Ontario Labour Relations Board

[1990] OLRB Rep. September 921

0748-90-OH Doug McFadden, Complainant v. Blenkhorn & Sawle Ltd., Respondent

BEFORE: K. G. O'Neil, Vice-Chair, and Board Members W. Gibson and J. Redshaw.

APPEARANCES: Jerry Raso and Doug McFadden for the applicant; Donald Carr and Sherman Arnold for the respondent.

DECISION OF THE BOARD; September 19, 1990

1. This is a complaint under section 24 of the Occupational Health and Safety Act (some­times referred to below as the OHSA).

2. Douglas McFadden, the complainant, has been a journeyman sheetmetal worker for 25 years. His experience includes 16 years as a superintendent and four and a half years as a foreman with sheet metal firms. He was laid off on May 3, 1990 by the respondent (Blenkhorn), a sheet metal subcontractor on a project constructing a new distribution centre for Canadian Tire in Brampton, Ontario. The reason given was shortage of work. Mr. McFadden believes that the actual reason was, at least in part, annoyance with his activities as a health and safety representa­tive and co-chair of the joint health and safety committee.

3. Donald Carr, senior vice-president, of the employer as well as Sherman Arnold, the foreman who made the decision to lay-off Mr. McFadden, gave evidence on behalf of the employer. John Collins, a sheet metal worker business agent, Greg Mitchell, a sprinkler fitter, and the complainant gave evidence in support of the complaint. We have summarized the salient parts of the evidence below.

4. On May 1, 1990, Blenkhorn was advised by its general contractor that an area in the project known as Area 14 was on hold until further notice. Mr. Arnold said that the reason for this was the impending strike of the electricians which would prevent the area being electrically lit. On the other hand, Mr. Carr said the reason was that the consulting engineers had not yet made a decision as to what to do with part of the conduit that Blenkhorn was to install. Mr. McFadden maintains that there was plenty of other work to do, some crews were already working in Area 14 with portable lighting, and that the layoff was unnecessary. Mr. Carr testified in reply that, by the date of the hearing, the work mentioned by Mr. McFadden had still not been done.

5. Mr. Arnold, the foreman, has control of hiring and firing on the site. He first hired Mr. McFadden on December 4, 1989, making Mr. McFadden the second employee of the respondent on the Canadian Tire site. There were two layoffs in December and Mr. McFadden was last re­hired on January 22, 1990. Up until that time, Mr. McFadden testified there had been no com­plaints about his work, and Mr. Arnold had expressed pleasure that he was returning after the December layoffs.

6. Mr. McFadden's involvement with health and safety on the Canadian Tire site started when Mr. Arnold asked him to represent the company on a voluntary health and safety committee set up by the general contractor's safety coordinator. Various unions decided that this committee should be boycotted and later a joint health and safety committee was set up to which Mr. McFad­den was appointed by the union side. Starting with a meeting of the voluntary health and safety committee, and continuing through the joint committee, Mr. McFadden took an active part in health and safety meetings which dealt with a large number of items.

7. Mr. Arnold was away on holidays between March 12 and 16, 1990. During this period of time Mr. McFadden exercised his right to refuse work under section 23 of the OHSA. The issue during this work refusal was carbon monoxide fumes from machine engines running inside the structure which had been enclosed for winter construction. On March 12, when Mr. McFadden ini­tiated the work refusal, the air was "very smoky" and there were no exhaust fans. The Ministry did not take readings until the following day, when the conditions were much better. The ventilation was on, the doors were open, the bulldozers were parked, no concrete was being poured and no vehicles were moving. The level of carbon monoxide was still over twice the permissible standard, and orders were issued.

8. Upon Mr. Arnold's return from vacation, he was led to believe by the Acting Foreman and others that Mr. McFadden had not done any regular work during his week of vacation, but had spent all his time on health and safety matters. He was concerned about it, and spoke to Mr. McFadden, who denied that he was not on the job. However, it was clear later in his evidence that Mr. Arnold felt Mr. McFadden had spent an excessive amount of time on health and safety in his absence. Mr. McFadden's uncontradicted evidence was that he and his crew finished all the work that the foreman had left during his vacation, despite the time he spent on the work refusal.

9. On March 20, 1990, Mr. McFadden became workers' chair of the health and safety committee, and thus co-chair of the joint health and safety committee, replacing the previous chair who had been fired. At the same time he became union steward. Mr. Arnold testified that when he heard of the possibility of this that he told Mr. McFadden that personally he would rather if he was not co-chairperson because Blenkhorn was one of the smallest contractors on the site. However, he maintained that he had left it up to Mr. McFadden to decide and that this did not play a part in his decision to lay him off. Mr. McFadden said that this conversation also included a statement by Mr. Arnold that if he did take on the above responsibilities the employer would have to find ways to remove him, that the company did not want the responsibility of paying for a safety chair. Mr. Arnold denies this.

10. On April 12, Mr. McFadden spent the first hour of the work day trying to find an agenda for the health and safety meeting he was to attend later in the morning. When he returned to the work site, Mr. Arnold confronted him, saying that they started work at 7:30 and asking him if he remembered "our talk". Mr. Arnold says this referred to a conversation they had had about his being hired as a sheetmetal worker. Mr. McFadden says it relates to the conversation in which Mr. Arnold cautioned him about becoming Chair of the health and safety committee. Mr. McFad­den called Mr. Collins on that day to complain that his foreman had complained he was spending too much time on health and safety matters.

