United Brotherhood of Carpenters and Joiners of America Local 1316 v. Losereit Sales and Services Ltd., 1983 CanLII 830

Ontario Labour Relations Board

[1983] OLRB Rep. July 1090

0340-83-M United Brotherhood of Carpenters and Joiners of America Local 1316, Applicant, v. Losereit Sales and Services Ltd., Respondent

BEFORE: Corinne F. Murray, Vice-Chairman, and Board Members I. M. Stamp and H. Kobryn.

APPEARANCES: David McKee and Richard Harkness for the applicant; Martin Addarrio and H. Losereit for the respondent.

DECISION OF THE BOARD; July 20, 1983

1. This is a referral of a grievance to arbitration under section 124 of the Labour Relations Act. Form 104 filed by the applicant in this matter indicates at paragraph 5 that the matter referred to be arbitrated is in Appendix "A". Appendix "A" is a Grievance Form dated May 11, 1983, signed by R. Harkness. The Form, as checked off or filled in, discloses the following:

(i) that it is a policy grievance;

(ii) that the date of grievance or circumstances giving rise to its occurrence was April 10, 1983;

(iii) that the date of actual knowledge by the applicant was April 10, 1983;

(iv) that the nature of the grievance is: "The employer is a drywall contractor working on Grey Owen Lodge, Markdale, Ontario. The employer has employed individuals on this site, none of whom is a member of Carpenter's Local 1316 and none of whom have obtained referral slips from the Local Union.

(v) that the portion of the provincial collective agreement between the Carpenters Employer Bargaining Agency (E.B.A.) and The Ontario Provincial Council, United Brotherhood of Carpenters and Joiners of America (O.P.C.) effective from June 21, 1982 to April 30, 1984 alleged to have been violated was Article 5 of the Acoustic and Drywall Appendix;

(vi) that the remedy sought was damages.

Also attached to Form 104 is a letter dated May 10,1983 from counsel for the applicant wherein the respondent was advised regarding the filing of the grievance (Appendix "A") and the applicant offered to supply its men to the respondent at wage rates and travel allowances paid to carpenters from Local 785 which are lower than those of Local 1316, who were then working on the project contrary to Article 5. The cause of this offer was the applicant's interpretation of a previous decision by a differently constituted panel of the Board involving the applicant and the respondent where the Board found that the applicant was estopped from enforcing Article 5 of the Acoustic and Drywall Appendix of the provincial collective agreement. That panel found the applicant was estopped from making such a claim in connection with any projects the respondent bid prior to notice (by way of the filing of the grievance on February 10, 1983) that a local area practice whereby Local 785 did work in part of Local 1316's geographical jurisdiction would no longer be tolerated by the applicant.

2. The respondent raised a preliminary objection to this panel's consideration of the grievance dated May 11, 1983 (hereinafter referred to as the "second grievance") because the matters raised by it were already dealt with by the Board in its determination of the February 10, 1983 grievance (hereinafter referred to as the "first grievance"). The respondent argued that the latter decision makes the matter res judicata or raises "issue estoppel". The respondent also argued, among other reasons which will be more fully set out below, that we should not entertain the second grievance because of section 146 of the Labour Relations Act.

3. The applicant denied that there is an identity between the two grievances sufficient to create res judicata or issue estoppel because the second grievance raises different facts from the first. The difference arises from "the removal of the detrimental aspect which the respondent would have suffered" if it was forced to employ Local 1316's members on already bid jobs (the bidding having been based on the anticipated payment of carpenters from Local 785 who command a lower rate). The panel constituted to deal with the first grievance had found detrimental reliance to have been present because of the difference in wage rates, room and board and travel allowances and the impact of this on jobs already bid.

4. The applicant and the respondent agreed to the following facts and indicated that these were the only ones necessary to consider the preliminary point they wish to argue. It was agreed at the hearing that prior to our dealing with the merits of the grievance, we would decide the issue of whether the principles of res judicata or issue estoppel were applicable to the grievance or whether there was any other reason why the merits should not be heard. It was agreed that:

(1) The Grey Owen Lodge project was bid by the respondent on or before December 16, 1982.

(2) The bid was accepted prior to February 10, 1983 (the date of the first grievance). It was impossible to change the bid. All relevant things necessary to complete the bid took place prior to the first grievance.

3. The letter of Mr. McKee dated May 10, 1983, was received by Mr. Addario on that date. The respondent confirmed in its Reply that it would not hire members of Local 1316. Work by Local 785 members began on May 13, 1983.

(4) The value of the respondent's portion of the Grey Owen Lodge project is $44,890.00.

