Local Union 2965, Resilient Floorworkers, U.B.C.J.A. v. Perfection Rug Co. Ltd., 1984 CanLII 956

[1984] OLRB Rep. January 68

2126-83-M Local Union 2965, Resilient Floorworkers, U.B.C.J.A., Applicant, v. Perfection Rug Co. Ltd., Respondent

BEFORE: R. D. Howe, Vice-Chairman, and Board Members F. S. Cooke and J. Wilson.

APPEARANCES: Lewis Gottheil and Harry Hinton for the applicant; Mark E. Geiger, Ronald

E. Thomson and Andre Houle for the respondent.

DECISION OF THE BOARD; January 31, 1984

1. This is a referral of a grievance to the Board pursuant to section 124 of the Labour Relations Act, which provides in part 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) A referral under subsection (1) may be made in writing in the pre­scribed form by a party at any time after delivery of the written griev­ance to the of subsections 44(6), (8), (9), (10), (11) and (12) apply with necessary modifications to the Boareceipt of the referral and may appoint a labour relations officer to confer with the parties and endeavour to ef­fect a settlement before the hearing.

(3) 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), (II) and (12) apply with necessary modifications to the Board and to the en­forcement of the decision of the Board.

2. The grievance which has been referred to us in these proceedings is dated Novem­ber 29, 1983 and was delivered to the respondent on or about December 2, 1983. It alleges that the respondent has failed to fully comply with the terms of settlement of an earlier griev­ance dated October 17, 1983, and requests a declaration to that effect and an award of com­pensation "in the amount of two weeks pay as per the settlement with interest". In that earlier grievance, which was referred to the Board on October 18, 1983 (File No. 1622-83-M), the applicant alleged that the grievor Tony DiCarlo had been improperly laid off and unjustly dis­charged. How the present grievance came to be referred to the Board can perhaps best be appreciated in the light of the following passages from the December 12, 1983 decision of the Board, differently constituted, concerning the earlier grievance (which decision is now re­ported at [1983] OLRB Rep. Dec. 2061):

3. 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 griev­ances arises thereunder. The grievance alleges that 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 jurisdiction. 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. 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.

6. 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.

7. 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., [19831 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 [(1952), 3 L.A.C. 1159 (Lang)]. The fact that the source of his jurisdiction 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 employee 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 satisfactory answers of its officials nullify 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 legal interpretation of the terms of the Agreement. But if it were decided only on the practical results of the case the conclusion would be unchanged because I 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.

13. At the commencement of the hearing before the present panel of the Board on Jan­uary 16, 1984, counsel for the respondent raised a preliminary objection concerning the Board's jurisdiction to hear and determine the instant grievance. It was his position that the Board has no jurisdiction under section 124 to deal with a grievance which alleges a violation of the terms of an alleged settlement. In support of that position he contended that a settlement of a dispute constitutes a separate contract between the parties. He also submitted that once a labour relations officer has been appointed by the Board pursuant to subsection 124(2), only written settlements signed by the parties and submitted to the Board for approval should be treated as binding settlements. Although it was common ground between the parties that no labour relations officer was present at the time the parties allegedly entered into a settlement of the previous grievance, counsel for the respondent submitted that if the Board heard evi­dence concerning the oral settlement alleged by the applicant in the present case, it would lead to evidentiary and procedural difficulties in future cases in which a labour relations officer was present at the time an oral settlement was allegedly entered into. It was also his position that the respondent had not entered into a binding settlement in the present case since the member of management who allegedly settled the previous grievance was acting beyond the scope of his actual and apparent authority. Thus, it was the respondent's position that the ap­plicant could only seek redress on behalf of Mr. DiCarlo by refiling the original grievance with the Board for determination on its merits.

14. Counsel for the applicant, on the other hand, submitted that the Board does have jurisdiction to hear and determine the present grievance. In support of his position he referred the Board to a number of authorities including the Ford Motor Company arbitration award, supra, Suss Woodcraft Limited, supra, and the Board's December 12, 1983 decision con­cerning the earlier grievance. He also submitted that the respondent's failure to comply with the terms of the (alleged) settlement constituted a violation of various provisions of the ap­plicable collective agreement.

