Bettes v. Boeing Canada/DeHavilland Division, 1990 CanLII 5628

[1990] OLRB Rep. December 1213

1761-88-OH; 1563-89-U Jill Bettes, Complainant v. Boeing Canada/DeHavilland Division, Respondent; National Automobile, Aerospace and Agricultural Implement Workers Union of Canada, (CAW-Canada) and Jill Bettes, Complainants v. Boeing Canada/DeHavilland Division, Respondent

BEFORE: S. A. Tacon, Vice-Chair, and Board Members J. A. Ronson and D. A. Patterson.

APPEARANCES: Daniel A. Harris, Gus Goncalves and J. Bettes for the complainants; L. Bertuzzi, H. A. Dyer and P. Irwin for the respondent.

DECISION OF THE BOARD; December 20, 1990

1. Board File 1761-88-OH is a complaint pursuant to the Occupational Health and Safety Act (OHSA) in which the complainant alleges that she has been disciplined for exercising her right to refuse to work under the OHSA. Further, she alleges that various other actions on the part of the respondent company or specified individuals also constitute reprisals for exercising her rights under the OHSA.

2. During the proceedings, a complaint was filed with the Board (Board File 1563-89-U) alleging violation of section 80(1) of the Labour Relations Act (the Act). As noted below, J. Repace was a witness in Board File 1761-88-OH; the section 80(1) complaint impugned certain alleged conduct by the respondent ostensibly in connection with the fact that Repace testified on behalf of the complainant. Counsel were afforded full opportunity to address the substance of the section 80(1) complaint, as pleaded, as well as the appropriate procedure for considering that complaint in connection with the OHSA complaint. The Board ruled orally as follows:

The Board has considered the submissions of counsel with respect to the section 89 complaint just filed. In the Board's view, an allegation that section 80 of the Act has been violated is very serious. However, also in the Board's view, the allegations as pleaded do not disclose a prima facie case of breach of section 80.

3. The Board heard testimony from 16 witnesses. As well, extensive documentary evidence was filed. The proceedings involved many days of hearing. Credibility was a critical issue and will be considered in some detail below.

4. It is appropriate to deal with several matters at this juncture. During the hearing, the Board made a number of rulings with respect to the admissibility of documentary material and in response to objections to questions which one or other counsel sought to ask a witness. At the conclusion of the hearing, counsel for the complainant requested that the Board issue its reasons, given orally in respect to several rulings, in written form. The Board has considered that request but, except as noted in paragraph 2, does not regard it as necessary or usual practice for the Board to reproduce such oral rulings in written form in its final decision.

5. As noted, J. Repace was a witness in the OHSA complaint called on behalf of the complainant. Repace was agreed by counsel to be an expert witness in the area of environmental tobacco smoke. A number of his articles were filed in evidence. Further, Repace testified with respect to various calculations he made grounding his conclusion that the complainant's work environment presented a danger from secondhand smoke. The Board has some additional comments infra with respect to the issues to be determined by the Board in the instant complaint. At this point, however, the Board makes the following observations about the mathematical analysis of Repace. The data on which the analysis was based, that is, the information given to Repace, proved inaccurate in several respects. To give two examples, the assumptions as to the number of smokers and non-smokers in the procurement area and the dimensions of the room - both critical to the mathematical calculations - were incorrect. Further, the analysis was derivative, that is, based on figures generated through measurement of the capacity of the variable air volume (VAV) system at artificially induced settings rather than the measurement of the system in normal operation. Repace acknowledged he was not an expert in ventilation engineering and was unfamiliar with the VAV system in question. His assumptions with respect to the system's operation under specific conditions contradicted other testimony (that of V. Krebs) which the Board prefers. Moreover, Repace concluded that he had erroneously double-counted the expected level of background particulate matter in his equation. [Counsel for the respondent argued Repace committed another double-counting error as well but the Board need not deal with that argument.] For these reasons, and the Board's conclusion that the issues addressed by Repace's evidence are not those to be determined by the Board (see paragraph 70, 71 infra), the Board regards that evidence as of little assistance.

6. It is useful to sketch the main characters and witnesses involved. The respondent is the DeHavilland Division of Boeing. The "company" refers to DeHavilland; R. Woodard is President. The complainant, J. Bettes, is a long-service employee working in the procurement office at the time of the instant events. V. Torrance is a friend and fellow employee in that department. Besides Bettes and Torrance, the other employees in procurement initially involved with the work refusal were: F. Sharpe, B. Bain, R. McKenzie, J. Solosky and A. Tinianov. Bettes' first line supervisor during part of the relevant period was S. Munroe. Her next level of supervision was P. Maxwell (purchasing manager); B. Aarons is another purchasing manager in procurement. Both (plus others) report to G. Maybay, the director of procurement, who in turn reports to B. Applegate, vice-president of procurement. In the human resources area, G. Rehding is director of human resources development and personnel reporting to G. Anderson, vice-president of human resources. W. Bordian is manager, labour relations. In health and safety, C. Hollister (supervisor) reports to B. Williams, manager. The office employees are represented by Local 673 and the plant by Local 112 of the Canadian Union of Auto Workers (referred to as the union or the CAW). G. Goncalves is - health and safety representative for Local 673; F. Sharpe (one of the refusing employees) is the complainant's committee person. G. Botic is health and safety representative for Local 112; P. Falconi is that Local's benefits representative. Several Ministry of Labour (MOL) inspectors, technicians, or other personnel were involved at various points including J. Harkins, P. Dranitsaris and Dr. Frith.

7. As mentioned, credibility is critical to the determination of this complaint. The Board has assessed the credibility of the witnesses according to the usual factors. In reaching its findings of fact, the Board has weighed, the testimony, including the relative credibility of the witnesses, in the context of the documentary material filed and what is reasonably probable in the circumstances. In the Board's view, C. Hollister was a highly credible witness whose testimony the Board accepts. In addition to her viva voce evidence, Hollister kept careful notes (which were before the Board) of the events in which she was involved. As well, Hollister has not been employed by the company since May 1988 and, therefore, is detached from the proceedings. W. Bordian is also regarded as a highly credible witness and his account of events is accepted by the Board. The Board notes, too, that G. Goncalves was a credible witness; indeed, his testimony differed only in minor areas from that of Hollister and Bordian. It is not necessary to deal separately with each witness given that the Board's factual findings reflect the assessment of their credibility in the context noted above. However, the credibility of the complainant and V. Torrance merits brief comment.

The complainant's memory was selective and much of her testimony was self-serving. In the Board's view, her perception was clouded by her convictions. Accordingly, her testimony is disregarded wherever it conflicts with that of others. These comments apply likewise to V. Torrence.

8. In the above context, then, the Board next outlines the relevant facts, for convenience, in chronological order for the most part. The Board has not attempted to recount all the events in minute detail.

FACTS

Wednesday. March 9. 1988

9. On Wednesday, March 9, the complainant told several of her co-workers that she intended to refuse to work under the OHSA because of second-hand smoke in the procurement office. She spoke to those individuals early that morning to gauge their reaction to her plan and enlist, at least, their moral support. The conditions in the office that morning were not unusual. The complainant testified that she just made up her mind to refuse that particular morning. It is likely that the recent passage of a no-smoking bylaw in the City of Toronto (not applicable to the company given its location in North York) served to give the issue an immediacy. Shortly after the shift commenced at 8:00 a.m., the complainant informed Maxwell, procurement manager, of her refusal. Within minutes of her entering his office, six other employees in the procurement department informed Maxwell of their refusal to work as well.

10. Hollister, health and safety supervisor, was contacted immediately and met with the seven refusing employees. All complained of symptoms such as headaches, sore throats, nausea and congestion which, in their view, was the result of exposure to second-hand smoke. The work refusal was based on their belief that secondhand smoke was injurious to their health.

11. The company policy on smoking at that time designated certain areas as non-smoking (e.g. restrooms, lobbies, meeting rooms, classrooms, office hallways and stairs, etc.) with a goal of a total smoke-free workplace to be achieved in stages. Each employee could designate his/her individual desk (or separate office) as smoke-free or not. Further, smoking was prohibited in two-thirds of the cafeteria.

