Inconsistency with safety regulations deemed partial cause of non-compliance
A New Brunswick lumber mill employee was reinstated when the arbitrator determined that a safety violation committed during a clean-up procedure was not serious enough to fall within the “zero tolerance” codes newly instituted by the province.
Twin Rivers Paper Co. has two main operations in New Brunswick. Andy Jenkins started working for Twin Rivers in 1997 as a student and became a full-time employee in 2001. He returned when the mill reopened in 2014 as a “labourer sticker picker” in the softwood lumber mill in Plaster Rock.
The responsibilities of the position included removing and disposing of broken stickers or strapping used to bind lumber, and generally maintaining a safe working environment by making sure that guards preventing entry to the area near the machinery “are not to be removed when equipment is operating unless equipment has been locked out.” There was a three-step procedure — Lock out tag out (LOTO) — including “lock” (placing a lock on a machine), “tag” (identify as lock placer), and “try” (attempt to turn on the machine) to ensure that power was shut off from the equipment. According to job overview documents, they were also to ensure that they were fully trained in all lockout procedures and if any doubts existed, to consult with a supervisor.
Incident during cleanup
Jenkins testified that on Nov. 1, 2017, the “mill broke down.” He was instructed to clean up the area during the downtime, and since he needed to clean up fallen material near the “top chain,” he went up the stairs to push an emergency button designed to shut down dangerous equipment. After doing this, he pulled out two disconnects and went underneath the top deck to clear out the debris.
At this point, supervisor Galen Corbin informed him that he had not followed the LOTO procedures, and Jenkins told Corbin that he didn’t know that he had to follow the LOTO procedure to do the cleanup. At the hearing, Jenkins referred to job overview documents that provide that “general cleanup of the sticker/picker area requires no lock out,” therefore he thought that pushing the emergency stop button was sufficient, and that the LOTO procedures were not required in clean-up.
Supervisor Corbin testified that Jenkins moved the restricting gates and passed under the equipment five separate times, did not place locks on the disconnects as mandated by the procedures, and did not “try” to ensure the power was disconnected. Jenkins replied that he thought all that was needed was to place a bar over the disconnects.
After the incident, WorkSafeNB reviewed Twin Rivers’ LOTO procedure, and the inspector did not make any recommendations.
The mill superintendent ruled that LOTO procedure was violated, and that Jenkins was being discharged because he had already received a one-week suspension for a previous LOTO violation in 2015.
The arbitration hearing
Twin Rivers presented an established “Lock Out Expectations Procedure,” introduced during labour/management meetings, in which failure to lock out equipment, tampering with another person’s lock, or not following standard lockout procedures were grounds for disciplinary actions ranging from a one-week suspension up to termination for the first offense, and termination for the second offense.
Jenkins maintained that he had never seen the documentation, and that if he had, he would have followed the LOTO procedures.
The safety supervisor said that Jenkins removing the retractable gate was a direct violation of the rules, and that if an employee needs to go underneath the top deck, the lock-out procedure should be followed.
Supervisor Corbin testified that he had numerous discussions with Jenkins about the LOTO procedures, but Jenkins claimed he did not remember them.
Corbin said there were safety meetings involving these procedures, a job training review, and an employee review questionnaire, which Jenkins signed as having completed.
The union representing Jenkins asked Corbin if he had ever demonstrated the appropriate procedures on the floor of the mill, and he said that he had not, believing that Jenkins’ training was sufficient and he was convinced that Jenkins knew what he had to do.
There was a difference in understanding whether LOTO procedures were to be followed during downtime cleanup activities and Jenkins believed he had done nothing wrong.
Determining violation and appropriate discipline
According to the arbitrator, the issues in this grievance were:
• Did Jenkins violate any “lock out” requirements on Nov. 1, 2017?
• If so, did the collective agreement’s “sunset clause” — which removed discipline from an employee’s record after one year of no further incidents — apply to disciplinary measures imposed under the “lock out” requirement?
• Notwithstanding any disciplinary guidelines in the employer’s “lock out” policy, did the employer have just cause to terminate Jenkins’ employment after a first violation?
The arbitrator found that although there were inconsistencies in the documentation surrounding clean-up procedures, they did not justify what Jenkins did, and he was aware that what he was doing was against safety procedures. The arbitrator also did not find Jenkins’ testimony credible overall; and inconsistent with what he said to his supervisors at the meeting at the mill after the incident. And, if he was unsure of his obligations, he should have clarified them with his supervisor, and he chose not to do so.
However, he then ruled that the employer breached the collective agreement in that the first violation should have been removed from Jenkins’ employee file.
And, to the claims that the employer could circumvent the collective agreement due to the seriousness of the violation, the arbitrator ruled the mitigating circumstances of the confusion surrounding Twin Rivers’ clean-up procedures, the fact that the incident took place during a “downtime” when production had stopped and no employees were actually injured, and the employee had a discipline-free record for the year preceding this incident, combined to merit a lesser penalty.
The arbitrator stated that because Twin Rivers had changed some of the LOTO procedures that should occur during clean-up, and Jenkins suggested that he would have behaved differently if he had fully understood the required LOTO procedure during cleanups, that Jenkins was unlikely to repeat this unsafe behaviour.
The arbitrator believed that the work relationship was not irrevocably damaged, but Twin Rivers needed assurance that Jenkins would not repeat similar unsafe activities. Therefore, he ruled that Jenkins should be reinstated, but because he was not completely forthcoming in accepting responsibility for his actions, and to make it clear that the behaviour is not condoned, he would receive no compensation for his period of unemployment since the incident. In addition, Jenkins would have to sign a statement, to be placed in his employment file, that he understands the current lock-out procedures.
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