[1991] OLRB Rep. May 664
1851-90-U Northfield Metal Products Ltd., Complainant v. Albert Parsons, and Glass, Molders, Pottery, Plastics & Allied Workers International Union, Respondents
BEFORE: Robert Herman, Vice-Chair, and Board Members R. W. Pirrie and H. Kobryn.
APPEARANCES: Irwin A. Duncan and Gary Becker for the applicant; Ian Anderson and Ross Armstrong for the respondents.
DECISION OF THE BOARD; May 14, 1991
This is a complaint under section 89(7) of the Labour Relations Act alleging a breach of a settlement.
These parties have had a difficult and turbulent bargaining relationship. Some of the details of their interaction have been set out in prior decisions of the Board: see Northfield Metal Products Ltd. [1989] OLRB Rep. Jan. 57; [1990] OLRB Rep. Mar.302; [1990] OLRB Rep. Sept. 939.
In its decision of January 1989, (supra) the Board certified the respondent union to represent a unit of employees of the applicant company. In April, 1989, a dispute arose between one of the employees, Albert Parsons, at the time the President of the union local at Northfield Metal, and the company, and as a result Parsons left work. He subsequently filed a complaint pursuant to section 24 of the Occupational Health and Safety Act, with the full support of the union, in which Parsons alleged that he had been discharged by the company contrary to the provisions of that Act.
The complaint filed by Parsons was ultimately settled, prior to a hearing. At that time, numerous section 89 complaints alleging unfair labour practices committed by the company were pending, and the parties were still negotiating their first collective agreement. Minutes of Settlement were signed and filed on July 5, 1989, and read as follows:
Minutes of Settlement
The parties in the above matter have met and agreed to resolve their differences in the following manner:
The respondent employer hereby denies any and all allegations arising from this complaint, and any financial obligation related thereto; notwithstanding the respondent employer's position in item 1 above, and without prejudice to that position the respondent employer is prepared to:
a) immediately make a payment in kind to the complainant's representative in a exchange for a receipt from the complainant's representative;
b) provide a letter to the complainant regarding his employment with the respondent, i.e. date of hire, positions held, date of resignation;
The complainant hereby requests leave of the Board to withdraw the Occupational Health and Safety, section 24 complaint, OLRB File # 0359-89-OH, and the complainant and the complainant's representative further undertake that the circumstances of this matter shall not form the basis of any further complaint or action under the Occupational Health and Safety Act or the Ontario Labour Relations Act;
The complainant hereby acknowledges that these Minutes of Settlement are confidential, and are to be kept between the parties to this complaint, and cannot be revealed to any other party, person or source whatsoever; and further the complainant agrees that this settlement is full compensation, and recognition of any and all liabilities of any kind whatsoever, arising out of or in any way related to his employment by Northfield Metal Products Ltd., and his resignation therefrom, and for his representation by the Glass, Molders, Pottery, Plastics and Allied Workers International Union, Local #280. Failure to maintain the confidentiality of this settlement will result in the complainant's representative reimbursing the respondent in full.
Signed and dated this 5th day of July, 1989, at Kitchener.
"Albert Parsons" "Vincent Bowman"
Albert Parsons Northfield Metal Products Ltd.
Complainant Respondent
"Ross L. Armstrong"
GMP International Union
complainant's representative
As can be seen, both the complainant and the complainant's representative signed the settlement document, and it contained provisions dealing with maintaining its confidentiality. It is these confidentiality terms that are in issue.
The settlement terms were fully implemented by the parties. Parsons did not return to work and his occupational health and safety complaint was withdrawn. Parsons received a letter of reference. The Minutes of Settlement stated that the company was to immediately make a "payment in kind" to the complainant's representative. In fact, the arrangement was for payment of $7500.00 to the union. This amount was paid to the union, and both the union and Parsons provided a receipt.
Although Parsons did not return to work, numerous employees asked management what had happened to him. The employer's representatives responded that the matter had been settled to everyone's satisfaction.
