [1983] OLRB Rep. Feb. 295). All findings of fact which involve Westinghouse in these proceedings, therefore, were made without the participation of Westinghouse itself.

2The respondent, Lawrence Bergie, was at all material times acting in the capacity of Manager for the Hamilton region of the Industrial Health and Safety Branch, itself being one arm of the Occupational Health and Safety Division of the provincial government's Ministry of Labour. This immediately raises a number of questions concerning immunity and the jurisdiction of this Board, all of which were put forward by the respondent in its initial pleadings. Because the application of these various "defences" turned in large measure on the Board's ultimate findings of fact, however, the respondent's counsel indicated at the outset that he was content to leave these matters for argument at the end of the case. Similarly, the Board considers it appropriate to set out in summary fashion all of the material facts in the case it has heard, prior to ruling on the defences raised by the respondent, so that the parties' arguments and the Board's comments on those defences may be rendered more intelligible to persons not directly connected with the case.

3The complainant, Stanley Gray, has since 1973 been employed as an hourly-paid assembly worker in the Transformer Division of Westinghouse Canada, at its Beach Road plant in Hamilton. He does, however, possess a Bachelor's degree in Economics and Political Science from McGill, and a Bachelor of Philosophy degree from Oxford. He was in fact a full-time lecturer at McGill until 1969, when he was discharged for his involvement in certain "political" incidents. He was charged under the War Measures Act shortly thereafter, and ultimately migrated westward from the Province of Quebec to Hamilton, Ontario. There he spent two years preparing his doctoral thesis until, driven by a desire to eat, as well as his strong beliefs in the goals of the trade union movement, he decided to become, as he put it, "part of the working group".

4Given his philosophy, qualifications, and the dedicated nature of his personality, Mr. Gray quickly rose to the forefront of his Local Union group (being Local 504 of the United Electrical, Radio and Machine Workers of America). In 1975 a colleague was seriously injured at work when an overhead crane fell on him, and that started Mr. Gray on a drive for safer work practices in the plant. His colleagues, to that end, elected him a shop steward, and he went on to become secretary of the Stewards' Council from 1979 to 1982. He was also in 1977 named as a worker representative on the Transformer Division's joint health and safety committee, where he remained throughout the period covered by this complaint. That committee is a bipartisan one constituted under the provisions of the Occupational Health and Safety Act. He also served as Chairman of Local 504's own Health and Safety Committee for the bulk of the same period. He was temporarily laid off during 1978 and 1979, but returned to his position at the Beach Road plant in September 1979. He was elected a delegate to the Hamilton and District Labour Council, and became secretary of that body in 1982. He is also a member of the NDP at the political level, and sits on that party's Labour Advisory Committee on Health and Safety, under the chairmanship of MPP Eli Martel. Mr. Gray in 1980 completed a health and safety training course sponsored by the Ontario Federation of Labour, and since that time has taught courses for both the Ontario Federation of Labout and the Canadian Labour Congress. He also writes columns and articles for various newspapers, and does a good deal of reading on his own. While Local 504 of the UE, as bargaining agent for the three Hamilton plants of Westinghouse, participated in and supported Mr. Gray in the health and safety dealings with the company and the Ministry of Labour which have led to this complaint, the union has chosen not to be a party to the complaint itself.

5The named respondent, Lawrence Bergie, has himself been a Chief• Steward in his days with Local 1005 of the Steelworkers' Union at Stelco, and was a part-time supervisor by the time he left that company. In 1966 he joined the Ministry's Industrial Safety Branch as an inspector, and in 1975 was made Manager of the region which includes Hamilton and its environs. He reports to the Area Administrator who, at the time, was Earl May. The Area Administrator reports to the Director of the Industrial Health and Safety Branch, who in turn reports to an Assistant Deputy Minister of Labour. It should be noted that the Ministry's Occupational Health and Safety Division has as well an Occupational Health Branch, which has its own Director and functions through a reporting line entirely distinct from Mr. Bergie' s, although ultimately to the same Assistant Deputy Minister. The Occupational Health Branch itself has three divisions, and provides expert and technical resource services to the Industrial Health and Safety Branch, including Mr. Bergie and his inspection staff, as well as to the community at large.

6The vast majority of the contact between any health and safety representative on a plant committee and the Ministry is through the Inspectors (of whom Mr. Bergie has eight), and that was true in the present case as well. Where unusual problems develop, however, the Inspectors turn to their Manager, Mr. Bergie, for assistance, and he may become involved directly. Here the evidence leaves no doubt that Mr. Gray had, over a considerable period of time, given both his employer and the Industrial Safety Inspectors of the Ministry as much as they could handle, and the involvement of Mr. Bergie (as well as his own superiors) became increasingly frequent, both at the request of Mr. Gray and the union, and of the members of the inspection staff themselves. The essence of the complaint is that in March of 1982, Mr. Bergie, in the course of a tempestuous history of dealings with Mr. Gray and the joint health and safety committee at Westinghouse, threatened to cause the dissolution of that committee and the replacement of all of its existing members by new members. In addition, Mr. Bergie is alleged, in October 1982, to have threatened Mr. Gray with "big trouble" if he had intentions of taking joint committee material to the NDP. The argument is that in both instances Mr. Bergie was acting to protect either the employer, or the Ministry, or both, from being harassed and embarrassed, and to intimidate Mr. Gray into ceasing to pursue his lawful rights. The case then, all parties agreed, was solely one of motivation.

7As with most unfair labour practice cases coming before the Board, the complainant sought to make out his case of motivation on the basis of indirect evidence. That evidence in this case was comprised of the whole history of dealings between Mr. Gray and the union on one hand, and Mr. Bergie and other Ministry staff on the other, on some of the more major health and safety concerns being pressed for resolution in the Westinghouse plant. The theory of the complainant's case is that Mr. Bergie was so consistently lax and ineffectual in responding to the complainant's concerns that he must have been acting in bad faith toward the complainant, and was engaged in a deliberate course of "cover-up" for the health and safety failings of the employer. This bad faith, the complainant argues, must be seen to have underlain the specific threats which are the subject matter of this complaint.

8There is no simple way to set out the facts of this case. Indeed, it is a tribute to the three counsel involved in the case that the evidence was as intelligible as it was. The case consumed many days of hearings, but more importantly, encompassed a number of separate health and safety issues which overlapped both in time generally and at specific meetings involving Westinghouse and the Ministry's staff. The only way to approach coherency on the facts is to set them out as the Board has found them on the basis of the individual concerns raised by Mr. Gray and the other worker representatives.

9One final area of comment before doing so, however, is the matter of credibility, particularly with respect to the more critical exchanges between Mr. Gray and Mr. Bergie. Given the quality of other testimony on some points, and the absence of other testimony on others, the Board is of the view that its findings of fact with regard to these exchanges comes down to weighing the evidence of Mr. Gray and Mr. Bergie themselves. Apart from the normal problem of interested witnesses both perceiving and recounting incidents in a less than neutral way, the Board does not find either of the two main protagonists to have been attempting to fabricate evidence before it. Rather, the question is one of recollection. Mr. Gray not only had his interest confined to incidents at the Westinghouse Transformer Division, but also carried on a practice, in the very face of persons he was arguing with, of taking copious notes of all conversations, some of which he did transcribe and elaborate upon the next day, and others of which remain in their original form. Mr. Bergie, on the other hand, had many health and safety situations to deal with besides Westinghouse, and appeared to be too readily helped by suggestions put to him or the inferences of documents to have a good recollection of his own. One striking example of this was his ready response to counsel for the complainant with respect to the content of a July 12, 1982 memorandum, that recollection, as will be discussed, being at odds with the rest of the evidence and Mr. Bergie's own ultimate recollection. As a general rule, therefore, the Board has preferred the evidence of Mr. Gray over Mr. Bergie where a choice had to be made.

10One of the early confrontation points arising between the complainant and the Industrial Health and Safety Branch was a serious explosion in the plant on November 29, 1979, which left a young co-worker, Terry Ryan, blind and otherwise permanently damaged. As was quickly ascertained, the explosion was caused by a highly flammable solvent, Toluol, somehow coming to be mixed into a 45-gallon drum of Cromac, a detergent used in cleaning transformers. Mr. Bergie attended at the plant on the day of the explosion with Mr. Gordon, one of his inspectors, and, with Mr. Gray and management, carried out a two-and-a-half-hour investigation, essentially trying to determine how the Toluol, which has special regulations for its storage and use, came to be in the drum. No evidence in that regard was available, however, and Mr. Bergie indicates that he and Mr. Gordon then looked for any violation of the Act they could find. At the back of an adjacent room they found a 45-gallon drum being used to store Toluol. Everyone agreed that Toluol, because of its physical properties, could not be confused with Cromac, but the Regulations under the Occupational Health and Safety Act require that no more than one day's usage be kept near other areas, because of Toluol' s volatility. Mr. Bergie accordingly ordered that the excess Toluol be removed. Mr. Gray also pointed out some squirt bottles of Toluol being present in the department, and Mr. Bergie orally directed that those be removed as well. Mr. Bergie could not, however, establish a connection between the improper storage of Toluol and its ultimate presence in the Cromac drum, and did not recommend that a prosecution be launched against Westinghouse. Mr. Gray in his testimony stated that he advised Mr. Bergie of indications he had had from employees of the use of Toluol to spray-clean transformers (a particularly hazardous practice in light of Toluol's volatility), but that Mr. Bergie "wasn’t interested" and "ignored" him. Mr. Bergie denies that was his attitude. He says he asked Mr. Gray to take him to the places where this had happened, and that Mr. Gray responded that he could not, that he only had rumours at that point. Mr. Bergie then responded that they would have to find proof. Mr. Bergie's testimony is borne out by the ultimate report of the accident issued by Mr. Gray, which reads, in connection with this practice of spray-cleaning:

At the time I had no concrete evidence and it remained only speculation on my part. Mr. Bergie expressed interest in the possibility but said that one would have to have some proof of the practice ...