15. After hearing the submissions of the parties concerning the respondent's preliminary objections, we indicated that we would be reserving our decision concerning that matter and would proceed to hear the evidence and representations of the parties concerning the merits of the present grievance (without prejudice to the respondent's preliminary objection). That approach was adopted since it appeared likely that the evidence and argument concerning the alleged settlement could be completed that day, thereby avoiding any necessity of reattendance by the parties in the event that the respondent's preliminary objection failed.

16. Having carefully considered the submissions of counsel concerning the respondent's preliminary objection, we have concluded that it cannot succeed. Whether raised in the context of the original grievance (as in Suss Woodcraft Ltd., supra) or of a second grievance (such as in the present case and in Ford Motor Company, supra), an allegation that a party to a collective agreement has failed to comply with the settlement of a grievance constitutes an arbitrable question concerning the "application" or "administration" of the collective agree­ment, within the meaning of subsection 124(1) of the Act. As noted by the Board in paragraph 11 of its December 12, 1983 decision in File No. 1622-83-M (quoted above), arbitrators have recognized and endorsed for over three decades the importance of supporting grievance set­tlement processes. In some cases that objective has been achieved by applying the doctrine of estoppel: see, for example, Fruehauf Thailer Company of Canada (1951), 3 L.A.C. 847 (Cross), and Dominion Bridge Company Limited (Toronto) (1951), 2 L.A.C. 741 (Fuller). Other arbitrators simply find settlements to have been entered into and exercise their remedial power so as to direct the parties to carry out the terms of the settlements: see, for example, Re Bilt­Rite Upholstering Co. Ltd., (1979), 1979 CanLII 4007 (ON LA), 24 L.A.C. (2d) 428 (Rayner); Re Continental Can Co. of Canada Ltd. (1975), 1975 CanLII 2055 (ON LA), 10 L.A.C. (2d) 35 (Weatherill); Ford Motor Company of Canada, supra; Suss Woodcraft Ltd., supra; and the authorities referred to therein.

17. The case of Re Mason and Treasury Board (Post Office Department) (1981), 1981 CanLII 4489 (CA LA), 3 L.A.C. (3d) 117 (P.S.S.R.B.), which was relied upon by the respondent in the proceedings before the Board panel which dealt with the previous grievance and in the proceedings before the present panel, does not assist the Board in determining the present case. In that decision the adjudicator (K. E. Norman) held that he had no jurisdiction under subsection 91(l)(a) of the Public Service Staff Relations Act to enforce or declare the existence of a settlement of a grievance. The material part of that statutory provision read 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 relatively narrow jurisdiction given to an adjudicator under that provision (which permits an individual employee to refer his or her grievance to arbitration) may be contrasted with this Board's broader jurisdiction under subsection 124(1) of the Labour Relations Act to make a final and binding determination with respect to grievances "concerning the interpretation, application, administration or alleged violation" of a collective agreement, including any ques­tion as to whether any matter is arbitrable.

8. As noted by counsel for the respondent, much of the existing arbitral jurisprudence concerning the enforceability of settlements has arisen in the context of settlements reached by parties during various steps of the grievance procedures specified in their collective agree­ments. However, notwithstanding counsel's able argument to the contrary, we are not per­suaded that we should adopt a different approach in the context of section 124. In its recent decision (dated November 3, 1983) in Ontario Hydro, File Nos. 0708-82-M and 0709-82-M (reported at [1983] OLRB Rep. Nov. 1869), the Board, in considering the efficacy of an oral settlement between parties to section 124 applications, wrote as follows:

9. Nothing in the collective agreement, the Labour Relations Act or the common law requires that the terms of settlement of a grievance arising under a collective agreement be reduced to writing before that settlement can be enforced.

10. Although the settlement of a grievance need not be made or evi­denced in writing, it very often is. That was certainly the experience of the trade union and employer witnesses in this matter. It is not hard to see why that would be so. A written memorandum evidencing the agree­ment of the parties greatly facilities the proof of, and thereby reduces the potential for dispute over, the agreement's existence or terms.

