[1985] OLRB Rep. October 1431

2383-84-OH United Electrical, Radio & Machine Workers of Canada, Local 550, Complainant, v. Camco Inc., Respondent

BEFORE: S. A. Tacon, Vice-Chairman, and Board Members J. A. Ronson and B. L. Armstrong.

APPEARANCES: Ralph Currie, Gerry Murray and Barry Wedge for the complainant; B. R. Baldwin, R. C. Wartman and W.T'. Kuskowski for the respondent.

DECISION OF S. A. TACON, VICE-CHAIRMAN AND BOARD MEMBER J. A.

RONSON; October 18, 1985

I

1. This is a complaint under section 24 of the Occupational Health and Safety Act (OHSA) alleging that the grievors were disciplined by the respondent company for invoking section 23 of the Act. The discipline involved a written warning placed in the grievors' files as a result of the refusal by some thirty workers on the 30" range line to perform their regular duties on the morning of Friday, November 16, 1984.

2. The Board heard testimony from eleven witnesses. The hearing lasted 6 days. The Board also viewed the operation of the 30" range line at the respondent's premises. The Board has not attempted to set out the voluminous testimony in detail although the relevant factual setting is rather elaborate. In reaching its factual findings, the Board has assessed the evidence of the witnesses according to the usual factors, including the firmness of their memory, their demeanour while testifying, the consistency of their evidence, their ability to resist the influence of interest to modify their recollections, their capacity to express clearly their recollections, their responses in cross-examination and what appears to the Board to be reasonably probable when the circumstances and testimony of the witnesses are considered.

3. The Board has some further comments about the relative credibility of the witnesses. The witnesses were testifying as to a rather complex sequence of events occurring a number of months previously. After such a passage of time, absolute recall of precise detail, such as, the exact duration of meetings, the name of every person attending meetings, etc. is virtually impossible. Thus, the Board does not regard minor discrepancies on such minutiae as other than expected. The Board also considers that some apparent contradictions in the testimony are more semantic than real. For example, on Thursday, November 15th, a Ministry inspector attended at the plant, investigated the complaint on the 30" range line, left the assembly area, then returned to the line for further investigation and issued a single report. Whether this is characterized as one or two "investigations", using the term as a matter of art, is irrelevant. Likewise, on Friday morning, whether a meeting "ended" and another meeting "started" or the various discussions are described as a single meeting does not assist the resolution of the issues before the Board. Of note, too, is the fact that, while the respondent's witnesses used terms like "pulsating" to describe the movement of the line and the complainant's witnesses referred to a "jerking" movement, when the witnesses demonstrated the motion referred to, the demonstrations were virtually indistinguishable one from another.

4. The Board regards the respondent's witnesses as credible; their testimony was given in a candid, straightforward manner and subject to rigorous cross-examination on minute details. The Board does not imply that the testimony of the complainant's witnesses was disregarded. In fact, much of the evidence is not in dispute, although perhaps described in somewhat different language. However, in general, the recollection of the complainant's witnesses was less precise and their memories less reliable. And, with respect to one point, whether the line "jumped" on Friday, November 16th, the Board does not accept the testimony of the complainant's witnesses as an accurate account of events. This aspect is dealt with further, infra, at paragraph 22.

5. Having regard to the above comments, then, the Board makes the following findings of fact. For convenience, the Board has referred to November 15, 1984, as "Thursday", and November 16, 1984, as "Friday".

II

6. The respondent operates an appliance manufacturing and distribution plant in Hamilton. The matter before the Board concerns the 30" range line. It is not disputed that on Thursday morning there was a "jump" of about 18" on the long wooden slat portion of the line. One employee sustained a minor abrasion. The employees refused to work for safety reasons. Management agreed. The line was shut down and the maintenance crew was called. H. Ort, maintenance foreman, testified as to the repairs. W. Kuskowski, manager of the operations at the time and a professional engineer, also observed this repair work. Other members of management were present at various points during this process. The crew removed the guards on the drives and, as there were fresh scratches on the wooden slats, removed some slats at the turn around point between two sections of the conveyor. At this juncture, a bent piece of angle iron and broken support brackets were found. The bent angle iron was removed, the supporting brackets were welded back into place, the guide track was adjusted, the line was lubricated and debris removed. The maintenance work lasted several hours. In passing, the Board notes that on the weekend additional general maintenance on the line was carried out. It was also discovered that the main shaft was bent. This was replaced with an upgraded shaft during the Christmas shutdown.

