Ontario Labour Relations Board

[1985] OLRB Rep. February 344

0213-84-OH Wilfred George Love, Complainant, v. Toronto Transit Commis­sion, Respondent, v. Amalgamated Transit Union, Local 113, Respondent Union

BEFORE: S. A. Tacon, Vice-Chairman, and Board Members W. H. Wightman and W. F. Rutherford.

APPEARANCES: W Love for the complainant,' Gordon F. Luborsky, F. Shaw, I. H. MacPherson, Bruno Iannacito, John Horan for the respondent company; Bryan Hackett, Derrick Wyeld and Barry Stringer for the respondent union.

DECISION OF THE BOARD; February 14, 1985

1. This is a complaint under section 24 of the Occupational Health and Safety Act (OHSA) alleging that the complainant was dismissed by the respondent company for invoking section 23 of that Act. Further, the complainant also alleged contravention of section 68 of the Labour Relations Act. The complainant asserted that the representation accorded the complainant by the respondent union and the union's decision not to proceed with the grievance to arbitration were contrary to the provisions of section 68. Both allegations were heard together as the relevant circumstances and witnesses were common to both complaints.

2. The Board heard testimony from fourteen witnesses; the hearing lasted five days. The Board has not attempted to set out the testimony in detail. Rather, 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 general comments about the relative credibility of the witnesses at this point. The Board regards the witnesses called by the respondent as highly credible —their testimony was given in a candid, straightforward manner. The complainant challenged the credibility of the respondent's witnesses asserting that on crucial points their accounts of particular incidents were almost verbatim. The Board rejects this assertion. In the Board's view, the testimony of these witnesses represents their best recollections of various events which occurred a number of months earlier. The Board finds no basis to support an allegation of collusion and, indeed, the complainant himself did not couch his assertions in such terms, when questioned on the point by the Board. The Board also does not doubt the sincerity of David Mahon and Garry Downey called by the complainant. Unfortunately, their testimony is of relatively little assistance as, at the critical moments, they were not in the immediate vicinity so as to be able to hear specific conversations. The Board further accepts the testimony of Derrick Wyeld and Barry Stringer who, although called by the complainant, were the union officials involved in the incident and handled the complainant's grievance.

4. The Board also considers it appropriate to comment on the complainant's credibility at this point. The Board does not consider that the complainant was deliberately lying or trying to mislead the Board when testifying. However, the Board is also convinced that the complainant recalls events according to his perceived immediate interest in the matter. Consequently, the complainant's testimony cannot be relied upon as an accurate account of events wherever there is a conflict between his testimony and that of the other witnesses noted in paragraph 3.

5. Having regard to the above comments, the Board makes the following findings of fact.

6. The complainant was assigned as a "slipman" to the number 13 run on route #5 05, the Dundas to Roncesvalles line, on Thursday, February 16, 1984. A "slipman" is a driver who replaces the regular driver in case of illness, etc. The "number 1 3 run" refers to the number 13, i.e., cars are sent out from the station at five minute intervals and numbered consecutively.

7. The complainant took over the vehicle, PCC 4442, from the driver on the previous shift, one J. Comeau, at 1:17 p.m. Comeau had driven the vehicle for his entire shift without encountering any difficulty with the brakes, doors or driver's seat which he could recall while testifying or reported at the time. Further, PCC 4442 had had a routine safety check on the previous day, February 15, 1984, which indicated the vehicle was in proper working order.

8. The "PCC car" is the older model of street car. The brake pedal controls three types of brakes — dynamic brakes, drum brakes and magnetic track brake. The braking system is set out in detail in the instruction manual for operating personnel but maybe briefly summarized as follows. Depressing the brake pedal 2 1/2" triggers the dynamic brake and then the drum brake in sequence. Depressing the brake pedal more than 2 1/2" activates the track brake and the more the pedal is depressed, the greater the braking effect of the track brake. Constant use of the track brake for normal stops is not encouraged as this causes rail wear.

9. At 1:30 p.m., the complainant called transit control from Shaw Street and requested a change-off vehicle because of weak drum brakes, an unstable swivel seal and an "erratic" door switch. Transit control agreed to the change-off without question. The complainant stated that he could proceed cautiously to Broadview Station for the change-off and gave 2:45 p.m. as his estimated arrival time. The complainant actually arrived at Broadview at 2:05 p.m. The complainant attributed this error to his misreading the "way-schedule" and the Board need not comment on this further. One consequence of the error, of course, was that no change-off car was available at Broadview at 2:05 p.m.

