[1989] OLRB Rep. May 446
0824-88-JD United Brotherhood of Carpenters and Joiners of America, Local 2041, Complainant v. Ferano Construction Limited; Labourers International Union of North America, Local 527; and Labourers International Union of North America, Ontario Provincial District Council, Respondents
BEFORE: R. A. Furness, Vice-Chair, and Board Members J. Redshaw and D. A. MacDonald.
APPEARANCES: Denis Power and Donald Guilbeault for the complainant; George Rontiris and D. Ferrarotto for Ferano Construction Limited; Stephen B. D. Wahl B. Carrozzi and A. Roy for the other respondents.
DECISION OF THE BOARD; May 1, 1989
1This is a complaint under section 91 of the Labour Relations Act in which the complainant is seeking a direction with respect to the assignment of certain work. This complaint arose out of a referral to arbitration pursuant to the provisions of section 124 of the Labour Relations Act (see Board File 0095-88-G). The referral was filed by the Labourers International Union of North America, Local 527 ("Local 527") against Ferano Construction Limited ("Ferano"). The United Brotherhood of Carpenters and Joiners of America, Local 2041 ("Local 2041") filed an intervention in the referral under section 124.
2In the instant complaint Local 527 and the Labourers International Union of North America Ontario Provincial District Council (the "District Council") had not initially been named as respondents. Local 527 and the District Council requested that they be named as respondents. Neither the complainant nor Ferano objected to this request. Having regard to the representations before it, the Board directs and Local 527 and the District Council are hereby added as respondents in this complaint.
3Local 527 and the District Council objected to the claim by the Acoustical Association of Ontario (the "AAO") to be a party in this complaint. Ferano is a member of the AAO. In an employer bargaining agency designation dated April 10, 1980, the AAO is a part of the United Brotherhood of Carpenters and Joiners of America Employer Bargaining Agency. In addition, the AAO is a party to a special appendix of the provincial collective agreement. After entertaining the evidence and representations of the parties the Board made the following oral decision on January
27, 1989:
I The Acoustical Association of Ontario (the "AAO") seeks to be a party to this complaint under section 91 of the Labour Relations Act. The position of the AAO is supported by the complainant and the respondent Ferano Construction Limited and is opposed by the Labourers' International Union of North America, Local 527, and the Labourers International Union of North America, Ontario Provincial District Council.
II The AAO was not initially named as a party to this complaint. However, the request to be added as a party to a complaint under section 91 is not dependent upon being named as a party by a complainant.
III The AAO rests its claim to be added as a party upon the fact that it has the authority under the constitution of the Carpenters' Employers' Bargaining Agency to negotiate an appendix to the provincial collective agreement subject to the conditions set forth in article 6.03 of the constitution of The Carpenters' Employers' Bargaining Agency. Article 6.03 of that constitution provides as follows:
A master agreement shall be negotiated by the Agency containing general terms and conditions pertaining to the employment of employees represented by the Union. Each employer group(s) as hereinbefore set forth shall, if it so desires, negotiate an appendix with the appropriate employee council/committee which appendix shall contain the specific terms and conditions pertaining to its specific trade (branch of the trade). Any employer group may have representation at any of the negotiations of any other employer group hut each employer group/member shall make the final and absolute determination of its own appendix. Provided, however, that prior to the finalization of the appendix same shall be submitted for review to the Agency at a meeting of all the members called as provided for in Paragraph 6.01.
The AAO also relies upon a distinction which it says exists between the carpenters and carpenters' apprentices who are covered by the acoustic and drywall appendix and other carpenters and carpenters' apprentices who are covered by the white pages of the provincial collective agreement.
IV The Board has considered the evidence and representations which were made before it. The AAO is bound by the provisions of the provincial collective agreement. However, the AAO is not the sole party to the provincial collective agreement. The AAO is merely a constituent of the Carpenters' Employers' Bargaining Agency.
V The grounds advanced by the AAO do not in our opinion establish an entitlement to be a party under the provisions of section 5 of the Statutory Powers Procedure Act. The AAO is neither specified as a party nor under the Labour Relations Act nor a person entitled by law to be a party. In our opinion, the AAO has not established that it has an interest which would entitle it to be added as a party. The assertion that there are different provisions which apply to various employees who are covered by the provincial collective agreement does not in itself entitle the AAO to be a party to this complaint.
