Bob Nault v. Inco Metals, 1984 CanLII 1094

[1984] OLRB Rep. October 1464

0373-84-OH Bob Nault, Complainant, v. Inco Metals, Respondent

BEFORE: M. G. Mitchnick, Vice-Chairman, and Board Members W. H. Wightman and B. L. Armstrong.

APPEARANCES: Norm Carriere, Bob Nault and Dan Sweezey for the applicant; Janice Baker and C. H. Meaden for the respondent.

DECISION OF THE BOARD; October 12, 1984

1. This is a complaint under section 24 of the Occupational Health and Safety Act, alleging that the complainant, Bob Nault, has been dealt with by the respondent contrary to the provisions of section 24(1) of that Act. Section 24(1) provides:

24.-( 1) No employer or person acting on behalf of an employer shall,

(a) dismiss or threaten to dismiss a worker;

(b) discipline or suspend or threaten to discipline or suspend a worker;

(c) impose any penalty upon a worker; or

(d) intimidate or coerce a worker,

because the worker has acted in compliance with this Act or the regulations or an order made thereunder or has sought the enforcement of this Act or the regulations.

2. The complainant is an experienced scoop operator and on August 4,1983 was working at the 1,250 level of the respondent's South Mine. That is an area of the mine where blasting of the ore-pass is not uncommon. The procedure in setting a blast is to telephone down to the level below, giving notice of that so that guards can be posted to seal off the area close to the ore-pass. On that day no such warning had come, and Mr. Nault was working at the mouth of the ore-pass when a blast at the level above (1,000 feet) was set off. Mr. Nault reported the incident to his foreman, noting that no guards had been posted and that he had observed a tongue of flame and an unusual amount of concussion. The foreman, Mr. Riskie, responded that he could not understand where the flame would have come from, but that he would investigate the reason why no guards had been posted. Mr. Riskie gave Mr. Nault the standard Total Accident Control Report form for him to fill out and while Mr. Nault was away doing so, Mr. Riskie phoned the Leader in charge of the blast on level 1,000 feet, Mr. Hebert, and asked him why he had not telephoned level 1,250 to warn of the blast and secure the posting of guards. Mr. Hebert responded that he had been in a hurry to clear the ore-pass and had forgotten to telephone. When Mr. Nault returned with the completed report form Mr. Riskie accepted it and made no further comment about the incident. Mr. Riskie then arranged to have Mr. Hebert come to his office at the end of the shift, where he questioned Mr. Hebert further about the details of the blast and confirmed the admission which Mr. Hebert had made to him earlier.

3. The company acknowledges that the failure to post guards on a blast is regarded as an extremely serious offence, resulting virtually automatically in being sent home with a fourth step warning. Mr. Riskie assured the Board in his testimony that he himself, on the basis of his personal experience, regarded such omissions as extremely serious. The problem is that that view is not reflected or easily discerned from the way that Mr. Riskie appeared to respond to the situation at the time. On the morning after the incident, for example, Mr. Nault ran into Mr. Riskie in the equipment area and asked Mr. Riskie what he was going to do about the prior day's incident. Mr. Riskie responded that he "would be investigating further, and probably taking action, since you complained." Mr. Nault was upset by the tenor of that remark and retorted: "So now you're putting it all on me, Riskie — I won't forget that". Mr. Riskie testified that he decided at that point to "back off', and made no further comment to Mr. Nault. Mr. Riskie says he later attended at the 1,000 foot level where all of the crew involved in the blasting operation the day before were present and gave them a "severe reprimand". The Board heard no other evidence in that regard. At lunch time on that day, however, Mr. Riskie became involved in a further discussion of the blasting incident with that crew, and the leader, Mr. Hebert, asked Mr. Riskie, "Who's pushing this thing?". Mr. Riskie testified that he took that to mean who was pushing for discipline to be imposed as a result of the incident and Mr. Riskie simply replied: "Bob Nault". Mr. Hebert later in the conversation asked Mr. Riskie why it was that Bob Nault was pushing the thing, and Mr. Riskie responded simply: "I don't know". This account by Mr. Riskie of his conversation with the crew is consistent enough with the account testified to by one of the men present, Mr. Boisvert, that we accept Mr. Boisvert's evidence as well in that regard. Mr. Boisvert testified that Mr. Riskie told the crew that if Bob Nault did not stop pushing the thing, someone would be disciplined.

4. It appears from the evidence that Mr. Hebert was not in fact disciplined any further for the incident. Mr. Riskie testified that he discussed the incident with the General Foreman but made no recommendation either way, in accordance, he added, with his usual practice involving safety matters. Mr. Riskie stated that he was unaware of the reasons why Mr. Hebert was not disciplined further. The Report form completed by Mr. Nault has a place for the "supervisor's signature" and "corrective action taken and or recommendation", and Mr. Riskie was asked in cross-examination why those portions of the Form were left blank. Mr. Riskie responded that at the point when he received the form from Mr. Nault, he had not yet completed his investigation and that he filled out another form when he had. The second form was not submitted to the Board in evidence. While it is not clear what action Mr. Riskie himself took with respect to this matter, it should be noted that Mr. Maciborka, the General Foreman responsible for these levels, personally conducted a series of blast tests as a follow-up to Mr. Nault's report of the unusual concussion and flame. Mr. Maciborka also issued a notice re-affirming the company's safety procedure on carrying out blasts of this kind.

