Ontario Labour Relations Board

[1987] OLRB Rep. June 899

2381-86-M United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, on its own behalf and on behalf of Local Union 463, Applicant V. Ontario Hydro and The Electrical Pwer Systems Construction Association, Respondents

BEFORE: Robert J. Herman, Vice-Chair, and Board Members I. M. Stamp and H. Kobryn.

APPEARANCES: Paul Timmins and Brian Christie for the applicant; C. C. White, Bruce Young at .d Jim Ella for the respondents.

DECISION OF VICE-CHAIR ROBERT J. HERMAN AND BOARD MEMBER H. KOBRYN; June 29, 1987

1. This is an arbitration under section 124 of the Labour Relations Act, grieving a breach ol the agreement in the respondent Ontario Hydro's refusal to rehire the grievor, though properly referred.

2. The grievor, Fred Meens, an employee represented by the applicant and covered by the applicable collective agreement, worked for Ontario Hydro (hereinafter also referred to as "the respondent") from December 3rd, 1985 until April 25th, 1986. On January 31, 1986, Meens reported his welding helmet missing. He had set it down to go for more rods, and when he returned it was gone. The helmet was replaced by Ontario Hydro without charging Meens for reimbursement. On March 10, 1986, Meens reported a second item of equipment missing, a pair of fitters gloves, again because he had set them down and left them unattended, and again Ontario Hydro did not charge him for having to replace those gloves. On April 25, 1986, Meens reported missing his welding jacket, another piece of equipment he had laid down and left unattended. As with the previous missing equipment instances, Meens filled out a missing equipment report, and submitted it to the respondent. Hydro investigated all the circumstances, but by the time it could respond, this time seeking reimbursement from Meens, the grievor had terminated his employment. The next working day following April 25th, when he reported the jacket missing, Meens phoned the respondent to quit, as he preferred to work on a project in the Kingston area where he lived.

3. On June 9th, the respondent sent a letter and invoice to the grievor, indicating it was seeking reimbursement of the $46.00 because of the lost welding jacket and indicating that failure to reimburse pursuant to its request might result in the respondent's refusing to rehire the grievor for any subsequent projects. On October 16th, 1986, the grievor was referred to a job by the applicant at the Darlington Plant. The respondent refused to rehire the grievor, though properly referred according to the hiring hall procedure and the collective agreement procedures for referrals, on the basis that the grievor had refused to pay the $46.00 claimed by the respondent. The respondent concedes that the grievor was a competent, fully qualified employee, and the sole reason for refusing to rehire him pursuant to the referral was the non-payment of the $46.00 in question. The respondent did not suggest that the history of lost equipment in any way rendered Meens an unsuitable employee.

4. The issue before the Board is whether Ontario Hydro's refusal to hire the grievor in these circumstances constituted a breach of the collective agreement. The applicable provisions of the collective agreement read as follows:

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

(a) The Association office will request the appropriate Local Union office for tradesmen and apprentices required. The Union will furnish competent workmen on request. The Employer shall have the right to determine com­petency and qualifications and to reject any new applicant and to discharge and discipline any employee for just and sufficient cause.

The Employer shall not discriminate against any employee by reason of hismembership in the Union or his participation in its lawful activities.

(b) The Union members who are resident in the designated geographic area will be referred by the Union for employment through the Association office. As much as their out-of-work list will permit, the Union will supply members on a fan out basis from the project or work location.

The Employer will either hire such persons or substantiate their reasons inwriting for not doing so.

(c) When the supply of tradesmen and apprentices within the geographic area of the project has been exhausted and additional tradesmen and apprentices are required, the Association will contact the International Representative for the trade concerned in order to determine whether Union tradesmen and apprentices are available outside of the geographic area. The United Association will co-operate in providing employment to such Union tradesmen and apprentices on the basis that they be supplied from the near­est location where they are available.

(d) The Employer agrees to hire and employ only members of the United Association when available on all work within the jurisdiction of the Union. Such employees as a condition of their employment shall continue to maintain their membership in the United Association. No one will be employed unless they are in possession of a referral slip from the Local Union office. All employees in possession of a referral slip from the Local Union shall register with the Association office on site prior to commencing work.

Notwithstanding Article 7, section 7.1 if, upon request, the Local Union or the United Association is unable, within three (3) full working days, to supply journeymen, including journeymen with special skills, the Association may secure journeyman from other available sources.

15.2 PAY PROCEDURE ON TERMINATION

(a) An employee who voluntarily terminates his employment will be provided his final pay on the next regular pay day.