10. At approximately 1:54 p.m., PCC 4442 reached the stop at Dundas and Ontario Streets. John Moses, a TTC Inspector for over 35 years, boarded the car, asked the complainant why he was approximately five minutes late and pointed out that this was the third consecutive day the complainant had been late. [ The Board notes in passing that this delay was at least in part the result of the complainant's taking over PCC 4442 a few minutes late from the previous driver]. The complainant replied in a loud voice, audible to the approximately 75 passengers, that the car had bad brakes, that he was not going to have any more accidents since he'd already been fired before for having accidents and that he had ordered a change-off vehicle for Broadview Station. Moses informed the complainant that the car following would be "short-turned" (to compensate for the delay) and that the complainant should proceed cautious­ly to Broadview. The complainant was asked for and reluctantly gave his badge number. As Moses left the car, the complainant loudly asked if Moses was threatening to write him up, to which Moses replied, "no".

11. In his written report, dated February 16, 1984, the complainant stated that he requested Moses to inform transit control that he would be arriving at 2:00 p.m., not 2:45 p.m., and would take the vehicle no further. The Board considers this statement (and the complain­ant's view of the incident with Moses) as self-serving and inaccurate.

12. On arriving at Broadview, the complainant called D. Wyeld at the union office. Wyeld confirmed that the complainant had the right, as an employee, to invoke the Occupational Health and Safety Act, (referred to as OHSA) and told the complainant to call transit control. The complainant did call transit control, invoked the OHSA and stated he was out of service and "the vehicle, it doesn't move". Transit control replied "Okay. We'll get you looked after". The Board noted that there were several calls to Wyeld that afternoon although each is not recounted in detail. After completing various telephone calls, the complainant went back to the platform to discuss the situation with the drivers of other cars rather than returning to his vehicle.

13. The complainant had left PCC 4442 positioned on the track so that all other cars subsequently entering the station from the Dundas line and the King line were blocked from leaving the station. Not surprisingly, the station quickly became congested. It is not necessary to determine the precise number of patrons on the platform; even the complainant put the figure at about 1 50. Normal service was interrupted for about forty minutes as a result of the complainant's actions.

14. Acting inspectors Haering and Mooney arrived at Broadview at virtually the same time, about 2:30 p.m., although in different vehicles. Haering proceeded toward PCC 4442 and, as he could not see the operator, entered the vehicle to see if it could be safely moved out of the way so that the blocked vehicles could exit the station. Just as Haering started the vehicle, the complainant disconnected the power pole, thus stopping the car. Mooney ran across to the complainant and asked what was going on. The complainant told Mooney about the supposed "defects", turned to the crowd in the immediate vicinity of the car and exclaimed that he had invoked the OHSA, that the vehicle was unsafe and that Mooney was not qualified to move the car.

15. Mooney told the complainant he was going to check the vehicle, entered the car and drove it some thirty feet. Mooney informed transit control that he was prepared to operate the vehicle (out-of-service) to Russell Division but was ordered to couple the car so that PCC 4442 could be pushed to Russell Division. Haering had also contacted transit control and received the same instructions. At no time was the complainant asked or instructed to operate the car. Mooney and Haering did ask the complainant to assist in the coupling procedure; the complainant refused without giving a reason.

16. The car was coupled by Mooney and acting inspector, Kovescak. The two vehicles proceeded to the Russell car house with a TTC cab in front and a TTC truck following. The complainant was asked to assist in giving hand signals to the pusher car but again refused. The complainant sat in the pusher car for the trip to Russell Division. Mooney sat in PCC 4442 giving the hand signals to the pusher car as required. The procession arrived at Russell at approximately 3:00 p.m. without incident.

17. The Board has set out the "highlights" of the events at Broadview Station and the procession to Russell Division rather than giving an account in minute detail. The complainant asserted that Haering and Mooney had "tested" the vehicle's brakes contrary to the OHSA and, further, that he refused to sit in PCC 4442 giving hand signals while the vehicle was being pushed because he would then have been in "control" of the car. The Board considers both arguments a specious use of the terms "test" and "control". PCC 4442 had no power supply, its "motion" was entirely dependent on the pusher car. The Board regards the actions of the TTC officials at Broadview and en route to Russell as appropriate in the circumstances. The Board also regards the complainant's version of these events as embellished and self-serving. Since the pusher car was driven by one Garry Downey, who was called as a witness by the complainant, the complainant's account of the "procession" could have been corroborated. However, Downey was not asked questions about this time period.

18. At Russell, superintendent Church instructed the complainant to return to Ronces­valles Division and see the divisional superintendent, J. Gordon. Gordon had been in telephone contact with transit control and Wyeld during the afternoon on several occasions and was aware of the events at Broadview. The shop steward, W. Bolychuk, was in Gordon's office for part of the time and was also kept informed.

