[1987] OLRB Rep. April 589
2659-85-M The International Brotherhood of Electrical Workers, Local Union 1788, Applicant v. The Electrical Power Systems Construction Association and Ontario Hydro, Respondents
BEFORE: Ian C. Sprin gate, Vice-Chair, and Board Members W. A. Correll and C. A. Ballentine.
APPEARANCES: A. J. Ahee and J. Mulhall or the applicant; M. Patrick Moran, James Ella and John A. Tomlinson for the respondents.
DECISION OF THE BOARD; April 30, 1987
This is a referral of a grievance to the Board pursuant to the provisions of section 124 of the Labour Relations Act. The applicant trade union alleges that Ontario Hydro unreasonably refused to hire the grievor, Mr. Craig Jordan, as an electrician at its Darlington generating station. The company contends that due to the grievor's previous poor employment record with it, which culminated in his dismissal, it was entitled to refuse to hire him.
The grievor was initially hired by Ontario Hydro as a first-year apprentice on July 4, 1978. He commenced his employment at the Pickering generating station. The grievor's supervisors viewed him as an intelligent individual with a good grasp of the relevant theory, but who failed to consistently apply himself on the job site. On February 27, 1981 the grievor was given a written warning advising him that his work performance had deteriorated to the point where he was rated below average with respect to his attitude, attendance, punctuality, cooperation with other employees, and work volume. In June 1981 the grievor resigned his position to take flying lessons in New Brunswick. An evaluation prepared on July 18, 1981, after his departure, ranked the grievor as having been "fair" in terms of aptitude, work quality and co-operation, and "poor" in terms of progress and effort. His most recent foreman commented on the evaluation form that "this apprentice has had continuing problems with attendance and effort".
The grievor returned to employment with Ontario Hydro in 1982. In June of that year he was transferred to London. The applicant union called as a witness Mr. Larry Cook, who had been a sub-foreman on the London job. Mr. Cook testified that the quality of the grievor's work had been very good, and rated his overall performance as average. Mr. Cook's assessment, however, was not shared by management. On October 1, 1982 the grievor received a letter complaining about a lack of effort on his part. On March 4, 1983 he was advised that he was being terminated due to his below-average work performance. As the result of a grievance challenging the discharge and related settlement discussions, the grievor's discharge was changed to a 13-day suspension. It was also agreed that the grievor would report for work in Niagara Falls.
The grievor reported to work in Niagara Falls on April 18, 1983. Mr. Cook, who was also a sub-foreman on this job, rated the grievor's performance as average. For its part, the company raised no complaints about the grievor's performance during this period. In December 1983 the grievor was laid off due to a lack of work. He was recalled to Ontario Hydro's Pickering generating station in December 1984.
The applicant called Mr. Ron Gilbert, a tradesman who had worked with the grievor for a few months at Pickering, to testify. According to Mr. Gilbert, the grievor had been a better-than-average worker who did an average day's work. Mr. Gilbert's assessment, however, was not shared by management. On March 28, 1985 Mr. W. K. Scott, the electrical general foreman on the site, advised the grievor in writing that his work performance and attendance were unsatisfactory. Mr. Scott referred to a lack of attentiveness on the grievor's part. Subsequent to May 22, 1985 Mr. D. Atkinson was the grievor's foreman at Pickering. Mr. Atkinson testified that he found the grievor to be "very bright" but that he demonstrated a poor attitude and had low productivity caused in large measure by his frequently being away from his place of work. On July 9,1985 the grievor was suspended for three days for not being at his proper job location. On November 11, 1985 he was discharged. We were not advised as to the specific events giving rise to the discharge, but presumably they related to management's continuing dissatisfaction with the grievor's work performance. A telegram sent to the grievor, with a copy to the union, advising him of his discharge read as follows:
"Following an investigation of events leading up to your suspension on Friday, November 8, this will advise you that you are being discharged for cause effective Monday, November 11, 1985."
The union grieved the discharge. Mr. J. Mulhall, the Business Manager of Local 1788, met with the company at a step one grievance meeting. Subsequently a three-person union grievance committee met to consider whether the grievance should be processed further. Mr. Mulhall explained the company's position at the step one grievance meeting to the grievance committee. The grievor then spoke on his own behalf, arguing in favour of his reinstatement. The grievance committee concluded that there were arguments in support of both the company's and the grievor's positions. The committee concluded that the union should not process the grievance any further. Instead, the committee recommended to the grievor that he write the examinations to qualify for his certificate of qualification as a journeyman, and advised him that once he had his certificate the union would refer him out to work. Local 1788 represents only employees of Ontario Hydro. Accordingly, any referral of the grievor would be to work with the respondent. The grievor acquired his certificate of qualification on January 20, 1986. Apparently he completed the requirements for the certificate sometime earlier.
