Westray Mine
Public Inquiry
Commission

Stellarton, Nova Scotia

Day 44

3 April 1996
Afternoon Session




Index to online transcript, Westray Mine Public Inquiry
http://alts.net/ns1625/950013index.html



INQUIRY RECESSED  (TIME: 12:20 p.m.)

INQUIRY RESUMED  (TIME: 2:04 p.m.)



COMMISSIONER  Thank you. Mr. Roberts?

MR. ROBERTS  Thank you, Mr. Commissioner.



EXAMINATION BY MR. ROBERTS

Q.  Mr. Burchell, first I want to pick up from a point where Ms. Campbell left you just before the break. The list of names of all those employees who signed cards that's in your exhibit, I think it's at page 37 and 38 of tab 17.

A.  Yes.

Q.  Just to be clear, not all of those people who signed cards attended one of the meetings that you had?

A.  That's correct.

Q.  In fact, isn't it true that it's likely that the majority of those who signed cards did not attend a meeting?

A.  That's correct.

Q.  And that what would be the largest number of people that you ever had at one of your meetings?

A.  Twenty to twenty-five.

Q.  So most of those cards then would have been signed by your inside organizers?

A.  Yes.

Q.  Now of those men who did go to meetings that you had, and I'm thinking now of your meetings in October and November, I just want to be clear on the safety concerns that they did express to you.

A.  Yes.

Q.  There were concerns about roof conditions?

A.  Yes.

Q.  What else was voiced as a concern about the health and safety in that mine?

A.  Equipment that was not permissible. Jump-starting equipment underground. Lack of stone dusting and none at all, basically. Problems with the inspector and the way he did his travels. And the list went on and on and on.

Q.  And those were the concerns that you took to the Department of Labour?

A.  Yes, they are.

Q.  And you took them, I think you said, to Mr. – The same concerns were relayed to Mr. McLean, to Mr. White, and to Mr. Macdonald?

A.  Yes, they were.

Q.  So after those conversations you had – And just to be clear, when were the conversations with White and Macdonald in relation to your meeting with Albert McLean?

A.  It would have been the next day or within that period, within a day or two afterwards.

Q.  So early November then?

A.  Yeah.

Q.  What was your impression of the work force, the makeup of the work force at Westray in terms of experienced versus inexperienced coal miners?

A.  There was very limited experience as far as coal miners. There were a lot of experienced miners, but there's a big difference between a coal miner and a hard rock miner. And there were a lot of hard rock miners there.

      There were coal miners that had been out of the industry for several years, like as high as 10 years, that had been out of the industry.

      There were a lot of people hired there that were – did a lot of their work on surface operations that had no previous work experience, let alone, you know, mining experience.

Q.  In your meeting with Mr. McLean, if I could just come back to that a minute. When you went through again all the concerns and you said several times to Ms. Campbell that you put it to him, "What are you going to do about it?"

A.  Yeah.

Q.  Did you get an answer to that question?

A.  No. Nothing that was – Basically, his response was, "Well, why aren't they coming to me with their concerns??

Q.  And in your meeting with John Smith, was that largely about the old workings or were there this other list of concerns that you had talked to Claude White and Hugh Macdonald about? Were they also topics in your discussions with John Smith?

A.  They were brought up, but they weren't impressed upon as much as the old workings. Because I was very concerned at that meeting with the old workings, and I guess there was more time spent on that than anything else.

Q.  I just want to be – Did I hear you say that he left you with the impression that he was going to stop the advance in the Southwest section until there was more drilling done?

A.  He left me with the impression that he was going to check into it, and if what I had told him was correct, that he was going to take appropriate action, which would have been no more advancement unless you drilled ahead.

Q.  You said that in the conversations you had with Mr. Macdonald and Mr. White after the vote when you were trying to get back into the mine, they said to you at that point that they didn't want to be associated or something to that effect with an organizing drive.

A.  Yes.

Q.  Was any comment like that made in your first conversations with Mr. White or Mr. Macdonald? Did they express concern at that time about being involved in an organizing drive?

A.  They – It may have been brought up. It was brought up by Albert. I can't say for exact if they made that comment prior to that. I think Claude White knew that I was involved there in the organizing drive, but, at that particular point, it wasn't – It wasn't an issue of me getting in there like before that. The issue was that Albert wasn't doing his job. That was the main issue that I was impressing upon them.

Q.  Okay. What did you intend to do, if you and Mr. McNeil had been successful in getting into the mine, one or the other of you, after your vote, what was your intention?

A.  We were going to go public with what was going on at Westray.

Q.  Why didn't you go public anyway?

A.  For a couple of reasons. Hindsight, maybe I should have. I think during – During my organizing drive, there was a lot of media coverage on the problems with roof conditions. I think the opposition in the House were bringing it up on a daily basis. But I had – In order for me to go public with it, I was going to have to name names of who gave me specific information, and I had already given my word that I would not do that.

Q.  So you were trying to gather that information from another source then?

A.  Yes. I wanted to see the information firsthand so I could, when I did go public, I could say, "I saw it," and this is what's going on there. And I felt that I had a little more experience or, I guess, in the mining industry to make those observations on what was proper and what wasn't proper in the mine.

Q.  You told Ms. Campbell at one stage you told, after the vote, you told the people you had been working with that you would assist them if they wanted in getting another union in there at Westray?

A.  I don't think I told them I would assist them in getting the other union in. What I told them was that if they felt that there was no way the union I represented was ever going to be successful there, to get the union in there, and I would offer whatever assistance to that union to help clean the situation up.

Q.  And eventually you did cooperate with the Steelworkers in their organization drive?

A.  Yes, I did. I offered whatever expertise we could for them if they were successful. And I continued to offer that up to and after the explosion.

Q.  What would you have done if you had been successful in your vote?

A.  If we had been successful? Immediately travel the mine with the inspectors and immediately had proper steps as per the Coal Mines Regulation Act followed by the inspector. And if it meant shutting down sections of the mine for unsafe conditions, we would have done that. And if it meant shutting the whole mine down until it was corrected, we would have done that.

Q.  In your statement that you gave to the RCMP after the explosion, you made reference to a conversation you had with Gerald Phillips in the summer of 1992 on an airplane. Do you recall that?

A.  Yeah.

Q.  Describe the circumstances and the conversation.

A.  I was on a flight from Halifax to Toronto, and Gerald Phillips was on the same flight. And he was sitting a few aisles up ahead of me. And there was an empty seat beside him, and so once the flight took off, I went up and sat beside him and asked him where he was going and where he was working and what he was doing. And he told me he was heading for head office in Toronto.

      And then he asked me where I was going, and I told him I was heading for the Crow's Nest Pass. That we had some problems with our West Star Mine out there. And then I was going on out to Campbell River. I said we've got – I was being a bit sarcastic with him, and I said, "We've got an organizing drive going on out there, and I think I'm going to try to get a meeting to look for automatic recognition."

      And he just looked at me and he said, "Too bad we couldn't turn back the hands of time," he said, "when you guys were looking for automatic recognition with us," he said. "Things may have turned out different."

MR. ROBERTS  Thank you, Mr. Burchell.

COMMISSIONER  Mr. Hebert?



EXAMINATION BY MR. HEBERT

Q.  I'm interested in knowing a bit more about the mine inspection training that you had in the United States. How long of a course, your first course that you went on, how long would that be?

A.  It was a – The mine inspection course was a six-week course, and it was three weeks at the Academy. You lived right at the Academy. They have residence there. And it was 40 hours a week. Or it was supposed to be 40 hours a week, eight hours a day in classroom, but we would do eight hours a day, we'd break for supper, and then we'd go back for a couple more hours in the evening. It used to be a 13-week course, and they shrunk it down to six weeks. But we had to take classes in the evening to accommodate for the weeks that were cut out.

Q.  Was this course specific to coal mines?

A.  It was all coal mines. In fact, the people I took the course with were United States MSHA coal mine inspectors.

Q.  All right. So this course was primarily for government inspectors, would you say?

A.  Yes, it was. It was the same course that their inspectors took.

Q.  All right, and obviously the program allowed outside persons in for training, like yourself?

A.  Yes, there was – We had an arrangement made with the – Our union had an arrangement made with the mining academy for seats. We paid for seats in these courses. They had full-time teachers and instructors there. In fact, two of the union – Or one of the union people that took the course with me has since left the union and is now a full-time mine inspector for MSHA.

Q.  In the United States?

A.  Yes.

Q.  Do you have any idea what the cost per seat was to the union?

A.  I would have no way of knowing.

Q.  Okay, fair enough. Are you aware of whether any mine inspectors in the Province of Nova Scotia took advantage of that training?