19. The complainant arrived at Roncesvalles shortly after 4:00 p.m. and wrote out an incident report in the outer office. Gordon began reviewing the report with the complainant in his (Gordon's) office, noting the considerable discrepancies between the complainant's version and the accounts he had heard. The assistant district manager, E. Von Zittwitz, entered the office and was introduced to the complainant, at which point the complainant said he refused to stay for an interview with two TTC officials present. As the complainant left the office, Gordon informed him he was relieved of duty. Gordon testified the complainant was relieved of duty because of his conduct at Broadview Station, but not for invoking the OHSA, and, further, that it is customary to relieve drivers from duty pending an investigation where serious misconduct is alleged. The union was immediately advised that the complainant had been relieved of duties.

20. The complainant had requested that a shop steward be present for the Gordon interview. The collective agreement does not require the attendance of a shop steward at that stage nor had Gordon received such a request before. The complainant was informed that Bolychuk was in the vicinity but, apparently, the complainant left before Bolychuk could be located. The complainant was not directly refused a steward, however.

21. The Board also notes that the complainant telephoned Wyeld upon arriving at Roncesvalles and was advised by Wyeld to fill out the incident report, turn the report in to Gordon and report for work the next morning at the usual time.

22. The complainant proceeded to a friend's house where the events were discussed and beer consumed. The group became progressively more annoyed with the situation and the complainant decided to picket Roncesvalles station the next morning. Picket signs were prepared and placed in the complainant's car.

23. About 10:20 p.m., the complainant returned to Roncesvalles station. The complainant loudly and persistently demanded of the clerk that he be allowed to sleep over at the station in the drivers' room and that the clerk wake him at 5:00 a.m. the next morning so that he could picket the division. Inspector Ian Roy Stringer came out of the office to intervene. The complainant belligerently responded to a request to leave. [The Board refers to this witness as inspector Stringer so as to to avoid confusion with Barry Stringer, a union official.] Inspector Stringer returned to the office to avoid a physical confrontation with the complainant and called transit control. Supervisors J. Evans and E. Catney arrived (separately). Stringer finished his paperwork and left the division without again encountering the complainant. The Board notes that the complainant's version of this incident is not credible and that this incident is presented in summary form.

24. Supervisor Evans was instructed by transit control to proceed to Roncesvalles immedi­ately, to "play the situation as low-key as possible" but call back if additional assistance was required. By the time Evans arrived, the complainant was not in the office. When Catney arrived shortly thereafter he stated that the complainant's car was still in the parking lot. As Catney had formerly been an inspector at Roncesvalles, he knew the complainant.

25. The complainant then returned to the office, still belligerent. The complainant conceded he swore and used abusive language. Apparently, the complainant had telephoned the Toronto Star in the interim and advised them of his version of the day's events. Catney persuaded the complainant to go with him "for a coffee". When the two returned, the complainant was calmer. Evans testified he smelled alcohol on the complainant's breath. At this point, Bolychuk arrived, spoke with the complainant briefly and the complainant finally left the station for the night. Catney, Evans and Bolychuk reviewed the evening's events. Bolychuk stated the complainant planned to demonstrate early the next morning at the station and "didn't want to listen" to the union steward's advice. Catney informed Evans that he had seen picket signs in the complainant's car. The two updated transit control on the evening's events and the planned demonstration.

26. At about 5:15 a.m., on Friday, February 17th, the complainant commenced picketing across the street from the Roncesvalles station. The placards stated "relieved of duties without shop steward" and "disciplined for invoking the OHSA". At 6:30 a.m., another inspector approached the complainant and was informed by the complainant that (in the complainant's view) he had been disciplined for invoking the OHSA and, as a candidate for the health and safety committee he wanted to show his fellow employees "he wasn't going to take it lying down

27. About 8:00 a.m., Bolychuk asked the complainant to come to the telephone to speak to Wyeld and told him that the ministry inspectors (McGowan and Farndon) had also arrived. The complainant refused to stop picketing until the City Pulse crew arrived to interview him and film his activities. The complainant's conduct during this time clearly revealed his preoccu­pation with personal publicity. After City Pulse left, the complainant proceeded to have a coffee in the nearby restaurant before entering Roncesvalles division at about 9:30 a.m. to speak with the various officials from the union, the TTC and the ministry.

28. The complainant was interviewed by McGowan and Farndon in the presence of Bolychuk. The ministry officials then informed Gordon there was no violation of the OHSA in their view as the complainant had not been instructed to operate the vehicle after the Act had been invoked. The officials' written report confirmed this assessment. The ministry officials, however, agreed to proceed to Russell station to inspect the vehicle. The complainant and Bolychuk also attended at Russell division, as did J. Honan, a safety co-ordinator with the TTC.