(5) The second grievance was not delivered to Mr. Addario until May 16th, when the referral (Form 104) was delivered; the respondent received both on May 24th.

(6) Since that date, there has been no request for carpenters from Local 1316, although the work has continued.

(7) The decision with respect to the first grievance was rendered on March 31, 1983.

(8) A request for reconsideration was made by the applicant on May 2, 1983; no ground was raised with respect to bid but subsequently manned jobs.

(9) The reconsideration request was rejected on May 11th and the original decision of March 31, 1983 was confirmed.

l0) We remain seized regarding the assessment of damages.

5. In order to comprehend the applicant's position it is necessary to set out in full paragraphs 12 and 13 of the reasons for the March 31, 1983 decision:

6. Having regard to all the evidence and the submissions of the parties, we are satisfied that all of the elements of estoppel are present in the instant case. It is reasonable to infer in the circumstances that Local 785 and, through it, the Council, of which it is an affiliate, were aware that the respondent has used only members of Local 785 on projects in the five counties, and has not used any members of Local 1316 as required by the provisions of Article 5. It is also apparent that the Council and its affiliates have acquiesced in the respondent's practice and, by not complaining, grieving, or objecting to that longstanding practice in any way, have led the respondent to believe that its practice is acceptable to the Council and its affiliates, including Locals 785 and 1316. Relying upon that acquiescence, the respondent has in good faith bid on and obtained work at a number of projects on the basis of the Local 785 wage, travel and board payments set forth in the Appendix. The detriment which the respondent would suffer if the grievance were to succeed is quite clear; it would not only be required to pay its "key men" (and any other workers from Local 785 whom it was entitled by Article 5 to use on the projects) the difference between the wages and related payments specified in the Appendix for Local 785 and Local 1316, but would also have to pay to Local 1316 compensation equivalent to the wages and related payments that the members of Local 1316 would have received if they had been employed on the project. Under the circumstances, it would be quite unfair and inequitable to permit the Council or the applicant, which is an affiliate of the Council, to assert rights under Article S in respect of the Owen Sound project, or in respect of any other projects in the jive counties on which the respondent bid prior to being notified of this grievance. As a matter of labour relations policy, it is neither desirable nor permissible for one affiliate, such as Local 785, which is the "union" with which an employer maintains an ongoing, day-to-day working relationship, to knowingly accept the benefit of having its members employed on a substantial number of projects outside its geographical area in violation of the Appendix, without being taken to have in any way impaired the ability of another affiliate, bound by the same Appendix and linked through the Council, to seek the strict enforcement of its rights under that Appendix, which forms part of the Provincial Agreement, negotiated by the Council (as part of the E.B.A.) on behalf of its affiliates. At some point in time, which in the circumstances of the present case was reached considerably in advance of the fifth year in which a provision such as Article S has been in force, the knowledge of an affiliate (such as Local 785) concerning an employer's practice which is inconsistent with such provision, can reasonably and properly be imputed to the Council, and through it, to the other pertinent affiliate, such that neither the Council nor the other affiliate can begin to saw off the limb onto which the employer has been permitted to go, without duly notifying the employer of their intention to revert to their strict rights under the Appendix. However by filing the present grievance, the appli­cant, on behalf of itself and the Council, gave the respondent such notice in respect of the application of Articles to projects in the five counties, and thereby brought the estoppel to an end in respect of any projects thereafter bid upon in that area by the respondent.

7. In view of our disposition of this matter, it is unnecessary to determine whether, as contended by the respondent, the applicant is also estopped from succeeding with this grievance by virtue of its (alleged) failure to take adequate steps to "police" the acoustic and drywall work performed by the respondent within its geographical area.

(emphasis added)

SUBMISSIONS

6. The respondent argued, firstly, that the decision of March 31st completely covers the precise issue before us. Both grievances deal with the applicant's rights under Article 5, namely, the requirement that the respondent take at least one man (of a two-man work force) from Local 1316. That right was asserted in the first grievance and is reasserted in the second. Article 5 is the location of that right and this Article was the basis for the first grievance. The decision of March 31, 1983, reveals the extent to which the applicant is estopped from asserting its rights under Article 5. The extent is to any other projects bid prior to February 10, 1983, the date of the original grievance. Therefore, since the project now in dispute was clearly bid before that date, it is covered in the original decision. The second argument which the respondent advanced was that the applicant should and could have in its request for a reconsideration, which request was made on May 2nd,dealt with the Grey Owen Lodge project. On the face of the second grievance, the applicant claims knowledge of this project as of April 10, 1983, which is prior to its application for reconsideration. Even if that is incorrect, it still could have anticipated the situation of a project having been bid but where the hiring of employees was yet to be accomplished and therefore the detrimental reliance being removable by Local 1316 for those hirings. Having not raised this matter in the proper forum, i.e. before the first panel, the applicant ought not to be able to raise it as if it were a fresh issue. The respondent cited two decisions of the Board which establish that the Board has utilized the doctrine of res judicata or issue estoppel (even when sitting as an arbitration board under section 124 of the Act). The first decision cited was Napev Construction Limited, [19801 OLRB Rep. June 862, where the Board stated the following general propositions:

7. As indicated above, counsel for Napev contended that boards of arbitration do not apply the doctrine of res judicata and that accordingly, this Board should not do so in proceeding under section 112a [now section 124[. In fact, certain boards of arbitration have applied a principle analogous to res judicata. 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 res judicata. 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 decision involving issues which have been litigated between the same parties, and that this should be just as true in proceedings under section 112a as in any other proceedings. Experience has taught us that many of the grievances referred to the Board under section 112a 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.

The Board in that decision concluded that since the parties were the same and the same issues had been argued and decided in previous proceedings under section 124 (formerly section 112a), the respondent ought not to be able to re-litigate a particular defence made in the previous proceedings and rejected therein. In paragraph 19, the Board dealt with a contention by counsel for the respondent that there were facts additional to those heard by other panels of the Board in the previous decisions which could cause a subsequent panel to come to a different conclusion in the following way:

19. In reaching this conclusion we have considered the contention of counsel for Napev that there are 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 a 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."

Counsel for the respondent argues on the basis of this case that not only was the whole issue decided between the same parties in the preceding grievance application, but also the factual situation the applicant now presents could have been brought forward as part of the original case or, at the very least, as a part of the reconsideration application. The Oak wood Park Lodge decision, [1980] OLRB Rep. Oct. 1501, was cited to show the kind of factual difference which would cause the Board to re-litigate an issue that had apparently been decided. In that case the issue of whether RNs were managerial or not had been decided in the context of a certification application by a different bargaining agent at a period of time where there could be significantly different terms and conditions of employment. One of the changes which had taken place since that time was in the number of such personnel. In discussing the general powers the Board possesses which would allow it to apply the doctrine of res judicata, the respondent relied on the statement of the Board in Oak wood Park Lodge that it could apply this doctrine in a proper case, even though the Act did not expressly authorize it, because there were strong practical and policy grounds for doing so. The third argument advanced by the respondent was that the applicant should not be allowed to make a special "deal" regarding this project which flies in the face of the provisions of the collective agreement. The special deal was the waiver of the requirement that the wage schedules for Local 1316's members be honoured. The, respondent submitted that there was no basis in law for this arrangement and, in fact, sections 146(1) and (2) expressly prohibit "any other arrangements" which are contrary to the provincial collective agreement. Therefore the factual foundation for the applicant's case is essentially null and void. There is no lawful way the respondent could enter into this "deal". These proceedings should not be used as a means for rendering lawful what is essentially unlawful. The previous panel of the Board could have described the estoppel to have only prevailed if Local 1316 insisted on its proper wage rate. The Board would not have done that because this would amount to sanctioning or ordering a contravention of sections 146(1) and (2). This panel is in no sounder or a better legal position to make the order requested. The fourth argument made by the respondent was that the May 10, 1983 letter from counsel for the applicant constituted an offer of settlement which was inadmissible before us.

7. The applicant argued that the issue before us was not whether or not there was a binding decision but, rather, the issue was the manner in which it bound the parties. He submitted that if this grievance had simply alleged a violation of the collective agreement and requested the hiring of Local 1316's members with all the required wages, then he would agree that the issue had been dealt with by the previous panel, although, even in this form, it was not a grievance which the previous panel was seized with in any event because there are different issues involved. The difference between the two grievances exists on two levels:

(1) The second grievance is in connection with a different project from the first grievance, so that in the narrow sense of the doctrine of res judicata, the fact situation and the issues created thereby have not already been dealt with.

(2) The second grievance followed an offer by Local 1316 "not to enforce those parts of the collective agreement which the previous panel found the employer could not reasonably believe would have been enforced because of the existing local area practice".

When counsel was asked what "those parts of the collective agreement" were, counsel indicated that it was primarily the wage rate and travel allowances, neither of which was claimed in this grievance and the latter of which was not claimed in a previous grievance. The applicant claims the offer which the applicant made was in keeping with "the ratio" of the Board's decision of March 31, 1983. