Mark Doucette v. Continuous Colour Coat Ltd., 1989 CanLII 3048

[1989] OLRB Rep. January 10

0520-88-OH Mark Doucette, Complainant v. Continuous Colour Coat Ltd., Respondent

BEFORE: K. G. O'Neil, Vice-Chair, and Board Members I. A. Ronson and C. McDonald.

APPEARANCES: Keith Oleksiuk, Mark Doucette and Gord Falconer for the complainant; Cheryl J. Elliott and Rich Watterson for the respondent.

DECISION OF TILE BOARD; January 25, 1989

1. This is a complaint under section 24 of the Occupational Health & Safety Act (O.H.S.A.) that Mark Doucette was suspended for exercising his right to refuse unsafe work. It is alleged that the suspension followed a previous complaint under the O.H.S.A. and was done in a manner which denied him the right to a Safety Committee member or steward on the occasion of both complaints.

2. The case is acknowledged by both sides to turn on credibility. The respondent maintains that no complaint of unsafe work was made before the complainant was suspended for refusal to follow a legal order to clean a paint roller at a time when the paint line was stopped. The complain­ant maintains he had refused an order to clean the bottom paint roller, while the line was running, for safety reasons, before he was suspended. It is common ground that cleaning the bottom paint roller or head while the line is running is unsafe. The danger in cleaning it when the line is running involves a 4 to 5 inch gap through which a strip of metal could fall and cut the employee's hands. The safety procedure manual makes it clear that the bottom head is not to be cleaned while the line is running. This was reaffirmed in the Minutes of a Joint Health and Safety Committee meet­ing dated August 21, 1986, as the result of a number of breaches of the safe procedure which were brought to the committee's attention by the complainant.

3. What follows is a summary of the findings of fact made by the Board after consideration of the evidence and submissions. Having weighed all the evidence, and assessed the demeanour of the witnesses we find that where there is conflict, we prefer the evidence of Karl Betz to that of Mark Doucette including the evidence on the crucial question of what work Doucette was ordered to do. Our recitation of the facts reflects that basic finding, our reasons for which are set out below.

4. The company's business involves painting coiled metal for uses such as refrigeration and

swimming pool walls. The operation in dispute in this matter is known as prime coating. This refers to the application of a layer of prime paint onto metal by paint rollers that are part of the mecha­nized painting line. A customer order may require either the top or the bottom of the metal strip, or both, to be painted which will determine whether one or both of the rollers is engaged during any given operation.

5. The job of the prime coater operator includes responsibility to set up the paint (primer) to be applied to the metal strip - one or both sides, according to the order. The operator monitors the application to make sure that the rollers apply the right amount. After a series of coils have been painted, he cleans the rolls to get them ready for the next order if it calls for a different kind of paint. When the prime coaters are running he assists the finish coater operator at the next paint­ing operation on the line in which the final paint coat is applied to the metal. The line may be mov­ing when one is cleaning the top head but should be stopped when cleaning the bottom head. On average it takes 5 to 6 minutes to clean both rolls. Counsel agreed, for this case only, that cleaning and setting up the bottom and top heads was one of the bundle of duties of the prime coater opera­tor, that workers received assistance from the senior operators when it was available, and that the appropriate time to do the work was when the line was not running.

6. Mark Doucette, the complainant in this matter, reports to Karl Betz, the afternoon paint line supervisor. His job is that of prime coater operator and has been for 2 years. The inci­dent in question occurred on May 18, 1988. Enzo Carlini, the day paint line supervisor, was work­ing the 8:00 a.m. to 4:00 p.m. shift, his regular shift. Doucette was working from 12:00 noon to midnight which involved four hours of overtime before his regular afternoon shift. Carlini does not generally supervise Doucette but did so for 4 hours that afternoon.

7. Doucette testified that he required assistance for cleaning all the time, and that when the rolls are changed he needs the help of a crane operator to remove them. He said that if the top and the bottom prime coater heads are both running, his primary function is to take care of the top head and he usually gets assistance from a senior operator who takes care of the bottom head, including cleaning it. Doucette maintains that there were conversations with Carlini and Steve Schtunyk, the senior foreman, prior to the incident in question, about who should do the bottom head. He maintains they came to the resolution that when the prime coater is running on the next job that the senior operator would assist in changing the rolls if necessary. Doucette does the changing alone when finish alone is going to run; he cleans up the bottom head and then goes and assists at the finish coater. When asked whose job it was to clean the bottom head, he said that he assumed the senior operators would do it because normally they do. He said he has never refused a direct order to change or clean heads on his own.

