Ontario Labour Relations Board
Decision
[1983] OLRB Rep. November 1941
1293-83-M The United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 46 and Nino Blassutta, Applicants, v. Urban Mechanical Contracting 1979 Ltd., Respondent
BEFORE: R. A. Furness, Vice-Chairman, and Board Members J. D. Bell and W. F. Rutherford.
APPEARANCES: Cynthia Morton, Chris Thurrot and Nino Blassutta for the applicants; Irv Kleiner, Ed Winter, Ceasare de Fulviis and Fillipo Verna for the respondent.
DECISION OF THE BOARD; November 22, 1983
The applicants have referred a grievance concerning the interpretation, application, administration or alleged violation of a collective agreement to the Board for final and binding arbitration.
At the commencement of the hearing it became apparent that it was the position of the applicants that a settlement had been reached with the respondent with respect to this grievance. It was the position of the respondent that any agreement which might have been reached was subject to a written settlement and that there had been a misapprehension by one of the respondent's employees of his authority to conclude an agreement.
The parties agreed upon the following statements:
On September 26, 1983, there were numerous telephone conversations between counsel between 5:30 p.m. and 10:00 p.m. The purpose of the telephone conversation was to reach a settlement before the Board. The applicant/grievor, Nino Blassutta, attended at the office of Cynthia Morton, counsel for the applicants, and Chris Thurrot, the business representative for the applicants. Counsel for the respondent, Irving Kleiner, was in contact with Ceasare de Fulviis, the supervisor for the respondent.
Mr. Kleiner had asked Mr. de Fulviis if Mr. de Fulviis had the authority to settle this matter. Mr. de Fulviis responded that he did have the authority. On that basis, Mr. Kleiner proceeded to take instructions from Mr. de Fulviis as Ms. Morton did from Mr. Blassutta and Chris Thurrot, a business representative of the applicants.
Numerous proposals and counterproposals were made between counsel during the evening. Both counsel consulted with the persons from whom they were taking instructions regarding the availability of work at the sites of Urban Mechanical. At approximately 7:30 p.m. on September 26, 1983, the following offer was made by counsel for the respondent to counsel for the applicants:
I The applicants agree to withdraw the within grievance and the within complaint.
II The grievor, Nino Blassutta, will be hired to a position with the respondent at its project which is located at Spring Garden Avenue in the City of North York. The grievor shall hold this position for the duration of the period during which his services are required.
III If, at the end of the above-mentioned period, the respondent requires any of its journeymen or members of Local 46 of the applicant to be transferred from any other of its residential to its project at Finch and Kenneth Avenue in the City of North York, the grievor will be the first employee to be transferred to the said project at Finch and Kenneth Avenue providing that he is willing and able to perform the available work.
IV If at the end of the period referred to in paragraph II herein the respondent determines it must hire new journeymen to perform Local 46 work at the Finch and Kenneth Avenue project the grievor will be offered a position on this project provided that he has not obtained another position of employment and provided that he is willing and able to perform the available work.
V All of the parties agree and hereby acknowledge that the terms of these minutes of settlement do not constitute an admission of liability on behalf of the respondent, and in fact liability is denied.
After having put that offer to Mr. Blassutta, Mr. Kleiner informed Ms. Morton it was the company's final offer and there would be no further negotiations in the morning before the Board and the parties would be proceeding to the Board if this was not acceptable. Ms. Morton informed Mr. Kleiner that both Mr. Blassutta and Mr. Thurrot wanted time to think about the offer and that she would be calling him back at 9:30 p.m. to give him Mr. Blassutta's answer. Mr. Blassutta did accept this offer and Ms. Morton communicated this acceptance to Mr. Kleiner at approximately 9:30 p.m. Ms. Morton called Mr. Kleiner back and said, "Irv, you've got a deal". At that point the parties agreed to adjourn the grievance sine die pending execution of the minutes of settlement. It was at the suggestion of Mr. Kleiner that the application be adjourned sine die rather than withdrawn.
Mr. Kleiner asked Ms. Morton if counsel should execute the minutes of settlement or the clients. Ms. Morton suggested that the clients execute the minutes of settlement. Mr. Kleiner stated that Mr. Winters, the president of the company, would be signing on behalf of the company. Mr. Kleiner was going to prepare a typed memorandum of settlement and send the same to Ms. Morton's office the following day for her client's signatures. Ms. Morton asked how soon the job was available for Mr. Blassutta. Mr. Kleiner consulted with Mr. de Fulviis and telephoned Ms. Morton that evening to say that Mr. Blassutta could start on Friday of that week. On the following day, September 27, 1983, Ms. Morton notified the Board of the applicants' request for an adjournment.