(d) If, at the time of termination, an Employer is not prepared to consider an employee eligible for rehire, the employee will be notified in writing and a copy of said notification will be forwarded to the Accredited Union Representative.

Article 31

WELDING TESTS

31.1 / On hire welders must possess the qualifications and class of welding ticket specified by the Employer. It will be at the Employer's discretion whether a welder who does not possess the qualifications and class of welding ticket specified will be hired.

Article 33

PROTECTIVE CLOTHING AND EQUIPMENT

33.3 / The protective clothing and equipment covered in sections 33.1 and 33.2 that is provided by the Employer will be charged out to the employee and the employee shall be responsible for the return of such clothing and equipment to his Employer.

5. Counsel for the applicant began his submissions by emphasizing that the respondent did not object to rehiring the grievor because of any concern over ability to do the work. The sole reason was the outstanding invoice for $46.00 and Meens' refusal to pay that amount. Counsel referred to Article 8.6(a) as being the critical Article before the Board, and particularly the following sentence from that Article:

…The Employer shall have the right to determine competency and qualifications and to reject any new applicant and to discharge and discipline any employee for just and sufficient cause.

The applicant submits that this clause gives the respondent employer the right to determine "competency and qualifications", where those terms refer to trade qualifications or ability to perform the job in question. the word "qualifications" cannot reasonably be construed to include reference to the fact that the grievor might owe money to the respondent. Counsel submitted that the right of the employer "to reject any new applicant" must be read along with the preceding phrase that the employer has the right "to determine competency and qualifications". The right that is given by this clause of the collective agreement is the right of the employer to determine competency and qualifications, and where the employer feels that a referred employee is lacking thereof, the employer has the right to reject that employee, provided he or she is a new applicant. The word "new" in that phrase, in order to give it any meaning, must mean that the phrase confers on the employer the right to reject employees who have been referred for the first time; in other words, employees who are, for purposes of this collective agreement and this employer, "new" applicants. If this clause gave the employer the right to reject any applicant, whether a first time or former employee, then the phrase would have read "to reject any applicant". Inserting the word 'new' in that phrase must mean that any employer right to reject is limited to employees who are applying or are referred to work for the respondent for the first time.

6. Counsel for the applicant further submitted that this interpretation of "reject any new applicant", (that is, that the employer right to reject was limited to applicants who were applying or referred to the employer for the first time) in turn cast light upon the correct interpretation of the entire clause, indicating that the basis upon which an employer could reject a new applicant was on grounds of competency or qualifications. The employer was given the right to determine competency and qualifications and where a new applicant was felt deficient in either of these respects by the employer, the employer was further given the right to reject that new applicant (provided the reasons for so rejecting were given in writing pursuant to Article 8.6(b)). In the instant case, counsel submitted that the grievor was not a "new applicant", as the grievor had worked for this employer up to April 25, 1986 and accordingly, the employer could not rely on any right to reject, however circumscribed, contained in the phrase "to reject any new applicant". Subsection (b) of Article 8.6 did not create a substantive right of the employer to reject, where it indicated that the employer "will either hire such persons or substantiate the reasons in writing for not doing so", but rather established the procedural requirement that reasons be provided in writing where the employer exercised its right to reject under either subsection (a) or (b). Neither (a) nor (b) gave the employer, in the circumstances, a right not to rehire an employee properly referred by the union. Subsection (d) of Article 8.6 made clear that all employees were to be referred by the applicant through the union hiring hall and only where the applicant could not provide sufficient (and competent and qualified) employees within three full working days, was the respondent enti­tled to seek such journeymen elsewhere.

7. The applicant also referred to Articles 31 and 15.2(d). Article 31 gave the respondent a specific discretion whether to hire welders without certain qualifications, emphasizing that where the parties intended that the respondent should have a discretion not to hire those referred by the union, those rights were specifically delineated and described in the collective agreement. Where such discretion was not explicitly given, in the applicant's submission the respondent did not have any such discretion. Article 15.2(d), as with Article 8.6(b), was procedural in nature only, and did not give the employer a right not to rehire, but rather required notice in writing, either at the time of refusal to hire (as per Article 8.6(b)) or at the time of termination (as per Article 15.2(d)), setting out the reasons why the respondent was refusing to employ a given employee. Such procedural requirements were necessary in order to give the employee or the union an opportunity to know the case against the particular employee, and an opportunity to grieve should the employee or union so desire. No substantive rights were conferred upon the respondent by these two articles.