A.  To my knowledge, the only person that I'm aware of that was at the Academy, and I don't know what degree of training they were given there, but several of the inspec – or of the instructors had asked me if I knew Collie MacDonald. And I told him, yes, he was from my home town. I knew him well. And they said that he had just left. He was down there on training.

Q.  Was that back in 1985 when you took the course?

A.  Yes, it was.

Q.  Do you know who Collie MacDonald is?

A.  Yes, I do.

Q.  And who is he?

A.  He's the Chief Inspector in Glace Bay. Or was. I believe he's retired now.

Q.  All right, and since 1985, are you aware of any Nova Scotia Government officials attending and taking the course?

A.  No, I'm not. I wouldn't know. They may have or they may not have.

Q.  Now was there any training with respect to the degrees of intervention of an inspector?

A.  Yes.

Q.  Was there a –

A.  We were basically trained under United States regulations and I would have to – I had my own regs with me, and I would have to take notes during the training, so that when I come back, I wouldn't be confused and try to use U.S. regs down here.

Q.  I'm just trying to get some sense of what kind of topics were covered other than just the regulations themselves. Was there a protocol in when, for example, inspecting a mine? Were there set procedures or checklists that were provided?

A.  Yeah. We went through the whole – The program included everything from – We were instructed and had to write exams and tests on coal dust sampling, analyzing coal dust, calibrating the equipment for it, and you had to write tests on it. And if you passed it, you were given a certification card to show that you were certified in that field. Impound inspection, prep plant inspection, strip mine inspection, high wall inspection, underground ventilation plans. It was a very intense program, very intense.

Q.  Did you, in fact, get a certificate with respect to testing of gas?

A.  Yes.

Q.  Coal dust as well?

A.  Yes.

Q.  Is there a certificate that you get? Do you carry it with you?

A.  Yes, I do.

Q.  And do you have those cards with you now?

A.  Yes, I do.

Q.  All right, and how many cards would you have in terms of certificates?

A.  Well, I received a certificate showing my completion of Level 1 training for coal mine inspector. That's just a basic certificate from the Academy to show that I took it and successfully completed it.

Q.  Right.

A.  And by "successfully completed it," that I passed it. The other courses were a part of that program, and in order to be a – to have completed the whole program, you must also – Because the inspector doesn't have to analyze the samples, usually you send them to a lab. This is something over and above what an inspector would do. But if you wanted to qualify, you could write for your competency in that, and I wrote for my competency in impound inspect. I was qualified in that in the third month of '85.

Q.  And that's to actually analyze?

A.  That's for testing impounds and that. But this one here is for noise level testing. May of '85, I was qualified for that. And, basically, that's for testing for decibels in the mine and working conditions.

      And this one here is I'm certified for dust sampling underground and surface in May of '85. My examination was in May of '85.

      And I'm also certified in dust calibration maintenance, underground and surface, in May of '85.

Q.  Now since 1985, did you re-attend for any upgrading?

A.  Yes, I do, I have. In fact, I was down there, I believe it was last year, or the year before last.

Q.  Are there specific courses for that, for mine inspectors to upgrade, or is it the same course that you take over?

A.  You go down and take – I mean, you take upgrading on everything. We've gone down – We go down, like I stated earlier, we send all of our people down there, all of our committee men, for a week out of each year. And we accompany them, and when I feel that I need a little upgrading on stuff, then I'll go down. I don't deal with the health and safety now. Brother MacArthur does. So he's more – I believe he's going next month back down. But when I go down now, it's when I want to – When I feel that I need a little more, you know, refresher course, I guess, or whatever.

      I went down two years ago. They had an upgrade, a refresher course on mine rescue and surface operation and I wanted to take it. So I went down and took that. That was a 40-hour program.

Q.  I just want to go back to some of the meetings that you had with the men prior – or during the union drive. And, in particular, the meetings at which the various Occupational Health and Safety Act and Coal Mines Regulation Act were discussed. Do you recall whether there were actual copies made available to the men at that time so that they could follow along with the discussion?

A.  At that meeting, everyone that was at the meeting was given a copy of both.

Q.  Okay.

A.  Occupational Health and Safety Act and Coal Mines Regulation Act.

Q.  I understand just from the list here that of the men who actually signed the union cards, eight eventually lost their lives underground?

A.  Yes.

Q.  Was there any thought given at the outset to unionizing only the underground men in a bargaining unit? Would that have been permissible by law, to your knowledge?

A.  Well, I don't know if it would be permissible. I certainly would have had one heck of a time getting that one past the Board. They would have included the surface workers, I believe, in the bargaining unit.

Q.  What's your basis for that belief?

A.  Past practice. I mean, it's one operation. They would be considered eligible to be in the bargaining unit, and the company would have pushed that issue to make sure they were included.

Q.  And that would have been as a result of the so-called Michelin changes to the regulations?

A.  No, it has nothing to do with Michelin.

Q.  All right, fair enough.

A.  That I'm aware of, anyway. Unless there's something in Michelin that I'm not aware of.

Q.  Sure. So with respect to this particular aspect of the unionization process, do you feel that if you had been able to segregate, if you will, the underground workers, that that might have made a difference?

A.  Oh, if the vote had just been underground workers, I'd have won the election. No doubt in my mind that I would have won the election. The numbers prove that.

Q.  And have you thought about that since then? Are there any changes that could be made that might allow that to happen in the future or prevent a union from being defeated where it was really needed in one aspect of a –

A.  I've thought about Westray on a regular basis on what maybe I could have done or couldn't have done or whatever, and it haunts me.

Q.  Certainly. But in terms of looking at it now and saying is there any legislation out there? For example, the Trade Union Act, is there any way that you can think of that –

A.  I wouldn't promote any such legislation. I feel all workers deserve the right to be unionized and have the protection that a union can offer, and I would not pursue any legislation that would discriminate from one employee to another.

Q.  So you wouldn't be in favour of any changes to the Trade Union Act, for example, which would have allowed you to only organize the underground men?

A.  It's not the responsibility of the Trade Union Act. It's my responsibility to do the drive properly. It's up to me to make sure that I have people there to assist me if needed with expertise in that particular operation.

Q.  Now with respect to Westray itself, there's been evidence that the surface plant was, in fact, state of the art and there's people that have said, you know, that they were amazed that such, you know, modern and well established plant would have existed, even at this particular stage of the mine development. Do you feel that that created a perception within the workers on the surface that, you know, "This is a great place and there's nothing going on that we should be concerned about"?

A.  Well, as far as state of the art, from my understanding in conversations with the people that worked there, half of the prep plant that was connected with the underground portion of it was never hooked up. It was never installed. The computerized system, that was never hooked up.

      As far as the surface operation versus the underground operation, with all due respect to the surface employees, they just worked in a different environment than the underground employees, and they didn't see the concern daily and the dangers daily that the underground workers saw. They weren't privy to that. So it didn't concern them. I guess it just didn't concern them as much as it would concern an underground worker.

Q.  Would you yourself have been nervous going underground at Westray based on what you had heard?

A.  Based on what I had heard, I would have been scared to death to work underground at Westray.

Q.  And even going down to inspect it as you wanted to do, would you have been timid about that as well?

A.  Well, I mean, you know, I would have had to do that if we were successful. I would have. There was too much at stake for me not to.

Q.  When the Department indicated to you that Mr. MacNeil would not be able to go down underground as part of the committee reviewing the legislation unless Westray gave permission, do you know, did the Department or did anyone approach Westray to see if that could happen?

A.  I'm not aware if they did or not. But they may have contacted Westray and asked, but not to my knowledge.

Q.  You're not aware of that?

A.  I'm not aware if –

Q.  All right.

A.  – they made contact. They alluded to the fact that Westray wouldn't give me permission, so I don't know whether they were spokespersons for Westray or Westray relayed that message to them. I wouldn't know.

Q.  When you travelled with Albert McLean in other mines, did he have a particular process that he followed in terms of inspecting the mines? You mentioned some of it, that you would both show –

A.  Well –

Q.  – up, you would – he would read some papers at the start and when everyone was ready, you would go down.

A.  You have to understand, the mines that Albert and I travelled in –

Q.  Yes.

A.  – were UMWA mines, and they're the safest in North America, and his job was quite easy in those mines.

Q.  All right. So that –

COMMISSIONER  I won't even charge you for that commercial, Mr. Burchell.

MR. HEBERT  So are you suggesting that there is no comparison to be drawn between his travels in those mines and at Westray?