Ms. Morton did not receive the minutes of settlement on September 27th. However, Mr. Kleiner did telephone her office to inform her that the minutes of settlement had been sent to Mr. Winters for signature. Ms. Morton was out of the office and did not receive this call. The following day, on September 28th, Mr. Kleiner sent the minutes of settlement to Mr. Winters.
Mr. Winters called Mr. Kleiner and said he would not sign the settlement because Mr. de Fulviis did not have the authority to instruct Mr. Kleiner to settle on those terms. Mr. Kleiner informed Mr. Winters that he had received instructions from Mr. de Fulviis to settle on the basis of the proposed memorandum. Mr. Winters repeated that Mr. de Fulviis had no such authority and that he considered the settlement unreasonable because it would give Mr. Blassutta super-seniority over other employees who had been employed by the respondent for ten years in some cases.
Mr. Kleiner then telephoned Ms. Morton and informed her that Mr. Winters would not be signing the memorandum of settlement. Mr. Kleiner then made a further offer to Ms. Morton which he put in writing and delivered to her office on September 29th. On the same day, Ms. Morton responded to Mr. Kleiner's letter and mailed her letter which was received by Mr. Kleiner on October 3rd. Both letters acknowledged that the settlement was not signed by the clients and that it was because Mr. Kleiner was to prepare the minutes of settlement and send it over to Ms. Morton. This was not done.
It was agreed that Mr. Winters, the president of the respondent, attended at the Board on September 27th for the purpose of attending a hearing, not being aware of the fact that counsel for both sides had settled the reference. It is also agreed that there was a misunderstanding between Mr. Winters and Mr. de Fulviis, who occupies the position of supervisor, as to Mr. de Fulviis' authority to enter into an agreement of settlement without first having it approved by Mr. Winters. The misapprehensions between Mr. Winters and Mr. de Fulviis was brought to Ms. Morton's attention after the draft minutes of settlement were forwarded to Mr. Winters for his review. Mr. Winters was aware that settlement discussions were taking place on the evening of September 26th and stated to Mr. Kleiner that if he had any questions to speak to Mr. de Fulviis.
It is clear that a settlement was reached between counsel acting on instructions from their clients. Counsel for the respondent indicated on the evening of September 26th that this was the final offer, that no further negotiations would take place and that if the offer was not accepted the parties would be proceeding before the Board. The substantive matters incorporated into the settlement indicated that a "deal" had been concluded. Mr. Kleiner and Ms. Morton believed that a settlement had been reached. At no time in the settlement discussions was there any question of further amendments to be made to the settlement. The only matter which was outstanding was where the documents were to be signed. Mr. de Fulviis believed he could settle the grievance without anyone's final approval. There was no indication that the settlement required ratification.
At no time was it communicated to the applicants or Ms. Morton that someone other than an authorized representative of the respondent was giving instructions or agreed to the settlement. Any misapprehension between Messrs. Winters and de Fulviis, in our opinion, ought not to be relevant to whether there was a settlement between the parties.
In this application counsel entered into a settlement which ought to be binding on the parties. The applicant and Ms. Morton were told that Mr. Kleiner was a representative of the respondent and that he was taking instructions from someone at the respondent. Where an agent in the form of counsel holds himself out as having the authority to conclude a settlement, such a settlement should normally be binding on the client. There is no doubt that the applicants were told that Mr. Kleiner was taking instructions from an individual with the respondent.
Where an agent holds out to a party that he has the authority to bind his principal to a settlement and if it is reasonable for a party to believe the authority exists in all the circumstances, then the principal ought to be bound. In our opinion, the purpose of executing the settlement was not intended as ratification but rather as a permanent record of settlement. In Re Bilt-Rite Upholstering Co. Ltd. and Upholsterers' International Union of North America, Local 30 1979 CanLII 4007 (ON LA), 24 L.A.C. (2d) 428, a board of abritration advised the question of whether there was a binding settlement of a grievance. At pages 430-431 the board stated:
The board is of the opinion that the parties reached settlement on all substantive matters. There was no matters left in dispute after the parties had reached their settlement. It is true that the settlement contemplated the reduction of the settlement to writing and signing by both parties. However, in our view,, this was a mere procedural matter and was not an essential part of the settlement. If the union had suggested that there was some substantive terms that had not been covered by the settlement, the matter would be quite different. No suggestion was forthcoming.
