SHP 297

IN THE MATTER OF AN ARBITRATION

BETWEEN

CANADIAN PACIFIC LIMITED

AND

INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS

GRIEVANCE RE REFUSAL TO WORK BY A GROUP OF EMPLOYEES AT OGDEN SHOPS

 

 

SOLE ARBITRATOR: M. G. Picher

 

 

There appeared on behalf of the Union:

Abe Rosner Executive Secretary, CCRSU

Claude Robert System General Chairman, IAM & AW

 

 

There appeared on behalf of the Company:

D. David Labour Relations Officer, Montreal

A.Y. deMontigny Supervisor Personnel and Labour Relations, Mechanical Department, Montreal

D. P. Moreau Works Manager, Angus Shops, Montreal

 

A hearing in this matter was held in Montreal on March 12, 1990.

 

AWARD

At the hearing the parties filed the following Joint Statement of Fact and Issue:

DISPUTE:

Claim of 12 hours pay for March 25 and 26, 1986 by a number of employees in the IAM & AW bargaining unit at Ogden Shops in Calgary, Alberta.

JOINT STATEMENT OF FACT:

On March 24, 1986, at approximately 11:30 AM, some asbestos insulation was uncovered in the Wheel Shop locker room at Ogden Shops. Work was halted in the Wheel Shop and a clean-up of the asbestos insulation was initiated. At the same time, Labour Canada was requested to inspect the worksite.

On the morning of March 25, 1986, 36 employees represented by the IAM & AW, regularly assigned to the Wheel Shop on the day shift, were instructed to go to the affected area and participate in the clean-up operation. They declined. They were then told that if they persisted in declining to report to the area in question, they should punch their cards and go home, and that they would be individually telephoned to report back for work as soon as the Wheel Shop was deemed safe to resume normal operations. The employees involved were not paid for half the shift on

March 25 and the full shift on March 26, for a total of 12 hours. However, subsequently, 16 employees were reimbursed for the time lost.

The employees concerned were later summoned to give statements regarding their refusal to work as instructed on March 25 and 26. No discipline was assessed for refusal to work.

JOINT STATEMENT OF ISSUE:

The Union claims that the employees in question were justified in declining to work in an area which they considered as unsafe and that the Company acted improperly in sending them home and denying them their salary. The employees cited as a reason that they were not satisfied the area was yet safe, and asked to be assigned other work. The Union further contends that the employees were improperly treated in a disciplinary fashion. The Union requests that the employees be compensated for their lost salary.

The Company denied the claim.

The facts giving rise to the grievance are not materially disputed. At approximately 11:30 a.m. on March 24, 1986 millwrights engaged in demolishing a section of the Wheel Shop at the Ogden Shops in Calgary exposed some asbestos insulation. At that time, all employees, including the employees who are the subject of this grievance, were immediately directed to leave the area and report to the electrical lunchroom. At approximately noon they were addressed by General Locomotive Foreman, D.P. Moreau. He gave the employees instructions with respect to cleaning the dust from their safety glasses, hard hats and safety shoes, as well as removing their clothing, which was to be sealed within plastic bags for cleaning. He also instructed the employees to immediately shower and report back to him.

Some time later, generally estimated at 15:00 hours Mr. Moreau again spoke to the employees in the lunchroom, assuring them that he would not allow anyone to enter the contaminated area until the Wheel Shop was monitored by a chemical company retained by the employer, and it was clearly established that the area was safe to work in. The employees were instructed to leave for the day, pending further information to be provided to them the following morning. It appears that during the course of his comments to the employees Mr. Moreau did advise them that a representative of Labour Canada was advised of the incident and would attend at the work site to inspect it.

That afternoon Mr. L.W. Cissell, Senior Labour Affairs Officer for Labour Canada attended at the Calgary Shop and conducted an inspection in the Company of several representatives of the Company, including Mr. Moreau. It is common ground that no employee or union representative was present during his inspection. It does appear that following his inspection, at approximately 14:30, Mr. Cissell spoke briefly with Mr. N. Gunning, the Union's Safety Committee representative. Their exchange was brief, with Mr. Gunning apparently indicating to Mr. Cissell that he was pleased with the way in which management had handled the evacuation. Mr. Cissell then stated that he did not feel that any danger existed in the shop, and that all that remained was to get cleaned up and get back to work. When Mr. Gunning asked whether Mr. Cissell would address the employees, the latter stated that he did not feel it was necessary, and the conversation apparently ended there.