5. Unfortunately, the impression created by Mr. Riskie that management viewed Mr. Nault as the "troublemaker" with respect to the August 4th incident would have been reinforced in the eyes of other employees by the fact that four days later, on Monday August 8th, Mr. Nault was stopped by Mr. Riskie as he was about to enter the "cage" to descend to his station and was re-assigned on the spot to level 2,250, an area under entirely different supervision. The company's evidence is that a Mr. Leduc, whom Mr. Nault had been replacing while the former was ill, arrived unannounced that morning with a doctor's certificate indicating he was ready to work. The company further gave evidence that as of the previous May 30th, the manning of levels 1,250 and 1,000 had been rationalized and both Mr. Nault and Mr. Bois­vert, who was also a scoop operator and was junior to Mr. Nault, had become surplus to the regular crew. Both operators were, however, engaged at that time in backfilling a stope, and were allowed to continue that job, Mr. Nault at level 1,250 and Mr. Boisvert at 1,000, until about the middle of June when the work was completed. At that point, however, Mr. Leduc, the regular scoop-operator at level 1,250, went off sick, and Mr. Nault was able to replace him. Mr. Boisvert at the same time was kept busy performing miscellaneous non-operator tasks at level 1,000. When Mr. Leduc returned on August 8th, Mr. Riskie testified that he found himself with two scoop-operators at level 1,250, and only one scoop. Mr. Riskie went to the general foreman Mr. Maciborka and explained his problem. The evidence of the company is that such short-term redundancies are normally dealt with on the basis of seniority, although the senior employee might first be offered the option of whether he wishes to be the one to move. Mr. Maciborka testified that that morning a temporary job vacancy for a scoop-operator at level 2,250 had been posted on the bulletin board, and, after checking with the general foreman at that level, instructed Mr. Riskie to send down Mr. Nault, the junior man. Mr. Riskie testified that he never gave any thought to moving Mr. Boisvert, who is junior to Mr. Nault, because Mr. Boisvert was working on the 1,000 foot level, which, although also now under Mr. Riskie's supervision, formed part of a different "beat". Mr. Boisvert was himself sent down to the 1,700 foot level at the end of that month.

6. We deal firstly with the question of the statements made by Mr. Riskie to Mr. Nault and the employees involved in the blasting incident. Mr. Riskie explained his statement to Mr. Nault (that Mr. Riskie would investigate the matter and discipline might follow since you complained") on the basis that Mr. Riskie had not himself been aware of the blast, and would have had nothing to investigate had Mr. Nault not put in his report. Given the fact, however, that Mr. Riskie at that point had already satisfied himself from talking to the individual responsible for the blast that a serious error in procedure had occurred, the Board finds Mr. Riskie's choice of response to Mr. Nault puzzling at best. Mr. Riskie allowed in his testimony that his words to Mr. Nault might have been "misconstrued" to indicate that management itself did not find the incident worthy of following up. But Mr. Nault's interpreta­tion of the tenor of Mr. Riskie's remark was apparent from Mr. Nault's angry response; yet Mr. Riskie made no effort to suggest to Mr. Nault that he had misunderstood him. The impression one is left with is that Mr. Riskie in fact viewed Mr. Nault as a "trouble-maker" in this incident, and that impression was re-affirmed in the conversations which Mr. Riskie subsequently had with the other employees involved in the incident. In none of the specific conversations related did Mr. Riskie give an indication that management itself was interested in following up the incident, or that they considered it to be a serious violation of the safety procedures. Mr. Riskie appears to have been more than content to convey the impression that the complaints of Mr. Nault were the sole source of the other employees' difficulties, and possible discipline, and to leave Mr. Nault standing alone to deal with the pressure from his peers that that would inevitably create.

7. The evidence is clear that at the time of all of these conversations, Mr. Riskie knew he was dealing with an admitted safety violation, and one of such a magnitude as could easily have caused the complainant serious injury or, as Mr. Riskie himself testified to, loss of life. In those circumstances, we find the handling of the situation by the foreman Mr. Riskie, in generating peer pressure against Mr. Nault for pursuing his complaint, to have been not only irresponsible, but a violation of the Occupational Health and Safety Act as well.