12. The seven employees initially were directed to take whatever work they could to the cafeteria and await further notice. The complainant acknowledged that little work was actually accomplished and the employees discussed the events thus far amongst themselves. Although the cafeteria was not physically divided into smoking and non-smoking areas, the seven regarded this as a "safe" area.

13. Maybay (director of procurement) and Applegate (vice-president of procurement) were advised of the refusal in short order. Applegate instructed the refusing employees to gather in the procurement conference room (an enclosed no-smoking area). In his view, the conference room could be utilized as a work area given its proximity to the procurement office and computer terminals and the equipment in the room, such as tables and a telephone. In contrast, the cafeteria, located in a separate building, lacked the necessary equipment to carry out the job duties of the seven employees. Further, over the staggered lunch period of 11:30 a.m. to 1:00 p.m., the cafeteria would be crowded and work would be impossible. The employees refused to work in the conference room, however, on the ground that the conference room and the procurement office area were on the same ventilation system and, thus, the exposure to secondhand smoke would continue, notwithstanding that the conference room itself was no-smoking. As it was close to noon by this time, the seven went to lunch.

14. The seven met again in the conference room at approximately 12:30 p.m.. Present for the company were Applegate, Maybay, Maxwell, Hollister and B. Williams (health and safety manager). The health and safety representative for Local 673 (Goncalves) and for Local 112 (G. Botic) attended as did B. Mackie (Local 673 chairman). Several MOL officials were there as well; some were already on site at the time of the refusals conducting a yearly health and safety audit. An inspector asked the employees their reasons for refusing. The response was that the exposure to secondhand smoke was injurious to their health and, additionally, that the air circulation was poor and the ventilation system recirculated air contaminated by secondhand smoke. Several employees expressed their view that the current smoking policy was not being enforced, that smoking should be banned except for designated areas and that the smokers and non-smokers in the procurement office should be segregated. The MOL advised the seven that air sampling tests would be conducted to measure for several chemicals as there was no single index for detecting the presence of secondhand smoke. Further, the guidelines for the ventilation system would be checked to ensure that system was operating efficiently and other measurements (temperature, heat and humidity) would be taken. Dr. Frith of the MOL told the seven he would need a medical release from each so their respective medical histories could be reviewed with their family physicians and each employee was to submit a medical report from his/her physician with respect to their medical condition. Frith noted that even if the tests did not indicate a problem generally, an MOL order could still be issued if so warranted by an employee's specific health problems. Frith also met privately with each of the seven in the health centre, another enclosed no-smoking area.

15. While the refusing employees were meeting privately with Frith, a further meeting was held in the office of the president, R. Woodard. Those present included: Woodard himself, Applegate, Maybay, Williams, Hollister, P. Irwin (director, employee relations) and R. McCall (senior vice-president) for the company; Botic, Goncalves, Mackie for the union. The immediate work refusal was discussed as was the company's current smoking policy. Woodard stated he wanted to resolve the work refusal and asked for suggestions. Goncalves did suggest that the current policy be enforced and that the non-smoking employees in procurement be segregated from those who smoked. The company indicated its goal was a total smoking ban but wished to implement that gradually with company support for employees who wanted to quit smoking. Applegate confirmed that the current smoking policy would be clarified and enforced, an employee bulletin would be released on April 15, 1988 outlining the company's plan for employee participation in a "last pack" smoking cessation program wherein the company would pay eighty per cent of the fee involved. As well, the company would wait for the MOL report on air sampling and medical information, seek to accommodate the non-smokers and check that the ventilation system was operating properly.

16. At approximately 3:30 p.m., Goncalves, Botic, Mackie, Applegate, Maybay, Williams, Hollister, Irwin and the seven refusing employees met again. Applegate reviewed the company's long-term goal of becoming smoke-free and that a bulletin to that effect would be issued on April 15, 1988. Reference was made to the "last pack" program. He confirmed that the current policy would be clarified and enforced and that the ventilation system would be checked. He indicated the company was prepared to segregate the smokers and non-smokers. The seven employees were asked individually if each was prepared to try that interim accommodation. All but Sharpe and the complainant agreed on the basis that their refusal could continue if the company's proposals were not carried out. The meeting ended with Applegate's statement that those employees willing to try the office rearrangement were to meet the next day at 8:00 a.m. in the procurement conference room while the others should proceed to the health centre.

Thursday, March 10, 1988

17. The complainant met the other refusing employees outside the procurement conference room at 8:00 a.m. the next day. She had not decided whether to attend the company meeting. In her words, she did not want to be "left out" of events. A. Lowrie (the health centre nurse) stated to the employees that those not wishing to participate in the desk rearrangement could accompany her to the health centre. The complainant responded angrily and refused to go to the health centre - a location for diseased people (in her view) and she was not sick. Apparently Lowrie's comment prompted the to join the meeting in the procurement conference room.

18. The seven employees met in the procurement conference room with the management team in procurement headed by Applegate. Also present were D. Cartwright (replacing Goncalves) and Hollister. Sharpe and the complainant asserted that being sent to the health centre the day before (to meet with Dr. Frith) was a "reprisal". Hollister responded that the health centre was a safe place for the employees as it was entirely non-smoking. As all the management personnel in procurement had not attended the previous day's meeting, Applegate reviewed the smoking policy, including the clarification that lighted cigarettes could not be carried between desks or offices. Management personnel were instructed that, effective immediately, they were to enforce the smoking policy. The April 15 bulletin, company assistance for smokers who wished to quit and a goal of a total ban by the year end or early 1989 were mentioned by Applegate. He stated that the company wished to accommodate the non-smokers by segregating them from the smokers and asked for the refusing employees' cooperation. There were several comments by employees. In particular, the complainant refused to participate in the rearrangement of the desks, announcing that this was a "trap" but declining to give any reasons for that characterization of the process. The possibility of a partition or physical barrier between the smokers and non-smokers was raised but the company did not agree to that proposal because of fire and safety regulations and ventilation problem which would be caused thereby. Employees were advised that the desk rearrangement might result in their working with different buyers; no concerns were expressed on this point.

19. The meeting ended with Applegate's query of the seven employees as to whether they were willing to work at their desks as presently located until the physical rearrangement of the office could be accomplished on the weekend. All but the complainant agreed and were also involved in the rearrangement process. The complainant initially refused to return to her desk as she was beside a heavy smoker (A. Reid). Applegate agreed to accommodate her and, immediately thereafter, Reid exchanged places with a non-smoker.

20. The balance of that day was without incident. Friday, March 11, 1988

21. That morning, the complainant heard from other employees that Woodard, during a regular breakfast meeting with several employees, had made a disparaging remark about the seven refusing employees. The complainant telephoned Woodard directly to confront him. According to the complainant, Woodard apologized fully for his comment and told the complainant that, if she wished to refuse to work in the future, to discuss the matter directly with Applegate.

22. In the afternoon, the MOL conducted air sampling tests at various locations in the procurement office, including the complainant's desk. The locations were recommended by the refusing employees.

23. In the late afternoon, the complainant testified that Maxwell told her that her desk would be placed at the front of the office so that management could "keep an eye" on her. Maxwell denied this statement. The Board does not accept the complainant's testimony on this point. It is evident that the other refusing employees participated in the rearrangement of their desks to segregate smokers from non-smokers. As well, the precise rearrangement had to reflect, as far as possible, the need for working groups or teams to remain in close proximity. The complainant refused to participate in that process. The complainant's desk was placed in the first row of desks as far as possible from the smoking section of the procurement office and together with her group, which included another of the refusing employees. It is accurate to note that the first row was relatively close to the enclosed offices used by management and where smoking was permitted under the policy. The Board does not regard it as probable that management wished to keep watch on the complainant and yet would openly communicate such a decision to her. Moreover, such an alleged statement is not consistent with the process whereby the desks were rearranged.

24. The Board notes that a smoking policy update was issued on Friday reiterating the smoking policy and clarifying that employees may not walk between desks while smoking as those areas were considered aisles/hallways. The update went on to state that supervisors were expected to ensure that all employees complied with the current policy and that, in April, the company would announce a schedule for implementation of a smoke-free office environment. Company sponsored stop smoking classes for all interested employees would be begin in April as well.