A.  Albert was on a picnic when he travelled our mines. They were – I mean, it was basically just doing your basic duties, to check the seals. Very seldom did he ever have to write up a complaint on any of our mines –

Q.  Okay. But in terms –

A.  – if he ever did.

Q.  Did he take tests –

A.  Oh, yes.

Q.  – methane tests, for example?

A.  Yes. Oh, yes.

Q.  All right.

A.  We tested for gas. We'd – we would check around all seals in the airways. He would check for ventilation. He would –

Q.  How would he check for ventilation?

A.  He would – he had equipment there that he would test the ventilation with. And we would examine the – visually examine the stone dusting in the sections where it was required and stuff like that.

Q.  Did he take any stone dust samples that you're aware of?

A.  No, he – that's not part of his function –

Q.  Was there –

A.  – to take stone samples?

Q.  Sorry, coal dust samples –

A.  No.

Q.  – did he take coal dust samples?

A.  That's – no, that's – that's not a function of the inspector to take the samples. If they were to – if they felt – under the Nova Scotia Coal Mines Regulation Act, if an inspector deemed that there was a problem, he was to instruct the company to take samples, have them analyzed and then report back to him with the results of those.

Q.  And in the mines that you travelled with Mr. McLean, those samples were being taken on a regular basis, were they?

A.  In the Evans Mine, it was a wet mine, and you only really needed the stone dust around the working faces. And you didn't need to take samples. I mean, it was white. When you went in there, it was white.

Q.  With respect to the testing of the substantial seals that you described where a shot was placed in behind, is that some kind of a standard test for these seals?

A.  Yeah, you have to check all the seals to make sure that – to make sure that they're secure and they're tight and that there's no bad air getting out and contaminating the fresh air and to make, you know, you check for leakage, whatever. That's a daily routine. That's something that you –

Q.  And is that – okay, so you have an abandoned section, and I understand what you describe was a section where there had been some fire?

A.  Yeah.

Q.  Would that apply to a section that had simply been abandoned –

A.  Yeah.

Q.  – and was –

A.  We check all seals in the mine, whether it was for an abandoned section or whether it was for – to curtail the air flow. Sometimes you construct seals to change the direction of the air.

Q.  Certainly. Would there be two, I guess, types of tests? Number one is an initial test after you've just built the seal, using the shot from behind and then regular tests using methanometers? Or did you put a shot in each time to test it?

A.  What do you mean by a "shot?"

Q.  Well, I understood from your – when you described the testing of the seal at the Evans Mine –

A.  Right.

Q.  – that – and I'm going back now to when you were recounting about how Mr. –

A.  You mean an explosive shot?

Q.  Yes.

A.  No. That – at that particular inspection, there had been a mine fire –

Q.  Okay.

A.  – and we had sealed off the section where the mine fire was.

Q.  Right. And when we took the shot, we reinspected the seal because their – to make sure no gases were – or anything was going to escape or anything could get in there to reignite –

Q.  All right.

A.  – or whatever.

Q.  I guess that was what I was getting at.

A.  Yeah.

Q.  So that was a special test that you did for that seal?

A.  We – we checked all seals, but that particular seal –

Q.  Right.

A.  – we were extra careful with that. We wanted to fire a shot –

Q.  Yes.

A.  – to make sure that the movement from the shot did not damage the seal.

Q.  Okay, you wanted –

A.  I guess, basically to make sure the seal was well constructed and –

Q.  And explosion-proof. And, again, I just wanted to clarify it, so that was – that particular – although you tested other seals –

A.  Yeah.

Q.  – it was just a particular test for that seal –

A.  Yes.

Q.  – because there had been fire?

A.  Yeah.

Q.  And to your knowledge, had that type of test been used in other circumstances to test seals or just when there was a fire?

A.  Well, when we did our travels, we just checked the seals. We never took a shot, checked them, and then took a shot and would check them again.

Q.  Right.

A.  It was just –

Q.  No. But in your experience, and not strictly with Mr. McLean, but –

A.  Maybe I could qualify that. That seal had been a newly-constructed seal.

Q.  Yes.

A.  The other seals in the mine, we were blasting all the time in the mine. So if you went down and took a test on a seal and there was a leakage there, you'd get it fixed. This seal here, when we – the face was close to that area.

Q.  Right.

A.  And we took the shot and went in and rechecked the seal as a precautionary measure to make sure there was still no leaks there.

Q.  Right. You're familiar with where the stoppings were placed in the Southwest 1 section, are you?

A.  No, I'm not. I was never in the mine.

Q.  All right. Have you – from the evidence, are you aware of where they were placed?

A.  Well, I've looked at the maps and I've seen where they were placed.

Q.  All right. Would you agree with me that that's fairly close to the working face as well, based on what you understand the –

A.  Yes.

Q.  – the layout to be?

A.  Yes.

Q.  And had substantial seals been placed in those roadways, would you have recommended this type of test with using the shot?

A.  My understanding, there was no explo – there was no shooting –

COMMISSIONER  It's not a shotfired mine –

A.  Westray Mine –

COMMISSIONER  – Mr. Hebert.

A.  Yeah.

COMMISSIONER  It's –

MR. HEBERT  I understand that.

COMMISSIONER  – an entirely different type of mine, and I don't think there's any correlation between the two of them.

MR. HEBERT  I'm just wondering –

A.  The reason we did the shot at the Westray – at the Evans Mine is that's how we mined coal there.

Q.  I see.

A.  We didn't use equipment to cut the coal. We bored and shot the coal daily. And then –

COMMISSIONER  And that's in evidence.

MR. HEBERT  Oh, I see what you're saying. So the – this was just a regular –

A.  Westray –

Q.  – shot –

A.  Westray, they cut the coal with –

Q.  All right.

A.  – machinery. In the Evans Mine, we drilled holes, put dynamite in there –

Q.  Certainly.

A.  – and blew out the face.

Q.  Okay, thanks for that clarification. You made a comment in your testimony that because of the political nature of Westray, you had – you – it indicated that you were aware – you felt there was a political aspect to the mine. Can you elaborate on that, why did you have that belief?

A.  Well, anybody that lived in Nova Scotia that read a newspaper back then would know there was political connotations involved in Westray. I mean, it was brought up in the Legislature on a daily basis. It was – you know, unless you were illiterate or whatever, you knew there was politics involved.

Q.  So, basically, your information comes from reading the news – newspapers –

A.  Well, it was –

Q.  – and the media?

A.  It was Donald Cameron's riding, Elmer MacKay's riding, and the Minister of Mines' riding and they all wanted it to go. So it wouldn't – you didn't have to be a rocket scientist to figure out what was going on there.

Q.  All right.

A.  They promoted it as the alternative energy source for the Province of Nova Scotia, low sulphur coal to replace high sulphur coal. In fact, the day of Trenton 6 opening, Premier Cameron cut the ribbon and stated, "Look, no smoke coming, clean Pictou County coal," being well aware that it was Cape Breton coal they were burning because they had not delivered any coal from Westray to the site as of that time.

COMMISSIONER  Just to be fair, Mr. Burchell, now all of your – all of your knowledge with respect to this which you've just said –

A.  Yeah.

COMMISSIONER  – is based upon newspaper reports, which you read at the time and which were available –

A.  I was –

COMMISSIONER  – to all of us.

A.  I went up to the opening.

COMMISSIONER  Yeah, okay.

MR. HEBERT  Yeah, just one final question. One of the concerns that was being raised with the men, in terms of a union drive, was if the union gets in, the mine could be shut down. And various, I guess, reasons for that might have been given in terms of jobs elsewhere and this kind of thing.

      There's been some evidence that this mine may not have been economical from the beginning. And I'm just wonder if you have any sense of – from what – based on what you know about – from the evidence in this Inquiry, whether or not if the safety had been enforced properly, would that mine have continued in fact on an economic basis? Do you have any sense of that at all?

A.  Just based on my experience in mining and from the contracts that Westray had with Nova Scotia Power, and the type of coal that was there, if the mine had of been constructed properly, I guess, and safely, that was a gold mine. There was good profits to be made. I mean, they had a contract that they were going to get paid for coal whether they mined it or not. I mean, who – how can you lose?

Q.  All right, thank you. Those are my questions.

MR. MACARTHUR  Thank you.

COMMISSIONER  Mr. MacArthur, I'm going to sidestep you this time because this is your –

MR. MACARTHUR  Well, I was just going to state the fact that I really wasn't going to ask any questions anyway. But I was going to make one short statement. And the fact was that I personally know, and I was around Bobby before and after the Westray explosion, and I know the effect that it had on Bobby and the concerns he had. And he had met a lot of – made a lot of friends at the Westray Mine, personal friends of his. And I had no intentions of ask – putting any questions forward to him under them circumstances anyway. Thank you very much.