29. The Board does not intend to recount in detail the events at Russell. It is sufficient to state that the vehicle was inspected and found in proper working order. The Board rejects the complainant's innuendo that the TTC had "covered up" the defects as entirely without foundation.

30. On Monday, February 20th, the complainant accompanied by Wyeld, met with Gordon at Roncesvalles. The events of the preceding Thursday and Friday were reviewed. The complainant was advised that a further interview was scheduled at the operations training centre

(OTC) for the next day.

31. Wyeld is a long-time member of the union's executive board representing the Ronces­valles, Queensway and Lansdowne drivers. His duties include handling grievances at the local level, essentially to resolve problems if possible before the formal step 1 level of the grievance procedure (at OTC). Wyeld only attends at step 1 if so requested by the grievor and would deal with a grievance beyond step 1 only if the assistant business agent was unavailable. The Board accepts Wyeld's testimony that going to the divisional office to report to the superintend­ent is not considered "reporting for discipline" under the collective agreement. Being relieved of duties at the divisional level does not become "discipline" until the step 1 decision, as the individual would receive full compensation for the period of investigation if exonerated. That is, "relieved from duties" simply is an interim status to permit an investigation to be conducted.

32. The first meeting at OTC between the complainant, again accompanied by Wyeld, and Thomas Bell, operations counsellor, ended abruptly. The meeting was rescheduled for February 24, 1984. The Board does not consider it necessary to set out the exchange at this first encounter nor to recount in detail the discussion at the rescheduled meeting. At that second meeting, Bell reviewed the events of February 16th and 17th and the complainant's general record. The complainant had started employment with the TTC in July 1981. Since then he had been interviewed at the divisional level at least fourteen times and four times at the OTC level with respect to collisions, accidents, public relations matters and attendance. In October 1983, the complainant had been dismissed for his involvement in a rear-end collision and for his general record. That dismissal was grieved by the union and the complainant was reinstated on appeal on the condition that he improve his general record to TTC standards. In fact, although reinstated as of October 25, 1983, the complainant had only returned to driving a few days before February 16th. At the step 1 meeting on February 24th, Bell informed the complainant that he was terminated because of the events of February 16th and 17th and his general record; the complainant was also advised of his right to appeal and he indicated an appeal would be filed.

33. It is convenient to summarize briefly the contact between the complainant and the union to this point. On Thursday, February 16th, the complainant spoke with Wyeld by telephone on several occasions. Wyeld informed the complainant he was entitled, as an employee, to invoke the OHSA if he felt conditions were unsafe and later advised the complain­ant to hand in his report to the divisional superintendent at Roncesvalles and report for duty the next morning. Bolychuk had spoken with the complainant in the late evening of Thursday when the complainant had returned to Roncesvalles and caused the incidents already men­tioned. Bolychuk had also spoken with the complainant the next morning while the complainant was picketing and had endeavoured to persuade the complainant to stop picketing, to speak with Wyeld by telephone and meet with the ministry officials. As noted, the complainant refused to stop until after City Pulse filmed and interviewed him. Wyeld could not attend at Ronces­valles that morning as he was in an executive board meeting but was in contact with Bolychuk and repeatedly tried to contact the complainant.

34. Wyeld accompanied the complainant to the February 20th meeting with Gordon and both meetings with Bell at step 1 at OTC. Wyeld met with the complainant for about 15-20 minutes before the February 21st interview. Wyeld was informed by the complainant of the supposedly conflicting reports of the complainant's witnesses as to the events at Broadview. Wyeld informed Bell of this and interviewed the drivers (Mahon and Downey). Wyeld was also later involved in the decision of the executive board not to proceed with the grievance to step 4, arbitration.

35. The complainant asserted that the union had improperly represented him on previous occasions. While the Board need not actually assess the nature of the representation accorded the complainant as these matters are not strictly before this Board, the Board would comment that the assertion is without merit. On the evidence, the union investigated the complainant's grievances even when a matter was raised long after the event. In one instance, the union refused to go to arbitration because reports of several union members conflicted with the complainant's version. On another occasion, after the dismissal in October, 1983,the union actively repre­sented the complainant and succeeded in winning his reinstatement on appeal. In addition, there was no indication whatsoever of any personal animosity directed by union officials toward the complainant.

