I.B.E.W. Electrical Power Systems Construction Council of Ontario v. Ontario Hydro, 1983 CanLII 815

[1983] OLRB Rep. January 99

0746-82-M; I.B.E.W. Electrical Power Systems Construction Council of Ontario and International Brotherhood of Electrical Workers, Local 1788 Applicants, v. Ontario Hydro Respondent

BEFORE: George W. Adams, Q.C., Chairman and Board Members W. H. Wightman and F. S. Cooke.

APPEARANCES: S. B. D. Wahl, R. Tersigni and J. Mulhall for the applicants; and Ross Dunsmore and Bob McLellan for the respondent.

DECISION OF GEORGE W. ADAMS, Q.C.; January 24, 1983

1This matter involves the referral of a grievance to arbitration under section 124 of the Labour Relations Act.

2The applicants grieve the respondent's refusal to hire William Gilroy, a member of I.B.E.W. Local 1788 and its president. The grievance is filed under a collective agreement operative from May 1st, 1982 until April 30th, 1984. The details of the grievance are set out in a letter dated July 5th, 1982 sent on behalf of the applicants to Mr. Garth Leader, Manager of Construction for the respondent. The letter reads:

Attention: Mr. Garth Leader

Manager of Construction

Dear Sirs:

Re: Collective Agreement Between the Electrical Power Sys­tems Construction Association and the I.B.E.W. Electrical Power Systems Construction Council of Ontario effective from May 1, 1982 to April 30, 1984

Re: Refusal to Rehire William Gilroy

We wish to inform you that we have been retained on behalf of the I.B.E.W. Electrical Power Systems Construction Council of Ontario and the International Brotherhood of Electrical Workers Local 1788 (hereinafter collectively referred to as "the Union") with respect to the above-captioned grievance.

The union and the Electrical Power Systems Construction Association entered into a Collective Agreement effective from May 1, 1982 until April 30, 1984 ("the Collective Agreement"). The Collective Agreement is binding upon Ontario Hydro.

The Union, on its own behalf and on behalf of the Grievor, William Gilroy, herewith grieves that from on and after June 17, 1982 and continuing to date, Ontario Hydro has violated and continues to violate the Collective Agreement in that Ontario Hydro has failed or refused to:

(i) employ the Grievor, William Gilroy, being a reliable and competent Union member contrary to Section 7 — Employ­ment Practices/Hiring, paragraph 700C; and

(ii) hire the Grievor, William Gilroy, after three (3) work­ing days' notice to Ontario Hydro as a replacement for permit holders and/or travel card members currently in the employ of Ontario Hydro at the Pickering Generating Station, contrary to Section 7 — Employment Practices/Hiring, paragraph 701A (II),

in circumstances where the Grievor, William Gilroy, has been referred to the Pickering Generating Station of Ontario Hydro in accordance with the provisions of the Collective Agreement.

As a result of the aforementioned violation of the Collective Agreement, Ontario Hydro has failed or refused to pay proper wages, overtime, reporting pay, inclement weather pay, call-in pay and vacation and recognized holiday pay, travel, room and board allowance, contrary to Sections 8, 9, 10 and 11 and Local Union 1788 Appendix, Section 3 and 4 of the Collective Agreement.

RELIEF SOUGHT

1. A declaration that Ontario Hydro has violated the Collective Agreement as herein before set forth;

2. An Order requiring Ontario Hydro to employ and reinstate the Grievor, William Gilroy, with full seniority at the Pickering Generating Station;

3. Damages against Ontario Hydro for all consequential loss of wages, overtime, reporting pay, inclement weather pay, call-in pay, welfare, pension, supplementary unemployment benefits, Union Dues, vacation and recognized holiday pay, room and board and travel allowance in accordance with the Collective Agreement;

4. An Order that Ontario Hydro pay to the Union such fees and expenses, legal or otherwise, as it may have incurred by reason of the aforementioned violations of the Collective Agreement;

5. Such further and other relief as may be appropriate in the circumstances.

We wish to advise you that we have been instructed to refer this Grievance to Arbitration by the Ontario Labour Relations Board pursuant to Section 124 of the Labour Relations Act unless these matters are forthwith rectified.

Yours very truly,

KOSKIE AND MINSKY

3At the outset of the hearing differences arose between the parties over whether or not the conduct complained of constituted a discharge under the terms of the collective agreement and, if not a discharge, whether or not the collective agreement contemplated arbitral review of the hiring process. The principal provisions of the collective agreement pertaining to these issues include sections 1(A) (para.2), 2(D), 6(C), 7, 13(G), 1301 (B), and the appendix applicable to Ontario Hydro employees only (sections 1 and 1(B) ). They provide:

SECTION 1 PREAMBLE

A. WHEREAS the Union, as defined in the covering page of this Collective Agreement, has in its membership competent, skilled and qualified journeymen and apprentices to perform work coming within the trade and craft jurisdiction;

SECTION 2 SCOPE OF AGREEMENT

D. The term "employee" shall include all employees of the Employ­ers in the classifications as set out in Item B above.

SECTION 6 EMPLOYEE DESIGNATION

C. The selection and retention of foremen and subforemen will be the responsibility of the employers. When making appointments to the foreman and subforeman level, the Employers will give consideration to those journeymen they presently employ.

SECTION 7 EMPLOYMENT PRACTICES/HIRING

A. For purposes of this Section, a geographic area will be estab­lished for each Project in accordance with the geographic jurisdiction established in Section 200, Subsection 202, of this Agreement.

B. An office will be established by EPSCA for each Project. A purpose of this office will be to coordinate employment as specified in this Section.

C. EPSCA and the Union will exchange the names of their repre­sentatives in each of the areas described in Item A who will be responsible for co-operating in the referral and employment of reliable and competent Union members.

D. EPSCA will notify the Union of future manpower requirements for all employees coming within the scope of this Agreement.

E. The Union recognizes that where key tradesmen are required, the number will be jointly determined at a prejob conference provided for in Section 4, Subsection 400, of this Agreement.

701 Hiring and Layoff

A. The employment and layoff of tradesmen and apprentices, excluding key tradesmen, shall be carried out on the following basis and sequence:

(i) The Employer agrees to hire and employ only members of the International Brotherhood of Electrical Workers on all electrical work. The EPSCA office will request the appro­priate Local Union office for certified tradesmen and apprentices required and no one will be employed unless they are in possession of a clearance card from the Local Union office.

(ii) If the Local Union is unable to furnish certified Local Union or travel card members to the Employer within three (3) working days of the time the Local Union office receives the request for tradesmen (excepting Saturdays, Sundays and Holidays), the Employer shall be afforded the right to employ certified tradesmen (travel card members or permit holders) as are available. The Local Union will issue clearance cards to tradesmen hired in these circum­stances. All employees shall register with the EPSCA office prior to commencing work. Travel card members may be replaced by Local Union members and permit holders may be replaced by Local Union members or travel card members who maintain a regular residence in the geographic area of the project after three (3) working days' notice to the Employer, but in no case until a tradesman has worked a minimum of one week.

B. In all cases of layoff, except as noted in the Local Union 1788 Appendix, the Employer shall layoff its employees in the follow­ing sequence:

(i) permit holders;

(ii) travel card members;

(iii)Local Union members.

C. When possible, the Employer shall notify the Local Union Office three (3) days prior to layoff.

SECTION 13

G. Alleged unjustified termination, discharge, suspension or disci­plinary action may be grieved beginning at First Step.

SECTION 1301

B. The arbitration board shall have no power to add to or subtract from or modify any of the terms of this Agreement. The arbitration board shall not substitute its discretion for that of the parties except where the board determines that an employee has been discharged or otherwise disciplined for cause when this Agreement does not contain a specific penalty for the infraction that is the subject matter of the arbitration. In such cases, the arbitration board may substitute such other penalty for the discharge or discipline as to the arbitration board seems just and reasonable in all circumstances. The arbitration board shall not exercise any responsibility or function of the parties. The arbitration board shall not deal with any matter not contained in the original statement of grievance filed by the party referring the matter to arbitration.

LOCAL UNION 1788 APPENDIX

Applicable to

Ontario Hydro Employees Only

SECTION 1 UNION SECURITY

A. All employees falling under the jurisdiction of Local Union 1788 as noted in section 2 — Scope of Agreement, Subsection

202 — Geographic Jurisdiction, of the master portion of this Agreement will be members or will apply for and secure membership in Local Union 1788 within fifteen (15) calendar days, and will maintain such membership in good standing in the Union as a condition of employment.

B. A checkoff system of Local Union 1788 initiation fees and dues will be made operative for the lifetime of this Agreement. The Employer will supply full checkoff lists of employees subject to checkoff at regular intervals, and agrees to collect monthly for the Union dues and initiation fees payable to Local Union 1788. The Empoyer will transmit the monies so collected to the designated officials of Local Union 1788. Local Union 1788 will indemnify the Employer for any liability arising from the deduction of initiation fees and dues as requested by Local Union 1788.

C. Any changes in initiation fees or dues will be referred to the Employer through the Accredited Union Representative of Local Union 1788 before such changes are put into effect.

D. The Employer will arrange for each workman falling under the jurisdiction of Local Union 1788, as noted in Section 2 — Scope of Agreement, Subsection 202 — Geographic Jurisdiction, of the master portion of this Agreement who is covered by this Agreement, to sign a Local Union 1788 dues checkoff authoriza­tion at the time he is employed.

E. Local Union 1788 is required to make arrangements with new employees for them to join Local Union 1788 as provided for in Subsection 100, Item A, of this Section. The Employers will checkoff initiation fees on receipt from Local Union 1788 of such authorization signed by the employee.

SECTION 2 SENIORITY

B. In cases involving reduction of staff, an employee will not lose his service credit unless he has a break in service of greater than six (6) months. An employee terminated for any of the following reasons will not lose his service credit unless he has a break in service of greater than three (3) months:

(i) discharge for cause;

(ii) voluntary termination;

(iii) layoff necessitated by refusal to accept a transfer resulting from the implementation of the seniority clause.