Approximately eight months later, in early February, 1990, the parties had still not negotiated a first collective agreement, a first contract application pursuant to the provisions of section 40a of the Act was pending, as was at least one section 89 complaint brought by the union against the company, and some of the employees were engaging in a decertification campaign. Around February 2, 1990, a reporter for the Kitchener-Waterloo Record phoned Parsons and asked him about the circumstances under which he had left the company. Parsons said that given the time it would have taken to have resolved his occupational health and safety complaint at the Labour Board, and because the union couldn't guarantee his job, he had accepted a cash settlement from the company and had quit. Although asked by the reporter, Parsons refused to disclose any other details about the settlement. The reporter then phoned the President of the company, but he refused to comment on the Parsons complaint or its settlement. The next day the newspaper published the reporter's article about the decertification campaign at the company. Included in the article was Parsons' statement about having accepted a cash settlement from the company and quitting.
Also on February 3, 1990, Ross Armstrong, the union's Director, phoned the main petitioner in the decertification campaign in an effort to convince the petitioner to abandon his decertification attempts and to support the union instead. During his conversation with the petitioner, Armstrong said that the company had made a deal with Parsons and that Parsons had quit for a sum of cash. Armstrong used this as an example of how a union was necessary to protect employees.
Officials of the company read the newspaper article that contained Parsons statements. They also subsequently learned about the conversation between Armstrong and the petitioner. They quickly took steps to seek recovery of the $7500.00 that had been paid. At the next negotiation session, they requested repayment of the $7500.00. When the union refused, the company commenced action in the courts for recovery of the money. The court ultimately dismissed the company's action, on jurisdictional grounds, on July 11, 1990. On or about October 16, 1990, the company filed the instant complaint pursuant to the provisions of section 89(7) of the Act.
Section 89(7) of the Act reads as follows:
(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).
The company argues that Parsons and the union, through Armstrong, both signatories to and bound by the Minutes of Settlement, breached the confidentiality requirement contained in that settlement, and by the very terms of the settlement the union was required to pay back $7500.00 to the company. In response, the union argued that Parsons and Armstrong had stated that Parsons, not the union, had been paid a sum in cash. They did not disclose that the union had been paid any money, and the Minutes of Settlement had indicated that payment was to have been to the union. Therefore, submitted the union, there had not been a breach of the confidentiality terms of the Minutes of Settlement, for no term had actually been disclosed. The union further submitted that the confidentiality requirement applied only to Parsons, since in the settlement, only "the complainant" had agreed to keep the settlement private. There was no requirement, by the very terms of the settlement, that the union maintain its confidentiality. Alternatively, assuming a breach had occurred, the union submitted that because of the delay in bringing the instant complaint, the Board ought to decline to grant any remedy. In this respect, the union noted that the delay between the breach of the agreement, in early February, 1990, until the instant complaint was filed in October, 1990, was approximately eight months. Even if the period before the court dismissed the civil action on July 11, 1990, was not taken into account, there would remain a three month delay between the dismissal of that action and the filing of the instant complaint. In these circumstances, the union argues the Board ought to dismiss the complaint. Finally, the union argues that the Board has a general discretion with respect to the appropriate remedial response, and in the instant circumstances, no remedy ought to be provided. The union submits that there has been no evidence of actual damage to the company from any breach, the tenor and substance of the newspaper article was adverse to the union's interest and the company did not suffer in that respect, and in any event only a minor technical breach of the settlement occurred. The union therefore asks that the matter be dismissed by way of remedial discretion.
We do not consider that the delay in filing the instant complaint was such that we ought to exercise our discretion to dismiss the complaint. Immediately upon learning of the statements of Parsons, the company raised the matter with the union and indicated that it wanted repayment of the $7500.00 according to the terms of the settlement itself. It then quickly sought to recover the funds through legal process. The delay between the initial demand and the time of filing the instant complaint was not so long, in all the circumstances, that we will dismiss the complaint on this basis.
We turn next to consider whether the confidentiality requirement in the settlement agreement has been breached. We need not determine whether the terms of the settlement bound only Parsons to maintain its confidentiality, or whether both Parsons and the union were so bound, since in the event both Parsons and the union, through its Director Armstrong, made similar statements about the settlement.