36. Barry Stringer, the assistant business agent, handled the step 2 and step 3 appeals (and had handled the complainant's appeal in October, 1983). The complainant instructed Stringer that the appeal was to be based on the ORSA only. The complainant was also insisting that he be reinstated with full compensation and the entire events of February 16th and 17th be struck from his record. Stringer was aware of the complainant's version of events from lengthy conversations with the complainant and from reviewing the TTC officials' reports. Stringer also spoke with Mahon, Downey, Wyeld and Bolychuk. At the step 2 meeting, Stringer accompanied the complainant and challenged the discipline as instructed. The assistant district manager, Von Zittwitz responded that the complainant was dismissed for his general record, including the events of the 16th and 17th, but not for invoking the OHSA.

37. The step 3 meeting was held with Stringer, the complainant, Ed Shaw (manager, labour relations) and Ian McPherson (assistant manager) present. At this meeting, Stringer again based the appeal on the OHSA, as demanded by the complainant. The company's position did not change.

38. The Board would comment here that Stringer repeatedly advised the complainant that the complainant's demands were unreasonable, that he should settle for reinstatement. The complainant demanded that Stringer conduct the case as instructed. Stringer considered that the complainant had no justification for invoking the OHSA, that his conduct warranted some discipline but that there was a chance of reinstatement if the grievance was based on the complainant's general record. The complainant adamantly refused to listen to this advice throughout the grievance process.

39. After step 3, the grievance was considered by the union executive board. The com­plainant attended the meeting, presented his version of events and was questioned by the board. The executive board consists of the business agent, assistant business agents, vice-presidents, secretary-treasurer, six traffic board members and six maintenance board members. The complainant refused to modify his position. The executive board decided not to proceed to arbitration; the complainant was advised of the decision and his right to appeal to the general membership meeting by Wyeld.

40. The complainant appealed to the general membership meeting. Again, the complain­ant stated his position and refused to permit the grievance to go forward on his general record despite the public entreaties of at least three of the executive board members, including Stringer. As is usual, the executive board explained its recommendation to the members present. The executive considered that the arbitration would fail if argued on the OHSA issue and feared setting a harmful precedent. Wyeld, however, spoke on the complainant's behalf, as did three or four other union members. The general membership meeting, by a 28-10 margin, voted against proceeding to arbitration. The Board would add that the complainant had apparently regularly attended and participated at a number of general membership meetings in the latter half of 1984. The complainant asserted that the vote was a sham since so few attended and, of those present, a number were executive board members. The Board rejects this submission. There was no suggestion that the meeting was improper in any way. The vote cannot be considered "tainted" merely because so few union members chose to attend. And, there is no basis for assuming that, had the turnout been larger, the outcome would have differed.

41. The complainant also appealed to the international and shortly thereafter filed this complaint with the Board. The international ultimately rejected the complainant's appeal but, given these proceedings, it is not necessary to deal further with this aspect.

42. The Board notes, as well, that the complainant was running for election at the time of the events in question and acknowledged that his decision to invoke the OHSA was designed to show his concern with health and safety issues. The complainant also conceded that his perception of the incident with Moses at Ontario Street influenced his decision to invoke the OHSA at Broadview.

43. Counsel for the respondent company asserted that the evidence of the company witnesses should be preferred to that of the complainant. With respect to the OHSA itself, counsel submitted that, firstly, the complainant fell outside the protection of the OHSA as the complainant did not have "reason to believe" that the equipment was likely to endanger himself or another worker [section 23(a)]. Secondly, it was argued that the complainant was at no time ordered or requested to operate the vehicle once the complainant invoked the OHSA at Broadview station. Moreover, transit control had readily agreed to the complainant's earlier request for a change-off vehicle even though the OHSA had not been mentioned at that point and it was the complainant who offered to drive the vehicle to Broadview. The "second tier" of the statutory scheme, then, was never reached, in counsel's view. Counsel reviewed the evidence and contended that the TTC had acted properly in moving the vehicle from Broadview station and in terminating the complainant for his conduct on February 16th and 17th. Counsel submitted the complainant's invoking of the OHSA had played no part in the company's decision to discharge the complainant. Counsel acknowledged that the Board had the authority, under section 24(7) of the OHSA, to substitute another penalty for the discharge but asserted that the Board should not set aside the termination in the circumstances. Counsel referred to a number of cases in support, including Burlington Carpet Mills Canada Ltd., [1980] OLRB Rep. Oct. 1361; Josh Industries Incorporated, [1981] OLRB Rep. June 718; International Harvester of Canada, Limited, [1983] OLRB Rep. June 898; Dowty Equipment of Canada Ltd., [1983] OLRB Rep. Sept. 1451; General Motors of Canada Limited, [1984] OLRB Rep. Mar. 459; Re Steel Co. of Canada Ltd., (1973) 1973 CanLII 2143 (ON LA), 4 L.A.C. (2d) 315; Re Eastern Steelcasting (1981), 1981 CanLII 4395 (ON LA), 28 L.A.C. (2d) 310; Inco Metals Company, [1982] OLRB Rep. Sept. 1315; R. v. Hawke, 1974 CanLII 463 (ON HCJ), [1974] 3 O.R. (2d) 210 (Ont. High Ct.).