At the time of the grievor's 1985 discharge, the company was actively engaged on construction work at its Darlington generating station. In November, 1985 Mr. James Ella, the company's personnel officer at Darlington, was advised of the grievor's discharge from Pickering. Mr. Ella was already aware of the grievor's 1983 discharge and reinstatement. Mr. Ella was concerned that the union might refer the grievor to work at Darlington. Accordingly, on November 19, 1985 Mr. Ella sat in on a meeting at Pickering where local management considered the grievance challenging the grievor's discharge. Mr. Ella, who was present only as an observer, asked if he could be given the grievor's personnel file. His request was refused since management at Pickering felt they required the file. On or shortly prior to January 13, 1986 Mr. Ella again requested the file, this time receiving it on the same day. Following a review of the file Mr. Ella concluded that the grievor was neither competent nor reliable and should not be employed at Darlington. Mr. Ella then composed a letter to the grievor which he had delivered to the Darlington employment trailer. The letter read as follows:
To Mr. Craig Jordan:
This is to advise you that Ontario Hydro refuses to employ you at its Darlingion Project on the grounds that you are deemed to be neither reliable nor competent.
On December 5, 1985 the company filed a help requisition with the union seeking the services of 13 electricians and 7 electrician welders at Darlington. The grievor was one of the electricians selected by the union to be referred to the site. On or about January 13th, the grievor telephoned the personnel trailer at Darlington and advised an employment expediter that he would be reporting to work the following day. On the following day, however, the grievor called in to say he would be delayed until January 15th. Mr. Ella, who happened to be in the trailer, advised the grievor that if he reported to the site he would not be hired. Notwithstanding this warning, on January 15th the grievor reported to the job site with a referral slip from the union. He was handed Mr. Ella's letter of January 13th. The grievor then filed a grievance concerning the company's refusal to hire him, and it is this grievance which is now before us.
The provision in the collective agreement which relates to the referral of tradesmen to a company job site provides as follows:
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.
The issue of whether the company is entitled to refuse a tradesman referred by the union was discussed in Ontario Hydro, [1983] OLRB Rep. Jan. 99. In that case the Board concluded that the company does not have an unbridled right to reject tradesmen referred to it by the union. The company does, however, have the right to reject persons it believes to be unreliable or incompetent or otherwise unqualified provided that its decision in this regard is made reasonably, in good faith and without discrimination. The relevant portions of the Board's decision state as follows:
From this perspective, therefore, it is not surprising 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.
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 working 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 ball provision.
But 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 re-employ 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.
In line with the Board's reasoning in the earlier Ontario Hydro case, for the union to succeed in these proceedings it must demonstrate that the company's refusal to hire the grievor at Darlington was unreasonable, arbitrary or in bad faith. The company had discharged the grievor as an unsatisfactory employee approximately two months before it refused to hire him at Darlington. There was no reason advanced to the company as to why the grievor, if hired, would likely be a better employee than previously. These considerations, standing by themselves, suggest that the company's decision not to rehire the grievor was not unreasonable, arbitrary or in bad faith. Indeed, the Board in the Ontario Hydro case referred to above concluded it would be reasonable to infer a management right to reject a person previously dismissed by the employer. The union, however, contends that an important additional consideration in this case is the fact that when it discharged the grievor, the company did not stipulate that he was not eligible to be re-hired. The union submits that the company's general practice is to advise the union and the employee involved when a discharged employee is not eligible to be rehired, and lacking such advice in the case of the grievor it was reasonable to believe that he could be rehired. The union further contends that had it been advised that he was not eligible to be rehired, it would likely have challenged the grievor's termination through the grievance-arbitration procedure.
The so-called "no-rehire policy" relied on by the union has its roots in a letter written February 5, 1979 from Mr. G. A. Pickell, at the time the company's manager of construction labour relations, to Mr. Hank Schueler, the then business manager of Local 1788. According to the testimony of Mr. Ella, Mr. Schueler had raised concerns about tradesmen waiting for considerable periods of time to be referred to jobs only to be turned down by the company, and these concerns had prompted Mr. Pickell to write his letter. The letter reads as follows:
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:
In the case of a reduction of staff, an employee will not be given 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.
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.
A no-rehire 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.
There is no evidence to suggest that the policy referred to in the letter was ever reviewed at a Standing Committee meeting.