Mr. Bergie sent Mr. Gordon back into the plant the next day to take statements from Mr. Gray and others, and again on December 19, 1979. As indicated, Mr. Bergie did not find in Mr. Gordon's report sufficient causal connection between the presence and explosion of the Toluol in Mr. Ryan's drum and any practice authorized by Westinghouse to, in his opinion, build a prosecution on.

11Mr. Gray, however, indicated to Mr. Gordon and to Mr. Bergie himself that he was not satisfied, and that he would be continuing with his own investigation. In a preliminary statement issued in December, after talking to additional employees, he again focussed upon what he considered the careless handling and use of Toluol in the plant generally, but with respect to the accident, said:

However, I do not know if any of the above problems were related to the specific accident to Terry and that is because we do not know at the moment why Toluol was in that particular drum. I am not aware of any evidence indicating how and why Toluol ended up in that drum that day.

Mr. Gray then continued to conduct his own investigation, and at the same time was openly critical of the way in which the Ministry had conducted theirs. At a meeting at the Ministry's Hamilton offices on another matter in February of 1980, this tension between Mr. Gray and the Ministry began to surface. Both Mr. Bergie and his superior, Mr. May, were present, and Mr. Gray and Mr. Bergie exchanged some heated words over the adequacy of the Ministry's investigation. Mr. Bergie concluded by saying that it had been decided that in future, Mr. Gray could conduct his own investigations and the Ministry would conduct theirs, and that they would call upon Mr. Gray for his input.

12It was not until July of 1980 that Mr. Gray completed his 40-page report on the Ryan accident and made it public. But still no specific answer was put forward on the direct question of causation, with respect to the drum which exploded and injured Terry Ryan. As Mr. Gray put it:

Supervision in Dept. 951 and other departments state that they did not instruct any worker to use that equipment in the intervening days. No witnesses have come forth to state any awareness of Toluol being placed in that drum before the accident. Terry clearly states he did not fill the barrel and he was unaware of Toluol ever being used in there to clean with.

This is the mystery of the accident: Toluol was not supposed to be used in the drum in question; no one saw it being placed there, yet sufficient Toluol was in there to cause a major explosion.

Much of the report is then devoted to following up the earlier suggestions of regular use of Toluol in spray-cleaning, and general lack of regard for its hazards in the company's use and training. This, the report argues, made the occurrence of an accident all the more likely; but it did not establish an actual connection. The report also notes the number of alleged unsafe work practices that the company has rectified since the accident, including the elimination of Toluol itself from that particular area of the Division. In a capsule comment, Mr. Gray's report states:

Most of the above changes came about in the weeks immediately following the accident, and resulted from a management re-examination, and also from contributions by the workers in the area, myself and the Ministry of Labour safety officers.

Finally, before moving on, it should be noted that Mr. Gray in his testimony appeared to be suggesting bad faith on Mr. Bergie's part in simply ordering that the Toluol-filled squirt bottles be removed from the "scene of the crime", rather than trying to follow them up as a link to company culpability. Neither the report of Mr. Gray in December nor in July portray the squirt bottles as a serious "lead" in the case, however, and the Board would be hard-pressed to conclude that Mr. Bergie was doing anything more than again issuing remedial directions for any unsafe practices that he observed.

13Prior to the release of the July report, Mr. Bergie had received a number of telephone calls from members of Terry Ryan's family, entreating the Ministry to take further action against Westinghouse. This was followed up by a telephone inquiry from the Ombudsman's office. Mr. Bergie then discussed the matter with Mr. May, and it was decided that a package would be put together, on the accident and submitted to the Legal Branch, so that that Branch could decide whether sufficient evidence existed to launch a prosecution. Mr. Bergie testified that this package was delivered to the Legal Branch well in advance of Mr. Gray's report issuing (and being featured in the Press). Four weeks after Mr. Gray's report issued, the Legal Branch decided in favour of a prosecution, and an information was prepared for Mr. Bergie to swear. As Mr. Gray pointed out (to the Press and the NDP) however, that information contained a number of inaccuracies, and Mr. Gray was able to persuade the Ministry solicitor handling the matter to amend the information. Mr. Gray was consulted on any additional input that he had, and the matter proceeded to trial. After several days of hearing, however, an arrangement was apparently worked out whereby Westinghouse would plead guilty to the improper storage and the presence of squirt bottles, in return for a demand for a lighter sentence ($5,000, as it turned out). Mr. Bergie was not consulted on this arrangement, nor was the union. The arrangement was, in fact, vilified by Mr. Gray and the union in the Press. But the criminal proceedings had come to an end.

14The Ryan family, meanwhile, had launched civil proceedings against the company. In connection with that, Mr. Gray attended at the Ministry offices in Hamilton to request copies of Inspection Reports issued at Westinghouse while Mr. Gray was on lay-off and therefore not a member of the joint health and safety committee. Mr. Bergie knew that Mr. Gray wanted the reports for the civil proceedings and denied Mr. Gray's request, explaining that there was no authority under the Occupational Health and Safety Act for issuing a report on a company to anyone who was not a member of the committee. Mr. Bergie suggested that Mr. Gray approach Mr. May if he were unhappy, but it does not appear that Mr. Gray ever did so.

15Another issue arising early was the use of "stop-blocks" on crane tracks to protect men while repairing one crane from being struck by another. The worker representatives had raised this concern even prior to 1980, but it became more of an issue in March of 1980, when two crane repairmen narrowly escaped injury from a second crane. The union's concern is noted in the report of the Inspector, Mr. Forrester, at the time, as is the company's assurance that it would henceforth enforce its safety procedures (in accordance with the company manual). Whatever that meant, it is apparent from the evidence that the company did not adopt a practice either of employing stop-blocks or of locking out the other cranes during crane repairs, and the hazards, from the union's point of view, continued. Around May of 1980 it became known to the union that Stelco had been ordered by the Ministry to either use stop-blocks or lock out the other cranes. The union approached the company with this information, and suggested the order demonstrated that that was now Ministry policy, but the company made no reply. The Stelco decision was subsequently raised by the union with Mr. May and Mr. Bergie in the course of a meeting at the Ministry offices, but, according to Mn Gray, Mr. Bergie's response amounted to little more than scolding the union for not communicating better with the company.

16After another near miss in October of 1981, Mr. Gray again raised the stop-block issue on an inspection by a new Inspector, Mr. Baiger. After discussing the Stelco precedent with both parties, Mr. Baiger said to Mr. Gray: "Don't worry, it's Ministry policy, and I'll write it up in a way in which the company will have to comply". In his report Mr. Baiger then commented that everyone, had agreed that stop-blocks would be used. Mr. Gray submitted to Mr. Bergie an extensive critique of Mr. Baiger's report (as he had done previously with Mr. Forrester) noting what he felt were omissions and mis-statements in the report, and, on stop-blocks, the fact that no agreement had been forthcoming from the company to use them. Mr. Bergie discussed Mr. Gray's critique with Mr. Baiger, and apparently was satisfied that Mr. Baiger had the situation in hand. When the union tried to get the company to install the stop-blocks, however, the company stated flatly that they had never agreed to do so.

17In January of 1982 Mr. Gray was attending the safety prosecution of NASCO in Hamilton, and encountered Mr. Bergie walking out of the hearing-room. Mr. Gray raised the Stelco decision again and, according to Mr. Gray and Mr. Skinner, another witness called by the complainant, Mr. Bergie responded that Stelco had already had the beams installed for the blocks, and it wouldn't cost them anything. He asked Mr. Gray if he really needed them, in view of the difficulty in carrying them up to the crane, and the expense and interference with operations, and Mr. Skinner responded that they could now be remote-controlled. Mr. Bergie recalls virtually nothing of this conversation, but acknowledges he was abrupt with Mr. Gray that day, having just watched his witness fumble the ball on the witness stand. Mr. Skinner says that Mr. Bergie also indicated he was displeased over some of Mr. Gray's comments to the media, but that the overall atmosphere in the discussion was friendly.

18On March 16, 1982, another Inspector, Mr. Gordon, attended at the plant for a quarterly inspection, and Mr. Gray again put forward his concerns that no order for stop-blocks had yet been issued, and that the company was refusing to use them. Mr. Gordon thereupon advised the company that that was Ministry policy, and they would have to comply. The company representative responded by raising the cost and the disruption to their existing operation. Mr. Gordon then turned back to Mr. Gray and said: "Well, if I see the work being done without precautions, I'll deal with it then". Mr. Gray responded by pulling a copy of the Stelco decision out of his briefcase, at which point Mr. Gordon became furious, saying: "I knew you had it — you set me up". He then ordered the company to comply with the Stelco decision.