44. With respect to the company's argument, the complainant submitted that he had, in fact, been disciplined for invoking the OHSA on February 16th and for his general concerns with safety matters over the past year. The complainant stated he had invoked the OHSA as a last resort, to bring attention to what he considered were a myriad of unsafe practices and conditions. Once he decided to run for election for the health and safety committee, the complainant said he felt he had to "take a stand" and "couldn't pass the buck on safety". The complainant also reviewed the evidence and submitted the issue of credibility should be resolved in favour of his testimony and that of Downey and Mahon rather than the company's witnesses. Specifically, the complainant stated he had not been insubordinate at Broadview and had not been ordered to assist in coupling with the car.

45. The complainant characterized his being relieved of duties by Gordon as discipline in breach of the collective agreement. [On this point, the Board has indicated its acceptance of Wyeld's testimony that discipline was not imposed at Gordon's level; see paragraph 32 above.] The complainant also described the incident with Moses as an attempt to intimidate him for driving safely toward his change-off at Broadview. The Board rejects this assertion on two bases:

Moses' account of the incident is preferred to that of the complainant; the complainant had not yet invoked the OHSA.

46. The complainant referred to a number of cases in support of his position, including particular excerpts which he asserted expressed his feelings on safety matters: Re Hunter Rose Co. Ltd. (1980), 1980 CanLII 4100 (ON LA), 27 L.A.C. (2d) 338; International Harvester, supra, at 911; Inco Metals, supra, at 1321; Re Robertshaw Controls Canada Inc. (1982), 1982 CanLII 5138 (ON LA), 5 L.A.C. (3d) 142; Re North Central Plywoods (Division of North wood Pulp and Paper Ltd.) (1982), 1982 CanLII 5014 (BC LA), 8 L.A.C. (3d) 406.

47. The complainant acknowledged that his record was not exemplary. However, in the complainant's view, events just "snowballed" from the point at which he had invoked the OHSA at Broadview. Because he had invoked the OHSA, the complainant considered that he should not be penalized for the "snowball" effect. In short, the complainant requested the Board to find in his favour and reinstate him so that he could continue to "promote safety" without the threat of dismissal if the OHSA was again invoked.

48. With respect to the alleged violation of section 68 of the Labour Relations Act, the complainant asserted that the union had only superficially represented him during the grievance process. Further, the union had not investigated matters properly and had believed the compa­ny's witnesses, in the complainant's view. The complainant contended that, having initiated the grievance based on the OHSA, the union was obligated to proceed to arbitration on that basis. The Board notes that some of the complainant's other points regarding the union's conduct have been dealt with infra (see paragraphs 18, 30, 36 and 41, for example).

49. Counsel for the respondent union asserted that the union had acted properly in investigating the incidents and in representing the grievor within the strict limitations imposed by the complainant himself. Moreover, the complainant repeatedly rejected the union's advice as to how to proceed. Counsel contended that the appropriate procedures were followed throughout, including at the executive board and general membership meeting levels. Specifi­cally, the complainant was aware of the grievance process and actively participated at the executive board and general membership meetings. Counsel did not review the evidence at length but submitted that the complainant, although not deliberately lying, was not a credible witness. In summary, counsel argued that there was no evidence on which to find a violation of section 68 and, indeed, the union had properly represented the complainant, as it had in the past. Counsel referred to R. E. Brown, The 'Arbitrary', 'Discriminatory' and 'Bad Faith' Tests under the Duty of Fair Representation in Ontario, [1982] 60 Can. Bar. Rev. 412 and the cases cited therein (particularly at 415, 420, 42 1-2, 423, 434, 440, 453 and 459) in support. Finally, counsel urged the Board not to lightly overturn the union's decision not to proceed to arbitration. That decision had been reached after full consideration, firstly, of the merits of the grievance itself and, secondly, of the impact on the long-term relationship between the union and the company of arbitrating this grievance.

