The Electrical Power Systems Construction Association v. International Association of Bridge, Structural and Ornamental Iron Workers Local 721, 1990 CanLII 5648

[1990] OLRB Rep. February 136

0729-86-U; 0759-86-OH; 2239-86-U The Electrical Power Systems Construction Association, Ontario Hydro and Gilbert Steel Limited, Applicants v. International Association of Bridge, Structural and Ornamental Iron Workers Local 721, George Joncas, Alfie Thomas, and Aaron Murphy, on their own behalf and on behalf of the respondent union, Respondents; International Association of Bridge, Structural & Ornamental Iron Workers, Local 721, on Behalf of its Reinforcing Rodmen Named in Schedule "B" to the complaint, Complainants v. Gilbert Steel Limited, Respondent v. The Electrical Power Systems Construction Association, Intervener; The Electrical Power Systems Construction Association and Ontario Hydro and Gilbert Steel Limited, Complainants v. International Association of Bridge, Structural and Ornamental Iron Workers, Local 721, George Joncas, Alfie Thomas, John Donaldson and Aaron Murphy, Respondents

BEFORE: Harry Freedman, Vice-Chair, and Board Members W. Gibson and J. Kennedy.

APPEARANCES: A. E. Golden, Susan Ursel, R. Avinoam and J. Donaldson for the International Association of Bridge, Structural & Ornamental Iron Workers, Local 721; M. Patrick Moran and Ivars Starsts on behalf of the Electrical Power Systems Construction Association, Gilbert Steel Limited, and Ontario Hydro; Murray Gold on behalf of the International Association of Bridge Structural and Ornamental Iron Workers.

DECISION OF THE BOARD; February 26, 1990

1There were three proceedings commenced before the Board as a result of the refusal by members of the International Association of Bridge, Structural and Ornamental Iron Workers, Local 721, hereinafter referred to as Local 721, employed as rodmen by Gilbert Steel Limited at the Ontario Hydro Darlington Nuclear Generating Station construction project to wear or use a belly-hook. Board File No. 0729-86-U is an application under section 135 of the Labour Relations Act for a declaration and direction; Board File No. 0759-86-OH is a complaint under section 24 of the Occupational Health and Safety Act for compensation and Board File No. 2239-86-U is a complaint under section 89 of the Labour Relations Act.

2The hearings in this matter took more than twenty days to complete. The Board heard the oral testimony of sixty-five witnesses and received both documentary and physical evidence. The Board also took a view of the construction project. Following the conclusion of the hearing and while this decision was under reserve, Board Member James Wilson died. The parties were notified and subsequently they all consented to the substitution of Board Member William Gibson for Mr. Wilson.

3The belly-hook is a tool used by rodmen to attach themselves to the structure that they are building. Its use becomes necessary if there is not a platform on which the rodmen can stand to place and tie reinforcing rods. The belly-hook is worn by the rodmen on their utility or tool belts.

4The refusal by a number of the rodmen to wear or use their belly-hook began on Friday, June 6, 1986. John Donaldson, the business agent and president of Local 721 visited the job site on that day. That visit was prompted by discussions that had taken place the previous day at a meeting called to ratify a memorandum of agreement that had been reached between the Electrical Power Systems Construction Association (EPSCA) and the International Association of Bridge, Structural and Ornamental Iron Workers. One of the issues in dispute in the negotiations between EPSCA and the International was the use of the belly-hook. The memorandum of agreement called for each party to strike a committee to study the issue. At a point near the end of the ratification meeting, Mr. Donaldson told the members who were present that Charles Dietrich, the superintendent of Gilbert Steel Limited had advised him that the belly-hooks were only used by the rodmen at Darlington one per cent of the time. Some members told Mr. Donaldson that that was untrue and that the belly-hooks were used regularly by rodmen who had to climb walls carrying reinforcing rods to place them at the top of the walls. Mr. Donaldson testified that he told the rodmen at the meeting that they had the right to refuse to perform unsafe work and that they should do so. A suggestion was made to Mr. Donaldson to visit the project to see for himself what work the rodmen were doing using the belly-hook.

5When Mr. Donaldson went to the job site the next day, he was joined by Aaron Murphy, the business agent for that area. They went to the locations where the rodmen were working and they observed a crew of rodmen climbing up a wall from a scaffold platform carrying reinforcing rods. Mr. Donaldson and Mr. Murphy climbed the scaffold to speak to the crew. Mr. Donaldson told the crew that they had a right to refuse to do that work and that they should do so. Mr. Murphy and Mr. Donaldson then went to several different scaffolds and advised the crews at each of the scaffolds that they had the right to refuse to work using the belly-hook and that they should do so.

6While walking around the job site, Mr. Donaldson met Mr. Dietrich. Mr. Donaldson and Mr. Dietrich exchanged heated words. Mr. Donaldson had indicated to Mr. Dietrich that his statement about the amount of time the belly-hook was used was not true. Mr. Donaldson then walked away from Mr. Dietrich and continued talking to more rodmen.

7Later Mr. Donaldson met George Joncas, a Local 721 union steward and the Local's health and safety representative on the job. They attended at Ontario Hydro's offices and went to see Al Jean, the Ontario Hydro Structural Superintendent at Darlington. Mr. Donaldson testified that he discussed the rodmen's use of the belly-hook and the need for another level of scaffolding with Mr. Jean. He and Mr. Jean agreed to meet the following Thursday. After that meeting ended, and as Mr. Donaldson was leaving the Darlington construction site, he received a message from Mr. Jean. Mr. Jean wanted to see Mr. Donaldson immediately. Mr. Donaldson spoke with Mr. Jean again that day. Mr. Donaldson was told by Mr. Jean that he wanted the rodmen to go back to work using the hook until their meeting next Thursday. Mr. Donaldson told Mr. Jean that he would not ask the rodmen to go back to work using the hook and that Ontario Hydro should build another level on each scaffold.

8Mr. Donaldson testified that he understood that the rodmen were simply refusing to use the belly-hook and carry reinforcing rod on their arms while climbing. As a result of their refusal to use the belly-hook, work on the vertical walls could not continue for very long. There was however work to be done on horizontal slabs that did not require the use of the belly-hook.

9In cross-examination, Mr. Donaldson testified that he told the rodmen that using the belly-hook was unsafe and that they should not work with it. Mr. Donaldson had spoken to many rodmen on that Friday, clearly saying to them that the use of the belly-hook was unsafe and that they should no longer use it. It is apparent to us that Mr. Donaldson's visit on Friday started the rodmen's refusal to use and wear the belly-hook which continued on Monday.

10On Monday June 9, Mr. Dietrich and Guy Morrency, another Gilbert official, walked through the Darlington job site and spoke with several rodmen. They learned that a number of rodmen were refusing to use or wear the belly-hook. As a result, Mr. Dietrich convened a meeting of the rodmen at about 10:00 o'clock that morning. At that meeting, Mr. Dietrich told the rodmen that they were to put their belly-hooks back on their belts and go back to work. He told them that if they refused to wear the belly-hook then they would not be allowed to work.

11There was a great deal of testimony about what was actually said at that meeting, but the clear message that was conveyed by Mr. Dietrich to the rodmen was that if the rodmen refused to wear the belly-hook on their belts, they would not be permitted to go back to work. The rodmen at the meeting told Mr. Dietrich that they would not wear the belly-hooks any longer.

12At the conclusion of that meeting, Ron Pearce, a rodmen on the day shift who was also an alternate Local 721 steward called the Local 721 union hall and spoke with Stan Arsenault, a business agent for Local 721. Mr. Pearce told Mr. Arsenault that there was no work available for the rodmen because they were refusing to wear the belly-hook. Mr. Arsenault told Mr. Pearce that the rodmen can refuse to use the hook but they cannot refuse to work and just walk off the job. Mr. Pearce also told Mr. Arsenault that Mr. Dietrich had told the rodmen that if they did not wear the belly-hook, then they may as well go home.

