The Toronto Building and Construction Trades Council v. Napev Construction Limited, 1980 CanLII 808

[1980] OLRB Rep. June 862

0534-79-M The Toronto Building and Construction Trades Council and International Union of Bricklayers and Allied Craftsmen, Local 2, Applicants, v. Napev Construction Limited, Respondent, v. Masonry Contractors' Association of Toronto, Intervener #1, v. Venice Masonry Contractors (Toronto) Limited & Co., Intervener #2, v. Bricklayers, Masons Independent Union of Canada, Local 1, Intervener #3.

BEFORE: Ian C. A. Springate, Vice-Chairman, and Board Members J. D. Bell and O. Hodges.

APPEARANCES: A. M. Minsky and M. Zisler for the applicants; F. R. von Veh, S. J. McCormack, Kathleen Ward and Peter Shishkov for the respondent; Howard W. Isenberg for interveners #1 and #2; no one appearing for intervener #3.

DECISION OF THE BOARD; June 10, 1980

1. This is a referral of a grievance to the Board pursuant to section 11 2a of The Labour Relations Act. It should be noted that International Union of Bricklayers and Allied Crafts­men, Local 2 ("Local 2") was, prior to a change in the name of its parent International, known as Bricklayers, Stonemasons and Tilesetters, Local 2, and is so referred to in an except from a prior Board decision set out below.

2. It is the contention of the applicants that Napev Construction Limited ("Napev") is bound by the terms of the provincial agreement between the International Union of Brick­layers and Allied Craftsmen and its Ontario Provincial Conference on the one hand, and the Masonry Industry Employers Council of Ontario on the other, ("the bricklayers' provincial agreement"). Napev denies that it is bound by the terms of this agreement.

3. The applicants contend that on March 14, 1974 Napev entered into a "working agreement" with The Toronto Building and Construction Trades Council, and that by the terms of this agreement Local 2, an affiliate of the Council, acquired bargaining rights with respect to bricklayers employed by Napev. It is not disputed that if Local 2 does hold such bargaining rights, then by virtue of the province-wide bargaining provisions of the Act, en­acted in 1977, Napev would be bound by the terms of the bricklayers' provincial agreement in the industrial, commercial and institutional sector of the construction industry. The appli­cants and Napev are in agreement that the project giving rise to the grievance is in the indus­trial, commercial and institutional sector. For its part, Napev does not deny entering into the working agreement with The Toronto Building and Construction Trades Council, but it takes the position that the document could not serve to create any bargaining rights with respect to bricklayers. Napev contends that if given an opportunity to do so, it will be able to lead evi­dence to substantiate this position.

4. The applicants contend that it is too late for Napev to challenge the effect of the working agreement, since that matter is now res judicata. It was agreed at the hearing that before dealing with any other matters relevant to the grievance, the Board would rule on the applicants' contention that the principle of res judicata bars any challenge by Napev in these proceedings concerning the effect of the working agreement.

5. In a decision dated September 17, 1979, the Board concluded that none of the inter­veners had status as a party to participate in these proceedings. However, being mindful of the importance and possible implications of its decision on this issue, the Board did accede to the request of counsel for interveners #1 and #2 that he be permitted to address the Board in the nature of an amicus curiae with respect to this aspect of the proceedings.

6. The working agreement upon which the applicants rely states as follows:

"WORKING AGREEMENT

AGREEMENT dated the 14th day of March AD. 1974

BETWEEN: NAPEV CONSTRUCTION LIMITED, Phone: 274-3445 298A Lakeshore Road West,

Suite 201, Port Credit. L5H 1G6

hereinafter referred to as 'The Company'

— and —

THE TORONTO BUILDING AND CONSTRUCTION

TRADES COUNCIL

hereinafter referred to as 'The Council'

The parties hereto hereby expressly covenant and agree as follows:

PURPOSE

1. The general purpose of this agreement is to establish mutually satis­factory relations between the Company and its employees; to elimi­nate unfair practices; to establish and maintain satisfactory working conditions, hours of work and wages and to stabilize and encourage the construction industry.

RECOGNITION

2. The Company recognizes the Council and its affiliated unions as the collective bargaining agency for all its employees.

