John Sellers, Mario Romagnuolo, Gerald Pelley and CAW Local 222 v. Robert Taylor, Don Sawyer and General Motors of Canada Limited, 1997 CanLII 15488

[1997] OLRB REP. MARCH/APRIL 223

3488-95-OH John Sellers, Mario Romagnuolo, Gerald Pelley and CAW Local 222, Applicants v. Robert Taylor, Don Sawyer and General Motors of Canada Limited, Responding Parties

BEFORE: G. T. Surdykowski, Vice-Chair, and Board Members S. C. Laing and H. Peacock.

APPEARANCES: Paul Goggan, Jim Hoy, John Sellers, Mario Romagnuolo and Gerald Pelley for the applicants; Joy Hulton, Elisabeth Campin, Mike Kenned); Robert Taylor, Don Sawyer and Dan Derlis for the responding parties.

DECISION OF THE BOARD; April 25, 1997

I The Complaint

1. This is a complaint under section 50(l) of the Occupational Health and Safety Act which provides that:

50.- (1) (1) employer or person acting on behalf of an employer shall,

(a) dismiss or threaten to dismiss a worker;

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

(c) impose any penalty upon a worker; or

(d) intimidate or coerce a worker.

because the worker has acted in compliance with this Act or the regulations or an order made thereunder, has sought the enforcement of this Act or the regulations or has given evidence in a proceeding in respect of the enforcement of this Act or the regulations or in an inquest under the Coroners Act.

2. The applicants allege that the responding parties have treated the individual applicants in a manner contrary to clauses 50(1 )(b), (c) and (d) as a result of a work refusal they engaged in on August II, 1995 in General Motors of Canada Limited's ("GM") Plant #2, Oshawa Car Assembly Plant. More specifically, on August 21, 1995, the applicants Sellers, Romagnuolo and Pelley were each assessed a two week suspension. In each case, GM explained that this discipline was being imposed:

As a result of your unauthorized action on the day shift of August 11, 1995 a Production loss occurred. These actions cannot be tolerated. In view of this and your prior disciplinary record the above penalty is assessed.

II The Facts

3. The three individual applicants are, and were at all material times, employees in a bargaining unit represented by the applicant CAW Local 222 (the "Union"). At all material times, they were

employed as operators on the "mast jacket line" in Plant #2. This line, which no longer exists, produced steering columns for the cars which are assembled in the plant. In essence, it was a sub-assembly conveyer which merged into an instrument panel line.

4. There is no dispute regarding the lay-out of the mast jacket line or how it was supposed to function. The overall specifications for the line in that respect were as follows:

Jobs per hour - 85.

Spacing between jobs - 5 feet 4 inches.

Overall line speed - 7 feet 6 inches per minute.

Time allotted per job ("cycle time") - 42 seconds (except for the "mast jacket transfer" station which had a cycle time of 43.2 seconds)

There were six work stations on the mast jacket line:

(a) "mast jacket pick" - This was Gerald Pelley's station on August II, 1995. At this station, the operator was required to select the appropriate mast jacket from one of several bins, take it to the line where he would position and clamp it down, and then secure it with a bolt using an overhead air gun. If necessary, he also installed a shifter cable. He would then hang the mast jacket on the conveyer, secure it there, and release it with the "schedule" for that particular mast jacket. On average, it took 36.0 seconds to complete each job. The allowed time for each job was the line cycle time of 42 seconds. The operator had an "E-stop" button available to him which he could use to stop (and restart) the line if he considered it necessary.

(b) "mast jacket sprayer" - All mast jackets started black. This operator would spray paint each mask jacket one of four interior colours. It took an average time of 33.6 seconds to complete each job at this station, compared to the allowed cycle time of 42 seconds per job. This operator also had an E-Stop button.

(c) "steering wheel install" - Mario Romagnuolo was the operator at this station during the day shift on August II, 1995. After being spray painted, the mast jacket would move through an oven (presumably to bake the paint onto the mast jacket) and then to the station where the operator would remove a plastic coating, take a sequenced steering wheel and work it on to the mast jacket, and then secure it with a bolt using an overhead air gun. The operator would also install a mast switch (which contained the various controls). There was a "limit switch" at this station; that is, a toggle switch which "counted" the mast jackets as they passed by and electronically matched the torquing of the bolt unto the mast jacket with each one as it passed the switch. If a bolt was missed, the limit switch would automatically stop the line. The average time per job at this station was 39.0 seconds, compared to the allowed cycle time of 42.0 seconds. This operator worked in a relatively confined space.