4In the circumstances the Board decided to reserve its decision on the characterization of the complaint and the location of the legal burden of proof. The Board further directed the applicant to proceed first. The grievor was initiated into the applicant union on May 12th, 1967 and has never been suspended or expelled from membership. He was employed with Ontario Hydro at the following locations and dates involved.

November 23rd/66 to October l8th/67 - Lakeview GS, terminated for cause - fighting.

January 8th/68 to February 23rd/68 - Eastern Construction Zone (Peterborough) reduction of staff.

May 28th/68 to December l7th/68 - Lakeview GS - reduction of staff.

December 3lst/68 to July Sth/72 - Pickering "A" - voluntarily terminated.

September 8th/72 to July 2Sth/73 - Pickering "A" - reduction of staff.

November 2nd/73 to April lst/74- Pickering "A" and Lakeview- voluntarily terminated.

May/74 to July l6th/74- Nanticoke GS - voluntarily terminated.

April 23rd/75 to June llth/75 - Lakeview GS - voluntarily termi­nated.

September 25th/78 to January l2th/79- Southern Construction Zone (Toronto) -reduction of staff.

May 22nd/79 to August l3th/79 - Southern Construction Zone (Toronto) - reduction of staff.

February 4th/80 to July l3th/81 -Pickering "B"- voluntarily terminated.

October 18/81 to February Sth/82 - Pickering "B" - voluntarily terminated.

5His last period of employment commencing October 19th, 1982 was as a result of being referred to replace a travel card member pursuant to section 701 (A)(ii).

6Up until July of 1982 travel card members were working at Pickering "B" and in mid-June of 1982 the grievor was referred to that site pursuant to the collective agreement to replace again a travel card member. Joseph Mulhall, Business Agent and Financial Secretary for Local 1788 advised Jim Ella, Assistant Personnel Manager, at the respondent's Pickering location that Gilroy would be reporting for work on June 17th, 1982. The referral slip issued by Local 1788 is dated June 15th, 1982. However, Shawn O'Dwyer, an assistant in the Personnel Department at Pickering indicated that Mr. Gilroy was not suitable for employment and Mr. Gilroy was handed the following letter over the signature of G.T. Leader, Manager of Construction, on reporting to the Pickering "B" construction site for work. The letter reads:

June 17, 1982

Dear Mr. Gilroy:

This will confirm my instructions to Mr. J. MuIhall, Business Manager of the I.B.E.W. Local Union 1788, that you will not be hired at Pickering G.S. "B". You are unsuitable for employment.

Yours truly,

7Mr. Gilroy was subsequently referred to the Bruce Generating Station Project to bump a travel card electrician but was again refused employment. The employer's position was communicated to Mr. Mulhall over the signature of D.J. Laut, Project Personnel Manager, Bruce G.S., in a letter dated July 9th, 1982 which reads:

Dear Mr. Mulhall:

On July 8, 1982, you called me to tell me that Local 1788 planned to refer Mr. W. Gilroy to the Bruce G.S. project to bump out a travel card electrician.

This is to confirm my telephone call to you today in which I advised you not to refer Mr. Gilroy to this project as he is considered unsuitable for employment.

Yours truly,

8Hugh Gillis, Chief Steward at the Pickering Project for Local 1788, testified that he was unaware of any "no-rehire" being placed against Gilroy's name prior to the respondent refusing to rehire him in June. The employer's "no-rehire" policy was communicated to the union by letter dated February 5, 1979 over the signature of G.A. Pickell, Manager, Construction Labour Relations. While the collective agreement then in operation contained materially different wording at the time, the letter is worth reproducing. It reads:

Mr. Hank Schueler

Business Manager, Financial Secretary

Local Union 1788

International Brotherhood of Electrical Workers

3500 Danforth Avenue

Scarborough, Ontario

M1L lEl

Dear Mr. Schueler:

Sorry for the long delay in responding to your letter, however, the delay was intentional. I knew that Ontario Hydro's policy with regard to no-rehire was under review, and I felt that I should wait until that review was completed before responding.

As I indicated to you at our meeting of November 16, 1978, I agree with the position taken by Mr. O'Neill. Based on our collective agreement, I do not believe that a no-rehire letter is subject to grievance, however I also realize that such a letter has serious implications and, therefore, is of major concern to both you and your membership.

Just recently, Lines and Stations and Generation Projects collec­tively established the following policy regarding no-rehire letters which will eliminate most, if not all of your concerns:

1. In the case of a reduction of staff, an employee will not be given a no-rehire status. If an employee is inadequate to the extent that the Employer no longer wants him on the payroll, the employee should be discharged, not laid off.

2. In the case of voluntary termination, a no-rehire should not be utilized. If an employee who voluntarily terminates his employ­ment has been viewed as lacking in skill or having a poor attitude, etc., his weaknesses should be pointed out to him in writing at the time of his termination. He should be made aware that if he is subsequently rehired his tenure will be contingent upon an improvement in these areas.

3. A no re-hire status may be placed on a former employee in the case of discharge for cause. This status should be clearly pointed out in writing to the employee and his union representative at the time of discharge.

I suggest we allow an appropriate period of time for this policy to be tested and then review its effectiveness at a Standing Committee meeting.

Yours truly,

9Following the referral to the Bruce GS Project, Mr. Mulhall was also advised that the respondent would not employ the grievor at the Sir Adam Beck Power Plant, Cherry Wood Transformer Station and Strachan Avenue Transformer Station. Mulhall testified that he currently has no other member available to work for Local 1788 except Mr. Gilroy. Where Local 1788 has no other members to refer, Mr. Mulhall honours manpower requests of the respondent by recourse to the out of work lists of other locals of I.B.E.W. in the vicinity. Under the Transmission Systems collective agreement, Local 1788 mails the referral slip to the appropriate (Electrical Power Systems Construction Association) EPSCA representative who is notified of the people being sent. At Pickering, the person referred obtains a referral slip from Local 1788's union hall before going to work. However, under either collective agreement, all referral slips are issued by Local 1788 in that it has a province-wide jurisdiction in its relationship with the respondent and EPSCA.

10Adelaide Electric Company Limited is a subcontractor to the respondent on the Bruce "B" site performing construction work in relation to the central maintenance building at the Bruce Nuclear Power Development. The central maintenance building is outside the inner security perimeter established for the Bruce Generating Station "A". It is also outside the security perimeter for Bruce "B". The entire site embraces 2300 acres which is fenced off. No security forces surveil the outside fence. Inner security perimeters are established for Bruce "A", Bruce "B", Bruce Heavy Water, and Douglas Point. Each of these perimeters have gates which are manned by security officers. At Bruce "B" no pass is required and guards simply check for hard hats as employees walk through the open gates. At Bruce "B" a pass is required and at Douglas Point and the Heavy Water site entry requires a plastic identification card which is to be worn at all times. To work on the central maintenance building, a plastic identification card would not be required.

11Thomas McKee, a personnel officer at Bruce Nuclear Power Development observed Mr. Gilroy signing employment forms on August 10th, 1982 at the Bruce site pertaining to a referral to Adelaide Electric. After Mr. McKee had left the office and Mr. McKee had discovered who he was, McKee asked Adelaide Electric to refer him back to the EPSCA office. When Mr. Gilroy returned to the office, Mr. McKee told him he was not considered suitable for employment on an Ontario Hydro site. Mr. McKee knew of no other incident since 1981 when EPSCA had taken the position that a person should not be hired by "an outside contractor". Mr. McKee testified that he was aware of Gilroy's name and that a grievance over his employment had been filed. He therefore checked with a number of people in Labour Relations and was advised that the wisest thing to do was to put down in writing that Gilroy was unsuitable for employment. He testified that prior to Gilroy actually appearing there had been inter-divisional meetings and informational exchanges involving Gilroy's situation. He testified that Bruce "B" had decided, as a result of this information, not to employ Gilroy if he was referred to work at the Bruce location.

12From the evidence it is fair to conclude that in all the refusals, the primary justification for the refusal to hire the grievor was as outlined by Garth Leader, Manager of Construction at Pickering "B" Generating Station. Pickering "A" Generat­ing Station is a four unit nuclear generating station. Each unit has a capacity of five hundred megawatts. Pickering "B" is another four unit electrical generating station which is under construction. Pickering "A" has set many world-wide records for the efficient generation of electricity. It costs $750 million to build and it is estimated that Pickering "B" will cost $3 billion dollars by completion. The first Pickering "B" unit started up in October of 1982. Another unit should become active in the fall of 1983. A considerable amount of technical information pertaining to the site was filed with the Board and interpreted by Mr. Leader. The nerve centre to the site is the control room. Security arrangements were also described by Mr. Leader. It was his opinion that once on the construction site, an employee has free and easy access to any place under construction. There is a guard between the operational site and the construction site, but the primary concern of that guard would appear to be the monitoring of radio activity and exposure to radiation. Employees must stop and pick up a badge which, in effect monitors exposure to radiation. Provided one has a yellow hard hat on, access to the construction site appears relatively easy to achieve. Only a visual check of workers occur as they walk through the gate.

13Leader testified that he made the decision not to rehire Gilroy. Prior to Gilroy presenting himself Leader had received the following memorandum from the respond­ent's Security Department dated February 25, 1982 together with attached newspaper articles also reproduced below:

Memorandum to ALL SECURITY OFFICERS

BUSINESS ADMINISTRATORS/SUPERVISORS

ALL THERMAL STATIONS AND NPD-GS

Location or Dept

Subject Ontario Hydro Employee Voluntarily Terminated

The following is submitted for your information.

On Friday, February 5, 1982, William Gilroy, age 36 years, DOB February 27, 1945, SIN #432 704 575, 82 Ventury Drive, St. Catharines, Ontario, voluntarily terminated his employment with Ontario Hydro at Pickering NGS "B", Construction.