7. While the maintenance crew was working, the employees were assigned alternate duties elsewhere in the plant by A. Weir (manager, shop operations). In fact, the employees on that shift performed those alternate duties for the remainder of their shift that day. It is appropriate to here note that the first shift works from 7:00 a.m. to 3:30 p.m.; the second shift's hours are 3:30 p.m. to 12:00 p.m.

8. About 3:00 p.m., the cleared line was started and observed by management who concluded the pulsating motion was not dangerous. The ranges were loaded back onto the line in readiness for the second shift.

9. The employees on that second shift, however, refused to work within minutes of the scheduled start, expressing concerns about the jerking, erratic motion of the line. The Board earlier noted the varying descriptions of the same motion, when actually demonstrated. For convenience, the Board refers to this motion throughout as pulsating, i.e., a slow, regular, stop and start motion. The Board does not accept the testimony of J. Flanagan that the line jumped 1 - 1-1/2 feet at the start of the second shift as being inconsistent with all other accounts of the motion, including the inspector's report.

10. The refusal on the line was discussed by a number of persons, including, for the company, Weir, I. Lamb (manager, health and safety), G. Lethbridge (line foreman), R. Baldin (manager, human resources) and, for the employees, Flanagan (union steward, as well as employee on the line), E. Thurston (union representative on health and safety committee), B. Wedge (union representative on health and safety committee). Thurston had been contacted as Wedge was briefly unavailable; Wedge joined the discussion shortly thereafter. The line was started and the employees confirmed that the motion observed was the reason for the work refusal. Management expressed its view that the line, as operating, was not unsafe. The health and safety representatives responded that the employees continued to refuse to work, for safety reasons. Management agreed to contact the Ministry of Labour requesting that an inspector investigate the refusal.

11. The company sought to provide alternate work for the employees pending the arrival of the investigator. Weir directed the employees to perform their usual task on the line but while the line was stationary. Weir intended that, once the employees completed their tasks on the units directly in front of them, the employees would be instructed to stand back while the line was moved forward to the next unit. The line would be stopped again and the employees would work on the new unit. The process would be repeated, that is, the ranges would be assembled but with the employees working only while the line was stationary. Wedge objected, asserting the assignment was improper under the OHSA; the employees refused as well. At the hearing, several union witnesses testified that the alternate work assignment was refused because the workers could not be co-ordinated on such a long line and there was a fear that the employees would still be working when the line started. However, the Board finds that no such concerns were expressed to management at the time. The workers, perhaps relying on Wedge's assessment, simply refused the alternate assignment. Management stated that a refusal to perform alternate work could constitute an unlawful work stoppage but, in fact, no one was disciplined for this refusal. At this point, everyone awaited the arrival of the inspector.

12. At approximately 5:25 p.m., Inspector Middlemas arrived, was apprised of events by the company and union representatives~ and proceeded to conduct his investigation. The line was started: the workers, Wedge, Thurston and Flanagan confirmed that the condition observed was the same as that which caused the work refusal. Middlemas then observed the employees performing their normal duties on the line. Middlemas stated that the line was "not likely to endanger" the workers. Management and the union representatives were informed of this conclusion; the union representatives confirmed they had no further input. Flanagan specifically informed the employees on the line of the inspector's assessment. Before Middlemas left the plant, however, he was informed that one individual, an A. McKenzie, was continuing to refuse to work. Middlemas returned to the line, and, in the presence of the various management and union representatives, observed McKenzie as he performed his duties on the line. Middlemas confirmed that the operation of the line was "not likely to endanger". The Board notes that McKenzie had been advised by Weir that his continued refusal could constitute grounds for discipline. Apparently, there was a disciplinary letter given McKenzie but this was removed during the grievance process. This matter is not then before the Board.

13. Middlemas was also informed of the company's proposed alternate work and stated that, in his view, having the employees perform their duties while the line was stationary constituted a reasonable alternate work assignment. Middlemas indicated that any further stoppage in response to the same motion of the conveyor was an internal matter between the company and the union. In reply to a query from the union representative, Middlemas did confirm that, if the circumstances changed, that would be a new situation. The inspector left the plant about 6:30 p.m.

14. It is not disputed that the line ran for the balance of the shift and that the employees on both the first and second shifts were paid for the entire shift.

15. On Friday, however, the first shift stopped working almost immediately. Various management and union representatives congregated in the area within a short time including, Weir, L. May (line foreman), Lamb, Baldin, L. Millen (chief steward), Wedge, G. Murray (union president), M. Downie (area steward). The Board need not determine the precise order in which or time at which these persons appeared on the scene. The employees, and one J. Glass, in particular, expressed concerns about the safety of the line's movement. Tait testified he felt the line was unsafe and feared an injury. Weir recounted to the workers the events of the Thursday second shift and the inspector's assessment. Wedge stated that he also informed the employees. When Lamb arrived on the line, he, too, informed those present of the inspector's decision. The union representative spoke privately with employees on the line and informed management that the employees were refusing to work because of the pulsating motion of the conveyor.

16. Management officials met in Baldin's office about 8:00 a.m. to discuss the situation. The various union representatives were then called in and the events of the previous day reviewed in some detail, (i.e., the stoppage on the first shift, the repairs, the stoppage on the second shift, the inspector's investigation and assessment, the operation of the remainder of the second shift without incident). The union representatives confirmed they had informed the workers of these events but stated the workers were persistent in their refusal. There was no mention that the line had jumped that morning or that the motion of the line was different from that observed by Middlemas. Murray indicated he was aware that there had been maintenance work on the line on the Thursday first shift. Wedge, of course, was directly involved in the stoppage on the second shift on Thursday. Moreover, Wedge was aware of the events on Thursday morning although he insisted he was never informed of those events by the company in his "official" capacity as health and safety representative. The union representatives agreed to hold further discussions with the employees on the line in an effort to resolve the situation.

17. During this period, Weir and May had returned to the line and canvassed each of the employees asking several questions: "Are you refusing to work and why?'~; "Do you know of the Inspector's decision the previous day?"; and "Are you aware this refusal could be considered an illegal work stoppage?". Only about four of the employees indicated they would be prepared to resume working. The rest stated the refusal was because of the pulsating motion of the line.

18. The employees did meet with their representatives (primarily Millen, Wedge, Murray and Downie) in the cafeteria. The union officials reviewed the events of Thursday and the discussions with management thus far that day. There is little doubt that the meeting was vocal, with the workers and union officials expressing their opinions. Murray testified that a number of employees stated the line had taken a sizeable jump that morning and that one worker even had fallen off the line, although he had not been injured. The testimony of Wedge and Millen was similar, although there was some suggestion that more than one employee had been injured on the Thursday first shift. Murray did not recall the names of any of the employees who said the line jumped nor the worker's name who allegedly fell off the line. Nor was there any other employee named as having been injured on Thursday. Murray, however, was evasive when pressed on cross-examination as to whether he relayed these details to management at the subsequent meetings. Wedge and Millen were also evasive and defensive when cross-examined on this aspect. The workers unanimously "voted", through a show of hands, not to return to work but to continue to refuse.

19. The union representatives again met with management, again confirming the employees' continued refusal to work despite the communication of information about the events of the previous day, including the inspector's conclusion. Murray stated that the workers feared that the line might jump again and that the union had done all it could to get the workers back on the line. Wedge suggested calling the Ministry of Labour. The company responded that the situation was identical to that ruled safe the previous day and that the inspector stated further refusals in respect of the same circumstances were to be handled internally. The union representatives did not indicate that the line had jumped that morning or that the situation had changed from the Thursday second shift. The company noted that it viewed the stoppages as illegal and was considering discipline. The union officials cautioned against such action because of possible further disruptions and urged that the Ministry be called. The company stated that repeated stoppages on the 30" range line could have a serious impact on other areas of the plant, i.e., that large numbers of workers in the "feeder" areas for the line would have to be sent home. Kuskowski commented that such stoppages were harming productivity and the firm's competitive position and, if the manufacture of the units was halted, units might have to be imported for distribution from other plants, such as, Louisville. Moreover, dealer tours had been organized for the following week and, if the lines were down, the company would lose business and this would translate into fewer jobs. Kuskowski also stated that, to conduct the major overhaul as the union was suggesting should be done, would require a two-month shutdown. The Board notes the evidence is conflicting as to the point in the various company­union discussions that Kuskowski made the statements. In the Board's view, it is not necessary to finally resolve this conflict as there is no dispute that the statements were made. Throughout the various discussions, the union representatives, although pressed repeatedly for specifics as to the workers' concerns with the safety of the line, only replied in generalities, that is, the employees feared another jump. Finally, however, the union stated that the line had, in fact, jumped that morning, at which point the company agreed to call the Ministry once more.