11. On April 16, Mr. McFadden participated in a health and safety job-walk through the work place. On April 26, 1990 Mr. McFadden again called in the Ministry of Labour, this time on an issue related to propane bottles and standing on work boxes on scissor lifts. Mr. McFadden's participation in the ensuing inspection took him away from his regular job duties between 12:30 and 3:50 after which it was too late to get out his tools. Mr. Arnold says he was not upset about this; it was part of Mr. McFadden's job as a safety rep. On the same day, Mr. McFadden, in his role as union steward, talked to Mr. Arnold about a work jurisdiction problem. At the end of the day Mr. McFadden asked Mr. Arnold's permission to use the phone. Mr. Arnold's response was "Yes, you haven't worked all day, why start now?" Mr. Arnold testified that he felt that Mr. McFadden was spending an excessive amount of time making calls as steward. Mr. McFadden maintains that he only made phone calls on one occasion (3 calls), relating to a work jurisdiction problem. He also mentioned using the phone in his role of health and safety representative on other occasions.

12. On April 30, 1990, Mr. McFadden asked Mr. Arnold about putting platforms on the scissor lifts, and Mr. Arnold said they were not necessary, despite the fact that the Ministry had left an order on April 26, directing that they be used. Mr. Arnold said that Mr. Callan had said this was okay when he went to check out what the "write-up" from the Ministry had said. Mr. McFad­den describes Mr. Arnold as very upset, which Arnold denies. Shortly after this, likely on the same day, Mr. Arnold had a conversation with Mr. Collins, the Business Agent, in which Mr. Arnold informed Mr. Collins that he wanted to replace Mr. McFadden on the job, but maintains he meant only as a union steward, not as a health and safety representative. On May 2, Mr. Collins came to the job site to discuss this with Mr. Arnold. We accept Mr. Collins testimony that during this dis­cussion, Mr. Arnold complained about the amount of time that Mr. McFadden spent on health and safety and steward duties, and that it was interfering with his job as sheet metal worker. However, Mr. Arnold gave no specific reason to Mr. Collins for wanting to replace Mr. McFadden but expressed general dissatisfaction with his performance.

13. On May 3,1990, after having asked Mr. McFadden for a copy of the collective agree­ment, and having read the clause which gives the conditions under which stewards may be laid off, he gave Mr. McFadden and three others lay-off notices. He read the part about laying off stewards because he did not know if he was allowed to lay off the steward. He retained four people, one of whom had been hired two weeks earlier, and another a month before.

14. Mr. Arnold testified that he fired Mr. McFadden on May 3rd because a cut back was required due to the inability to work in Area 14, and he felt those he kept were the best men to do the work they had. He stated that sometimes Mr. McFadden wandered off or stood around with his hands in his pockets. In answer to this Mr. McFadden says that he and his partner were used as examples of good workers when two other employees were hired. The employer's evidence indi­cates these two employees were hired on April 2, 1990. On July 9, 1990, Mr. Arnold called the union asking for two more workers, was offered Mr. McFadden, among others, and refused to accept him.

15. Mr. Carr testified as to the reasons for the lay-off itself but made it clear that senior management played no role in the choice of individuals to be laid off. He also emphasized that health and safety were prime company concerns.

16. As the Board has consistently held, the employer's onus in cases such as this is to estab­lish that no part of the reason for the action taken against the employee was that the employee had acted in compliance with the OHSA or sought its enforcement. For a recent example, see W. C. Wood Co. Ltd., [1990] OLRB Rep. Jan. 105. We have little hesitation in concluding in this case that at least part of Mr. Arnold's motivation for choosing Mr. McFadden as one of the people to be laid off was the amount of time he was spending on legitimate health and safety activities. Mr. Arnold candidly admitted that he had told Mr. McFadden that he did not think he should take on the duties of health and safety chair, given the size of the employer. His testimony as to why Mr. McFadden was laid off did not convince the Board that similar considerations were not in his mind when he made the decision to let Mr. McFadden go. On the contrary, the evidence established that Mr. Arnold was unhappy with the amount of time spent on health and safety activities and said so the day before he laid Mr. McFadden off. His reactions to Mr. McFadden's health and safety activ­ities during his vacation and on his return were negative. The employer's evidence did not chal­lenge Mr. McFadden's evidence that no problems with his work had been pointed out prior to the lay-off, or that he had been cited as a model employee as recently as April. At the time of his lay­off, Mr. McFadden had twenty-five years experience as a sheetmetal worker. The fact that there was no lay-off by seniority requirement in the collective agreement is not a sufficient answer to the allegations in this matter. When an employee of Mr. McFadden's experience and previous perfor­mance is laid off on the heels of health and safety activity which had received the negative reaction recounted above, a more cogent explanation than that given by Mr. Arnold is necessary to dis­charge the reverse onus on the employer that no part of the discharge was because of the employ­ee's having acted in compliance with, or sought the enforcement of, the OHSA. The complaints about Mr. McFadden's performance were vague and unconvincing. The only specific evidence of Mr. McFadden's not performing his regular duties while at work was evidence of health and safety activities aimed at enforcing the OHSA.

17. The employer argued as part of its case that it had a model safety record. This may well be true, and it may be equally true that senior management had no improper role in the layoff of Mr. McFadden. However, the evidence was clear that the foreman had sole control over the choice of people to lay-off and did not dislodge the evidence indicating anti-safety motivation in the choice of Mr. McFadden as one of them to be laid off.

18. It is not necessary in this case to determine whether or not the lay-off was necessary, as the union invited us to do. Whether or not the lay-off was necessary, we are of the view that the choice of Mr. McFadden as one of the people to be laid off involved, at least in part, consider­ations contrary to the OHSA.

19. Given our findings above, it is unnecessary to address the union's argument that Mr. Callan, who is not an employee of Blenkhorn, played a significant role in the discharge of Mr. McFadden.

20. In the result, the complaint is allowed. Mr. McFadden is to be reinstated and compen­sated for his losses due to the lay-off. We will remain seized if the parties are unable to agree on the quantum of compensation owed.