8. In the alternative, the union submitted that if the Board were to find that the employer had a discretion in these circumstances, pursuant to Article 8.6(a) of the collective agreement, to refuse to rehire the grievor, that discretion must be exercised in accordance with the standard set out by the Board in Ontario Hydro, [1983] OLRB Rep. Jan. 99. That test establishes that an employer in rejecting a person properly referred, where undelineated discretion does reside with the employer to do so, can only reject such persons if the employer "believes [them] to be unreliable or incompetent or otherwise unqualified subject to acting reasonably, in good faith, and without discrimination.". In these circumstances, the applicant submits that it is not reasonable for an employee to be rejected, though properly referred, competent, and completely capable of doing he job, for the sole reason that the respondent maintains, without any independent adjudication of the matter, that the employee referred owes it $46.00.

9. Finally, the applicant referred to the Employment Standards Act and the prior Board decision in Ontario Hydro, [1985] OLRB Rep. June 896, for the proposition that to allow the employer to refuse to hire in these circumstances would contravene the spirit, intent and policy contained in sections 7 and 8, of the Employment Standards Act and section 15 of Regulation 285 passed there under. Those sections read as follows:

7(1) An employer shall pay to an employee all wages to which an employee is entitled under,

(a) an employment standard; or

(b) a right, benefit, term or condition of employment under a contract of employ­ment, oral or written, express or implied, that prevails over an employment standard,

in cash or by cheque.

(2) All wages shall be paid at the work place of the employee, or at a place agreed upon by the employer and the employee

(3) All wages due and owing to an employee shall be paid by an employer on the regular pay day of the employee as established by the practice of the employer.

(4) Any payment to which an employee is entitled upon termination of employment shall be paid by the employer to the employee not later than seven days after termination of employment.

8. Except as permitted by the regulations, no employer shall claim a set-off against wages, make a claim against wages for liquidated or unliquidated damages or retain, cause to be returned to himself, or accept, directly or indirectly, any wages payable to an employee.

DEDUCTIONS, ETCETERA, FROM WAGES

15.-(1) Notwithstanding section 8 of the Act, an employer may set off against, deduct from, claim or make a claim against or retain or accept the wages of an employee where,

(a) a statute so provides;

(b) an order or judgment or a court so requires; or

(c) subject to subsection (2), a written authorization of the employee so per­mits or directs.

(2) No written authorization of an employee shall entitle an employer to set off against, deduct from, retain, claim or accept wages for faulty workmanship, or for cash shortages or loss of property of the employer where a person other than the employee has access to the cash or property.

(3) Where an employee has been given or paid a vacation with pay or payment for vacation in excess of the requirements of Part VIII of the Act, no employer shall set off or deduct such excess against or from any vacation with pay, pay for vacation, or payment under section 31 of the Act.

10. Although the applicant concedes that the union referral and hiring hall mechanism does not fit literally under the provisions of the Employment Standards Act set out above, the applicant argues that the policy considerations contained therein, and specifically as contained in sections 8 and 15, strongly mitigate against allowing the employer to refuse to hire an employee because of money allegedly owed to the employer, even where such sums arose out of the employment context. Counsel pointed out that if the grievor had remained employed with the respondent, the respondent could not have deducted the $46.00 it claimed owing from the grievor's pay cheque, as such would clearly be against the provisions of the Employment Standards Act. The Ontario Hydro case (1985) stands for exactly this proposition. What the respondent could have done in such circumstances would be to discipline the grievor, for example for negligence, whereupon the union could grieve the matter and independent adjudication would decide which party was correct, or alternatively, the employer, as with other creditors, could resort to the civil courts for a determination of whether the $46.00 was owing. Either scenario would involve the employer justifying its conclusion, and an independent arbitration or adjudication deciding on the merits of the dispute. The Employment Standards Act provisions in question were designed specifically to prevent an employer using its position of power to unilaterally determine the liability of employees and enforce payment, without any prior resort to independent adjudication of the merits. In the instant case, the employer is trying to do indirectly, because of the special features of the union hiring hall, what it could not do directly as proscribed by the Employment Standards Act.