20. During these discussions, Weir had been directed to start meeting in smaller groups with the workers on the line to ascertain whether there was any confusion remaining about the Thursday decision of the inspector. The first such meeting was about to start when the inspector arrived and everyone returned to the line.

21. Inspector Middlemas arrived at 10:45 a.m. and was informed of the work refusal by the company and union officials. Middlemas canvassed some twenty-five workers on the line as to their reasons for refusing to perform their duties; all indicated they refused to work as the conveyor was "pulsating" and "jerking" and, therefore, could be hazardous, causing cuts on hands and arms or falls from the line. As all employees were giving the same responses, some using the word "pulsating" and some "jerking", Middlemas did not continue to the very end of the line. No workers stated the line jumped that morning. It should also be noted that the workers, when asked to demonstrate the line's motion, did so using the same motion as the witnesses. The line was started for Middlemas to observe. However, the belt conveyor (as opposed to the slat conveyor) stopped running after a few minutes. The maintenance crew repaired the problem (a slack chain drive) by removing a few links. The rubber conveyor belt itself was also "squared-up" with the rollers by hand. As the repairs were not completed until the workers' lunch break, the investigation did not proceed further until after that break. After lunch, Middlemas observed the line, took appropriate measurements of the line's motion and virtually every worker on the line confirmed that the motion at that point was the same as that objected to (one or two said that the line was somewhat smoother). Wedge testified he informed Middlemas that the line jumped that morning. Middlemas concluded that the motion of the line was not likely to endanger any of the workers on the line. Union and company officials were clearly notified of this assessment. Murray indicated the workers would return to their duties. Middlemas left the plant at approximately 12:30 a. m. Finally, it should be noted that the rubber covered slat power conveyor portion of the line (separately powered from the other sections) broke down about 1:30 p.m. At this point, the company sent the morning shift home in accordance with usual practice in circumstances where the repairs would continue until the shift end and there was no alternative work. All employees were paid from the start of the shift, throughout the refusal, until they were sent home early.

22. At this point, it is appropriate to deal with the alleged "jump" on the Friday morning. The company witnesses consistently testified that a second jump was not raised by any workers on the line or union officials until late in the sequence of discussions, as noted in paragraph 19 above. The testimony of the union witnesses regarding the alleged jump was seriously contradictory. For example, Millen testified that all the workers on the line were stating the conveyor jumped from the commencement of the work refusal itself and had told Weir who arrived on the scene early. Tait said that the line jumped twice on the Friday morning. Wedge said he heard that the line had jumped but was vague as to details, although he insisted he told the company officials early in the discussions. Murray implied the jump was raised during the cafeteria meeting but, as noted, was evasive as to whether he relayed this to management immediately thereafter. Tait, when describing the cafeteria meeting, did not state that the alleged jump that morning was discussed at all, let alone that there were injuries or an employee had fallen off the line. Beyond these internal contradictions, the testimony on this matter is not consistent with other testimony of those witnesses, the company witnesses or the documentary evidence. Wedge, for example, acknowledged Lamb had stated at the first meeting that "there would have to be something different" from the Thursday second shift before the company would agree to call the Ministry again. This statement only makes sense if the alleged second jump was not raised until later. The inspector's report nowhere mentions that the workers said the line jumped Friday, just that the line was "jerking and pulsating". This latter account is consistent with Weir's testimony as to the workers' responses when he polled them and with a number of descriptions of the inspector's investigation. Further, the inspector's report only mentions the concern about possible cuts or falls, it does not record such incidents. Nor were any injuries reported to the company. Finally, Wedge testified that he personally told Middlemas of the alleged jump on Friday. Firstly, this statement would have been made in the presence of other union representatives, yet none reported that comment. Secondly, Wedge signed the inspector's report, a report which omits all mention of an alleged fact of fundamental importance and a report which concludes, "Mr. Murray, Mr. Wedge and Mr. Millen stated that they had no further input into the investigation". Whether the union witnesses honestly believed or had convinced themselves that the line jumped on Friday is not a matter which the Board need finally resolve. However, the only logical finding of fact in the circumstances is that the line did not jump that Friday morning.