He was employed there as an electrician, and previously worked on construction at Lakeview GS, Nanticoke GS, Southern Zone Con­struction, Pickering NGS "A" and possibly other locations. Gilroy is currently President of IBEW, Local 1788.

During the weekend of February 6 and 7, 1982, Gilroy was one of five Irish Nationals arrested while crossing the border from Canada into the United States. Two other Canadians arrested were William O'Neill, age 26, and James Kelly, age 42, both from St. Catharines, Ontario. The three Irish Nationals were ordered to be temporarily removed from the U.S. without an immigration hearing. Gilroy, O'Neill and Kelly, all landed immigrants, were returned to Canada, after posting bail of $5,000 to appear in the United States on charges under the immigration law of aiding and abetting to illegally enter the country, using false statements, plus criminal charges.

Immigration officials said after the arrests, they seized a shopping list of guns and ammunition to be bought in the United States. All charges occurred outside of Canada.

In a subsequent U.S. federal district court hearing, Gilroy admitted that he had been sentenced to two years in 1975, after pleading guilty to conspiracy to export arms to the Irish Republican Army. Gilroy served his sentence from June, 1975, until his release in October, 1976.

Attached are photocopies of four newspaper clippings taken from the Globe and Mail, The Toronto Sun and Toronto Star.

You may wish to discuss this with your staffing officers.

For further details, contact the Criminal Investigation Section, Security Division.

Story ties Irish national to Mountbatten murder

BUFFALO, N.Y. (UPI-Special) — An Irish national being detained at 1-lainilton-Wentworth Detention centre for deportation from Canada has been under investiga­tion by British authorities for the 1979 killing of Lord Mountbatten, a Buffalo newspaper reported yesterday.

Both Edward Howell, who was ordered deported from Canada on Friday, and Desmond Ellis have been investigated in connection with the killing.

Both were- charged with trying to enter the U.S. illegally last month.

Howell is being held until his traveling papers are arranged, an immigration official said last night.

Ellis is still in Erie County Correctional Institute seeking political asylum.

The Buffalo News said classified documents based on reports from the Royal Canadian Mounted Police and British authorities described Ellis and Howell, both of Belfast, Northern Ireland, as primary suspects. The News said Ellis, 29, was described in the docurnents as.the possible electronics expert and Howell, 35, as the "brains" behind the assassination of Lord Mounthatten, 79, the cousin of Queen Elizabeth and uncle of Prince Philip. The World War II hero was killed Aug. 27, 1979, while boating at his summer residence on the Irish coast. Authorities said his yacht was hit by an explosion touched off by an Irish Republican Army bomb. Ellis reportedly has ties with the IRA and is wanted as a suspect in several IRA bombings, the newspaper said. Ellis and Howell were two of the five people charged with illegally attempting to enter the U.S. from Canada Feb.6. The other three are Irish natives, living in St. Catharines. Author­ities said the five had intended to purchase arms and take them back to Northern Ire­land.

EX-METRO MAN HAS PAST CONVICTION

Four in U.S. gun rap get bail

By STEVE PAYNE

Staff Writer

One of five Irish nationals arrested in the U.S. on a suspected arms buying mission is a former Metro resident who was jailed for two years in 1975 for conspiracy to export guns.

William Gilroy, 37, now of St. Catharines, was one of four men who pleaded guilty In 1975 to conspiring, to export guns between Jan. 1, 1973, and July 1, 1974.

In court,' it was said the weapons were going to Northern Ireland. Gilroy lived In Don Mills then.

He is one or three Irish nationals ordered tempo­rarily removed from the U.S. this month without an immigration hearing. The three are back in Canada.

The three, all landed lmin'ig~ant5, relurnec₄ after each posting-bail o

$5,000 to appear in the U.S. on a date to be fixed on charges under the immi­gration law or aiding and abetting to illegally enter the country and using false documents, plus criminal charges or conspiring to enter the U.S. illegally.

The two others who

returned to Canada are

William O'Neill, 26, and

James Kelly 42, both of St. Catharines.

The remaining two who

face similar charges, are

residents of Belfast, Northern Ireland. One, Edward Howell, 35, has posted ball of $10,000 and hopes to return to Canada today. Desmond Ellis, 29, failed to post hail of $25,000 and was detained.

Authorities say Ellis is sought in Ireland under an alias as a fugitive who jumped bail after being charged with possession of an explosive device.

Officials believe the five arrested Feb. 6 as they attempted to enter the US. in cars on the Whirlpool Bridge in Lewiston, NY., intended to buy weapons to take to Northern Ireland.

During the 1975 court case, it was heard that Gilroy was one of the leaders of a group that tried to send 15 semi-auto­matic military rifle and a machinegun to Ireland via the U.S.

The Toronto Sun, Monday February 22. 1982

U.S arrests

IRA suspects

at border

From Associated Press and Retur

BUFFALO₈ N.Y. — Five people were arrested during the weekend trying to enter the United States illegally from Canada to produce arms for the outlawed Irish Republican Army, an Immigration official said yesterday.

The arrests, reported by Benedict Ferro,, head of the local Immigration and Naturalization Service office came less than three weeks after two members of Sinn Fein, the legal politi­cal arm of the IRA, were seized while trying to enter the United States from Canada.

Three of the five people arrested were Canadian and two were from Belfast, 1,1-. Ferro said. They were later identified as Michael Weir. 36-, and Edward Howell, 35, both of Bel­fast; and William O'Neill, 23, James Kelly, 42, and all of SL Catharine's.

Mr. Ferro said the arrests occurred 'Late Saturday going into Sunday on the Whirlpool Bridge at Niagara Falls. He said the five were arrested In two cars, 20 minutes apart, and $8,000.00 to $10, 000.00 was confiscated..

No charges were filed immediately and no hearing was scheduled,. he said.

We have substantial evidence that what we seized showed their purpose was to come down and purchase arms and ammunition in the United States," Mr. Ferri said..

Mr. Ferro said the five were taken to the Erie correctional facility at nearby Alden and held pending: fur­ther legal action. Re added that one

the Canadians bad previously been arrested on arms smuggling charges filed by US. Alcohol, Tobacco and Firearms agents.

On Jan 21, immigration officials arrested Danny Morrison. 23,. a publi­cist for the Sinn Feirt, and Owen Car­ron, who was elected to the British

GLOBE AND MAIL

FEBRUARY 8, 1982

Parliament to succeed the late IRA hunger striker Bobby Sands.

Last week, Mr. Ferro said a 'pipe. line" to sneak Irish nationalists into the United States had been broken with the arrests, of Mr. Canon and Mr.. Morrison.

"We have exposed the apparatus

and the individuals, and It Won't easi­ly be put back together." Mr. Ferro said.

Meanwhile In Belfast. bombs de­stroyed two hotels and a. club In Northern Ireland yesterday In what authorities believe was a show of strength by the IRA..

The buildings were emptied before the blasts and there were no injuries.

5 arrested at border threaten fast

Toronto Star special

BUFFALO— Two lrishmen and three Canadians accused of trying to enter the United States illegally say they will start a graduated hunger strike today to protest their treat­ment in custody.

The five men, who were indicted yesterday, are believed, to have been planning to buy arms. in the United States for the Irish Republican Army. One of the Canadians, William Gilroy of St. Catharines, was sentenced in Toronto in 1975 to two years in jail for conspiring to export arms to the IRA.

The other accused are Edward Howell of Belfast: Desmond Ellis of Dublin; and William O'Neil and James KeIly both of ST. Catharines and formerly of Belfast. Gilroy also came from Belfast.

Joined later

The men say they face up to 21 hours a day In solitary confinement in the Erie County Correctional Fa­cility in the suburb of Malden.

Howell said in a statement yester­day that he will go on a hunger strike today in protest. If the fast contin­ues, he will be joined on Monday by Ellis, and then by each of the three Canadians at five-day intervals.

The six-count indictment charges all five men with conspiracy to smuggle Ellis and Howell into the United States Feb. 6. As well, O'Neil, Kelly and Gilroy were charged with two counts each of smuggling aliens. Ellis was also charged with making false statements and presenting false documents, and Howell was charged with making false statements.

The five also were being held by the Immigration and Naturalization Service on civil charges of attempted illegal entry, making false state­ments and alien smuggling.

Immigration officials said after the arrest they had seized a shopping list of suns and ammunition to be bought in the United States.

Immigration officials say the man they arrested as Michael Weir actu­ally is Ellis, who is wanted in Ireland on charges of possessing explosives.

Gilrov admitted yesterday in federal district court that he had been sentenced to jail in l975 after pleading guilty to conspiracy to export arms.

He and Joseph Nyles, of Garden City, Mich. were found then to be the leaders of a group that tried to send 15 semi-automatic military rifles and a machine-gun to Ireland via the the United States in June, 1974.

Nvles was stopped trying to cross into the United States from Windsor with boxes of arms hidden in his car. That arrest led to six more and to the discovery of a large cache, of weapons bound for Ireland..

The arsenal totaled more than 50 guns including machine-guns.

14Leader testified that his subordinates were advised by the union hail that the grievor would be referred to work on June 17th. The respondent was given three days' notice of this proposed assignment and Mr. Leader thereupon began to gather more data. Part of this data was another memorandum from Security over the signature of G. Kileg, Director of Security with the above newspaper articles again attached. The June 17th, 1982 memorandum reads:

Memorandum To MR. G.T. LEADER

Manager of Construction

Location or Dept Pickering NGS "B"

Subject William Gilroy — Electrician

We understand that the above person, who has been employed by Ontario Hydro previously, is seeking to return to work at Pickering NGS "B" Construction Site. Attached is a copy of his work record with Ontario Hydro.

We strongly recommend that this person not be employed at Pickering "B" site as we consider him an unsuitable employee and a security risk.

In 1975 Mr. Gilroy was charged and convicted of conspiracy to export arms to Ireland via the USA. The attached news clippings confirm this. A transcript of the trial has been requested.

