Labourers' International Union of North America, Local 183 v. D.O.V.V. Construction, 1991 CanLII 6060

[1991] OLRB Rep. May 615

1722-90-G Labourers' International Union of North America, Local 183, Applicant v. D.O.V.V. Construction (c.o.b. Dessmark Construction and/or Siltonwood Development), Respondent

BEFORE: Janice Johnston, Vice-Chair, and Board Members D. A. MacDonald and J. Redshaw.

APPEARANCES: J. Kovacs and H. Cannon for the applicant; no one appearing for the respondent.

DECISION OF THE BOARD; May 14, 1991

1. The name of the respondent (or the "employer") is amended to read: "D.O.V.V. Construction (c.o .b. Dessmark Construction and/or Siltonwood Development)".

2. This is a referral of a grievance to the Board pursuant to the provisions of section 124 of the Labour Relations Act (the "Act").

3. This matter was originally scheduled to be heard on October 10, 1990. On that date the parties agreed to adjourn the hearing to a date to be fixed by the Registrar. It was rescheduled to be heard on November 20, 1990, however the parties requested on November 19, 1990 that the matter be adjourned sine die. This was consented to by the Board by decision dated November 19, 1990. By letter dated February 27, 1991 the applicant requested that the Board reschedule this matter for hearing.

4. At the hearing of this matter on May 8,1991 no one appeared on behalf of the respondent. In accordance with its usual practice the Board waited until 10:00 a.m. before commencing the hearing. As no one had appeared by 10:00 a.m., we heard evidence from the union to substantiate their claims. No one appeared in the course of the hearing on behalf of the employer.

5. It was the position of the applicant that the subject matter of this grievance had been settled on November 15, 1990. Counsel for the applicant argued that the respondent had signed binding Minutes of Settlement on that date. The applicant was therefore seeking a declaration that a settlement had in fact been reached on November 15, 1990, and that the respondent had not complied with that settlement. The applicant also requested that the Board issue an order directing the respondent to comply with the Minutes of Settlement.

6. The applicant called Mr. H. Cannon, the Contribution Control Officer for the union to give evidence. Mr. Cannon testified that on November 15, 1990 he met with representatives of the respondent, Mr. Tony Mazzei and Mr. Doady Odorico. This meeting took place at the offices of the respondent. At this meeting, Minutes of Settlement for the grievance were signed. They stated as follows:

BEFORE THE ONTARIO LABOUR RELATIONS BOARD

FILE NO. 1722-90-G

BETWEEN:

Labourers' International Union of North America, Local 183

("the Union")

• and -

D. O.V. V. Construction (c. o . b. Dessmark Construction and/or Siltonwood Developments)

("the Employer")

MEMORANDUM OF SETTLEMENT

WHEREAS the parties hereto desire to fully and finally resolve all matters related to the Union's grievance dated October 1, 1990;

NOW, THEREFORE, the parties agree, each with the other, as follows -

1. The employer acknowledges that it is bound to the Collective Agreement effective between the 15th day of May, 1989 and the 30th day of April, 1991.

2. The Employer acknowledges that it violated the Collective Agreement by failing to make required remittances in the amount of seven per cent (7%) of the gross amount payable to W. Framing Ltd. for work performed by W. Framing Ltd. on the "Labour Council" project located at or near the intersection of Yonge St. and Weldbrick St. in Richmond Hill ("the project").

3. The Employer agrees to pay forthwith to the Union the amount equivalent to seven percent (7%) of the amount payable to W. Framing Ltd. for work performed by W. Framing Ltd. at the project.

4. The parties agree that the amount payable by the Employer to the Union is 11,432.44.

5. Upon receipt of $11,432.44 from the Employer, the Union agrees to withdraw its grievance dated October 1, 1990.

Dated AT TORONTO THIS 15th DAY OF NOVEMBER, 1990.