23. Company officials, including Baldin, Wartman, Alvarez (department general manager), Kuskowski, R. Fleetham (corporate vice-president, human resources), reviewed the circumstances of the work refusals on Thursday and Friday. The company decided that some discipline was warranted for the continued work refusal by employees on the first shift on the 30" range line on the Friday after those employees were clearly informed by the company and the union of the investigation on the Thursday second shift and the inspector's conclusion. The form of discipline was a written warning placed on the record of each of the thirty workers who refused.

III

24. Counsel for the respondent reviewed the evidence, stressing contradictions in the testimony of the union witnesses, particularly with respect to the alleged jump on Friday morning. Counsel submitted the respondent's witnesses were more credible and their testimony should be preferred. It was argued that the discipline, in the form of a written warning letter, was properly imposed for the continued refusal to work after the clear communication to the workers of the events of Thursday, including the inspector's report. That is, even assuming the workers had reason to believe the line was unsafe initially, in accordance with section 23(3) of the OHSA, after those communications, the workers did not have reasonable grounds to believe the line was unsafe, as set out in section 23(6) of the Act. With respect to several specific statements by company officials which were impugned by the complainants, counsel made the following submissions: Weir's statements on Thursday that the refusal of alternate work could be considered an illegal work stoppage was fair comment in the circumstances as the employer has the right under section 23(10) of the Act to assign such work and, in any event, no discipline was imposed for this refusal; Weir's statements on Friday that, in the face of the inspector's decision, the work stoppage could be considered unlawful, constituted appropriate clarification of the company's position. Kuskowski's statements during the discussions with union representatives on Friday that a major overhaul of the line would require a two-month shut down and continued work stoppages could result in the importation of goods for distribution from other plants, including Louisville, were not threats in the circumstances but factual comments. Counsel referred to Auto Jobbers Warehouse Ltd., [1981] OLRB Rep. Dec. 1715, reconsidered [1982] OLRB Rep. May 649, in support, particularly for the proposition that an inspector's report should be given paramountcy unless there is strong evidence otherwise. In this case, counsel submitted there was no basis for lessening the weight of that Thursday report.

25. The complainant's representative also reviewed the evidence and submitted that, as the testimony of the company's witnesses was contradictory, the evidence of the complainant's witnesses should be preferred. Firstly, it was asserted that the line had jumped on Friday morning and, thus, the employees' refusal fell within section 23(3) of the Act. In the alternative, it was the complainant's position, as stated earlier in the proceedings, that, even if the line had not jumped, the employees on the first shift were not bound by the inspector's assessment given during the second shift on Thursday and, therefore, were entitled to a separate inspector's investigation and report. The complainant's representative submitted the company had not followed proper procedures on Thursday morning, i.e., the inspector should have been called in the morning, notwithstanding the company's agreement that the line had jumped and that an investigation and repair were needed. It was asserted that the inspector's decision on Friday was subsequent to repairs that day and, thus, not applicable to the condition earlier that morning and, in any event, the inspector had not conducted a proper investigation. Auto Jobbers, supra, AMS Diamonds, [1981] OLRB Rep. Nov. 1534 and Dowty Equipment of Canada Ltd., [1983] OLRB Rep. Sept. 1451 were referred to in support. The complainant's representative contended the various statements by Weir and Kuskowski, the company letter of November 19, 1984 and the disciplinary letter were reprisals for the work refusal, in contravention of section 24 of the OHSA. Finally, it was asserted that the respondent knew the line was in desperate need of a complete maintenance overhaul but did not want that overhaul during the scheduled dealer tours. Thus, the representative of the complainant argued that the company resisted investigation of the line with the union health and safety committee, a "coverup" in effect, and decided to portray the workers as engaging in an illegal work stoppage.

IV

26. It is necessary to set out here several sections of the Act:

27. -(3) A worker may refuse to work or do particular work where he has reason to believe that,

(a) any equipment, machine device or thing he is to use or operate is likely to endanger himself or another worker;

(b) the physical condition of the work place or the part thereof in which he works or is to work is likely to endanger himself; or

(c) any equipment, machine, device or thing he is to use or operate or the physical condition of the work place or the part thereof in which he works or is to work is in contravention of this Act or the regulations and such contravention is likely to endanger himself or another worker.

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

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

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

(c) a worker who because of his knowledge, experience and training is selected by the workers to represent them,

who shall be made available and who shall attend without delay.

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

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

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

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

(c) any equipment, machine, device or thing he is to use or operate or the physical condition of the work place or the part thereof in which he works or is to work is in contravention of this Act or the regulations and such contravention continues to be likely to endanger himself or another worker,

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

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

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

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

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

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

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

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

(a) dismiss or threaten to dismiss a worker;

(h) 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.