March 12-14. 1988

25. The physical rearrangement of the desks was carried out over the weekend. On Monday, March 14, two of the refusing employees (Tinianov and Torrance) had concerns over the placement of their desks and their request for a further change was accommodated without difficulty.

Tuesday, March 15, 1988

26. Tuesday was the complainant's first day at work since the previous Friday. Her desk, as noted, was in the first row. The complainant testified that Aarons, who occupied the nearest office, smoked throughout the day, invited others in to smoke as well, joked with those other persons about the work refusal and stood at the door of his office blowing smoke out at her. Aarons is not her supervisor, although he does supervise others in the procurement office. She testified that she tried to raise the issue of her desk location and Aarons' alleged behaviour with Applegate who was, in her view, "too busy to respond". She further stated in evidence that Applegate made a sarcastic comment about the freshness of the air. The Board does not accept this account and prefers the testimony of Aarons and Applegate who denied the allegations. On the previous Thursday, Applegate had immediately responded to the complainant's request that she would no longer sit beside Reid, a heavy smoker, notwithstanding the complainant's refusal to participate in the reorganization in the procurement office. Further, on the day before (Monday), Tinianov and Torrance had been moved again in response to their concerns. Applegate testified that he would have responded to the complainant's concerns if she had raised a problem on that day. The Board accepts this response as consistent with the company's efforts to resolve the work refusal and to accommodate the employees.

27. The complainant contacted Goncalves about these alleged events and called the MOL directly seeking advice as to whether this was a "reprisal".

Wednesday, March 16, 1988

28. At the start of her shift that morning, the complainant contacted Goncalves and informed him she was continuing her work refusal. Within a few minutes, Hollister joined them. It is useful to set out the following excerpt from Hollister's notes regarding the conversation which ensued.

Cathy: Jill, why are you refusing to work? (Hollister)

Jill: The same reason as the last time. (Bettes)

Cathy: Can you repeat the reason?

Jill: The smoke is injurious to my health. Bob Errons [sic] chain smokes all day in that office with the door open, and other people go in there and smoke, and it bothers me.

Cathy: Are people carrying a cigarette in their hand in the aisleway on the way to his office?

Jill: No, they smoke when they are inside his office. The door is always open and the smoke comes right in my face; but even if the door was closed, it wouldn't help because the smoke would still come out when he opens the door.

Cathy: Would you be willing to exchange desks with another person in the no smoking area -would this be acceptable?

Jill: No, it wouldn't be acceptable.

Cathy: Do you have any suggestions of an acceptable alternative?

Jill: No, nothing will be acceptable. I'm not returning to this area until the Ministry of Labour comes back with some results.

Cathy: Gus, do you have any suggestions as an alternative?

Gus: No, Jill is saying nothing is acceptable right now. (Goncalves)

29. Hollister advised Maxwell and Maybay of the situation. Maybay and Hollister returned to speak with the complainant and Goncalves. Maybay asked the complainant to proceed to the health centre (a smoke-free environment, as noted earlier) but she refused. She was asked where she was prepared to wait, responded that the cafeteria was acceptable and was permitted to go there.

30. While in the cafeteria, the complainant and Goncalves met with J. Harkins (a MOL inspector) with respect to the alleged reprisals taken by the company against her. At one point, Maxwell approached them, indicating that the complainant was needed at another meeting. Harkins explained he was conducting a MOL investigation and Maxwell agreed to return once that discussion was completed in about fifteen minutes.

31. During this period, as well, a meeting was held to discuss the circumstances of the continued refusal. Anderson, Smith, Irwin and Bordian from the Human Resources/Labour Relations side and Maybay and Hollister attended. Hollister informed the others of the events that morning including the complainant's refusal to relocate her desk or to accept as a solution that Aarons' door could be kept closed. The consensus was that everything reasonable had been done to accommodate the complainant and discipline was now appropriate. A one day suspension, the first step of progressive discipline, was suggested but Bordian was to meet with the complainant to confirm her position and determine whether discipline should be imposed. The "reprisal" section of the OHSA was raised and regarded as inapplicable to the circumstances.

32. Hollister telephoned the MOL (D. Spina) to update him on the current situation. She learned for the first time of the reprisal allegations. As requested by Spina, Hollister located Harkins and relayed the message that he was to call the MOL. Hollister also confirmed with Spina that the company was free to speak with the complainant once Harkins had finished his discussion. Hollister informed Bordian, Applegate and Maybay of her conversation with Spina and that Harkins wished to speak with Maxwell as he (Maxwell) was implicated in the alleged reprisal.

33. At approximately 11:00 a.m., a meeting was held with Bordian, Maybay and Maxwell for the company and Sharpe, Goncalves and the complainant in attendance. Sharpe was the Local Union committeeperson in the complainant's area. Although the meeting, from the company's viewpoint was not in connection with health and safety, there was no objection to Goncalves' remaining. Bordian stated that the company had tried to accommodate the complainant. She confirmed she was refusing to work because of secondhand smoke and asserted the company had not lived up to its commitments given the week before. In the complainant's view (a view not shared by management, Sharpe or Goncalves), the company had agreed to erect a partition or physical barrier between the smokers and non-smokers in the procurement office. (Botic, as well, disagreed with the complainant on this point.) This issue was discussed briefly with Bordian reiterating the company's position that no such commitment had been given. Bordian reviewed the steps which had been taken to accommodate the complainant including the segregation of smokers and non-smokers, placing the complainant in the non-smoking section and clarifying and enforcing the smoking policy. He indicated that those steps had been acceptable to the six refusing employees and to the complainant the week before and asked if there was anything that would satisfy her. The complainant's response was that only a total ban on smoking would be acceptable. Bordian asked again if the complainant was refusing to work at all; she replied in the affirmative. At that point, Bordian stated that he had no alternative but to impose a suspension for the balance of that day and cautioned her that additional instances of that type of misconduct could result in further discipline up to and including discharge. The complainant seemed pleased by this development. Goncalves raised the reprisal section of the OHSA. Bordian responded that the company was not violating the OHSA as everything reasonable had been done to accommodate the complainant. Once more, the complainant was asked if anything would satisfy her and she confirmed that no accommodation could be made short of a total, immediate smoking ban.

34. Before clocking out, the complainant was given permission to meet with Goncalves and Harkins in the cafeteria.

Thursday. March 17. 1988

35. The next morning, Maybay and Maxwell asked the complainant if she was prepared to work. She replied in the negative. Shortly thereafter, Bordian, Maybay and Maxwell again met with the complainant, Sharpe and Goncalves. Bordian reiterated the company's position that it had done everything reasonable to accommodate the complainant. She was directly asked if there was anything the company could do to persuade her to return to work. The complainant replied that there was nothing at all the company could do to satisfy her. Bordian then imposed a three-day suspension and cautioned that further similar instances of misconduct could again result in disciplinary action up to and including discharge. Goncalves queried whether the company was aware of the OHSA provisions prohibiting reprisals. Bordian replied that the company had made all reasonable efforts to accommodate the complainant. At this point, the complainant asserted that no male employees had been suspended for refusing to work under the OHSA. Bordian indicated that no employees had been so suspended. The complainant charged that she was being discriminated on grounds of her gender. Bordian rejected that allegation.

36. The complainant was given permission to meet with the MOL inspectors in the cafeteria before she clocked out on her suspension. In addition to Harkins and J. Kehoe for the MOL, Goncalves, the complainant and Hollister were present. The following extract from Hollister's notes convey the content and tone of the meeting.

MOL Inspector: Jill, what was your reason for refusing to work yesterday?

Jill: Well, I have to go to the fax machine, by typists and material control, and to get there (Bettes) I have to walk through a smoking area. On the way there, I have to walk by a woman's desk that has an insulting poster on it regarding smoking.

Cathy: What does the poster say? (Hollister)

Jill: "Please hold your breath while I smoke".

On Monday I was off, and on Tuesday, when I came to work I was annoyed at the new location of my desk. I was right in front of a supervisor's office, so he can keep an eye on me - and he sits there and smokes all day. Also, people go in his office and smoke.

About 11:00 a.m. on Tuesday March 15, B. Applegate dropped by my desk and asked what I thought about my new location.