19The year 1982 also witnessed a heated controversy over two simultaneous concerns in the company's "fab" shop. Once again, the raising of these concerns initially by the union pre-dated 1982. The first concern was over the kind of fumes and particulate being thrown off by the company's arc-welding process. Complaints of irritation to the eyes, nose and throat became more pronounced after the company in early January of 1982 installed cladding on the outside walls of the building for better insulation. This, according to the union, aggravated what was already a situation of inadequate ventilation. A great deal of evidence was heard on this matter, but in summary form, it can be said that what the union felt was required were general engineering controls to improve the ventilation in the whole shop (thereby controlling paint fumes and lead particulate as well). In response to a written complaint from the union, Mr. Bergie requested the Ministry's Occupational Hygiene Service, through the Hamilton supervisor, Stephen Kwok, to go into the plant and carry out air-sampling tests. The Occupational Hygiene Service is one arm of the Occupational Health Branch, the technical resource service referred to earlier. Mr. Kwok performed the immediate tests he felt were available to him, and as well ordered long-term testing to be carried out as soon as possible. Before that could be done, a work refusal occurred over paint fumes on the paint-line, and Mr. Kwok recommended that respirators be worn until the long-term test results were in. Another work refusal took place on February 3, this time by the crane operator complaining of the welding fumes, but Mr. Kwok sought to demonstrate to him that the fumes only appeared worse because the company had gone from white to orange lighting. When the long-term results were in, Mr. Kwok was concerned over the high readings of welding particulate at two of the work stations tested, and issued an order for personal protective equipment to be worn at those two stations, pending the opportunity to provide more adequate ventilation generally. The order reads, however, as if its full application is confined to those two stations, and the union was not satisfied. The company was not satisfied either, as they did not feel the samplings justified any order.

20Mr. Kwok also chose to ignore a high reading for oxides of nitrogen in the lab report. His explanation was that he performed his standard test for carbon monoxide, and that showed the welding atmosphere to be generally good. He added that no nitrogen dioxide was found, and that readings for nitrous oxide would appear higher than actual because of interference by oxidants with the test method he had used. Mr. Gray countered, both then and before the Board, with authoritative evidence that carbon monoxide is never a by-product of arc-type welding, that the oxides of nitrogen reading displayed a serious health hazard, that a better method of testing existed, and that ozone (a harmful oxide) should have been tested for as well. The controversy once again erupted publicly, culminating with a meeting with Mr. Bergie and Mr. May on March 30, 1982. Mr. Kwok reiterated that in his own experience, carbon monoxide is a good general indicator of the state of the welding atmosphere, and also that in his experience ozone is rarely produced under these circumstances. He said he was not aware of the new testing method that Mr. Gray referred to, and had used the method directed by Head Office. He stated in evidence that so much new material comes in all the time that he is usually limited to trying to keep up with developments on "major" issues in the work place. It should be noted that Mr. Kwok is an engineer and an experienced hygienist, having worked in that capacity in industry for five years, and then for the Ministry for another five years, and is one of only 40 certified industrial hygienists in Canada. The participation of Mr. May and Mr. Bergie at this meeting was generally limited to indicating their support for Mr. Kwok, and Mr. Bergie repeated Mr. Kwok's position that the presence of carbon monoxide in welding would depend on the kind of metal and oxides use~l. Mr. Kwok confirmed in his evidence that the staff of the Industrial Health and Safety Branch would not have the expertise to interpret the results of the Occupational Hygiene Service reports, and that their role is limited to setting up the appointments, and accompanying the hygienists on their visits. At the March 30 meeting itself, Mr. Gray and the union were not satisfied with Mr. Kwok's explanations and continued to challenge the Ministry's motives. Mr. May finally threw up his hands in despair, saying to the union: "You don't trust us — we can't deal objectively with you anymore. I'm putting this over to McNair and Basken" (the Branch apparently has a team of "troubleshooters" who attempt to mediate in particularly difficult situations). With respect to the matters in dispute, Mr. May undertook to have further tests conducted. These tests were not to the satisfaction of Mr. Gray and the union, however, and the criticism in the Press continued, particularly over the focus on specific rather than general areas of sampling, and the fact that the follow-up testing occurred in the Spring, when all of the doors and windows in the shop were open. By January of 1983, full engineering controls were put into effect by Westinghouse itself, providing general ventilation for all of the Fab Shop areas, and ending the dispute.

21One of the offshoots of the controversy over interpreting the welding fume Assessment Report was a dialogue over the use by the union of outside doctors. Mr. Gray himself was concerned about Mr. Kwok's conclusions, particularly in light of the symptoms of the crane operator who refused to work in February, and he and another worker representative, Bill Moore, took the Report to the doctors at the Barton Street Occupational Health Workers Clinic, sponsored by the United Steelworkers of America. The doctors there were extremely troubled by what Mr. Gray presented to them, and their opinion was used by Mr. Gray and Mr. Moore to challenge the conclusions of Mr. Kwok. A number of discussions took place on this point but, reviewing all of the evidence, the Board finds Mr. Bergie in essence to have told Mr. Gray and Mr. Moore that the Ministry had "the best experts and the best equipment in the country", and that they ought not to be challenging those experts. And if they were going to go outside, they ought to go to people who knew what they were talking about, not those "cock-and-bull doctors on Barton Street". Mr. Bergie specifically challenged the assertion by Mr. Gray that the doctors at the Clinic were certain that the crane operator's symptoms were caused by a hazard at work. Mr. Bergie pointed out that the doctors at the Clinic were only able to see the man himself, without knowing what exactly he had been exposed to.

22The related problem in early 1982 in the fab shop had to do with fumes from the spray-paint line, and particularly the Threshold Limit Value (i.e., the safe exposure limit) for a solvent called Solvesso 100. Mr. Kwok had used a TLV of 575, which was the accepted (i.e., A.C.G.I.H.) standard for stoddard solvents. Mr. Kwok explained that Solvesso 100 was a brand name, and that no precise TLV had been established for it. He therefore tried to determine the appropriate parallel based on discussions he had had with the Westinghouse chemist, and an analysis of the data sheets supplied. It was the figure for stoddard solvents that he settled upon, and this was confirmed by the research group at head office.

23Unknown to Mr. Kwok, however, a data sheet from the Solvesso manufacturer itself, recommending a TLV of 275 for the product, had been issued. Mr. Kwok did not have a copy of that sheet. But Mr. Gray did, and at the March 30, 1982 meeting, after Mr. Kwok completed his explanation of the 575 figure, Mr. Gray, in his own words, "pounced on him". Mr. Kwok indicated that that sheet had never come to his attention, and that it was not Ministry policy to use manufacturers' recommendations in any event, as they would not be enforceable against the employer. Once again Mr. Gray and the union took their story to the media and the NDP, and Solvesso became an issue in the Legislature. At a meeting on September 8, 1982, Mr. Kwok's superior, Mr. Rajhans, gave an undertaking to the union to retest, with special emphasis, as they requested, on exposure time values. Mr. Kwok and a member of the Occupational Health Branch's medical staff consequently re-attended on September 23, and re-tested the area of the paint line. When the Report was issued, however, the TLV for Solvesso was once again shown as 575. Mr. Kwok explained in evidence that it was still Ministry policy to use the A.C.G.I.H. figure, but that he had kept the lower figure in his mind when issuing his Report and recommendations. Mr. Kwok's original report of May 1982, in which no orders were recommended to be issued, eventually reached the Director of the Industrial Health and Safety Branch, Mr. Melinyshyn, on appeal in December. Mr. Melinyshyn dismissed the appeal on the basis that no order had been justified at the time on the TLV then considered to be acceptable. His decision notes, however, that the Ministry adopted the figure of 275 for Solvesso 100 as of November of that year.

24Another concern had to do with the possibility of toxic effects on workers who are required from time to time to work on transformer cores inside the tank while the tank is still hot. Mr. Gray had no information as to what kinds of fumes, and at what levels, workers were being thus exposed to, but he was made aware of occasional complaints of sore eyes and throats, and dizziness. He first attempted to get information from the company on the oil and related substances in use in the tanks through Mr. Forrester on an inspection in January of 1980. Mr. Forrester was told by the company that a report was in the process of being prepared. A critique of Mr. Forrester' s inspection report by Mr. Gray subsequently went to both Mr. Bergie and Mr. May, and was discussed at a meeting the next month. The company stated that it was meeting shortly to decide on "prompt" release of the information. In April Mr. Gray gave Mr. Forrester a written list of the items upon which he was waiting for company information, and "hot oil fumes" was included. With no company response forthcoming, Mr. Gray again raised the matter with Mr. Gordon in September. The company advised Mr. Gordon that it was in the process of purchasing new testing equipment which gave immediate results, and that it had been cooling and testing the tanks before entry, but not keeping a permanent record of the results. The regulations for "confined spaces" require a permanent record, and Mr. Gordon issued an order to correct that. The company also stated that it was developing its own list of priorities for the release of information, and Mr. Gordon reminded them of their obligations under the Occupational Health and Safety Act to provide information to the committee. At a meeting in October of 1980 Mr. Bergie was presented with a list of demands to the company by Mr. Gray, and Mr. Bergie said to Mr. Gray that if he presented a more reasonable list of demands, he might get somewhere. In November the company finally produced a fact sheet on the tanks which, under "Health", said only: "Do not breathe oil mists". Mr. Gray said that that was exactly what he had been concerned about, and continued to press for more specific information.

25When Mr. Gordon returned for an inspection in January 1981, Mr. Gray reviewed the history of the matter and accused the company of lying and stalling. Mr. Gordon appeared exasperated with the company and said the Ministry would get the information itself. Mr. Gordon phoned Mr. Bergie on the spot to put in the request, and then proceeded to take a sample of the oil in the tank. Mr. Gray testified, however, that no further information was received from the Ministry.