(7) Where on an inquiry by the Ontario Labour Relations Board into a complaint filed under subsection (2), the Board determines that a worker has been discharged or otherwise disciplined by an employer for cause and the contract of employment or the collective agreement, as the case may be, does not contain a specific penalty for the infraction, the Board may substitute such other penalty for the discharge or discipline as to the Board seems just and reasonable in all the circumstances.

V

27. As stated in Inco Metals Co., [1980] OLRB Rep. July 981 (at para 59), a decision under the legislation preceding the OHSA but confirmed in subsequent cases, the standard is an objective one:

“whether the average employee at the work place, having regard to his general training and experience, would, exercising normal and honest judgement, have reason to believe that the circumstances presented an unacceptable degree of hazard to himself or to another employee."

There is nothing, of itself, improper in a refusal by a group of employees rather than a refusal on an individual basis: Inco Metals, supra. The worker need not ultimately be correct in his or her assessment provided that there were reasonable grounds for the refusal: AMS Diamonds, sup ra.

28. The Board also considers it useful to set out the following passage from International Harvester Company of Canada, Limited, [1983] OLRB Rep. June 898:

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

In other words, an objective standard must be satisfied in respect of a refusal to work subsequent to an employer investigation and credible explanation that the workplace is safe and, ultimately, in the face of an inspector's investigation and report. The Board, in this case, need not deal with the standard required to fall within section 23(3), i.e., whether the worker has "reason to believe"

29. The inspector's report itself is discussed in Canadian Gypsum, [1978] OLRB Rep. Oct. 897 at 902 as follows:

an employee who continues to refuse to work in the face of an investigation and the decision by a neutral expert that these conditions do not exist, must meet the substantial onus of establishing that he has reasonable cause to believe otherwise and is entitled to the protection of the Act.

As noted in Auto Jobbers, supra, however, while an inspector's report might be expected to resolve a dispute, such a report is not conclusive but is given a weight appropriate to the circumstances of the investigation itself.

30. The application of these principles to the highly unusual facts of the instant case is not straightforward. The complainant's first argument, predicated on the alleged jump on the line on Friday morning, fails in view of the factual determination by the Board that no such jump occurred (see, para. 22, supra). In the alternative, the complainant submitted that the refusal on Friday was protected by the OHSA because of the workers' own assessment at the time and because the first shift Friday was not bound by the inspector's assessment on the second shift on Thursday.

31. There was some evidence that, for some time, the workers on the 30" range line were unhappy with the condition of the line and the age of some of the components~ specifically, the wooden slat conveyor. Breakdowns of one sort or another were not infrequent. As was raised in the discussions on the Friday, the workers wanted a major overhaul on the line. There was also some evidence that the employees on the second shift on Thursday were aware of the jump on the line that morning before their refusal to work. It is also likely that at least some of the employees on the first shift on Friday were aware of the events of Thursday afternoon before their shift started Friday morning. However, the Board need not determine whether the workers had "reason to believe" the line was unsafe in respect of the initial refusal on Friday morning in view of the company's response to that refusal. The Board notes, however, that its assessment of credibility, particularly of Tait (the only "refusee" who testified), would affect the Board's view of the bona fides of the initial refusal.

32. When confronted by a concerted refusal to work on Friday morning, the company repeatedly attempted to ascertain the precise concerns of the workers with respect to the safety of the line and to ensure that the employees were aware of the inspector's decision on Thursday. There is no doubt the workers were aware of that report, at the latest, after the employees' meeting in the cafeteria. From virtually the moment of the refusal, the employees had direct access to a number of union officials, including Wedge, a health and safety representative who had been present on Thursday, to confirm the company's explanation.

33. The union representative submitted that the first shift on Friday was not bound by the inspector's decision on the Thursday second shift. With respect, this mischaracterizes the process. It is not a question of whether the first shift is "bound" by the earlier decision in a formal, legal sense. The knowledge of that report, though, does go to the reasonableness of the refusal on Friday. The Board has found that the movement of the line on Friday was the same as that leading to the refusal on Thursday and regarded by the inspector as safe. That the second shift worked for over five hours on Thursday without incident after the inspector's decision and that the employees on Friday were also aware of this is yet another factor in assessing the reasonableness of their refusal.

