Labourers International Union of North America, Local 697 v. Tamarron Group Inc.

[1982] OLRB Rep. December 1936

0717-82-U Labourers International Union of North America, Local 697, Complainant, v. Tamarron Group Inc., Respondent

BEFORE: R. D. Howe, Vice-Chairman, and Board Members I. M. Stamp and H. Kobryn.

APPEARANCES: S. B. D. Wahl, P. Little and R. Lester for the complainant; F. J. W Bickford, J. M. Sinclair and Hans Toivonen for the respondent.

DECISION OF THE BOARD; December 22, 1982

1. This is a complaint under section 89 of the Labour Relations Act in which the complainant relies upon section 89(7) of the Act which provides:

"Where the matter complained of has been settled, whether through the endeavours of the labour relations officer or otherwise, and the terms of the settlement have been put in writing and signed by the parties or their representatives, the settlement is binding upon the parties, the trade union, council of trade unions, employer, employers' organization, person or employee who have agreed to the settlement and shall be complied with according to its terms, and a complaint that the trade union, council of trade unions, employer, employers' organization, person or employee who has agreed to the settlement has not complied with the terms of the settlement shall be deemed to be a complaint under subsection (1)."

In particular, the complainant alleges that the respondent has failed to comply with the terms of the following written and duly signed settlement in respect of an earlier section 89 complaint filed by the complainant (Board File No. 2625-81-R) against respondents including Tamarron Group Inc., which was one of the signatories to that settlement:

[memorandum of Settlement- omitted]

2. The hearing of this matter commenced in Dryden on September 29, 1982 and continued on September 30th and October 1st. At the commencement of the hearing, Walter Dubinsky, a representative of Local 1669 of the United Brotherhood of Carpenters & Joiners of America ("Local 1669") which had filed an intervention in these proceedings on August 4, 1982, advised the Board that Local 1669 had decided to withdraw its intervention and did not wish to enter an appearance. Accordingly, Local 1669 did not take part in these proceedings, although Mr. Dubinsky remained in the hearing room as an observer along with J.G. Pesheau, Business Manager and Recording Secretary of Local 1669, who had been summonsed by the respondent as a potential witness.

3. After Local 1669 had withdrawn its intervention, the Board heard the submissions of counsel for the complainant and counsel for the respondent concerning a number of preliminary matters. After recessing to consider those submissions, the Board made the following oral ruling (which has been incorporated into this decision at the request of counsel):

"The issue before us is a relatively simple one, namely, whether or not the respondent has contravened the Act by not complying with the terms of the written settlement dated June 1, 1982 in respect of the section 89 complaint in Board File No. 2625-81-R. While that issue has (work) jurisdictional overtones because of the wording of the settlement, this is not in substance a jurisdictional dispute. Our jurisdiction in this matter under section 89 of the Act is in no way removed by any proceedings before the I.J.D.B. [the Impartial Jurisdictional Disputes Board for the Construction Industry]. Moreover, we are not prepared to defer to proceedings under section 91 of the Labour Relations Act [no such proceedings having been filed], or to proceedings before the I.J.D.B. Indeed, we are of the view that the facts alleged by the respondent concerning I.J.D.B. proceedings are not relevant to the present case. Moreover, we are of the view that evidence concerning events covered by the complaint in File No. 2625-81-R cannot be adduced in these proceedings. In addition to the fact that such matters appear to us to be irrelevant to the issue before us, as a matter of labour relations policy we are not prepared to permit the complainant to indirectly litigate the complaint in File No. 2625-81-R by adducing such evidence in these proceedings. Indeed, we have grave doubts that evidence of anything that occurred prior to June 1, 1982 will be of any probative value in the present proceedings, although we will defer a final ruling on that matter until it arises in these proceedings, if it in fact does. The issue is not whether the respondent has restored the status quo ante, but rather whether the respondent has complied with the terms of the written settlement. It is questionable whether section 89(5) of the Act places a burden of proof on the respondent in these proceedings. However, we will reserve our decision on that matter pending final argument of this case on the merits. In the meantime, the Board, as master of its own procedure, will call upon the complainant to proceed first with its evidence in the circumstances of this case."

4. Prior to the December 16, 1982 continuation of hearing scheduled in this matter, the parties filed with the Board the following "Minutes of Settlement", signed by their respective representatives:

[Memorandum of Settlement omitted]

5. After those Minutes of Settlement had been filed with the Board and the Board had cancelled the continuation of hearing of this matter scheduled on December 16 and 17, 1982, in Thunder Bay, the Board received a letter from J. G. Pesheau, the aforementioned Business Manager and Recording Secretary of Local 1669, in which Mr. Pesheau states that Local 1669 was "denied status before the Board in the proceedings and had to remain as observers". That statement is incorrect for, as noted in paragraph 2 of this decision, at the commencement of hearing of this matter on September 29, 1982, Local 1669, through Mr. Dubinsky, withdrew its intervention in these proceedings and declined to enter an appearance. Thus, it was unnecessary for the Board to make any ruling concerning Local 1669's status to intervene in these proceedings. In his letter to the Board, Mr. Pesheau asks the Board to "ignore" the December 8, 1982 Memorandum of Settlement between the complainant and the respondent and "to continue the hearings on the interpretation of the June 1, 1982 document, with Local 1669 Carpenters being granted status, in the matter." Having carefully considered that request and the other submissions contained in Mr. Pesheau's letter, the Board is not prepared to reject the settlement and proceed with lengthy hearings concerning a matter which neither the complainant nor the respondent wish to litigate. Having withdrawn its intervention, Local 1669 is not a party to these proceedings, nor is it appropriate for the Board to permit it to intervene at this late date, at a time when the parties to these proceedings, with the encouragement of the Board, have entered into a detailed written settlement of the complaint. Moreover, since Local 1669 is not a signatory to that settlement, neither that document nor this decision prevents Local 1669 from asserting any rights that it may have (concerning the matters dealt with in the Memorandum of Settlement) under a collective agreement, or under section 91 of the Labour Relations Act.

6. Having regard to the agreement of the parties, the Board, pursuant to section 89 of the Act, hereby directs the respondent to comply with the terms of the Minutes of Settlement dated December 8, 1982, as set forth above, including the Addendum thereto.