26In March of 1981, a worker passed out after being inside one of the tanks when hot. Mr. Gray carried on extensive discussions with the company and with the Canadian Centre for Occupational Health, but not with the Ministry. When Mr. Gordon arrived for an inspection in April, Mr. Gray had enough information to show him that the company had been failing to disclose information that was already available. Mr. Gray says that Mr. Gordon then blew up at the company, and began to lecture them on the "internal responsibility system", discussed infra. The inspection report itself, however, Mr. Gray points out, criticizes the union for not accepting the company's information. There is no evidence of Mr. Gray following this up with Mr. Bergie.

27Mr. Gray then began to press more forcefully for representative air samplings to determine the levels of exposure at the various stages of working with the tanks. He discussed this with Mr. Baiger during the several days of his inspection in October 1981, but Mr. Baiger, according to Mr. Gray, missed the point. When a work refusal later in the month brought Mr. Gordon and other Ministry personnel in, Mr. Gray pointed out that the Ministry tests taken at Mr. Baiger's request were useless because they were taken with the core cold, and outside the tank. The concern Mr. Gray had was the hazard a worker would be exposed to working with the core inside the tank, when the transformer core was hot. Mr. Gray put this in his critique of the Baiger report that he sent to Mr. Bergie in December, but, as noted earlier, received no formal reply. On January 5, 1982, however, a contract consultant with the Ministry was assigned to go to Westinghouse and ascertain Mr. Gray's concerns. The consultant spent several hours with Mr. Gray going over these concerns, and then, according to Mr. Gray, still got them wrong in his report. Mr. Gordon was also present for the discussion and indicated that he wanted the new tests taken when Mr. Gray was on shift. The tests were carried out at the end of January, during an afternoon when Mr. Gray was not on shift. The core was tested cold, and outside the tank.

28As mentioned, Mr. Gray encountered Mr. Bergie at the NASCO trial on January 27, 1982. This was immediately after the Ministry tests just referred to, and Mr. Gray said: "What the hell are you guys doing — you're still testing empty tanks". Mr. Bergie replied that he was not aware of that, and that he would get it straightened out.

29Nothing happened immediately, however, and in March the union went over Mr. Bergie's head on this and the stop-block problem, arranging a meeting with Mr. J. McNair, who was at that point the Director. Mr. McNair became angry with Mr. Gray, however, and left the meeting. The next day Mr. Bergie was sent in to discuss Mr. Gray's concerns. Mr. Gordon was also present and tabled the Ministry's January oil fumes Report. Mr. Gray said: "Of course it doesn't show a problem — you took the wrong test". Mr. Gray once again stated his concern, and Mr. Bergie responded that the Ministry was being asked to test inside tanks that no one goes into. No resolution was reached at that meeting.

30The union then wrote to Mr. May to set up another meeting, and that took place on March 30th. Both Mr. May and Mr. Bergie were there, along with Mr. Kwok, whose staff had conducted the earlier tests now in dispute. Mr. May insisted that the tests had been conducted on hot tanks, so all parties went over the Report together. The Reports disclosed that no hot tanks were tested. Mr. Metangha, the technician who conducted the tests on Mr. Kwok's instructions, was then called into the meeting and asked why no tests were conducted inside the tanks. Mr. Metangha stated that no one had been working inside a tank when the test group arrived, and that no one in his group had the training to enter the hot tanks themselves. And he said they were unable to find an employee who would take their sampler in for them. Mr. Kwok, who had been the Ministry spokesman on this issue, then dismissed Mr. Metangha from the meeting. He explained to the Board that responsibility for the testing had been his, and that he had fully understood the union's request, but that it was his belief that the company did not let anyone enter the tank while it was hot. He testified that he did not know where he got that information from, but that it was "in his mind". Mr. Bergie, in any event, took over the discussion by indicating that the tanks were "confined spaces", and that no employee should be entering a tank without it being tested and certified, as the Regulations required. Mr. Gray stated that that was an unreasonable demand on the company, since the equipment could not give results that quickly, and that it made more sense to take representative samples and see what the exposure was. But the other union representatives present cut Mr. Gray off, and said Mr. Bergie should be taken at his word. The discussion ended on that note.

31The company did not test tanks before each entry, and in September of 1982, Mr. Gray made an issue of it again on an inspection with Mr. Gordon. Mr. Gray referred to what Mr. Bergie had said, and everyone said that that was impossible. Mr. Gordon agreed to issue a new order as a result, and the company adopted a procedure of certifying tanks safe before entry. Mr. Gray says the problem with tanks has not recurred since.

32The final problem dealt with in these proceedings was the question of lead control. Lead was the first substance to be regulated under the "designated substance" provisions of the 1978 Occupational Health and Safety Act, and the Branch was in the process during the period covered by this complaint of developing its own guidelines for dealing with it. No worker had yet been identified with high lead levels in the blood, but Mr. Gray was concerned that the company had yet to carry out a "lead assessment" on its exposure levels, as required by the Regulations. He first raised the concern with the Ministry in March of 1982, on an inspection visit by Mr. Gordon. Mr. Gordon issued an order in standard form, simply quoting that portion of the Regulations which require the company to carry out its "lead assessment", in consultation with the joint committee. The company in April carried out air samplings for lead on the paint line, and its Report was released to the committee at the end of June. The results showed levels three times the acceptable limits, but the company said that the situation was adequately controlled by the use of respirators. Mr. Krouse, the union's business agent, telephoned Mr. Bergie at about this time, and indicated to him that the union wanted a meeting with the Director. He did not provide Mr. Bergie with very much detail on the subject of his concern, as the union had been frustrated in the past at their inability to reach the Director personally with their concerns. The major point in the discussion was the Ministry's air-sampling assessment report on the welding fumes, discussed earlier, but the complainant insists that the lead concern would have been mentioned also. Mr. Bergie's memorandum of the telephone call does reflect an element of confusion, and it may be that Mr. Krouse himself, whom Mr. Gray admits had to be briefed for the call by Mr. Gray, was not as clear as he might have been (Mr. Krouse was ill and did not testify). In any event, the Board is satisfied that Mr. Bergie and the Ministry did not become aware of the company's lead readings until Mr. Gray raised them himself with Mr. Gordon on August 25th. A meeting was then arranged in short order by the Ministry, and took place on September 8th. That meeting was attended by Mr. May, Mr. Bergie and Mr. Rajhans, Chief of the Occupational Health Branch's Occupational Hygiene Service. It was Mr. Rajhans doing the talking, as the parties discussed lead and Solves so 100 (which was still an issue as of that date). The meeting concluded with Mr. Rajhans undertaking to have his staff come in and test on both lead and Solvesso 100, with special attention to short-term exposure limits.

33Before that occurred, however, the company released a second set of paint-line results, taken in August with a different colour paint in use, and these results showed readings six times the acceptable limit for lead. Mr. Gordon arrived for another quarterly inspection at about this time, and was promptly directed by Mr. Gray to the latest test results. As a result, Mr. Gordon's Report of September 15, 1982 included an order for submitting a lead assessment and some form of lead-control program, with a deadline of October 6 set for compliance. On September 23rd, Mr. Gordon came to the plant with Mr. Kwok to carry out the testing that Mr. Rajhans had promised, including lead. Mr. Gray objected, saying that the company tests themselves left no doubt that a full order for lead-control was required, and should be issued without waiting for the Ministry now to take its own tests. Mr. Gordon refused to issue the order, however, and Mr. Gray once again took his case to the public, delivering a brief to the NDP Task Force on Occupational Health (which began to look at the Westinghouse situation as a test case for the new lead-control regulations), and appearing on radio and television with Eli Martel. Mr. Martel, at the same time, took the issue to the floor of the Legislature, and kept it there. The company had forwarded to Mr. Bergie on October 1st a draft assessment letter, and Mr. Bergie, who indicated it was the first of its kind that the Branch had had to deal with, passed it on to the Occupational Health Branch to determine its adequacy. Mr. Gray publicly criticized Mr. Bergie, however, for even accepting the letter, which he viewed as inadequate. As well, the paint that was in use the day that Mr. Kwok had come in to do the Ministry's tests had the lowest lead content in the plant. Mr. Kwok testified that the arrangement made with the company by Mr. Rajhans at the September 8th meeting was for the Ministry to be called in the next time the spray paint line was being run, and Mr. Kwok simply responded to the company's call. The Report of the samplings which Mr. Kwok took, released in October, showed all readings below the acceptable level, in contrast to both findings which the company had previously announced.

34Mr. Gray was seeking to document for the NDP his charge of the lowest level of lead paint having been tested, and apparently went to the stockroom one day while at work to examine the paint can labels. The company took the position that this was improperly done during work-time and, in light of earlier warnings, issued Mr. Gray a suspension. Mr. Martel elected to make this as well an issue in the House, and the Minister of Labour undertook to inquire into it. Immediately thereafter, Mr. Bergie found himself convening a meeting at Westinghouse to discuss the basis of Mr. Gray's discipline. Mr. Gray, who had already initiated proceedings through the proper channels provided under the Occupational Health and Safety Act, did not take kindly to Mr. Bergie's questions, and the meeting turned quite hostile. Mr. Gray did, however, concede that he was seeking the information off the paint labels for the use of both his committee and the NDP. Later in the meeting, the discussion turned to other unrelated information which Mr. Gray had been pursuing the company to turn over to the committee, and Mr. Bergie said: "You'd better not be giving that to the NDP, or there'll be big trouble". Mr. Gray vigorously defended his right to do so, and this "threat" by Mr. Bergie forms one of the two bases of complaint underlying these proceedings.