3. The Company agrees that it will employ only members of the unions affiliated with the Council and will let contracts or sub-contracts only to individuals or companies whose employees are members in good standing in the unions affiliated with the Council and will do all things necessary to insure that only members of the unions affi­liated with the Council are employed in construction work in which the Company is engaged.

4. The Council through its affiliated unions will supply competent workmen to do the work of any trade or calling that may be required by the Company in the trades represented by the Council.

WAGES, HOURS AND WORKING CONDITIONS

5. The Company agrees to recognize and be bound by the agreements existing between each of the unions affiliated with the Council and the Toronto Construction Association and specifically agrees that if the provisions relating to wages, hours and working conditions set forth in the said agreements shall be binding on the Company. In the event any of the said conditions of any of the said agreements are altered or amended at any time during the currency of this agree­ment, the Company shall be bound by such alterations and amend­ments. The said agreements are available for inspection by the Company at the office of the Council at * at the Toronto Construc­tion Association, 92 Yorville Avenue, Toronto; and at the Depart­ment of Labour, Parliament Buildings, Toronto. The Council shall notify the Company of any amendments or alterations of the said agreements.

*15 Gervais Drive, Suite 402, Don Mills.

M3C 1Y8

TERMINATION

6. This agreement shall remain in force for a period of one year from the date hereof and shall continue in force from year to year there­after unless in any year not less than sixty days before the date of its termination, either party shall furnish the other with notice of termi­nation of, or proposed revision of, this agreement; PROVIDED, however, that this agreement shall remain in full force and effect until completion of all jobs that have been commenced during the operation of this agreement.

IN WITNESS WHEREOF the parties hereto have caused this agreement to be executed by their duly authorized representatives.

Signed on behalf of the Company Signed on behalf of Council

'P. Shishkov' 'C. A. Ballentine'

P. Shishkov C. A. Ballentine - Business Manager

'James D. Johnson'

James D. Johnson - Business

Representative"

7. The effect of this very same working agreement was litigated before the Board in File No. 0945-75-M. In that proceeding, The Toronto Building and Construction Trades Council referred a grievance to the Board under section 1 12a against both Napev and Vepan Leaseholds Limited and also requested that the Board apply section 1(4) and treat the two. companies as constituting one employer for the purposes of the Act. In an unreported decision dated October 7, 1975, the Board, after reviewing the provisions of both section 1 12a and sec­tion 1(4), went on to make the following findings:

"4. The Board finds upon the evidence that the respondents carry on associated or related activities or businesses under common control. The Board further finds that, in the circumstances of this case, the respon­dents, namely Napev Construction Limited and Vepan Leaseholds Limited, are to be treated, and the Board will treat them, as constituting one employer for the purposes of the Act.

5. The Board consequently finds that both respondents are bound by the terms of a collective agreement made between Napev Construction Limited and the applicant and its affiliated unions, dated the 14th day of March, 1974."

In paragraph 6 of its decision, the Board quoted the full text of the grievance filed by The Toronto Building and Construction Trades Council. Included in the grievance was a claim that Napev and! or Vepan had failed or refused to let or subcontract "masonry work, including labour work related thereto" to "individuals or companies whose employees are members in good standing in the unions affiliated with the Council.. .as required by paragraph 3 of the collective agreement". In paragraph 7 of its decision, the Board stated as follows:

"The Board finds upon the evidence that the respondents are in viola­tion of the collective agreement, as alleged by the applicant in the griev­ance set out above."

8. Subsequent to the release of the Board's decision of October 7, 1975, the Brick­layers, Masons, Independent Union of Canada, Local 1 ("Local 1") wrote to the Board re­questing that it be added as a party to the proceedings and also requesting that the Board re­consider its decision. In a subsequent decision dated March 19, 1976 (reported at [1976] OLRB Rep. Mar. 109), the Board denied Local l's request to be added as a party and made the following comments concerning the proceedings:

"1. In its decision dated October 7, 1975, arising out of an application made under section 1(4) and section 1 12a of The Labour Relations Act, the Board decided to treat the respondents as constituting one employer for the purposes of the Act pursuant to the provisions of section 1(4). The Board further found that the respondents were therefore bound by the terms of a collective agreement dated March 14, 1974 made between the applicant and its affiliated unions, on the one hand, and Napev Construc­tion Limited, on the other hand.

