Ontario Labour Relations Board

Citation: [1983] OLRB Rep. April 600

File No.: 2627-82-M

Parties: Carpenters' District Council of Toronto and Vicinity, on behalf of Locals 27 an 1304, United Brotherhood of Carpenters and Joiners of America, Applicant, v. Suss Woodcraft Ltd., Respondent

Before: M. G. Mitchnick, Vice-Chairman, and Board Members I. M. Stamp and W. F. Rutherford.

Appearances: J. J. Nyman and J. Cartwright for the applicant; no one for the respondent.

Decision of the Board; April 21, 1983

1. This is the referral of a grievance to the Board pursuant to the provisions of section 124 of the Labour Relations Act.

2. The matter was initially scheduled to be heard on March 30, 1983, and the respondent was served with Notice of that at its head office in Montreal. Counsel for the applicant advised the Board, however, that the parties agreed to adjourn the matter to April 7, 1983, at the request of the respondent. The day before the April 7th hearing, the Board then received the following telegram from the respondent:

GTUO66 APR 06 1403 EST CTB52S MMB48l MBBA3S6 67 FR CRT MONTREAL QUE 06 1333 ONTARIO LABOUR RELATIONS BOARD ATTN D K AYNSLEY REGISTRAR. TELEPHONE 965-4178 AND MAIL 400 UNIVERSITY AVENUE TORONTO ONT M7A 1V4 BT RE YOUR FILE NUMBERS 2627-82-M CARPENTERS DISTRICT COUNCIL AND SUSS WOODCRAFT. HEARING APRIL 7/83 9.30 AM TO BE SUBMITTED AS OUR STATEMENT. A) WE DID NOT HIRE A NON UNION CARPENTER. B) WE INSTRUCTED OUR SUPERVISOR DAVID GRIER TO HIRE FROM THE UNION HALL AS USUAL. IF HE DID NOT IT IS WITHOUT OUR KNOWLEDGE OR CONSENT. JULIUS SUSS SUSS WOODCRAFT LIMITED

The mere filing of a statement cannot, of course, take the place of evidence before the Board, nor would the lack of knowledge or consent by head office constitute any defence to a violation of the collective agreement by the company's own supervisor. The Board waited until 10 a.m. on the day of the hearing to afford the respondent a further opportunity to appear, and then proceeded in its absence.

3. The applicant's evidence is that the respondent, Suss Woodcraft Ltd., had become bound through a prior voluntary recognition agreement to the Carpenters collective agreement covering industrial, commercial and institutional work in the Province of Ontario. That agreement requires a company to hire only members of the union, through requests made to the union hiring hall. The company, although resident in Montreal, had at least 3 jobs operating in the Toronto area at the time that this grievance arose. The Union's business representative for the area, John Cartwright, noticed in early February a "Suss Woodcraft" sign on a construction project at Hazelton Lanes in Toronto, and questioned the carpenter at work on the job. Mr. Cartwright ascertained upon further investigation that that individual, a Mr. Gray, was not a member of the applicant at the time. Mr. Gray put Mr. Cartwright in touch with a Mr. Grier, who identified himself as the superintendent for Suss Woodcraft for the 3 jobs in Toronto. After speaking to Mr. Grier, Mr. Cartwright got in touch with Mr. J. Suss of the respondent in Montreal. Mr. Suss initially questioned whether the work in question was covered by the collective agreement, and Mr. Cartwright apparently made it clear that it was. Mr. Suss then said that Mr. Grier was in charge in Toronto, and that he was unaware exactly whom Mr. Grier was hiring.

4. Mr. Cartwright then arranged a meeting with Mr. Grier on February 28th, to discuss the alleged violation of the collective agreement. At the end of that meeting, Mr. Grier agreed to terminate Mr. Gray and hire a carpenter through the union's hiring hall. That took place immediately, and a union carpenter completed the work on that project as well as another still ongoing in the Toronto area. Mr. Grier did not agree to pay damages, however, and Mr. Cartwright filed a grievance for that aspect of his claim immediately after the meeting.

5. Mr. Cartwright subsequently received a telephone call from Mr. Suss, asking for a meeting in Toronto on March 2nd to discuss the grievance, and a meeting took place between Mr. Suss and Mr. Cartwright on the premises of Ramca Tiles. Mr. Suss at first denied responsibility for what had occurred, but ultimately acknowledged he might have some responsibility, and pulled out the time sheets showing hours worked by the non-union carpenter. The time sheets showed 3 weeks' work (120 hours) spread over a 4-week period, and the hourly rate payable under the collective agreement was $19.76. Some negotiation the took place over what would be a fair settlement to both sides, and $1,000 was finally agreed upon as a figure to resolve the grievance. The meeting then ended with Mr. Suss saying that Mr. Cartwright would have a cheque by Friday. To date, no cheque has been received.

6. The applicant argues that, on the facts set forth above, this matter has been settled, and asks the Board to simply direct the respondent to implement the settlement. In the alternative, the applicant argues that the above facts disclose a clear violation of the collective agreement, as well as an accurate measure of damages, and that the respondent should be ordered to pay the full amount of $2,371.20 owing.