34. On balance, the Board concludes that, subsequent to the company's explanation and the "cafeteria" meeting, the workers did not have reasonable grounds to believe the condition of the line constituted a danger. At that point, the worker were aware of the repairs on Thursday morning and of the refusal and the inspector's decision on the second shift that day. The workers knew that their health and safety representatives had been present at the Thursday investigation. The workers had direct access to the those representatives on Friday, in addition to access to other union officials. In view of the statements by the company and the union representatives, it would not have been reasonable for the workers to conclude that the conditions were different on Friday morning from those observed by the inspector on Thursday (and, in fact, as ultimately confirmed by the inspector again on Friday). There may well be circumstances in which it would be reasonable for a worker to disregard explanations offered by the company and even his or her own health and safety representatives and union officials. However, the only worker who testified (Tait) offered no reason for doubting those explanations, he gave no cogent reasons for persisting in his refusal to work subsequent to those explanations. No other workers testified as to their reasons for continuing to refuse to work. Indeed, the complainant's representative asserted that there was no point in calling the other workers as their testimony on the grounds for refusal would not differ from Tait' s evidence. Consequently, thee Board finds the refusal was not one protected by the OHSA.

35. The Board notes that the union representative argued the condition viewed by the inspector on Friday was different from that existing when the employees refused to work at the start of the shift. However, the evidence of Tait that the line ran smoother after the repairs at Friday noon (i.e., the removal of a couple of links in the chain drive) is not credible when weighed against the evidence of company witnesses and the inspector's report that the employees confirmed that the motion he observed was the same as that objected to that morning.

36. The Board need only comment relatively briefly on several other positions taken by the complainant's representative. The Board does not consider the company acted improperly on Thursday morning when the line jumped. The company officials did not dispute that the cause of the jump had to be discovered and corrected. As noted earlier, the maintenance crew did locate and correct the problem. The statutory scheme culminating in an inspector's investigation and report is intended to provide a mechanism for resolving disputes about a worker's concerns as to safety risks, in the circumstances set out in section 23(1) of the Act. On Thursday morning, there simply was no "contest of persuasion" to use the phraseology from International Harvester, supra. Moreover, the company, when faced with the refusal on the second Thursday shift, did comply with the statutory scheme for resolving such disputes. In view of the events on Thursday and the numerous discussions on Friday between the company and union officials and workers, there is no substance whatsoever to the assertion that the respondent was engaged in a "cover up" and deliberately decided to characterize the workers' conduct as an unlawful work stoppage to prevent an investigation of the 30" range line.

37. As is clear from the reports, on each occasion, the inspector canvassed the workers as to their concerns and observed the operation of the line. On Friday, moreover, the inspector conducted various measurements on the line. Millen testified that the investigation on Friday only lasted two or three minutes. This is just not credible and conflicts with the evidence of all other witnesses. During the investigation, the union health and safety representatives (and other union officials on Friday as well) were present, given an opportunity to express their views and Wedge signed the report. Thus, the submission that the inspector's investigation, or at least the Friday investigation, were improper or insufficient in any way is unsupported by the evidence.

38. The complainant's representative objected to Weir's statement to workers on the Thursday second shift that the refusal to perform alternate work (i.e., on the stationary line) could be considered an unlawful work stoppage. The Board notes the inspector's opinion that the work provided was safe. However, as there was no discipline imposed for refusing that work assignment, the Board need not deal further with this matter.

39. There is no doubt that the discussions between company and union officials on Friday became somewhat heated. Given that the union wanted a complete overhaul of the line, Kuskowski' s statement that that process would necessitate a two-month shutdown does not amount to intimidation or coercion contrary to section 24(1) of the Act. Weir' s statement to employees on Friday that the company could regard the continued refusal as an unlawful work stoppage is also not a violation of the Act; Weir was stating the company's position in response to the workers' refusal. The Board has more difficulty with Kuskowski's statements regarding the importation of products from other plants. There is a fine line between a statement of fact and a threat regarding alternatives open to the company in response to a work refusal. However, in this case, the Board has found that there were no reasonable grounds for that work refusal, as the company correctly assessed. Not unexpectedly, the frustration of company officials increased as the refusal persisted despite repeated attempts to resolve the matter. In the circumstances~ the Board does not regard these statements as contraventions of the OHSA.