13At that point, while it is unclear from the evidence as to precisely how it came about, a message was conveyed to the rodmen at the meeting to go to the union hall. No further work was done by the rodmen on their shift that day.

14That afternoon, the evening shift reported for work, but part way through their shift walked off the job. John MacMillan, the union steward on the afternoon shift testified that he told Mr. Dietrich that the afternoon shift was walking off the job in support of the day shift. Mr. MacMillan had learned that the day shift had refused to wear the belly-hook. He said that everybody on the afternoon shift had agreed to support the rodmen on the day shift.

15The position of the rodmen and Gilbert Steel did not change until Thursday June 19. Many of the rodmen reported for work each day, but were not permitted to go to work because they refused to wear their belly-hook. The work to be done on the vertical walls required the use of a belly-hook to place the top few bars. There was also work to be done on horizontal slabs which did not require climbing and therefore the belly-hook was not necessary to perform that work. Some rodmen also worked on a service crew doing openings in the walls. Those rodmen also did not need to use the belly-hook to perform their work. Nevertheless, Gilbert Steel required the rodmen to wear their belly-hooks before they were permitted to go to work, regardless of the work that they were assigned to perform. All of the rodmen refused to wear the hooks on their belts. There were some rodmen assigned to the service crews who did in fact continue working after Monday June 9 even though they did not wear their belly-hooks. We did not receive any explanation as to why some rodmen were permitted to continue working while others were not.

16During that period of time, a Ministry of Labour inspector had visited the work site. His report indicated that there was no violation of the Occupational Health and Safety Act. A demonstration of the work rodmen did on the vertical walls was also carried out under the auspices of the Occupational Health and Safety Branch of the Ministry of Labour on Wednesday June 11 in order to assess the nature of the work that was carried out by rodmen on the walls. That report was issued on June 13 and indicated in essence that an infrequent use of the belly-hook did not constitute a safety hazard.

17Although Mr. Donaldson testified the rodmen did not think very much of that report, the rodmen who testified at the hearing indicated that they were not aware of the report or its conclusions. Mr. Donaldson explained that he provided a copy of that report to Mr. Murphy who was to circulate it among the rodmen. Mr. Donaldson said that he learned of the rodmen's reaction to that report from Mr. Murphy and other union officials. Mr. Murphy did not testify and there was no direct evidence indicating that the rodmen who refused to wear the belly-hook had been informed of the report or the results of the Ministry of Labour's investigation.

18On Thursday June 12, after the investigation and demonstration, but prior to the issuance of the report, Mr. Donaldson, Mr. Murphy, Mr. Joncas and Alfie Thomas, the rodmen steward at the work site met with Mr. Jean, Mr. Dietrich and other Ontario Hydro officials. Mr. Jean requested that the rodmen work with the belly-hooks as before. Mr. Donaldson said that they would not do so. Mr. Donaldson told Mr. Jean that it was necessary to have another level scaffold added before the rodmen would go back to work.

19During that first week, the rodmen gathered at the Darlington site each day to await their work assignment. They were there approximately two hours each day and then left after being advised that they could not work unless they wore their belly-hooks.

20The application under section 135 had been filed during that first week and was scheduled for hearing on Monday June 16. On that day many of the rodmen who had reported for work at Darlington attended at the hearing before the Board. The hearing did not proceed and Ontario Hydro, Gilbert Steel Limited, the Iron Workers International and Mr. Donaldson met throughout that day and over the next several days in an attempt to resolve the impasse concerning the use of the belly-hook.

21Ultimately, on Thursday June 19 with assistance of several senior officials from the Ministry of Labour, Ontario Hydro and Mr. Donaldson agreed in principle to a resolution which involved the construction of an additional level on the scaffolds in order to minimize, if not eliminate, the need for the use of the belly-hook. Mr. Donaldson and Allen MacIsaac, the Business Manager of Local 721 went to Darlington to meet with the local Ontario Hydro officials to formally negotiate the terms of that agreement. The formal settlement document was signed by Local 721 and Ontario Hydro on June 20. Gilbert Steel Limited and EPSCA were not parties to that agreement. Mr. Donaldson told the rodmen that they could go back to work on that Friday morning and work resumed by them prior to finalizing the agreement.

22The section 135 application and section 89 complaint allege, among other things, that the actions by Mr. Donaldson and Local 721 constituted calling an unlawful strike and sought damages. The relief sought in the complaint also included a request that the agreement reached between Ontario Hydro and Local 721 be set aside on the basis that it was an agreement between an employer subject to an accreditation order and a trade union that was not authorized by the accredited employer bargaining agent.

23Ontario Hydro and Gilbert Steel Limited are bound by an accreditation order in respect of work done by ironworkers in the electrical power systems sector of the construction inudstry. EPSCA is the accredited employer bargaining agent for Ontario Hydro and Gilbert Steel Limited in respect of that work.

24Counsel submitted that the arrangement between Local 721 and Ontario Hydro undermined the authority of EPSCA, the accredited bargaining agent for both Ontario Hydro and Gilbert Steel. Counsel argued that the arrangement was a concession made to Local 721 that it could not obtain in bargaining. By permitting the arrangement to stand, the Board would be approving a trade union seeking concessions from an individual employer that might be vulnerable to pressure. Such action would seriously weaken the bargaining power of the accredited employer bargaining agent and encourage a union to avoid or by-pass the employer's bargaining representative. Counsel suggested that the policy of the Labour Relations Act as enunciated in section 146 ought to apply in these circumstances.

25Section 146 of the Labour Relations Act prohibits any arrangement other than a provincial agreement that purports to affect employees represented by an affiliated bargaining agent. That section has application only to employers and employees in respect of the industrial, commercial and institutional sector of the construction industry. The case before us does not relate to the industrial, commercial and institutional sector, but rather relates to the electrical power systems sector. It is argued that the same policy should apply to preserve the integrity of bargaining by an accredited employer bargaining agent outside of the industrial, commercial and institutional sector.

26While that policy may be one that would better serve labour relations, it is not one that is contemplated by the Act outside of the industrial, commercial and institutional sector. Section 131 of the Act provides the statutory support for maintaining the integrity of an accredited employer bargaining agent. Section 131(1) prohibits direct bargaining and the entering into of a collective agreement between an employer represented by an accredited employer bargaining agent and a trade union. Section 131(2) prohibits any agreement or arrangement between an employer represented by an accredited employer bargaining agent and a trade union for the supply of employees during a lawful strike or lock-out. Unlike the province-wide bargaining regime in the industrial, commercial and institutional sector, section 131(3) of the Act permits an employer represented by an accredited employer bargaining agent to attempt to continue operating during a strike or lock-out. Section 131 does not prohibit arrangements between an individual employer and a trade union that do not relate to the supply of employees during a legal strike or lock-out and that do not constitute a collective agreement. There was no suggestion that the discussions betwen Ontario Hydro and Local 721 constituted bargaining for a collective agreement or that the arrangement was a collective agreement. Therefore, we are satisfied that the arrangement between Local 721 and Ontario Hydro is not prohibited by the Labour Relations Act and refuse to declare that arrangement null and void.

27When the hearings in this matter commenced, counsel for Local 721 sought to have the section 135 application dismissed as an exercise of the Board's discretion to refuse to grant relief. The Board declined to do so at that time since all of these proceedings raised common factual and evidentiary issues. Counsel for Gilbert Steel Limited pointed out that the section 89 complaint and the application under section 135 were virtually identical, with the section 89 complaint seeking damages and the declaration discussed above.

28When these matters first came on for hearing, the work stoppage had ceased. Although the agreement which resolved the underlying issue was between Ontario Hydro and Local 721 and therefore was not technically binding on either Gilbert Steel or EPSCA, it was apparent that the manner in which the work of the rodmen employed by Gilbert Steel Limited was to be performed was affected by the agreement.