8. On May 18, 1988 Carlini received a phone call at about 3:50 p.m. from Doucette who wanted a senior operator to help him clean the bottom head. Doucette said he called asking for help cleaning the bottom roll and changing the rolls after he started cleaning the top roll. Carlini told him as soon as a senior operator was available he would send him down. The shift was to change at 4:00 p.m. which meant that some workers would be leaving and others would be coming on, leaving fewer people on the line at that moment in time. Within 5 or 6 minutes everyone would be back together again. Doucette says Carlini said there should be someone there so he continued cleaning the top roller. He finished cleaning the top and then wheeled the paint trays down to the man who cleans them. He then went and got a coffee since he had been working straight through for approximately 4 hours. Doucette returned to his station and called the crane driver who usually comes to help remove the top roll. He also called Carlini again, but did not get any assistance from him. The crane driver and he pulled out the roll. Since they were ready to run the finish on the next coat and he had finished the top he turned the speed of the bottom head down so that it would not affect the other paint and turned the pump down so that it would not pump out, which is the proper procedure.

9. After the shift change, Carlii walked down the corridor about 4:15 and saw that Dou­cette was working at his own station and already had his top roll changed. The senior operators who had come on at 4:00 or 4:05 were at the finish coater station setting up the new paint. Carlini testified that at 4:25 Doucette went to Carlini's office and said, "Are you going to send a senior operator to clean the roll? You'd better send someone down because I am not cleaning it", and then stormed out of the office. Carlini did not say anything. Carlini says that Doucette was mad because he referred to the senior operators as lazy. Doucette does not recall going to Carlini's office or calling the senior operator's names on this occasion. Carlini's understanding about Dou­cette's complaint was that there was no senior operator helping him, that he wanted a senior oper­ator to help him clean the bottom roll head.

10. Betz, the afternoon supervisor, came in at about 4:40 p.m. As usual, Carlini spoke to Betz about the upcoming jobs. He mentioned that the bottom side at the prime coater station was not yet clean. Betz testified that Carlini told him he had told Doucette to do it, but that it had not been done. Carlini testified that he did not order Doucette to clean the bottom roll because it did not need to be cleaned for the next order.

11. Doucette spoke to Betz when Betz came in. Doucette told Betz he had asked Carlini for a senior operator to come down and clean the head - that the senior operators had been at the fin­ish coater and nobody had come to give him a hand. Betz described Doucette as "a little upset". Doucette angrily called the senior operators lazy, sons of bitches, "F'ing assholes" and said that all they do is help their own kind, which Betz understood as a reference to the skin colour of the senior operators. Doucette also said it was a senior operator's job to clean up and set up the bot­tom head and that the problem was they were lazy. Betz tried to tell him it was his job to clean up and set up the bottom prime and that he was responsible for the whole area; if assistance was avail­able he would receive it which he normally does. Doucette said nothing about safety until after he was suspended. Betz told him he would have enough time to clean up and set up the bottom head and someone would probably help, but Doucette said no, "It's the senior operator's job." Betz repeated that it was not the senior operator's job, that it was part of Doucette's duties. Doucette disagreed again and therefore Betz "came out and asked Doucette" by saying, "I'm trying to make it perfectly clear it's your job." Doucette interrupted. Betz repeated that it was part of his job. Doucette replied, "No I'm not, it's the senior's job." Betz said, "Are you refusing to clean up and set up the bottom prime?" Doucette said, "Yes, the senior operator can do it." Again Betz said, "Are you refusing?" Doucette said, "Yes, the seniors can do it." Betz said, "You are suspended for failure to follow a supervisor's instructions", and told him that management would advise when he was to return. Betz testified that he expected Doucette to do the cleaning and set-up during the next set-up, not right at that moment when the machine was running. Betz said that he then told Doucette, "Come on with me and we'll see Fitz Williams." Fitz Williams is both the union steward and union safety committee representative. In his memo from shortly after the incident, Betz refers to him as the union steward; in evidence he referred to him as a health & safety representa­tive. Doucette maintains that he and Betz walked to the finish station where Carlini was and he said to Carlini, "I refused - it's unsafe to clean it at this time. If you knew what was going on ...", and that Carlini said, "Keep me out of it - it's between you and your foreman." This was not put to Carlini in cross-examination, and was therefore neither confirmed or denied by him.