The events giving rise to this grievance occurred on the following day, March 25, 1986. Prior to the commencement of the day shift the employees, estimated to be some fifty in number, gathered in the electrical lunchroom. According to a note kept on file by Mr. Moreau, he informed the employees that a Labour Canada representative had visited the site, had approved the Company's clean-up procedures, whereby employees would wear disposable outer wear and respiratory masks, and had spoken to Mr. Gunning of the safety committee. However, the employees did not accept at face value Mr. Moreau's conclusion that it was safe to return to work. Part of their reluctance stemmed from the fact that as indicated by Mr. Moreau no monitoring of the air in the shop had yet been completed by the chemical company.

It appears that Mr. Moreau's comment about the lack of monitoring created what was perceived by the employees as a contradiction in his statements. The statements of the employees, related in part to the Arbitrator, establish that on the day prior they were left with the impression that no one would be required to enter the shop to perform clean-up work, wearing protective equipment or otherwise, until professional monitoring had determined the type of asbestos involved and the level of contamination in the air. However, on the morning of March 25, the position communicated by Mr. Moreau was different. At that time he advised employees that his statement with respect to monitoring was intended to mean that no employees would be sent back to perform normal production work in the shop until the clean-up was completed and monitoring confirmed that the ambient air standard was safe and free of any asbestos contamination. In the result, therefore, the employees of the day shift were left with a degree of concern and some confusion. They believed that the assurances which they had received the day prior, that no one would be sent in to clean up the shop, even wearing protective equipment, until the results of professional monitoring were known had effectively been withdrawn. Moreover, the fact that they had not accompanied the Labour Canada inspector in his examination of the site on the day prior left them with little understanding of his qualifications, or the basis for the opinion which he had given to the Company.

It appears that a second factor also created some uncertainty in the minds of the employees. At the beginning of the shift on March 25 the employees were told, apparently by Supervisor Gourlay, that twenty volunteers were needed to go and clean the asbestos out of the Wheel Shop, and that employees with facial hair would be assigned work in other shops. It is common ground that a beard or moustache could interfere with the seal on a face mask, thereby placing the employee in some jeopardy if he were assigned to work in a contaminated area. It is not disputed that during the course of these discussions the Company indicated that there were some twenty-two positions or jobs available to employees who would not be able to work within the contaminated area. Again, largely because of the apparent failure of any monitoring of the air standard in the shop up to that point, the employees remained skeptical and indicated their unwillingness to volunteer to perform the clean-up work.

During the course of the discussions between the Company's representatives and the employees, in the electrical lunchroom, the employees were provided the opportunity to meet and discuss the matter privately among themselves. Finally, at approximately 11:30 a.m., management put the ultimatum to the employees. Mr. Moreau then stated that as no one was volunteering to work in the Wheel Shop, he was then ordering them all to go to the that location and work cleaning the asbestos. He advised them that if they did not comply he was sending them all home. There appears to be no dispute that his directive in that regard was aimed at all of the employees assembled, including those who had been identified and recorded as having facial hair.

There appears to be some objective evidence that there was a concern among the employees that it was might be unsafe to rely on the face masks being provided to them by the Company in the absence of more precise knowledge with respect to the type and density of the asbestos contamination. In this regard the Arbitrator is referred to the statement of Machinist Docherty, himself a safety representative for Cost Centre 26. He relates that he asked Accident Prevention Officer D. Palmer whether the masks would be sufficient for the standards of contamination in the Wheel Shop. Mr. Docherty records the following response:

He said that he didn't know because it had not been monitored. The limitations are 0.05 milligrams per cubic meter or 2 million particles per cubic foot and asbestos containing dusts and mists.

It also appears that during the course of the morning, Safety Committee Chairman Gunning read to the employees from an Occupational Health and Safety Manual, including the following excerpt:

Workers should not agree to wear dust filter masks or respirators until management has identified the hazards and their concentration in the air. Without this information it is impossible to know whether or not the filter or respirator is adequate.

