Ontario Labour Relations Board
[1984] OLRB Rep. October 1398
0957-84-M Carpenters' District Council of Toronto and Vicinity on behalf of Local 27 and 1304, United Brotherhood of Carpenters and Joiners of America, Applicant, v. Ellis-Don, Respondent
BEFORE: Owen V. Gray, Vice-Chairman, and Board Members I. M. Stamp and L. C. Collins.
APPEARANCES: David Watson, Frank Rimes, Ucal Powell for the applicant; D. Jane Forbes-Roberts, Janet Trim and Peter Vancook for the respondent.
DECISION OF THE BOARD; October 15, 1984
- The applicant and respondent are both bound by the terms of a provincial collective agreement between the Carpenters Employer Agency and the Ontario Provincial Council, United Brotherhood of Carpenters and Joiners of America, dated April 17, 1984, with effect from May 1, 1984, to April 30, 1986. On May 31, 1984, the applicant submitted a grievance which alleged that the respondent employer had failed to hire, re-hire or recall the grievor, Ucal Powell, over a period culminating on May 24, 1984, contrary to Article 5.04 of the aforesaid collective agreement, which reads as follows:
5.04 No person shall be refused employment or Union membership because of his or her sex, race, colour, creed, age, or national origin.
On July 9, 1984, the applicant referred that grievance to this Board for arbitration pursuant to section 124 of the Labour Relations Act.
The hearing of this matter was scheduled for and proceeded on July 23, 1984. There was no challenge to the arbitrability of the grievance or to this Board's jurisdiction to deal with it. There was no suggestion that the respondent had inadequate notice of the particulars of the grievance, which would have been discussed informally between the parties prior to this matter coming on for hearing. The hearing of evidence in this matter was completed on July 23, 1984. At the close of the evidence, the parties agreed to waive the opportunity to make oral argument (which could not have been scheduled before November, 1984) and elected, instead, to file written argument. The Board has now received and considered both parties' written arguments and, in addition, their written submissions on a subsequent request by the respondent that the hearing be reopened to permit it to introduce additional evidence.
There was very little dispute about the factual background and context in which this grievance arose. The grievor, Ucal Powell, is a thirty-seven year old black who was born in Jamaica and started to learn his carpenter's trade there at the age of 15. He has fourteen years of experience in Canada in all areas of carpentry work. He is a qualified carpenter who was at all material times a member in good standing of the applicant.
The respondent, Ellis-Don, is a well known general contractor which engages in I.C.I. construction in Metropolitan Toronto and elsewhere in the Province of Ontario. At the times in question, it was involved in two projects about which we heard in evidence: the construction of an addition at the Toronto Western Hospital ("the hospital project") and the construction of a fourth building at the Toronto Dominion Centre ("the TD 4 Project"), both in the City of Toronto. The grievor was looking for carpentry work in March, 1984, and applied to the Ellis-Don Superintendent at each of those two projects. The respondent hired him as a carpenter at the TD 4 project, and he did form work there from March 29, 1984, to April 24, 1984, when he was laid off. He immediately started looking for work again, and one of the sites at which he applied on more than one occasion was the hospital project. As we will note later, he spoke to the respondent's superintendent at that project on more than one occasion; on each occasion he was told that the respondent was not hiring carpenters that day. One such day was May 24, 1984. By chance, the grievor discovered that a white carpenter was hired by the respondent's superintendent within minutes after that superintendent had told the grievor he was not hiring carpenters that day.
