[1982] OLRB Rep. December 1811
1502-82-M Teamsters Local Union No. 230, Ready Mix, Building Supply, Hydro and Construction Drivers, Warehousemen and Helpers, Applicant, v. Bot Construction (Canada) Limited, Respondent
BEFORE: R. O. MacDowell, Vice-Chairman, and Board Members H. Kobryn and J. Wilson.
APPEARANCES: B. W Adams, C. LaCombe and L. Thibault for the applicant; D. Jane Forbes-Roberts for the respondent.
DECISION OF THE BOARD; December 3, 1982
This is a referral under section 124 of the Labour Relations Act in which the union claims that the respondent Bot Construction (Canada) Limited ("Bot") has failed to comply with the terms of a collective agreement by which it is bound. In order to appreciate the context in which this application arises, and the respondent's objections to it, it is necessary to refer briefly to an earlier section 124 application between the same parties (Board File No. 1007-82-M).
Bot is bound by a collective agreement with the applicant union which applies to all truck drivers "within a radius of thirty-five miles from the City of Sudbury Federal Building". At or about the beginning of August, 1982, Bot became involved in a road building project on the Killarney access road off Highway 69. At the time, a number of its truck drivers were on layoff. These employees complained to their trade union that the Killarney site was within the geographic scope of the collective agreement and that consequently, they should be recalled to replace any non-union drivers then engaged on the project. This complaint was investigated by Charles LaCombe, the union business agent, and eventually resulted in a grievance dated August 11, 1982. The portion of the grievance form entitled "Details of Grievance" reads as follows:
The Union is grieving that the company is failing to comply with the Sudbury Area Collective Agreement dated May 14, 1982. Specifically Article 2, Coverage 2.1 and 2.2., this job is within the 35 mile radius as described in the Agreement and also on the certificate of Certification issued July 24, 1973.
To this the company replied:
We are disputing your grievance dated August 11, 1982 on the grounds that we have checked the distance of our work location on Highway #637 and it is a distance of 41 miles which is outside the territory covered by the existing agreement.
The company took the position that the scope of the collective agreement was limited to projects within thirty-five miles by road from the Sudbury City Centre. The Killarney project was beyond this limit. The trade union took the position that the distance from the City Centre to the Killarney job site should be measured "as the crow flies". From that perspective, the project was within a "radius of thirty-five miles" from Sudbury - even though truck drivers (unlike crows) might well have to travel much farther than that to get there. As those who are familiar with the terrain in the Sudbury basin will know, the travelling crow will often have this kind of advantage.
Efforts to resolve the parties' differences were pursued both before and after the reference of the grievance to the Board, and eventually culminated in a discussion between LaCombe and William McInnes, a company official. Both were anxious to resolve the matter without litigation. McInnes would shortly be leaving the company's employ and LaCombe was scheduled to go on vacation the following day.
The evidence respecting that conversation is not substantially in dispute. It was McInnes who initiated the call, indicated his desire to get the problem resolved, and asked LaCombe what it would take to resolve it. LaCombe said he was concerned to get his members working. McInnes, in turn, suggested that the company would undertake to work under the agreement, and to treat the job as a "union" project if the union would withdraw the grievance. LaCombe agreed. The section 124 application was withdrawn the following day and the employer immediately began to contact employees to come to work. The withdrawal of the section 124 application is recorded in a decision of the Board dated September 2, 1982.
During this conversation there was no discussion of individual employee claims, the number of employees who might have been hired had the agreement applied from the beginning, or any monetary claims in respect of such individuals. LaCombe had the impression that in the initial weeks of the project, the company had had little need for his members, and had been meeting their requirements by owner-operators who would not be covered by the collective agreement in any event. McInnes testified that he could not recall any discussion of individual employee claims for back wages or any terms of settlement other than those referred to above. He told the Board that he didn't think that there were any. LaCombe confirms that there was not really any discussion, "as such", about such matters. He testified that the possibility of individual grievances may have been mentioned in passing, or in an "offhand" way, but it was not the principal focus of the conversation. He too could recall no discussion of possible wage claims.