35The combined controversy over lead and Solves so 100 led to a request from the top levels of the Ministry to the Assistant Deputy Minister responsible for the Occupational Health and Safety Division, Dr. Anne Robinson, to inquire into and submit a report on the activities of the Ministry and of Westinghouse in connection with both lead and Solvesso 100. Her Report issued in November of 1982, and essentially found no fault in the handling of either concern. On lead, in fact, the doctor stated that Westinghouse had in fact "gone beyond" what was required by the regulations in the way of consultation with the joint committee. Mr. Gray quickly branded the Report a "whitewash". The political activity continued and Mr. Gray wrote to Mr. Bergie, as Mr. Bergie suggested, outlining in detail his points of appeal against the company's lead assessment of October 1st. Mr. Bergie upheld Mr. Gray's appeal on all points in early January. And then, after a meeting with Mr. Gray and the full union leadership, the Minister of Labour, and top Ministry staff on January 10, 1983, Westinghouse put into effect a full lead-control program and ceased altogether the use of lead-based paints in its spraying operation.

36Mr. Gray alleges, incidentally, that Mr. Bergie allowed the company to renege on an arrangement he says was worked out with the company in 1980 on one aspect of the internal responsibility system", and that was the calling in of health and safety representatives from off-shift, if necessary, in order that they be able to accompany the Inspector anytime he arrived for an inspection. Mr. Gray says he complained to Mr. Bergie about the company's refusal to do this in the latter stages of 1981, and Mr. Bergie said that the company did not have to call someone in from off-shift, and that the company was perhaps unwilling to pay their safety representatives overtime. Mr. Bergie suggested that substitutes on other shifts be designated to allow for such occurrences. Reviewing all of the evidence, it is clear that an arrangement was worked out with the company, in October of 1980, with the help of Mr. Forrester, for one health and safety representative to be designated for each of the three areas of the Division, and that the appropriate representative would then accompany the Inspector on that portion of his tour. This was worked out to overcome an impasse between the company and the union as to who was entitled to choose which of the various worker representatives was to accompany the Inspector. While Mr. Gray may have subsequently viewed the calling of safety representatives in from off-shift as a logical extension of this arrangement, that does in fact raise a different issue, and not one that appears on the documentation to have been addressed by Mr. Forrester at the time. Mr. Bergie's position, we note, is consistent with that taken by Mr. May on March 30, 1982, and with the written opinion from the Legal Branch of the Ministry which the evidence indicates was being circulated internally at that time.

37That completes the canvassing of those concerns of Mr. Gray highlighted in these proceedings. It is necessary to again backtrack in time to deal with the events of March 17 and 19, 1982, which form the core of these proceedings. Mr. Gray had long been accusing the company of bad faith in attempting to mislead and conceal information from the joint health and safety committee, and by early 1982, allegations of collusion on the part of Ministry staff were being voiced by him as well. The joint committee meeting of February 25, 1982, was a particularly antagonistic one, with Mr. Gray reiterating a long list of demands unfulfilled by the company, and charging both the company and the Ministry with bad faith. All of these comments were reproduced in the committee's Minutes of that meeting. It is part of the process of inspection for the Inspector to review the Minutes of monthly joint committee meetings, and when Mr. Gordon did so in March, he was extremely upset. Mr. Gordon went to Mr. May, and Mr. May told Mr. Bergie to go in and "tell them what the internal responsibility system was all about", and that if they had any complaints about the Ministry, they should direct those complaints to the supervisors of the people in question. Mr. Bergie did that the next day, at a meeting of the joint health and safety committee. Mr. Gray was absent at the time, but Mr. Bergie reiterated his comments to Mr. Gray and the committee two days later. We find Mr. Bergie to have essentially berated the committee for its confrontational style, and to have said that the committee was not functioning in any way like it should. Mr. Baird, one of the worker representatives present the first day, agreed with him that the committee was not working. Mr. Bergie said that he and Mr. May had been to Mr. McNair and had found a way to petition the Minister to dissolve the committee, unless the people on the committee could "come up with something else". He also stated that if the Minister dissolved the committee, those presently involved would never sit on a committee again. To the union he said that a lot of their concerns in the February 25th Minutes were "crap", and that the committee should not be inundated with complaints that the committee had no jurisdiction to deal with. He also said that if the union had any criticisms to make of the Ministry, they should make them to the people in charge, who could do something about them. Mr. Gordon had also complained to Mr. Bergie that morning about the amount of time he often had to wait for Mr. Gray to appear before he could begin an inspection, and Mr. Bergie said to Mr. Gordon at the meeting that he was henceforth to wait fifteen minutes for Stan Gray to show, and then get on with his job at some other plant.

38Mr. Bergie explained to the Board his rationale for the threat to disband the committee. He testified that having tried everything else to remove the atmosphere of confrontation from this particular joint committee, it occurred to him at the meeting to try this tactic as a last resort. He said he had hoped it might "shock" the committee into trying to work things out, and that in 100 per cent of the other cases in which he found it appropriate to mention the Minister's name, it had had that effect on the parties. He said it was never his intention to actually seek to carry out the threat, and it was never raised again. Until this complaint.

39The respondent has, as noted, raised a number of "preliminary objections" to the complaint which he had, in light of the nature of the objections, and a desire to have a full airing of the case, elected to leave aside until final argument.

40The first such argument goes to the Board's jurisdiction to hear the case at all. The submission is that the activities of Mr. Gray as a health and safety representative is conduct contemplated and regulated under the Occupational Health and Safety Act, and not "protected activity" under the Labour Relations Act, as envisaged, for example, in Adams Mine, [1982] OLRB Rep. Dec. 1767. Counsel points to section 33(5) of the Occupational Health and Safety Act:

33. -(5) No person shall knowingly,

(a) hinder or interfere with a committee, a committee member or a health and safety representative in the exercise of a power or performance of a duty under this Act;

(b) furnish a committee, a committee member or a health and safety representative with false information in the exercise of a power or performance of a duty under this Act; or

(c) hinder or interfere with a worker selected by a trade union or trade unions or a worker selected by the workers to represent them in the exercise of a power or performance of a duty under this Act

and also sections 32(1) and (5):

32.-(l) Any employer, constructor, owner, worker or trade union which considers himself or itself aggrieved by any order made by an inspector under this Act or the regulations may, within fourteen days of the making thereof, appeal to a Director who shall hear and dispose of the appeal as promptly as is practicable.

(5) In this section, an order of an inspector under the Act or the regulations, includes any order or decision made or given or the imposition of any terms or conditions therein by an inspector under the authority of this Act or the regulations or the refusal to make an order or decision by an inspector

(emphasis added)

in support of his contention that if any remedy at all is contemplated by the Legislature for the conduct complained of here, it is contemplated within the prosecution and appeal sections of the Occupational Health and Safety Act itself. And counsel points to section 2(2) of that Act:

2. -(2) Notwithstanding anything in any general or special Act, the provisions of this Act and the regulations prevail

in support of his contention that the remedies provided under the Act are exclusive ones. This is reinforced, he submits, by the fact that the remedy sought in this case is essentially declaratory in nature.

41It strikes the Board that, while many of the rights exercised by Mr. Gray in this case may have been rights set out in the Occupational Health and Safety Act, they need not have been. Many collective agreements contained language in varying degrees dealing with health and safety prior to the enactment of any significant legislation in the field, and the Westinghouse collective agreement still does so today. Had a complaint come to the Board of an employer seeking by intimidation or coercion to circumscribe the lawful activities of a union safety committee member, prior to the time that health and safety legislation had been passed, it is difficult to conceive of an argument that the Labour Relations Act did not confer jurisdiction to deal with the complaint. In the absence of a finding such as in Seneca College v. Bhadauria, 1981 CanLII 29 (SCC), 2 S.C.R. 181, then, that the legislation provides its own exhaustive code of remedies, it would seem probable that the passage of the Occupational Health and Safety Act did no more than establish a parallel avenue of relief to the Labour Relations Act. It must be remembered that the Board does, however, have an independent discretion under the language of section 89 as to whether or not it considers it appropriate to assume jurisdiction over a particular complaint. The present matter does not involve the classic case of intimidation between an employer and an employee, but rather of alleged intimidation on the part of a public officer mandated to carry out the purposes of the Occupational Health and Safety Act. Were the same situation to be before the Board again, and the issue of jurisdiction put before the Board at the outset, the Board might well decide that the appropriate place for a case dealing with enforcement of the Occupational Health and Safety Act is under that Act. The present matter having been fully litigated on the merits, however, the Board is not now inclined to entertain any argument for deferral. Given the view that the Board takes of those merits, the Board is also prepared to assume that the complainant is correct in its assertion that the Board has jurisdiction.

42In light of the fact that the Labour Relations Act is not expressly made binding on the Crown, the respondent also raises as a complete defence section 11 of the Ontario Interpretation Act, which provides:

No Act affects the rights of Her Majesty, Her heirs or successors, unless it is expressly stated therein that Her Majesty is bound thereby.