(d) “horn pad install" - John Sellers was the operator at this station on August 11, 1995. Here, the operator would take a sequenced air bag and put it onto the steering wheel, scan the schedule to ensure that it was the correct air bag, and then install it. The average time per job at this station was 37.8 seconds, compared to the allowed time of 42.0 seconds.

(e) "horn pad secure" - The operator here on August 11, 1995 was Ron Moreau. His job was to secure the horn pad to the steering wheel with two screws under the wheel, and to install a shift lever, hazard switch and tilt lever. At this station, the average time per job was 37.4 seconds, against the allowed time of 42 seconds. There was an E-stop button at this job station.

(f) "mast jacket transfer" - At this station, the mast jacket line in effect merged into the instrument panel line. The operator would take each mast jacket and install it to an instrument panel, make the necessary connections and release the panel. There was a limit switch at this station as well. The average time per job at this station was 36.6 seconds. The allowed cycle time was 43.2 seconds.

5. On August 11, 1995, the mast jacket line operators, including the three individual applicants, began their shift at 6:48 am. Pelley and Romagnuolo testified that the line seemed to be running more quickly than usual from the beginning of the shift. However, Pelley also said that it took him 45 minutes or so to realize that the line was running too fast, and Romagnuolo said it was between 7:45 and 8:00 a.m. that he realized something was wrong. Sellers testified that after a short time he started to have trouble keeping up. Similarly, Moreau said that the line was stopping and starting but seemed to be running more quickly than usual. Romagnuolo confirmed that he had trouble keeping up and that as a result he had to let the line stop (presumably by operation of the limit switch at his work station) several times. Sellers also testified that the line stopped intermittently between 7:30 and 8:28 a.m.

6. Romagnuolo's, Seller's and Moreau's work stations were close together at the point in the line where it turned and took the mast jackets back in the direction from which they had come, toward the mast jacket transfer station. When the three of them discovered that they were all having trouble keeping up with the line they decided to time it themselves. Between 8:15 and 8:20 a.m. Romagnuolo timed several jobs and concluded that the line was running at a cycle time of 35 seconds.

7. Pelley seemed to suggest that when he discovered he was having trouble keeping up he talked with other (unspecified) employees who also said the line was running fast. The location of his work station and the circumstances were such that it was unlikely that he had any such discussions before the line was stopped at 8:28 am.

8. Robert Taylor was a supervisor of the instrument and panel and mast jacket lines on August 11, 1995. When the mast jacket line stopped at approximately 8:28 a.m., he asked the team leader (who was a bargaining unit employee) why. The team leader replied that he did not know and went to investigate. When he returned, the team leader told Taylor that the operators (he did not specify which ones) felt that the line was running too fast and were refusing to work. Taylor approached Pelley who said he was "calling a section 43" because the line was running too fast and it was unsafe. Taylor went to where Romagnuolo, Sellers and Moreau were stationed. They also told him that the line was running too fast. Taylor said that he would time the line, but Romagnuolo asked that an industrial engineer do it.

9. Taylor paged Dan Derlis, who is an industrial engineer at Plant #2. As such, he deals with production standards disputes, sets up jobs, organizes manpower and work processes, and generally works at optimizing the production process. Taylor also called Paul Goggan, a union health and safety representative (and the applicants' representative at the hearing), Drew Almond, the employer health and safety representative, Don Sawyer. the area manager, and Mike Healey, the general foreman.

10. It was approximately 8:30 am. when Taylor paged Derlis. He told Derlis that the mast jacket line seemed to be running too fast and asked him to come to verify the line speed. When Derlis arrived shortly thereafter, Taylor repeated what he had already told him and Derlis agreed to time the line. Derlis went to the operators, told them that he would time the line and explained that the line had to be running in order for him to do so.

II. The operators co-operated, and at approximately 8:36 am., the line started up again. Derlis timed the line until 8:48 a.m. when the line stopped for a regularly scheduled break. Derlis ascertained that the line was indeed running too fast. He timed it at 35.5 seconds per cycle.

12. While Derlis was timing the line, Goggan arrived on the scene. He said something to the effect that he thought that there had been a work refusal but the line was running and that he was going to call the Ministry of Labour. He then left the area.

13. Derlis advised Taylor and Sawyer that the line cycle time was in fact too fast. As a result, a call was put into the maintenance foreman to come to slow the line down to the proper cycle time of 42 seconds. The maintenance foreman and an electrician arrived a short time later.

14. The operators returned from break at 9:06 a.m. The maintenance foreman and electrician waited at the control panel, which was well down the line from the mast jacket transfer station, but the line did not begin running immediately after the break.

15. When Taylor and Sawyer went to find out why the line had not started up after the break, they met Pelley who indicated by words or actions, "not me this time". Accordingly, Taylor approached Romagnuolo, Sellers and Moreau and asked if they were refusing to work. Romagnuolo and Sellers indicated that they were refusing to work under section 43 of the Occupational Health and Safety Act, because the line was moving too fast.

16. Taylor advised Romagnuolo and Sellers, and also Moreau, that the line speed was going to be adjusted but the line had to be moving in order for the line speed to be adjusted to the correct cycle time. Upon being told that, the operators agreed to go back to work and the line started up again at approximately 9:15 a.m. They took five to ten minutes to adjust the line speed down to the proper cycle time of 42 seconds.

17. Subsequently, a Ministry of Labour Health and Safety Inspector arrived. He obtained written statements from each of Pelley, Sellers, Romagnuolo and Moreau, and subsequently, on August 18, 1996, the inspector issued orders under section 43(4) of the Occupational Health and Safety Act, against each of them. Later, these orders were quite rightly rescinded.

18. GM did not consider the August 11, 1995 work stoppage to be a legitimate section 43 work refusal, or that the increased speed of the mast jacket line otherwise raised any health and safety concerns. Instead, GM took the view that this was really a production standards dispute similar to one which had occurred in April, 1995 when the speed of the the mast jacket line had also been higher than what it should have been, although not as high as it was on August 11, 1995. On that earlier occasion, the line had not been stopped. Instead, the problem was dealt with as a production standards dispute under Article 167 of the collective agreement between GM and the Union, and the grievance that was filed in that respect was settled. In the result, GM determined that discipline was appropriate and assessed two weeks' suspensions against each of Pelley, Sellers or Romagnuolo as aforesaid.

III Decision

(a) The Reprisal Issue

19. Sections 43(3) through (5) of the Occupational Health and Safety Act, provide as follows:

(3) A worker may refuse to work or do particular work where he or she has reason to believe that.

(a) any equipment, machine, device or thing the worker is to use or operate is likely to endanger himself, herself or another worker;

(b) the physical condition of the workplace or the part thereof in which he or she works or is to work is likely to endanger himself or herself; or

(c) any equipment, machine, device or thing he or she is to use or operate or the physical condition of the workplace or the part thereof in which he or she works or is to work is in contravention of this Act or the regulations and such contravention is likely to endanger himself, herself or another worker.

(4) Upon refusing to work or do particular work, the worker shall promptly report the circumstances of the refusal to the worker's employer or supervisor who shall forthwith investigate the report in the presence of the worker and, if there is such, in the presence of one of,

(a) a committee member who represents workers, if any;

(b) a health and safety representative, if any; or

(c) a worker who because of knowledge, experience and training is selected by a trade union that represents the worker, or if there is no trade union, is selected by the workers to represent them,

who shall be made available and who shall attend without delay.

(5) Until the investigation is completed, the worker shall remain in a safe place near his or her work station.

Contrary to what it appears some believe, this provision does not import a purely subjective standard into occupational health and safety matters. It is well settled that before a worker can legitimately refuse to work under section 43 of the Act, s/he must have an honest and reasonable belief that s/he or another worker is likely to be endangered if s/he continues to work. That is, the worker's belief must be subjectively honest but objectively reasonable. Because of the importance of health and safety in the workplace, and the potential seriousness of the adverse consequences if an error is made, the objective standard which is applied is not a particularly high one, and the benefit of the doubt is properly given to workers.