From June 27, 1975, to October 25, 1976, Mr. Gilroy spent in the Mimico correctional centre. His original sentence was two years less one day. He was refused temporary absence privi­leges.

On February 6, 1982, the day after he voluntarily terminated his work at Pickering "B", he and four others were charged by US Immigration authorities with conspiracy to smuggle aliens into the USA. We understand that William Gilroy, William O'Neill and James Kelly are landed immigrants of Irish de­scent. The other two, Edward Howell and Desmond Ellis, are Irish nationals.

In addition, Gilroy, O'Neill and Kelly were charged with two counts each of smuggling aliens (i.e. the Irish nationals). Gilroy, O'Neill and Kelly were returned to Canada after posting bail of $5,000.00 to appear in Court in the US on a date to be set. As of this date these charges are still pending in the USA and no definite court date has been set. We are informed that the US authorities have not dropped the charges and intend to proceed with court action in all cases concerning Gilroy, O'Neill and Kelly.

Howell had posted bail in the US, was returned to Canada and was ordered deported. He escaped from Canadian authorities at the Paris airport and turned himself in at Dublin, Southern Ireland. Ellis is apparently still in Erie County correctional institute seeking political asylum.

Inasmuch as Mr. Gilroy has been found in the company of persons suspected of an arms-buying mission for the Irish Republican Army and has been charged by US authorities, it appears that he may be continuing in unlawful activities, similar to those he was convicted of previously in 1975. Mr. Gilroy has not demonstrated to his former employer and the public that he is refraining from questionable and perhaps unlawful activities. As a result, the subject person should not be employed in a regular or temporary position with Ontario Hydro.

Ensuring the suitability of our employees, including reliability, is one of the measures taken by Ontario Hydro to provide effective security. This is even more important in work at our nuclear facilities.

15The June 17th memorandum constituted written confirmation of what Mr. Leader was advised by telephone prior to sending a telegram to Mr. Mulhall advising him not to refer William Gilroy to the Pickering GS "B" in that "he is unsuitable for employment".

16It was established that Mr. Gilroy served a jail sentence at Mimico Correc­tional Centre from June 27th, 1975 to October 25th, 1976. A true copy of an indictment in the County Court Judges, Criminal Court for the Judicial District of York pertaining to the case of The Queen v. William Gilroy et al was filed with the Board. The document reveals that the grievor was found guilty of Count 1 which alleged that Gilroy together with others between the 1st day of January 1973 and the 1st day of July 1974 at the Municipality of Metropolitan Toronto and elsewhere in Canada "unlawfully did, conspire and agree together, the one with the other or others of them and with person or persons unknown to commit an indictable offence to Wit: export or attempt to export from Canada goods included in an export control list, contrary to s.13 of the Export and Import Permit's Act, thereby committing an indictable offence contrary to s.423(l)(d) of the Criminal Code of Canada". The transcript of the proceedings revealed that the goods in question were 15 semi-automatic military rifles which arms were intended to be sent to Ireland by way of the United States. Others involved included a Joseph Myles, an executive officer of the Irish Northern Aid, an American organization having links with the outlawed Irish Republican Army. Mr. Myles and Mr. Gilroy received the lengthiest sentences, i.e. two years less a day, in that they were viewed as the moving forces in the conspiracy. Both men had pleaded guilty to Count 1 of the indictment.

17Leader testified that he had a conversation with Mr. Mulhall on June 16th, 1982 and was advised by Mulhall that the new charges against Gilroy and others referred to in the two memoranda above and relating to an incident at the U.S. border on February 6th, 1982 "had been dropped". Leader therefore went back to the respondent's Security Department to verify this fact and was advised that the charges were still outstanding. It was in this regard he was sent the memorandum of June 17th, 1982. The Security Department subsequently attempted to obtain copies of the formal charges against Gilroy and therefore copies of the charges were sent to Leader some time after his actual refusal to rehire the grievor.

18A copy of a True Bill for grand jury charges in the District Court of the United States for the Western District of New York in the case of United States of America v. Desmond Ellis, Edward Howell, William O'Neill, William Gilroy and James Kelly was filed with the Board and took the following form:

In the District Court of the United States

For the Western District of New York

THE UNITED STATES OF AMERICA NOVEMBER 1981 SESSION

• vs - CR 82 OOO27

DESMOND ELLIS, EDWARD HOWELL Title 18, United WILLIAM O'NEILL, WILLIAM GILROY Vio. States Code, AND JAMES KELLY Sections 371, 1544, 1001 and 2; Title 8, United States Code, Section 1324

COUNT I

The Grand Jury Charges:

From on or about the 5th day of February, 1982, and continuing through the 6th day of February, 1982, in the Western District of New York and elsewhere, the defendants, DESMOND ELLIS, EDWARD HOWELL, WILLIAM O'NEILL, WILLIAM GILROY and JAMES KELLY and others to this Grand Jury unknown, unlawfully, willfully and knowingly did combine, conspire and agree together to commit offenses against the United States, to wit, to violate Title 8, United States Code, Section 1324, by bringing into the United States, DESMOND ELLIS and EDWARD HOWELL, aliens not lawfully entitled to enter or reside within the United States; all in violation of Title 18, United States Code, Section 371.

OVERT ACTS

In furtherance of the conspiracy and to effect the objects thereof, the defendants at the times hereinafter mentioned, committed the following overt acts:

1. On or about February 6, 1982, defendant WILLIAM GILROY loaned his automobile to the defendant, WILLIAM O'NEILL.

2. On or about February 6, 1982, defendant WILLIAM O'NEILL drove defendants DESMOND ELLIS and EDWARD HOWELL across the Whirlpool Bridge from Niagara Falls, Ontario to Niagara Falls, New York in the automo­bile of defendant WILLIAM GILROY.

3. On or about February 6, 1982, at the Whirlpool Bridge,Niagara Falls, New York, defendant DESMOND ELLIS presented to an Immigration inspector a Republic of Ireland passport in the name of

Michael Gilinore and claimed to be Michael Gilmore.

4. On or about February 6, 1982, at the Whirlpool Bridge, Niagara Falls, New York, the defendant, EDWARD HOWELL, presented to an Immigration inspector a Republic of Ireland passport in the name of

William McKee and claimed to be William McKee.

5. On or about February 6, 1982, defendant JAMES KELLY drove defendant WILLIAM GILROY across the Whirlpool Bridge from Niagara Falls, Ontario to Niagara Falls, New York.

6. On or about February 6, 1982, defendants JAMES KELLY and WILLIAM GILROY had in their possession the belongings of defendants DESMOND ELLIS and EDWARD HOWELL.

7. On or about February 6, 1982, defendant DESMOND ELLIS told an investigator of the Immigration and Naturalization Service that he was Michael Weir.

8. On or about February 6, 1982, defendant WILLIAM GILROY told an Immigration inspector that all five defendants were travelling together.

COUNT II

The Grand Jury Further Charges That:

On or about the 6th day of February, 1982, at the Whirlpool Bridge, Niagara Falls, New York, in the Western District of New York, the defendant, DESMOND ELLIS, did wilfully, knowingly and unlawfully use and attempt to use a passport issued and designed for the use of another in that the defendant presented a Republic of Ireland passport in the name of Michael Gilmore when applying for admission to the United States; all in violation of Title 18, United States Code, Section 1544.

COUNT III

The Grand Jury Further Charges That:

On or about the 6th day of February, 1982, at Niagara Falls, New York, in the Western District of New York, the defendant, DESMOND ELLIS, did knowingly, willfully and unlawfully make false, fictitious and fraudulent statements and representations, and concealed and covered up a material fact, in a matter within the jurisdiction of the Immigration and Naturalization Service, an agency of the United States, in that the defendant did claim to an investigator at the Immigration and Naturalization Service to be Michael Weir and did identify a Republic of Ireland passport in the name of Michael Weir as belonging to him, whereas, in fact, as the defendant then knew, he was DESMOND ELLIS, not Michael Weir, and said passport in the name of Michael Weir did not belong to him; all in violation of Title 18, United States Code, Section 1001.

COUNT IV

The Grand Jury Further Charges That:

On or about the 6th day of February, 1982, at the Whirlpool Bridge, Niagara Falls, New York, in the Western District of New York, the defendant, EDWARD HOWELL, did wilfully, knowingly and unlawfully use and attempt to use a passport issued and designed for the use of another in that the defendant presented a Republic of Ireland passport in the name of William McKee when applying for admission to the United States; all in violation of Title 18, United States Code, Section 1544.

COUNT V

The Grand Jury Further Charges That:

On or about the 6th day of February, 1982, in the Western District of New York, the defendants, WILLIAM O'NEILL, WILLIAM GILROY and JAMES KELLY, did willfully and knowingly attempt to bring into the United States at the Whirlpool Bridge, Niagara Falls, New York, DESMOND ELLIS, an alien, the same being a citizen of Ireland, not lawfully entitled to enter and reside within the United States; all in viola­tion of Title 8, United States Code, Section 1324 and Title 18, United States Code, Section 2.

COUNT VI

The Grand Jury Further Charges That:

On or about the 6th day of February, 1982, in the Western District of New York, the defendants, WILLIAM O'NEILL, WILLIAM GILROY and JAMES KELLY, did willfully and knowingly attempt to bring into the United States at the Whirlpool Bridge, Niagara Falls, New York, EDWARD HOWELL, an alien, the same being a citizen of Ireland, not lawfully entitled to enter and reside within the United States; all in viola­tion of Title 8, United States Code, Section 1324 and Title 18, United States Code, Section 2.