That section, the complainant's cases demonstrate, has been construed narrowly so as to extend immunity for Crown servants only to acts authorized expressly or by necessary implication by statute or their superiors. See, e.g., Regina v. Stadiotto, 1973 CanLII 766 (ON CA), 11 C.C.C. (2d) 257 (Ont. C. A.). The complainant's counsel accordingly asks the Board to find that Mr. Bergie, in making the statements that he did, was acting in an unauthorized way, and on a "frolic" of his own. There is a note of inconsistency, however, between that argument and the complainant's own testimony. The complaint itself was filed in conjunction with a Press Release from Mr. Gray and Mr. Martel, and Mr. Gray quickly acknowledges that one of the complaint's purposes was to put pressure on the government to change its policies. He testified that it was his belief that "the Ministry" and Westinghouse were "in bed together", and that he hoped this complaint would bring an end to the Ministry's partisanship. He said he felt the problem was the "lack of political will" by the government to take on large employers, and that Mr. Bergie was simply carrying out Ministry policy. Even with respect to the complaint's central allegation, the threat of dissolving the committee, Mr. Gray said that he did not believe that that had come from Mr. Bergie' s own personality; rather, he felt that the whole thing had been thought out "higher up". He said he believed that Mr. Bergie was used as "the stick", and then Basken and company "as the carrot". All of this is Mr. Gray's speculation only, and is not supported by the evidence of even the respondent himself. But it was, after all, Mr. Gray who filed the complaint, and, in the context of Crown immunity, it is interesting to note, from his point of view, who the object of the complaint really was. Once again, however, the Board need not decide the issue in those terms, in light of its view on the merits.

43There are, similarly, qualified defences raised on the basis of section 36(1) of the Occupational Health and Safety Act, which reads:

36.-(l) No action or other proceeding for damages, prohibition, or mandamus lies or shall be instituted against a Director, an inspector, an engineer of the Ministry, a health and safety representative, a committee member, a worker selected by a trade union or trade unions or a worker selected by the workers to represent them for an act or an omission done or omitted to be done by him in good faith in the execution or intended execution of any power or duty under this Act or the regulations.

and of section 11 of the Public Authorities Protection Act, which reads:

11 .-(l) No action, prosecution or other proceeding lies or shall be instituted against any person for an act done in pursuance or execution or intended execution of any statutory or other public duty or authority, or in respect of any alleged neglect or default in the execution of any such duty or authority, unless it is commenced within six months next after the cause of action arose, or, in case of continuance of injury or damage, within six months after the ceasing thereof.

But once again, in light of the Board's view of the merits, the application of neither of these provisions need be considered.

44Consideration of those merits must begin with a discussion of the "internal responsibility system", and its relationship to the Occupational Health and Safety Act itself. Section 8 of the Act provides:

8.-(l)

(2) Subject to subsection (3), where,

(a) twenty or more workers are regularly employed at a work place;

(b) a regulation made in respect of a designated substance applies to a work place; or

(c) an order to an employer is in effect under section 20,

the employer shall cause a joint health and safety committee to be established and maintained at the work place unless the Minister is satisfied that a committee of like nature or an arrangement, program or system in which the workers participate is, on the date this Act comes into force, established and maintained pursuant to a collective agreement or other agreement or arrangement and that such committee, arrangement program or system provides benefits for the health and safety of the workers equal to, or greater than, the benefits to be derived under a committee established under this section.

(3) Notwithstanding subsections (1) and (2), the Minister may, by order in writing, require a constructor or an employer to establish and maintain one or more joint health and safety committees for a work place or a part thereof, and may, in such order, provide for the composition, practice and procedure of any committee so established.

(4) In exercising the power conferred by subsection (3), the Minister shall consider,

(a) the nature of the work being done;

(b) the request of a constructor, an employer, a group of the workers or the trade union or trade unions representing the workers in a work place;

(c) the frequency of illness or injury in the work place or in the industry of which the constructor or employer is a part;

(d) the existence of health and safety programs and procedures in the work place and the effectiveness thereof; and

(e) such other matters as the Minister considers advisable.

(5) A committee shall consist of at least two persons of whom at least half shall be workers who do not exercise managerial functions to be -selected by the workers they are to represent or, where there is a trade union or trade unions representing such workers, by the trade union or trade unions.

(6) It is the function of a committee and it has power to,

(a) identify situations that may be a source of danger or hazard to workers;

(b) make recommendations to the constructor or employer and the workers for the improvement of the health and safety of workers;

(c) recommend to the constructor or employer and the workers the establishment, maintenance and monitoring of programs, measures and procedures respecting the health or safety of workers; and

(d) obtain information from the constructor or employer respecting,

(i) the identification of potential or existing hazards of materials, processes or equipment, and

(ii) health and safety experience and work practices and standards in similar or other industries of which the constructor or employer has knowledge.

(7) A committee shall maintain and keep minutes of its proceedings and make the same available for examination and review by an inspector.

(8) The members of a committee who represent workers shall designate one of the members representing workers to inspect the physical condition of the work place, not more often than once a month or at such intervals as a Director may direct, and it is the duty of the employer and the workers to afford that member such information and assistance as may be required for the purpose of carrying out the inspection.

(9) The members of a committee who represent workers shall designate one or more such members to investigate cases where a worker is killed or critically injured at a work place from any cause and one of those members may, subject to subsection 25(2), inspect the place where the accident occurred and any machine, device or thing, and shall report his findings to a Director and to the committee.

(10) A constructor or an employer required to establish a committee under this section shall post and keep posted at the work place the names and work locations of the committee members in a conspicuous place or places where they are most likely to come to the attention of the workers.

(11) A committee shall meet at least once every three months at the work place and may be required to meet by order of the Minister.

(12) A member of a committee is entitled to such time from his work as is necessary to attend meetings of the committee and to carry out his duties under subsections (8) and (9) and the time so spent shall be deemed to be work time for which he shall be paid by his employer at his regular or premium rate as may be proper.

(13) Any committee of a like nature to a committee established under this section in existence in a work place under the provisions of a collective agreement or other agreement or arrangement between a constructor or an employer and the workers, has, in addition to its functions and powers under the provisions of the collective agreement or other agreement or arrangement, the functions and powers conferred upon a committee by this section.

(14) Where a dispute arises as to the application of subsection (2), or the compliance or purported compliance therewith by an employer, the dispute shall be decided by the Minister after consulting the employer and the workers or the trade union or trade unions representing the workers.

As can be seen, the establishment of a joint health and safety committee for operations of any substantial size is mandatory, and the Legislature has provided a number of measures to ensure that such committees can play a constant and meaningful role in the work place. This would appear to reflect a legislative recognition that, ideally at least, industrial health and safety in many of its aspects can best be achieved through the joint efforts and awareness of the people most directly involved in the day-to-day operation of that work place. As Professor Katherine Swinton put it, in her article entitled: "Regulating Occupational Health and Safety: Worker Participation Through Collective Bargaining and Legislation" in Essays in Collective Bargaining and Industrial Democracy, edited by Geoffrey England. Don Mills, Ont.: CCH, c 1983; p. 43, at page 51:

With the rising toll of injury and disease came concern about the effectiveness of existing regulatory and enforcement mechanisms. The inspectorate seemed unable to monitor workplace conditions adequately, for the number of inspectors was small, and consequently, the frequency with which they could visit worksites was limited. Even if the number of inspectors and inspections were to be increased (with a necessary increase in public expenditure), inspections can never be an adequate prevention mechanism, for the workplace in compliance with regulations today may be in violation tomorrow because of faulty equipment or careless housekeeping.

The concept of an "internal responsibility system" built around these mandatory joint committees is accordingly embodied in the Ontario Ministry of Labour's operating manual for health and safety Inspectors, which begins its instructions on the system as follows:

1.1 Philosophy

Internal Responsibility System Cyclical Review

Employers and employees have the primary responsibility for occupational health and safety. The establishment of an effective Internal Responsibility System is an essential first step to prevent injury or health deterioration. As an Internal Responsibility System improves, the level of compliance will move from enforced compliance, through self-compliance to ethical compliance.

To encourage this Internal Responsibility System to develop, the role of facilitator has been given to the Inspector, who will identify, evaluate and review the actions of labour and management on a regular basis. This will facilitate that first step by identifying areas where the Internal Responsibility System can be improved...

45The internal responsibility system has, as well, been discussed, together with its obvious limitations, in numerous reports and articles. As the parties noted, one of its early proponents was James Ham, who, in his 1976 Report of the Royal Commission on the Health and Safety of Workers in Mines, had this to say:

Industry and labour have expressed deep concern not only about the facts of industrial disease and injuries from accidents but also about the effectiveness of the institutional arrangements between government, industry, and the workers for dealing with the hazards at work and about governmental policy for occupational health and safety that such arrangements reflect.

Within the internal responsibility-system at the company level, which is the key to the quality of the over-all control of occupational hazards, there has been in many companies an inadequate opportunity for workers to contribute their insight to the assessment of work conditions and to the basis on which management makes decisions on issues of health and safety. The adamantly confrontational character of Canadian labour-management relations has deterred the creation of sensible arrangements for worker participation. Questions of health and safety are not suitable issues for collective bargaining. The Commission has carefully defined a framework for the operation of joint labour-management health and safety committees as bodies contributive to the formulation and review of sound managerial policies and practices.

