[1989] OLRB Rep. November 1154
1764-89-U Sheet Metal Workers International Association, Local 30, Applicant V. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 46 and D. Clark, Watts & Henderson Limited, Rexway Sheet Metal Limited, English & Mould Limited, Respondents
BEFORE: G. T. Surdykowski, Vice-Chair.
APPEARANCES: S. B. D. Wahl, J. MacKenzie and J. Moffat for the Sheet Metal Workers International Association Local 30; A. J. Ahee for United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 46; Lionel G. Clarke for D. Clark; Keith Billings and L. Cianfarani for the Ontario Sheet Metal and Air Handling Group; no one appearing on behalf English & Mould Limited and Sayers and Associates Limited.
DECISION OF THE BOARD; November 17, 1989
1This matter came on for hearing on November 16, 1989. Subject to an express reservation of the right to edit and expand on the oral reasons given therefor at the hearing, the Board ordered that:
(1) all work in connection with continuous wall-to-wall convector heating at the B.C.E. job site of Watts and Henderson Limited - Rexway Sheet Metal Limited, at the 100 Yonge Street job site of English and Mould Limited, and at the Dome Stadium hotel job site of Sayers & Associates Limited be assigned to a crew consisting of equal numbers of United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 46 pipefitters and Sheet Metal Workers International Association, Local 30, members as follows:
(a) all work in connection with the installation of sheet metal convector enclosures to Sheet Metal Workers International Association, Local 30 members; and
(b) all work in connection with the installation of piping and fin coils to United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 46 pipefitters
(2) This order is to remain in effect until such time as the specified work is completed, the parties agree otherwise, or the jurisdictional dispute which is at the root of the complaint herein is otherwise resolved or determined.
2The Board reasons for issuing the above order follow.
3This is an application for a direction under section 135 of the Labour Relations Act. More specifically, the applicant alleges a lock out and seeks relief with respect thereto. The matter originally came on for hearing on October 23, 1989 (together with another similar complaint in Board File No. 1775-89-U which was not before me on November 16, 1989). In the course of the hearing on October 23, 1989, the parties entered into written minutes of settlement as follows:
Sheet Metal Workers International Association Local 30
United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada Local 46
David Clark
Watts & Henderson Limited
Rexway Sheet Metal Limited
English & Mould Limited
OLRB File No. 1764-89-U
Sheet Metal Workers International Association Local 30
United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada Local 46
David Clark
Sayers and Associates Limited
OLRB File No. 1775-89-U
All parties to the above captioned proceedings agree to settle their differences to date being the subject matter of the above captioned proceedings before the Ontario Labour Relations Board as follows:
The applications are NOT withdrawn
The hearings scheduled for Monday, October 23, 1989 are adjourned sine die, to be brought on for hearing on 24 hours' notice by telegram to the offices of:
Ontario Labour Relations Board
United Association, Local 46 for both U.A. Local 46 and David Clark
Watts & Henderson Limited
Rexway Sheet Metal Limited
English & Mould Limited
Sayers and Associates Limited
- All parties agree to reinstate and perform the original assignment of work at:
(i) the B.C.E. Place job site of Watts & Henderson Limited - Rexway Sheet Metal Limited;
(ii) 100 Yonge Street job site of English & Mould Limited; and
(iii) Dome Stadium Hotel job site of Sayers and Associates Limited,
of all work in connection with continuous wall-to-wall convector hearing [sic] to a crew consisting of equal numbers of U.A. Local 46 pipefitters and Sheet Metal Workers, Locals 30 members allocating such work as follows:
(i) all work in connection with the installation of sheet metal convector enclosures to Sheet Metal Workers, Local 30 members; and
(ii) all work in connection with the installation of piping and fin coils to U.A. Local 46 pipefitters.
- A meeting to discuss a full and final resolution of this matter shall take place between representatives of U.A. Local 46 and Sheet Metal Workers, Local 30 on Friday, October 27, 1989. This interim agreement shall be without prejudice to the discussions to take place at that time.
Dated at Toronto this 23rd day of October 1989
Sheet Metal Workers International Association Local 30
per: "James A. McKenzie"
"James F. Moffat"
United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 46
per: "David Clark"
David Clark "David Clark" Watts & Henderson Limited per: "Reno Stevenato"
Rexway Sheet Metal Limited per: "Harold Lorenz"
English & Mould Limited per: "E. Waisman"
Sayers and Associates Limited per: "Vince Robbins"
Ontario Sheet Metal and Air Handling Group per: "L. Cianfarani"
Pursuant thereto the hearing was adjourned sine die.
4By telegram and letters dated November 15, 1989, the applicant alleged a breach of the aforesaid agreement between the parties, provided particulars of the alleged breach, and requested a hearing with respect thereto.
5A hearing was scheduled on twenty-four hours notice to the parties (in accordance with their agreement). Although counsel for the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 46 ("UA Local 46") said that he did not get twenty-four hours notice, the agreement provides only for notice to the parties and there was no suggestion that they did not receive it.
6At the hearing, the applicant, supported by the Ontario Sheet Metal and Air Handling Group (which participated without objection from any named party) requested that the aforesaid agreement between the parties be enforced pursuant to either subsection 89(7) of the Act or, in the alternative, pursuant to what counsel described as the Board's general plenary jurisdiction. In the alternative, the applicant sought to have the hearing continue from where it had left off prior to the written agreement being entered into on October 23, 1989.
7The respondents UA Local 46 and D. Clark submitted that subsection 89(7) of the Act did not apply and that the Board did not, in any event, have any jurisdiction to deal with the matter. In that regard, they asserted that the settlement agreement, and indeed the entire application, had been spent. They submitted that through the settlement, the parties had resolved all matters in dispute between them in the application as filed and thereafter the settlement agreement governed. Further, they argued, that settlement agreement contemplated no more than that the work be assigned in accordance with paragraph 3 thereof only until October 27, 1989 when the parties met and tried to resolve the matter. At that meeting there were, according to these respondents, three options:
(a) the parties could have arrived at a new work assignment arrangement; or
(b) the parties could have agreed to the extend the interim arrangements set out in paragraph 3 of the settlement agreement; or
(c) the parties could have failed to reach any agreement at all.
These respondents submit that the third option in fact transpired and that this had the effect of permitting or freeing the parties to take whatever position they wished with respect to the work assignment in question and that the respondent employers were left free to assign that work in any manner they wished (or at least unrestricted by the settlement agreement). These respondents agreed that what eventually occurred is accurately set out in the applicant's particular letter dated November 15, 1989 at paragraph 26 as follows:
On November 10, 1989 George Cowl and Reno Stevenato of Watts and Henderson-Rexway determined to lift the suspension of work and change the assignment to:
(i) equal numbers of U.A. Local 46 pipefitters and Sheet Metal Workers, Local 30 members performing all work in connection with the installation of sheet metal convector enclosures;
(ii) U.A. Local 46 pipefitters will perform all work in connection with the installation of piping and fin coils.
In short, the position of these respondents is that there is nothing left to enforce.
8The respondent Watts & Henderson Limited supported the respondents U.A. Local 46 and D. Clark. The respondent Rexway Sheet Metal Limited made no submissions. Neither of them disputed the accuracy of paragraph 26 of the applicant's particular letter.
91 could not, would not, and did not purport to decide the jurisdictional dispute which is the real matter in dispute between the parties. That was not directly before me. Nor did I have any jurisdiction to do so in any event. However, I concluded that I did have the jurisdiction to deal with a question what affect, if any, could now be given to the settlement agreement.
10Subsections 89(1) and (7) of the Labour Relations Act provide that:
89.-(1) The Board may authorize a labour relations officer to inquire into any complaint alleging a contravention of this Act.
(7) 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).
