2059-01-G International Association of Bridge, Structural, Ornamental, and Reinforcing Iron Workers, Local 721, Applicant v. Comstock Canada Ltd., Responding Party.

BEFORE: Laura Trachuk, Vice-Chair, and Board Members J. G. Knight and G. McMenemy.

APPEARANCES: Glen Chochla, Aaron Murphy and Bernie Melanson for the applicant; Carl Peterson, Tony Fanelli and Robert LeChien for the responding party.

DECISION OF THE BOARD; November 28, 2001

1. The style of cause has been amended to remove the Electrical Power Systems Construction Association as a responding party.

2. This is a referral of a grievance in the construction industry pursuant to section 133 of the Labour Relations Act, 1995 (the “Act”). The applicant (referred to as the “union”) claims that the responding party (referred to as the “company”) has failed to comply with a settlement previously agreed to by the parties.

The Facts

3. The parties were able to reach an agreement with respect to the relevant facts and the matter was argued on that basis. On July 9, 2001 the parties resolved a grievance with respect to the termination of Darren Newhall and Bernie Melanson by entering a memorandum of agreement which provided as follows:

THEREFORE, the Employer and the Union agree on its own behalf and on behalf of the grievors, as follows:

1. The Employer agrees to pay to the Union the amount of $10,000, (ten

thousand dollars) by close of business on July 13, 2001. The cheque shall be made payable to Iron Workers Local 721 and delivered to the Union's Offices at 909 Kipling Ave., Etobicoke.

2. The Employer shall reinstate the grievors to its employ no later than August 17, 2001. It is expected that the grievors will be assigned to

the Employer's "Wind Generator" project at Pickering NGS.

3. Should the Employer hire additional Iron Workers for its Pickering Restart project, the Union shall refer the grievors to the Pickering

Restart project.

4. The Employer's dismissal of the grievors on February 2, 2001 shall not be referred to nor relied upon by Comstock Canada in any future

decisions concerning the hiring, dismissal or layoff of the grievors.

5. The grievance is hereby withdrawn, in full and final settlement of all matters arising out of the grievance (OLRB File No. 023 6-0 l-G). The Union shall notify the OLRB that the grievance Referral (OLRB File No. 0236-01-G) has been settled.

6. On August 13 or 14, 2001 the company’s industrial relations manager, Robert LeChien, telephoned Aaron Murphy, the union’s business manager, to discuss the reinstatement of the grievors. Mr. Murphy had signed the above settlement on behalf of the applicant. There was no question that Mr. LeChien was prepared to reinstate the grievors to the Wind Generator project and offered to do so. However, in the course of their telephone conversation, he indicated that he knew some workers from previous jobs that he wanted to use for the Wind Generator project. He asked Mr. Murphy whether he wanted Mr. Newhall and Mr. Melanson to be reinstated to that project. Mr. Murphy said that it was not necessary. The Wind Generator project was of a much shorter duration than the Pickering Restart project. There was no discussion about reinstating the grievors to work at any other site.

7. On July 30 and August 3, 2001, i.e. before the date upon which the grievors were to be reinstated, the company requested a number of members by name from the union to work on the Pickering Restart project. Under the collective agreement the company can staff 50 per cent of its work force through name hires and the rest must be referrals. On September 7, 2001 the company contacted the union’s hiring hall for four name hires and two referrals to the Pickering Restart project. The union did not refer either Mr. Newhall or Mr. Melanson. On September 21, 2001, the company requested two name hires and two welder referrals for the Pickering Restart project. Both Mr. Newhall and Mr. Melanson are qualified as welders but again neither of them were referred by the union. Apparently the union’s failure to refer the two grievors as provided in paragraph 3 of the settlement was the result of a miscommunication within the union office.

8. The union did not complain to the company that the two grievors had not been reinstated until September 27, 2001. On that date, its counsel sent a letter to the company complaining that it had not hired the two grievors for the Pickering Restart project on August 13, 15 or September 7, 2001. The grievance does not claim that the grievors should have been rehired at some other site as of August 17, 2001. The grievance referral to the Board also only refers to the company’s failure to reinstate the grievors to the Pickering Restart project. The referral does not claim that they should have been reinstated to another site on August 17, 2001. The union has subsequently agreed that it failed to refer the grievors on September 7 and 21, 2001 as provided in the settlement.

9. At the hearing, the union complained that Mr. Newhall and Mr. Melanson were not reinstated as of August 17, 2001 as provided in the settlement. It claims that when Mr. Murphy said that it was not necessary to reinstate them, he meant that it was not necessary to reinstate them to the Wind Generator project. The union acknowledges that the company was only working on the Wind Generator project and the Pickering Restart project at the Pickering site but argues that it should have reinstated them somewhere else. The union acknowledges that the company could not place Mr. Newhall and Mr. Melanson somewhere else without discussing it with the union. However, it claims that it was the company’s responsibility to initiate that conversation. The company replies simply that it offered to reinstate the two grievors according to the requirements of the settlement and was told it was not necessary to do so. When it later asked for referrals, the union did not refer the two grievors as required by the settlement. The union agrees that the company bears no responsibility for the fact that the two grievors were not referred to the Pickering Restart project. However, the union says that the company could have hired them instead of the name hires on July 30 or August 3, 2001 or should have reinstated them somewhere else as of August 17, 2001.

Decision

8. After considering all of the circumstances and the submissions of the parties the Board finds that the company has not failed to comply with the settlement. The parties amended the settlement in the conversation between Mr. LeChien and Mr. Murphy by waiving the company’s obligation in paragraph 2 to reinstate the grievors as of August 17, 2001. The company reasonably understood the union to be saying that it was not necessary to comply with paragraph 2 of the settlement when Mr. Murphy said it was not necessary to reinstate the grievors to the Wind Generator project. If that was not what Mr. Murphy meant, he would have asked where the company was going to reinstate them instead. If the union had expected the grievors to be reinstated on August 17, 2001 after the conversation between Mr. LeChien and Mr. Murphy on August 13 or 14, it would have complained well before September 27, 2001. Furthermore, the grievance letter would have mentioned that claim. It did not. It referred only to the failure to reinstate the grievors to the Pickering Restart project on the dates upon which the company contacted the union for name hires or referrals. The grievance referral filed with the Board also only referred to paragraph 3 of the settlement i.e. the company’s failure to hire the grievors to the Pickering Restart project on those occasions. If the grievors themselves had expected to be reinstated on August 17, 2001 they would have complained to the union and thereby prompted some earlier action. The fact that there was no complaint until after the union had referred four other workers to the Pickering Restart project suggests that it was only then that the grievors thought the settlement had not been complied with. However, the company was not at fault in the union’s failure to refer the grievors to the Pickering Restart project. Although the union claims the company should have hired the grievors to the Pickering Restart project instead of certain name hires prior to August 17, 2001, the company had no obligation to rehire the grievors anywhere until that date. After that date it was the union’s responsibility to refer them if there was work available at the Pickering Restart project and it failed to do so.

9. For the above reasons the Board finds that there has been no violation of the terms of settlement. This application is dismissed.

“Laura Trachuk”

for the Board