I don't like it. Bobby Errons [sic] sits in his office and smokes all day. The threat Peter Maxwell (Jill's supervisor) gave me on Friday (she claims he said they'd put her where they can keep an eye on her) came true.

Jill: I asked B. Applegate if we could talk about it, but he was too busy. I waited all day for him to come back, and he didn't.

When I came to work on Wednesday, I thought "the hell with it". I've had enough.

Cathy: Did you go to your direct supervisor and complain to him on Tuesday of your concern?

Jill: I didn't have to - they came to me. B. Applegate asked me how I liked the new setup. It was around 11:00 a.m. on Tuesday March 15/88.

MOL Inspector: Did you have a resolution in mind when you wanted to discuss the situation with Bill Applegate?

Jill: No, that's his problem - he has to come up with the resolution.

The Ministry of Labour Inspector had asked me [Hollister] of the sequence of events for Jill's refusal on Wednesday March 16, 1988. I then relayed the same information as in my report of March 16, 1988.

The Ministry of Labour then asked Jill if she had anything to add.

Jill: No, what she (Cathy) said is right.

Cathy: I would like to make a comment. I understand Jill and Gus, that you both contacted the Acting Manager at the Ministry of Labour (Dom 5pina) on Tuesday March 15, 1988 at 3:45 p.m., regarding a concern of reprisal. Since both you and the Ministry of Labour were aware of this concern, I would suggest in future, that you also inform Management. We can't help to resolve problems if we are not informed.

Jill: It's none of your damn business.

Cathy: You're entitled to your opinion Jill, and I just expressed mine.

I'm going to call in the Hygienist for air sampling at Jill's new location.

MOL Inspector:

Jill: I'm the only female that's ever been suspended for a work refusal in this company. The meeting adjourned at approximately 10:45 am.

37. The complainant then left the company premises. It should be noted that the two suspensions were later issued in writing. That afternoon, air sampling for secondhand smoke was conducted at the complainant's desk. Aarons smoked during the testing. Goncalves was present for the union. Hollister also learned that, to date, no medical reports had been provided to Frith. In fact, only Tinianov submitted a medical report to the MOL prior to the June formal report by the MOL (see infra). It should also be mentioned that, the following day, Goncalves contacted B. Nickerson in the National Union office to review events to date.

Tuesday, March 22, 1988

38. A teleconference was arranged early on March 22. Generally, the test results take roughly six weeks to obtain. The MOL agreed to provide the data as soon as possible and the teleconference format was utilized. Present for the report results via the teleconference were five of the seven refusing employees (two were absent that day) and various union and company representatives. The results of the air sampling on Friday, March 11 and Tuesday, March 17 (at the complainant's desk only) showed all levels were well within acceptable guidelines. The refusing employees then raised several matters with the MOL technician including the efficacy of the tests performed. The MOL technician (Dranitsaris) responded that there was no single index to detect the presence of secondhand smoke and the usual method was to test for trace contaminants. If those trace contaminants were not detected, the presence of secondhand smoke was insignificant. The MOL technician expressed his view that the office air was good and better than most.

39. Following the teleconference, Maybay reviewed the various steps the company had taken to accommodate the refusing employees and asked if everyone was prepared to return to work. Goncalves asked if the MOL results were disputed; no one did so. The employees agreed to return to work pending the MOL written report. Maybay confirmed that the written report would be distributed through normal channels as soon as it was received.

40. The complainant, Goncalves, Sharpe, Mackie, Maxwell, Maybay and Hollister remained. The complainant stated that, in her opinion, she had never refused to perform her job but had refused to work under the OHSA. Further, she said that her refusal would continue until the MOL reported and, as this was done, she was prepared to return to work although she would continue with her reprisal allegations. Maybay stated that the company was pleased that the complainant decided to return to work and asked if anything further could be done for her. The complainant wished to have her desk moved to a mutually agreeable location. Maybay assured her this would be done without delay. The Board finds that this move was arranged the next day.

41. Another meeting with the MOL, the complainant, Sharpe, Goncalves and Hollister was held in the cafeteria that day. Harkins requested the complainant's statements (presumably regarding the alleged reprisals) and reiterated the need for the refusing employees to submit medical documentation to Frith to substantiate claims of medical problems arising from exposure to secondhand smoke.

Late March to late June. 1988

42. The complainant filed a grievance alleging improper refusal of overtime and that the refusal constituted yet another reprisal against her. During the spring, large amounts of overtime were worked. Under the collective agreement, overtime is voluntary. The practice of assigning the overtime was to offer the extra hours first to the person already dealing with the specific suppliers.

This resulted in considerable disparity in the overtime worked by the employees in procurement. In fact, four grievances were filed (including the complainant's) challenging the overtime assignments. The individual benefiting most from the practice in assigning overtime was Solosky, one of the seven refusing employees. The overtime grievances were resolved between the company and the union on the basis of an undertaking to achieve a more equitable system of assigning overtime. After a successful trial period, the grievances were withdrawn. The complainant denied knowledge of the other grievances or that the issue was of concern to the entire department. The Board does not regard it as probable that the complainant was unaware of the broad concern over this issue. Further, when faced with an overtime schedule which contradicted her assertion that she virtually never was offered (yet alone worked) overtime following the March work refusals, she responded by claiming that the lists were often falsified. There is no compelling evidence to ground such an assertion.

43. In accordance with its commitment given to the refusing employees, the company issued a bulletin dated April 15, 1988 declaring January 1, 1989 as the implementation date for its no smoking policy and announcing its financial support for employees wishing to quit smoking in a "last pack" program.

44. In June, the MOL presented its written report at a meeting with persons representing the company and the union and the seven refusing employees. The results of the air sampling taken March 16 showed the air in the procurement office was well within the applicable guidelines. (The results had already been communicated to employees in the teleconference call, see paragraph 38). The MOL found that the conditions were not likely to endanger six of the seven. The seventh, Tinianov, had submitted medical documentation. Because of his clinical condition, the company was directed to take all reasonable steps to insulate him from secondhand smoke.

45. Another meeting was held immediately thereafter with the complainant, the MOL and the company and union representatives. The complainant presented a brief note from her doctor at this point. The test results of the air sampling on March 17 at her desk were presented, although that data had likewise been communicated earlier. The results were well within acceptable guidelines and the MOL finding was that the conditions were not likely to endanger the complainant. The alleged reprisals were raised. The MOL indicated it would be contacting the persons involved.

46. Over the next few days, the complainant testified that Maxwell was constantly "staring and glaring" at her, presumably because his name was raised in connection with the alleged reprisals. Further, the complainant testified that, on one occasion, when she and several employees were looking at photographs at the conclusion of the lunch break, she was "singled out" by Maxwell and rudely told to return to work. Maxwell then purportedly pursued the matter in a meeting with her in his office. The Board finds that Maxwell and Aarons did speak briefly to several employees, including the complainant, reminding them that the break was over. Nothing more unusual than that transpired. Similar comments had been made to employees on occasion in the past. Maxwell did seek to explain to the complainant that employees were expected to be ready to resume work following a break.

47. Another incident involving the complainant incurred in roughly this time period. Goncalves and the complainant were to meet with an MOL inspector. The complainant's immediate supervisor, S. Munroe was not aware that Maxwell had cleared the complainant to leave the procurement office with Goncalves. She questioned their leaving and was informed they were to attend a meeting. The three returned to Munroe's desk where she completed a "pass". Shortly thereafter, Munroe again challenged the complainant's right to leave, asserting that sufficient notice had not been given for a union meeting. Goncalves protested that the complainant had been cleared by Maxwell. He left to speak to Williams to clear up the matter while the complainant returned to her desk. Williams gave his approval. A few moments later, Goncalves returned, informed Munroe of Williams' clearance; the two left for their meeting. Williams spoke directly to Munroe about the matter. On the complainant's return to the procurement office, Munroe apologized indicating that she didn't realize the complainant had been cleared and was meeting with the MOL. The Board accepts the testimony of Goncalves that Munroe was visibly upset, particularly when she approached him and the complainant on the second occasion. Munroe had recently been promoted to the position of supervisor and was apparently confused as to the nature of the meeting and the process for clearance in those circumstances. It is also likely she viewed the situation as a challenge to her authority. However, she promptly apologized to the complainant when she (Munroe) learned of the prior clearance and the circumstances of the meeting and the matter ended there.