COMMISSIONER  Thank you, Mr. MacArthur. Ms. Gillis?

MS. GILLIS  I have no questions, thank you.

COMMISSIONER  Mr. Wells?

MR. WELLS  Thank you.



EXAMINATION BY MR. WELLS

Q.  Mr. Burchell, you told us this morning about plans the Department of Labour had to rewrite the Coal Mines Regulation Act and the Occupational Health and Safety Act. Are you sure that they were planning a major rewrite of the Occupational Health and Safety Act, or might that have just been some changes that they would have to do in order to accommodate a new coal mines regulation?

A.  At that particular time, Paul MacNeil was our health and safety officer, and Paul had instructed me that he was approached to sit on a commission to revamp the Coal Mine – update the Coal Mines Regulation Act and to look at the Occupational Health and Safety Act. Now whether they were going to also revamp this, or whether it was just to, when they were doing the Coal Mines Regulation Act, to see if there was any parts in that that would have to be addressed to comply with that, because it's my understanding the same inspector for both branches looked after it. I really don't know how they were going to go about doing it.

Q.  All right. Often when they set up these committees to look at legislation, if they want bipartite committees, there is a concern raised with some employers that there should be non-union employees sitting on these groups. Do you feel, knowing what you know of the Westray employees and the problems they had, that a non-unionized miner from Westray would have been able to offer good information and feel secure in offering that information to such a committee?

A.  I think a miner from Westray, if he was free to present recommendations based on his knowledge of working at Westray, would be an excellent candidate to help put things in there.

Q.  But would that miner feel confident that he could operate his knowledge and still have a job at the end of the day?

A.  Oh, I – I don't think I could answer that question because it would depend on who the miner was and, you know, what restrictions would be placed on him as being a part of that committee.

      I know committees that I've sat on revamping the Act, we've had representatives there from different areas, and there was no boss standing over their head to see what the recommendations were. It was a recommendation from the committee as a whole.

Q.  Do you feel that union representatives are able to represent the needs of the non-unionized workers?

A.  I think we're restricted to a degree, that we can't repre – if they – if we could represent non-unionized workers, we wouldn't need the Labour Relations Board and we wouldn't need to have votes and campaigns. I mean, we'd just go in and represent them. But I really don't understand where your question is coming from. You know, are we capable of representing them –

Q.  Well, I – I'm – I guess I'm asking the question and I am surprised at your answer. I would have thought that you were – you, as a union, were working very diligently to try to represent the needs of the unorganized, but –

A.  With the intent of eventually organizing them.

Q.  Well –

A.  I mean – I mean –

Q.  Okay.

A.  I think –

Q.  I didn't do my homework.

A.  – as a union rep, you know that, you know, we help everybody, but we also want to make sure they eventually come under our umbrella. At least, that's –

Q.  Yeah.

A.  – that's –

Q.  But any time you were aware of an unorganized worker having difficulties and especially in health and safety, would I be right in assuming that you would offer your assistance as much as you could?

A.  I represent them on a daily basis, non-unionized workers.

Q.  That's what I thought.

A.  With the hope that eventually they will come and join my union.

Q.  Yes, or some other union. Okay –

A.  My union.

Q.  – moving on –

COMMISSIONER  He didn't say that, Mr. Wells.

MR. WELLS  I know he didn't say that. We can't all have those we would like to have organized.

      Can you tell us and give us some sense of the impact that the rescue efforts had on the employees at Devco, both in your union and from CUPE, the people that came up to take part in it?

A.  Well, it had a devastating impact on them. I mean, no coal miner wants to ever be put in that position. No coal miner ever wants to have to go in to rescue people who – or to recover bodies or whatever. I mean, it's – I've – I keep in close contact with our draegermen, and it's had a – it's had a very dramatic effect on them. I mean – but they are also highly trained and skilled people, and they know that that – some day they're – they hope that it never happens, but some day that may be a reality, and they're trained to respond to it. But it still has a great emotional impact on them.

Q.  You mentioned this morning that you were speculating that possibly Albert McLean was hoping to get the Chief Inspector's job. And then shortly after that you were advised – you're telling us you had been advised to contact Claude White when you were trying to make some – or do something about Albert's enforcement work. What position did Claude White have at that time, do you know?

A.  My understanding is Albert was the head cheese out of Halifax. I mean, he – he was the guy that they reported to.

Q.  Albert or Claude?

A.  Collie MacDonald reported to and he reported to.

Q.  This is Claude –

A.  Pardon?

Q.  – not Albert?

A.  Pardon?

Q.  You – I think you just said that you thought Albert was, so you thought –

A.  Concerning Westray, yes, because that was –

Q.  Okay.

A.  Pictou County is a separate division from Cape Breton County, and they were using a Cape Breton inspector up here. There had been a lot of changes in the Labour Department when they went from Department of Mines and Energy over to Department of Labour. And they pooled all their resources, I guess, and it was, I guess, hard to understand where the line of command was. I know in Glace Bay, Collie MacDonald was the head guy. And, in Halifax, Claude White. And those guys were the guys we dealt with.

Q.  So you thought he was the – was the Chief Inspector for this region, is that what you're saying, out of the Halifax office?

A.  He was over the inspectors. They reported to him in Halifax. That was my understanding of it.

Q.  Okay.

A.  And he reported to them. Or, I'm sorry, the inspectors reported to him.

Q.  When you were trying to find a way to get enforcement in that mine, either before or after your organizational drive, was there ever any consideration given to bringing the matter to the occupational health and safety advisory council?

A.  No.

Q.  Okay. Do you feel that, if there were revisions to the Occupational Health and Safety Act to put in place a fast and fair and effective appeal system, that that would be able to assist in such a problem in the future where you weren't getting the enforcement you needed?

A.  With all due respect, Mr. Wells, if they wouldn't enforce the Coal Mines Regulation Act, I didn't expect them to enforce any other Act.

Q.  Well, I'm saying that the Coal Mines Regulation Act is a portion of the Occupational Health and Safety Act, in that it comes under the Occupational Health and Safety Act, and were there modifications made to the Occupational Health and Safety Act now, post-Westray, that would include a fast and fair appeal system, do you feel that that would help in future cases, such as Westray, where you weren't getting the enforcement that you want?

A.  I don't understand what you're getting at. I mean, it was – the legislation was there. You know, I –

Q.  Well, I'm saying that the legislation now does not have an official appeal system that has to be followed when you have a concern. And I'm asking whether you think an appeal system would help?

A.  Sure it would help; it wouldn't hurt. But I would hope that they would follow the legislation that was there and you wouldn't have to appeal.

Q.  You and I both. Thank you very much. No further questions.

COMMISSIONER  Mr. Endres?



EXAMINATION BY MR. ENDRES

Q.  There really only are two areas, Mr. Burchell, that I'm interested in. And the one is the area where you talked to us about going on the inspection tour, you wanted Paul MacNeil to go on an inspection tour of Westray.

      And the other area, of course, is your meeting with Albert McLean at the Heather Hotel. But before – and this won't take very long at all.

      Before I do that, perhaps you can put something in perspective for me. I heard you say just a few minutes ago in response to counsel on cross-examination that you would indeed shut down certain mines – certain parts of the mine or the whole mine for safety reasons. Did I hear you correctly on that?

A.  Yes, you did.

Q.  Well, it startled me a bit because earlier this morning we looked at your memorandum or your letter to the employees at Westray at page 44. Do you remember that?

A.  Yes.

Q.  Of Exhibit 75, tab 17.

A.  I know –

Q.  And, of course, in that you were – I'm sorry?

A.  Go ahead. I know the exhibit; I wrote it.

Q.  You know which one I'm talking about.

A.  I wrote it.

Q.  And, of course, in that it says that the question was raised whether UMWA will try to close our mine down for safety violations and you had given us your response saying no, that's not what we're going to do.

A.  That's right.

Q.  Can you put that in perspective or is there anything more to it?

A.  Well, if you had been listening to my testimony earlier this morning, I testified that Albert – or Roger Parry was pulling the men aside and telling them we were going to shut Westray down completely, that was it, so we could keep Lingan open. And I responded to that, that we're not in the business of shutting coal mines down. We're in the business of working with management to try to make it a safe operation.

      Now if men had to be – if you had to shut a section down to take men out of there until it was made safe, then that's what we would have done. We have done it in the past at other mines, and if that situation is to arise again, we will do it again. The safety of our men is our top priority.

