2926-99-HS Manac, a division of the Canam Manac Group Inc., Applicant v. National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada), Local 1285 and Ministry of Labour, Responding Parties.

2927-99-HS Manac, a division of the Canam Manac Group Inc., Applicant v. CAW, Local 1285 and Ministry of Labour, Responding Parties.

BEFORE: John Morgan Lewis, Vice-Chair.

DECISION OF THE BOARD; January 20, 2000

1This is an application pursuant to section 61(7) of the Occupational Health and Safety Act, R.S.O. 1990, c.0.1 (the “Act”) seeking the suspension of various orders issued by Inspector Thomas Ewing in Field Visit Nos. 871118 and 871119 dated December 21^st and 22^nd, 1999. The application to suspend these orders has been assigned Board File No. 2927-99-HS. The applicant has also filed an appeal of these orders, which has been assigned Board File No. 2926-99-HS. This decision deals only with the suspension request.

2The orders in dispute and related narrative are set out as follows:

Order 001 In accord with sec. 42, OHSA, the employer is ordered to consult with the Joint Health & Safety Committee re: development, delivery and review of prescribed training and to ensure that the training is provided to all applicable workers.

Re: routine review of “internal responsibility system” issues noted included

Concern – a recent work refusal where workers reported their refusal to work in an environment with smoke contamination from burning filters @ shot-blast receiving hopper – workers were told to evacuate and leave after the work refusal was reported, with subsequent loss of remaining shift pay. Sec. 43, OHSA clearly requires a formalized response to work refusals – which was not followed.

Concern – workers entered the shot-blast hopper to remove burning filters – a “confined space” as defined – Sec. 1 – Indust. Regs. (O.Reg. 851/90) without a confined space entry procedure or training! (mandated trg + procedure).

Concern – workers are expected to recite specific phrases in order to report a work refusal, or their issues will not be treated in accord with Sec. 43, OHSA.

Note – any reports or reluctance to work based on a worker’s feeling that endangerment may be experienced, must be treated as a “work refusal” until and unless investigation provides otherwise.

Concern – vibration-caused injury potential from crimping edges of trailer roofs.

Note – continued research should continue to eliminate the hazards. In the interim, vibration-damping gloves, etc. should be implemented. The employer reports an ergonomist will review practices in the new year.

Flammable liquids storage area – improvements to bonding practices, mandated non-sparking tools, deluge shower, 30 gal + per minute (inaccessible) emerg. exit blocked

WHMIS trg – spotty retention – refresher trg. is mandated

Maint. Shop – lock-out procedure is inadequate – grinders to be replaced/adjusted/workrest re-installed. Fusible link @ parts washer missing!

P.P.E. – boots’ safety toes compromised – inappropriate for forklift operators and maint. Workers – isocyanates workers are not using air supplied respirators at all times, training re: respirators use, care, selection, fitting, limitations, etc. is not provided. Supervisors are not in compliance with Sec. 27 duties.

Heat – required throughout the plant.

Work Practices – shot blasters striking themselves w/shot stream! air flow to be considered when handling isocyanates (to remain out of contaminated air stream) high work – noted w/o tie-off! wheelchocks not used!

Labels – not on several e.g. acetone plunge cans noted

Fire – several soiled rag containers noted w/sprung/broken lids! “competent person” status mandated for every “supervisor”

Orders 002 003 In accord with Sec. 7(3) and Sec. 8(3), O.Reg 842/90 (Isocyanates Reg.) the employer is ordered to consult with the Joint Health & Safety Committee re: the isocyanates assessment and the isocyanates control program.

Order 004 In accord with Sec. 8, O.Reg. 842/90, the employer is ordered to include and implement all prescribed isocyanates control measures as prescribed – To include supervisors’ and workers’ training programs, medical surveillance programs, records, etc. as set out in the Regulation and in course for medical surveillance of isocyanates exposed workers.