50. Counsel for the respondent union also stated he refrained from requesting costs because of the Board's general policy on awarding costs and because legitimate complaints might thereby be discouraged. However, counsel did request that the Board dismiss the complaints but direct that the complainant compensate the numerous witnesses who were subpoenaed, some of whom attended for several days waiting to testify and others who had no knowledge of the events relevant to the allegations before the Board. The Board is not unsympathetic to the circumstances of witnesses who are subpoenaed and suffer financial loss as a consequence. This unfortunate situation is exacerbated where, as here, several of those subpoenaed either did not testify at all or, conversely, attended for several days before being called. Nonetheless, the Board does not consider it appropriate to order compensation as requested. The prospect of such liability could be just as daunting to a complainant as an award of costs. There may be truly extraordinary circumstances where the Board might consider such relief but such an order would not be appropriate in the present circumstances.

51. The OHSA entitles a worker to refuse to work in specified circumstances. Section 23(3) of the Act provides:

(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.

52. The OHSA also protects workers who have exercised their rights under the OHSA. 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.

53. The complainant claimed to have invoked the OHSA at Broadview station because of his concern for health and safety, specifically the defective drum brakes, door toggle and driver's seat. The Board should be hesitant to conclude that the complainant was motivated by other considerations, given the importance of the health and safety matters: Cooper Construction Company Ltd., [1981] OLRB Rep. Aug. 1113. In this case, however, the Board has concluded that the complainant did not act out of safety concerns in respect of PCC 4442 at that point in time. There is no question that the complainant regards himself as strongly committed to safety issues. That particular vehicle had passed a safety inspection the previous day and had been driven for the preceding shift without any indication the drumbrakes were "weak". The vehicle also passed a safety inspection at Russell division subsequent to the complainant's allegations. The Board also noted that the drum braking system is integrated with the track brakes. That is, merely depressing the brake pedal slightly more than 2 1/2" automatically activates the track brakes. There was never any suggestion that the track brake system was not in good working order.

54. The Board regards the complainant's decision to stand for the health and safety committee and the incident with Moses at Ontario Street as the real basis for the invoking of the OHSA at Broadview. That is, the complainant had resolved to "publicize" his commit­ment to health and safety issues to win election to the committee. This is not to say the complainant selected that day to invoke the OHSA before going to work. Rather, the Board is of the view that the complainant gets "caught up" in events in pursuit of an abstract principle. In that sense, the complainant's description of the "snow ball effect" is apt. It was apparent the complainant disliked driving PCC vehicles in general; he requested a change-off almost immediately on starting his shift. The exchange with Moses just exacerbated the complainant's low regard for supervisors and inspectors. In the complainant's mind, the earlier request for a change-off vehicle simply justified all the subsequent events as another "health and safety" fight with the complainant leading the way. The complainant's insistence that the union challenge his dismissal solely under the OHSA adds further support to the Board's view that the complainant acted from motives outside the protection of the OHSA, i.e., beyond the right to refuse to perform work which is likely to endanger himself or another worker.

55. Moreover, if the Board was satisfied that the complainant had a bonafide "reason" to invoke the OHSA, Mr. Love's complaint under section 24 of the OHSA would not succeed as the employer has met its onus of proving that no action was taken against the complainant for exercising his rights under the OHSA. (See, for example, Baltimore Aircoil of Canada, [1982] OLRB Rep. Mar. 327.) In the instant case, the Board has no doubt that the respondent company dismissed the complainant for reasons other than the complainant's invoking of the OHSA at Broadview. Firstly, the Board would stress that transit control, without question, agreed to a change-off vehicle when telephoned by the complainant from Shaw Street. It was the complainant who unilaterally suggested he drive the car to Broadview. Secondly, the complainant was at no time ordered or requested to operate the vehicle once the OHSA had been invoked at Broadview. The complainant's refusal to operate the vehicle was accepted by transit control without hesitation. Transit control even ordered the vehicle to be coupled up and pushed to Russell division after Mooney stated he was willing to drive the vehicle to Russell.

56. The protection in section 24(1) against reprisals cannot be construed as a licence for a worker to engage in clearly improper conduct subsequent to invoking the OHSA (see: Josh Industries Incorporated, supra). The complainant committed numerous acts of unprovoked insubordination and other employee misconduct: refusal to couple up the disabled vehicle or to assist in giving hand signals to the driver of the pusher car; the statements made to patrons on the platform at Broadview regarding the TTC and safety; the abusive conduct later on the evening of the 1 6th toward Stringer, Catney, Evans, etc.; the picketing of the Roncesvalles division on the 17th. These examples merely highlight instances of unacceptable behaviour by the complainant on the 16th and 17th of February.