When the employees refused to accede to Mr. Moreau's direction they were sent home for the balance of the shift on March 25 as well as the full shift on March 26, thereby being deprived of a total of twelve hours of wages. It is common ground that the Company did subsequently compensate the sixteen employees with facial hair who were sent home, along with the others, although only after extensive investigations and the filing of grievances.

The material further discloses that Labour Canada's inspector, Mr. Cissell, as well as a second Labour Canada official, Mr. Cy Luxton, were present in the plant on the morning of March 26th. According to Mr. Cissell's report, he and Mr. Luxton met with some fifty employees at approximately 10:00 hours that day. It is not clear from his report that he discussed with the employees the merits of their safety concerns. He states, in a letter dated April 14, 1986:

When I was asked to speak I outlined the provisions of 82.1 with some emphasis on 82.1(5) of the Canada Labour Code Part IV (Safety of Employees).

Mr. Cissell's report goes on to relate that later in the day professional monitoring was conducted, whereby it was determined that the area was safe for employees to return to work. Although Mr. Cissell's report does not indicate when his determination was made, he states that he then advised the Company's officials that no imminent danger existed. It appears that Mr. Luxton spoke with the incoming afternoon shift, as did a representative of Chemex Labs, the monitoring company retained by the employer, fully explaining the circumstances to the employees. It is common ground that the afternoon shift employees returned to work in the shop, which by then had largely been cleaned up by a private contractor retained by the Company. Mr. Gunning was advised in the evening of the determination made by the two representatives of Labour Canada and the following day the employees of the day shift returned to work.

It should be emphasized that the issue to be determined by the Arbitrator in the instant case is not the rights, obligations of the parties in respect of the provisions of the Canada Labour Code governing the health and safety of the employees, including their right to refuse unsafe work. The issue before the Arbitrator is whether the employees were disciplined, without just cause, for refusing to perform work which they had reason to believe was unsafe. In other words the question to be answered is whether the Company's action in sending the employees home and, as a result of which they were deprived of twelve hours' wages, was in the nature of a response to their behaviour, rather than to a circumstance in which there was no work to be assigned to them. If the employer's action was in the nature of a behavioural response, the question then becomes whether it was justified in the circumstances.

On a consideration of the entirety of the material before me, I am satisfied that in sending the employees home the Company's officers did act in a disciplinary way. A number of factors conduce to that finding. Firstly, it does not appear disputed that there was work available for a substantial number of the employees outside the Wheel Shop. This had been identified in discussions relating to the alternative assignments which would be made to employees with beards and moustaches, who would not be required to wear face masks and involve themselves in the clean up. When Mr. Moreau finally issued his ultimatum at 11:30 a.m. on March 25, however, he issued it to all of the employees present, including the employees with beards and moustaches. They were sent home along with everyone else and none of the available alternative jobs were assigned to anyone. While the employees with facial hair were subsequently compensated for the time lost, the Company's action must be assessed at the time it occurred for what it discloses of the intention of the supervisory officers involved. On balance it appears that they became persuaded that they were dealing with an unjustified and concerted withholding of services by the employees under the false pretence of concerns for their safety.

The Company's suspicions in that regard are further demonstrated by the extensive investigation which it conducted subsequent to the incident. It examined all employees concerned, in formal disciplinary investigations extending over a period of some two months. Notwithstanding that no conspiracy was established, and no additional discipline issued to any of the employees concerned, the response of Chief Mechanical Officer G.W. Bartley made to the Union's grievances in respect of the wages does, in some substantial measure, suggest that the Company viewed the incident as one of culpable conduct by the employees. In its letter of July 23, 1986 Mr. Bartley states, in part:

... the contents of the vast majority of the statements taken in this matter reflect an influence from a given source that a group decision was made not to perform the cleaning duties, despite clear instructions from management to do so, which is tantamount to insubordination.

As you are fully aware, such action constitutes a serious industrial offence....

Notwithstanding the above, I must point out that the Company has already given some benefit of the doubt to the employees involved in this matter; in that no industrial discipline was assessed for insubordination in this particular case. This, however, is to be considered as an act of good faith under the circumstances and is made without prejudice.

In the same letter Mr. Bartley notes that an error may have been made with respect to the employees wearing facial hair, in consequence of which he advises that the grievance would be allowed insofar as their claims are concerned.