/ ~1~~

ROGER P WILLIAMS

United States Attorney

A TRUE BILL: ATTEST: A TRUE COPY JOHN K. ADAMS, Clerk

Foreman

A copy of a complaint in United States of America v. William O'Neill, James Michael Kelly and William Gilroy dated February 9th, 1982 was also filed with the Board and took the following form:

A091(w.v. 12, S3) Complaint

United States District Court

FOR THE

WESTERN DISTRICT OF NEW YORK

Magistrat&s Docket No. 86

UNITED STATES OF AMERICA Case No. 0045N1

COMPLAINT for VIOLATION of

V

WILLIAM O'NEILL U.S.C. Title 8 18 JAMES MICHAEL KELLY WILLIAM GILROY Section 1324 2

BEFORE Edmund F. Maxwell Room 414, U. S. Court House, Buffalo, NY Name of Magistrate Address of Magistrate

The undersigned complainant being duly sworn states:

That on or about February 6 , 1982 , at the Whirlpool Bridge, Niagara Falls, NY

in the

Western District of New York

(1) WILLIAM O'NEILL, JAMES MICHAEL KELLY, and WILLIAM GILROY

did'²) wilfully, knowingly, and unlawfully attempt to bring into the United States from Canada two aliens, to wit, EDWARD HOWELL and MICHAEL WEIR, natives and citizens of Ireland not lawfully entitled to enter or reside in the United States, in violation of Title 8.USC, Section 1324, and at that time did wilfully and knowingly combine and agree with EDWARD HOWELL and MICHAEL WEIR to effect their unlawful entry into the united States in violation of Title 18 USC, Section 2.

And the complainant states that this complaint is based on the statements of U. S. Immigration Inspector Gary Rice and by U. S. Customs Inspector Henry Hall and Thomas Algoc, prepared in the ordinary and usual course of their inspectional duties at the Whirlpool Bridge, Niagara Falls, NY, wherein they reported that on February 6, 1982 WILLIAM O'NEILL, while operating a 1976 Silver Plymouth Fury bearing Ontario registration LDU672, did unlawfully attempt to bring in or land in the United States EDWARD HOWELL and MICHAEL IJEIR; that EDWARD HOWELL did claim to be a landed immigration of Canada and did present an Irish passport and Canadian Immigration Identification Record, Form 1MM 1000 issued in the name of WILLIAM McKEE and that MICHAEL WEIR did claim to be a landed immigrant of Canada and did present an Irish passport and Canadian Immigration Identification Record, Form 1MM 1000 issued in the name of MICHAEL GILMORE. Complainant further states that this complaint is based upon the statement of Customs Inspector Henry Hall wherein he reported that on February 6, 1982, JAMES MICHAEL KELLY, while operating a maroon 1975 Ford Custom 500, bearing Ontario registration 5R0019, accompanied by WILLIAM GILROY, did apply for admission into the United States and were referred for a secondary inspection. Complainant further states that this complaint is based upon the statement of Customs Inspector Thomas Algoe wherein he reported that on February 6, 1982, he conducted a Customs secondary vehicle inspection on a 1975 Ford Custom 500, Ontario registration 5R0019, driven by JAMES MICHAEL KELLY; that the search of said vehicle resulted in the discovery, under the front seat, of the wallet of EDWARD HOWELL, an envelope addressed to MICHAEL WEIR, and further that a search of the luggage contained in the vehicle resulted in the discovery of three Irish passports issued in the names ROBERT MURRAY, EDWARD HOWELL, and MICHAEL WEIR.

And the complainant further states that he believes that Gary Rice, Henry Hall and Thomas Algoc

are material witnesses in relation to this charge. Criminal Investigations

U.S. Immigration and Naturalization Services

Sworn to before me, and subscribed in my presence ,

19Leader testified that in light of these most recent charges against Gilroy, he was concerned that the grievor was involved in activities and associated with people posing a potential risk to Pickering "A" and that he was not prepared to assume this risk. He testified that he did not know whether Ontario Hydro would be a target for the kind of activity mentioned in at least one of the newspaper articles but he did view Gilroy as constituting a "potential threat to [the Pickering "A"] facility by association and by past behaviour". He stated that he believed he had an obligation "to Ontario Hydro, to the surrounding community and to the people of Ontario not to employ that kind of a person at a project of our type". In explaining the earlier re-employment of Mr. Gilroy following the time he spent in Mimico Correctional Centre, he said that a considerable length of time had gone by; Gilroy had served his time and paid his debt to society; and it was the respondent's view that he should be given another chance. He stated that such an incident should not be held against an individual "forever and ever The evidence reveals there was a period of time after Gilroy had served his jail sentence that Ontario Hydro refused to re-employ him. This provoked a letter dated August 1st, 1978 over the signature of H. Schueler, the then Business Manager of Local 1788. This letter was addressed to Mr. Pickell, Manager of Labour Relations for the respondent and read:

Dear Sir,

On several occasions we presented one of our member's names for employment. Ever so often we received the same reply, 'Under allowance of Article 10.1 of the agreement that name is one of the persons management does not wish to hire at this time.'

If we ask for the reason why, we are referred to head office. You well know the name in question, W. Gilroy.

He has requested that the union find out on his behalf what the reason for such decision is.

Could you kindly get the appropriate person who made that decision to give his reasoning in writing so we may forward same to our member.

Yours very truly,

20By letter dated August 16, 1978 Mr. Pickell replied to Mr. Schueler indicating that Mr. Gilroy's employment opportunities with Ontario Hydro were equal to those of other members of Local 1788 now that he had served his sentence. The letter reads:

Dear Mr. Schueler:

Further to your letter of August 1, 1978, I have discussed Mr. W. Gilroy's situation with senior management with the hope that we can finally resolve this matter.

There was a period of time during Mr. Gilroy's confinement at the Mimico Correctional Centre where we refused him employment under the Ministry of Correctional Services Temporary Absence Program. We adopted this position solely on the restraints of the program as they affect the employer/employee relationship. These restraints were identified for your Union at a Standing Committee meeting held on December 3, 1976.

Now that Mr. Gilroy has served his sentence, his employment opportunities with Ontario Hydro are equal to those of other members of your Local.

In accordance with Article 10 — Employment Practices and Proce­dures, your Local is responsible for supplying our projects and zones with the names of members who are available for employ­ment. If Mr. Gilroy is referred in this manner, he will receive the same consideration given other members.

Yours truly.

21Mr. Leader testified that because of the information he had received in February of 1982 relating to the new U.S. charges against the grievor, he was led to believe that the respondent had "made a mistake" in re-employing the grievor between 1978 and 1982. He concluded that the grievor was continuing to involve himself in "these activities" and with "those people" and that he was no longer prepared to give him "the benefit of the doubt".

22On cross-examination Mr. Leader pointed to the uncertainty and unpredict­ability of terrorist-like activity. He admitted that he did not know what might prompt the IRA to take action against the respondent but, in his view, "it might happen". He stated that from time to time the respondent had received threatening letters from persons supporting particular causes. He said that he did not know "what makes their mind work" but that there was some risk in employing Gilroy and, in that context, he had an obligation to protect the respondent's facility. However, there was no suggestion that persons of Irish descent or purporting to represent the IRA had threatened Ontario Hydro and there was no suggestion that the grievor had in any way threatened Ontario Hydro. The grievor is a competent tradesman and his performance while working for the respondent is clearly not the basis of the respondent's refusal. Mr. Leader also agreed that the grievor could have been assigned to a crew that had nothing to do with the control room installation but again pointed out that once a person comes on to the site he or she has access to all aspects of that construction site.

23In support of the contention that the collective agreement obligated the respondent to hire those members of Local 1788 referred to the respondent, the applicant led evidence of the hiring practices of Ontario Hydro under the preceding collective agreement. Mr. MuIhall testified that prior to the current collective agree­ment Local 1788 directly contracted with the respondent and was not part of the I.B.E.W. Electrical Power Systems Construction Council of Ontario. It was pointed out that under that collective agreement, the employer had the right to "name hire". This means that Local 1788 provided the respondent with a list of members and was thereafter notified which of those persons on the list the respondent wished to hire. Representative of the contractual arrangement under this earlier agreement are those provisions found in the collective agreement between Ontario Hydro and Local 1788 for the period July 17th, 1973 to July 16th, 1976. Article 10 of that collective agreement provided:

Article 10

EMPLOYMENT PRACTICES AND PROCEDURES

10.1 The Employer agrees to use employment practices and procedures which are consistent with the maintenance of good Union and Management relations. Therefore, the Employer will co-operate with the Union. To this end, the Employer agrees to notify the Union office of its manpower requirements.

10.2 The Union recognizes the public obligations laid upon the Employer in recruiting its construction work force. Depending upon the area where the work is undertaken and the employment situation prevailing in that area at the time of hiring, the Employer's employment policy will be as follows.

• employment of competent resident Local Union members

• re-employment of former employees who were terminated, and

whom the Employer would desire to rehire, and who are unem­ployed and resident in the area of work

• recruitment of qualified tradesman applicants from referrals by

Canada Manpower Services offices and local union offices

• employment of local applicants from project area

Appended to that agreement was a letter to Mr. Schueler over the signature of W.J. Chenery, Manager, Construction Labour Relations, which was dated December 5, 1972 and read:

Dear Mr. Schueler:

Employment Practices and Procedures

The following sets forth those procedures agreed to by the parties for the clarification of current employment practices and forms part of the Statement of Settlement between Ontario Hydro and Local Union 1788 of the International Brotherhood of Electrical Workers. These practices will become effective as of December 1, 1972.

The following is a proposal for clarifying hiring practices for employment of persons in the Electrician, Lineman and Groundman categories. This proposal does not supersede the provisions of Article 10 of the master portion of the Agreement but clarifies the intent of the last sentence of 10.1 and the third statement in 10.2.

The successful implementation of these recommendations requires the full co-operation of both parties.

Projects and Zones will advise Local 1788 of the IBEW of all manpower requirements in the above Electrical Worker catego­ries, including positions being filled by transfer from other named work locations.

Notification to Local 1788 will be given with as much lead time as possible in order to give the Local time to respond. Local 1788 will supply the Project or Zone with the name of its members available for employment. The Project or Zone will advise Local 1788 which of the named members they wish to hire and such members will be offered employment.

Local 1788 will supply the Project or Zone with the names of its members available for employment.