20. Whatever they may have come to believe when this matter came on for hearing, the Board is not satisfied that on August 11, 1995 the individual applicants actually believed that the increased speed of the mast jacket line endangered them or any other worker. Just as a worker need not utter the words "health and safety" or any other particular words, or even be aware of the Occupational Health and Safety Act, in order to obtain the protection of that Act, saying the words "health and safety" or" section 43" or otherwise invoking the Act does not operate as some sort of charm or incantation which operates to protect anyone who utters it. While health and safety is a sufficiently important workplace issue that it is appropriate to give the benefit of the doubt to workers who seek to invoke the Occupational Health and Safety Act, it is not appropriate to permit anyone to trivialize it with improper refusals to work in the name of health and safety.

21. It is apparent that the mast jacket line was running fast from the beginning of the shift at 6:48 am. on August 11, 1995. But the individual applicants did not suspect that that was the case until some 45 minutes after a shift began, continued to work for another 45 minutes until Romagnuolo timed it and confirmed their suspicions, and it was not until 8:28 a.m., one hour and thirty minutes into the shift, that they did not restart the line after a stoppage.

22. There is nothing in the evidence which suggests that anything occurred during that one hour and thirty minutes between 6:48 and 8:28 a.m. which created an actual or perceived health and safety problem, or which suggests that any of the operators was or appeared likely to be in danger. What did happen was that the operators were forced to work faster in order to try to keep up, and when they confirmed for themselves that the line was in fact running too quickly, they were annoyed (with cause in our view). The length of time that it took them to suspect that that was the case, and the fact that they found it appropriate and were able to confirm their suspicions by timing the line themselves all suggest that the increase in the line's speed was not so significant that a worker would reasonably have believed that he or another worker was likely to be endangered. This is understandable since at a cycle time of 42 seconds the line moved at 1.5 inches per second, while at a cycle time of 35 seconds, it moved at 1 .8 inches per second, a difference of .3 inches per second, or 18 inches per minute.

23. Notwithstanding this, the actual cycle time of 35.5 seconds is in fact faster than the average time required per job at each work station except for the mast jacket spray. Clearly, the operators would be unable to keep up, and one would expect this to result in a situation where the limit switches would periodically be tripped and cause the line to stop, which is in fact what happened intermittently that morning. But that is the purpose of limit switches - to regulate production and prevent an unsafe situation from developing. Several of the operators also have E-stop buttons which enable them to stop the line for various reasons, including concerns regarding health and safety. On August 11, 1995, none of the operators found it necessary to use an E-stop button to stop the line. Further, the individual applicants readily co-operated with the timing investigation, which suggests that they did not really think they were in any danger, and generally conducted themselves as though it was really a production standards dispute. Accordingly, notwithstanding that the individual applicants said or intimated that they were concerned for their health and safety, the Board is not satisfied that they in fact were.

24. The Board is also satisfied that the individual applicants did not have a reasonable basis for an honest belief that the increased speed of the mast jacket line endangered them or any other worker(s). The applicants speculated that the increased line speed on August 11, 1995 could have resulted in ergonomic or tripping hazards, or hazards having to do with the hoses of the air guns which some of them used. But again, there is no evidence that any of these problems in fact occurred that morning, that anyone expressed a concern in that respect at the time or that there was any reasonable basis for anyone to think that they would. It appears that the concerns expressed at the hearing were conceived after the fact.

25. It is clearly possible for a production line to run so fast that it creates a health and safety problem which would justify a work refusal under section 43 of the Occupational Health and Safety Act. However, in this case, the Board is satisfied that the increase in the speed of the mast jacket line on August 11, 1995 created neither a health and safety problem, nor any other reason for the applicants to believe that they or any other worker is likely to be endangered.

26. The Board is also satisfied that what occurred on August 11, 1995 is properly characterized as a production standards dispute, like the one which occurred in April, 1995, and that it ought to have been dealt with in the same way. Instead, the applicants sought to cloak themselves in the Occupational Health and Safety Act. The Board is satisfied that they had no justification for doing so.

27. In the result, the Board is satisfied that the individual applicants' work refusal on August 11, 1995 was not a proper work refusal under the Occupational Health and Safety Act. The Board is also satisfied that GM had just cause to discipline the individual applicants, and that the assessment of discipline in this case does not constitute a "reprisal" under section 50(1) of the Occupational Health and Safety Act. That part of this complaint is therefore dismissed.