4The Board heard extensive evidence regarding whether there had been a settlement of this complaint under section 91 of the Labour Relations Act. Such a settlement, if it occurred, was in the nature of an oral settlement as opposed to a formal written settlement. It was the position of Local 527 and the District Council that a settlement of the complaint or at least a trade settlement had been reached between the two trade unions. Local 2041 and Ferano adopted the position that no such settlement had been reached.
5There is, of course, no requirement that a settlement be in writing or signed by the parties. See Ontario Hydro, [1983] OLRB Rep. Nov. 1869 and Perfection Rug Co. Ltd., [1984] OLRB Rep. Jan. 68. The existence of a settlement is a matter of proof. See, for example, Suss Woodcraft Ltd., [1983] OLRB Rep. Apr. 600.
6It was the position of Local 527 and the District Council that an offer made by Local 2041 had been accepted by Local 527 thereby resulting in a settlement. It was the position of Local 2041 that an admitted written offer dated November 30, 1988 was indeed intended as such but was a conditional offer subject to a condition precedent, that is to say, conditional upon the approval by a group of employers engaged in the installation of drywall and acoustic material known as the Walls and Ceilings Contractors Association ("WACCA") and that it was irrelevant that WACCA is not a party to this complaint. In the alternative, it was the position of Local 2041 that the offer of November 30, 1988 was countered by an offer by Local 527 and that a counter-offer was a rejection of the original offer and therefore nullified the original offer. In the further alternative, it was the position of Local 2041 that the offer of November 30, 1988 was withdrawn before the attempted acceptance and having been withdrawn it was no longer open for acceptance. Local 527 and the District Council were of the view that the approval of WACCA was never agreed upon as a condition precedent by Local 527 and Local 2041.
7If the condition is a true condition precedent, there is no contract or settlement until it is satisfied. In Turney v. Zhilka, 1959 CanLII 12 (SCC), [1959] S.C.R. 578, the Supreme Court of Canada defined that expression as follows at pages 583 to 584:
The obligations under the contraction, on both sides, depend upon a future uncertain event, the happening of which depends entirely on the will of a third party--the Village council. This is a true condition precedent--an external condition upon which the existence of the obligation depends. Until the event occurs there is no right to performance on either side.
In Dickinson v. Dodds (1876), 2 Ch. D. 463 the English Court of Appeal held than an offer may be withdrawn before acceptance without any formal notice to the person to whom the offer was made. It was further held that it is sufficient that that person has actual knowledge that the party who made the offer has done some act inconsistent with the continuation of the offer. Such principles have been applied in Canada. See, for example, The Provincial Sanatorium v. McArthur (1935) 1935 CanLII 484 (PE SCAD), 10 M.P.R. 199. And see also McMaster University v. Wilchar Construction Ltd. et al 1971 CanLII 594 (ON HCJ), [1971] 3 O.R. 801 where Thompson, J., stated at page 816:
"It is unnecessary that the withdrawal of an offer in any case be by formal document. Withdrawal is effective if the offeree knows from any source that the offeror no longer intends to contract with him; and this latter fact may be inferred from the conduct of the offeror: see Dickinson v. Dodds (1876), 2 Ch. D. 463; Cartwright v. Hoogstoel (1911), 105 L.T. 628."
8The Board heard testimony from Bernardo Carrozzi, the Business Manager and Secretary-Treasurer of Local 527; Andre Roy, a Business Representative and Assistant Business Manager of Local 527; Donald Guilbeault, the Business Manager and Financial Secretary of Local 2041; Richard Lecompte, the Business Representative of Local 2041; Donald Sutherland, one of the owners of Murphy and Morrow Limited which is in the business of drywall and acoustics; Daniel Greco, the Operations Manager of the Ontario Construction Association; Domenic Ferrarotto, President of Ferano; Jack Donovan, the President of Donovan & Lebeau Limited and Everett Colton, the President of Duron Ottawa Limited. The Board has considered the evidence of these witnesses' testimony together with the written evidence which was adduced before the Board.