Settlement is perhaps the single most important method by which labour relations disputes are resolved in the Province. And this reality is particularly true with respect to proceedings before the Ontario Labour Relations Board. As the Board wrote in the Lambton County Board of Education [1987] OLRB Rep. Oct. 1277:
The purpose of section 89 is to secure a prompt, final, and binding resolution of unfair labour practice complaints. The Act expressly recognizes and endorses the settlement of such complaints without a formal Board hearing and decision. The provisions of section 89 are intended to facilitate settlements. Under section 89(7), where the matter complained of in the section 89 complaint has been settled, 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 who agreed to the settlement. Indeed, section 89(7) makes non-compliance with a written settlement a breach of the Act. Each year, trade unions, employees, and employers file thousands of applications or complaints before the Board. A large majority of them are settled. Sometimes the settlement favours a trade union or an employer. Other times it favours an employee. Usually it represents a compromise under which the parties neither achieve as much nor risk as much as they would by proceeding to a hearing before the Board. The parties generally arrive at a settlement in order to avoid the cost and uncertainties of litigation. The orderly resolution of Board proceedings and the efficacy of the settlement process would be gravely prejudiced if, having signed Minutes of Settlement, the party could afterwards repudiate the settlement.
Settlement often involves a compromise. It is a compromise that the parties themselves have evaluated and have endorsed. Many settlements include the payment of compensation by an employer to employees or the union. Many of these would no doubt never have been finalized if the employer could not have been assured that no liability or blame could be attributed to the employer. Similarly, such "without prejudice" settlements would often be of little utility if they were not kept confidential. It is not difficult to see why, in a particular circumstance, an employer might be willing to settle a complaint with payment of compensation to a complainant, but only if liability is not attributed and only if the community and other employees do not learn that the company has agreed to pay compensation. The employer's fear is that the disclosure of such a payment, apart from the amount of the payment, might alone undercut the efficacy of the denial of liability, and might also lead other employees or unions to file further complaints, in the belief that the employer will settle such complaints with cash. That is why some parties insist on confidentiality as a condition of any settlement. But in any event, the parties themselves determine the terms of a settlement, not the Board. It would be counterproductive to the overall efficacy of the settlement process for the Board to evaluate the parties' motivations or the means and terms of particular settlements.
The same concerns lead the Board to protect the settlement that the parties have reached. Where the settlement is clear, parties should not expect to be allowed to depart from the terms they have agreed to, or to be relieved from the consequences of their settlement. If it were otherwise, the settlement process, its importance in the scheme of the Board's mandate and operation, and its importance to the ongoing labour relations environment in the Province would be seriously undercut, if not destroyed.
Here, the parties agreed that the settlement terms remain confidential. We conclude that the statements revealing that the company had settled the occupational health and safety complaint by way of a cash payment were in breach of the confidentiality requirement contained in the Minutes of Settlement. We so find even though Parsons and Armstrong said that the money had been paid to Parsons, although the settlement required payment to the union. What is critical is that they revealed that the company had paid cash to settle the complaint between Parsons and the company. It would not have been a breach of the confidentiality requirement to have disclosed only that the matter was settled, as the employer had. But by indicating that the employer had agreed to a money payment, Parsons and Armstrong were revealing a term of the settlement, and not merely that a settlement had been reached. This breached the parties' agreement to keep the terms confidential. It was not merely a technical breach.
We see no reason in the circumstances to exercise our discretion to deprive the applicant company of the remedy that the parties themselves have assessed and agreed to in the settlement: that the union would have to repay the money earlier paid to it. The union signed the settlement. To decline to direct repayment of the $7500.00 would be to refuse to enforce the agreement.
For these reasons, we conclude that the Minutes of Settlement have been breached, and there has been a breach of section 89(7) of the Act. We direct that the union forthwith pay to the company the sum of $7,500.00.
CONCURRING OPINION OF BOARD MEMBER H. KOBRYN; May 14, 1991
Although I'm very uncomfortable with the end results of this decision, I have no choice but to agree with the majority in this case, for the protection of the settlement process.
Once the parties have reached a settlement, set the terms of that settlement in writing, and subsequently all the parties involved have signed this settlement, then all the parties are bound by these signed Minutes of Settlement.
My suggestion to the parties is that before they sign the Minutes of Settlement they should review the terms most carefully and be certain they understand what it is they have agreed to. As in this case, it is apparent there isn't any time limitation on the confidentiality (gag rule) unless time limitations are specifically written into the Minutes of Settlement. In these Minutes there was no such time limitations included. This breach of the "gag rule" took place almost eight months after the settlement but it is still a breach.