29The Board has a discretion to refuse to grant relief in an application under section 135. It generally exercises that discretion when the work stoppage has ceased by the time of the hearing where there is no pattern of previous unlawful strike action, where it is unlikely that such illegal strike action will occur in the future, or if the unlawful strike does not have implications beyond the immediate parties. See Ontario Hydro, [1985] OLRB Rep. April 577 at 578-579 and the cases cited therein.

30The Board has also exercised that discretion to refuse to grant relief in a complaint under section 89 of the Act on those same principles where the allegations and relief sought relate to an alleged unlawful strike. See Steinberg Inc., [1982] OLRB Rep. Sept. 1366; application for reconsideration refused [1983] OLRB Rep. Feb. 253.

31We recognize that the complaint under section 89 of the Act seeks damages. Section 95 of the Act provides the method by which a person or trade union that is not a party to a collective agreement who suffers damage as a result of an illegal strike or lock-out may recover damages. Section 95 may be invoked only where the Board grants a declaration of an unlawful strike or lock-out. In our opinion, it is entirely inappropriate to circumvent the code provided by sections 92, 93 and 95 for relief in respect of an unlawful lock-out or strike by proceeding with a claim for damages in a complaint filed under section 89.

32We note parenthetically that at the time of the work stoppage, the parties had been bound by a collective agreement which had expired, but no conciliation officer had been appointed. Thus, the relevant grievance and arbitration procedures under the expired collective agreement could have been resorted to in order to seek damages for the alleged unlawful strike. For all of these reasons, the Board hereby exercises its discretion not to grant the relief requested in the section 89 complaint and the section 135 application. Accordingly, that application and complaint are hereby dismissed.

33There remains for consideration the complaint made by Local 721 on behalf of the rodmen for compensation for the period between June 9 and June 20 when they did not work as a result of Gilbert Steel Limited not assigning them work because they refused to wear their bellyhook.

34Counsel for Local 721 contended that the issues in this complaint require a determination of whether the failure to provide the necessary scaffolding so as to eliminate the need for working with the belly-hook contravened section 76 of the Regulations under Occupational Health and Safety Act, whether the use of the belly-hook was a hazard to an employee's health or safety, and whether the employees who refused to wear the hook had reason to believe that using the belly-hook was likely to endanger themselves or others.

35During final argument, counsel for Local 721 stated that it did not seek compensation for any rodmen who were not required to use the belly-hook to perform their work. Rodmen on the service crews or who were assigned to work on horizontal slabs did not need to use the belly-hook. We understood that the claim for compensation was therefore being pressed only on behalf of those rodmen who were on crews that were placing reinforcing rods on vertical walls. The original complaint was not so limited and the evidence tendered during the hearing suggested that all of the rodmen were seeking compensation.

36Mr. Donaldson and other officials of Local 721 have had a genuine and sincere concern over the use of the belly-hook for many years prior to June 6. Clinical studies have been done on the work performed by rodmen and on the effect that the use of the belly-hook has on them. Mr. Donaldson and Local 721 have been active in attempting to minimize the rodmen's use of the belly-hook. They have sought the use of scaffolding to provide rodmen with platforms from which to place and tie reinforcing rods on vertical structures. We have no doubt that Mr. Donaldson sees the belly-hook as creating long-term health risks for rodmen and has acted to minimize the use of the belly-hook so as to reduce those risks.

37The evidence before us indicates that Mr. Donaldson also recognized that in some situations rodmen would need to use the belly-hook and could do so without danger to an employee's health or safety. His objective in the collective bargaining that took place before the work stoppage was to attempt to minimize the use of the belly-hook. Local 721, through the International, had proposed a rotation system for working with the belly-hook and it also proposed that the employer supply the hooks to rodmen without cost. Mr. Donaldson was unsuccessful in securing the agreement of EPSCA to these demands during bargaining. The memorandum of agreement was signed over Mr. Donaldson's objection by the International and EPSCA, the actual parties to the expired collective agreement.

38After that memorandum of settlement was signed on June 3rd, Mr. Donaldson raised the safety issue with the rodmen at the work site for the first time. While the timing of Mr. Donaldson's conduct certainly caused Gilbert Steel Limited and Ontario Hydro to question his sincerity and motive, we accept that Mr. Donaldson had at all material times a real health and safety concern about the rodmen's use of the belly-hook. Our finding of genuine concern on Mr. Donaldson's part however does not end our inquiry. Mr. Donaldson was not an employee who refused to work using a belly-hook. The rodmen who were employed by Gilbert Steel Limited refused to wear their belly-hook and it is necessary therefore to consider whether their refusal which led to the subsequent decision of Gilbert Steel Limited not to assign work to them was protected by the Occupational Health and Safety Act.

39We do not need to decide whether the scaffolding that had been provided prior to June 6 was adequate or in compliance with the regulations. We simply observe that the evidence of the individual rodmen's concerns about safety did not relate to the scaffolding provided but rather involved wearing and using the belly-hook.

40We note the work stoppage occurred because Gilbert Steel Limited did not assign rodmen to perform work when the rodmen refused to wear their belly-hook. There was not an actual refusal by the rodmen to perform assigned work. The rodmen's refusal to wear their belly-hook took place when most of them did not actually need to use their belly-hook at the time they decided not to wear it.

41It appears to us that the issue that must be determined is whether the rodmen who refused to wear the belly-hook did so because they had reason to believe that it would likely endanger themselves or others.

42The test to be applied in determining whether an employee has reason to believe that work is likely to endanger himself or others was set out by the Board in The Corporation of the City of Toronto, [1986] OLRB Dec. 1834 at para. 61-64:

61. We have read, with interest, the various authorities referred to us by counsel and we have carefully considered the argument advanced by Mr. Goldblatt that, under section 23(1) of the O.H.S.A., at the point of the initial work refusal, a worker's "burden of justification" is lower than it is under section 23(6) after the intervention of a health and safety inspector. We are inclined to agree with that proposition. That is the natural implication of the differences in statutory language ("reason to believe" versus "reasonable grounds to believe"), and, as a purely practical matter, the validity of an employee's work refusal is more likely to be substantiated if the inspector agrees with him than if he does not. That is why the Union makes so much of the fact that, eventually, a Ministry inspector did form the opinion that "in some circumstances" the use of the vest might pose a safety hazard. Moreover, even the phrase "burden of justification" must be used with some care because it is clear that, under section 24 of the O.H.S.A., the employer has the legal burden of justifying any action taken against an employee refusing to work.

62. 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 of 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. However, the problem in this case is not the evidentiary threshold that employees must meet under section 23(1) as opposed to section 23(6); but rather whether a concern about their personal safety was the "real reason" that employees were refusing to work on May 19.

63. Counsel for the City points to what he describes as the "collective" or "concerted" nature of the employees' work refusals, and argues that this points inevitably, to the conclusion that they were engaging in an unlawful strike. We would not take the proposition quite that far. We agree that the apparently concerted nature of the employees' conduct may colour the Board's view and lead to inferences about the employees' real motive, however, so long as employees work together in groups and may be confronted with situations that they individually and collectively may regard as unsafe, we cannot conclude that a refusal to work was unjustified simply because a number of employees were involved. That proposition was clearly established in Inco Metals Co. [1980] O.L.R.B. Reports July 981, where the Board majority had this to say:

64. It is understandable for a company to be concerned that a group of employees, in the guise of invoking safety legislation, might refuse to work for reasons in fact unrelated to their own safety. In irresponsible hands any right can be abused. Moreover, safety issues, like the one in the instant case, can involve technical factors better understood by management. It is therefore not unnatural for a company to sometimes wonder whether a refusal to work by a group of employees is in fact a gesture of strength that is more impetus than cautious and to suspect that it is substantially inspired by other concerns.