11. In reply, counsel for the respondent agreed that the crux of the issue is the correct interpretation of Article 8.06(a) of the agreement. Counsel submits that subsection enshrines three distinct rights reserved or given to the respondent employer. When one analyzes the critical sentence, "the employer shall have the right to determine competency and qualifications and to reject any new applicant and to discharge and discipline any employee for just and sufficient cause", it is apparent that three distinct, independent rights are established. The "right to reject" does not flow from the prior established "right to determine" competency and qualifications. The disjunctive "and" used between "qualifications" and "to reject", and in turn between "new applicant" and "to discharge", indicate that three separate independent rights are relegated to the respondent. If it were otherwise, there would be no point to including the phrase "to reject any new applicant", for if the employer had the right to determine competency and qualifications, and the right to reject was limited to matters of competency and qualifications, then the employer would have the same right if the clause read The employer shall have "the right to determine competency and qualifications and to discharge and discipline any employee for just and sufficient cause". The inclusion of the specific right "to reject any new applicant", must indicate that there is a right to reject an applicant for reasons other than those of competency and qualifications. Further support for this interpretation is grounded on the inclusion in the clause of the right "to discharge and discipline" for just and sufficient cause. Counsel for the respondent noted that the right "to discharge and discipline" has nothing to do with hiring, matters covered in the earlier part of the same sentence, thus indicating that different subject matters, which are not logically connected, are included within the same clause in the collective agreement.

12. Counsel for the respondent further submitted that the phrase "new applicant" does not mean that the employer cannot reject a rehire, as in the employer's submission each applicant, referred by the union, is in effect a "new" hire, notwithstanding that they might have worked for the employer previously.

13. Alternatively, if the employer does not have an untrammelled right to reject an appli­cant, it does have a right to reject employees referred by the union for reasons that are wider than competence or qualifications. Specifically, the Board must imply a common sense interpretation to the collective agreement, and ensure that the employer is not required to hire employees referred who are manifestly unsuitable for employment, for example, because they have been discharged for cause the previous day. In this respect, as did counsel for the applicant, the respondent referred the Board to Ontario Hydro (1983, supra). The issue therefore becomes whether the employer acted reasonably in refusing to rehire the grievor because of his refusal to pay the $46.00 for the lost welding vest. Counsel noted that this was the third item of lost equipment within a relatively short time, and the employer had not sought redress from the grievor for the prior two losses. However, Article 33.3 of the collective agreement made clear that employees were responsible for the equipment provided by the employer, and the grievor ought to have been more careful with the equipment, given his two prior losses in similar circumstances. Counsel submitted that the employer had acted reasonably, in that it had given the benefit of the doubt to the grievor on the two previous occasions, but on the third occasion, and in a manner consistent with its own policy guidelines for dealing with such losses, it had decided that the grievor should be responsible for the most recent loss. There was nothing in the Employment Standards Act restricting the employer in this regard, as the clear wording of sections 7 and 8 of that Act and section 15 of the regulations made clear that those provisions and protections were applicable only to employees owed wages by an employer.

14. Finally, the respondent argued that if the Board should uphold the grievance, either on the grounds that there was no unfettered right of the respondent to reject the grievor, or alternatively the respondent had acted unreasonably in rejecting the rehire of the grievor in the circumstances, that the only relief provided ought to be a declaration, rather than damages. The respondent argued that the applicant or the grievor could have mitigated their damages, paid the $46.00 owing, and subsequently grieved, without escalating the dispute to a question of lost wages or com­pensation for the time during which the grievor was unemployed. In effect, counsel argued that the scenario was a variation of the "work now, grieve later" principle and ought to be applied in these circumstances. Another reasonable and viable alternative for resolving this matter was available to the employee, by payment of the $46.00 and grievance, rather than refusal to pay, refusal to rehire as previously warned, and escalating compensation because the employee in question remained out of work.

15. We agree with counsel for both parties that the interpretive crux in this case is the interpretation to be given to Article 8.06(a) of the agreement, and more particularly, the sentence contained therein that gives the employer "the right to determine competency and qualifications and to reject any new applicant and to discharge and discipline any employee for just and sufficient cause." We assess these phrases and the collective agreement in the context of the construction industry and the hiring hall referral system. In this regard we might usefully refer to parts of the Ontario Hydro decision (1983, supra). The analysis and comments set out from that decision appear to us still applicable and we adopt them. In that decision the Board stated as follows:

16. Section 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 [sic] 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. [sic] "(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.

17. One 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 Molson Brewery (Ontario) Limited (1958), 9 L.A.C. 147 (Cross). We note that in 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 tide. We also observe that neither case pertained to the construction industry.

18. The 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.

19. The 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]

34. It 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 employer 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), 1975 CanLII 2128 (ON LA), 10 L.A.C. (2d) 273 (Shime). See also Eton Construction Limited, [1981] 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, [sic] how close will depend on the circumstances of any particular case.

35. 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. 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.