At the beginning of our hearing there was some discussion about the order in which evidence would be presented, and the nature of the legal and evidentiary burdens which could be cast on each of the parties to this arbitration. In all the circumstances, including the recognition by both parties of the accuracy of the basic facts outlined in the preceding paragraph of this decision, the parties agreed that the employer would lead evidence first, and have the right to reply after the union put in its case. The parties agreed on one other matter, and that related to the hiring provisions of the Provincial Collective Agreement by which these parties are bound. The terms of that agreement limit the ability of employers to hire carpenters otherwise than through the applicant's hiring hall. Both parties agreed, and asked us to accept, that the collective agreement would not have prevented the respondent from hiring the grievor in response to his on-site application. Equally, they agreed that nothing in the collective agreement compelled the hiring of the grievor. We note that Articles 5.05 through 5.07 deal with the right of an employer to "recall" a former employee within either six or three months of his last employment, depending on the length of that last employment. We observe that the parties' agreement does not appear to involve a perverse interpretation of the provisions of the collective agreement.
The respondent's first and only witness was Fred Corley, its Superintendent at the hospital project site. Mr. Corley recalled that the grievor had visited that site on three occasions that he could remember, and had spoken to him on two of those three occasions. On the day in question, May 24th, he had told the grievor there was no work for carpenters. Minutes later, another carpenter, John Uroic, had applied to him for work. Corley hired Uroic, and directed him to report for work the following day. The grievor, having seen this transaction, returned to Corley's office and asked Corley why he had decided to hire Uroic after telling him that he did not need any carpenters. Corley said Powell was in a rage. Corley testified that he explained to Powell that he hired Uroic because he needed a man for work in the deep sump. The grievor then accused Corley of racial discrimination.
The explanation Corley gave us was that he only hired men if he knew them or had a recommendation about them from another Ellis-Don superintendent or foreman. He knew Uroic because Uroic had worked under him at the Erindale College project in 1971, some thirteen years earlier. He said that he had been looking for someone to work on the deep sump for about a week; if Uroic had not come along when he did, he would have assigned one of the carpenters in his existing crew to do that work. He said he did not hire the grievor because the grievor had not previously worked for him, and did not have the recommendation of another Ellis-Don superintendent. He has a vague recollection that the grievor may have mentioned having worked for Ellis-Don. If that was mentioned, he says, then the grievor did not say when and where, and did not mention the TD 4 project. He acknowledges that he had taken on other workers from that project and, consistent with the practice he described, he acknowledged having spoken to the superintendent at that project about those employees before he took them on.
In cross-examination Corley acknowledged that he would go to the union hiring hall if he was unable to get a sufficient number of carpenters through transfers from other Ellis-Don sites and on-site hiring of carpenters he knew. Counsel for the applicant reviewed with Corley certain hiring hall records concerning the referral of carpenters to the hospital project in the period April 16 to June 15, 1984. It was put to him that he had contacted the hiring hall on May 24th and asked for three carpenters, one of whom was Mr. Uroic. Corley said he could not recall anyone other than Uroic. He was asked about one Tony Fantauzzi, whom the union s records show to be one of the three sent in response to Corley's request. Corley said that name did not ring a bell. He did recognize the name of the other of the three carpenters whom the hiring hall records show had been sent in response to a May 24th request by Mr. Corley. That man was Damio Mederios; Corley acknowledged there was a Dave Mederios working on the project who had started within a week either way of May 24th. Corley did recognize the names of several of the other carpenters whom hiring hall records showed had been referred to his site in the period mentioned earlier and, with respect to those carpenters whose names he recognized, he was able to identify previous projects on which they had worked under him or otherwise explain how they fit his hiring criteria. There were other names, however, which he was unable to identify as being former employees or referrals or transfers by other Ellis-Don superintendants, and there are examples of such referrals both before and after May 24th. In examination in chief, Corley denied that his failure to hire the grievor had anything to do with his being black. He said the man who served as carpentry steward and health and safety representative on his site was a black carpenter whom he had specifically asked to have transferred to his site from another site. He also said there were other black employees working on the project. In cross-examination he conceded that the two other black employees in question had been transferred to the site after this grievance was filed.
There was no allegation that Corley's decision not to hire the grievor had anything to do with his job skills. There was certainly no allegation that his work at the TD 4 project had been deficient in any way. Mr. Uroic was called as a witness by the applicant. He did confirm that Corley knew him from a project thirteen years earlier. In his examination he was asked to and did describe the work that Corley assigned to him; this was in response to a claim Corley made in cross-examination that the nature of the work in the deep sump required someone with special skills or expertise.