The Project or Zone will advise Local 1788 which of the named members they wish to hire and such members will be offered employment.

24Mulhall testified that after Local 1788 joined the EPSCA Council the employer would simply make known its manpower requirements which would then be filled by the local union. Local 1788 joined the EPSCA Electrical Power Systems Construction Council of Ontario in April of 1981.

25Finally, it is to be pointed out that the grievor while present at the hearing did not testify on his own behalf.

SUBMISSIONS

26On behalf of the trade union and the grievor it was submitted that the effect of sections 700(C) and 701(A) was to render all I.B.E.W. members employees for the purposes of the collective agreement. Thus it was submitted that a refusal to accept a member upon referral constituted a discharge or disciplinary action within the meaning of section 1300(G) of the collective agreement. The Board was also referred to International Longshoremen's Association, Local 273, et al v. Maritime Employers' Association et al, 78 CLLC 209, #14,171; Ecodyne Limited, [1979] OLRB Rep. July 629; McGavin Toastmaster Limited v. Ainscough et al (1975), 54 D.L.R. (3d) p.1; Re Blouin Drywall Contractors Ltd. and United Brotherhood of Carpenters and Joiners of America, Local 2486 (1976), 1975 CanLII 707 (ON CA), 57 D.L.R. (3rd) 199; Eton Construction Limited, [1981] OLRB Rep. July 872; and George Ryder Construction Ltd., [1981] OLRB Rep. Dec. 1785. On the basis of this submission it was contended that the employer shouldered the burden of proof to establish discharge for cause and that in determining whether this burden has been met the Board should have regard to the seriousness of the misconduct alleged. It was counsel's submission the respondent had not established cogent evidence that the grievor had engaged in misconduct sufficient to warrant the action complained of and that, even if the grievor is convicted as charged, the charges are not job related. It was further submitted that the respondent had failed to reserve an untrammeled right to reject members of Local 1788 referred for employment. In this respect, the Board was referred to Molson's Breweries (1958) 9 L.A.C. 147 (Cross); Applied Insulation Co. Ltd. (1964), 1964 CanLII 996 (ON LA), 15 L.A.C. 238; Labatt's (1964), 1964 CanLII 947 (ON LA), 15 L.A.C. 351; Re Waffle and I.B.E.W Local 773 (1975), 1975 CanLII 2187 (ON LA), 9 L.A.C. (2d) 334; (1977), 1977 CanLII 2928 (BC LA), 17 L.A.C. (2d) 47; and Board of Education for the City of Toronto February 15th, 1982, unreported, H.D. Brown. Finally, it was submitted that the grievance is a continuing grievance pertaining to the rejection at Pickering "B" and to all subsequent rejections.

27Counsel for the employer emphasized that the risk of employing the grievor centered on his tendency to associate with individuals and activities of "a terroristic nature". Counsel emphasized that the grievor appears to be knowingly associating with people who engage in unlawful violent actions. Reference was made to the transcript of the 1975 criminal proceedings; to the 1982 criminal charges; and to the related newspaper reports. It was submitted that the collective agreement does not impose any restriction on the management right to hire and that, therefore, the employer's discretion in this area was unfettered by the collective agreement. Reliance was placed on the Board of Education for the City of Toronto case cited above. Alternatively, it was submitted that if the employer's discretion in this respect was not unbridled, the standard to be applied to this type of management responsibility was to be based on the words "reliable and competent" set out in section 700(C). And as long as a board of arbitration was satisfied that the employer had based its decision on reliability or competency, the board of arbitration could not substitute its opinion for that of management's. In this respect, counsel referred to section 1301(B) restricting the jurisdiction of a board of arbitration and precluding it from exercising a responsibility or function of the parties. It was counsel's submission that the respondent was not obligated to hire any particular individual as long as it was prepared to hire I.B.E.W. members generally. It was also argued that much more specific language in the collective agreement would be required to obligate the employer to hire any particular member referred to it by the trade union. It was emphasized that the employer must have discretion in the hiring process otherwise it would be required to hire employees whom it had recently discharged for cause. Finally, it was submitted that the grievor in fact presented a risk to the respondent sufficient to justify the action complained of regardless of the standard of review thought appropriate by this Board. In this respect, the Board was referred to Oshawa General Hospital and Ontario Nurses' Association (1981), 1981 CanLII 4423 (ON LA), 30 L.A.C. (2d) 5 (Adams).

REASONS

28The first issue before the Board relates to the extent of discretion in the respondent company to hire employees under this collective agreement. The relevant provisions of the agreement are set out above and the principal provision is section 701(A). The paragraph begins by noting that employment and layoff of tradesmen and apprentices "shall be carried out on the following basis and sequence". It then goes on to provide that the employer will hire only members of the I.B.E.W. and that the EPSCA office will request the appropriate local union office "for the certified tradesmen and apprentices required".

29Section 701(A)(i) does not specifically state that the employer will hire any particular member of I.B.E.W. but, on the other hand, the commitment to request the tradesmen required from the trade union can reasonably be construed as a commitment to hire those tradesmen referred. It could also, but less reasonably we think, be construed as agreeing that the local union act on behalf of the employer in hiring the available tradesmen. On the other hand, the respondent asserts that the right to hire is a significant management right which should be fettered by clear intent and custom. Against the submission, it is useful to consider the remainder of the language used in paragraph (ii). Section 701(A)(ii) goes on to state that the employer shall be afforded "the right" to employ certified tradesmen as are available. "[i]f the local union is unable to furnish certified local union or travel card members to the employer within three (3) working days of the time" it receives a request from the employer. In our view, it is more difficult to infer from this language the unfettered right of the employer to refuse to hire those certified local union tradesmen referred within the three days stipulated. The sentence positively enshrines a right to employ certified tradesmen as are available after the three days have elapsed suggesting that such a right does not exist prior to the expiration of the three days. Moreover, an unfettered discretion to hire members referred to the employer could substantially undermine the hiring hall procedure enshrined in this section. An unreviewable discretion to reject in combination with the three day time limit would grant the respondent access to non-member forces any time it wished. The other relevant portion of section 701 (A)(ii) is the commitment that travel card members and permit holders may be replaced by local union members after three working days' notice to the employer provided the tradesman to be replaced has worked a minimum of one week. This commitment, while not using the imperative language "shall", appears to place the discretion of replacement in the local union's hands provided three days' notice is given to the employer. If the employer retained the unfettered discretion to reject in this instance there would be little need to stipulate a notice period and create the proviso that the tradesmen to be replaced must have worked a minimum of one week. It is also relevant that the collective agreement does not specifically embrace a management rights clause that deals directly with the act of hiring.

30The agreement does, however, makes mention of certain unspecified respon­sibilities and functions of the parties and precludes a Board of arbitration from substituting its discretion for that of the parties. Unfortunately, that wording cuts both ways in the sense that either party can claim its application to the issue before this Board. The employer can claim that it is its function to hire and the union can claim interference with its function to refer. For the sake of completeness we also note the appendix pertaining to Local Union 1788 and Ontario Hydro employees seems to envisage that Ontario Hydro may hire employees who must subsequently become union members. See Section 1(A). Section 1(D) then obligates the employer to require employees "at the time ... employed" to sign a Local Union 1788 dues check off authorization. And Section 1(E) makes mention of Local 1788 making arrangements with "new employees for them to join Local Union 1788". However, neither of the parties focused their representations on the wording of the appendix and there was no suggestion that the appendix detracted from or in any way affected the obligations and rights of the respective parties under Section 701. Indeed, the evidence revealed that Local 1788 administered a hiring hall in relation to Ontario Hydro and that Ontario Hydro and EPSCA made requests for manpower to the local union pursuant to the procedures laid down in Section 701 and that members were assigned to work either in relation to a request or a replacement pursuant to the same section. However, the wording of the appendix is certainly inconsistent with any suggestion that the applicant unions do the hiring for the employer. The wording also cuts against the trade union's contention that members in the hiring hall have the status of employees under the agreement and that the employer has retained no discretion in the area of hiring. Without any assistance from the parties on its application, the Board is unable to give the appendix any further weight.

31One response to the first issue (i.e. the extent of employer discretion) might be to require a specific and unequivocal encroachment to the management right to hire before being satisfied that the employer has given up this important responsibility. This seems to have been the approach in Re international Union of Operating Engineers, Local 944 and Labatts Ontario Breweries Limited (1964), 1964 CanLII 947 (ON LA), 15 L.A.C. 351 (Reville) and in Re Operating Engineers and Molsons Brewery (Ontario) Limited (1958), 9 L.A.C. 147 (Cross). However, we note in the Molsons Brewery Limited case the collective agreement provided that "if within five days the union could not supply applicants who were "satisfactory to the company" the company could then arrange to hire men elsewhere. The Board concluded that the phrase "satisfactory to the company" clearly implied the right of the company to exercise its own judgment in considering whether to take on the persons referred to it by the trade union. In the Labatts Ontario Breweries Limited case the agreement provided that "any employee so furnished would be fit and suitable to perform the services required". From that language the board of arbitration concluded that the employer retained the right to determine an employee's qualifications, provided it acted judicially and bona fide. We also observe that neither case pertained to the construction industry.

32The other approach, and the one we prefer, is to recognize that this collective agreement was negotiated in the context of the construction industry and that the words of the collective agreement in issue pertain to one of the hallmarks of the construction industry, the hiring hall. The nature of a hiring hall is to a large degree a function of two labour relations realities in the construction industry. The first is the fact that this collective agreement and others in the construction industry generally pertain to "certified tradesmen or journeymen". The word "journeymen" is said to have originated in the railroad industry where a journeyman was considered a totally competent craftsman who could take his tools and apprentice and travel to remote parts of a railroad to perform his work as a skilled craftsman essentially on an unsupervised basis. A "journeyman" or "tradesman" need not be described as a "skilled journeyman" or "skilled tradesman" because the word journeyman or tradesman already denotes the highest level of skill in a trade. In short, the term journeyman or tradesman refers to a person who can work with little or no supervision and who represents the highest level of proficiency in a craft. See Swinerton and Walberg Company (1977), 68 L.A.C. 940 (Schedler). The notion of "certification" pursuant to legislation requiring the training and certification of tradesmen is today a further guarantee of proficiency. Thus, persons who constitute certified tradesmen or journeymen and who are referred to an employer by way of a hiring hall provision cannot be considered untested and untried potential hires "from the street" as in a manufacturing or service context. Because journeymen and tradesmen are expected to have a minimum level of proficiency, an

inference that the employer has agreed to fetter its hiring discretion, or subject it to arbitral review, is not prima facie an unreasonable conclusion.