36. Returning to the collective agreement before us, the difficulty in interpreting Article 8.6(a) in the instant case is that either interpretation urged upon the Board would arguably render redundant parts of the sentence in question. Were we to accept the applicant's submission that the right "to reject any new applicant" is limited to grounds of competency and qualifications, then it is not entirely clear why the phrase "to reject any new applicant" was included in that sentence. Absent that phrase, the employer would presumably, though implicitly, have the right to reject an applicant whom the employer had determined was incompetent or unqualified, and the addition of that phrase would not give any additional right to the employer. If the Board accepts the employ­er's submission, that the right to reject is unfettered and applies to all persons referred to it for work, then it is difficult to see what meaning the Board ought to give to the phrase "new appli­cant", and more particularly to the word "new" in that phrase, since that word would be com­pletely redundant if the phrase applies to all people referred to work, whether they are rehires or employees who have never before worked for the respondent.

37. We view as more reasonable, and more consistent with the hiring hall scheme and the other provisions of this agreement, an interpretation of the phrase "to reject any new applicant" as giving the employer the right to reject workers who are referred to it for the first time. The explicit wording of this phrase, and particularly the word "new", must limit the employer's right to reject to those employees or individuals referred to it for the first time. To accede to the employer's argu­ment, and read this phrase as giving the employer an explicit right to reject any applicant referred to it, whether for the first time or a rehire, would be to render completely redundant the word "new" in that phrase. Accordingly, the employer can only found a right to reject, based on this phrase, in circumstances where an employee is referred to it for the first time. By common ground Meens was not a "new applicant", and it therefore follows that the employer cannot justify its rejection of him on the authority of the phrase "to reject any new applicant". Parenthetically we note that there was neither evidence nor submissions before the Board indicating that the grievor might be a "new applicant", or alternatively, describing the practice of the parties and how they might have considered which employees might be "new applicants". In short, there was nothing to suggest that Meens qualified as a new applicant; rather, the employer argued that the phrase "new applicant" did not restrict the right to reject to new applicants but applied equally to all applicants.

38. The union submitted that the "right to determine competency and qualifications" in Article 8.6(a) indicated that the right to reject new applicants must only be exercised for such rea­sons. We do not find it necessary, or appropriate, for us to comment upon the basis on which the employer might reject new applicants, whether solely on the grounds of competency or qualifica­tions or for other reasons, as in our view the employer cannot in the circumstances before us rely upon its right "to reject any new applicant". Accordingly we need not consider how the employer might exercise that right in circumstances involving a "new” applicant.

39. Although the employer was not entitled to reject Meens based upon its right to "reject any new applicant", we must next ask ourselves whether it was entitled to reject Meens based upon its "right to determine competency and qualifications" as set out in Article 8.6(a). Again, given the language of the clause', the other provisions of this agreement, and the context of the hir­ing hall scheme, we read this phrase as giving the employer the right to reject applicants, including rehires such as Meens, who in the employer's opinion are not competent or are incapable of per­forming the job in question. Where an employee had previously worked for the respondent, and had been both competent and qualified to do the work, the employer would not have the right under this collective agreement to reject that employee when referred to a further job, at least unless some intervening event had brought into question the competence or qualifications of the employee in question. Article 15.2(d) deals specifically with prior employees (including those, as in the instant case, who voluntarily terminate their employment, cf. Article 15.2(a) and (d)) who the respondent found to be incompetent or unsuitable, and together with 8.6(a), protects the employer from rehiring employees lacking the requisite ability. Once the employer has employed individ­uals, and assuming those employees have properly performed the work and have demonstrated their competency and qualifications, the employer must rehire such employees when referred to it, properly, by the applicant in the future. The right to reject is specifically limited by the language of 8.6(a), with respect to applicants other than new applicants, to grounds of competency and qualifi­cations. Article 8.6(d) in effect requires the employer to hire proper referrals, albeit subject to its express right to reject as contained in subsection (a).

40. Thus, although an employee is not a new applicant and has previously worked for the employer, the employer still retains the right to reject that employee when referred to it, provided it Joes so solely on the grounds of competency or qualifications. If the respondent's concerns over the competency or qualifications of the referred employee arise from prior work, then the respon­dent is required by Article 15.2(d) to indicate, at the time of termination, that the employee may not be rehired and to indicate in writing the reasons thereof. Article 15.2(d) only requires the employer to indicate its decision not to rehire if, at the time of termination, the employer is in a PC sit ion to make that decision. We do not read the agreement as preventing the employer from relying on matters brought to its attention subsequent to the time of termination, which matters reflect upon the employee's qualifications or competency to perform the job. In those circum­stances, where an employee is referred who had previously worked for the respondent and the res­pondent had not indicated in writing at the time of termination that it would not rehire the employee (as required by Article 15.2(d)), the respondent could still reject the referred employee, based upon its authority to do so contained in Article 8.6(a) (within the phrase "the employer shall have the right to determine competency and qualifications ...") provided that its reasons for doing so are related to concerns about competency or qualifications and are based upon matters arising or brought to its attention subsequent to the previous termination.