Q.  I think you are helping me in that you've added the additional perspective of the Lingan Mine and would you not agree with me that there is nothing in your December '91 communication to the Westray employees about the Lingan Mine? It simply says for safety violations –

A.  Yes.

Q.  Safety violations. It's not linked in any way.

A.  No.

Q.  So you didn't explain to the employees what you were talking about.

A.  Yes, I did. I held meetings and brought people up from Lingan Mine with me to explain that.

Q.  And, indeed, what you were responding to, I take it now, is that the employees had put it to you that they feared that they would shut the Westray Mine down in favour of Lingan, is that the way the question came to you?

A.  The employees didn't fear it. They were being told that by representatives of management at Westray.

Q.  So if that's the –

A.  And when Wes – when management during an organizing drive use any of those tactics, then, of course, we respond to it.

Q.  You don't find it surprising that there's nothing of that mentioned in your letter to the employees about the Lingan link as opposed to safety concerns, safety violations?

A.  No, it doesn't surprise me at all. I was at the gate putting out fliers. I wasn't writing books. I mean, you know, I had to do a flier. And I had meetings to cover those other issues and one-on-ones with the men and I had an in-house committee who also explained to the guys. I didn't have to put everything that I did in a flier.

Q.  Just another preliminary point, the Evans Mine was unionized?

A.  Yes, it was.

Q.  The Evans Mine was properly managed and run?

A.  Yes, it was.

Q.  It was properly inspected?

A.  Yes, it was.

Q.  Yet there was a fire?

A.  Yes.

Q.  At the Evans Mine.

A.  Yes.

Q.  So can I safely assume from that, and if that's not the case, tell me why, that even in the best of mines, there can be accidents. There can be fires, and there can be other things?

A.  Oh, sure, but the Evans Mines fire was immediately extinguished, contained, and no loss of life was occurred because the inspectors and the union were right on top of it.

Q.  No, but the point – I understand that and I'm glad you point that out.

A.  The Evans Mine fire could have been devastating if there had not been proper stone dusting and stuff like that done at the mine. We may have had another Westray. But all mine accidents, any occupation, as I'm sure you're aware, in your occupation, you could have tripped coming in here. Accidents can happen anywhere, and it's the job of the workers and their representatives and the government representatives that are there in charge of that operation to see to it that proper procedures are in place to make sure that if an accident does happen, that it's well covered and we're on top of it.

Q.  All right, that's helpful. Going on to the inspection tour, which is one of the two matters that I really do want to speak to you about.

A.  Sure.

Q.  You told us already one way of getting Paul MacNeil into the mine was for two Westray employees to sign him up as their safety rep, so to speak?

A.  Yes.

Q.  And that didn't come about, of course?

A.  No.

Q.  We know that.

A.  It didn't.

Q.  And then you tried to go through Hugh Macdonald and Claude White to order Westray to allow Paul MacNeil to go underground.

A.  After the election, that was the route I took, yes.

Q.  And they wouldn't do it, of course, we know that.

A.  No.

Q.  Now do you know of any, and help me with that, any authority under which the Deputy Minister of Labour or Claude White could have ordered Westray to permit Paul MacNeil to go underground on an inspection tour?

A.  Yes, I do.

Q.  All right, tell us what it is.

A.  The Minister has the power to authorize anything that he sees fit in this Act. So does the inspector. And maybe they could have easily said that we want some assistance in doing our inspection, and that would have covered him.

Q.  Is there something particular that you have in mind other than the Act? Is there a section or a clause or a paragraph that you want us to know about?

A.  Well, if the – The Minister – I'm sure if I went through this Act, I would find something that would have – I mean if you want to take a break, I'll go through it and find something for you that I could have got in there under.

Q.  I think we can –

A.  If the Minister had been cooperative.

Q.  We can leave that.

A.  That's no problem.

Q.  You don't know of any section right now, but you say you could find it –

A.  Well, under the Occupational Health and Safety Act, there's a section under there, and I believe it's – Just one second and I'll check it out. Section 29(1):

"Where an officer makes an inspection of a workplace pursuant to the powers conferred upon him pursuant to Section 28, the officer shall give a committee member or other person selected by the employees to represent them the opportunity to accompany the officer during his physical inspection of the workplace or any part or parts thereof."

If they have the right – if the Minister has the right to authorize the inspector to allow the worker to designate anyone to go into an operation, I'm sure he has the right to authorize anyone to go in there himself. In fact, he could have sent myself or Paul in there under a Ministerial Order.

Q.  All right. The section that you read from, Mr. Burchell, 29(1), isn't that the very section that you thought about when you said, "Yes, two of the men could have signed Paul in"?

A.  Yes.

Q.  That's what that is about.

A.  Yes.

Q.  But that's not about the Minister or the Deputy Minister or Claude White doing anything of the kind on their own, is it?

A.  I think you know as well as I do that the Minister has that power and he could have enforced it if he wanted to. The Province of Nova Scotia own all the reserves in this Province, and they have the right to supervise them. And he could have done it. You know that as well as I do.

Q.  All right. Now let me put something to you, and if you find that startling or incorrect, you tell me so. Am I reading this correctly, that your evidence today as to the sequence of events when it comes to the inspection that you wanted done by Paul MacNeil is different from the sequence of events that you relate to the RCMP when you gave a statement to them way back in 1992?

A.  What do you mean by "the sequence of events to what I wanted Paul to do"?

Q.  Actually 1993, I shouldn't be unfair to you. March 2nd of – February 2nd of '93, do you recall giving a statement to the RCMP?

A.  Yes, I do.

Q.  And this was given to Constable Foran?

A.  Yeah.

Q.  You signed it?

A.  Yes.

Q.  All right, do you have Exhibit 121 in front of you that contains your statement under tab 3?

A.  Yes.

Q.  And if you read page three starting –

A.  Page?

Q.  Page three of your statement.

A.  Uh-huh.

Q.  Starting approximately in the middle, the sentence that starts with, "Paul made the contact with Westray, and they told him they would get back to him but they didn't." If you read from there, not quite to the end of that paragraph, I put it to you, Mr. Burchell, that there is quite a different sequence of events and, indeed, different responses given by the various parties that you said you approached in comparison to your evidence this morning. Do you want to take some time and read it?

A.  What was the question again?

Q.  I say I put it to you that there is a difference, a considerable difference in the sequence of events as portrayed in that statement when we compare that to your evidence this morning, and there's also a considerable difference in the nature of the responses that you told us you got from the various players as opposed to what you told the RCMP.

A.  I think basically that's the same thing that I testified to this morning. I don't see any difference there unless you have a different way of interpreting it.

Q.  Well, why don't we take a look at it? No, I don't think it's a question of interpretation.

A.  I think what you're saying – I think in this statement here, I stated I contacted Hughie, then Claude and today I said I contacted Claude and then Hughie, and Hughie told me to get ahold of Claude again, and I told him that I had already talked to Claude, you know. When I spoke with the RCMP and gave my statement to the RCMP, we didn't go into complete detail. And I just gave them an overall view of what we – what attempts we made. I gave you today a better, more detailed description of what I did.

Q.  I guess what we have today is more elaborate. I think it's more than that, though, Mr. Burchell. More than that you spoke to Hughie first as opposed to Claude. That's one thing, sure. And you're right about that, there is a difference there.

      But I think there's more to it. One of the things that's more to it is that in that statement to the RCMP, you gave no indication whatsoever that you talked to Hugh Macdonald or Claude White about safety concerns, that that is why you wanted Paul MacNeil in the mine. I put it to you in your RCMP statement you simply said that you wanted Paul in there because that would allow him to do a better job as a member of that committee that was rewriting the legislation. Quite a difference.

A.  Well –

Q.  Because now we're losing this whole idea of your communicating the safety concerns. Do you see that?

A.  No, I don't see it. When I gave my interview to the RCMP, it was concerning charges that were being filed against Roger Parry and Gerard[sic] Phillips. And I gave them a quick overview of what went on, and we didn't go into detail. I didn't have notes to refer back to on when I was here or there or what took place. And it was a short meeting and my understanding, in fact, I was told at that meeting with the RCMP that this had nothing to do with the Department of Mines' inspectors or Department of Labour inspectors or anything. They were more interested in how the drive went by.

      You got a detailed description today of what exactly happened. Whether you believe it or not, that's up to you. You know. I don't know what more I can tell you.

Q.  No, sure.

A.  That's the way it happened. And I'm willing to take a lie detector test, if your inspectors are.

Q.  Sure.

A.  And we'll see who told the truth.

Q.  What I'm really interested in is not so much the rhetoric but the precise point. I want to know what we ought to believe. That's why I'm asking these very questions. I want to believe that you're saying, and that's why I'm asking you some questions. So let me take the first specific question.