11The respondents UA Local 46 and D. Clark referred to Greens Ambulance, [1978] OLRB Rep. July 637 in support of their submission that subsection 89(7) was not applicable to this matter. In that case, the Board found that there had been no complaint filed with the Board as required by what is now subsection 89(7) and, second, that there had not in fact been any settlement to enforce. In my view, the provisions of section 89 apply, in the words subsection 89(1) to "any complaint alleging a violation of the Act". In this case, the applicant complained that the respondents engaged in conduct contrary to, or in violation of the Act. There was no dispute that there was a settlement of that "complaint" (though the affect thereof was disputed). To the extent that Greens Ambulance, supra, suggests that subsection 89(7) applies only to complaints filed under section 89, I respectfully disagree. Further, and in any event, I am satisfied that the Board has jurisdiction to deal with complaints that settlement of matters properly brought before it have been breached in circumstances like those in this proceeding. If that were not the case, it would tend to make a mockery of the settlement process and permit parties to ignore settlements with impunity. This Board is constituted as an expert administrative tribunal and is charged with the responsibility of applying and administering the Labour Relations Act. It would indeed be curious if a party could remove from the Board a matter which is within its exclusive original jurisdiction through the simple expedient of entering into and then not honouring a settlement agreement. Even if an aggrieved party to a settlement agreement could go to some other forum for relief, surely the Legislature could not have contemplated or intended that some forum other than this Board should deal with the matter specifically within the labour relations expertise and original jurisdiction of the Board.
12With respect to the settlement agreement itself, I was of course obliged to consider and construe the agreement as a whole. Taken as a whole, I was satisfied that this agreement did resolve this application and that there was no time limit on the work assignment agreed to it. First, there is no time limit specified with respect to that assignment. Second, the last sentence of paragraph 4 of the agreement was, on their own admission, put into the agreement at the instance of the respondents UA Local 46 and D. Clark. If the work assignment was to be time limited in the manner of those respondents assert why was this sentence necessary at all? In my view, if the work assignment was to end on October 27, 1989, unless extended by mutual agreement, it was completely unnecessary. Third, the word "interim", which describes the agreement (in the last sentence of paragraph 4 for example) is no more than a recognition, as all parties have recognized throughout, that the fundamental issue between the parties is the work jurisdiction of the two trade unions involved. It was intended only to emphasize that the work assignment which had been agreed to was not to be taken as being dispositive of that jurisdictional dispute. Fourth, I could not accept that any one could seriously have expected or believed that a dispute that had gone unresolved for months could be resolved in one day; that is, at a meeting to be held on October 27, 1989. If so, that, no pun intended, was a pipe dream.
13Finally, I consider the suggestion that "original" assignment of work was not as set out in paragraph 3 of the agreement to be irrelevant to my considerations. In any event, the parties had defined the original assignment in their agreement for themselves by setting that out in paragraph 3. I also considered what meaning might be given to paragraphs 1 and 2 of the agreement. Paragraph 1 precludes any argument that there is nothing before the Board for it to deal with. Paragraph 2 provides a means by which problems which the applicant foresaw might occur could be brought back before the Board. In my view, these provisions do no more than illustrate the prudence with which the applicant approached the matter. They do not suggest that the agreement was anything less than a settlement. Nor do they suggest that either the settlement or the work assignment agreed to therein is time limited.
14In the result, I was satisfied that I had jurisdiction to deal with the matter, and that there was valid existing settlement agreement which, having regard to the admission of the accuracy of paragraph 26 of the applicant's November 15, 1989 particulars letter, had been breached. Accordingly, I thought it appropriate to make the order as set out in paragraph 1 above.
15Finally, I wish to emphasize that nothing in each of the order which I saw fit to make or the reasons therefor should be taken to be a comment on the jurisdictional dispute between the two trade unions involved in this application. All that the Board has seen fit to do is enforce the interim without prejudice agreement in that respect which the parties have themselves made.