When the whole of these events is examined, the Arbitrator is satisfied that, notwithstanding its attempt to backtrack partially in respect of the employee's with beards and moustaches, what occurred at 11:30 a.m. on March 25, 1986 was a decision to hold the grieving employees out of service because of what management perceived as their unreasonable refusal to perform an assignment, namely cleaning up the asbestos contamination in the Wheel Shop. The issue then becomes whether the employees were justified in that refusal. For a number of reasons I am persuaded that they were.

Firstly, the record discloses that the employees were left in some confusion by the statements of Mr. Moreau. Initially they understood him to say that no one would be required to perform any work in the Wheel Shop area, including cleaning with protective equipment until the Shop was adequately monitored to determine that such work could be performed safely. However, the following day, when the monitoring had still not yet been done, employees were told that it was safe for them to perform the cleaning with disposable outer wear and face masks. It must be emphasized that at least some of the employees were of the view, which I deem to be reasonable, that the safety of working with a given face mask could not be determined without adequate knowledge of the nature and characteristics of the contaminants being protected against.

In assessing the role of Labour Canada Inspector Cissell, the Arbitrator is left in some inevitable uncertainty. It appears from Mr. Cissell's own report to the parties dated April 14, 1986 he did not make a declaration that there was no imminent danger until some time well into the working day of March 26, 1986. While his own report does not disclose when he made that determination, it does not appear disputed that he made it only after he was in possession of the Chemex Lab's report following sixteen hours of monitoring. It also appears that he made his declaration to an assembly of individuals who represented management only. It appears that at no time was Mr. Cissell asked to decide whether any imminent danger might have existed in respect of employees performing the clean-up operation with the use of protective equipment, and in the face of an employee refusal to work.

In hindsight it may now be known that M. Cissell's opinion, apparently reached on the day prior, that it was safe to proceed with the clean-up operation was correct. However, the facts must be assessed as they stood on the morning of March 25, 1986. The Company s own brief acknowledges that at that point the monitoring had a two-fold importance. In paragraph 28 of its brief it notes that Chemex Labs of Alberta was contacted to make an asbestos sampling and analysis of the Wheel Shop for two reasons. The first reason was to determine the asbestos type and content of the insulation uncovered during the initial stages of the demolition work. The second purpose was to determine at what point it would be safe for employees to resume regular duties in the Wheel Shop without protective equipment. However at the time they were ordered to perform the clean-up work the asbestos sampling analysis was not complete and, in my view, persons being asked to work in the environment of the Wheel Shop had a reasonable basis of concern as to the adequacy of the protective equipment being given to them when the type and content of the asbestos insulation being dealt with was not yet known. Moreover, while the Labour Canada inspector's decision of the day prior generally approving the method of clean-up may have been made in good faith, it was not a determination that there was no imminent danger made in the face of an employee's refusal to work. As noted above, no such determination was made, in any event, until after the monitoring results were known.

What the evidence discloses is that the employees on the day shift did have an understandable basis to be concerned about the safety of the clean-up operations being assigned to them that morning. They had an initial impression from Mr. Moreau that no one would be required to perform that work until the monitoring results were known. They had no direct knowledge of the inspection conducted by the Labour Canada officer or the basis for his opinion that the clean-up operation was safe. Moreover, when they were finally faced with a directive of Mr. Moreau, addressed to all of the employees including those with facial hair, that they must don the protective equipment and proceed to the clean-up, they had serious grounds to be concerned with the overall soundness of their supervisor's judgement in the situation. In all of the circumstances I am satisfied that they had reasonable grounds for the action which they took, and that the decision of the Company's officers to hold them out of service was, at the time it was taken, a disciplinary response to what was perceived as their insubordination and unjustified refusal to work. For the reasons canvassed above, I am satisfied that the Company did not have just cause for that conclusion. It is further clear that there was alternative work available for at least a substantial number of the employees involved.

For all these reasons the grievance must be allowed. The Arbitrator orders that the grievors be compensated forthwith for the loss of wages and benefits sustained by virtue of their being held out of service on March 25 and 26, 1986. I retain jurisdiction in the event of any dispute between the parties with respect to the quantum of compensation or any other aspect of the interpretation or implementation of this award.

DATED at Toronto this 2nd day of April, 1990.

(sgd) M. G. Picher

Arbitrator