65. Another natural concern for any company in the face of the right of employees to refuse unsafe work is the element of surprise. One of the things that a company expects in any collective bargaining setting is a freedom from work stoppages during the life of a collective agreement. The cost to the company both in terms of lost production and expenses incurred to remedy an unsafe condition may come without warning and require an unwelcome departure from established financial planning and a company's own schedule for capital and safety improvements. Moreover, any right of groups of employees to refuse to work because of health and safety concerns over such factors as the location or design of a plant, the choice or design of tools and equipment, the kind of materials used and the overall method of production tends to make negotiable matters previously within the exclusive discretion of management. Given all of these factors it is not unnatural for employers generally to have reservations about the motives for any concerted action in the name of safety (See, generally, Ison, Occupational Health and Wildcat Strikes, supra).

66. As valid as those general concerns may be, this Board must not construe the statutory right to refuse unsafe work so narrowly as to unduly discourage its legitimate use.

In fact valid employee complaints can and do arise in a group setting. When employees do share a concern a group response may be natural. And, as the instant case illustrates, different groups, like different individuals, may react differently to the same circumstances. By the very nature of the employment relationship, it often takes courage to confront an employer. It would, therefore, be unduly restrictive and unrealistic to construe the statutory right to refuse unsafe work as being unavailable to employees who share a concern and act with a common purpose.

58. The rights conferred by the Act are not unlimited. Nothing for example, permits employees who are not themselves involved in a perceived safety hazard the right to down their tools out of sympathy for another employee whom they think is confronted with unsafe work. Before any employee can invoke the right to refuse work he must have reasonable grounds to believe that he himself is in jeopardy or that he will place another employee in jeopardy if he proceeds to work. The question must always be whether the employees refusing to work, whether individually or as a group, each have sufficiently close relationship to a perceived hazard that they are themselves in peril or that they will put another employee in peril by performing their work. Moreover, the refusal to work protected by the statute is not a general withholding of services. An employee who protests that working conditions on a particular job are unsafe can't refuse to perform alternative work that isn't unsafe.

59. The requirement that an employee have "reasonable cause to believe" that there is danger imposes an objective standard by which to test the employee's action. The Act does not, by the use of the words "reasonable cause", legislate different standards of protection for the squeamish and the intrepid. Different employees within the same work place may have different views of what constitutes an acceptable risk. Likewise, strangers to a particular trade or industry might view with alarm situations that are not seen as hazardous by the people who work in that field on an every day basis. 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.

60. 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.

(We should note that Inco was decided under the predecessor to the current O.H.S.A., which put a slightly higher obligation on the employee at the "entry level").

64. We agree with those observations, but would add one more: while the Board must be scrupulous in ensuring that employees' fights under the Occupational Health and Safety Act are protected, we must also ensure that those rights are not abused, or raised to camouflage illegal strikes. That was a concern frequently raised in the employer community prior to the passage of the Occupational Health and Safety Act, and if such abuse became a pattern, it would undermine the legitimacy of the whole regulatory scheme. This is not to say the employees, individually or collectively, must await an accident before protesting about safety problems. Clearly, they are entitled to act if they have reason to believe such problems exist. But, by the same token, the O.H.S.A. should not be treated as a convenient pretext, to be invoked in defence of employee protests which do not really involve their personal safety. Collective action in conjunction with other evidence of the employees' motivation may well point to the conclusion that their conduct really does constitute a "strike" rather than a bona fide refusal to work because of safety concerns. That is our conclusion in the instant case.

43The evidence of the rodmen was quite telling in respect of their reasons for refusing to wear the belly-hook. While the evidence of some of the rodmen referred to safety concerns, much of their evidence suggested that the wearing of the belly-hook was a symbolic gesture to show Gilbert Steel Limited that the rodmen would no longer use the belly-hook. Many rodmen testified that there was a lot of work that could be done without the use of the belly-hook but that Gilbert Steel had made it clear to them that if they did not wear the belly-hook on their belts they would not work. The rodmen refused to wear the hooks on their belts. Gilbert Steel required the rodmen to wear the hooks on their belt. If they refused, they would not be assigned to perform work. There was not a refusal by any of the rodmen to perform work assigned to them by Gilbert Steel Limited.

44Ray Thompson, a rodman for fourteen years and a crew foreman, testified that he refused to wear the hook for the first time on Tuesday morning, June 10 when all of the rodmen were waiting to see if they could go to work. He said that he took a stand and thought that the time was right to do so. He referred to some safety concerns about using the belly-hook, but said that the opportunity was there to refuse so he did. Mr. Thompson also testified that he had heard from others that Mr. Donaldson had told the rodmen not to use the belly-hook.

45Don Lapschies, a rodman, testified that he left his hook in his car on Monday June 9. He thought using the hook was dangerous but that this was the first time he had ever refused. He had used the hook in his work as a rodman for the previous seven years. He said that the time was right for a concerted effort not to wear the belly-hook any longer. He also said that he knew that he could refuse unsafe work but had never done so before.

46Greg O'Connor, a rodman, testified that he refused to wear the belly-hook on the Tuesday morning because it was time to take a stand.

47Dennis Breton, a rodman, who was assigned to the afternoon shift testified that his union steward, John MacMillan had told him and the other members of his crew that the day shift had taken off their hooks and that they had been sent home. Mr. Breton's crew met in a group and decided not to wear their hooks. Mr. Breton testified that they waited two hours to see if they could work without wearing their hooks. Their foreman, Jack Rainville, told them that they would not be paid if they did not work. After two hours, the crew left the work place as a group.

48Alfie Thomas, a rodman and shop steward, testified that the rodmen and Mr. Dietrich had an understanding that scaffolds would be built high enough so that the belly-hook would only be used to place the top two or three bars. Mr. Thomas also testified that he was responsible for the demands made in bargaining for work rotations in respect of using the belly-hook. Mr. Thomas was not at the work site on Friday or Monday. On Tuesday morning June 10 he arrived at work and learned at that time that there had been a refusal to wear the hook and as a result, the rodmen were not assigned by Gilbert Steel to go to work. Mr. Thomas said that he had not used his belly-hook because he thought it was a hazard. Mr. Thomas thought that Gilbert Steel had been violating the understanding that had been reached earlier because the rodmen were now being required to use their belly-hook to place the top five or six reinforcing rods.

49Mr. Thomas also testified that he told the rodmen that they did not need to use the hook to go to work and that he wanted to rotate work that was available without the use of the hook among all of the rodmen. When Mr. Dietrich learned of that plan, he put a stop to it. Mr. Thomas said that Mr. Dietrich told him that it was a management decision about the assignment of work. Mr. Thomas said that Mr. Dietrich had clearly told him that if the rodmen did not wear their belly-hook, they could not work. Mr. Thomas also testified that no one refused to perform work. He said that they would not work with a belly-hook.

50Jack Rainville, a rodman foreman on the afternoon shift, testified in examination-in-chief that he had never used a belly-hook and had never been asked to use it. He said that Mr. Dietrich and Mr. Morrency had told him that if the rodmen did not wear their belly-hooks there was no work for them. Mr. Rainville said that he suggested to Mr. Dietrich that his men do that work that they could be done without using the hook. Mr. Dietrich said no. In cross-examination, Mr. Rainville conceded that he had used the belly-hook before and as part of the crew would use it on occasion. He said he never before refused to wear the hook or refused to perform work, but because his crew would not work with the hook he had no work to perform. He said that if his crew had agreed to wear the belly-hook he would also wear it.

51. Mike Joly, a rodman on the day shift, testified that he only refused to wear the belly-hook, but did not refuse to do any work between June 6 and June 19. His crew foreman, Amy McFadden told him that if he did not wear the belly-hook, he could not do any work. Mr. Joly had worked as a rodman for seven years and had never refused to use the belly-hook until Mr. Donaldson told him that he could refuse to do unsafe work. Mr. Joly also said that it was time that he and his union brothers took a stand on the issue.