41. There is no suggestion in the instant case that Meens was not fully competent and quali­fied to perform the job, nor was there any suggestion that his history of losing equipment, includ­ing; the most recent loss for which the respondent sought $46.00 reimbursement, in any way indi­cated or led to an inference that Meens could not fully and competently perform the job. The only grounds raised for Meens rejection was that he owed the employer $46.00 and had refused to pay. Whatever "competency and qualifications" might mean in other circumstances, we cannot say the employer in the instant case rejected on grounds of competency or qualifications, the only grounds upon which it was legally entitled to base its rejection. Accordingly, we find that the employer was not entitled to reject Meens based upon any explicit right in the collective agreement.

42. We must next ask ourselves whether we can find in the collective agreement, specifi­cally in light of Article 8.6(a), a right of Hydro to reject based upon an implied residual discretion. We have concluded that any such implicit right cannot stand in the face of the explicit clauses con­tained in the agreement. In our view, the parties put their minds towards the issue of discretion in rejecting hiring hall referrals and they agreed that the employer was to retain the right to reject "any new applicant", and as we have found, to reject rehires only on grounds of competency or qualifications. The parties specifically considered the rights to reject and decided to constrain them as we have discussed above. To find a residual implicit right in such circumstances would undercut the agreement the parties have themselves reached. Although the agreement does not directly state that the employer can reject referrals only for the reasons delineated and in circumstances therein applicable, when we consider all the relevant provisions of the agreement, including those provisions set out in paragraph 4 supra, we are satisfied the parties intended to delineate all those circumstances in which the employer could exercise any right to reject applicants. As we noted in quoting from Ontario Hydro, (1983, supra):

43. One 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 Molson Brewery (Ontario) Limited (1958), 9 L.A.C. 147 (Cross). We note that in 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.

44. The 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 hail.

45. 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.

Given the hiring hall context, the agreement in question, and the prior decisions of the Board on point, we are satisfied the employer has not retained any residual discretion to reject applicants, other than as is circumscribed (as we have interpreted) in Article 8.6(a) of the agreement.

23. In the alternative, if we are wrong in our view that no residual discretion remains and Hydro did have an implied right to reject, we consider whether Hydro's rejection was reasonably exercised. As the Board stated in Ontario Hydro, (1983, supra):

24. 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. 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 "just 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 "just 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 LAC. (2d) 251 (Schiff); and Re H. E. P.C. of Ontario and Office and Professional Employees' International Union (1976), 1976 CanLII 2218 (ON LA), 11 LAC. (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 LAC. 382 (Christie); Re Canadian Trailmobile Ltd. and U.A.W. Local 397 (1973), 1973 CanLII 2114 (ON LA), 2 LAC. (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).

37. Because 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 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.

38. The 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.

39. We 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....

40. We adopt that analysis. On this alternative ground, assuming there is no explicit right to reject Meens, we imply a right to reject on the basis set out in the Ontario Hydro case, that an employer can reject persons "it believes to be unreliable or incompetent or otherwise unqualified subject to acting reasonably, in good faith and without discrimination.". The question for the Board is whether the union has demonstrated that the employer acted unreasonably in refusing to rehire a fully qualified former employee on the grounds that it had concluded that that employee owed it $46.00 and the employee had refused to pay that amount. There is no dispute that the $46.00 was not paid, only whether it was owed.

41. It is important to remain cognizant of the context in which the Board in the Ontario Hydro case derived such a implied right. Ontario Hydro (the same respondent as before us) had refused to hire an individual referred to it for work at one of its nuclear generating stations on the basis of its concern for security on the site, in light of its awareness that the referred individual had previously been convicted of conspiracy to export arms to Ireland, and had recently been charged with various other criminal offences related to the smuggling of Irish nationals across the Ameri­can-Canadian border. In applying its standard of reasonableness the Board relied on the public safety and need for security at nuclear facilities as justifying the employer's behaviour. It was apparent that "reasonableness" there depended upon a concern that the referred person could not properly perform the job, as he would be a security risk. Reasonable grounds for refusal therefore related to the ability of the referred person to work on the job site, without unusual safety or secu­rity risks. The implied discretion to reject related to reasonable concerns about job performance in the future. The test described by the Board in that case, implying that an employer can reject per­sons "it believes to be unreliable or incompetent or otherwise unqualified" also, on its wording, is indicative of restricting such an implied right to reject to matters or grounds affecting job perfor­mance or ability to do the work, without serious negative ramifications or risks.