2. The grievance which was referred to the Board under section 1 12a of the Act contained an allegation of a breach of section 3 of the collective agreement at a job site on Kerr Street in Oakville.

3. Section 3 of the collective agreement provides as follows:

'The Company agrees that it will employ only members of the unions affiliated with the Council and will let contracts or sub-contracts only to individuals or companies whose employees are members in good standing in the unions affiliated with the Coun­cil and will do all things necessary to insure that only members of the unions affiliated with the Council are employed in con­struction work in which the Company is engaged.'

4. The grievance was particularized so as to indicate the trade areas in which the breaches were alleged to have occurred. For the purpose of the issue presently before the Board, Item 1(e) of the violation is the only one relevant. That item refers to masonry work, including labour work re­lating thereto. The evidence indicated that the work involved was brick­laying. The applicant claimed this work was being done by persons other than members of Bricklayers, Stone Masons and Tilesetters, Local 2, affiliated with Bricklayers, Masons and Plasterers International Union of America, one of the unions affiliated with the Council.

5. The Board, in its decision of October 7, 1975, found that the respon­dents had breached the collective agreement as alleged by the applicant. The breach occurred as result of the use by the respondents of a sub­contractor who did not employ members of the applicant union as brick­layers on the site."

6. Subsequent to the Board denying Local I status to participate as a party in the pro­ceedings, Local 1 filed an application for judicial review with respect to both of the Board's decisions. The Divisional Court, which dismissed the application, summarized the back­ground of the case in the following terms:

"Napev Construction Company Limited (herafter 'Napev') on the 12th day of June, 1975 entered into a contract as general contractor with Ontario Housing Corporation for the construction of a senior citizens home on Kerr Street in Oakville. Napev had a collective bargaining agreement, dated March 14, 1974 with the Toronto Building and Con­struction Trades Council (hereafter 'the Council'). It was a term of that agreement that Napev would only employ members of unions affiliated with the Council and would subcontract only to companies whose em­ployees are members of unions affiliated with the Council. On June 12, 1975, Napev entered into a subcontract with a company called Vepan Leaseholds Limited (hereafter 'Vepan'), whereby Vepan would supply Napev with labour, tools, equipment and material for the work at the Oakville senior citizens building. Vepan had never had a collective bar­gaining agreement with any union.

On June 12, 1975, Vepan entered into a further subcontract with Prime Construction Limited (hereafter 'Prime'), to perform the masonry work on the senior citizens home. Prime had a collective bargaining agreement dated July 15, 1974 with Local 1. On September 18, 1975, the Council applied to the Ontario Labour Relations Board pursuant to s. 1(4) and s. 112(a) of The Labour Relations Act for a declaration (a) that Napev and Vepan were one employer; (b) that Vepan was therefore bound by the collective bargaining agreement between Napev and Council..

On October 2, 1975, the Board held a hearing at which Vepan and Napev appeared in opposition, no other persons intervening. On October 7, 1975, the Board declared Napev and Vepan one employer for the pur­poses of the Act, and also declared that any subcontract of work by Nepav [sic] or Vepan to tradesmen who were not affiliated with the Council constituted a breach of the agreement. Local 1 was not a union affiliated with Council, and the effect of the Board's decision was to re­quire Vepan to terminate the subcontract with Prime, which it did about October 10, 1975, and the employees who were members of Local 1 left the job site at Oakville. Vepan then entered into a new contract with a different subcontractor for the masonry work. The masonry work at the job was substantially completed by April 22, 1976, and all work on the project, with the exception of certain minor deficiencies was completed by February 25, 1977."

10. The working agreement between The Toronto Building and Construction Trades Council and Napev also came before the Board in a number of subsequent proceedings. The first of these was in File No. 11 12-77-M. which involved the referral of a grievance to the Board by The Toronto Building and Construction Trades Council and its affiliate Labourers' Inter­national Union of North America, Local 506 ("Labourers' Local 506"). Both Napev and the General Contractors Section of the Toronto Construction Association were named as re­spondents to the proceedings. In an unreported decision dated December 28, 1977, the Board concluded that the working agreement signed by Napev on March 14, 1974 created bargaining rights between Napev and Labourers' Local 506, and that by virtue of the provisions of the Act relating to accredited employers' associations Napev was bound by the terms of the collective agreement between Labourers' Local 506 and the General Contractors Section of the Toronto Construction Association. File No. 2097-78-M involved a grievance referred to the Board by Labourers' Local 506 with Napev and the General Contractors Section of the Toronto Con­struction Association being named as respondents. In those proceedings, Napev again alleged that it was not bound to any collective agreement with Labourers' Local 506. In an unreported decision dated April 4, 1979, the Board followed its decision in File No. 11 12-77-M and con­cluded that Labourers' Local 506 held bargaining rights with respect to certain construction labourers employed by Napev. The Board then went on to conclude that due to the provisions of the Act relating to provincial bargaining, Napev was bound to the relevant provincial agree­ment with respect to construction labourers employed in the industrial, commercial and insti­tutional sector of the construction industry.

11. In File No. 2121 -78-M, a grievance against Napev was referred to the Board by The Toronto Building and Construction Trades Council on behalf of three of its affiliates, namely, the Carpenters' District Council of Toronto and Vicinity, International Union of Operating Engineers, Local 793 and Sheet Metal Workers International Association, Local Union No. 30. The Board made all three of these affiliated unions separate parties to the proceedings. In an unreported decision dated April 26, 1979, the Board, after reviewing the terms of the work­ing agreement between Napev and The Toronto Building and Construction Trades Council, as well as the provincial bargaining provisions of the Act, stated as follows:

"10. The Board, on the basis of the foregoing facts find as follows:

(a) Napev, by signing the working agreement with the Council voluntary recognized as bargaining agents for its employees, the District Council, Local 793, and Local 30 and any other trade union which, at the time of the agreement, was affiliated or later became affiliated with it.

(b) As a result of those rights and within the geographic scope of such rights, Napev is bound by operation of section 134(2) of the Act to such provincial agreements as also bind affiliates of the Council which hold those bargaining rights.

(c) Napev's hiring of persons to perform carpentry work falling within the scope of provincial agreement to which Napev and the District Council are bound was, on the evidence, a violation of that agree­ment.

(d) Napev's employment of a person to operate construction equip­ment, the operation of which falls within the scope of the provincial agreement to which Napev and Local 793 are bound, was, on the evidence, a violation of that agreement.

(e) Napev used a sub-contractor to operate construction equipment, the operation of which falls within the scope of the aforesaid provin­cial agreement. The sub-contractor was not in a collective bargain­ing relationship with Local 793 and had not been agreed to by the Local and Napev. On the evidence, the use of that contractor was a violation of that agreement.

(f) Napev's use of a sub-contractor which was not bound by the provin­cial agreement to which Local 30 is bound to lay the roof, was, on the evidence, a violation of that agreement.

11. Having regard to these findings, the Board directs as follows:

(a) that Napev cease and desist from continuing to violate the provin­cial agreement to which it and the District Council, Local 793 and Local 30 are bound;

(b) that Napev abide by the terms of the provincial agreements referred to in Item (a) above, all within the geographic scope of those bargaining rights and as they apply to the industrial, commercial and institutional sector;

(c) that, having regard for all the circumstances of this case, Napev be bound by any other provincial agreements which bind other affi­liates of the Council which have been voluntarily recognized as bar­gaining agents for Napev's employees by virtue of the working agreement with the Toronto Building and Construction Trades Council, all within the geographic scope of those bargaining rights as they apply to the industrial, commercial and institutional sector;

(d) that Napev abide by the terms of the provincial agreements referred to in item (c) of paragraph II and by the terms of any subsequent renewal of the provincial agreements referred to in items (c) and(d) of paragraph 11 until such time as the bargaining rights by which Napev became bound to those agreements are terminated by the Board, and

(e) that Napev meet with the applicants as agreed in the hearing and endeavour to agree on the amount of compensation and damages owing to the applicants in their own right and in the right of their members." [emphasis added]

