Resilient Floorworkers, Local Union 2965 v. Perfection Rug Co. Ltd., 1983 CanLII 789

Ontario Labour Relations Board

Citation: [1983] OLRB Rep. December 2061 File No.: 1622-83-M Date: December 12, 1983

Between: Resilient Floorworkers, Local Union 2965, Applicant v. Perfection Rug Co. Ltd., Respondent

Before: N. B. Satterfield, Vice-Chairman and Board Members H. Kobryn and F. W. Murray.

Appearances: Lewis Gottheil, Harry Hinton, John Kouba and Tony DiCarlo for the applicant C. E. Humphrey and Andre Houle for the respondent

DECISION OF THE BOARD

1. The applicant has referred a grievance concerning the interpretation, application, administration or alleged violation of a collective agreement to the Board for final and binding arbitration pursuant to section 124 of the Labour Relations Act. The relevant sub-sections of section 124 read as follows:

124.-(1) Notwithstanding the grievance and arbitration provisions in a collective agreement or deemed to be included in a collective agreement under section 44, a party to a collective agreement between an employer or employers' organization and a trade union or council of trade unions may refer a grievance concerning the interpretation, application, administration or alleged violation of the agreement, including any question as to whether a matter is arbitrable, to the Board for final and binding determination.

(2) Upon a referral under subsection (1), the Board has exclusive jurisdiction to hear and determine the difference or allegation raised in the grievance referred to it, including any question as to whether the matter is arbitrable, and the provisions of subsections 44(6), (8), (9), (10), (11) and (12) apply with necessary modifications to the Board and to the enforcement of the decision of the Board.

2. The application was made October 18th, 1983. On October 20th, the Board notified the parties in the customary form that a hearing would be held into the application on November 1st, 1983 and, in the interim, a Board Officer was named to confer with the parties and endeavour to settle the matter in dispute. The November 1st hearing was adjourned by consent of the parties and rescheduled for November 23rd. On November 21st, counsel for the applicant addressed a letter to counsel for the respondent with respect to that hearing which contained the following statement:

"... the union will be taking the position in this ... case that the Board no longer has jurisdiction to arbitrate the grievance on the merits because the grievance has been settled by the parties. The union will, accordingly, ask the Board to enforce the settlement ...".

The matter was raised at the hearing by applicant counsel as a preliminary issue going to the question of whether the Board had jurisdiction to hear the grievance. Accordingly, the Board heard the submissions of the parties on the preliminary issue.

3. The parties agreed that they were bound to the provisions of the Carpenter's Provincial Agreement and that the subject matter of the grievance arises thereunder. The grievance alleges the improper lay-off and unjust discharge of Tony DiCarlo from employment with the respondent. The position of the respondent put forward by its counsel at the hearing was that the matter had not been settled and the Board was properly seized with the grievance and had jurisdiction to hear it as filed. The applicant took the position stated in the letter; in other words, that the Board had no jurisdiction to hear the grievance on its merits because it had been settled. Notwithstanding the applicant's claim that the Board had no jurisdiction, however, the applicant wanted the Board to inquire into the fact of settlement and, if found, to issue a declaration and direction to the employer to comply with the terms of the settlement.

4. Respondent counsel argued that, where there is an issue of arbitrability, an arbitrator should decide only the question of whether there has been a settlement. If settlement has been achieved, the arbitrator has no jurisdiction to hear the grievance. Counsel pointed out that the respondent had not raised any question of arbitrability; on the contrary, it took the position that the Board is properly seized with the grievance because the respondent has not raised any challenge to the Board's jurisidetion. The respondent disputed the existence of a settlement and through its counsel argued that the question of settlement is irrelevant because the respondent has not challenged the Board's jurisdiction to hear the grievance. Counsel contended that, had there been settlement as the applicant alleges, the applicant should withdraw its grievance. On the other hand, if the applicant is not prepared to withdraw its grievance, it should proceed to have it arbitrated on its merits. By not doing either, counsel contended, the applicant is trying to have the Board determine for it what the applicant should do. In counsel’s view, the applicant had a clear choice; either withdraw the grievance or proceed with it on its merits.