The grievor, Ucal Powell, testified next. We have noted earlier his prior experience, membership in the union and period of employment at the TD 4 project. The grievor testified that when he was laid off from that project on April 24th, it was because of shortage of work. The foreman had apologized for the short duration of his employment, and suggested that he go to the Toronto Western Hospital project to see "Fred", because Fred would be needing carpenters within a few days. Powell went immediately to the project and spoke to the foreman, Manuel Pinto. He told them he had just been laid off from the TD 4 project. Pinto told him that he would be needing carpenters soon and would give him a call. Parenthetically, we note it was Corley's testimony that Pinto could hire for this project only in consultation with him.
Powell did not receive a call from Pinto, and returned to the site the following Friday. He then spoke to Corley. He says he told Corley that he had recently been working at the TD 4 project. He emphasized this point in all his discussions with Corley and Pinto, because he realized that he was more likely to be hired if he had a track record with Ellis-Don. He told Corley the name of the Ellis-Don supervisor who had referred him to the hospital site. Corley told the grievor to see Manuel, the foreman. He went and saw the foreman, who said that he had the grievor's telephone number and would give him a call as soon as he was needed. The grievor did not receive a call, and continued to attend the site at least once a week. He spoke to Corley on each occasion, and would be told that he was not ready for carpenters, that there was not any work that day and that he would be called as soon as he was needed. He could see other carpenters on the site, and the number of carpenters he could see increased with each visit.
The grievor spoke with Corley twice on May 24th. In the first conversation, Corley said that he was not hiring and that Powell should see the foreman the following morning at 7:30 a.m. Powell thanked Corley, and started to leave the site. As he was leaving, a man approached him and asked where the superintendent was. That man, it transpires, was John Uroic. Powell directed him to the superintendent's trailer, then watched to see what happened. Having seen what he thought, correctly, was the hiring of Uroic, he returned to speak to Corley. He was stunned. He asked Corley why he had hired Uroic. According to the grievor, Corley's response was that he hired the man because he had been coming and speaking to him and to the foreman "over and over". The grievor then said, "isn't that what I have been doing?" When he got no response, he told Corley, "employing one black guy won't absolve you under the Human Rights Code." The grievor says that he remained calm, and that Corley got angry at that point. The grievor did not want to get into an argument with Corley, and left. He tried to contact the chief of personnel at Ellis-Don to complain about his treatment, but was not put through. This grievance was filed a few days later.
The last witness for the applicant was Karen Brace, the dispatcher in the applicant's hiring hall. She testified that she was the one who had completed the job referral slips and referral request records which had been put to Corley in cross-examination. She described the system of operation in the hiring hall, and established that the records in question would be accurate records of the date of each request or referral, the name of the person making the request or being referred and the particular project to which the referral related. Those records were then introduced as exhibits without objection by the respondent.
When the applicant closed its case, counsel for the respondent had the opportunity to lead reply evidence. It was apparent to all involved in the hearing that had counsel indicated a desire to introduce reply evidence, the hearing would have been adjourned to a date in November. Counsel for the respondent elected to call no reply evidence. Counsel for both parties then agreed to submit argument in writing. The deadline for submission of principal argument by both parties was set at August 31, 1984, several weeks after the hearing date, in order to accommodate the vacation plans of counsel for the respondent. September 10th was fixed as the deadline for submission by either party of any written reply to the principal argument of the other. The hearing concluded on those terms.
On August 30, 1984, counsel for the respondent wrote to the Board requesting that the Board's hearing be reconvened. The body of that letter reads as follows:
We are the Solicitors to Ellis-Don in the above-noted matter and appeared at the Hearing on July 23, 1984. At that Hearing, the Union put into evidence certain documents indicating that individuals had been requested from the hiring hall on May 24, 1984 and dates following. This was a key element of the Union's case. Ellis-Don had had no prior knowledge or notification of this allegation, and had obviously no opportunity to check this allegation against their own records. Our Client has now had an opportunity to perform such a check. According to Ellis-Don's payroll records no carpenters, beyond Mr. Uroic, were hired at the relevant site between May 24, 1984 and June 11, 1984.