12. Counsel for Napev referred the Board to an unreported decision of the Board dated January 15, 1980 in File No. 11 79-79-R. This case involved an application for certification by Labourers' International Union of North America, Local 183 ("Labourers' Local 183") to become the bargaining agent for construction labourers employed by Napev on residential construction. Labourers' Local 183 in an affiliate of The Toronto Building and Construction Trades Council. Although the Board generally does not hold hearings into construction in­dustry certification applications, on its own motion the Board listed the matter for hearing for the purpose of determining whether Labourers' Local 183 already held the bargaining rights which it was seeking. Although at the hearing the Board invited the parties to do so, neither Labourers' Local 183 nor Napev addressed argument or evidence on the subject of any out­standing bargaining rights between them. On this basis, the Board concluded that on the evidence before it, it was not prepared to find that the applicant already held bargaining rights for the employees involved and accordingly, the Board proceeded to certify the union.

13. As indicated earlier, the applicant contends that the issue of the effect of the work­ing agreement is now res judicata. The principles of resjudicata are designed to bar the re­litigation of the same issues by the same parties. The Board discussed the principles involved in the following excerpt from the Arnold Markets Limited case, 62 CLLC ¶16,221, pp. 991-992:

"This case again raises the question as to the evidentiary effect of a previous decision of the Board when relied on as proof of matters in issue in another proceeding before it. The common law courts deal with this question under the rules of res judicata or estoppel. These rules, of course, are designed to bar relitigation of adjudicated issues on the basis that as a matter of public policy there should be an end to litigation and that a party should not be twice vexed for the same cause or again re­quired to prove a matter already adjudicated in his favour. The general rule at common law is that an existing final judgment rendered upon the merits by a court of competent jurisdiction is binding upon and conclu­sive evidence for or against the parties and their privies in any subsequent actions involving any matters actually decided and which might have been litigated in respect of those matters in the first action. (See the au­thorities referred to in Wright Assemblies Limited, Board file 9661-61-U and Phipson on Evidence, 9th ed. pp. 427-444). The conclusiveness of the judgment includes not only the findings but also the grounds of the deci­sion where these can be clearly discovered from the judgment itself (see (Phipson ibid p. 427).

It seems obvious that as a general rule, once a fact or question has been put in issue and directly adjudicated upon in a proceeding before the Board, such adjudication should constitute a final determination of the matter between the same parties and conclusive evidence for or against them in any other proceeding before the Board which involves the same question or fact. It is our opinion that the Board ought, as a general rule, to apply a principle analogous to that of resjudicata or estoppel with the result that it must accept an existing decision made by it on the merits as conclusive evidence for or against the parties or their privies in any sub­sequent proceeding brought before it by the same parties and involving the same questions or facts decided by it in the first decision (see Hals­bury's Law's of England, 3rd ed. vol. 15, pp. 212, 213)."

14. Counsel for the applicants contends that the various Board decisions dealing with the status of the working agreement makes the status of that document resjudicata. Counsel for Napev, on the other hand, submits that he should be given an opportunity to lead evidence to establish that the working agreement was not a collective agreement and, further, that it could not serve to create bargaining rights with respect to bricklayers in that on March 14, 1974, when the document was entered into, Napev did not have any bricklayers in its employ. In support of his contention that the Board should not apply the principles of resjudicata, counsel for Napev made the following submissions:

a) When the Board adjudicates a section 1 12a referral, as a threshold matter it must find that a collective agreement is in existence, and since that is a matter which goes to the Board's jurisdiction it cannot be res judicata.

b) Resjudicata cannot apply to a piece of legislation and, accordingly, cannot preclude the Board from inquiring into the existence of a collective agreement.

c) The Board's decision in File No. 1 179-79-R to certify Labourers' Local 183 indicated that the Board did not regard the working agreement as creating bargaining rights for affiliates of The Toronto Building and Construction Trades Council.

d) The Toronto Building and Construction Trades Council does not

come before the Board with "clean hands" in that it never informed the Board of factors which would have led the Board not to rely on the working agreement as the source of bargaining rights.

e) In a proceeding under section 1 12a, the Board acts as an arbitration board and arbitration boards to not apply the doctrine of res judicata.