33The second point giving rise to the nature of a hiring hall is the peculiar relationship between employer and employees in the construction industry as was discussed in the case of R M Hardy and Associated Limited and Teamsters, Local Union 213, [1977] 2 Can.L.R.B.R. 357 where the chairman, Professor P.C. Weiler, observed the following:

Most of the workmen in the construction industry are skilled tradesmen, usually having obtained tradesmen's qualification certifi­cates after years of apprenticeship. Each of the distinctive trades has its own craft union, which may have a century-old tradition of representing its members in collective bargaining with the contrac­tors who employ members of that trade. But most building trade unions have another role besides the customary representation of employees in collective bargaining: the hiring hall function. The reason is the highly cyclical nature of employment in the construc­tion industry — stemming both from the rhythm of individual projects and the intermittent and erratic pattern in which major construction investments are brought on stream. In response to that pattern, contractors — whether general or specialty contractors —normally do not maintain a regular work force. They may retain a nucleus of key employees, but the bulk of their workmen are recruited as and when they are needed for a specific project for which the employer has obtained a contract. Where do they get these tradesmen? Through the union which represents that craft. The union office keeps a list of available tradesmen; the contractor phones the union office for certain kinds and numbers of workmen; and the crew is then dispatched through the union hiring hall to the job site. In effect, the trade union performs the basic personnel function in the construction industry, by allocating jobs among the members of the work force. Any one tradesman may be employed by a number of contractors in a number of areas in any one year. Besides paying the immediate take-home wages to the tradesmen on the job, the contractor also forwards directly to the union hourly contributions for health and welfare, vacation, and pension benefits, and these funds are administered by the union for its members. And the consequence is that the primary and enduring relationship in construction is between craft unions and tradesmen-members, not between employer and employee.

[our emphasis]

34It is against the background of these observations that one must consider the various cases dealing with the effect of hiring hall provisions on employment status. It has been clearly established that persons in a hiring hall and not yet in the active employ of an employee can seek relief under a collective agreement and be awarded damages for the breach of a union hiring hall provision. See Re Blouin Drywall Contractors Limited and United Brotherhood of Carpenters and Joiners of America, Local 2486, 1975 CanLII 707 (ON CA), [1975] 57 D.L.R. (3d) 199 and McKenna Brothers Limited and Plumbers Union, Local 527 (1975), 10 L.A.C. (2d) 273 (Shime). See also Eton Construction Limited, [19811 OLRB Rep. July 872. It has also been held that the refusal of a local union to refer tradesmen can amount to an unlawful strike of such tradesmen even though they are not in the active employ of the employer in question. See Local 273, International Longshoremen's Association v. Maritime Employers Association, [1979] 1 F.C.R. 120. On the other hand, we note the apparent need of the Legislature to enact section 69 of the Act in order to create a duty of fair representation for those in the hiring hall but not yet employees within the meaning of section 68. But whatever the legal significance of section 69, the court cases do suggest that in the construction industry and in like industries, there is in law, and without specific contractual wording to the contrary, a very close relationship between being in a hiring hall and having employment status. Precisely, how close will depend on the circumstances of any particular case.

35From this perspective, therefore, it is not surrising to learn that in those arbitration cases considering the refusal to hire a referral in the construction industry an unfettered employer discretion to hire has been honoured by a board of arbitration usually in the face of very specific contractual language retaining a discretion to hire or refuse to hire in the employer. In Re Columbia Bitulithic Limited and International Union of Operating Engineers, Local 115 (1977), 1977 CanLII 2928 (BC LA), 17 L.A.C. (2d) 47 (Chertkow) the union specifically recognized the employer's right to "name — request a former employee". Similarly, in Re Waffle Electric Limited and International Brotherhood of Electrical Workers, Local 773 (1975), 1975 CanLII 2187 (ON LA), 9 L.A.C. (2d) 334 (Kruger) the contractor was obligated to take the first man on the out-of-work list but "had his choice for the second employee [he wished] to have at that time from the next foremen listed on the out-of-work list". In Newark Newspaper Publishers Association (1963), 43 L.A. 245 (Sch­mertz) the employer retained "the right to reject any job applicant referred to it by the union". In the Board of Education for the City of Toronto and Toronto-Central Ontario Building and Construction Trades Council (1982), March 30th, 1982 (H.D. Brown) the contract acknowledged that "the employees supplied by the union who, in the opinion of the board, are not suitable or qualified may not be hired". Similarly, in Alyeska Pipeline Service Company (1981), 76 L.A. 172 (Eaton) the contractor retained "the right to reject any job applicant referred by the union". Parallel language existed in the contracts in Potashnyck Construction Company (1981), 77 L.A. 893 (Richardson) and Barnard and Birk inc. (1980), 74 L.A. 550 (Taylor). Cases where specific language retaining an unfettered right to hire did not exist and where arbitral review took place are: Re International Association of Heat and Frost Insulators and Asbestos Workers, Local 95 and Applied Insulation Company Limited (1964), 1964 CanLII 996 (ON LA), 15 L.A.C. 238 (Reville); Newark Newspaper Publishers Association (1963), 43 L.A. 245 (Schmertz); and Pacific Maritime Association (1978), 70 L.A. 422 (Hoffman). Also of relevance in this particular case is the fact that the prior collective agreement between the parties set out above clearly acknowledged in section 10.2 the discretion in the employer to re-employ former employees and the "name hire" system then in operation was specifically embodied in a letter dated December 5th, 1972 appended to that agreement. The collective agreement between the parties that is in issue before this Board contains no such specific language and contains no clear acknowledgement of a discretion in the employer to hire or reject those certified tradesmen referred to it. Accordingly, on the wording of this collective agreement and construing it in light of construction industry practices, we have come to the conclusion that the employer does not have an unbridled right of rejection in dealing with certified tradesmen referred to it pursuant to section 701. It has given up the broad discretion it might otherwise have had in agreeing to this particular hiring hall provision.

36But does this conclusion mean that the employer is obligated to hire all tradesmen referred regardless of whether or not they are in fact reliable and competent? Indeed, does this conclusion mean that the employer is obligated to re­employ a person it has previously discharged for cause? Clearly, the right of discharge or discipline specifically acknowledged in section 13 of the collective agreement would have little force or effect if the employer was obligated to rehire an employee it had previously discharged. It would therefore be reasonable to infer a right to reject a person previously dismissed by the employer. But must all other tradesmen referred be hired? What if a referred tradesman is intoxicated or from past experience believed to be unreliable or incompetent notwithstanding his certification? Were we to hold such an obligation existed, the employer would be required to employ the individual first and then immediately terminate on the basis of the documentation it had before it. Reading the collective agreement as a whole, it is our opinion that in agreeing to Section 701 the parties did not intend such a result. The requirements of section 701 and the acknowledgement of the parties in section 7, paragraph C that reliable and competent union members will be referred and employed are best met by implying a right in the employer to reject persons it believes to be unreliable or incompetent or otherwise unqualified subject to acting reasonably, in good faith and without discrimination. We point out that Section 1301 makes clear that "an employee" who has been discharged or otherwise disciplined for cause may take advantage of the 'lust cause" standard required by that section. On the facts before us, the grievor, Mr. Gilroy, was a tradesman referred for employment but actual employment was not forthcoming. While the parties did not specifically agree to an unbridled right in the employer to reject, they also did not agree to subject rejections to the section 1300 standard of 'lust cause". Rather, the act of hiring under this construction industry agreement is very similar to the act of promotion in an industrial context. With respect to the latter function, and in order that seniority rights not be capable of unilateral abrogation by an employer, arbitrators have inferred the contractual obligation that management's responsibility to assess employee qualifications be exercised reasonably, in good faith and without discrimination. See particularly Re United Mine Workers of America, Local 13031 and Canadian Industries Ltd. (1948), 1 L.A.C. 234 (Roach); Re Reynolds Aluminum Co. Canada Ltd. and International Molders and Allied Workers Union, Local 28 (1974), 1974 CanLII 2380 (ON LA), 5 L.A.C. (2d) 251 (SchifD; and Re H.E.P.C. of Ontario and Office and Professional Employees' International Union (1976), 1976 CanLII 2218 (ON LA), 11 L.A. C. (2d) 36 (Beatty). As the arbitration board in the Reynolds Aluminum Co. Canada Ltd. case, supra, at page 254-5 put it:

In the ordinary exercise of management functions employers may determine in the first instance what specific qualifications are necessary for a particular job and what relative weight should be given to each of the chosen qualifications. After the employer has made the determination, arbitrators should honour the managerial decisions except in one or both of two circumstances: First, the employer in bad faith manipulated the purported job qualifications in order to subvert the just claims of employees for job advance­ment under the terms of the collective agreement. See Re United Brewery Workers, Local 173, and Carling Breweries Ltd. (1968), 1968 CanLII 1227 (ON LA), 19 L.A.C. 110 (Christie); Re Textile Workers Union and Lady Galt Towels Ltd. (1969), 1969 CanLII 1498 (CA LA), 20 L.A.C. 382 (Christie); Re Canadian Trailmobile Ltd. and U.A.W, Local 397 (1973), 1973 CanLII 2114 (ON LA), 2 L.A.C. (2d) 13 (Brown). Secondly, whether or not the employer had acted in good faith, the chosen qualifications bear no reasonable relation to the work to be done. See Re U.A. W, Local 707, and Ford Motor Co. of Canada Ltd. (1970), 1970 CanLII 1667 (ON LA), 21 L.A.C. 61 (Weatherill); Re Oil, Chemical & Atomic Workers, Local 9-14, and Polymer Corp. Ltd. (1972), 1972 CanLII 1971 (ON LA), 24 L.A.C. 277 (O'Shea).