The hope was, and continues to be, that on matters of health and safety the parties in a unionized institution might be able to divorce themselves from the adversarial approach characteristic of collective bargaining in this jurisdiction. As the more recent Report of The Joint Federal-Provincial Inquiry Commission into Safety in Mines and Mining Plants in Ontario (the Burkett Commission) observed, at page 86:

The challenge for the parties, therefore, is to develop the capability to deal with day-to-day health and safety concerns in a co-operative and consultative manner within the context of a free collective bargaining system....

The joint health and safety committee is the mechanism through which the parties can achieve this desired capability. A properly structured and functioning committee allows the parties to insulate the health and safety effort from the other more adversarial aspects of the relationship.

And further, in attempting to account for the shortcomings which prompted its study into the mining industry, the Commission noted, at page 117:

... By failing to monitor the performance of the joint health and safety committees adequately, the branch is missing the opportunity to pinpoint potential substandard situations before they are revealed by visual inspection of the workplace or accident statistics.

If the branch is to play the role of facilitator and act as a resource for the direct responsibility system, it must develop the capability of identifying and responding to relationship breakdowns. The identification of human relations difficulties will fall to the inspection staff who are in direct personal contact with the various mining operations. The Industrial Health and Safety Branch — another branch in the ministry's Occupational Health and Safety Division — has developed an inspection procedure designed to assess the attentiveness of the internal participants. We are of the view that this procedure has considerable merit and can be applied within the mining industry.

46The "internal responsibility system" is not, of course, without its limitations. The Ham Commission itself closed its Report with reference to "the objective of a sound balance between self-regulation and legal compulsion based on the constructive co-operation of all parties" (emphasis added). Joint health and safety committees can only monitor and make recommendations: as Professor Swinton, cited supra, points out, the scheme established by the Legislature does not envision an equality between the parties. Only management possesses the right to implement changes, and it continues to be the function of the Industrial Health and Safety Branch to ensure compliance with the Act when the outer limits of the "internal responsibility system" have been exhausted. But the point at which that limit is reached is a matter of judgment, and the Labour Board clearly was not meant simply to second-guess that judgment on the part of the responsible officials under the Occupational Health and Safety Act. The two counsel for the complainant have emphasized time and again that that is not the purpose of the complaint. The complaint is directed solely at the .threatening statements made by Mr. Bergie in March and October of 1982, and the remainder of the evidence, pertaining to the specific health and safety concerns of Mr. Gray, is simply argued to establish for the Board the necessary element of bad faith or improper motivation under section 70.

47What does that other evidence, concerning the response of Mr. Bergie's office to Mr. Gray's concerns, tell us about the motivation of Mr. Bergie himself? Counsel for Mr. Bergie fairly concedes that not everything the Branch did with respect to Westinghouse was letter perfect, and that Mr. Gray did not always get all of the attention he might have deserved. But he also points out, equally fairly we think, that, unlike Mr. Gray, Westinghouse was not the only plant that Mr. Bergie and his staff had to be concerned about. Mr. Bergie has 3,000 establishments under his jurisdiction, and a regular staff of eight inspectors to serve them. Anyone familiar with the east end of Hamilton is aware of the size of a good many of those establishments. Each operation must be visited quarterly on a routine inspection basis, and then beyond that, inspectors are required to attend at an establishment to deal with special requests, accidents, and work refusals, and to co-ordinate the activities of the Occupational Health Branch. Taking an average from the evidence of the various inspectors, this appears to involve each inspector in some 300 to 400 inspection visits per year. Presumably the averaging in of numerous smaller establishments renders it possible to meet these requirements at all.

48While Mr. Bergie may, as we have noted, become involved in varying degrees in a particular safety matter, his general perception of what is going on at each work place is obviously very much dependent on the reports (both oral and written) of his inspectors, and the advice of his experts. In the testing of welding fumes and Solvesso 100, for example, Mr. Bergie' s role was clearly no more than tangential to the activities of the Occupational Hygiene Service, whose performance is beyond both his qualifications and his direct authority to control. To the extent he played any overt role in the discussion of those issues, it was merely to reiterate the positions which his experts assured him were correct. Mr. Kwok, for example, is an industrial hygienist with well-established credentials, and one who, Mr. Bergie observed, has "never been known to turn down a request", because of his commitment to health and safety in the workplace. Those positions were also, to varying extents, placed under the scrutiny not only of Mr. Bergie but of Mr. May, Mr. Rajhans, the Director, and Dr. Robinson, and were considered credible. Lead was also an issue in which Mr. Bergie's expertise and involvement was limited, and by the time the existence of a clear problem was brought to the attention of the Industrial Health and Safety Branch in late August of 1982, it quickly became the subject of considerable scrutiny by the levels above Mr. Bergie as well. Certainly no bad faith can be imputed to Mr. Bergie himself for the failure of the Occupational Hygiene Service to test for lead when they were in in May (even if the complainant is correct and Mr. Bergie should have been aware of the first company results in July), and the Inspector, Mr. Gordon, issued an order for immediate compliance with the lead assessment regulations as soon as he received the company's second test results in September. Evaluation of the company's draft lead assessment under the new regulations was clearly a matter beyond Mr. Bergie's expertise, and he did ultimately uphold Mr. Gray's appeal in its entirety, albeit in the light of the ongoing publicity.

49The issue of testing inside hot tanks took a distressingly long time to resolve, but the evidence, including Mr. Gray's own evidence, establishes clearly that the individuals from the Ministry upon whom Mr. Bergie would have been relying, such as Dr. Tidey and Mr. Kwok, either did not understand what Mr. Gray's actual concern was, or did not believe that the entry into hot tanks was a genuine problem. After Mr. Gray complained directly to Mr. Bergie in his critique of Mr. Baiger's Report in December, 1981, the contract consultant was sent in immediately to sit down with Mr. Gray and spend the necessary time on his concern. Lack of good faith cannot be imputed to Mr. Bergie for the failure of the consultant, even after that opportunity, to understand Mr. Gray's concern correctly. Mr. Gray again raised the issue with Mr. Bergie directly at the NASCO trial at the end of January, and became upset when Mr. Bergie still failed to "straighten it out" as he promised, but it was no later than March that the full discussion with Mr. May and Mr. Bergie purported to resolve it. It was at that meeting that Mr. Bergie insisted that the regulations must be strictly complied with, and that no one ought ever to be entering a confined tank without it being certified safe, no matter what the difficulty. Mr. Gray states that he knew that approach would never work, but that falls a long way short of establishing a lack of sincerity on Mr. Bergie's part, particularly when the remainder of the union complement argued against Mr. Gray at the meeting.

50The matter of stop-blocks for crane repairs also took a good deal of time and effort to resolve, but once again the direct involvement of Mr. Bergie occurred only in the latter stages. Mr. Gray did complain to Mr. Bergie, once again in the Baiger critique, about the lack of an order on stop-blocks, but Mr. Baiger appears to have felt that he had the situation in hand when he wrote that the company "had agreed" to follow Ministry policy in this regard. It is not difficult to accept that Mr. Baiger similarly satisfied Mr. Bergie in their discussions. When Mr. Gray raised the problem directly, in 1982, Mr. Bergie's reluctance to issue an order in light of the Stelco precedent is not as easily understood, but the Board does not have sufficient evidence of the situation at Stelco to impute bad faith to Mr. Bergie in the explanations he gave.

51There was, finally, the Terry Ryan accident. Without doing an injustice to Mr. Gray's extensive report, any cause and effect between general work practices at the company and the specific accident to Mr. Ryan remained a matter of conjecture, and there is nothing in the report that demonstrates that Mr. Bergie's initial conclusions, based on the information that Mr. Gray was able to provide, was unreasonable. Mr. Bergie on the evidence played no role whatever in the negotiation of a limited guilty plea after several days of the company s trial, and not a whisper of bad faith can be imputed to him on that score. This finding ought not to come as any revelation to the complainant, who himself testified that he felt the entire Ryan matter was not in the hands of Mr. Bergie, but being "quarterbacked from above".

52Then there was Mr. Gray himself. Mr. Gray's concerns were too well researched, too well documented, and, on the basis of the limited sampling of concerns highlighted in these proceedings, too well vindicated to dismiss Mr. Gray as an over-reacting idealogue, and once again, respondent's counsel has not attempted to do so. But there is also little doubt that Mr. Gray would be a problem for anyone genuinely trying to mediate, or "facilitate", the health and safety situation in the Transformer Division of Westinghouse. In his lengthy appearance before the Board, Mr. Gray demonstrated an uncompromising cynicism and tenacity, as well, as the record indicates, as an abundant willingness to politicize and "media' '-tize his concerns. It may well be that all of this can be fully justified by Mr. Gray's experience at Westinghouse: other methods were tried and failed, and the reasons for Mr. Gray's frustration are apparent. But one has to reflect, nonetheless, on the concern expressed in the Burkett Report about the manner in which denigrating and politicizing can feed upon themselves, and produce an ever-increasing disincentive for co-operation. Mr. Bergie himself testified to having said to Mr. Gray, "You get along with nobody; nobody's good enough for you", and having drawn a distinction between "challenging a report" and "not accepting any". In one example recounted by Mr. Gray himself, Mr. Bergie was present when the company indicated that it would have a report shortly from an outside engineer on a cable-snapping incident, and volunteered to sit down and discuss it with the joint committee as soon as it was received. Mr. Bergie was obviously pleased, and commented to the company that that was "more like it" and "a good start". Mr. Gray's reply was that that was fine, but that it would be his intention to take the report outside to other consultants in any event, once the committee had had a look at it. The company thereafter declined to follow up its offer. It may well be that Mr. Gray was intending by his remark only to be "up-front" with the company, but this continuing state of cynicism, before even seeing the report, must have been disheartening to Mr. Bergie.