12. When union counsel asked Betz about the fact that Doucette had originally asked for help which indicated that he would have been willing to do the work, Betz agreed, but said that

later on he said he would not do it at all, not just that he would not do it without help. Betz acknowledged that the work that he wanted Doucette to do could not have been done for another two and a half hours given the fact that another run had to be done first. He suspended Doucette for refusing to do it in advance. He was aware that Doucette had previously done this work by himself and he was not aware of previous refusals to work other than for health and safety matters. Betz said his understanding of why Mark wanted the senior operators' help was that Doucette was upset because he had seen senior operators on the other shift helping their buddies, that he wanted help and he had not gotten any.

13. Doucette maintains and Betz denies there was a reference to a prior discussion about tools in this conversation and that Betz said, "Mark, you're starting up - you want to start an argu­ment about the tools; you are giving me a hard time." Doucette had a discussion with Betz about his tools, a day or two before the incident for which he was suspended. Doucette asked Betz if he could hand in his tools. He said that his locker had been broken into and his personal possessions taken, including his company jacket. When he complained he was issued a new lock. However, after that there was a drill mark on the lock as if someone had tried to drill into it. He then asked Betz if he could hand his tools in and get them back when he needed them as he could not afford to replace them if they were stolen. Betz said that if he handed them in, he was resigning. The inci­dent ended as Betz walked away to find someone else in management to be with him when he explained to Mark that if he was going to give up his tools, he would be resigning. Doucette came running up behind him and apologized and said to forget about it, that he was sorry - that he had flown off the handle. Betz said, "Some supervisors don't have as much patience as I do." Doucette said, "Let's forget it," and Betz responded, "Okay".

14. Betz went to the finish area shortly after his initial conversation with Doucette and shouted, "I am sending Mark home because he is refusing to clean the bottom side for the next set up." Betz acknowledged that he raised his voice, and was upset by this point because suspension is usually a last resort. Doucette, who was behind Betz, said "No, you didn't." Betz said "Yes, that's exactly what I meant, you are suspended." Betz then said "Let's go talk to the union steward." The steward's job station was about 15 feet away, but he was not working that shift.

15. Betz and Carlini then walked up to the front of the plant. Doucette came up behind them and, according to Betz and Carlini, said to Betz, "I always did as you asked. I thought we were friends. Don't do this." Carlini testified that Doucette then said he was not cleaning the bot­tom while the line was running. Betz testified that Doucette then offered to do the cleaning at the next set-up. Betz said, "I made up my mind, you are suspended." Carlini said "Mark, you are sus­pended, please, leave the premises." Carlini testified that Betz suspended Doucette for the bal­ance of the shift and two days.

16. Doucette asked Robert Leslie, the paint-line helper, to come into Betz' office with him as a witness. Betz came in a short time later. Doucette said to Betz, "I don't know what's wrong with you Betz, we had a good working relationship." Betz replied, "You refuse to do it." Doucette said, "Yes, I refuse to do it at this time because it's unsafe. I'll do it later". Betz replied, "That's not what we discussed", meaning they had discussed doing the work when the machine was down. Doucette maintains that when he was then told to leave, he asked for a safety representative and was not granted one.

17. Leslie did not hear the conversations between Carlini and Doucette on the line. What he recalls from the conversation in the office with Betz and Doucette is the following: "We went into the office Betz, Mark and myself. Doucette asked why he was being suspended. Betz said he was being suspended because he refused to do his work. Doucette said no, I am refusing because

it's unsafe. Betz said he refused to do it and suspended him." When Leslie went into the meeting he did not know what it was for, he just knew that Doucette had been suspended. He had not been told at that point that Doucette was refusing the work because it was unsafe, or the nature of the work. He said that Betz did not want to discuss it anymore. Doucette did not explain anything to him about why he refused and what was unsafe at the meeting, or afterwards. He could recall no discussion about doing the work later. Leslie did make notes but he gave them to the health and safety inspector the next day.

18. Betz had assigned one of the senior operators to the prime area before meeting with Doucette and Leslie in his office. Doucette says on his way out a short time later he saw the senior operator changing the rolls while the line was running which made him laugh and say it was crazy. In cross-examination he testified he said something to the senior operator as he left to the effect that he should not be there. He says he cannot remember word for word what he said but he made a point of telling the safety committee and others. Betz said that he did not find out that the senior operators had cleaned the bottom head while the line was running until the Ministry of Labour inspector came. He acknowledged on cross-examination that the inspector had said that there could be charges against the company and the individuals for this. It was after this that Betz gave out safety contacts which are not discipline but are advice to employees about proper safety proce­dures.