July 1988 to January 1989

48. The complainant reported to the health centre on September 27, 1988 complaining of difficulties with her vision. Lowrie, the nurse in charge at the time, suggested the complainant see her family physician. The complainant filed a claim with the Workers' Compensation Board (WCB) for disability due to illness at work. The basis of the claim was "sick building syndrome", primarily due to secondhand smoke. The company practice is generally to advance sickness and accident benefits upon signing of a waiver form by the employee until the WCB claim is adjudicated. The company receives the sickness and accident cheques from the insurance carrier, confirms the accuracy of the information (name, address, etc.) and releases the cheque for direct pickup or for mailing. Because of the unusual nature of the claim (sick building syndrome), G. Rehding (benefits manager) wished to review the matter with his supervisor. Such reviews had occurred in the past on rare occasions. The cheque was received at some point on October 18. Rehding was informed of that the next day and told P. Falconi (Local 112 benefits representative and a friend of the complainant) that the claim was being reviewed. On October 20, Rehding spoke with Anderson. Rehding was advised by Anderson that normal procedures should be followed and the WCB would deal with the nature of the claim. The cheque was released and was picked up by Falconi, as per the complainant's request. It appears the complainant had the cheque in her possession on the 21st at the latest and the cheque was cashed the day after. Thus, the "delay" occasioned by Rehding's decision to seek advice was, perhaps, two days.

49. To complete the chronology, a few additional matters should be noted. A number of trailers had been used during 1988 for classrooms and offices because of an acute space shortage. Toward the end of the year, space became available in a trailer and the company determined it was feasible for the complainant to work there. That offer was made to the complainant, i.e., that she could work in a smoke-free environment. That offer was made in November; the complainant accepted and returned to work. In January, 1989, the company, as planned, went smoke-free in accordance with its policy. A bulletin to that effect was issued January 3, 1989. Earlier bulletins in October and November, 1988 reminded employees of the upcoming January 1 implementation date and of the company's financial support for employees wishing to quit smoking through the "last pack" program. In February, once the complainant obtained medical confirmation that she could work in the building, she returned to the procurement office. The complainant's WCB claim was denied, as was the first level appeal of that decision; a further appeal has been filed.

50. The submissions of counsel are next set out in highly abbreviated form. The Board notes that counsels' representations with respect to the factual findings each wished the Board to reach based on the evidence were submitted in written form.

51. Counsel for the respondent argued that the analysis could not be neatly pigeonholed but could be summarized in the assertion that the complainant either never acquired the protection of the OHSA or lost that protection because of her subsequent conduct. In either event, it was contended the company had not breached section 24 of the OHSA in imposing the one-day and the three-day suspensions. Counsel argued that the initial refusal on March 9 was not protected as the complainant did not act out of concern for her health or safety. Nevertheless, the company investigated the refusal albeit the first and second stages were blurred because of the presence of the MOL on site. Whether the refusal on March 16 was characterized as a continuation of the first refusal or a new refusal, it was asserted that the complainant again did not come within the ambit of the OHSA at least in persisting in her conduct following the company's response. Counsel argued the complainant's motives in acting as she did took her outside the Act and, further, her conduct following the refusal was relevant to assessing her motive and the reasonableness of her position. The evidence was reviewed briefly in support of these propositions. Counsel submitted that the company complied with section 23(10) in asking the complainant if there was anything they could do and anywhere she would work and that discipline imposed for failure to perform reasonable alternative work was not prohibited by the OHSA. With respect to Repace's testimony, counsel argued that Repace's evidence was of no assistance because of errors and mistaken assumptions in the analysis and because the complainant was unaware of Repace's articles at the time of the refusal. It was also argued that, in the circumstances, section 24(7) was inapplicable. Cases cited in support included: The Corporation of the City of Ottawa, [1986] OLRB Rep. June 798; North American Plastics, [1987] OLRB Rep. Feb. 251; International Harvester, [1983] OLRB Rep. June 898; Toronto Transit Commission, [1985] OLRB Rep. Feb. 344; Camco Inc., [1985] OLRB Rep. Oct. 1431; Dowty Equipment of Canada Ltd., [1983] OLRB Rep. Sept. 1451; Sidhec Dosco Inc., [1988] OLRB Rep. Dec. 1334; Bradley Air Services, Canada Labour Relations Board, unreported, decision 743, May 18, 1989.

52. Counsel for the complainant asserted that secondhand smoke was a contemporary social problem yet the company did not take the refusal seriously. It was argued the complainant, as a matter of fact and law, had an honest belief and even a reasonable belief that exposure to secondhand smoke was dangerous. Counsel contended the company did not make a specific offer of alternative work and "set her up", for the discipline. Counsel also argued that, as the jurisprudence states that one can be wrong about a perceived danger and yet be reasonable, if one is correct about the danger, one must be reasonable to refuse and have the protection of the OHSA. As the company knew the grounds for the complainant's refusal, if the company was incorrect in assessing the reasonableness of her conduct, that error flowed through to render the company's imposition of discipline a breach of section 24. With respect to credibility, counsel argued that the Board could be selective in deciding what to accept from each witness, i.e., that credibility was not an "all or nothing" assessment. Counsel contended that the Board should be on the leading edge of health and safety and should note the change in public attitudes towards smoking. The Board, it was submitted, should not discourage work refusals and should give the worker the benefit of the doubt although counsel agreed there must be some element of bona fides in the worker's conduct. The cases cited by respondent's counsel were distinguished on the basis that those cases dealt with instances where the health and safety element was just a ruse whereas here the complainant had a health and safety concern. Finally, it was contended that the complaint turned on the characterization of the complainant's conduct with respect to the refusal rather than her "extraneous" conduct.

53. Counsel for the complainant referred to various statutes and regulations, some enacted subsequent to the events in question, for the purpose of indicating increasing governmental concern with the issue of smoking in the workplace. Several other cases were cited for their legal propositions only and not for their facts or colouring of the facts: DeHavilland Aircraft of Canada Ltd., 1986 CanLII 6654 (ON LA), 25, L.A.C. (3d) 249 (Davis); DeHavilland Aircraft of Canada Limited, (unreported, November 12, 1985) (Barton); DeHavilland Aircraft of Canada Limited, (unreported, October 14, 1986) (Palmer); R. v. Graves and Harnon (Provincial Court, Criminal Division, unreported, October 8, 1987). These cases deal with the same company and involve another employee in the procurement department. The Board had precluded complainant's counsel from leading evidence during the proceedings and for reasons given orally, as to these events. The Board has reviewed the cases and finds the legal analysis therein not relevant to the instant complaint. Other cases referred to in support of counsel's submissions included: Wilson and Treasury Board (P.S.S.R.B., unreported, Dec. 20, 1985); The Queen in right of Canada as represented by the Treasury Board v. Wilson v. P.S.S.R.B., 1986 CanLII 6876 (FCA), [1987] 1 F.C. 452 (leave to appeal to the S.C.C. denied April 9,1987); Canadian Gypsum Construction, [1978] OLRB Rep. Oct. 897; General Motors of Canada Limited, [1980] OLRB Rep. May 700; Dowty Equipment of Canada Ltd., supra; Black & McDonald Ltd., [1983] OLRB Rep. Dec. 1971; Art Shoppe, [19881 OLRB Rep. Aug. 729; Domtar Inc., [1988] OLRB Rep. Aug. 780; Butler Metal Products, [1988] OLRB Rep. Oct. 1003; Sidbec Dosco Inc., supra; Accuride Canada Inc. (OHSA appeal under s. 32 to the Director of Appeals, April 14, 1989).