8. While a violation of this type might be viewed as minor on its face, the Board has to be concerned with any misconduct of a nature which tends to undermine one of the major premises upon which compliance with the Act is based. The Occupational Health and Safety Act clearly makes the good-faith reporting of safety violations not just the concern but the responsibility of every party present in the workplace. Apart from the mandatory requirements of health and safety representatives and joint health and safety committees, the Act spells out in detail the specific responsibilities of each of "owners", "employees , constructors , super­visors", "workers", and "suppliers". With respect to "workers" the Act requires that:

17.-(l) A worker shall,

(a) work in compliance with tne provisions of this Act and the regulations;

(b) use or wear the equipment, protective devices or clothing that his employer requires to be used or worn;

(c) report to his employer or supervisor the absence of or defect in any equipment or protective device of which he is aware and which may endanger himself or another worker;

(d) report to his employer or supervisor any contravention of this Act or the regulations or the existence of any hazard of which he knows; and

(e) where so prescribed, have, at the expense of the employer, such medical examinations, tests or x-rays, at such time or times and at such place or places as prescribed.

And (2) No worker shall,

(a) remove or make ineffective any protective device required by the regulations or by his employer, without providing an adequate temporary protective device and when the need for removing or making ineffective the protective device has ceased, the protective device shall be replaced immediately;

(b) use or operate any equipment, machine, device or thing or work in a manner that may endanger himself or any other worker; or

(c) engage in any prank, contest, feat of strength, unnecessary running or rough and boisterous conduct.

It would be simple to trivialize the remarks made by Mr. Riskie by viewing them simply as the embarrassment of a single individual in a case where no accident or injury occurred. But what was at issue was an omission acknowledged by all parties to be patently dangerous, and we have to be concerned with the effect that portraying Mr. Nault as a "trouble-maker" would have upon the making of valid complaints in the future, or the following-up of the complaint already made. A point is reached where the effect of certain conduct is so readily foreseeable that an individual must be presumed to have intended its consequences, and the Board finds that Mr. Riskie, acting as an agent of the respondent employer, sought to intimidate or coerce Mr. Nault because he was acting in compliance with the Act and seeking its enforcement, in order to deter him from any such further action.

9. We do not, however, find the apparent attitude of the foreman Mr. Riskie, in this safety incident pertaining to Mr. Nault, reflective of the views of any of the higher levels of management. Mr. Maciborka, the General Foreman, clearly took Mr. Nault's complaint seriously, and both re-issued a reminder of the proper procedures to be followed, without exception, in such blasting operations, and personally tested to see whether abnormal conditions were present in the ore-pass itself. It was Mr. Maciborka who made the decision to select Mr. Nault for transfer as the "junior" scoop operator on August 8th, and, while the timing was unfortunate, from the point of view of enhancement of the objectives of the Occupational Health and Safety Act, we accept that the redundancy situation did in fact arise as a result of circumstances wholly out of the control of the employer. Mr. Nault had only been retained as a scoop operator at the 1,250-foot level because of the illness of the more senior Mr. Leduc, and the Board does not find it surprising or inconsistent with company practice for the company to allow Mr. Leduc to reclaim his job upon his return. Neither do we find that this isolated redundancy caused by the return of Mr. Leduc would give rise to the kind of wholesale shuffling contemplated by the "Force Adjustment Procedures" tendered in evidence by the complainant. Nor, finally, do we find it unworthy of belief, in the light of the limited evidence of the company's practice of dealing narrowly with such isolated redundancies, that the seniority of scoop operators at the level above, which historically had formed part of a different foreman's "beat", would not have been given consideration as well. From a potential remedial point of view, we might note that the junior man at level 1000, Mr. Boisvert, came to be re-assigned to a lower level of the mine within three weeks of the incident as well. On all of the evidence, we cannot conclude that the action of Mr. Maciborka, in selecting the junior scoop operator at the 1,250-foot level, Mr. Nault, for transfer to the temporary vacancy at level 2,250, was "tainted" in any way by improper considerations, and hence in violation of the Occupational Health and Safety Act.

10. The perception created by the sequence of Mr. Riskie's handling of the situation on August 5th, in violation of the Act, and Mr. Nault's precipitous re-assignment on August 8th, continues to trouble us, however, and makes the posting of an adequate Notice all the more significant in this case. But there is, in this case, nothing to suggest to us that the more senior levels of management have anything less than a proper regard for the objectives and require­ments of the Occupational Health and Safety Act, nor would seek in any way to discourage employees from reporting what they have reason to believe are violations of that Act. We accordingly see no reason at this point why it cannot be left to management and the trade union representing Mr. Nault and his fellow employees to agree on the terms and posting of a Notice which will confirm such sentiments to all of the employees in the South Mine, in order that the isolated events occurring with respect to Mr. Nault not be misunderstood. The Board will remain seized of this matter, and should we be advised that the employer and the trade union have been unable to reach an accommodation on the wording and terms of posting of such a Notice by October 19, 1984, the Board will issue a direction in the more standard form of detail.

11. The Board accordingly:

(1) declares that the respondent has violated section 24(1) of the Occu pa­tional Health and Safety Act; and

(2) directs the respondent to sign and post a Notice in accordance with the terms of paragraph 10 of this decision.

The Board remains seized of this matter in accordance with the terms of that paragraph.