On July 23, 1984, it was left that the Parties would exchange written submissions on August 31, 1984. Obviously in light of the above-noted information we are requesting that the Hearing be reconvened and the Employer be given the opportunity to call reply evidence. We suggest that there is no prejudice to the Union as it will clearly have the opportunity to cross-examine all witnesses called by the Company and, in the event of an ultimate adverse ruling, the Grievor would not suffer in terms of remedy.
We reiterate that the Employer was caught completely by surprise by Exhibit 5, and respectfully request that the Board re-open this matter.
Counsel for the applicant was copied with this letter, and strongly opposed the application to reconvene and reopen the hearing. Counsel for the applicant filed its principal written argument on August 31st in accordance with the Board's direction. On September 11th, counsel for the respondent filed a principal argument which dealt with the merits but reiterated the request contained in the above quoted letter. No reply arguments have been filed.
We propose to deal first with the request to reconvene and reopen the hearing to permit the respondent to adduce the additional evidence referred to in its counsel's letter to the Board of August 30, 1984. The request is premised on the respondent's alleged surprise at the introduction by the union of evidence with respect to the respondent's requests for carpenters for the subject site in the period beginning May 24, 1984. We are bound to observe that the grievance served on the employer at the end of May made it clear that Mr. Powell was alleging discriminatory refusal to hire on May 24, 1984. While the respondent might not have known what evidence the applicant was in a position to tender in order to support this claim, one question which would occur to anyone facing such a charge is "who did we hire on and after that day, and why?". The investigation counsel says the respondent made after the hearing was one that might well have been made before the hearing. We are bound to observe also that the claim of surprise made in counsel's letter of August 30, 1984, was not made at the hearing of July 23rd. There was no suggestion at that time that the union's evidence had introduced an unexpected element which necessitated any further investigation on the part of the respondent. Not only was surprise not expressed, the respondent elected to call no reply evidence, and made that election after hearing the union evidence by which it now says it was caught by surprise. There is nothing in counsel's letter to explain why the investigation in question was only completed five weeks after the hearing concluded. There is no suggestion that this evidence could not with due diligence have been unearthed more quickly and, indeed, prior to the hearing. We observe also that the records introduced by the union are evidence of requests on behalf of the respondent for referral of carpenters during a period when the grievor was being told there was no work. Whether or not the respondent's payroll records would be determinative of the question whether anyone had been "hired" at that site in the time frame referred to in counsel's letter, they would tell us nothing about whether requests for referral were made. This "new" evidence would not be unequivocally dispositive of the issues raised by the evidence the parties were prepared to introduce on the date fixed for hearing of this matter. In all the circumstances, we are not prepared at this stage to permit the respondent to resile from its decision to call no evidence. We turn, then, to the merits of the grievance.
Each of the parties addressed in argument the location and nature of the burden of proof in cases such as these, and each relied on the following passage from Re Inglis Ltd., (1978) 1978 CanLII 3481 (ON LA), 17 L.A.C. (2d) 380 (Beck) at p. 382:
Discrimination is an extremely serious charge and the onus of proof lies upon the party making it. Is it sufficient merely for the union to set out what happened on the particular day and say that that conduct is per se discrimination without more? It is an accepted rule of evidence that where the facts lie peculiarly within the knowledge of one of the parties, very slight evidence may be sufficient to discharge the burden of proof resting on the opposite party. It seems to me that that rule is applicable in this case. In terms of proof reasonable inferences may be drawn from uncontested facts — inferences that call for an explanation. This is particularly so where one of the parties possesses particular knowledge with respect to essential facts — in this case the reason for the differential treatment. This is not to say that the burden of proof is shifted. It is rather to say that an onus of credible explanation is put on the party who alone may have knowledge of the actual reasons for the particular conduct in question: see Retail, Wholesale & Department Store Union and National Automatic Vending Co. Ltd. (1963), 63 C.L.L.C. 1161, para. 16,278 at p. 1164 (Ont. L.R.B.), where this point of evidence is discussed, albeit in a different context.