40. Having found that there were no reasonable grounds for the refusal on Friday as stated in paragraph 34 above, in accordance with section 24(7) of the Act, the Board must consider the choice of penalty imposed by the company. As noted, the discipline consisted of a written warning placed in the file of each "refusee". Indeed, the warning of further discipline is itself restricted:

You should clearly understand that should the same situation reoccur, the company will consider you to have acted unreasonably and we will advise you that if you are not prepared to perform work which is available and not unsafe, you will be directed to leave the premises and will be subsequently advised of disciplinary action up to and including discharge.

The company has selected a mild form of discipline and, in the Board's view, there is no justifiable basis on which to interfere with that choice of penalty. Finally, the Board does not regard the letter of November 19, 1984, addressed to all employees as discipline or intimidation; the letter is merely a recitation of events and the company's position, including a request for co-operation in making a positive impression during the dealers' tours.

41. For the foregoing reasons, then, the Board dismisses the complaints.

DECISION OF BOARD MEMBER BROMLEY L. ARMSTRONG;

1. This complaint under the Occupational Health and Safety Act, section 24, alleges that the grievors were disciplined by the respondent company for invoking section 23 of the Act.

2. The testimony indicated a legitimate safety complaint was made by the workers at Camco Inc. on the first shift 7:00 a.m. to 3:30 p.m. on Thursday November 15, 1984. There was a jump on the 30" range line and the employees refused to work for safety reasons. The line was shut down and the company maintenance crew was assigned to make repairs to the line. The Ministry of Labour was not called to investigate the condition or cause for the jump in the line.

3. From the evidence a pulsating condition or erratic jerking motion had been present in the line for some time. The workers were unhappy with the condition and frequent breakdown and wanted an overhaul of the line. The pulsating or erratic motion was still present after the repair was completed by the maintenance crew. At about 3:00 p.m. the line was ready for the second shift, 3:30 p.m. to 12:00 p.m.

4. They refused to work shortly after the start of the shift, as they were concerned with the erratic jerking motion of the line. The Ministry of Labour was called by the company requesting an inspector to investigate the work refusal. Inspector Middlemas arrived and conducted his investigation and stated the line was "not likely to endanger the workers." The erratic pulsating condition of the line was the concern of the second shift and Mr. Middlemas. The inspector was not asked to deal with the original condition causing the work refusal of the first shift, the jump in the line.

5. I can understand the concern of the workers on a line moving a few inches at a time suddenly moving one foot to eighteen inches. That jump was the cause of the original work refusal and there was no assurance the reason for the jump was rectified despite the repairs to the line.

6. Repairs were performed by the maintenance crew to the line over the weekend and the line was overhauled during the Christmas shutdown. This would indicate the respondent company knew the line still needed repairs to rectify the original condition notwithstanding the five hours of production by the second shift on November 15.

7. On Friday November 16, the employees and Mr. J. Glass, in particular refused to work and expressed concerns about the safety of the line and a fear of injury. In my view, it is not necessary to determine if the line did jump on Friday morning. The fear of a jump and injury was expressed and workers need not wait until someone loses life or limb to determine an unsafe condition exists. Section 23.3 of the Act is clear and gives the workers the right to refuse to work if there is reason to believe an unsafe condition exists.

23.3 (a) Any equipment, machine device or thing he is to use or operate is likely to endanger himself or another worker.

8. The union representatives did all they could to get workers back to work. But there was a fear the line might jump again and they suggested the Ministry of Labour be called. The company stated that repeated stoppage on this line could have a serious impact on other areas of the plant. The workers in the "feeder" area for this line would have to be sent home. Mr. Kuskowski, who was manager of operations commented that the work stoppages was harming productivity and the companies competitive position, and if production of the range unit was halted, units might have to be imported from Louisville. A dealers tour had been organized for the following week and if the lines were down, the company would lose business which would mean fewer jobs.

9. It is clear the company was concerned about production and the planned dealers tour, and was not prepared to close the line down for a complete overhaul to correct the cause of the jump. They decided disciplinary action was necessary for the continued work refusal by the workers of the first shift and placed written warning on the record of each of the thirty workers on that shift who refused.

10. The workers on the first shift had reasonable grounds to believe the line was unsafe on Friday November 16, and that was the reason for their refusal to work. Therefore, in my opinion, the disciplinary action taken by the company should be withdrawn from the employees files. I also view Mr. Kuskowski's statement regarding importation of products from Louisville as threatening and intimidating, giving the workers a choice between jobs for themselves and fellow workers or producing in a perceived unsafe environment.