52. Pat Simon, a working foreman on the day shift decided not to wear his belly work after discussing the matter with his crew. He testified that he concluded that it was unsafe to use the belly-hook. While some of the work that he and his crew could do did not require using the hook, he was told by Mr. Morrency that he and his crew could not work unless they wore their hooks on their belts. He asked his crew if they would wear hooks to finish off their work and they refused. Mr. Simon also said that he would back up his crew's refusal to wear the hook by also refusing to wear it.

53. Armand Breton, a rodman on the day shift, was working on horizontal slabs when he was told by Mr. Dietrich that if he did not wear the hook he could not work. Although Mr. Breton said that he felt that the hook was unsafe, the work he was assigned to perform did not require the use of the hook. Mr. Breton testified that the boys got together to take a stand against using the hook. Prior to that refusal, Mr. Breton had always worn the hook on his belt, even though he did not need to use it.

54. Jim Gibson, a rodman on the day shift, testified that Mr. Donaldson had told him and others at the union meeting on Thursday, June 5 that using the hook was unsafe and was breaking the law. Mr. Gibson had been a rodmen for twenty years and had used the belly-hook before throughout that time. He testified that he took the hook off on Monday morning June 9 because all of the other rodmen had decided together that they would no longer wear the belly-hook.

55. Bernard Pico, a rodman on the day shift, said he refused to wear the belly-hook because he thought it was hazardous. Mr. Pico said that on Monday June 9 he and the other members of his crew told their foreman, Cy Gibbons that they were not going to use the hook. Mr. Gibbons responded by saying that if they did not wear the belly-hook there was no work for them to do. Mr. Pico testified that there was work available that could have been done without using the belly-hook. Mr. Pico had been a rodman for nine years and had never refused before to use or wear the belly-hook because he could not get all other members of his union together to refuse.

56. Leslie Joy, a rodman working foreman, did not refuse to perform work because he and his crew worked on horizontal slabs. He was told by Gilbert Steel that he had to wear the hook on his belt or there would be no work for him. Mr. Joy said that there was work that could have been done without using the belly-hook, but because the other rodmen on his crew refused to wear the hook so did he.

57. Richard Breton, a rodman on the night shift, testified that he found out about the refusal to use the hook from his brother, Dennis Breton. Mr. Breton testified that all of the guys got together and decided not to wear the hook. His brother had told him that he had spoken with the union stewards and they were backing up the men. Mr. Breton commented that they had to do something about the belly-hook because if they did not get rid of the belly-hook at that time they never would.

58. John Sousa, a day shift rodman, testified that he took off his belly-hook because his foreman, Pat Simon, had told him that the union steward, Alfie Thomas had said to take off the hook. Mr. Sousa also testified that he remembered Mr. Donaldson telling a meeting of rodmen that they should not use the belly-hook.

59. Jeannot Plourde, a day shift rodman, testified that he did not need the hook to do the work to which he was assigned. He said he could have left the hook on his belt and not use it to do his work. He testified that he took the hook off his belt because everyone else had done so. He said that he had heard that the others were told by the union to take off the belly-hook. He said that Mr. Donaldson had told them to be available for work but not to wear the belly-hook. Mr. Plourde also testified that Mr. Donaldson had told them that working with the belly-hook was unsafe.

60. Rejean Gagnon, a day shift rodman, testified that he thought using the belly-hook was unsafe. He explained that Mr. Donaldson had told him and others to be available for work. He said that the group decided not to use the belly-hook any longer. June 9 was the first time in his twenty years as rodman that he refused to use or wear a belly-hook. He also said that if the others had continued to use the hook so would he. Mr. Gagnon had been working on horizontal slabs when Mr. Dietrich had told him and others that unless they wore the belly-hooks on their belts there would be no work for them to do. Mr. Gagnon also knew that if he put his hook back on his back he could go back to work on the horizontal slabs.

61. Gabriel Sousa, a rodman who attended the ratification meeting on Thursday June 5, testified that he decided he would not wear the belly-hook after that meeting because there was an agreement reached at that meeting to no longer wear the belly-hook. He did not wear his hook after that date. Mr. Sousa also testified that he thought the hook was unsafe. At the time of his refusal Mr. Sousa was working on horizontal slabs and did not need to use the hook in order to perform his work.

62. Doug Sands, a day shift rodman, testified that he and others had been told not to refuse work, but to do the work without using a hook. Mr. Sands also said that after the ratification meeting on Thursday there was an agreement not to wear the hook. Mr. Sands said that Mr. Donaldson and Mr. Thomas had told him and others that when they went to work on Monday June 9 to take their hooks off their belts. He testified that they had said that they were going to fight to get rid of the belly-hook.

63. Norman Roussel, a day shift rodman, testified that he was told by Mr. Dietrich that there was no work if he did not wear the hook. He said that everyone decided that they would take their belly-hooks off so he would as well. Mr. Roussel also testified that there was work that was available without using the hook. He also said that if he had put his hook back on his belt he could have returned to work.

64. Gilles Roussel, a day shift rodman, testified he thought wearing the belly-hook was unsafe because of the rodmen's tendency to abuse it by climbing the walls with bars and trying to hang on using the hook. He said that he decided to take the hook off his belt on Friday afternoon, after Mr. Donaldson and Mr. Murphy talked to his crew. He said that he took off the hook with the rest of his crew. Mr. Roussel acknowledged that there is a difference between wearing the hook and using the hook and that many times he has worn the hook when he has not needed to use it. He also said that if everybody had worn the hook he would continue to wear it and that if he had put the hook back on his belt he could have gone back to work.

65. Luzfi Colak worked as a rodman foreman on the day shift. He testified that he thought that the belly-hook was unsafe. He testified that he and his crew took their belly-hooks off on Monday June 9. He said that he got the message from someone from the union to take the belly-hooks off. His crew was the last group to take their belly-hooks off because they were working away from the others. He testified that his entire crew took their hooks off because they were told that if everyone took their hooks off the company could not blame just one person.

66. Jim Flynn worked as a rodman on the night shift. He worked on a service crew and did not need to use the hook to perform his work. He testified that he missed two days of work because his crew went out in sympathy with the other rodmen. He had worked as a rodman for twenty-three years and had never refused to wear the hook before. He also testified that he normally did not wear his belly-hook when working on a service crew, and that his crew was not stopped from working.

67. Art Perry was a rodman working on the day shift. He did not refuse to wear the hook on the morning of June 6 because he was working on slabs. He testified that word then came around that the other rodmen were refusing to wear their hooks so he took his hook off and put it in his lunch pail. He had been told by his foreman that if they did not wear their belly-hooks then they could not go to work. He understood that everyone had to stick together to refuse to wear the belly-hooks. He also testified that if someone was wearing the belly-hook when the others had decided not to, that person would be considered a scab.

68. Marcel Bourque worked as a rodman on the day shift. He refused to use the belly-hook because he thought it was unsafe. He took his belly-hook off when Mr. Donaldson came by his crew on Friday June 6 and told him and others that they did not have to wear the belly-hook because it was unsafe. Mr. Bourque had been a rodmen for twenty years and always wore the belly-hook on his belt. He testified that the work that he performed did not require the use of a hook and that on the Monday when he refused to wear the hook he did not need to use it. He also said that there were lots of times when he would wear the hook on his belt and not use it because the hook was part of the tools of a rodmen. Mr. Bourque testified that nobody on his crew wore the hook and that they all had to stick together.

69. Mr. Pearce testified he took his hook off on Friday because he did not need it and he wanted to show the company and others that he was going to take his hook off. Mr. Pearce had worked as rodman for ten years and he had worn the hook during that time and had never objected to using it before.

70. John MacMillan, the rodman steward on the afternoon shift, testified that his crew did not need to use the hook to do their work. His crew was a service crew. That crew went out in sympathy with the rodmen on the day shift. The service crew did not wear the hook because they never had to use it and wwere permitted to continue working after Monday.