Although the discrimination in question in that case was discrimination on the basis of union affiliation, Professor Beck's observations on the burden of proof and the onus of adducing evidence bear equal application to the issue in this case; (for a helpful review of subject of burden of proof in discrimination cases see Base-Fort Patrol Ltd. v. Alberta Human Rights Commission, 83 CLLC ¶ 17,010. (Alta.Q.B.)). To succeed, the grievor must establish, on the balance of probabilities, that he was not hired because of his race or colour. In assessing whether proof has been made out, it is useful to bear in mind the observations of Professor Borins, as he then was, in Kennedy v. Mohawk College (as quoted in Suchit v. Sisters of St. Joseph, 83 CLLC ¶ 17,009):
Discrimination on the grounds of race or colour are frequently practiced in a very subtle manner. Overt discrimination on these grounds is not present in every discriminatory situation or occurrence. In a case where direct evidence of discrimination is absent, it becomes necessary for the Board to infer discrimination from the conduct of the individual or individuals whose conduct is in issue. This is not always an easy task to carry out. The conduct alleged to be discriminatory must be carefully analyzed and scrutinized in the context of the situation in which it arises. In my view, such conduct to be found discriminatory must be consistent with the allegation of discrimination and inconsistent with any other rational explanation. This, of course, places an onus on the person or persons whose conduct is complained of as discriminatory to explain the nature and purpose of such conduct. It should be added that the Board must view the conduct complained of in an objective manner and not from the subjective viewpoint of the person alleging discrimination whose interpretation of the impugned conduct may well be distorted because of innate personality characteristics, such as a high degree of sensitivity or defensiveness.
The grievor's prima facie case rested on the observation that on May 24th Corley told him he was not hiring carpenters, and then hired a white carpenter, John Uroic, within a matter of minutes thereafter. As the only apparent difference between them was the colour of the grievor's skin, the failure to offer an explanation would have been fatal to the respondent's defence. The explanation offered is that Corley was not familiar with the grievor's work, but did know Uroic's work because they had worked together a number of years earlier. The respondent says the evidence establishes that Corley did not hire people whom neither he nor his carpentry foremen knew, unless they came on a recommendation from another Ellis-Don project superintendent. We accept that Corley considered a track record with Ellis-Don a prerequisite to site hiring of carpenters, but must note Corley's admission that he would call the union hiring hall for carpenters if he could not fill his needs with men transferred from other Ellis-Don sites and on-site applicants who met his hiring criteria. The evidence suggests that his need for carpenters had obliged him to do that on this project. We accept the evidence of the union's hiring hall dispatcher about the numbers of men requested for this project from time to time and the names of the men who were issued referral slips as a result of those requests. It is true, as counsel argued, that some of those men were requested by name. On the basis of what the parties advised us about the union's practices with respect to site or name hiring, in cases where men were requested by name, the request to and referral by the hiring hall may only have been procedural formalities resulting from an on-site hiring which fit Corley's criteria. Not all of the referrals fall within that category, however: Corley did not recognize several of the names of men who had been referred to the site in the period during which the grievor had been seeking work at the site as well as the period immediately following May 24th. That suggests that those men had not been requested by name or site-hired in accordance with Corley's criteria, in other words, it suggests that Corley or persons acting under his instructions requested carpenters without specifying them by name. The impression that Corley could not fill his needs with carpenters he knew is strengthened by Corley's evidence about the work in the deep sump. It is apparent to us that Uroic's only special qualification for that work was that Corley knew him. Corley testified that completion of that work had been important to the advancement of the project and that he had been in need of someone to do it for a week when Uroic arrived on the site. We can understand Corley's desire to have carpenters about whom he could be confident; it is apparent from the evidence that these were in short supply. That, in the final analysis, is what makes it difficult to accept Corley's account of his dealings with the grievor.