When giving his evidence in chief, Mr. Ella testified that the letter quoted above was related to a "name-hire" system of hiring provided for by the collective agreement in place at the time, which system is no longer in use. According to Mr. Ella, the company does not currently have a no-rehire policy at Darlington in the terms set out in Mr. Pickell's letter. Mr. Ella stated that Darlington does have a policy of not re-hiring a former employee if he is still in possession of company equipment, and that an employee terminated due to absence for three consecutive shifts might be given a no-rehire status for three months, but that no other no-rehire policy is in effect. Mr. Ella did acknowledge that there have been instances where employees not eligible for rehire have been advised that this was the case. The union filed a number of letters dated in 1983, 1984 and 1985 from the company to former employees, with copies to the union, advising them that they were not eligible to be re-hired, or not eligible to be rehired on a specific job, or for a specific period of time. It was the uncontradicted evidence of Mr. J. Mulhall, the union's business manager, that the union had received copies of many other similar letters.
The Ontario Hydro case, referred to above, involved the refusal by the company to rehire Mr. William Gilroy after he had voluntarily terminated his employment. The company had not sent Mr. Gilroy or the union a "no-rehire" letter at the time he left the company's employ, a fact the company relies on in these proceedings. In the Gilroy case, however, the company's refusal to rehire Mr. Gilroy did not arise out of his previous job performance. Rather, after he had left the company's employ, management became aware of certain alleged activities on his part which caused it to conclude that he was a security risk. The company then notified the union that if it referred Mr. Gilroy to work, he would not be hired. The facts of this case are clearly different from those relating to Mr. Gilroy, for here the company was aware of its concerns relating to the grievor at the time of his discharge.
The applicant issued a Summons to Witness to Mr. W. S. O'Neill, Ontario Hydro's director of staff relations. Prior to his fairly-recent promotion into this position, Mr. O'Neill had been the company's manager of construction labour relations. Rather than have Mr. O'Neill called as a witness, the parties agreed that an August 7, 1986 letter from Mr. O'Neill to counsel for the applicant could be filed in evidence. That letter reads as follows:
Dear Mr. Ahee:
No Rehire Policy - Ontario Hydro Construction
As I indicated when I talked to you last week, Ontario Hydro has a fairly long standing policy pertaining to the re-employment of terminated tradesmen. This policy is generally referred to as the "no rehire policy".
Attached is a copy of the 1979 letter to Mr. H. Schueler which sets out the policy in detail. This policy was established to provide line managers in both Lines and Stations and Generation Projects Construction with guidelines on the assignment of no rehire status. Although this was set up as a policy, it was never put in any formal policy document. However, it has not been withdrawn by Ontario Hydro.
Attached to Mr. O'Neill's letter was a copy of the February 5, 1979 letter from Mr. Pickell to Mr. Schueler the text of which is set out earlier in this decision.
- Notwithstanding Mr. Ella's evidence to the contrary, we are satisfied that at all material times the company had a general policy of advising a discharged employee that he was not eligible to be rehired if such was the case. Mr. O'Neill's letter makes it clear that the policy was as set out in Mr. Pickell's letter to Mr. Schueler. That letter states, in part, as follows:
"A no-rehire 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".
The grievor was not advised at the time he was terminated that he was not eligible to be rehired at Darlington. Contrary to the company's policy, that advice was only given to him some two months later. Because the union relied on the fact the grievor had not been accorded a no-rehire status when deciding not to refer his discharge grievance to arbitration, he was detrimentally affected by the delay. In these circumstances, the company's delay in advising the grievor that he could not be hired at Darlington, and then not hiring him was unreasonable and in breach of the collective agreement. The union contends that the Board should remedy the breach by directing that Ontario Hydro now hire the grievor with full back pay. Such a remedial order, however, would put the grievor in a better position than he would have been had he been advised that he was not eligible to be rehired at Darlington at the time he was terminated. Had he been so advised, the union would likely have taken his discharge to arbitration. Given the grievor's record, one cannot say with certainty whether or not an arbitration board would have upheld his discharge. On balance, however, we believe it likely that an arbitration board would have directed that the grievor be reinstated, but not award him any compensation. In these circumstances, as a remedy to the grievor, we direct that the company now employ him at Darlington. The company is also directed to pay the grievor the equivalent of two months pay, representing the approximate time between when, in accordance with its policy, the company should have notified him that he was not eligible to be hired at Darlington and when he actually received such notification.
The Board will remain seized of this matter in the event the parties are unable to agree on the amount of compensation payable to the grievor.