Both McInnes and LaCombe considered the problem resolved when the company agreed to apply the collective agreement to the Killarney project. McInnes did not anticipate any further difficulties. Neither did LaCombe. LaCombe candidly advised the Board that he was surprised by a later employee grievance claiming compensation for lost wages in respect of the period between the commencement of the Killarney project and the time when the Teamster members were recalled. He thought the problem had been settled.
On October 2, 1982, a number of individuals filed a group grievance claiming lost wages in respect of the period between July 28, 1982 when the project started and September 1st, 1982 when the company began to apply the collective agreement to the Killarney project. The company argues (inter alia) that the subject matter of this grievance is substantially the same as, or overlaps with, the subject matter of the grievance which was settled. The same parties are involved, the same employees are involved, the same time period is involved, and the allegation of non-compliance with the Sudbury area agreement is essentially the same. The company submits that the only difference here is that the claim is more specific - compensation - while, in the earlier case, the union sought compliance with the agreement in all its terms. The union argues that the two grievances are not the same although they relate to the same project. In the union's submission, the first grievance focused on the interpretation of the scope clause of the collective agreement, while here the question is the applicability of the other terms now that it is settled that the agreement does in fact apply. The union asserts that the earlier settlement only involved the interpretation of Article 2 of the collective agreement. It was not intended to be, and should not be construed as, any waiver of employee rights for the period before the company acknowledged that it was bound by the collective agreement. The union maintains that it is not attempting to "unravel" a settlement. The settlement of the August 11th grievance did not foreclose any other claims arising out of the company's failure to apply the collective agreement to the Killarney job prior to September 1, 1982.
We do not have the benefit of a written settlement of the earlier section 124 application. The parties did not reduce that settlement to writing. In consequence, we are left to weigh the evidence before us and make a reasonable assessment of what that settlement entailed, and whether it precludes the instant application.
We note first that both the employer and union representatives assumed that the problems concerning the application of the collective agreement to the Killarney site had been resolved. Neither anticipated any further grievances. Further, the language of the first grievance is very general in character. Had that matter not been settled and proceeded to arbitration, the union would undoubtedly have sought financial compensation for any employee losses occasioned by the company's failure to properly apply the terms of the collective agreement. And had the company, at that point, complained that the grievance was not very specific about the remedy requested, the Board would undoubtedly have held that the question of remedy, including compensation, was implicit in the general claim that the employer had not been complying with the terms of the agreement. By the same token, it is our view that the Board should be equally liberal in its construction of the parties' settlement - absent any written terms which would qualify or modify the ordinary inference arising from what the parties have done.
In the first grievance the union complained that the company was not applying the agreement to the Killarney site. The employer asked what it would take to resolve the grievance and the union replied that it was only necessary to recognize the Killarney project as a "union job" and hire union members. No claim was made for compensation. On that basis, the company acceded to the union's request and the grievance was duly withdrawn. In our view, any claim for compensation was part and parcel of the earlier claim and must be considered to have been settled with the resolution of the earlier general claim and the subsequent withdrawal of the section 124 application. We do not think it is now open to the union to re-open the matter.
Every year trade unions file hundreds of grievances. Most of them are settled. Sometimes the settlement favours the union. Sometimes it favours the employer. Usually it represents a compromise in which neither side achieves as much or risks as much as it would by proceeding to a hearing. Parties come to a settlement in order to avoid the costs and uncertainties of litigation.
Settlement is an important part of the labour relations process; and we do not think we should lightly disregard or set aside a settlement which has been achieved. If we were to do so, it would discourage the entire settlement process and undermine the finality and certainty which a settlement is intended to achieve. We are satisfied that the subject matter of the grievance presently before us has been settled and cannot now be revived by the filing of a new grievance. The application is therefore dismissed.