The grievor says that he told Corley on more than one occasion of his recent work for Ellis-Don at the TD 4 project, and referred to the superintendent at that project by name. Corley says there was no mention of the TD 4 project, and only a vague reference to past employment with Ellis-Don. Having seen and heard them both testify, we accept the grievor's evidence on this point. The grievor was a more credible witness generally, and was certainly more credible on this issue. It was in his interest to make the most of his recent employment with the very employer from whom he was seeking further employment, and we believe him when he says he did. We cannot accept counsel's explanation that if the TD 4 project was mentioned, Corley simply failed to hear it. If we are to accept anything Corley says, we must conclude he was on the lookout for carpenters who had worked for Ellis-Don before, particularly carpenters who, like the grievor, were just coming off other Ellis-Don projects. In those circumstances, it is difficult to imagine that he would not hear the very thing he hoped to hear from job applicants, unless he hoped not to hear it from this applicant. Even if we accepted as true Corley's recollection of his meetings with the grievor, it seems odd, in the circumstances as we have described them, that he would not have followed up a vague mention of former work with Ellis-Don by asking "when", "where" and "with whom".
It is not without significance that what Corley told the grievor at the site was not what he told us. He told the grievor that he was not hiring that day. He told us that he was hiring, but would not hire the grievor because he did not fit the aforementioned criteria. We asked Corley why he did not give the grievor that reason, and he replied that he thought he would have had problems with the union. He was entirely unable to explain what kind of problems he could possibly have feared. Indeed, it was not long after giving that answer that Corley observed that he might have told the grievor that he would not hire him because he did not know his work. He said this was possible because he had given that explanation to other carpenters whose on-site job applications he had rejected. We are satisfied that he did not give that explanation to the grievor, and that his testimony in this area was an attempt to obfuscate the absence of a rational explanation for his response to the grievor's application for work. Corley's contemporaneous explanation to the grievor of his hiring of Uroic is also instructive. Even if his version of what he said is believed, it is apparent that he did not say that he knew Uroic's work. However, we believe the grievor's testimony that Corley told him he had hired Uroic because he had come several times looking for work. This was untrue; Uroic had not been on the site before. More importantly, it was true of the grievor, and had not led in his being hired. It is as though the grievor was, for Corley, both inaudible and invisible.
Counsel for the respondent submits that the presence on this site of one black carpenter is of "paramount importance" in this case. Counsel notes Corley's evidence that this man had been transferred to the site at his request, and argues that "it simply does not make sense to suggest that a racist would specifically request that a black employee be transferred to his project." While we agree that this evidence is relevant to the question before us, it is not determinative. We are concerned here with an allegation of racial discrimination, not racial antagonism. We are not called upon the decide whether Mr. Corley is a racist, nor whether he is consistently discriminatory. The question before us is whether Corley's failure to hire the grievor was motivated by the grievor's race or colour. While the matter is not free from doubt, the applicant is not required to establish its case beyond a shadow of a doubt. When we weigh all the evidence, we find it more probable than not that Corley's refusal to hire the grievor was discriminatory and violated Article 5.04 of the collective agreement between the applicant and the respondent.
We note there was not the slightest suggestion that the respondent company itself has any discriminatory hiring policy, or that it was aware of or condoned discriminatory practices by any of its superintendents. It is, however, legally responsible for the behaviour which we have found was in violation of the collective agreement.
The question of remedy was not addressed in evidence or argument; both parties wished to defer that issue until the issue of liability was determined, and requested that we remain seized of that issue in the event the grievance was upheld. Accordingly, we will defer determination of the nature and extent of the appropriate remedy, and remain seized of that issue while the parties attempt to resolve it by agreement.