71. Len Loder was a day shift rodman foreman. He testified that he has not worn a belly-hook for fifteen years because he supervises the work of others. His crew did not use the bellyhook because they did service work. All of the members of Mr. Loder's crew refused to wear their hook because they did not need it to do their work. Mr. Loder and his crew were not told by Gilbert Steel Limited that they could not work if they did not wear the belly-hook. Nevertheless, Mr. Loder and his crew did not work on Monday June 9 after the meeting with Mr. Dietrich when the rodmen went to the union hall.

72. Noel Tulloch was a rodman on the day shift. The work he was assigned to perform did not require him to wear a belly-hook. He testified that he stopped wearing the belly-hook on Friday June 6. He had worn the hook all the time but used it very rarely. He said that when he refused to wear the hook he knew that everyone else was refusing. He said that he had to do because the majority was refusing to wear it and he had to work together with them.

73. Hamza Colakague worked as a rodman on the day shift. He testified that he refused to use the belly-hook on the Friday June 6 because it was unsafe. At the time of his refusal, the kind of work that he was doing did not require him to use the hook most of the day. He testified that he refused on that day because that was the time that everybody decided not to use the belly-hook.

74. Richard Levesque worked as an apprentice rodman. He testified that he refused to use the belly-hook because it was unsafe. He said that a decision was made by all of the men to ban the use of the hook on Friday, June 6. He said at that time he decided that he would not wear his hook anymore.

75. Edward Howse worked as an ironworker in the fabrication yard. He testified that he did not refuse to use the hook because he never used it in the work he did. He said that on June 9 the union steward came to his crew and said that the day shift had gone off the job. He testified that when he was told that he and the rest of his crew walked out in sympathy with the morning shift. His crew did not need to use a belly-hook in their work.

76. Roger Landry worked the afternoon shift as a working foreman. He testified that he refused to use the belly-hook between June 6 and June 19. He refused to wear the belly-hook on Monday June 9. He testified that he decided that he would not wear the belly-hook when he was told that the day shift had decided not to wear the belly-hook.

77. Carl Pohl worked on the day shift as a rodman on a service crew. His crew never wore the hook. The crew was told by Guy Morrency that the dispute with the other rodmen had nothing to do with his service crew and that they could go back to work. Mr. Morrency later told him that unless he wore the hook on his belt he would not be allowed to go to work. He testified he knew he could go back to work if he wore the hook but refused to wear it.

78. Silas Gibbons worked as a rodman foreman on the day shift. He testified that his crew would need the hook to do their work, but that they refused to wear their hook on Monday June 9. He agreed that the rodmen would wear their hooks on their belts even if they did not need to use then. He testified that he refused to use the hook because it was unsafe but also testified that if other people had not refused to wear the hook, he would have continued to wear it.

79. Kevin McDonald, a rodman apprentice, testified that he and the other members of his crew refused to wear the belly-hook. In his training as an apprentice, he had been taught about the use of the hook. He refused to wear it when the others in his crew had refused.

80. Antonio Sousa, a rodman on the day shift, testified that he decided to remove his hook from the belt at the meeting on Monday June 9. At that time, Mr. Dietrich had told the meeting that they had to wear their hook in order to go to work. Mr. Sousa testified that all the men altogether decided that they would not wear the hook and it was at that point that he decided to take his hook off. He said that when everybody refused to wear the hook he also refused but if everyone had continued to wear it he would have worn it also.

81. Wayne Perry, a rodman on the day shift, testified that he had decided to refuse to use the hook when he was told that it was his decision whether or not he could wear it. He also recalled being told by the union that he had the right to refuse to wear the hook. He testified that he and his crew had met, either on Friday or Monday, and they decided that they would all take their hooks off.

82. Vittorio Bianchi was a rodman who worked on a service crew. On occasion he needed to use the belly-hook to place some rods. He testified that when he attended the union meeting, Mr. Donaldson had told the group that no one in Local 721 was to use the belly-hook. He said that was why he did not wear it any longer.

83. Valentino Sirianni, a rodman on the day shift, testified that he was waiting for the day that one could stop using the belly-hook. He testified that he stopped using it on Monday June 9. He decided not to use the hook when everyone on his crew decided that they would take the hooks off their belts before starting work.

84. Clarence Dugay, a rodman on the day shift, testified that his foreman had told his crew that the union had said that they were not to wear the belly-hook. He testified that he thought the hook was unsafe and was pleased that someone was finally taking a stand. He said that his foreman had told them that if they did not wear the hook there would be no work for them to do. Mr. Dugay testified that he was told that everybody was taking their hooks off so that he decided he would do it as well. The entire crew took their hooks off at the same time. He also said that he was prepared to take his hook off but if the others on his crew did not, he would still have worn his belly-hook.

85. Gerry Cascone testified that he refused to wear the belly-hook because everybody should stick together and get rid of it. He said that he took off his hook because the others had taken off theirs.

86. Pat Inglese worked as a rodman foreman. He testified that he refused to use the hook between June 6 and June 19 although the work that he was assigned to do did not require a hook. He was working on horizontal slabs and prior to June 6 wore the hook on his belt even though the work that he was doing did not require the use of the hook. He testified that he decided not to wear the hook when the other people at the meeting said they would not wear their hooks.

87. Steve Kosa, a rodman on the day shift worked on horizontal slabs and did not require a hook to perform his work. He decided to take the hook off his belt after the meeting at the union hall on Monday. He testified that he understood that everybody at the meeting had decided that they would no longer wear the belly-hook. He said that he decided that he would not wear the hook because everybody else had stopped wearing it.

88. George McLaughlin, a rodman on the evening shift testified that Jack Rainville, his foreman, came to the crew and told him that the day shift had refused to wear the hook. He asked the crew whether they agreed and they did. He testified that he refused to wear the hook because everyone else had refused and it was an opportunity for him to take the hook off. He also said that he would not refuse to wear the hook if no one else was refusing. The entire crew took their hooks off at the same time.

89. Mike Ferguson, a rodman on the day shift, testified that he and his crew decided to take the hooks off when everyone agreed. He testified that he thought using the hook was unsafe.

90. Romeo Babin was a rodman on the day shift. He testified that he refused to use the belly-hook but he was working on horizontal slabs when the refusal occurred. He said that he refused to use the belly-hook because all of the other guys said it was not safe to use the hook. He took the hook off his belt when everyone agreed that they would not wear the hook any longer. He never refused to use the hook in his twenty-seven years as a rodman, and took the hook off his belt after the meeting on Monday morning when everyone else had agreed.

91. Jim Welburn, a rodman testified that he refused to use the belly-hook between June 6 and June 19, but was assigned to work in the fabrication shop. He did not use the belly-hook in his work. He testified that although he was off work for a couple of days during that period, when he returned to work he took off his hook from the belt because he wanted to support the others.

92. Joe Vinish was a rodman foreman. His crew did not require a belly-hook because they were working on pipe encasements. He and his crew worked during most of that period without wearing the hook. He testified that he took his belly-hook off his belt as he had been instructed by Mr. Donaldson not to wear the belly-hook. He attended the meeting on Monday June 9 at the union hall. As a result of that meeting he knew that the men would no longer wear their belly-hooks.

93. Eli Canning, a rodman on the day shift, testified that he did not refuse to wear the belly-hook, he simply followed the instructions of his foreman. He testified that his foreman, Amy McFadden, had taken his hook off and had been told by Mr. Donaldson that they were not to wear the hook any longer. He testified that he was present when Mr. Donaldson told Mr. McFadden that they were not to wear the belly-hook until the dispute over the hook was settled.

94. Jennot Beaulieu, a rodman on the day shift, testified that the foreman had told him to take his hook off because Mr. Donaldson had come to the job site and had told them to not wear the hook. He understood that Mr. Donaldson had mentioned that it was not safe to wear the hook. Mr. Beaulieu testified that he took his hook off on Friday June 6 because the union had showed up on the job site and had told him and the crew to remove their hooks from their belt. They followed the union's direction.