(b) Discipline Imposed Considered

28. That, however, does not end the matter. Section 50(7) of the Occupational Health and Safety Act provides that:

(7) Where on an inquiry by the Ontario Labour Relations Board into a complaint filed under subsection (2). the Board determines that a worker has been discharged or otherwise disciplined by an employer for cause and the contract of employment or the collective agreement, as the case may be, does not contain a specific penalty for the infraction, the Board may substitute such other penalty for the discharge or discipline as to the Board seems just and reasonable in all the circumstances.

This raises the question of whether the two week suspensions assessed to each of the individual applicants was justified. In the Board's view, they were not, and the Board considers it appropriate to exercise its discretion to substitute lesser penalties for the suspensions imposed by GM.

29. We note that at the hearing, the applicants' asserted that the three individual applicants and Moreau all engaged in a work refusal both before and after the scheduled morning break on August II, 1995. That is not consistent with either their evidence, or the evidence of the management personnel involved. The Board is satisfied that their position at the hearing was an expression of the individual applicants and Moreau's solidarity with and support for each other, and that, on the evidence, only Pelley actually engaged in an improper work refusal before the break, and only Sellers and Romagnuolo did so after the break.

30. Taylor testified that he actually wrote out the discipline imposed, but that "upper manage­ment" (who the evidence reveals was Mike Kennedy) made the decision that a disciplinary response was appropriate, and that an individual in "labour relations" (who the evidence reveals was Joyce Fisher) gave Taylor the words to use. Kennedy testified that “we”, presumably ref erring to Fisher and himself, agreed that it was appropriate to apply discipline consistent with an improper work stoppage and loss of 17 minutes production time, which he estimated resulted in a loss of 20 to 22 production units. But Taylor also testitied that the specific penalty was determined by "labour relations", again presumably Fisher. Neither Fisher nor anyone else from "labour relations" testified. Accordingly, there is no direct evidence before the Board of how the employer arrived at its determination that a two week suspension was appropriate for each individual applicant.

31. What is before the Board is the evidence of what actually occurred and a document entitled "Management's Statement of Unadjusted Grievance" for each individual applicant. Presumably these documents reflect the basis for the decision that two week suspensions were appropriate. The review of the events contained in each of these documents is not consistent with the evidence before the Board.

32. In this respect, there are a number of statements of fact in the grievance documents which are inconsistent with the evidence before the Board. For purposes of the Board's considerations under section 50(7) of the Occupational Health and Safety Act, the following are the most significant. The documents correctly state that the line was operating at 9 feet per minute, but incorrectly state that the specified rate was 8 feet per minute. In fact, the specified rate was 7.5 feet per minute. More importantly, the Pelley document states that the line speed was adjusted immediately after the investigation informed that the line speed was running too fast, and that after that the "affected" employees; that is, the individual applicants:

"continue to withdraw their services which resulted in down time of approximately 8(8) minutes. Shortly thereafter the scheduled break commenced. Following that Senior Advisor Sawyer observed that the line was still not in operation and asked all the affected operators as to reason why. At which time the grievant along with employees J. Sellers ... and M. Romagnuolo stated that the line was running too fast therefore they were refusing to work ..." (sic).

This chronology is not correct. In fact, the line stopped and did not run for 8 minutes before Derlis determined that it was running too fast. The line speed was not adjusted until after that, and after the scheduled break. There is no evidence that Sawyer had any discussion with Pelley prior to the break, and there is no credible evidence that Pelley continued to refuse to work after the break. Although Sellers and Romagnuolo refused to work after the break, there is no credible direct evidence that they actually refused to work prior to the break. There is no evidence that any employee refused to work after the line speed was adjusted. On the contrary, the employees, including the individual applicants, co-operated with the investigation, and when it was finally explained to them that the line speed would be adjusted but that the line had to be running in order for that adjustment to be made, they also co­operated and re-started the line. Indeed, Taylor specifically stated that Pelley refused to work before the break and that he understood that that was what Pelley was disciplined for, and that Sellers and Romagnuolo refused to work after the break and that he understood that that was what they were disciplined for.