A.  Well, let me answer that. You want to know what to believe. I took an oath here this morning when I testified, and everything that I've told you this morning is the truth. I have sworn to it, and I'm not in the habit of swearing to something and then lying. Now, again, if you don't want to believe it, I can't help that. I'm just telling this Inquiry what happened factually in my own words. And that's the way it went down.

Q.  All right.

A.  Now you can have all of the reservations you want. I can't help that.

Q.  Sure. Were you asked to give an oath before you were interviewed by the RCMP?

A.  Ahh, I don't believe I was. I can't recall, to be honest with you, if I was or not. I'm really not sure of that.

Q.  Let's take a look at –

A.  I don't think I was. I think I was just asked to give them a statement.

Q.  You signed it, though?

A.  Yeah, I signed it.

Q.  Presumably because you were satisfied that what was reported was correct.

A.  For the purpose that they wanted it, yeah. For what they wanted it for.

Q.  Let's take some specifics, because it will make it a lot easier.

A.  Okay.

Q.  Let's take that sentence that starts with "Paul made the contact with Westray..." Do you have that?

A.  Pardon?

Q.  Do you have that in front of you?

A.  Yes, I do.

Q.  "Paul made the contact..."

A.  Yes.

Q.  Let's just read on for the rest of that sentence. "...and they told him they would get back to him, but they didn't." Now this is just the first sentence, and I'm just using that as an example. This morning, Mr. Burchell, you testified that Paul made the contact with Westray about going on a safety travel underground about the roof control, and eventually Karasiuk got back and said, "Not interested."

A.  Yeah.

Q.  Well, in your statement to the RCMP, you said they didn't get back to you. Here they came and said, "Not interested."

A.  Well, again, since – When I gave my statement to the RCMP, I didn't talk to Paul about it. I knew I was going to testify here today. I've talked to Paul MacNeil and we got – I made sure I got all my facts straight, all my dates straight as best as I could, so that I would be able to come here and give as best a detailed description of what happened. After talking with Paul, he told me that he contacted or Karasiuk eventually contacted him afterwards and said no, that they weren't interested.

Q.  In your evidence this morning, you continued immediately to say then you contacted Claude White and expressed concerns over safety "...that we wanted to accompany him on an inspection tour." And if we read on in your RCMP statement where we left off, you said, "Then I made contact with the Deputy Minister of Labour, Hugh Macdonald. I told him what we wanted to do, and we didn't get no response from Westray." Again, no response. But if you read that properly now, what you told Macdonald, because if you read the next part, we know that, had nothing to do with any safety considerations. Nothing at all.

MS. CAMPBELL  Excuse me, Mr. Commissioner, I feel I have to interject because Mr. Endres is neglecting the previous portion of Mr. Burchell's statement, and you have to read the whole thing in context. He says:

"Early February, I instructed Paul MacNeil, my health and safety officer, to contact Gerald Phillips and to offer an unbiased travel by us underground at Westray, and we would bring someone from Devco who had expertise in roof control and make recommendations on how to improve safety conditions at Westray."

COMMISSIONER  That's what he said this morning, too.

MS. CAMPBELL  And then when he refers to Hugh Macdonald, he said, "I told him what we wanted to do." And the way I read that, it would be the same as he instructed Paul MacNeil to do when he contacted Westray.

MR. ENDRES  Well, look, I put it in context, quite rightly, and the difference that's been missed already is, number one, that when Mr. Burchell is talking about Westray, yes, Paul MacNeil apparently went, that's what it says, to talk to Westray about safety concerns. And my simple point is that when Mr. Burchell talks to the RCMP, he doesn't talk about safety. He talks about Paul MacNeil going underground because that would make it easier for him or better for him to do his job as a member of that committee that was re-writing the legislation.

      And we get that point very categorically if we just read on. Because there's nothing mentioned there about safety whatsoever. You're saying to the RCMP, Mr. Burchell, "I asked him..." And I'll just read on where I left off:

"I asked him because of Paul being requested by the Department of Labour to participate in the re-drafting of the Coal Mines Regulation Act."

So that's the context.

A.  And I explained or elaborated on that this morning that that was my way of giving Hughie in the Department of Labour and Claude White in the Department of Labour their way out if they felt it was for any other reason. Hugh Macdonald –

COMMISSIONER  That's what I understood, frankly, from the evidence.

MR. BURCHELL  That's right. And Hughie Macdonald and Claude White and Albert McLean were well aware of my concerns at Westray and the safety concerns. They were well aware of it, and they were well aware of it when I contacted them after the drive was over. I made them perfectly well aware.

MR. ENDRES  This morning you told us in your evidence, Mr. Burchell, that you gave Claude and Hugh Macdonald a way out, and then you referred to this business about the committee.

A.  Yeah.

Q.  There's nothing like that in your RCMP statement, is there? Because if we read on, all that we see in your statement to the RCMP –

A.  Yeah, I think if you would read that statement and try not to make something out of it that isn't there, you'll see where I told Hughie Macdonald and Claude White that Paul should travel those mines because he was going to be on that committee. I mean –

Q.  All we have there, Mr. Burchell, it's for anyone to read –

A.  And, by the way, by the way, sir, this isn't verbatim. I really don't know – There may have been a lot of things added in this conversation. There was an RCMP officer writing this down longhand who had told me, "I won't be writing everything, but just to get the gist of the conversation of what you're saying." And I went over it, and basically we covered everything that went on through that drive, and I signed it. Now I may have told the RCMP that this was just a scam for me to get in there to see for myself what was going on. And he may have neglected to write that down.

      But everyone was aware I wanted to get in that mine to firsthand see the safety violations that were going on, and I was using the Coal Mines Regulation Act as a way to get in there. And I've never denied that.

Q.  All right. Would you agree with me to this extent that when we read the RCMP statement, for what it is worth then at page three, that there is no indication in that that you alerted Hugh Macdonald or Claude White about your safety concerns? That you really wanted Paul MacNeil down in the mine so that he could do his job better as a member of that committee?

A.  I agree with that point and if this statement were to be taken under oath and before the RCMP were asking me this at an Inquiry, I certainly would have went into a lot more detail on it so that everyone would be able to understand it, including the lawyers.

Q.  Is it conceivable then that your message to Macdonald and to Claude White was confused and that is perhaps why they responded as they did?

A.  No, it's not even remotely possible for them to have been confused on the message I was delivering to them. It was very clear and exact.

COMMISSIONER  I presume we will be hearing from Mr. Macdonald and Mr. White on just those very points, Mr. Endres, I would think. I would hope so, anyway.

MR. ENDRES  They're called to testify. So they'll be challenged on that, I'm quite sure.

MR. ENDRES  Let me move on to the second point –

COMMISSIONER  I don't like your term "challenged." They will be invited to give their version of that point.

MR. ENDRES  Fair enough.

COMMISSIONER  I don't think we're here to challenge anybody.

MR. ENDRES  Your meeting with Albert McLean, if you could help me with that a little bit. I think it is fair enough that you've given me as much as you can by way of details so that Mr. McLean can respond to what you're saying. So can you help me a little better as to the date when that meeting took place at the Heather Motel?

A.  It was around the first of November. It would have been, I don't know, maybe the 4th or 5th, or that area.

Q.  You don't know precisely?

A.  I couldn't say exactly.

Q.  Do you know the time of day?

A.  Yeah, it was in the evening. It would have been after – It would have been after five in the evening.

Q.  What time after five? Ten? Twelve?

A.  I didn't look at my watch. I couldn't tell you. It would have been after five. Because I had a meeting at five o'clock with the guys. I met with them at five. So it would have been after – It was during the meeting. So it would have been after five.

COMMISSIONER  Do I recall you saying you – They were at dinner when you spoke with them?

A.  Yes, they were.

COMMISSIONER  Yes, okay.

MR. ENDRES  So they were actually eating when you got there?

A.  They were actually eating fish and chips because they told me to try it, that it was really good.

Q.  And the only other person that was present was Donald MacLean?

A.  No, Dave MacLean.

Q.  I'm sorry, David MacLean.

A.  I might want to qualify that. Dave was eating fish and chips. He offered me some. I don't know what Albert was having.

COMMISSIONER  That's very significant.

MR. ENDRES  Did you make any notes of that meeting that you had at the Heather Motel?

A.  No, I didn't.

Q.  Did you write any memoranda, letters about it? Anything written down on that at all?

A.  No. If you heard my testimony earlier this morning, I didn't take many notes through that. I have a very good memory.