19. Betz left the office after the meeting with Doucette & Leslie, saw Carlini and asked him to write down what he remembered. Betz then went back to the foreman's office and started to write a memo to Bob Helm, the Production Manager. He later called Steve Schtunyk, senior fore­man, at home so that he would know what had gone on. He told him he had suspended Doucette for failure to follow orders to clean up the bottom head. Schtunyk told him that he had done the right thing because Doucette had committed a serious infraction. He told Betz to leave a report for him and that he would discuss it in the morning with Rich Watterson from Human Resources and Bob Helm, the Production Manager. When Betz finished the memo he made copies and left one for Helm and one for Schtunyk.

20. Doucette acknowledged in evidence that he has done the cleaning of the bottom head "lots of times" and that he did not need the help of the senior operator because the finish coat alone was going to run on the next run. He denied that the conversation with Betz was because he wanted the help from a senior operator, although he acknowledged that he had asked for help from Carlini. He maintains it was because of the safety issue which he raised as soon as Betz told him to clean the head. He could not recall telling Betz that the senior operators were helping at the finish and that no one would come down. Nor could he recollect being upset and calling the senior operators names. However, he acknowledged saying similar things before. He first said he might have been upset at that point - that he could not recollect. Later he said he was not upset but was just doing his job.

21. Carlini made notes about the events of the 18th at about ten o'clock the following morn­ing after Louis Tolentino, the safety coordinator, phoned asking if he had heard about the work refusal. Carlini responded that he did not know that there was one. Carlini wrote a second state­ment on May 24, 1988 when the Ministry of Labour inspector was at the plant. In both statements he indicates that Doucette wanted senior operators to clean the bottom heads because he thought it was their job. Both statements also indicate that when Betz spoke to Carlini immediately after suspending Doucette, he told Carlini that Doucette was refusing to clean up the bottom during the next set-up. When asked in direct examination what Mark said at that same point, at the finish coa­ter station Carlini testified, "Mark said, I am not cleaning the bottom while the line is running." Carlini has previously seen Doucette clean the bottom rolls since whether or not he has help from a senior operator depends on work priority.

22. Carlini said that Doucette had previously objected to cleaning rolls about a week before the May 18th incident, at a time when the line was not running. He had been requested to help the finish operator clean the bottom roll. On that occasion, Carlini saw that Doucette was not cleaning the bottom roll; he asked Doucette about it, who replied that it was the senior operator's job, that he (Doucette) was not supposed to clean the bottom roll. When Carlini said, "Pardon me?" Dou­cette said, "Okay, okay, don't push me, I'll clean it." Carlini understood the objection on this occasion to be to cleaning the bottom roll at all, not just doing it alone. Doucette could not recall this incident.

23. On the morning of May 19, Schtunyk met with Watterson from Human Resources and Helm, the production Manager to discuss the previous day's incident. They decided on two days' discipline because Bob Helm, who discussed the matter with Carlini before the meeting, consid­ered it a serious infraction. They considered the nature of the misbehaviour, refusal to work, which was repeated several times to the foreman. They considered both the private and the public discus­sions along the line. They had travelled about 400 feet talking and passed other employees. Dou­cette had made it very clear that he was refusing. They therefore thought it warranted more than just a suspension for the balance of the shift. They considered that Mark had no justification and had plenty of time during the set-up to think about it. They thought he just did not want to do the cleaning as it is a very messy job. Furthermore, he was holding up the clean-up for the line helpers, who have to clean up all the equipment for each head after the rolls have been cleaned.

24. Helm said they do not impose such discipline often but do so for flagrant disregard of plant rules or misconduct. During the last 4 or 5 years there had been one-day suspensions for refusal to work by a crane operator and for an employee found sleeping. Helm said that Doucette's previous work refusals were no part of the decision. At the time he decided on the discipline, he had not spoken to Betz because he was on the opposite shift. He relied on Betz' memo and Carlini who had been there. He knew that the work did not need to be done for an hour or so after the suspension. Helm did not learn until later on May 19th when the inspector came in that Doucette was treating it as a health and safety matter. However, he said that he took into account whether it was a health and safety matter because of the comment on Betz' report, which was: "Bob: After Mark had realized what he had said he tried to make it vocally known that I had instructed him to do something that was unsafe." He determined there was no health and safety issue because there was no conversation between Betz and Doucette about health and safety. The only time it became an issue was after the discipline in the office. He had no conversation with Doucette or with any­one from the union to confirm that understanding.