57. The Board, then, finds that the complainant was discharged for cause and not for invoking the OHSA. The Board must next consider whether, under the authority of section 24(7) of the OHSA, the Board should substitute another penalty for the dismissal. See, Baltimore Aircoil, supra; Inco Metals Company, supra. The Board is not persuaded that there is any basis on which to interfere with the company's choice of penalty. In addition to the clearly unacceptable behaviour of the complaint on the 16th and 17th of February, there is the complainant's general record. To say that the general record, as summarized in paragraph 33, cannot be described as exemplary is an under statement. Nor is the complainant a long-service employee. In short, there are no mitigating factors to warrant interference with the company's decision. The Board, then, finds that the penalty imposed was just and reasonable in the circumstances.

58. The Board now turns to an examination of the alleged violation of section 68. Section

68 reads:

68. A trade union or council of trade unions, so long as it continues to be entitled to represent employees in a bargaining unit, shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the unit, whether or not members of the trade union or of any constituent union of the council of trade unions, as the case may be.

69. The duty imposed by section 68 has been elaborated in a number of Board decisions. One of the most useful summaries is found in The Municipality of Metropolitan Toronto, [1978] OLRB Rep. Feb. 143 (the Gormley case) at paragraph 18:

Over the years many aspects of the duty of fair representation have settled into place. The Board has repeatedly held that in order not to act in an arbitrary manner in the processing of a grievance, the union must direct its mind to the merits of the grievance and act on the available evidence. While the effective operation of the grievance machinery requires that unions also be allowed to consider factors beyond the merits of a particular grievance in deciding whether to process a grievance on to arbitration, considerations of this nature must have their roots in the welfare of the bargaining unit and the bargaining process and must not be based on irrelevant facts or principles. Additionally, a union is prohibited from processing a grievance in bad faith. An employee must not become the victim of the union's ill will such that a dislike for an individual dictates the path of the grievance rather than the merits of the grievance or legitimate concerns for the welfare of the bargaining unit and bargaining process. The prohibition against a union acting in a manner that is discriminatory functions to prevent a union from distinguishing among members in the bargaining unit unless there are good reasons for so doing. To avoid acting in a manner that is discriminatory, the duty requires, in general, that like situations be treated in a like manner and that neither particular favour nor disfavour befall any individual apart from the others unless justified by the circumstances. The duty ,does not make the union the guarantor for every aggrieved employee. Instead, the duty requires that the union consider the position of all of its members and that it weigh the competing interests of minorities or individuals in arriving at its decisions.

60. It is also appropriate to refer briefly to another decision, Antonio Melillo, [1976] OLRB Rep. Oct. 613 at paragraph 14:

61. Most unfair representation complaints arise, as did this one in the context of a union decision not to carry a grievance to arbitration. It is well established that the duty imposed on a trade union by section 60 does not require it to process through to arbitration every grievance which a bargaining unit employee wishes proceeded with. An employee has no absolute right to have his grievance arbitrated (see Gebbie and Longmoore, [19731 OLRB Rep. Oct. 519). The key assumption underlying this legal conclusion is that the settlement of disputes and grievances of employees under the terms of a collective agreement is an extension of the collective bargaining process, a process in which the interests of particular individuals must of necessity yield to the legitimate interest of the group.

62. In the instant case, the union officials proceeded with the complainant's grievance throughout the steps in the grievance procedure. An investigation was conducted, the complain­ant's suggested witnesses were interviewed. In the context of that investigation, however, it was only sensible for the union to consider the reports of the company witnesses as well. The union clearly "turned its mind" to the merits of the grievance. It was an eminently reasonable (and, indeed, a correct) assessment that the OHSA had not been violated by the company in the circumstances. That assessment was communicated to the complainant on numerous occasions by a number of union officers.

63. Moreover, the union repeatedly urged the complainant to rescind his instructions as to how the grievance was to proceed and permit the union to argue the case on the basis of the complainant's general record. These entreaties were also ignored by the complainant who stubbornly clung to his own perception of events.

64. The complainant's grievance was considered by the executive board in accordance with the union by-laws. The complainant attended that meeting, presented his case and answered questions. The decision of the executive board not to proceed to arbitration was presented to a general membership meeting, again, as per the by-laws. At that meeting as well, the complainant presented his position. Other union members, including Wyeld, spoke on the complainant's behalf. The vote affirmed the executive board's decision not to proceed to arbitration.

65. In the Board's view, there was nothing in the union's conduct which could be said to contravene the duty imposed under section 68 of the Act. Indeed, the union officials stressed that the grievance would have undoubtedly proceeded to arbitration had the complainant agreed to argue the case on his general record rather than the OHSA. The complainant, quite simply, was the author of his own misfortune with respect to the alleged violation of section 68 of the Act.

66. Accordingly, the complaints alleging violation of the OHSA by the respondent company and alleging contravention of section 68 of the Act by the respondent union are hereby dismissed.