Ontario Labour Relations Board
[1985] OLRB Rep. April 570
0963-84-M Ontario Allied Construction Trades Council and Laborers International Union of North America Local 597, Applicant, v. The Electrical Power Systems Construction Association and Ontario Hydro, Respondents
BEFORE: N. B. Sattefield, Vice-Chairman, and Board Members J. Wilson and C. A. Ballentine.
APPEARANCES: David Strang, Gerry Flook and Joe Connolly for the applicant; Janice Baker and Ivar Starasts for the respondent.
DECISION OF N. B. SATTERFIELD, VICE-CHAIRMAN AND BOARD MEMBER J. P. WILSON; April 29, 1985
The applicant has referred a grievance in the construction industry concerning the interpretation, application, administration or alleged violation of a collective agreement to the Board for final and binding arbitration pursuant to section 124 of the Labour Relations Act.
The grievance alleges that Kevin Callan, a construction labourer employed by Ontario Hydro (Hydro), was discharged by Hydro on January 11, 1984 without just cause. The reason for discharge advanced by Hydro is that Callan was absent from his employment for three consecutive days, January 9th, 10th and 11th, 1984 without reporting to Hydro pursuant to a long established rule.
During the hearing, the Board admitted some evidence respecting the statements alleged to have been made in the course of meetings between the parties relating to this grievance at steps 1 and 2 of the grievance procedure. During his argument on the merits of this grievance, counsel for the applicant requested the Board to reconsider its admission of that evidence. The Board consistently has declined to look behind settlement attempts by parties appearing before it on any application or complaint, except in those few instances when the fact of settlement is in dispute and it is necessary for the Board to examine the settlement efforts to see whether settlement was attained. The rationale for the Board's position is that, in order to support and encourage resolution of disputes by settlement rather than by litigation, the Board wants parties to know that they can approach the settlement process with the assurance that they can speak openly and frankly about settlement alternatives without fear of prejudicing the merits of their case if it must be litigated in the end. There may be individual cases where unique circumstances make it necessary for the Board to look behind the settlement attempts, but on reconsideration, the instant case is not one in which there are such unique circumstances as would cause the Board to override its general rule and look behind parties' attempts to settle this dispute in the grievance procedure. For that reason, the Board will give no weight to the evidence with respect to statements made during the grievance procedure prior to this matter coming before the Board for final and binding arbitration.
Dan Bonikowski, concrete superintendent, Barbara Tremblay, project medical attendant, George Wayland, cost accountant, Elton Eshpeter, personnel officer, all employed at Hydro's Darlington Generating Station and Ivar Starasts, a construction labour relations officer for Hydro, testified for Hydro. The Board's decision to give no weight to evidence respecting statements made during the grievance procedure meetings affects all of Starasts' testimony and the bulk of Eshpeter's testimony. Callan testified on behalf of the applicant. Having assessed the credibility of the witnesses, taking into account the firmness of their recall, the clarity with which they related the events about which they were testifying, their ability to resist the influence of self-interest, and their general demeanour, the Board prefers the evidence of the witnesses for Hydro where that evidence conflicts with Callan's. There were internal inconsistencies in his evidence; his replies to direct questions in cross-examination were frequently equivocal; and, when he was challenged in cross-examination on the critical evidence of the message he left with Hydro's security, he twice altered his testimony. Further, he testified in chief that he talked to Hydro's security for five minutes on January 6th. When confronted in cross‑examination with evidence to the contrary, he admitted that he had spoken to security for only one minute.
Callan was referred through the applicant's hiring hall and was employed by Hydro on January 4th, 1984 as a construction labourer. On January 5th he was injured on the job. Tremblay, who works in Hydro's first aid department at the Darlington Generating Station, sent Callan to the Bowmanville Hospital. Callan reported back to the project by approximately 10:30 a.m. the same day and, on recommendation of the examining physician was assigned light duties. The physician's report which Callan brought back with him from the hospital contained the diagnosis that Callan had suffered no bone injury, only bruising. The physician recommended that he be kept on light duties for two days and then be returned to his normal duties. Callan left work early that day, at approximately 3:30 p.m., with the permission of his foreman. The next day, Friday, January 6th Callan did not work. He called Hydro's security at the start of his shift and reported that he would not be at work that day. He did not call Hydro again until January 23rd. Hydro terminated Callan's employment effective January 11th because he had been absent for three consecutive shifts, January 9th, 10th and 11th, without reporting his absence.
Construction employees hired by Hydro to work at its Darlington Generating Station are given a wallet-sized card with instructions about what telephone numbers to call and what information to provide if they are going to be absent from work. One of these cards was issued to Callan. The instructions on the card relevant to the reporting of absences are as follows:
All absences, other than pre-arranged leave, must be reported by the employee (not a friend or car pool rider) within one hour after the commencement of the shift on the first day of the absence, regardless of cause.
The report may be made by telephone to one of the numbers listed on the face of this card. At that time you should provide the following information.
(a) Your name and badge number.
(b) Your Foreman's name.
(c) Your reason for absence.
(d) Your expected date of return to work.
An unreported absence of three (3) consecutive shifts may be just cause for termination of employment.
The last paragraph on the card sets out the rule on which Hydro was