25. Schtunyk went looking for Doucette around noon on May 19th, and found him with Norm Dixon, the Chairman of the Joint Health and Safety Committee, and Dean Strachan, the union president, walking towards the cafeteria. He told Doucette he wanted to see him in his office right away. Schtunyk testified that Doucette came into his office and he asked him if he refused Betz's order to clean the bottom head during the next set-up. Schtunyk says that Doucette did not give him a verbal answer that he just "nudged" his shoulders. When he asked him what that meant he repeated the gesture again. Schtunyk says that Doucette started talking about the senior opera­tors and that he had asked for help and no one came to give him a hand. Schtunyk told Doucette that he was responsible for both heads, their cleaning and setting up, and that he would get assis­tance if it was available. Schtunyk says Doucette told him that he went back to Betz to tell him that he would clean the head but that Betz would not let him go back. Schtunyk's impression was that Doucette knew he had made a mistake and that he did not really want to admit he had refused to clean the roll. Schtunyk signed the disciplinary notice and he handed it to Doucette during the interview.

26. Schtunyk said that Doucette's explanation was that the senior operator should have come to help right after the job which he had just finished, that it was the senior operators' job; one should clean the bottom prime and one the bottom finish all the time. Schtunyk testified that Doucette said nothing about health and safety at this meeting, and that he never asked for union representation. Schtunyk said he had not asked about health and safety himself because he did not think it was a health and safety problem. Carlini had told him there was no health and safety prob­lem and he was more concerned with the incident of refusing to do the work. Schtunyk said it was his understanding that it was the worker's decision whether or not he wanted someone with him as a union representative. Schtunyk said that Doucette did not ask and that if he had asked he would have brought one in.

27. Doucette gives an entirely different account of the meeting with Schtunyk. He says the union officials had told him to "make sure he got counsel from a steward and if he couldn't to say as little as possible." Doucette says that he went into Schtunyk's office and asked for a steward. Schtunyk refused. Schtunyk asked him what had happened. Doucette said, "Betz must have told you." Schtunyk said, "They've suspended you for the remainder of the week." Doucette says that Schtunyk was joking around and chuckling which he considered insulting. Doucette says that the meeting, which only lasted a few minutes, ended by his asking to speak to a steward on the way out and Schtunyk said, "No". When Schtunyk's testimony that they had discussed the whole incident was put to him, Doucette said he might have asked him if he refused and he did not answer. He says he did not say the senior operator should have helped, that he said nothing and that he remembers what he said and that he does not recall the things happening as Schtunyk testified. When he left Schtunyk's office, Norm Dixon was nearby; Doucette told him that he could not talk to him, that he had to go home and that he would talk to him next week.

28. A meeting with the Ministry of Labour inspector, concerning Doucette's alleged work refusal, was held on May 24, 1988. Doucette and Betz each gave his version of the events. No orders were issued as a result of the inspector's visit. The inspectors report cited a lack of commu­nication.

29. Betz had been involved with a refusal to work of Mark Doucette's twice before, once in April when the Ministry of Labour was called in. Doucette had arrived at midnight and noticed a haze at the prime coater area which he believed would endanger his health so Betz assigned him other work. Betz explained this to the safety representative at the time, and told a senior operator to go look at the job after informing him of Doucette's refusal to work. The senior operator was willing to work on the job but Betz told him that if it got worse or unsafe he should call him right away. Betz tried to make adjustments to the line to reduce the fumes. At 1:00 a.m. the safety rep­resentative came and asked Betz what he had done and he told him that he had been making adjustments. The safety representative said he wanted it fixed. When Betz said he could not fix it that night, he could only reduce the problem, Williams called the Ministry. The inspector called back but could see no reason to come in at 3:00 a.m. and decided to come in at 8:00 a.m. the next morning instead. Doucette eventually acknowledged on cross-examination that his allegation in the complaint that he had been denied a steward during the investigation of his previous complaint was incorrect - that in fact Betz had investigated and he had been allowed to talk to the safety represen­tative and had been assigned to alternative work. He explained that he "must have gotten mixed up", but maintained he was quite clear about what happened in May.