11. Of course, not every written agreement is a mere memorandum ev­idencing the terms of an existing oral agreement. In complex matters, negotiations may proceed orally until the parties feel they have reached agreement in principle, leaving the details to be worked out thereafter in the process of drafting a written agreement. To the extent the anticipated written agreement is required or expected to contain terms or resolve points not finalized during oral negotiations, it can fairly be said that there is no agreement until the required document has been finalized and ex­ecuted. Delivery and execution of the anticipated document is, in those circumstances, a pre-condition to the existence of a binding agreement. In each case where a written agreement is contemplated, it is "a question of construction, whether the parties intended that the terms agreed should merely be put into form, or whether they should be subject to a new agreement the terms of which are not expressed in detail.": (Winn v. Ball, (1877) 7 Ch. D. 29 per Jessel, M.R. at p. 32; see also Re Do­minion Stores Limited and United Trust Co. et al, (1974) 1973 CanLII 692 (ON HCJ), 42 D.L.R. (3d) 523 (Ont. H.C.) at pp. 527 to 529; aff'd 1974 CanLII 32 (ON CA), 52 D.L.R. (3d) 327 (Ont. C.A.); aff'd 1976 CanLII 33 (SCC), 71 D.L.R. (3d) 72 (S.C.C.)).

12. The purpose of any grievance arbitration process is to secure prompt, final and binding settlement of disputes involving the application and interpretation of collective agreements, in the interest of industrial peace (see Heustis v. New Brunswick Electric Power Commission, [1975] 2 S.C.R. 768 per Dickson, J. at 781). The pre-arbitration grievance pro­cedures typically provided for in collective agreements afford the parties an opportunity to resolve disputes promptly, informally and without the expense of arbitration. The requirement that such procedures be ex­hausted before proceeding to arbitration enhances the prospects of settle­ment. Section 124(2) serves a similar purpose by providing for the appointment of a Labour Relations Officer to endeavor to effect a settle­ment before the Board conducts a hearing. Our labour relations system relies on and values the ability to settle disputes. This Board is loath to adopt any approach which might limit or impair the settlement process or discourage its use: Crown Electric, [19781 OLRB Rep. Apr. 344; Bot Construction (Canada) Limited, [19821 OLRB Rep. Dec. 1811. It is im­portant that boards of arbitration not impose unnecessary technicalities or limitations on the settlement process, because to do so would undermine the finality of settlements parties feel they have achieved in good faith. (See Ford Motor Company of Canada Ltd., (1952) 3 L.A.C. 1159 (Lang) at 1161; City of Sudbury, (1965) 1965 CanLII 991 (ON LA), 15 L.A.C. 403 (Reville); Re Conti­nental Can Co. of Canada Ltd., (1975) 1975 CanLII 2055 (ON LA), 10 L.A.C. 35 (Weatherill).)

13. The question of the efficacy of an oral settlement agreement arose in Re Bilt-Rite Upholstering Co. Ltd., (1980) 1979 CanLII 4007 (ON LA), 24 L.A.C. (2d) 428 (Ray­ner). In that case an arbitration hearing had been adjourned pending set­tlement discussions. When the hearing resumed, company counsel took the position that the matter had been settled in the meantime. Union counsel took the position that the matter had not been settled. Both coun­sel agreed that their settlement discussions had reached a point at which they had reached oral agreement on the terms of a settlement which had been reflected in an executed handwritten draft agreement which both counsel had pronounced satisfactory. The handwritten draft had been typed up and the typed version circulated for execution. At that point, union counsel had learned of 430-431:

The Board is of the opinion that the parties reached settlement on all substantive matters. There were not 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 sic] 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. There is no doubt that the grievor approved the settlement at the conclusion of the hearing. Thence was ratification, if such was necessary at that time. Obviously, a collective agreement is far different in scope and impact from minutes of settlement. In the first place, the collective agreement covers a multitude of employees and is drawn to cover many possible future situations and potential areas of conflict. A col­lective agreement must also be ratified by members of the bargaining unit. All of these reasons indicate the purpose behind the provisions of the Ontario Labour Relations Act, R.S.O. 1970, c. 232, which require an agreement to be in writing. These reasons do not pertain to a settlement.

Moreover, one cannot conclude that the settlement should be vitiated simply because of some potential impending legislation that may or may not be enacted and may or may not be retroactive.

In essence, the parties reached agreement on all terms and should be held to that agreement.

Accordingly, the board concluded that the parties reached agree­ment and the grievance is no longer arbitrable.

28. We come to the same conclusions in this case as did the board of arbitration in But-Rite.

In the Ontario Hydro case, as in the present case, a labour relations officer appointed by the Board under subsection 124(2) of the Act had met with the representatives of the parties. However, a settlement was not entered into at that meeting but rather was alleged to have been entered into at a subsequent meeting at which the labour relations officer was not present.

9. In Suss Woodcaraft Ltd., [1983] OLRB Rep. April 600, the Board, after reviewing a number of arbitration awards, held that it had jurisdiction under section 124 to enforce an oral settlement of a grievance:

10. 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 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.''

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.

See also Urban Mechanical Contracting 1979 Ltd., File No. 1293-83-M, decision dated No­vember 22, 1983 (now reported at [1983] OLRB Rep. Nov. 1944), in which the Board found an oral settlement (entered into by counsel for the parties) to be binding, and exercised its powers under section 124 of the Act to direct the parties to comply with the terms of that settlement.

10. As indicated in Ontario Hydro, supra, nothing in the Labour Relations Act, the common law, or the pertinent arbitral jurisprudence requires that an oral settlement of a griev­ance arising under a collective agreement be reduced to writing before that settlement can be enforced (nor is there any such requirement contained in the collective agreement by which the parties to the present application are bound). Respondent's counsel submitted that en­forcement of oral settlements entered into following the appointment of a labour relations of­ficer under subsection 124(2) of the Act is undesirable because it would tend to create situations in which evidence of settlement discussions would have to be tendered before the Board, and in which parties might need the testimony of a labour relations officer to establish or refute an alleged settlement. However, we do not find that argument to be persuasive. As noted above, it was common ground between the parties that no labour relations officer was present at the meeting at which the applicant alleges that the parties entered into the oral set­tlement to which the instant grievance pertains. Thus, the admissibility of testimony by a la­bour relations officer concerning settlement discussions is not an y is directed to forthwith implement the settlement and pay Batten and Bucking for all hours workeare present, they will no doubt continue to encourage parties to enter into written settlements in order to fa­cilitate proof of the existence and terms of such settlements, and to reduce the potential for disputes about such matters. If an issue arises concerning the existence or terms of a settle­ment where a party (or a representative of a party) orally settles a grievance in the presence of a labour relations officer but subsequently refuses to enter into a written settlement, the parties or their representatives would themselves be in a position to testify before the Board concerning the pertinent events. Thus, information from a labour relations officer would not necessarily be required to establish the existence or terms of such settlement. Should the Board be satisfied that such information was required in a particular case, sections 109 and 111(6) of the Act would appear to empower the Board to obtain such information.

11. The Board is committed to settlement activity as a highly desirable method of re­solving labour relations disputes, including grievances referred to the Board under section 124. Thus, as indicated in Ontario Hydro, supra, as a matter of policy the Board is loath to adopt any approach which might limit or impair the settlement process or discourage its use, by imposing unnecessary technicalities or limitations, such as an absolute requirement of written settlements in the context of section 124. It has been the Board's experience that the vast majority of section 124 applications are resolved through settlements which obviate the need for a hearing. It is not unusual for such settlements to be entered into shortly before the hear­ing date (which, by virtue of subsection 124(2), must be not more than fourteen days after the Board's receipt of the referral). See, for example, Urban Mechanical Contracting 1979 Ltd., supra, in which settlement discussions carried on by counsel through telephone con­versations culminated in an oral settlement at 9:30 p.m. on the eve of the hearing date. For the Board to impose a technical requirement of a written settlement in such circumstances would not, in our view, facilitate the settlement process or otherwise further harmonious re­lations within the construction industry labour relations community.

12. For the foregoing reasons, it is our conclusion that the Board does have jurisdiction under section 124 of the Act to enforce an oral settlement of a grievance (entered into by parties to which section 124 applies). We are also satisfied that a failure by the respondent to comply with the monetary portion of a settlement of the type alleged by the applicant in the present case would constitute a breach of Article 21.17 of the applicable collective agree­ment, which provides:

Monetary settlements of a grievance involving employee(s) should be for­warded to the Local Union or District Council for distribution to the grievor(s).

Under the circumstances, it is unnecessary for the Board to determine whether such failure would also be arbitrable as a breach of Articles 6, 22, and 24, as contended by the applicant.

13. Accordingly, the respondent's preliminary objection concerning the Board's juris­diction to hear and determine the present grievance is dismissed.