Order 005 In accord with Sec. 25(2)(h), OHSA, the employer is ordered as “reasonable precautions” to review every issue recorded in Joint Health & Safety Committee minutes, and “workplace inspection recording forms” produced internally during the past year, and in consultation with the Joint Health & Safety Committee ensure that all issues are resolved to the satisfaction of the committee.

Order 006 As per Sec. 57(4)(5) OHSA, the employer is ordered to provide the writer with a written compliance plan re: order #005 (above)

3It would appear that the circumstances giving rise to the issuance of the orders are as follows. On or about December 7, 1999, the applicant had a fire at its plant in Orangeville, Ontario. The plant and its occupants were immediately evacuated and placed in a secure area. On or about December 8, 1999, numerous workers complained of the smell of smoke in the plant and indicated their reluctance to perform work under those conditions. The applicant again evacuated the plant and ceased operations in the affected areas until the next shift. Inspector Ewing attended at the plant on December 21^st and 22^nd, 1999 and conducted a routine inspection. In conducting his inspection, Inspector Ewing noted a number of irregularities concerning the operation of the plant’s Joint Health and Safety Committee and various training issues. Those concerns are reflected in the issuance of the orders, which are in dispute.

4The Board will consider a number of factors when determining whether a suspension of an order is warranted in the circumstances. Three primary factors are described as follows:

(1) whether the suspension of the order would endanger worker safety:

(2) the prejudice to the parties if the order is or is not suspended;

(3) whether there is a strong prima facie case for a successful appeal of the order.

5The Board has also clearly demonstrated that a certain degree of deference should be afforded to decisions made by inspectors for the purpose of considering the suspension of those orders pending appeal. In the absence of a clear and persuasive reason to interfere with the operation of the order pending the appeal, the order should not be suspended. This degree of deference is enhanced when workplace safety is in issue. I refer to the comments of the Board in R.J. Dungey & Sons Ltd., [1999] OLRB Rep. Jan./Feb. 82 at paragraph 19:

19. Furthermore, although the inspector’s order is under appeal there is, in my opinion, a rebuttable presumption that an inspector’s order is authorized by the OHSA and is correct. An inspector has the statutory duty to administer and enforce the OHSA. An inspector’s decision and order are part of that statutory administration and enforcement framework and as such should not be suspended prior to a hearing on the merits of the appeal unless an appellant demonstrates compelling grounds for the Board to do so. Adjudicator Robert Herman noted in General Motors of Canada Ltd., supra, “…it is appropriate that deference be given to an Inspector’s decision on an application for suspension of his or her order. In the absence of some persuasive reason to interfere with that order pending the full application for review, it ought not to be suspended.” The burden of persuasiveness becomes greater, in my view, as the risk to the safety of workers increases with the suspension of the order.

6In reviewing the materials filed with the Board, I have determined not to suspend the orders made by Inspector Ewing pending the disposition of their appeal. The applicant claims that the suspension of the orders will not place workers in imminent danger or in immediate risk. The Board, however, does not impose such stringent qualifications as imminent or immediate, to the potential for endangering worker safety should an order be suspended. In this case, the subject matter of the orders clearly impacts upon worker safety. As such, the applicant must meet a high threshold to persuade the Board to suspend the operation of the orders pending their appeal. While the applicant claims that it will be prejudiced if the orders are not suspended, it has pled little in the way of facts to substantiate this claim other than asserting that its position in the appeal will be undermined and that its employees will be left with the impression that the applicant has been acting in violation of the Act. Clearly, the applicant has failed to demonstrate significant prejudice, which would compel the Board to suspend the operation of the orders in light of the possibility of endangering worker safety.

7Without the benefit of evidence on the merits, it is impossible for the Board to determine the merits of the appeals. While the applicant will have a full opportunity to bring evidence and argument to support its position, at this point, I am not satisfied that it is more likely than not to be successful in its appeal on the merits.

Disposition

8This application for a suspension of the orders issued by Inspector Ewing is dismissed. The appeal in Board File No. 2926-99-HS is to be processed in the normal course.

“John Morgan Lewis”

for the Board