95. Mario Plourde, an apprentice rodman, testified that he first refused to wear the hook on Friday June 6 after a group of people had come to the crew that he was on and told them to remove their hook. He testified that he was told that everyone was removing the hook so that he also had to remove his hook.

96. Allen Ebacher, a rodman, testified that the union had told him that the hook was unsafe. He indicated that he also thought it was unsafe and that this was the best time to remove the hook. He said that because all the other rodmen were taking their hook off he would take his hook off as well. He said that Amy McFadden, his foreman, had told him to take his hook off.

97. Gilles Levesque worked at Darlington as an apprentice rodman. He had been told that someone from the union had come around and said that the hook was not to be worn.

98. Leonardo Vitale, a rodman, testified that he refused to use the belly-hook. He explained that his foreman told him he was not to use the hook any longer. The foreman advised him that the union had said that the crew was not to wear the belly-hook.

99. Michael St. John, a rodman, testified that his crew had met before work and they decided together that because crews were not wearing their hook they would also leave their hooks in their tool box. He testified that he recalled being told that he could either wear his hook or go home.

100. Joe Gustin was a rodman foreman at Darlington. He testified that he had never refused to use a hook before June 6. He also testified that he was unsure whether the union had told him not to wear or use the hook but that everyone had decided together that they would not wear the hook at their meeting on Monday.

101. Amy McFadden was employed as a rodman foreman. He testified that on Friday morning June 6, Mr. Donaldson had come around and said that they did not have to wear the hook any longer. He testified that he decided that he would not wear the hook when he met with his crew and they all took their hooks off.

102. There were several differences in the testimony of the rodmen but there were several common themes to that evidence. Generally, the rodmen expressed the view that working with a belly-hook was unsafe. Although many knew that they had right to refuse unsafe work, they did not exercise that right until all of the others had done so. While we do not doubt that the rodmen expressed genuine concern about using the belly-hook when working on vertical walls it was abundantly clear from their evidence that the rodmen refused to wear their belly-hook, even when their work did not require them to use it.

103. Counsel for the union, in argument, suggested that anyone who was required to wear the belly-hook would be expected to use it. That may be so, but the fact remains that Gilbert Steel required the rodmen to wear their hooks on their belt. A rodman who was assigned to perform work that does not require the use of the belly-hook does not, in our opinion, have reason to believe that wearing the belly-hook is likely to endanger himself or others.

104. Section 23 of the Occupational Health and Safety Act permits workers to refuse to perform work where there is a reason to believe that the performance of such work is likely to endanger themselves or others. The scheme of section 23 is designed to focus the employees and their employer on the work or the workplace circumstances in order that a proper investigation and appropriate remedial action can be taken. As Board commented in Inco Metals Co., [1980] OLRB Rep. July 981, employees do not have the right to refuse to perform work because other employees are faced with hazardous work. The Board wrote at paragraph 58:

105. The rights conferred by the Act are not unlimited. Nothing for example, permits employees who are not themselves involved in a perceived safety hazard the right to down their tools out of sympathy for another employee whom they think is confronted with unsafe work. Before any employee can invoke the right to refuse work he must have reasonable grounds to believe that he himself is in jeopardy or that he will place another employee in jeopardy if he proceeds to work. The question must always be whether the employees refusing to work, whether individually or as a group, each have sufficiently close relationship to a perceived hazard that they are themselves in peril or that they will put another employee in peril by performing their work. Moreover, the refusal to work protected by the statute is not a general withholding of services. An employee who protests that working conditions on a particular job are unsafe can't refuse to perform alternative work that isn't unsafe.

106. In our opinion, there is nothing in the Occupational Health and Safety Act that confers upon rodmen the right to refuse to wear a belly-hook. An employer may require an employee to wear a particular item so long as the wearing of it does not create a situation where an employee has reason to believe that it is likely to endanger himself or others. If the employee refuses to comply with the employer's direction in those circumstances, the employer is at liberty to suspend or otherwise discipline an employee, subject to any collective agreement review, without violating the Occupational Health and Safety Act.

107. In our opinion, the refusal by rodmen to wear their belly-hooks on their tool belt did not give rise to a situation that is protected by the Act. Clearly, employees who are assigned to perform work that did not need a belly-hook and who refused to wear their belly-hook were not in a situation where the wearing of the belly-hook was likely to endanger themselves or any other rodmen. We acknowledge that Local 721 did not seek compensation in respect of those employees at the conclusion of the evidence. Nevertheless, their refusal to wear the belly-hook must also affect our assessment of the action taken by the rodmen who would have had to use the belly-hook to perform some of their work.

108. Gilbert Steel required all employees, with some exceptions, to wear their belly-hooks. If they refused, they would not be assigned further work. No distinction was made by either the rodmen or Gilbert Steel between the rodmen who might need to use the hook and those who did not. In our opinion, that distinction is a critical one. If the rodmen continued to wear the belly-hook but merely refused to perform the work that required the use of the belly-hook, then both the rodmen and Gilbert Steel Limited would have been in a position to assess the specific problem at the time. If the employees' refusal related to an expressed concern about chronic back pain, or the absence of scaffolding then at that point, the steps contemplated by section 23 of the Occupational Health and Safety Act could have have been invoked. A reaction by Gilbert Steel Limited to such a work refusal could then have been assessed to determine whether section 24 was violated.

109. What took place between June 6 and June 20 was not a refusal to perform work. Indeed, the evidence was clear that the rodmen did not refuse to work and had been prepared to work without wearing a belly-hook. Gilbert Steel simply did not assign them to work when they refused to wear their belly-hook. We are of the view that the rodmen's refusal was a challenge to their employer's direction to wear a particular piece of equipment as a way of demonstrating that they would not use that equipment under any circumstances. As was evident, in some limited circumstances even Mr. Donaldson and Local 721 would agree that the use of the belly-hook was not likely to endanger anyone. The wearing of the belly-hook did not in and of itself create any danger nor would the wearing of the belly-hook be likely to endanger anyone else. On the basis of all of the evidence, we are satisfied that the rodmen did not have reason to believe that wearing the belly-hook was likely to endanger anyone.

110. During the course of the hearing, the Board received into evidence certain photographs. The admissibility of those photographs was contested. Counsel requested that the reasons for the majority's ruling be incorporated our decision. That ruling of the majority, J. Wilson dissenting, is as follows:

Counsel for the union wishes to introduce into evidence photographs of a model or demonstration wall to illustrate the use of the belly-hook. The photographs were taken of a demonstration carried out at the union's rodmen training centre in Toronto. It was based on the experience of Gary Cleeton, apprentice co-ordinator of Local 721 who had worked at Darlington as a working foreman for Gilbert Steel for approximately three and a half years.

Mr. Cleeton had supervision of a gang rodmen building platform slabs, walls and columns at various locations throughout Darlington. He used that experience to create a model for the demonstration to be photographed. Mr. Cleeton did not supervise work on the reactor walls while working at Darlington and consequently did not base his model on that kind of structure. At the times of the refusal in June 1986, much of the work related to the building of reactor walls.

While the size of the rod and the number and spacing of the rods differed depending on the size and specifications of the wall being built, the process of building a wall was similar. Additionally, while the refusal arose out of the use of the belly-hook, principally on reactor walls, much of the evidence we heard about the use of the hook was not confined to it being used on reactor walls, but related to its use on other kinds of structures.

While we recognize that the photographs do not illustrate the work that was being done at the time of the refusal, we are satisfied that they can be illustrative of some of the viva voce evidence that we heard concerning the use of the hook. Additionally, this panel has taken a view of the job site and has observed the kinds of structures that were being built, when the work refusal occurred. We believe that pictures illustrating the manner in which the hook was used, taken together with our view of the size and spacing of the rods that were being used on the reactors walls can assist us a great deal in appreciating the viva voce evidence we have heard thus far. We therefore find that the photographs are relevant to the issues before us. The objection to the admission of the photographs is hereby dismissed.