14. With respect to the merits of the present grievance, the Board heard the evidence of Harry Hinton, who is the applicant's Business Manager, and Andre Houle, the respondent's Installation Manager. Mr. Houle has occupied his present position with the respondent for approximately fifteen years. He exercises a number of managerial functions on behalf of the respondent, including hiring and laying off bargaining unit employees. Over the years he has orally settled a number of grievances through telephone conversations and meetings with Mr. Hinton. It appears from the evidence that he had authority to personally settle on behalf of the respondent each of those grievances with the exception of one grievance (the "Facelle" grievance) which involved a substantial monetary settlement (of approximately $2,000). It was his evidence that he telephoned Ronald Thomson, the respondent's Toronto Branch Manager, to find out if he could settle the Facelle grievance for that amount. However, it is questionable whether Mr. Hinton was made aware that Mr. Houle needed Mr. Thomson's authorization in order to enter into that settlement. In any event, if Mr. Houle did indicate to Mr. Hinton on that occasion that he needed Mr. Thomson's authorization to enter into the Facelle settlement, that was the only situation in which any such limitation on Mr. Houle's authority was raised.

15. Some settlement discussions concerning the earlier DiCarlo grievance (dated Oc­tober 17, 1983) were conducted with the assistance of a labour relations officer, but did not result in a settlement. Following those discussions, Mr. Houle telephoned Mr. Hinton on Oc­tober 28, 1983 and asked if they could "talk and see what kind of a settlement [they could] come up with". Since Mr. Hinton was amenable to such discussions, he agreed to meet with Mr. Houle at his (Mr. Hinton's) office on the following Tuesday morning. At that meeting, Mr. Houle and Mr. Hinton orally agreed to a settlement of Mr. DiCarlo's grievance by which the respondent would restore Mr. DiCarlo's employment with the respondent, and pay a sum equivalent to "two weeks' pay" to the applicant for disbursement to Mr. DiCarlo. Mr. Houle gave Mr. Hinton no indication whatsoever that the oral settlement required authorization or approval by any other member of management. Pursuant to that settlement, Mr. DiCarlo re­turned to work for the respondent on the following morning. However, the compensation por­tion of the settlement remains unpaid because Paul Zaphe, a Vice-President in the respondent's Montreal office, found that part of the settlement to be unacceptable. Although Mr. Hinton dealt directly with Mr. Yaphe in settling a grievance which was "more major" than Mr. DiCarlo's grievance, there is nothing in the evidence which suggests that such dealings pre­cluded Mr. Hinton from settling other grievances with Mr. Houle, as he had done in the past.

16. Under the circumstances, we are satisfied that Mr. Houle was acting within the scope of his apparent authority, if not his actual authority, when he entered into the afore­mentioned settlement on November 1, 1983. Nothing was said or done at or prior to that meeting to notify Mr. Hinton that Mr. Houle did not have authority to bind the respondent to a settlement of the grievance on those terms, which involved the reinstatement (or recall) of Mr. DiCarlo and the expenditure of under $1,500. The reasonableness of Mr. Hinton's reliance upon his conclusion that Mr. Houle had such authority is supported not only by the context in which that settlement was reached, but also by the history of dealings between Mr. Hinton and Mr. Houle concerning settlement of grievances. (With respect to the concept of apparent authority in the context of grievance settlements, see generally Urban Mechanical Contracting 1979 Ltd., supra; Re Corporation of the Borough of Etobicoke (1982), 1982 CanLII 5127 (ON LA), 5 L.A.C. (3d) 52 (Kennedy); and Canadian International Paper Company and Local 343 of the Ca­nadian Paperworkers Union, unreported award dated June 8, 1981 (Brunner).)

17. For the foregoing reasons, the Board, pursuant to section 124 of the Labour Re­lations Act, hereby directs that the respondent Perfection Rug Co. Ltd. forthwith pay to the applicant Local Union 2965, Resilient Floorworkers, U.B.C.J.A., for disbursement to the grievor Tony DiCarlo, the sum of $1,200.00 (that is, $16.00 per hour x 37.5 hours x 2 weeks), plus interest calculated in the manner described in Practice Note No. 13 dated September 8, 1980; and the sum of $262.50 (that is, $3.50 per hour x 37.5 hours x 2 weeks) for dis­bursement by the applicant to the vacation, holiday pay, health and welfare, pension, and S.U.B. funds specified in the collective agreement. (Counsel for the applicant advised the Board that his client was prepared to waive any interest or penalty on the "benefits" portion of the award.)