7. The Board in a section 124 referral is acting in the place of an arbitrator, and Mr. Nyman for the applicant has brought to the Board's attention considerable arbitral jurisprudence for his position that an arbitrator can order the implementation of a settlement reached under the collective agreement. In The Corporation of the Town of Scarborough (unreported), released May 23, 1978 (Brandt), the employer's Board of Control met with the union to discuss a grievance, and at the conclusion of the meeting passed a resolution upholding the grievance and awarding the grievor the transfer which he sought. At a subsequent meeting, the matter was re-opened and the Board passed a resolution reversing its decision. The Board of Arbitration unanimously found that the initial action of the Board of Control constituted a decision which in effect resolved the grievance between the parties, and wrote, at page 4 of its award:

..... for the purposes of the orderly and final resolution of disputes arising between the parties to a collective agreement a decision of [the employer] once reached must be treated as final and as one which the parties to the agreement can rely on as representing the disposition by the [employer] of an outstanding matter. Were it otherwise there would be no finality to the grievance procedure. This would not be conducive to the orderly administration of the collective agreement.

The consequence of settlement of a grievance in the grievance procedure is to render inarbitrable that grievance or any subsequent grievance which raises the same issue. In Re City of Sudbury, 1965 CanLII 991 (ON LA), 1965 15 L.A.C. 403 (Reville) the following quotation from Re Mueller Limited 1961 12 AC. L.A.C. 131 (Reville) was approved:

The grievance procedure is designed to provide members of the bargaining unit and the union with a method of orderly processing their respective grievances. In order to avoid the expense inherent in the arbitration process the procedure provides for bona fide efforts to be made by the grievor and management to settle the dispute at various stages and at various levels. It follows, therefore, that if the grievor and/or the Union actually or impliedly accepted the decision of management they should not be allowed to have second thoughts on the matter and re-process essentially the same grievance at a later date. If this were to be allowed, manage­ment would never know whether, in fact, its decision had been accepted by the individual grievor or the union representing him, and management would be plagued and harassed in what would be a plain abuse of the grievance procedure.

It may equally be said of this case that the Union must be in a position to know that decisions arrived at by management can be relied on as constituting a final disposition of a matter in dispute and not subject to reopening at a later time.

The Board then concluded:

In the result the grievance is allowed and the Corporation is directed to implement the decision of the Board of Control.

8. In Canadian International Paper Company (unreported), released May 22, 1982 (Brunner), the arbitrator found as a fact that a grievance had been settled orally at a meeting between the company and the union. The union witnesses, whom the arbitrator found to have a much better recollection of the meeting than the company witnesses, provided the following account:

The matter was then reviewed and reference was made by Connors to the fact that over one year's back pay was at issue. Amounts of $1,000 and $1,500 were mentioned. Tinmouth sug­gested that the payroll records would have to be perused to ascertain the exact number of hours that were involved. To this Connors replied that he would be satisfied with whatever amount Tinmouth agreed was 'sufficient to cover the damage'. Tinmouth then asked whether Batten and Bucking were the only employees with similar grievances. Connors after 'looking around' the room stated that they would be the only two grievors if 'we can consider the matter resolved'. To this Tinmouth replied 'you can consider the matter resolved and I will check the payroll cards'.

After reviewing the authorities in support of the proposition that evidence of settlement discussions is admissible and necessary to prove that a settlement has been made, the arbitrator concluded:

"I find that the terms of the settlement were that Batten and Bucking were to be paid at the level H hourly rate set forth on p. 28 of the Collective Agreement for each hour they had worked on or after April 1, 1979 as Lead Hands."

and directed as follows:

..... the grievance must be allowed and a declaration that a settlement agreement in the terms already noted was entered into on July 4, 1980 is issued. The Company is directed to forthwith implement the settlement and pay Batten and Bucking for all hours worked by them as Lead Hands between April 1, 1979 and June 25, 1980, at the then prevailing level H hourly rate for the single Service division less whatever amounts they were paid at their scheduled occupational rates ."

9. Bittner Packers Limited (unreported), released January 27, 1982 (Betcher­man), also cited by Mr. Nyman, is a case perhaps more directly related to the applicant's alternative argument, but recognizes a principle of finality similar to the two previous cases. The company had admitted liability in the course of grievance discussions, but no "settlement" of the remedy, in terms of a payment of damages, had ever been arrived at. The arbitrator wrote at page 5:

..... I find it to be a clear and unequivocal admission by a person in authority that the union's interpretation of Article 1.03 was correct and that the company had breached the article by using part-time employees where it was possible to use full-time employees.... Thus it is my finding that the company clearly admitted its liability and it cannot retract its admission at this stage: see re Air Canada and Canadian Air Line Employees' Association, (1980), 1980 CanLII 4091 (CA LA), 27 L.A.C. (2d) 405 (Weatherill)."

The arbitrator then went on to deal with the outstanding issue of damages.

10. In the present case, all aspects of the union's claim are said to have been settled. The settlement was not in writing, but as the Canadian International Paper Company case, supra, shows, that is simply a matter of proof. Here there was no evidence called by the respondent to refute the sworn testimony of Mr. Cartwright, and the Board has no difficulty concluding that an oral settlement was reached for the payment of $1,000 to the union.

11. The company is accordingly directed to pay the amount of $1,000.00 to the union forthwith.