5. Respondent counsel, in support of the respondent's position, referred the Board to the decision of an adjudicator under the Public Service Staff Relations Act: Re Mason and Treasury Board (Post Office Department) (1981), 1981 CanLII 4489 (CA LA), 3 L.A.C. (3d) 117 (Norman). The adjudicator was confronted with a preliminary issue identical in nature to the issue herein; in other words, that the adjudicator no longer had jurisdiction to hear the grievance on its merits since it had been settled. The union had filed a grievance alleging the unjust rejection of a probationary employee. The hearing which had been scheduled for arbitrating the dispute was adjourned when the parties thought that they could settle it. The union later asked for the hearing to be rescheduled. When the grievance came before an adjudicator under section 91(1)(a) of the Public Service Staff Relations Act, the union asked the arbitrator to declare that a settlement had been reached and to enforce the terms of settlement. Section 91(1)(a) of that Act reads as follows:

91 (1) Where an employee has presented a grievance up to and including the final level in the grievance process with respect to

(a) the interpretation or application in respect of him of a provision of a collective agreement or an arbitral award ... and his grievance has not been dealt with to his satisfaction, he may refer the grievance to adjudication.

The arbitrator reserved on the preliminary issue after hearing evidence with respect to the settlement attempts of the party, as a result of which the arbitrator had before him the un-contradicted evidence of the union that settlement had been achieved. After weighing the arguments of the parties, awards under the Public Service Staff Relations Act which had been referred to him by the parties and other relevant law, the arbitrator concluded that he had no authority under section 91(1)(a) of that Act to issue a declaration, binding or otherwise, with respect to settlement. He then considered whether he retained any jurisdiction under section 91(1)(a) or whether he should "... terminate [the grievor's] reference to adjudication.". He decided, were he to follow the latter course of action, that the grievor would be left precisely where he was when he made the referral; without a job. The arbitrator rejected that course of action and concluded that he had jurisdiction to hear and decide the grievance as originally referred to him.

6. Applicant counsel argued that its request of the Board to hear evidence and representations on whether the grievance was settled simply raised the fundamental issue of the arbitrability of its grievance, a proper issue for an arbitrator to decide. According to counsel, proof of the alleged settlement goes to that question of arbitrability. He argued that the purpose of arbitrating disputes arising under a collective agreement is to make available to the disputing parties a speedy and effective resolution. If the parties settle prior to arbitration, either party should be able to make those settlements hold. Counsel argued that an arbitrator can achieve that objective, no matter which party has raised the issue of settlement, by determining whether settlement has been achieved in the course of deciding that fact as an issue going to the arbitrability of the grievance.

7. Applicant counsel, in support of the applicant's position, referred the Board to the award of the arbitrator in Re The Ford Motor Company of Canada, Ltd. (1952), 3 L.A.C. 1159 (Lang). The arbitrator in that case was dealing with a grievance, the subject matter of which was the failure of the employer to implement the terms of settlement made in an earlier grievance. The arbitrator made it clear that the grievance before him was not dealing with an appeal of the original grievance, rather it was a new grievance which raised “... the very important point as to whether the Company is bound by the foreman's decision on the original grievance, which decision was accepted by the grievors”. The arbitrator went on to find that the subject matter of the first grievance was a proper subject for the grievance procedure and that the settlement of that grievance by the foreman in its preliminary stages was binding upon the employer regardless of the actual merits of the grievance.

8. The Board adjourned to consider the parties' submissions and the two arbitration awards on which each was relying. Having regard to those submissions and the principles expressed in the two awards, the Board refused the applicant's preliminary motion and advised applicant counsel that he could elect to pursue the original grievance before the Board on its merits or he could withdraw the grievance and file a new one, the subject matter of which would be the respondent’s failure to comply with the settlement it is alleged to have made with respect to the original grievance. The applicant asked leave of the Board to withdraw the grievance herein and advised the Board that it would file a fresh grievance alleging that the respondent had failed to comply with the terms of the alleged settlement of that grievance. In these circumstances, the Board consented to the withdrawal of the grievance.