42. In the instant case, there is neither suggestion of concern over job performance or sug­gestion of negative ramifications or that Meens presented any risk. We need not therefore sketch the parameters of what might constitute matters affecting job performance or ability to do the work, or negative ramifications or risk. There was no suggestion Meens' history of lost equipment rendered him a security risk or otherwise an unsatisfactory employee. The employer conceded he would have been rehired had he paid the $46.00. This is not a situation where the employer was being asked to rehire a referred employee about whom it had qualms concerning his ability to work. The reason for rejection had only to do with Meens refusing to pay the money. The respon­dent in effect sought to utilize the hiring hall referral as a mechanism to allow it to unilaterally decide money was owing, and as a means of enforced collection. There was no suggestion, how­ever, that the respondent could not have used one of the regular methods of resolving such dis­putes; for example, filing a grievance or making a claim in the civil courts. Either option would have required an independent adjudication of whether the money was owed. Instead, the respon­dent employer attempted unilaterally to circumvent the mechanisms created to resolve such dis­putes. In that, we find that the employer acted unreasonably.

43. Both through s. 44 of the Labour Relations Act and the provisions of the Employment Standard Act, the Legislature has indicated that disputes arising in certain contexts are to be resolved by independent adjudications, not unilateral action. The legislative policy enshrined in the Employment Standards Act in this regard is found in section 8 thereof, which reads as follows:

44. Except as permitted by the regulation, no employer shall claim a set-off against wages, makea claim against wages for liquidated or unliquidated damages or retain, cause to be returned to himself, or accept, directly or indirectly, any wages payable to an employee.

A good discussion of that policy is found in Ontario Hydro, (1985, supra) , where the Board wrote as follows:

7. In our view, section 8 is a piece of remedial legislation with a clear and specific purpose: employees who work for wages are entitled to be paid for the work they perform, and in the absence of statutory authority or written authorization, any claim whatsoever by their employer to all or part of that money must be asserted in a court of law. It is difficult to conceive of a clearer, more explicit or more comprehensive prohibition than the one found in section 8, which is clearly intended to prevent any unilateral deduction from, or retention of wages, directly or indirectly, based upon an employer claim against his employee. There is no special status for employer claims in respect of past wage payments, nor could there be without opening the door to the very mischief which section 8 was designed to avoid: shifting the onus to the employee -usually the weaker party in the relationship - to initiate action in order to recover what his labour has earned but his employer refuses to pay. Section 8 reverses the common law position, and shifts the onus to the employer to establish to the satisfaction of a court, not only that it is entitled to the payment, but also the terms on which such payment should be made. For exam­ple; even if an employee's debt were acknowledged in court, it is doubtful whether the court would permit a creditor to confiscate that employee's entire income for one or more pay periods. The Wages Act R.S.O., 1980 c. 526 limits the amount of a debtor's wages which may be subject to seizure or attachment without express Court authorization. Here the respondent asserts the amount it may seize and retain is 100%. Indeed, if the respondent's submissions are correct (and the employment relationship were maintained), the respondent could withhold payment of any wages to the grievor for several months until he had "worked off' what the respondent claims is owed to it. It could pay the employee 70% of his wages, 30% of his wages or nothing at all. And, of course, all of this is based upon the fiction that certain sums paid by mistake should be notionally treated as a "prepayment" of wages to be earned later, in different circumstances, for different services rendered, and over a different (and uncertain) time period, from which the respondent is entitled to deduct amounts which it determines are appropriate.

8. The thrust of section 8 is that a creditor should not be in a privileged position because he is the debtor's employer. His practical control over the payment of employee wages does not per­mit him to make unilateral deductions from those wages. While we have some sympathy for the employer's dilemma, it is precisely what the Legislature envisaged: the employer cannot unilat­erally retain wages, but must seek its remedies in court, as it is apparently now doing. Nor do we think that we can simply take it for granted that the employer's claim against the grievor will be successful. As counsel correctly pointed out, there may be a legal distinction between payments made pursuant to a mistake of fact or a mistake of law, and it might be significant whether the overpayments resulted from an innocent misrepresentation or misunderstanding on the employ-Ce's part, or from real fraud. In any event, in accordance with the scheme envisaged by the Employment Standards Act, those are matters best left to a court to determine.