54. In reply, counsel for the respondent asserted that the submissions of complainant's counsel ignored the facts of the instant case. It was argued that Repace's evidence with respect to secondhand smoke should be disregarded for the reasons given earlier. Beyond this, there was no evidence the complainant was "correct" about the dangers of secondhand smoke given the MOL finding that the situation was "not likely to endanger" the complainant. In this regard, counsel also noted the current legislation in Ontario did not entirely prohibit secondhand smoke in the workplace as designated smoking areas on the same ventilation system were permitted. Counsel disputed the assertion the company had not taken the refusals seriously. Further, it was argued that the reasons for the complainant's refusal on March 16, in fact, centered around her view of the company's conduct as "reprisals" (the health centre issue, the Aarons incident, the Woodard comment) rather than concern for health and safety. Counsel submitted the company satisfied its obligation to offer alternative work by asking what the complainant was prepared to do; the complainant lost whatever protection of the OHSA she may have had at that point through her conduct thereafter. That is, the right to refuse work does not become a right to be unreasonable.

DECISION

55. It is appropriate to first set out the sections from the OHSA relevant to this complaint:

23.-(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 a trade union that represents the worker, or if there is no trade union, 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 do 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 ptace 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.

(11) Pending the investigation and decision of the inspector, no worker shall be assigned to use or operate the equipment, machine, device or thing or to work in the work place or the part thereof which is being investigated unless the worker to be so assigned has been advised of the refusal by another worker and the reason therefor.

(12) The time spent by a person mentioned in clause (4)(a), (b) or (c) in carrying out his duties under subsections (4) and (7), shall be deemed to be work time for which the person shall be paid by his employer at his regular or premium rate as may be proper.

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

(a) dismiss or threaten to dismiss a worker;

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

(c) impose any penalty upon a worker; or

(d) intimidate or coerce a worker,

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

(2) Where a worker complains that an employer or person acting on behalf of an employer has contravened subsection (1), the worker may either have the matter dealt with by final and binding settlement by arbitration under a collective agreement, if any, or file a complaint with the Ontario Labour Relations Board in which case any regulations governing the practice and procedure of the Board apply, with all necessary modifications, to the complaint.

(3) The Ontario Labour Relations Board may inquire into any complaint filed under subsection (2), and section 89 of the Labour Relations Act, except subsection (5), applies with all necessary modifications, as if such section, except subsection (5), is enacted in and forms part of this Act.

(4) On an inquiry by the Ontario Labour Relations Board into a complaint filed under subsection (2), sections 102, 103, 106, 108 and 109 of the Labour Relations Act apply, with all necessary modifications.

(5) On an inquiry by the Ontario Labour Relations Board into a complaint filed under subsection (2), the burden of proof that an employer or person acting on behalf of an employer did not act contrary to subsection (1) lies upon the employer or the person acting on behalf of the employer.

(6) The Ontario Labour Relations Board shall exercise jurisdiction under this section on a complaint by a Crown employee that the Crown has contravened subsection (1).

(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.

56. It is also useful to summarize the various alleged acts which the complainant asserts constitute "reprisals" contrary to section 24 of the OHSA. This itemization is derived from the pleadings and the testimony of the complainant. The alleged misconduct includes, in chronological order: (1) being sent to the health centre on Wednesday, March 9, together with the six other refusing employees, to meet with Dr. Frith of the MOL; (2) the statement by Lowrie on Thursday morning, that persons not willing to participate in the meeting at 8:00 a.m. that day in the procurement conference room should go to the health centre (Applegate had made a similar statement the day before); (3) the disparaging remark by Woodard about the refusing employees at a breakfast meeting with several employees on March 10; (4) the statement by Maxwell on Friday, March 11 that management intended to "keep on eye" on the complainant and move her desk to the front row; (5) the actual location of her desk in the first row of the non-smoking section on Tuesday, March 15 (the first day the complainant was at work following the desk rearrangement); (6) the behaviour of Aarons on March 15 in blowing smoke out his office door directly at the complainant, inviting others to smoke in his office and joking about the initial work refusal; (7) the rudeness of Maxwell in interrupting a meeting in the cafeteria with the complainant, Goncalves and Harkins for the MOL on Wednesday, March 16; (8) the one-day suspension imposed on Wednesday, March 16; (9) the three-day suspension imposed on Thursday, March 17; (10) the glaring and staring at the complainant by Maxwell on June 8 and for a few days thereafter following a meeting with the MOL attended by various company and union representatives including Maxwell and at which Maxwell's name was raised in connection with alleged reprisals; (11) the singling out of the complainant for reprimand for not being at her desk ready to work following lunch on one occasion; (12) the denial of overtime to the complainant following her work refusal; (13) the interference by Munroe in the complainant's attendance at an MOL meeting in late June; (14) the delay in issuing sickness and accident benefits by Rehding in October. In reciting this litany of alleged reprisals, the Board has merely set out the complainant's view of the events. As noted in its factual findings, the Board does not agree with the complainant's account of these incidents, quite apart from the Board's legal conclusions with respect to the question of the contravention of section 24 of the OHSA.

57. The Board intends to consider first the alleged reprisals other than the two suspensions. In that regard, the Board need not repeat at length its factual findings given earlier.

58. The Board does not regard the references to the health centre as a meeting place for the interviews with Dr. Frith or the location for those refusing employees who did not wish to participate in the desk reorganization as a "reprisal". That location was enclosed and entirely non-smoking. The assertion that the health centre was for "sick people" and the complainant (and the other employees) were not "sick" is somewhat difficult to comprehend since the claim was that exposure to secondhand smoke was, in fact, making the employees "sick" and their sympomatology was described. The allegation that this conduct constituted a reprisal is rejected.

59. It is likewise difficult to understand how the disparaging remark made by Woodard is a reprisal within the meaning of section 24 of the OHSA. Further, Woodard directly apologized to the complainant for his comment. This allegation, too, is dismissed.

60. As the Board does not accept, as a factual matter, that Maxwell made the statement asserted with respect to "keeping any eye" on the complainant, the Board need not deal further with this alleged reprisal. The Board dismisses the allegation regarding Aarons' ostensible behaviour on March 15 and Maxwell's ostensible behaviour in the cafeteria on March 16 on the same basis.

61. With respect to the assertion that the location of the complainant's desk in the front row following the desk rearrangement, the Board finds that this, too, does not constitute a reprisal under section 24. Far from being a reprisal, the Board finds that the company placed the complainant as far as possible from the smoking section of the procurement office together with the other members of her team which included another employee who participated in the initial work refusal. Moreover, the complainant had expressly refused to participate in the desk reorganization and, thus, the company's decision as to location was made without her input.

62. As to Maxwell's alleged "glaring and staring" in June and the purported singling out of the complainant for not being ready to work following a lunch break, the Board has rejected the complainant's version of events in reaching its factual findings. On the evidence accepted by the Board, these "incidents" (to the extent they occurred at all) are not contraventions of section 24 of the OHSA.

63. The Board expressly finds that the complainant was not denied overtime opportunities in the period following her work refusals because of her refusals. Rather, overtime was distributed in accordance with the company practice which resulted in a disproportionate amount of overtime being worked by one employee (Solosky). It should be stressed that Solosky was one of the employees involved in the initial refusal. Moreover, four grievances were filed, including the complainant's, regarding the practice of assigning overtime then in use and the problem of overtime distribution was resolved between the company and the union. This alleged reprisal fails as well.

64. The complainant characterized the Munroe incident as a reprisal. It is difficult to fathom in what way the incident could be so construed. Even accepting (as the Board does) that Munroe was upset at what she, at the time, perceived to be a violation of the process for obtaining permission to leave a department, the "interference" amounted to no more than a brief delay in the complainant's departure for her meeting with the MOL. Further, Williams (the health and safety manager) both granted permission without delay to Goncalves for the complainant to leave the procurement department but also spoke to Munroe about the situation. Finally, Munroe apologized to the complainant immediately upon her (the complainant's) return to the area. The Board finds no contravention of section 24 therein.

65. As to the delay of at most two days in releasing the complainant's sickness and accident cheque, the Board has concluded that Rehding's concern about the novelty of the claim and his decision to consult his superior were not unreasonable and certainly not a reprisal for the complainant's work refusal some eight months earlier. It should be noted that Rehding's superior directed him (Rehding) to follow normal procedures and release the cheque.

66. In short, the Board dismisses those allegations. Clearly, the complainant was prepared to characterize any disagreement with her views or incident in the months following the March work refusals as a reprisal. While it is conceivable that an employer might engage in a pattern of conduct which, taken together, was tantamount to a "penalty" or "intimidation" or "coercion~~ in contravention of section 24 of the OHSA, that is not this case.