“Doady Odorico” "Hugh_Cannon" FOR THE EMPLOYER FOR THE UNION DOADY ODORICO HUGH CANNON

Mr. Cannon signed the Minutes on behalf of the union and witnessed Mr. Odorico sign on behalf of the employer.

7. At this meeting on November 15, 1990 Mr. Odorico admitted that the respondent was bound to a collective agreement between the Labourers' International Union of North America, Local 183 and D.O.V.V. Construction (c.o.b. Dessmark Construction and/or Siltonwood Development). Mr. Odorico also admitted that he was in violation of this collective agreement, and the parties agreed that the damages set out in the Minutes of Settlement $11,432.44, were appropriate. To the date of the hearing, the union has not received the agreed to damages.

8. Counsel for the union argued that the Board, if it found a settlement to have been concluded, had the jurisdiction to direct the respondent to implement the settlement. In support of this position counsel supplied the Board with two decisions, Suss Woodcraft Ltd., [1983] OLRB Rep. April 600, and Perfection Rug Co. Ltd., [1984] OLRB Rep. Jan. 68.

9. In Suss Woodcraft Ltd., (supra) the Board was dealing with a situation similar to the one facing the Board in this case. In assessing whether it could direct the respondent to comply with the settlement, the Board canvassed the relevant arbitral jurisprudence and stated:

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 LA.C. 403 (Reville) the following quotation from Re Mueller Limited 1961 12 A.C. 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."

9. Bittner Packers Limited (unreported), released January 27, 1982 (Betcherman), also cited by Mr. Nyman, is a case perhaps more directly related to the applicant's alternative argument, but recognizes a principle of finality similar to the two previous cases. The company had admitted liability in the course of grievance discussions, but no "settlement" of the remedy, in terms of a payment of damages, had ever been arrived at. The arbitrator wrote at page 5:

“…..I find it to be a clear and unequivocal admission by a person in authority that the union's interpretation of Article 1.03 was correct and that the company had breached the article by using part-time employees where it was possible to use full-time employees... Thus it is my finding that the company clearly admitted its liability and it cannot retract its admission at this stage: see re Air Canada and Canadian Air Line Employees' Association, (1980), 1980 CanLII 4091 (CA LA), 27 L.A.C. (2d) 405 (Weatherill)."

The arbitrator then went on to deal with the outstanding issue of damages.

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.

12. In Perfection Rug Co. Ltd. the Board after citing Suss Woodcraft Ltd., also concluded that it had jurisdiction under section 124 of the Act to enforce an oral settlement of a grievance.

13. The Board finds therefore that the parties to the grievance before us signed binding Minutes of Settlement on November 15, 1991 and that we have jurisdiction pursuant to section 124 of the Labour Relations Act to enforce these Minutes of Settlement.

14. The Board hereby:

15. declares that the respondent is bound to the collective agreement between Residential Framing Contractors Association of Metropolitan Toronto and Vicinity Inc. and Labourers' International Union of North America, Local 183 effective May 15, 1989 to April 30, 1991;

16. declares that the respondent has violated the collective agreement by failing to make required remittances in the amount of seven percent (7%) of the gross amount payable to W. Framing Ltd. for work performed by W. Framing Ltd. on the "Labour Council" project located at or near the intersection of Yonge St. and Weldbrick St. in Richmond Hill ("the project");

17. declares that the respondent and the applicant signed Minutes of Settlement dated November 15, 1991;

18. declares that the payment of damages agreed to in the amount of $11,432.44 has not been made by the respondent, contrary to the Minutes of Settlement;

19. directs the respondent to comply with the Minutes of Settlement and pay to the applicant $11,432.44 as damages; and

20. directs the respondent to pay interest on $11,432.44 from the date November 15, 1990, such interest to be calculated in the manner described in Practice Note 13 dated September 8, 1980.

21. The Board remains seized of this matter in the event that a dispute arises concerning the implementation of the Board's order.