9. In view of the nature of the submissions and authorities relied on by the parties, the Board, prior to making its oral ruling did not have before it the decision of the Board, differently constituted, in Suss Woodcraft Ltd., [1983] OLRB Rep. April 600. This is a decision in which the Board directed the employer to comply with an oral settlement of a grievance. It is clear in that case that the Board was seized with the original grievance and there was no issue of the Board's jurisdiction in that respect. The applicant trade union prosecuted the original grievance and, in the course of establishing liability and quantum of damages for violation of the agreement, it relied on the evidence of the settlement it had reached with the employer. Therefore the Board in that case had before it the applicant's evidence of the employer’s admission of liability for having violated the collective agreement, of their negotiations to resolve the matter and an oral settlement of the grievance.

10. The Board in Suss also had before it the awards of the arbitrators referred to in the decision, awards which were not before the Board in the instant case. It appears to have accepted the principle espoused in those awards that, where the settlement of a grievance is proven before the arbitrator, the arbitrator has jurisdiction to direct compliance, apparently in order to give effect to the final and binding resolution of the grievance referred.

11. The Board herein endorses the principle encompassed in the awards referred to the Board in Suss, supra, and by reference adopted by the Board. As well, this Board endorses the sound industrial relations purpose which is served by the Board's decision in Suss to direct compliance with the terms of the oral settlement; that is, the important purpose of supporting the settlement process at any stage of the grievance procedure. That purpose was recognized more than 30 years ago by the arbitrator in Re Ford Motor Company, supra. The fact that the source of his jurisidction in that case was a fresh grievance alleging failure by the employer to implement the terms of settlement made in an earlier grievance detracts not at all from the importance which he attached to supporting the settlement process. He made abundantly clear the importance of the settlement process in any voluntary procedure for the final and binding resolution of grievances. In the course of reviewing the specific provisions of the grievance procedure in the collective agreement before him, the arbitrator expressed the following comments about the potential consequences of the employer not being bound by settlements made at any step of the procedure:

If the Company be not bound by the decision of the foreman, which is satisfactory to the employee, then neither is it bound by the satisfactory decision of the Superintendent or Personnel Manager, and any settlement reached at any stage of the grievance procedure may be repudiated by the Company. And the Company would be bound only by the decision of an Umpire. Surely that cannot be either the intention of the parties or a correct interpretation of the meaning or legal effect of the Agreement. The purpose of grievance procedure is to effect a settlement of complaints of employees by peaceful means without recourse by the employees to strike action. If the company's argument be correct, then every grievance would necessarily have to be taken to the fourth or Umpire stage, in order to bind the Company. This would reduce the grievance procedure to a farce. Moreover since an appeal can only be lodged by the emmployee in the event that the decision of the foreman, superintendent or personnel manager be unsatisfactory, the Company could, by continually refusing to be bound by the satisfuctory answers of its officials nullilfy the grievance procedure.

[emphasis added]

In finding that the employer was bound by the specific language of the collective agreement, the arbitrator commented further as follows:

This decision is based solely on a legal interpretation of the terms of the Agreement. But it it were decided only on the practical results of the case the conclusion would be unchanged because 1 deem it much more important that grievances, once settled, in the course of grievance procedure, should be binding on both parties, even though a practical difficulty be occasionally created by an incorrect settlement, than that all grievances should be carried to an Umpire or grievance procedure be scrapped or discredited, because practical difficulties can always be solved by the conscientious cooperation of the Company and Union officials.

[emphasis added]

12. Since, however, the Board's ruling in the instant case was made on the basis of the submissions and legal authorities placed before it at the time, the Board confirms its oral ruling and its consent for withdrawal of the grievance and the grievance is hereby withdrawn.