The board is also of the opinion that the analogy that union counsel attempted to draw between the settlement and the requirement that a collective agreement be in writing is not persuasive.
Similarly, in Re Continental Can Co. of Canada Ltd. and Graphic Arts International Union, Local 121, 1975 CanLII 2055 (ON LA), 10 L.A.C. (2d) 35, a board of arbitration was called upon to decide whether there was a settlement of a grievance and whether ratification was necessary in order to make a settlement binding. The board concluded that where the parties, acting through their regular officers, settled a matter which had been processed through the grievance procedure, that settlement was binding and required no ratification to make it binding.
The respondent argued that the applicants recognized the tentative nature of the settlement by failing to withdraw the grievance and merely adjourning it sine die. This argument overlooks the fact that this conduct by the applicants was induced by the suggestion of counsel for the respondent and does not in any way indicate a lack of belief by the applicants that the grievance had been settled. The respondent argued that there was no detrimental reliance by the applicants. The Board does not agree with this perception by the respondent. The applicants compromised their claims to arrive at a settlement.
The respondent further argued that its representative Mr. de Fulviis acted under a misapprehension as to his instructions and that it was the intention of Mr. Winters to be consulted by Mr. de Fulviis prior to any agreement to any settlement proposal. Counsel pointed to the attendance of Mr. Winters in anticipation of a hearing by the Board. The attendance of Mr. Winters, in all the circumstances, points to a lack of communication within the ranks of the respondent rather than any notice to the applicants of any qualification on the authority of Mr. Kleiner or Mr. de Fulviis.
The respondent relied upon a decision of the British Columbia Court of Appeal in Yannacopoulos et al. v. Maple Leaf Milling Co. Ltd. and O'Connor (1963) 1962 CanLII 458 (BC SC), 37 D.L.R. (2d) 562, where the court refused to compel observance of a settlement arrived at through a mistake. However, in that case there was a misapprehension in the solicitor's instructions from his client. In the application before the Board there was no such misapprehension on the part of counsel. In our view, the statement of the law which is most appropriate to the circumstances of this application is to be found in a decision of the English Court of Appeal where Banks, L. J., stated in Shepherd v. Robinson [1919] 1 K.B. 474 at page 477:
It is clear that counsel has an apparent authority to compromise in all matters connected with the action and not merely collateral to it; and if he acts within his apparent authority and the other party has no notice of any limitation or restriction on that authority, the client will be bound by the agreement made by his counsel and embodied in some order or judgment of the Court.
In another decision of the British Columbia Court of Appeal in Propp et al. v. Fleming (1968), 1968 CanLII 576 (BC CA), 67 D.L.R. (2d) 630, the Court followed Shepherd v. Robinson where a compromise of a legal action had been accepted by a solicitor even though his client had not instructed him to accept the compromise. The Court noted that even if the solicitor had exceeded his authority to settle impliedly granted to him upon the retainer to conduct the litigation, it would not avail the complaining client as there was no suggestion that the other side had notice of the limitation. For the foregoing reasons, the Board finds that the applicants and the respondent have settled the grievance in this application.
- Having regard to the settlement of the parties and pursuant to section 124 of the Labour Relations Act, the Board makes the following determination:
(i) Nino Blassutta shall be hired to a position with Urban Mechanical Contracting 1979 Ltd. at its project which is located at Spring Garden Avenue in the City of North York. Nino Blassutta shall hold this position for the duration of the period during which his services are required.
(ii) If, at the end of the period referred to in (i) Urban Mechanical Contracting 1979 Ltd. requires any of its journeymen or members of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 46 ("Local 46"), to be transferred from any other of its residential to its project at Finch and Kenneth Avenue in the City of North York, Nino Blassutta shall be the first employee to be transferred to the project at Finch and Kenneth Avenue in the City of North York providing that he is willing and able to perform the available work.
(iii) If at the end of the period referred to in (i) Urban Mechanical Contracting 1979 Ltd. determines it must hire new journeymen to perform the work of Local 46 at the project at Finch and Kenneth Avenue in the City of North York, Nino Blassutta shall be offered a position on the said project provided that he has not obtained another position of employment and provided that he is willing and able to perform the available work.
(iv) Urban Mechanical Contracting 1979 Ltd. shall forthwith pay to Nino Blassutta wages and benefits that he would have been entitled to if he had been employed by Urban Mechanical Contracting 1979 Ltd. from September 30, 1983.
- The Board remaines seized with this application in the event any issue arises with respect to its implementation.