Q.  No, but, look, you mustn't misread me there. I'm just trying to get as many details with your assistance –

A.  I didn't take any notes.

Q.  So that they can respond.

A.  No, I didn't take – I did not take any notes of that meeting.

Q.  All right. Tell me the safety concerns that you recall you related to Albert McLean in the presence of David MacLean.

A.  The same ones that I testified to here this morning.

Q.  Well, tell me what they are so I know the complete list.

A.  Jump-starting equipment underground, why he was allowing it. Equipment underground that was not – that shouldn't be there, tractors and stuff like that. Welding underground without taking proper procedures. No stone dusting. Jump-starting. I had been told that there was gasoline-operated equipment brought underground, I brought that concern up to him. I was told that there was a non-permissible light switch or fuse box underground. I brought that up to him. I told him that I had been told that Angus MacNeil was now in a supervisory capacity underground, and I didn't feel Angus met the qualifications under the regulations to be in that position, and why did Albert give him the qualifications if he didn't meet them? And I think that basically pretty well covered it all.

Q.  Were you speaking loud enough so that, in your view, one can assume that David MacLean overhead whatever you said?

A.  I would suggest that the girl at the front desk out in the lobby heard what I was saying, because I was – the waitress, at one point, walked over and kind of gave me a look to keep it down a bit.

Q.  All right. So it's safe to assume that David heard it?

A.  Oh, he heard it.

Q.  All right. And what was your state of mind when you got there and the time you spent there?

A.  When I first arrived? It was – my state of mind was – I was upset to hear that this – these things were going on, but I was controlled. As the conversation progressed, I got very upset and became very loud and sometimes my language wasn't anything to be too proud of. There was some profanities used and what have you.

Q.  How long was the – did the meeting last?

A.  How long did it last? I don't know, maybe 10, 15 minutes.

Q.  Did you leave on good terms or did you storm –

A.  Not likely.

Q.  – out or – no?

A.  I stormed out.

Q.  You stormed away?

A.  I walked out, yes, very upset.

Q.  Where were the men that you had been talking to previously at that point?

A.  At that meeting previous to that?

Q.  Yeah, there was a meeting previously with men.

A.  Buddy Robinson, Larry James. I believe Robbie Doyle was there.

Q.  Okay. And that was at your hotel?

A.  Yeah.

Q.  And the men were still there when you returned?

A.  Some of them were; some of them had left.

Q.  And one thing that occurs to me is a simple question, why didn't you take one or the other men with you to that meeting?

A.  If I had of known how Albert was going to respond, I certainly would have. I can assure you of that. Because one of the things he asked me was – like, he told me that why weren't they coming to him with his concerns. I knew Albert long enough. I worked with him long enough that I never, in my wildest dreams, expected the meeting to be the way it turned out. I didn't think Albert would behave that way. But, you're right, if I had of known that he was going to act that way, I certainly would have asked one of them to come with me.

Q.  Do you recall – or tell me how much you do – whatever you do recall about Mr. McLean's response to you or responses. What did he say to you?

A.  What did I say?

Q.  What did he say?

A.  What did Albert say?

Q.  Yes.

A.  First of all, he asked me why they were coming to me with those – first of all, he said he didn't see any of those. "I don't see any of those problems." And he said, "Why aren't the guys coming to me with them?" And I said, "Albert, I'm coming to you with them and making you aware of it. The reason the guys won't is because you have a mine official on your arm every time you travel." I said, "Now I'm making you aware of those concerns. What you going to do about them?"

Q.  Anything else that he said to you?

A.  Basically that was the extent of it. He was very agitated, red as a beet, knew that he was in the wrong, and I was right and just didn't know how to respond to it, I would suggest.

Q.  Did David McLean saying anything?

A.  Not a word. David had a look about him. David looked at me. I knew David well. I worked with him in the pit, and I could tell by looking at David that he knew that I was really upset about what was going on and that it was factual. And he knew there was nothing he could do about it, and he just sat there and kept his mouth shut.

Q.  So am I saying this correct that Claude – Albert McLean was upset when you approached him?

A.  Oh, yeah. Well, he was upset. I don't think he was upset when I immediately approached him, but as the meeting – as the conversation started, I could see that he was getting very upset and agitated with me.

Q.  You were yelling at him?

A.  I would say that would be a fair assumption through the meeting when I saw that I was getting no response from him. Yes, I raised my voice.

Q.  And this is in a public place?

A.  Well, the restaurant at the Heather is –

Q.  Yes.

A.  – a public place, yes.

Q.  And you were using profanities?

A.  A few times, yeah.

Q.  If you were McLean, would you not be upset if somebody approached you that way?

A.  Yeah, if I were Albert McLean and not doing my job and somebody was letting everybody in the restaurant know that I wasn't doing my job, I'd be upset, yeah.

Q.  I don't think it helps much to editorialize, Mr. Burchell, but you keep it up anyway.

A.  I'm trying to give – I'm trying to explain to you as best I can, because you seem not to understand some of my comments. So I'm making sure you completely understand my actions –

Q.  Yes.

A.  – by giving you the exact things that I think. You asked me what I thought. That's how I think. If you don't want to hear the answers, don't ask the questions.

Q.  All right. You were in the midst of an organizing drive at that time?

A.  Pardon?

Q.  You were in the midst of an organizing drive right around that time?

A.  Yes, I was.

Q.  And you were the chief organizer?

A.  Yes, I was.

Q.  And that was well understood by everybody?

A.  Yes.

Q.  Including Albert?

A.  Yes.

Q.  Is it conceivable that McLean misinterpreted your approach as a union tactic in the course of a fledgling union drive?

A.  I doubt that very much. Albert McLean has known me for a long time, and Albert knows that I take safety very seriously. And Albert knows that I would – that if I needed his assistance in the organizing drive, I would have went about it a lot different than the way I approached it. I can assure you of that.

Q.  And your next meeting or your next discussion, I take it – it wasn't a meeting, was with Hugh Macdonald, the Deputy Minister of Labour?

A.  With –

Q.  Hugh –

A.  I didn't have a meeting with Hughie.

Q.  No, I say a discussion with Hugh Macdonald?

A.  I contacted – and, again, I may confuse you because I'm – I may not be exact on who I talked – I talked to both Hughie and Claude White the next day on that –

Q.  All right. Do you know –

A.  – on what went on.

Q.  – the date of that? Or was –

A.  Pardon?

Q.  Do you know the exact date on which you called –

A.  It would have been –

Q.  – and talked –

A.  – the day after the day that I met with Al – or that I met with Albert. And I had already – if I knew that date, then I would have been able to give you the date that I met with Albert. I told you what area that was in. And I contacted – I talked to Claude White, and I told Claude White about my concerns. And I told him about the electrical equipment underground and this, that, and all the other things.

      And I asked him what they were going to do about it, and Claude White told me that he would talk to Albert and, in the meantime, I should be – I should get in touch with John Smith.

      And then I talked – I also talked with – that same day with Hugh Macdonald, and I told Hugh Macdonald of the concerns I had. And the reason I called Hugh Macdonald was because Hughie Macdonald and I – I knew Hughie for quite a few years, and I felt that maybe I could get an ear to the Minister's office through Hughie so that somebody would take some actions before someone was killed at that mine.

Q.  You called them both by telephone, I take it?

A.  Yeah.

Q.  Well, is there something wrong with that, yes or no?

A.  Well, yes, I called him by telephone. I don't know –

Q.  Sure.

A.  – how else I would call them –

Q.  Yeah.

A.  – unless, you know –

Q.  And you were where at the time? Where were you?

A.  I was – would have been in New Glasgow at the time.

Q.  And where were they? Where did you call them?

A.  I would – they were in Halifax.

Q.  Both of them?

A.  Yeah.

Q.  And what – this or that or the other thing you told me about safety concerns, what exactly did you tell Hugh Macdonald about your safety concerns? Tell me exactly what it is?

A.  I told Hughie Macdonald the same things I told Albert McLean.

Q.  All right. So we can keep that list running. You went through the same –

A.  Yeah, that – that was a continuous list at Westray.

Q.  You're quite sure you told him exactly the same things you told –

A.  Yeah.

Q.  – Albert McLean?

A.  Yeah.

Q.  And you told Claude White exactly the same thing –

A.  Yeah.

Q.  – again?

A.  Yeah. They were all well aware of the concerns I had, the three parties.

Q.  Now you couldn't follow up, I take it, immediately by way of talking to John Smith because, if I remember correctly, you went on a trip?

A.  I was leaving for – I had to go to Washington, D.C.

Q.  And someone else followed up for you –

A.  Yes.

Q.  – to meet with John or talk to John Smith?

A.  I had asked Paul MacNeil to make a phone – to try to get ahold of John Smith and with concerns on what was going on with the electrical, non-permissible stuff at Westray.