33. Accordingly, it appears that the disciplinary decision was based upon an incorrect under­standing of what had occurred. Further, it appears that no management person either noticed or bothered to find out why the mast jacket line was stopping intermittently during the morning of August 11, 1995. Perhaps this is because it was normal for the line to stop intermittently, to the extent that Derlis testified that on average, the line was stopped for 8 to 9 minutes out of every production hour. More significantly, it is apparent that no one bothered to speak to the applicants either during or immediately after the morning break to advise them that Derlis had determined that the line was in fact moving too quickly, that the line speed would be adjusted to the correct cycle time, and that the line would have to be running in order for that adjustment to be made. Indeed, no one bothered to tell any of this to the operators until just before the line re-started at 9:16 a.m. Instead, it appears that management simply assumed that after the break the operators would re-start the line without being told that their concern had been recognized and was being addressed. In the Board's view, this was the major reason for the work stoppage and refusal after the break. Indeed, when Taylor and Sawyer approached Sellers and Romagnuolo after the break, the first thing they did was to ask whether they were refusing to work, and only after being answered in the affirmative did Taylor and Sawyer indicate that the line speed would be adjusted and that the line would have to run in order for that adjustment to be made. In the Board's view, the 9 minute break in production after the break could probably have been avoided if GM had handled the matter differently. Nevertheless, Sellers and Romagnuolo did act improperly, and some discipline was appropriate.

34. Further, there is no evidence that whoever determined the amount of the discipline assessed took the relevant individual circumstances of the individual applicants into account. For example, it appears that at the time, Pelley had been a General Motors employee for approximately twelve years, and that he had been at Plant #2 since October 1990 and had a plant seniority date of October 15, 1990. Pelley also had a disciplinary record as follows:

(a) February 23, 1995 - tardy arrival - written reprimand;

(b) February 23, 1995 - failure to return to work - one day suspension;

(c) August 2, 1995 - failure to complete job assignment - three day suspen­sion.

Sellers had worked for General Motors for seven years. He also has a seniority date of October 15, 1990. He had no prior disciplinary record. Romagnuolo had worked for General Motors for nearly 18 years at the time. His seniority date is October 15, 1990 as well, and Romagnuolo had no prior disciplinary record.

35. In the result, we have three employees with the same plant seniority date. In fact, however, one had twelve years service and a relevant disciplinary record and had improperly refused to work for 8 minutes; one employee who had seven years service, no disciplinary record and who had refused to work for 9 minutes; and one employee with 1 8 years of service, no disciplinary record who had refused to work for 9 minutes.

36. The collective agreement between GM and the Union does not contain a specific penalty for the misconduct in this case, and there is no evidence of any schedule or past practice that the employer relied on in determining that a two week suspension was appropriate for each of the individual applicants.

37. In these circumstances, the Board is satisfied that identical two weeks' suspensions for each of the individual applicants cannot be justified, and indeed, that a two week suspension was not justified for any of them.

(c) Substituted Penalty and Ancillary Relief

38. Considering the nature of the misconduct and each individual's participation in it; the uncertainty as to the actual effect on production in each case; the manner in which management dealt with the situation after the break; the lack of any evidence regarding what was meant by "discipline consistent with the work stoppage"; the seniority, years of service and disciplinary records of each individual applicants; and the discipline which was imposed on Pelley earlier in 1995 for failing to return to work and failing to complete ajob assignment, the Board finds it appropriate to strike the two week suspensions assessed to each applicant and to substitute the following lessor penalties which the Board considers just and reasonable as follows:

(i) for Pelley: a suspension of five days without pay;

(ii) for Sellers: a one day suspension without pay;

(iii) for Romagnuolo: a one day suspension without pay.

39. The Board notes that Article 28(b) of the collective agreement between GM and the Union provides that in imposing discipline the employer will not take into account "prior infractions" which occurred more than one year previously. Nevertheless, it is not entirely clear that a disciplinary record which is more than one year old cannot be used by anyone for any purpose. The Board therefore orders the employer to remove the two week suspension assessed against each of the individual applicants with respect to the events of August II, 1995 from their respective records, and to substitute therefor suspensions of 5 days for Pelley, and one day for each of Sellers and Romagnuolo. Further, the Board orders the employer to compensate the individual applicants for all wages and benefits which they lost for the days they were suspended in excess of the discipline which the Board has determined was appropriate. The applicants are entitled to interest on the amounts due in that respect.

40. In the Board's view, no other relief is necessary or appropriate.

41. The Board will leave the calculation of the amounts due to the parties. The Board will remain seized in that respect, and in the event that the parties are unable to resolve that issue, the Board will deal with it upon the written request of any of the parties.