37Because a hiring hall provides the same "job security" in the construction industry as seniority does in a non-construction context, the two institutions are equally important and deserving of the same construction and interpretation by arbitrators. An unbridled management discretion to hire in the face of a hiring hall clause such as exists in this contract would be as undermining of that provision as would be an unbridled power to review qualifications to seniority rights in the unusual industrial collective agreement. On the other hand, full arbitral review as in discipline cases would not accord with Article 13 and be subject to the concern of excessive arbitral intervention. Accordingly, the approach outlined in Reynolds Aluminum is equally applicable to the response of employers to hiring hall referrals without specific wording to the contrary.

38The issue remaining before us is whether the respondent acted reasonably, in good faith and without discrimination in refusing to hire the grievor who had been referred to it for employment at the various locations noted above. The union bears the onus of proof in establishing that the employer acted improperly. This is not a discipline case. The evidence indicates that the grievor voluntarily terminated his employment with Ontario Hydro on February 5th and that, based on certain newspaper reports and inquiries, the respondent believed the grievor to have been arrested on February 6th while crossing the border from Canada into the United States. The respondent further believed that the grievor had been charged under U.S. Immigration laws with conspiracy to smuggle aliens into the U.S. It also understood from newspaper reports that the apparent purpose of the grievor and his colleagues was to purchase arms and take or ship them to Northern Ireland. Newspaper reports also linked two of the grievor's colleagues with the assassination of Lord Mountbatten on August 27th, 1979, who was killed by an explosion alleged to be effected by an Irish Republican army bomb. Copies of documents purporting to be charges against Gilroy in the District Court of the United States for the Western District of New York were obtained by Ontario Hydro and filed with the Board. At no time did Mr. Gilroy take the stand and deny that these charges had been laid against him and are currently outstanding. The evidence also reveals that the grievor at no time provided the respondent with any explanation of his conduct on February 6th in an attempt to alleviate the employer's concern. Finally, the evidence establishes that the grievor served a jail sentence at Mimico Correctional Centre from June 27th, 1975 to October 25th, 1975 having been found guilty of attempting to export 15 semi-automatic military rifles contrary to the Export and Import Permits Act, arms which were intended to be sent to Ireland by way of the United States.

39Mr. Leader, Construction Industry Manager for Pickering "B", was concerned about the uncertainty and unpredictability of terrorist-like activity and, having regard to the grievor's previous involvement in unlawful conduct supporting the IRA, he was not prepared to assume the risk of employing Gilroy in close proximity to an operational nuclear generating station. On the other hand, the grievor has worked on and off for Ontario Hydro since 1967 and his employment has been uneventful in terms of the kinds of concerns that led Mr. Leader to object to his rehire. Unfortunately, the grievor did not testify before the Board in order to explain his conduct on February 6th or his association or lack of association with the Irish Republican Army in Ireland. However, his counsel took the position that even if convicted of the charges against him, the conduct is unrelated to his job.

40We are not applying a standard of 'just cause" for termination but rather, at the highest, a standard of reasonableness and it is for the applicants to establish that the employer acted unreasonably. The sabotage or interference with the workings of a nuclear generating station could be catastrophic from a public safety point of view and it is this feature of a nuclear site that gives it a high "ransom value". The respondent is also a major public sector employer directly accountable to the public of this Province and we can take notice of the public's general interest in and anxiety over safety issues relating to nuclear energy. There is therefore ample justification for an employer such as the respondent to be concerned about security at the Pickering and Bruce locations. Moreover, while security precautions of a general nature taken by the employer at these locations do not appear particularly rigorous, this lack of rigor does not demand that the employer ignore security issues brought to its attention.

41The grievor appears to have been charged with a serious criminal offence in the United States, linking him to a notorious organization that, regardless of the merits of its cause, is known to engage in violent unlawful acts. History has shown that such violent activities are in themselves unpredictable in timing, location and scope. The grievor was previously convicted of an unlawful act obviously intended to assist similar activities and now appears to have been charged with a related offense. We also cannot accept that the act of rehiring the grievor after he had served his earlier jail sentence constitutes an admission by this employer that such conduct and any association with the IRA are unrelated to the grievor's job. He was not rehired immediately on his release from jail and was employed only after considerable dialogue between the respondent and his union. His rehire is therefore equally consistent with Mr. Leader's view that he had paid his debt to society and that the employer assumed he would no longer engage in such conduct.

42After considerable reflection, we have come to the conclusion that, in relation to Pickering "B" and Bruce "B" locations, the charges, if established, could be job related and that the laying of charges provided the respondent with reasonable justification to refuse to hire the grievor at those two sites. The applicants have not established on evidence before us that the respondent's conduct on those two occasions was unreasonable, discriminatory or taken in bad faith. Violence of the type referred to in the newspaper reports is difficult to predict or delimit. Given the degree of risk associated with an operational nuclear power generating station and the inherent public concern in such matters, it cannot be said that the grievor's possible assistance by unlawful means of persons or an organization having a potential for such violence is an irrelevant or unreasonable consideration for the respondent to have taken into account. While the probability of the grievor acting improperly may be small, the consequences of such misconduct would be catastrophic. The grievor was not called as a witness to provide the details of his activities in February and to enlighten the Board on the actual risks associated with his re-employment. We are also of the view that the obligations of an employer to an employee charged with a job related criminal offence as detailed in the Philips Cables case and applied in Oshawa General Hospital are not properly demanded in re-hire or rejection situations given the language of this collective agreement. Such standards are a product of discriminating arbitral review produced by a 'lust cause" clause and would only be applicable if this matter was being considered under section 13.

43Counsel for the applicants argued that the employer had acted on mere suspicion and hearsay and that the effect of not hiring the grievor interfered with his freedom of association. We too are concerned about the absence of direct evidence pertaining to the grievor's alleged unlawful conduct on February 6th, 1982. However, the employer took reasonable efforts to investigate the situation and, having regard to the standard of review in cases of this kind, produced acceptable evidence before this Board. Equally important is the fact that the grievor did not testify before the Board. He therefore did not deny the existence of the charges by direct evidence nor did he deny the claimed associations with the IRA. Negative inferences can therefore be drawn on both of these aspects of the case. Furthermore, this is not a case where a person has been dealt with merely because of an association with others. The grievor has been charged in the United States with the unlawful assistance of certain persons and this alleged assistance may be directly related to the commission of violence abroad. He was convicted in Canada of unlawfully assisting such activities on an earlier occasion. The commission of unlawful acts in Canada and the United States (if subsequently established) to some extent blurs a clear separation of violence abroad and the grievor's reliability in Canada. In our view, more than mere association is in issue and of concern to this employer. The application is therefore dismissed insofar as it relates to the two nuclear sites.

44The submissions reveal that the parties were "poles apart" over the legal effect of the hiring hall provisions of this collective agreement. In considering the employer's response to the referral of the grievor of the two nuclear sites, the Board has now outlined the appropriate contractual standard against which this employer's hiring decisions are to be assessed where the hiring hall provision has application. Because this is the first time the matter has been determined for these parties, the Board has decided to remit this matter back to the parties to consider the implications of this award for the non-nuclear sites. Should the parties be unable to resolve all outstanding issues, submissions may be made to the Board.

DECISION OF BOARD MEMBER W. H. WIGHTMAN;

I concur with the result insofar as it deals with the two nuclear power generating stations.

DECISION OF BOARD MEMBER F. S. COOKE;

1. I agree with the majority decision as to the employment relationship of the members of Local 1788, I.B.E.W. and Ontario Hydro.

2. I am unable to agree with the majority on the application of the facts before us.

3. There was no indication that Hydro was concerned about security matters at

the time of Gilroy's conviction and confinement for breach of the laws of Canada.

4. The letter of Hydro (Exhibit 15 in this case) dated August 16, 1978 clearly outlines this.

Mr. Hank Schueler

Business Manager, Local 1788

International Brotherhood of Electrical Workers

3500 Danforth Avenue

SCARBOROUGH, Ontario MlL lEl

Dear Mr. Schueler:

Further to your letter of August 1, 1978, I have discussed Mr. W. Gilroy's situation with senior management with the hope that we can finally resolve this matter.

There was a period of time during Mr. Gilroy's confinement at the Mimico Correctional Centre where we refused him employment under the Ministry of Correctional Services Temporary Absence Program. We adopted this position solely on the restraints of the program as they affect the employer/employee relationship. These restraints were identified for your Union at a Standing Committee meeting held on December 3, 1976.

Now that Mr. Gilroy has served his sentence, his employment opportunities with Ontario Hydro are equal to those of other members of your Local.

In accordance with Article 10 — Employment Practices and Proce­dures, your Local is responsible for supplying our projects and zones with the names of members who are available for employ­ment. If Mr. Gilroy is referred in this manner, he will receive the same consideration given other members.

Yours truly,

5. There were no assurances asked by Hydro.

6. The evidence of Hydro given to this Board about its security practices indicate to me that security on its construction sites and for that matter movement from its construction sites to its operational sites at its Pickering and Bruce locations is of very low concern.

7. Any person showing up for work attired like a construction worker and wearing a hard hat is not challenged at a manned gate at normal starting time.

8. A construction worker moving from the construction area to the operational area passes a manned security station where the main function was described as being to see that dosimeters were distributed and in some cases where a foreman might pick up dosimeters for his crew.

9. This description does not allow me to come to the conclusion that the charges against the grievor are job related and I am unable to conclude that in these circumstances Hydro has acted reasonably.