Mr. Wilson dissented because he was of the view that the pictures were not relevant. The demonstration was done long after the complaint arose. The photographs show the work being done by apprentices not experienced rodmen. The thickness of the wall, the size and spacing of the rods all differed. In view of the differences between the model and the work that was actually being done at the time, photographs of the model are not relevant and he would uphold the objection.

110. We are satisfied that Gilbert Steel's response to the rodmen's refusal to wear the belly-hook did not constitute a violation of section 24 of the Occupational Health and Safety Act. The evidence established that throughout the period from June 6 to June 20, work was not done by the rodmen because Gilbert Steel would not assign work to rodmen who refused to wear the belly-hook. We note that prior to that time and as part of the agreement resolving the dispute, the occasional, but infrequent use of a belly-hook was contemplated. During the period in question the rodmen refused to wear the belly-hook. It seems therefore that the use of a belly-hook may or may not create some health or safety risk, depending on the particular circumstances that exist at any point in time. Had there been a refusal to perform specific work that was assigned, an assessment of those circumstances could have been undertaken, including an examination of the reason the worker or workers had for refusing to perform such work. The refusal to wear the belly-hook constituted, in our view, a statement that the belly-hook would not be used until the concerns of Local 721 and Mr. Donaldson were addressed. We recognize that those concerns related to safety in the workplace in a general sense and to the procurement of additional scaffolding for the rodmen. Nevertheless, we are of the view the rodmen's refusal to wear the belly-hook was not motivated because wearing the belly-hook was likely to endanger themselves or others. Therefore, when they refused to wear the belly-hook, they were not engaged in a refusal contemplated by section 23 of the Act and therefore the response of Gilbert Steel to their refusal did not violate section 24.

111. We are persuaded that Gilbert Steel did not act contrary to section 24 of the Act when it refused to assign rodmen to perform work while not wearing their belly-hook and not to pay them for the time not worked.

112. In the result, the complaint under section 24 of the Occupational Health and Safety Act is hereby dismissed.

113. For all the reasons aforesaid, the application under section 135 of the Labour Relations Act, the complaint under section 89 Labour Relations Act and the complaint under section 24 of the Occupational Health and Safety Act are hereby dismissed.

PARTIAL DISSENT OF BOARD MEMBER W. GIBSON; February 26, 1990

1. While I concur with the dismissal of the application under section 135 of the Labour Relations Act, and the complaint under section 24 of the Occupational Health and Safety Act, I must dissent from that portion of the majority decision on the section 89 complaint which is set out in paragraph 26 of that decision. To me this is clearly a breach of section 131(1) of the Labour Relations Act. Here we have a case where an agreement was signed between Local Union 721 and Ontario Hydro altering a work practice which had been in existence for over 20 years. Although this work practice is not specifically spelled out in the collective agreement, all parties had accepted this work practice for more than two decades, and Local 721 tried to amend this practice in the last round of collective bargaining by proposing a rotation system for working with the belly-hook, plus a demand that the employer supply the hooks to rodmen without cost. When their accredited bargaining agent failed to achieve this in bargaining, they initiated some job site action on the issue, which culminated in an agreement being signed by Local 721 and Ontario Hydro which called for the construction of an additional level on the scaffolds in order to minimize, if not eliminate, the need for the use of the belly-hook. This obviously involves an additional cost factor to the employer, which had previously not been necessary under the long-standing practice on the use of belly-hooks. Neither of the Accredited Bargaining Agencies, E.P.S.C.A. and the International union, were signatory to the agreement.

2. Section 131(1) of the Labour Relations Act states:

3. (1) No trade union or council of trade unions that has bargaining rights for employees of employers represented by an accredited employers' organization and no such employer or person acting on behalf of such employer, trade union or council of trade unions shall, so long as the accredited employers' organization continues to be entitled to represent the employers in a unit of employers, bargain with each other with respect to such employees or enter into a collective agreement designed or intended to be binding upon such employees and if any such agreement is entered into it is void.

[my emphasis added]

3. Here we have a case where a trade union and an employer bargained together to vary a work practice long existing under the collective agreement, without the agreement of either accredited bargaining agent, despite the wording of section 131(1) which states that they shall not bargain together with respect to employees of employers represented by an accredited employers organization.

4. To preserve the integrity of the accreditation process, I believe this agreement between Local 721 and Ontario Hydro should be declared null and void.

PARTIAL DISSENT OF BOARD MEMBER JOSEPH F. KENNEDY; February 26, 1990

1. I have had the advantage of reading the majority's opinion. I concur with the decision to dismiss the section 135 application and section 89 complaint for the reasons set out in the majority's decision in paragraphs 28 to 32. I dissent, however, with respect to the complaint under section 24 of the Occupational Health and Safety Act ("OHSA") which I would have allowed for the reasons set out below.

2. The OHSA was enacted for the protection of workers. The Interpretation Act R.S.O.

1980 c.219 provides:

10. Every Act shall be deemed to be remedial, whether its immediate purport is to direct the doing of anything that the Legislature deems to be for the public good or to prevent or punish the doing of anything that it deems to be contrary to the public good, and shall accordingly receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit.

It is now well settled law that the OHSA and similar statutes intended to protect and enhance the rights of workers are remedial legislation that should be interpreted and applied such that the benefit of the doubt is resolved in the worker's favour: see Re Abrahams and A-G Canada (1983), 1983 CanLII 17 (SCC), 142 D.L.R. (3d) 1 (S.C.C.); Canadian National Railway Company v. Canadian Human Rights Inco Metals, [1980] OLRB Rep. July 1981.

3. In this case, as the majority notes at paragraph 36 of its reasons President John Donaldson and other officials of Local 721 "have had a genuine and sincere concern over the use of the belly-hook for many years." At least 12 ironworkers specifically testified that they thought working with the belly-hook was unsafe, and other ironworkers gave testimony that although less direct in nature still corroborated by implication the evidence of their co-workers. There are times when a group of people must band together in a concentrated effort to bring to a halt a safety hazard that affects a few in the same jurisdiction. If they had all continued to wear the belly-hook, even though it was not necessary in the majority of their work, the Company would have forced the few that needed the belly-hook to wear it. The employees believed that if they refused, the Company would have sent them home and recruited from the ranks those who had belly-hooks on their belts. A group refusal to perform unsafe work is equally fully protected by the OHSA as that of a lone individual: Inco Metals supra; Camco Inc., [1985] OLRB Rep. Oct. 1431; see also Northwood Pulp & Timber Ltd. (1983), 2 Can. L.R.B.R. (N.S.) 74 (B.C.)

4. In matters of safety, the principle of "work now and grieve later" does not apply: Wilco Canada Inc., [19831 OLRB Rep. Oct. 1759. Rather the OHSA expressly permits a worker to refuse to perform work that in the first instance the worker has "reason to believe" is unsafe (OHSA s.23(3)); and following investigation that the worker has "reasonable grounds to believe" is unsafe (OHSA s.23(6)). The genuine concern about the relationship of the wearing and use of belly-hooks and the incidence of chronic back pain that motivated the workers surely meets both tests. The majority's distinction between the wearing and use of belly-hooks is an utterly artificial one; where an employer requires an employee to wear or carry a particular tool, it is because the employer expects the tool to be put to use. Gilbert Steel Limited was not responding to fashion trends when it ceased to make work available to ironworkers refusing to wear the belly-hook, it was instead ordering that this piece of equipment be used.

5. Thus, it may be seen that the employer reacted to the workers' safety-motivated work refusal by imposing the penalty of lost work. This constitutes a violation of section 24 of the OHSA, for that section is violated whenever any part of the reason for taking action against an employee is that he or she acted in compliance with the Act: Black & McDonald Ltd., [1983] OLRB Rep. Dec. 1971. Hence, I would have allowed the OHSA complaint, and remained seized with the issue of remedy.