53Whatever the causes, it is clear that the "internal responsibility system" at Westinghouse's Transformer Division was not working well. With all of the "unresolved concerns" emanating from the committee, standard inspection reports were growing from 10 to 70 pages, and the lengths of the inspections themselves moved from 1 to 10 or 11 days each. Committee meetings themselves were marked by acrimony and confrontation. Mr. Gray felt the company had no real interest in safety, and said so. Al Smith, the company's Personnel Manager and spokesman on the committee, felt it was impossible to please Mr. Gray, and said so. Each of the three inspectors that Mr. Bergie put into Westinghouse during this period reported to him their concern over the high degree of animosity existing on the committee. The first of these, Mr. Forrester, wrote the following memorandum to Mr. Bergie on the occasion of transferring out of the region:

May 2/80

To: L. J. Bergie — Mgr. Reg. 6

Employer: Westinghouse — Transformer Div.

Address: 1632 Burlington St. E., Hamilton.

Re: Inspection Report dated 08/04/80

This company is in very bad shape re the Internal Responsibility System

— if such a system exists at all in this Division.

I would recommend that consultations be held with top management at the high level to aid them in resolution of their problem.

The main problem appears to be the fact that there is a clash of personalities and health and safety is handled in an adversarial level.

The attached file may assist you with some background information:

(1) H & S Committee minutes for Jan., Feb. and Mar/80.

(2) Union H & S representative (Stan Gray) — list of concerns.

Good luck!

We agree with counsel for the complainant that to attribute the problems on the committee to mere "personality clashes" is to trivialize the very real concerns which lay behind those clashes. The comments of each of the inspectors in turn on the "clash of personalities" that they perceived as taking place between Mr. Gray and Mr. Smith do, however, serve to underscore the palpable tension which characterized the joint committee at Westinghouse.

54Mr. Bergie, as noted, was not, of course, without some of his own opportunities to witness the tension on the committee. At a meeting with the committee at the plant in October of 1980, Mr. Bergie watched Mr. Gray and Mr. Smith "at each other's throats, trying to score points", as he said, over the accident to Terry Ryan, and decided that that was an opportune moment to comment on the atmosphere of the committee. He pointed out that the company and the union had adopted an adversary approach to health and safety, and that it was time they "took a look" at themselves. Mr. Gray responded that the problem was with the company, who had the only real power to do anything, and that it was taking advantage of the Ministry's repeated failure to enforce the Act. Mr. Bergie told Mr. Gray that he felt Mr. Gray employed too much of a hostile manner, and too much rhetoric. He said that the union should keep its requests reasonable, and should drop hazards "from 1911". To the company he said: "You should look reasonably at concerns that are raised, and accept responsibility; if there is a resolution, it's your job and ours". Mr. Bergie also suggested that the company consider bringing in some of their health and safety personnel from Head Office. In particular, Mr. Bergie mentioned Terry Hoak, whom he said he had come to know through his years as an inspector in •the Switchgear Division. Mr. Hoak was employed in the Health and Safety Division of Head Office, and, according to Mr. Bergie, had always demonstrated a genuine interest in health and safety, ahead of operational concerns.

55Mr. Gray was not impressed with Mr. Bergie's lecture. He testified that he had no regard for the company's head office, and that it was the head office who had been frustrating the union at every turn. He testified:

It's a matter of concrete hazards, not whether Stan Gray gets along with the company. To ensure safety, if you have to be hostile, so .be it. Mr. Bergie's job was to enforce the Act, not to ensure that the company and the union get along .... the Act reflects an inherent adversarial relationship.

Mr. Gray in his evidence dismissed Mr. Bergie's comments to the company as "a one-line nothing statement", and of the "internal responsibility system" says:

It's just used by the Ministry as a sham to keep the heat off the company.

In September of 1981, Mr. Bergie, together with Mr. May, did in fact raise with Mr. Bryson, the company's Vice-President of Manufacturing, the possibility of replacing Mr. Smith on the committee with someone like Mr. Hoak. Mr. Bryson replied that he would think about it, but that Mr. Smith was "the only one who could handle Mr. Gray".

56It was, in any event, the joint committee meeting of February 25, 1982, that brought matters to a head. That was the meeting at which Mr. Gray, frustrated by the inaction of the company and the ineffectiveness of the Branch, chastised both for his unaddressed list of concerns, and accused them of acting in bad faith. Like Mr. Krouse, Mr. May has been ill and did not testify. However, we accept Mr. Bergie' s evidence that it was Mr. May, after Mr. Gordon had been so upset by what he read in the February2sth Minutes, who directed Mr. Bergie to go into the plant on March 17 and 19 and "tell them what the internal responsibility system was all about". Mr. May's own memorandum to the Director, Mr. Melinyshyn, a short time after that read:

The Joint Health and Safety Committee in this plant is being rendered ineffective by the constant bickering and the failure to resolve problems.

In light of all of this, Mr. Bergie went into the plant and, in the course of the heated discussion which ensued, and on the basis of tactics which he had successfully employed elsewhere, threatened to petition the Minister to permanently remove the incumbents from the joint committee, "unless they could come up with something else". This was not a threat which Mr. Bergie had the slightest intention of trying to carry through. But given the seriousness of the threat, the position of institutional power from which it came, and the potential chilling effect which such a threat could thus have on the legitimate exercise of rights under the statutes, this is not a tactic, no matter how well-meant, which the panel would wish to endorse.

57But it is in fact only the matter of intention which is at issue here. On all of the evidence, has the Board been satisfied that the statement really was, as the complainant submits, intended to intimidate Mr. Gray and his colleagues from pursuing their lawful rights under the Occupational Health and Safety Act and section 3 of the Labour Relations Act, for the purpose of leaving Westinghouse Canada with a freer hand to do as it pleased? Or was it one final attempt by Mr. Bergie to generate some form of change in the adversarial relationship he saw dominating the joint committee, in an effort to better effectuate the policies of the Occupational Health and Safety Act as he saw them. For all of the reasons given above, we find it to be the latter.

58We view in the same vein the statements by Mr. Bergie with respect to taking to the NDP information disclosed by the company to the joint committee. Section 34(1), which Mr. Bergie indicates was in the back of his mind, reads:

34. -(1) Except for the purposes of this Act and the regulations or as required by law,

(a) an inspector, a person accompanying an inspector or a person who, at the request of an inspector, makes an examination, test or inquiry, shall not publish, disclose or communicate to any person any information, material, statement, report or result of any examination, test or inquiry acquired, furnished, obtained, made or received under the powers conferred under this Act or the regulations;

(b) no person shall publish, disclose or communicate to any person any secret manufacturing process or trade secret acquired, furnished, obtained, made or received under the provisions of this Act or the regulations;

(c) no person to whom information is communicated under this Act and the regulations shall divulge the name of the informant to any person; and

(d) no person shall disclose any information obtained in any medical examination, test or x-ray of a worker made or taken under this Act except in a form calculated to prevent the information from being identified with a particular person or case.

Whether or not that language in fact goes far enough to prohibit the precise conduct referred to, it must be borne in mind that it was information provided to the committee by the company that Mr. Bergie was speaking of, and that Mr. Gray was continually after Mr. Bergie and his staff to cause the company, as section 8 of the Act anticipates, to make more prompt and complete disclosure of such information. Recalling, as an example, the concerns of the Burkett Commission noted earlier in the decision, the Board does not find it difficult to accept that Mr. Bergie would have been concerned about the impact which the "political" use of such information would have on the continuing efforts to obtain disclosure, and to convince the company of the benefits of joint consultation under the Act. Once again, therefore, the evidence fails to satisfy us that Mr. Bergie, whether right or wrong in his interpretation of the Occupational Health and Safety Act, was intending to act other than in furtherance of the policies and objectives of that Act.

59The complaint is accordingly dismissed.

ADDENDUM OF BOARD MEMBER S. COOKE;

1. The failure of the complainant to meet the narrow test required for his complaint to succeed under section 89 of the Labour Relations Act must in no way be interpreted as an endorsement of the actions of Westinghouse or the Safety and Health Division of the Ministry of Labour.

2. The evidence before us in the form of exhibits, i.e., the reports of inspectors in the Hamilton Office of the Industrial Health and Safety Branch describe a litany of orders resulting from inspectors' findings of Westinghouse's failure to comply with one safety matter after another and describing continuing safety and health concerns of the complainant and other Joint Safety and Health committee members of the United Electrical, Radio & Machine Workers of America Local 504.

3. The Inspection Branch of necessity depends on the Internal Responsibility System to persuasively bring compliance with the Occupational Health and Safety Act and Regulations. This is necessary in view of the massive task of providing for worker safety in the many industrial establishments in Ontario. However, in a situation of this kind, where the employer exhibits a great deal less than enthusiastic support for the process being relied upon and where acrimony, rather than cooperation, is exhibited at the meetings of the Joint Safety and Health Committee, it is incumbent on the Safety and Health Branch to do more to enforce the legislation than re-issue orders and decry the failure of the Internal Responsibility System.

4. The standards of safety and health envisioned by the legislators can only be achieved with diligent application of all of the tools at the disposal of the Safety and Health Division. That includes vigorous attempts at compliance by use of the Internal Responsibility System and the issuance of orders and vigorous prosecution where the first two avenues fail.