67. The question of the two suspensions, however, is more problematic and requires a brief review of the relevant jurisprudence before beginning the analysis of the instant case.

68. The following passage from Domtar Inc., supra, summarizes the Board's approach to the OHSA structure for dealing with work refusals and the statutory right to refuse unsafe work:

69. In Inco Metal Co.,[1980] OLRB Rep. July 981, the Board in considering the predecessor to these sections said that it "must interpret and apply the Act bearing in mind the shortcomings of the pre-existing law that it was designed to remedy". After reviewing those shortcomings at some length, together with the social and human toll taken by industrial accidents and their adverse impact on the economy, the Board concluded that the predecessor provisions "must be given a liberal and constructive interpretation that is consistent with the intent of the legislation".

70. Similarly, the Board observed in The Corporation of the City of Toronto, [1986] OLRB Rep. Dec. 1834:

We also agree that the Board should not put an unduly rigid construction on the terms of section 23(1), lest employees be discouraged from raising safety issues at the work place. That would be inconsistent with the scheme of the Act. Section 23 is designed to promote and protect employee prudence, while at the same time, providing a mechanism for resolving legitimate concerns through a process of discussion with the employer, and, if necessary, the assistance of a "neutral" official of the Ministry of Labour. It is both proper and desirable that employees should be able to voice their safety concerns without fear of penalty or reprisals...

The Board has commented that initially an employee may refuse work which he or she has reason to believe is unsafe, a test which is subjective in its nature (see, for example, The Corporation of the City of Ottawa, [1986] OLRB Rep. June 798). Where there is such a refusal, the employer is required to investigate the matter forthwith in the manner set out in section 23. Following that investigation or steps taken to deal with the circumstances that prompted the work refusal, the worker may continue to refuse if he or she has reasonable grounds to believe that the work is unsafe. The Board has concluded that this subsequent test is an objective one, and has adopted this enunciation of the test set out in Inco Metals, supra, with respect to the predecessor legislation (see for example, Camco Inc., [1985] OLRB Rep. Oct. 1431):

59. On a complaint such as this, therefore, in considering whether an employee had reasonable cause to refuse to work in a given situation, this Board must ask itself 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.

Where the worker continues to refuse, an inspector is required to investigate the refusal in the presence of the employer, the worker and an employee representative after which the inspector gives his or her decision in writing to the parties.

31. The Board has held that the reasonableness of an employee's belief may be affected by an inspector's decision. (Auto Jobbers Warehouse Ltd., [1981] OLRB Rep. Dec. 1715.) In this regard, the Board has noted that an employee is entitled to continue to refuse to work even after an inspector's report declares the workplace to be safe as long as he continues to have reasonable grounds to do so. However, a worker who refuses to work where there has been an investigation and a decision by a neutral expert that the work is safe faces an increasing onus with respect to the reasonableness of his or her position (see Canadian Gypsum Construction, [1978] OLRB Rep. Oct. 897). That onus is still subject to the general burden of proof that the employer bears under section 24 (see The Corporation of the City of Toronto, supra).

32. At no stage must an employee be proven correct with respect to the safety of the work. Rather, in Inco, supra, the Board said that it will look at the reasonableness of the employees' views in light of the information available to the worker at the time of the refusal:

The ability of an employee to invoke the right to refuse work does not depend on whether there is in fact any danger. The question is whether at the time an employee refuses to perform his work he has reasonable cause to believe that it is unsafe to do so. The fact that it may later be shown that there was no real danger at the time an employee refused to work doesn't mean that the employee was wrong in exercising his right under the Act. The events must be assessed in the light of knowledge available at the time that the employee refused to work...

See also Imperial Oil Ltd., [1982] OLRB Rep. Apr. 580, and Wilco Canada Inc., [1983] OLRB Rep. Oct. 1759 in this regard.

69. Section 24 of the OHSA prohibits an employer from imposing discipline or otherwise penalizing, coercing or intimidating a worker because that worker has acted in compliance with the OHSA or has sought the enforcement of the OHSA: Domtar Inc., supra; Art Shoppe, supra; Canadian Gypsum, supra; Black & McDonald Ltd., supra; Butler Metal Products, supra. The protection of the OHSA is afforded employees who satisfy first the subjective test and thereafter an objective standard. As stated in International Harvester, supra, if the employer accurately assesses the worker's beliefs as unreasonable, the full range of disciplinary penalties is available (see also: The Corporation of the City of Ottawa, supra; Camco Inc., supra; Toronto Transit Commission, supra.) Moreover, where a worker has claimed the protection of the OHSA but that claim is found to be spurious, cloaking the worker's actual motivation, the employer may impose discipline for conduct which is otherwise improper: Continuous Colour Coat, supra and the cases cited therein; Bradley Air Services, supra. The protection in section 24 against reprisals cannot be construed as a license for a worker to engage in clearly improper conduct subsequent to invoking the OHSA: Toronto Transit Commission, supra; General Motors of Canada, supra. While the OHSA imposes a two-tier investigative structure, the Board has noted that section 24 is not the vehicle for enforcing contraventions of section 23 by the employer, although the failure to conduct the requisite inquiries may well be relevant to an assessment of whether the employer's conduct in a particular case violates section 24: Continuous Colour Coat, supra; International Harvester, supra; Dowty Equipment, supra; Sidbec Dosco, supra. Given the investigative structure in section 23, the employer has no right to assign alternate work during the initial investigation but whether such an assignment amounts to a breach of section 24 depends on the circumstances of each case: Dowty Equipment, supra; North American Plastics, supra. If no alternate work is available when such an assignment is proper pursuant to the OHSA, the worker may be sent home: International Harvester, supra; Sidbec Dosco, supra. Finally, where discipline has been imposed for cause, the Board has the jurisdiction by virtue of section 24(7) to vary the penalty in appropriate circumstances: North American Plastics, supra; The Corporation of the City of Ottawa, supra; Camco Inc., supra; Toronto Transit Commission, supra; Commonwealth Construction Co., [1987] OLRB Rep. July 961.

70. In turning to the instant complaint, the Board initially considers the argument by counsel for the complainant that, if the worker is correct with respect to the safety of the work, the worker's actions and beliefs must be reasonable. In the instant case, complainant's counsel asserts that secondhand smoke is per se dangerous. The Board heard some evidence on the effects of secondhand smoke from Repace. That evidence is not sufficient to establish the proposition as broadly as complainant's counsel asserts. In the Board's view, adjudication of the "correctness" of a worker's belief does not assist in, and would distract from, evaluating the worker's conduct measured against the statutory standard. As noted in the passage quoted earlier from Domtar, supra, the employee need not be proved correct with respect to the safety of the work to be protected under the OHSA. Thus, the Board rejects counsel's argument. In so doing, the Board stresses that it is not necessary to decide whether or not secondhand smoke is dangerous to determine whether section 24 has been breached. Thus the Board is not pronouncing on that issue.

71. The Board heard testimony from Repace to the effect that the MOL air sampling was defective because respirable particulate matter was not measured. The complainant also voiced her view during the investigative process that the MOL tests were worthless. It is apparent from the evidence that the MOL tested for levels of carbon dioxide, carbon monoxide, formaldehyde, acetaldehyde, valeraldehyde and glutaraldehyde. Temperature, heat and humidity were measured and the ventilation system reviewed to ensure it was operating efficiently. Dranitsaris indicated to the refusing employees that there was no single index for secondhand smoke, rather the MOL measures for trace contaminants known to be emitted in cigarette smoke on the basis that, if the trace contaminants are not detected, the presence of secondhand smoke is insignificant. The results, as stated earlier, were that all levels were well within acceptable guidelines. The Board does not regard the MOL's investigation as cursory or ineffectual (see Auto Jobbers Warehouse, supra; Domtar, supra). In any event, the "refusal" did not continue beyond the communication of the inspector's findings and the teleconference of March 22, 1988. The Board does not intend to deal further with this issue.

72. The Board turns to the first refusal on March 9. Some aspects of the complainant's conduct on March 9 and 10 raise concerns as to the bonafides of her refusal to work. For example, the complainant refused to go to the health centre (and indeed characterized that direction as a reprisal) although that area was non-smoking and also refused to work in the procurement conference room (another no-smoking enclosed space), yet, conveniently, considered the cafeteria a "safe" place. Smoking is permitted in one-third of the cafeteria and there is no physical barrier between the smoking and no-smoking sections. Notwithstanding some such indications to the contrary, the Board is prepared to assume, without deciding, that the complainant was motivated by health and safety concerns in connection with the initial refusal to work on March 9.

73. The company's response to the initial refusal was consistent with its obligations under section 23 of the OHSA. The company took the refusal seriously. Senior management became personally involved in seeking a resolution. The MOL investigation did begin somewhat earlier than would otherwise be expected because of the presence of MOL inspectors on site conducting a yearly safety audit. That involvement was not objected to at the time. The company sought the input of the refusing employees and the union health and safety representatives in formulating its proposals for resolving the work refusal (see paragraphs 14, 15 and 16). On March 17, the company met again with the refusing employees to work out the segregation of smokers and non-smokers. All supervisory personnel in procurement were present when the company's proposals were reviewed. In particular, the smoking policy was clarified and supervisors made expressly and immediately responsible for enforcing that policy (paragraph 18). It must be remembered that the company throughout the process repeated its intention to become smoke-free by late 1988 or early 1989. The company wished to reach that goal in stages and to assist financially employees wishing to quit smoking through the "last pack" program. Despite the complainant's refusal to participate in the desk reorganization process, Applegate immediately accommodated the complainant's wish that she no longer sit beside Reid, a heavy smoker. The MOL tests were carried out by the MOL at locations within the procurement office suggested by the refusing employees. Pending the release of the MOL report, the work refusal was apparently resolved in a manner acceptable to the company and the refusing employees.

74. The complainant again refused to work on March 16 and March 17. In response to Hollister's questions, the complainant first indicated that her reason for refusing was the same as before, namely, exposure to secondhand smoke but when on to stress the conduct of Aarons allegedly directed toward her (see paragraph 28). Counsel for the complainant argued that those were new refusals which the company did not investigate or treat seriously. The Board does not regard the categorization of the situation as one continuing refusal or repeated refusals as advancing the analysis because the Board finds that her reasons for these refusals were not bona fide. The complainant described to Goncalves her decision to refuse on March 16 as a "continuation" of her refusal. That refusal had been investigated. Further, Hollister sought to respond to the new circumstances (i.e. Aarons' ostensible conduct). The complainant refused to exchange her desk with another person in the no-smoking section of procurement and stated that keeping Aarons' door closed would not alleviate her concerns. From the company's view, there was nothing more to investigate, although Hollister did apprise Spina at the MOL of the new developments. Even if the Board felt some sort of further investigation was required (which the Board does not), such a lapse would not contravene section 24 given the jurisprudence and the circumstances.

75. Despite the complainant's articulating a concern with secondhand smoke, the Board is satisfied that her real motivation for her conduct on March 16 and 17 was not a concern with health and safety. What triggered the March 16 refusal was a combination of factors. The complainant was unhappy with the location of her desk in the front row farthest from the smoking section but in relative close proximity to the supervisors' offices. She had convinced herself that the location was the result of a conspiracy by management to "keep an eye" on her. She had convinced herself that management had reneged on a promise to erect a partition between the smoking and non-smoking sections although it was clear that no such commitment had been given. She had convinced herself that the location of her desk was a reprisal as was the direction to go to the health centre on the 9th and 10th. She had convinced herself that Aarons was deliberately blowing smoke at her and joking about the work refusals; this she regarded as humiliating and it angered her. She was angry at Woodard's comment at the breakfast meeting despite his direct apology. She was angry at the fact that some of her fellow workers in procurement regarded the work refusal as humorous. In her conversation with the MOL (paragraph 36), she expressed her annoyance with a poster at a fellow employee's desk which read "please hold your breath while I smoke". It was these matters not a genuine concern with health and safety which, taken together, so infuriated the complainant that she decided on Wednesday to refuse to work. Her words to the MOL inspector on March 17 are revealing: "when I came to work on Wednesday, I thought 'the hell with it' I've had enough."

76. The conclusion that her decision to refuse to work on March 16 and 17 was driven by these other factors and not health and safety, make the complainant's behaviour on those days explicable. The complainant was out to prove a point to the company and her co-workers. In pursuit of some abstract "principle", the complainant maintained contradictory and increasing unreasonable positions. For example, she spoke of a concern with her desk location outside Aarons' office yet refused Hollister's offer to exchange desks with another non-smoker. With Bordian on March 16, she suddenly insisted on an immediate total ban on smoking and replied in the negative to an open-ended query by Bordian as to what might satisfy her. The complainant maintained her position that the company had promised to erect a partition despite the fact that Sharpe and Goncalves expressed the contrary view to her. The complainant appeared pleased that her conduct resulted in the imposition of the one-day suspension. The next day, the complainant's position was even more extreme - nothing whatsoever the company could do would satisfy her. A new allegation, of gender discrimination, was raised with Bordian and then at the MOL meeting thereafter. In the complainant's view, it was entirely the responsibility of management to satisfy her and she need not participate at all. If management, in seeking to accommodate her "guessed wrong", that amounted to a reprisal in her view (viz, the desk location and direction to go the health centre).

77. The Board's finding in the instant case that the complainant's refusal to work was not bona fide does not imply that a refusal to work because of secondhand smoke could never satisfy the subjective and then the objective tests. It is simply that the Board has here concluded that the actual motivation on March 16 and 17 was not health and safety and, therefore, the complainant was not protected by the OHSA with respect to her conduct and was subject to discipline for her actions. Further, the Board is satisfied that the company did not impose discipline because the complainant sought enforcement of the OHSA or was acting in compliance with the OHSA. The company took the refusals seriously and complied with its obligations under the OHSA. With respect to the complainant's conduct on March 16 and 17, the company correctly concluded that her refusal to perform her duties was not because of health and safety but was entirely unwarranted. As noted in paragraph 69, where a worker has claimed the protection of the OHSA but that claim is found to be so spurious, as here, cloaking the worker's actual motivation, the employer may impose discipline for conduct which is otherwise improper. The company has met the substantial onus imposed by section 24(5). The imposition of the two suspensions was without taint.

78. Counsel for the complainant asserted that the company had an obligation to assign alternate work and failed to do so. Counsel contended that a smoke-free work location was available given the company's offer of the trailer facilities to the complainant as a work location in November. There is no evidentiary basis on which the Board may find that a trailer was available as an alternate work location in the spring of 1988. The only evidence on this point, which the Board accepts, is that the trailers were fully utilized in that period as offices and classrooms because of an acute space shortage. Only in late 1988 was it possible to free up such space and ensure a smoke-free environment for the complainant, following a determination that it was feasible for the complainant to carry out her job duties there. The Board found a breach of section 24 where a company had a practice of assigning alternate work and did not do so in the specific context described in North American Plastics, supra. In the instant case, on March 16, Bordian (as had Hollister) repeatedly asked the complainant if her concerns could be accommodated. The complainant rejected all forms of accommodation short of an immediate total smoking ban and then refused to work at all. On March 17, the complainant reaffirmed that there was nothing the company could do to satisfy her. In the Board's opinion, the company sought to assign alternate work.

Those efforts were thwarted by the complainant's increasingly unreasonable responses. In the circumstances, the Board does not find a breach of section 24 in the failure to provide alternate work on March 16 and 17. Indeed, the Board doubts that any such work existed in view of the complainant's position at that point in time.

79. The Board has concluded that the company did not breach section 24 in imposing the one-day and three-day suspensions or in connection with the alleged misconduct dealt with in paragraphs 58 to 66. In deciding whether to exercise its discretion pursuant to section 24(7) to vary the penalty imposed, the Board has considered the conduct of the complainant throughout and the relatively mild form of discipline imposed. On balance, and in all the circumstances, the Board sees no reason to interfere.

80. For the foregoing reasons, the complaint in Board File 1761-88-OH is dismissed. As noted in paragraph 2, the section 89 complaint in Board File 1563-89-U is also dismissed.