      To be honest with you, I don't know if Paul ever did call him, because when I came back from Washington, I went right back up to Westray and I ended up having my own meetings there.

Q.  From when to when were you away in Washington? When did you leave; when did come back?

A.  I would have to check my notes.

Q.  How long were you gone?

A.  I would have to check my notes.

Q.  Did you ever follow up with Paul in any way, as to his discussion with John?

A.  I'm sure Paul and I discussed it. I know he didn't meet with John or he would have told me. But I'm sure we followed up on it because we worked in the same office daily. But –

Q.  And you met with John Smith after your trip from coming back from Washington?

A.  Yes.

Q.  And that had nothing to do with general safety concerns, I take it? That was about the –

A.  Well, I –

Q.  – Allan Mine?

A.  General safety? Yes, working near the old workings, to me, was a general safety concern, and that was the reason I went over there, yeah.

Q.  That was a poor way to put it. You were focused on the Allan Mine problem?

A.  At that particular time I was, yes.

Q.  With that meeting. And that meeting would have been when?

A.  Around – between the 10th, 11th, 12th of December because I had the guys from Lingan Mine with me at that time. So it would have been –

Q.  10th, 11th or 12th of what, January?

A.  December.

Q.  December?

A.  It would have been around that time.

Q.  So would that have been before you went to the U.S. or after? It must have been after.

A.  It was after I came back from the U.S.

Q.  And can you help me with this? I must say I lost it because I didn't have the exhibit until just very recently. Look at Exhibit 75 at tab 17, page 60, which we've been told is an excerpt from the calendar – an excerpt from the calendar of Kevin –

THE CLERK  Gillis.

MR. ENDRES  – Gillis.

A.  Yeah.

COMMISSIONER  Kevin Gillis. But there's no indication on it that it is Kevin Gillis. I'm accepting it at that for now, unless Mr. Gillis says otherwise. And he will be here next week, I believe, will he not?

MS. CAMPBELL  That's the plan, Mr. Commissioner.

COMMISSIONER  Yeah, thank you.

MR. ENDRES  And is that – on the December 11, is that, would you say, a documentation of that meeting?

A.  That would probably be around that time, yeah. That looks pretty close to the frame – time frame.

Q.  And at that meeting there were yourself?

A.  Yeah.

Q.  Mr. Warren?

A.  Yeah.

Q.  And MacNeil?

A.  Yeah.

Q.  And what happened to the other –

A.  They –

Q.  – gentlemen?

A.  You will have to ask whoever wrote this what happened to him. He was there. I mean, whether he neglected to write his name in or not, I don't know, but he was there.

Q.  So how close – just to help me with that – how –

COMMISSIONER  How many were supposed to be there from the union, just the three of you? Just the three of you?

A.  There was four of us there.

COMMISSIONER  Oh, I see. So it's the fourth name that was dropped. I see, yeah.

A.  Yeah. I don't see Charles Gillis' name there, but he was with us.

MR. ENDRES  And that's the same meeting, I take it, that involved John Smith?

A.  Yeah.

Q.  There's no mention there of John Smith. I don't see any, do you?

A.  No.

Q.  This looks like a meeting that you had with whoever wrote these notes, assuming it's Kevin Gillis.

A.  This doesn't look like any – referring to a meeting. It says:

"These fellows from the UMW looking for – had these fellows from the UMW looking for the location of old workings in the Foord seam."

And then it names who they were. It doesn't say that I met – that this person met with them. I was in – it just says what I was – that I was in the building doing it. And there were two people in the meeting, so whoever wrote this may have been the other individual.

Q.  All right. Is it much trouble for you to give me some of those dates, like, a trip to Washington?

A.  To give you some of those dates?

Q.  Can you find those and provide them? *

A.  Yeah, I can find the dates that I was in Washington. If you want to have –

COMMISSIONER  Could you –

A.  – ten-minute break, I can certainly find them.

COMMISSIONER  Well, could you just put –

MR. ENDRES  Anytime.

COMMISSIONER  – them together and send through to Ms. Campbell and she will distribute them?

A.  Sure.

COMMISSIONER  Okay, thank you.

A.  Sure.

COMMISSIONER  Within, you know, within the next few days.

A.  Sure.

COMMISSIONER  Yeah.

A.  No problem.

COMMISSIONER  Do you have E-mail down there?

A.  Yeah, we're getting advanced in Cape Breton now, boy.

COMMISSIONER  Okay.

A.  We got touchtone phones now.

COMMISSIONER  Ms. Campbell will give –

MR. ENDRES  Okay. And that's all –

COMMISSIONER  – you our E-mail address. Thank you.

MR. ENDRES  That's all I have before we –

COMMISSIONER  Okay. Thank you, Mr. Endres. Ms. Campbell?

MS. CAMPBELL  Just a couple of small points, Mr. Commissioner.



EXAMINATION BY MS. CAMPBELL

Q.  Based on what you're telling me, Mr. Burchell, you're giving us dates here today that are as best you can figure or recall?

A.  Yes, they are.

Q.  And you're estimates of specific meetings or discussions, your projection of dates, they could be off by a day here or a day there?

A.  They could be off by two or three days. I mean, it's – you have to appreciate, as I'm sure anybody in this room can, it's very difficult to remember what we were doing in 1991 –

Q.  Sure.

A.  – on a particular day. And there was a lot of things going on. I was having a lot of meetings, meeting with a lot of people, and I'm trying to be as close to the dates as I can.

Q.  Okay. I'm curious, the interview that you had with the RCMP, how long did that interview take?

A.  The interview itself was maybe a – I would say about three or four hours. I mean, we talked about a lot of things. We talked a lot of things.

Q.  So, obviously, what was contained in the three-page statement isn't representative of a three or four-hour discussion?

A.  No. It's an overview of the things that were discussed. We talked for three or four hours at the hotel in Sydney and then the officer said, "I'm going to write down an overview of what you told us and then have you look at it. And if you agree with that's basically what we discussed, would you mind signing it?" And, basically, that was an overview of what we talked over a three or four-hour period.

Q.  The discussion that you say you had at the Heather Motel with Albert McLean, with Dave MacLean present, do you think that there is – that Mr. McLean, Albert McLean, could have forgotten that that conversation took place?

A.  I'm sure he wished it did – didn't. But I can't see him forgetting it. You know, with all due respect, I would have a hard time understanding why he could not remember that conversation.

Q.  Now with respect to another comment you made, you testified that had you wanted Mr. McLean's assistance in organizing, you wouldn't –

A.  Yeah.

Q.  – have gone about it in that way.

A.  That's right.

Q.  Had you had assistance from Mr. McLean in the past with respect to organization drives prior to that time?

A.  We had assistance with him from Westray. We contacted Albert and asked him – when the – when we first started to go up there, we asked him to name some of the guys for us that were working with CMD to give me some names of people I could get ahold of.

Q.  And did he?

A.  Yeah.

Q.  And what about at other sites where you had unionized in other mines, had you had any assistance from Mr. McLean?

A.  No, we were already union there.

Q.  Okay. That's all I have, Mr. Commissioner.

COMMISSIONER  Thank you, Ms. Campbell.



EXAMINATION BY THE COMMISSIONER

Q.  Mr. Burchell, you mentioned, I think, in cross-examination by somebody of the mines that you visited with Mr. McLean during your safety visits. Most of those would be surface. There was only one other underground mine, was – that was Evans, eh?

A.  Yeah, the travels I had when it was at the Evans Mine and the mine over in Westville here.

Q.  Pioneer.

A.  Pioneer.

Q.  Yeah, but that was a surface mine?

A.  Yes.

Q.  Yeah.

A.  Yes.

Q.  Yeah, okay. I suppose the only other comment I have, I didn't mean to cast any aspersions on Cape Breton when I asked if you had an E-mail number. But the last time I was in your office in Glace Bay, Mr. MacArthur neglected to show me your computer room, so I didn't know what you had or not.

A.  We keep it under lock and key.

Q.  Oh, yeah. Okay, fair enough. Thank you very much.

A.  Thank you.

Q.  You may step down, sir.

A.  Thank you.

[WITNESS WITHDRAWS]



COMMISSIONER  That's our –

MS. CAMPBELL  That's it for today –

COMMISSIONER  The extent of our –

MS. CAMPBELL  – Mr. Commissioner.

COMMISSIONER  – witnesses for today? Well, we will – tomorrow morning at 9:30 then. Thank you.



INQUIRY ADJOURNED  (TIME: 3:33 p.m.)



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