15. In the instant case, because of the sections of the Act dealing with province-wide bargaining, the issue is not whether there exists a collective agreement between Napev and either of the applicants, but whether Local 2 holds bargaining rights with respect to brick­layers employed by the company. If it does so, then by force of law, Napev is bound by the terms of the bricklayers' provincial agreement. Accordingly, the issue to be determined is whether Local 2 ever acquired such bargaining rights. Although such a finding is a necessary part of determining whether there is any merit to the grievance filed by the applicants, we do not accept the proposition that this necessarily rules out of the application of resjudicata. Further, we are unable to accept the proposition that to do so would mean that the principles of resludicata were being applied to a piece of legislation. Indeed, the cases referred to by Napev's counsel in support of his position on this point support only the proposition that parties cannot by their conduct be estopped from later relying on the express provisions of a statute, a proposition which is not being disputed in these proceedings.

16. We are satisfied that the decision of the Board in File No. 1 179-79-R to certify Labourers' Local 183 is not of any assistance in determining whether the principles of res judicata have any applicability in these proceedings. In that case the parties declined to take any position on the issue of whether Local 183 already held the bargaining rights it was seeking to be certified for, and accordingly, the Board was not called upon to make any ruling concern­ing the effect of the working agreement.

17. As indicated above, counsel for Napev contended that boards of arbitration do not apply the doctrine of resjudicata and that accordingly, this Board should not do so in proceed­ing under section 1 12a. In fact, certain boards of arbitration have applied a principle anal­ogous to resjudicata. See: Re Canadian Union of Public Employees, Local 207, and City of' Sudbury, 1965 CanLII 991 (ON LA), 15 L.A.C. 403 (Reville). Further, even if we were to assume that boards of arbitra­tion have generally declined to do so, nevertheless, we are satisfied that this Board in an appro­priate case should be prepared to apply a principle analogous to resjudicata. Unlike "private" boards of arbitration which are generally "ad hoc" in the sense of being established solely for the purpose of hearing and determining a single grievance, this Board has been constituted by the Legislature as a permanent tribunal. It seems to us only reasonable that the Board should be able to rely on its own previous decisions involving issues which have been litigated between the same parties, and that this should be just as true in proceedings under section 1 12a as in any other proceedings. Experience has taught us that many of the grievances referred to the Board under section 11 2a of the Act involve complex issues of fact and law which take much time to determine. When such issues have been litigated an unsuccessful party should not be permitted to re-litigate them all over again.

18. This then brings us to the issue of whether this is a proper case in which to apply res judicata and foreclose the respondent from contending that Local 2 does, not possess bargain­ing rights with respect to Napev. In a number of earlier proceedings, the Board has held that the terms of the working agreement served to create bargaining rights between Napev and union locals belonging to The Toronto Building and Construction Trades Council. In the very first Napev case in File No. 0945-75-M, the Board concluded that the document served to create such bargaining rights with respect to bricklayers. In other words, Napev is seeking to contest a matter that has already been determined by the Board. In our view, the company should not be permitted to do so, and that a doctrine analogous to resjudicata should be applied to prevent the matter from now being relitigated.

19. In reaching this conclusion we have considered the contention of counsel for Napev that there ae certain facts which, if placed before the Board, might cause the Board to conclude that bargaining rights do not exist with respect to bricklayers. We have also taken into account his claim that The Toronto and District Building Trades Council has not come before the Board with "clean hands" since it did not earlier inform the Board of these alleged facts. The difficulty with these contentions is that if Napev felt these alleged facts to be relevant, it could have sought to lead evidence with respect to them at the time of the initial proceedings in File No. 0945-75-M. Having chosen not to do so, it is not open for the company to seek to have the matter re-litigated on the basis of evidence which it could have advanced before. In this regard we would refer to and adopt the following statements of Wigram, V. C. in Henderson v. Henderson, 67 E.R. 313:

".. .where a given matter becomes the subject of litigation, and of adju­dication by a court of competent jurisdiction, the Court requires the par­ties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of the litigation and which the parties, exercising reasonable diligence, might have brought forward at the time."

20. Having regard to the above, we are of the view that it is not now open for the re­spondent to contend that the working agreement did not create bargaining rights for affiliates of The Toronto Building and Construction Trades Council or that it could not have had this effect with respect to bricklayers.

21. The Registrar is directed to re-list this matter for hearing for the purpose of hearing the evidence and the representations of the parties with respect to all outstanding matters rel­evant to the grievance referred to the Board.