9. Although section 8 of the Employment Standards Act is not directly on point, as it does not encompass the hiring hall procedure of employee referrals, the policy contained therein, and as reflected and discussed in the quote set out immediately above, is of assistance in deciding whether the employer has acted unreasonably in rejecting a referred employee because the employer feels I he employee owes it money. In situations in an industrial context, where employees work steadily for a given employer, the Legislature has decided that an employer, as purported creditor, should not be allowed to unilaterally decide whether employees owe it money and to unilaterally deduct those sums from wages otherwise owed. Given that the hiring hall provides "job security" in the construction context, the respondent's conduct in refusing to rehire the grievor over a $46.00 sum is analogous to the type of conduct the Legislature presumably was concerned about in the indus­trial context in enacting the relevant provisions of the Employment Standards Act. We find that it is unreasonable for an employer to do so in the hiring hall context absent an explicit right authoriz­ing it to do so. There is no such authorization in the agreement before us.

10. All these reasons lead us to conclude that the employer has acted unreasonably in the instant circumstances and the grievance succeeds on this ground as well.

11. The final issue is the question of the appropriate remedy. It was urged upon us by the respondent that the grievor and union had failed to properly mitigate their damages, and should they be successful in this grievance, damages ought to be restricted, given the small amount of the money in question and the unwillingness of the applicant or grievor to pay the $46.00, thereby avoiding the refusal to rehire and any period of being out of work. We do not consider principles of mitigation demand a grievor or union pay the very sum in dispute. Mitigation is not a variant of the "work now, grieve later" doctrine. It appears to the Board each side felt that the principle at stake ought to be litigated, and neither side was willing to pay the $46.00 in order to restrict dam­ages to $46.00 while still litigating that principle. In these circumstances, each party decided to bear the risk of losing and accordingly, we are not disposed to restrict the compensation that would otherwise be due to the grievor because of the respondent's breach. We find that the respondent breached the collective agreement in refusing to rehire the grievor when he was referred to it on October 16, 1986, and we direct the respondent employer to compensate the grievor in accordance with the usual principles for compensation in such circumstances. The Board remains seized with respect to compensation.

DECISION OF BOARD MEMBER I. M. STAMP;

1. I must respectfully dissent from the majority decision for the following reasons.

2. From the evidence before us there is no dispute that the grievor, Mr. Fred Meens, was indeed careless with the protective clothing supplied by the employer under Article 33.3 of the col­lective agreement on three separate occasions.

3. Article 33.3 states:

The protective clothing and equipment covered in section 33.1 and 33.2 that is provided by the Employer will be charged out to the employee and the employee shall be responsible for the return of such clothing and equipment to his employer.

4. Mr. Meens accepted this protective clothing and with it accepted the responsibility for it. He filled out "missing equipment reports" on each occasion. The wording of Article 33.3 is clear. The items were charged out to Mr. Meens and he was responsible for their return. Mr. Meens did not return these items as required under Article 33.3. In my opinion, I would have found that in this instance Mr. Meens was responsible for the welding jacket.

5. If Mr. Meens had to pay for his own protective clothing he would have had more incen­tive to be careful. However, whether it is his own equipment or the employer's it is expected that a competent journeyman takes care of his equipment and does not repeatedly leave it unattended.

6. Under the circumstances I believe the Employer should be entitled to ask for reim­bursement under Article 33.3. This was the third incident within a short period of time and the employer did not ask for reimbursement for the first two items.

7. It is not practical for an employer to take this type of situation to small claims court, or to file a grievance against an employee.

8. The employer has no control over which journeymen are dispatched to the job. There is no opportunity to screen employees prior to hiring them. However, the employer can expect a qualified journeyman who in addition to the skills of his trade is also able to work with a minimum amount of supervision.

9. The relevant provisions of the Employment Standards Act in the industrial context only kick in when actual deductions from wages are made, this is not the case here. In my view, the employment Standards Act has no application in this case.

10. To avoid difficulties when seeking reimbursement for lost equipment, employers may wish to consider asking for a security deposit.

11. However, the majority decision of the Board does not preclude an employer from tak­ing the position that a tradesman who continually loses his equipment and/or protective clothing is not a competent journeyman and can be rejected on that basis under Article 8.6(a).

12. On the issue of damages I respectfully disagree with my colleagues. It was open to Mr. Meens to pay the amount of $46.00 under protest and then file a grievance. Furthermore, Mr. N4eens' conduct contributed to the disappearances of the protective clothing, and in my view, is not entitled to damages. He had voluntarily terminated his employment the day after the last "lost equipment" incident to work out of his home local. Presumably when the work was finished in his home area Mr. Meens wished to return to the steady work available at Hydro.