9One of the central matters in the evidence before the Board was the diary of Mr. Guilbeault. There are various constructions which may be made with respect to the contents of this diary. It was the view of Local 527 and the District Council that there had been subsequent deletions and additions to the diary in order to support the contention of Local 2041 that there had not been a settlement. Various interpretations are possible with respect to this diary depending upon the point of departure with other evidence. The Board does not accept the proposition that the diary was modified with a view to misleading the Board. In particular, the Board notes that the diary was available for inspection before Mr. Carrozzi and Mr. Roy gave their evidence. However, with various styles of handwriting, different pens, interlineations, deletions and obliterations together with the writing of dates in the past, present and future causes the Board to conclude that Mr. Guilbeault's diary is an enigma within a mystery. There was other evidence before the Board in the form of oral evidence and other documents which enable the Board to reach a conclusion on whether there was a settlement in this complaint.
10The events which led to this complaint may be traced to an application under section 124 of the Labour Relations Act which was filed by Local 527 on April 12, 1988. Ferano was named as the respondent in this proceeding. Local 2041 intervened in that application under section 124. On July 4, 1988 Local 2041 filed this complaint under section 91 of the Labour Relations Act. During the month of August of 1988, the Board held pre-hearing conferences with a view to settling this jurisdictional dispute. During the course of these proceedings before the Board, various written descriptions of a possible settlement originated from Local 527, Local 2041 and their solicitors.
It is common ground that a document dated November 30, 1988 contained a written offer of settlement made by Local 2041. The offer stated "construction labourers work shall include:
(a) the handling and conveying of construction materials including drywall and acoustical construction materials on site, from its receipt at the point of delivery, conveying, transport and stockpiling, to the local stockpile if any or if necessary.
(b) all demolition and wrecking of construction including drywall and acoustical material for scrap, and the cleaning up and clearing away of construction material and debris thereafter.
It is acknowledged that this work is NOT the work of the carpenter or carpenter's apprentice."
11Local 527 and the District Council have the perception of Local 2041 being required to "yank" the settlement away from Local 527 because WACCA did not want matters settled on the terms of the offer of November 30, 1988. Local 2041 on the other hand view the behaviour of Local 527 as being unfairly opportunistic in purporting to "snap up" an offer of settlement which it knew was no longer on the table for acceptance.
12After the involvement of WACCA in the circumstances of this complaint in December
1988, Mr. Guilbeault made it clear to Mr. Roy that the offer made by Local 2041 was conditional upon the approval of WACCA. Moreover, in our view, subsequent to the offer of November 30, 1988, Mr. Roy acting upon instructions by Mr. Carrozzi tried to improve the language of the description in the offer to include "to the point of installation" instead of any reference to a stockpile. The Board finds that this occurred prior to January 18, 1989. Such conduct by Mr. Roy constituted a counter-offer and was a rejection of the original offer of November 30, 1988. This counteroffer, of course, nullified the offer of Local 2041. The effect of these events was that the conditional offer which was on the table was to the knowledge of Local 527 no longer on the table as an offer for acceptance. The subsequent conduct in our view amounted to discussions with no further concrete proposals in hand.
13Although by no means decisive, there is various other evidence before the Board which indicates the state of mind of both Local 2041 and Local 527. At an executive board meeting of Local 2041 which was held on January 10, 1989, the minutes thereof state that Mr. Guilbeault instructed Nelligan & Power to set hearing dates in this matter. The matter referred to is the jurisdictional dispute with the Labourers. In addition at a pre-job mark-up meeting held in Ottawa in December of 1988 with respect to, inter alia, the construction of drywall under an EPSCA collective agreement, Mr. Lecompte attended on behalf of Local 2041 and a Mr. Mullin attended on behalf of Local 527. At that meeting the Labourers were still claiming to tender to carpenters who were installing drywall and metal ceilings. The minutes note that the carpenters disagreed with this claim by the labourers.
14The Board finds having regard to the foregoing that there was not a settlement of the jurisdictional dispute in this matter. At the continuation of hearing the Board will deal with the third and fourth preliminary issues raised by Local 527 and District Council with respect to the description of the work in dispute and the evidence which is to be adduced before the Board.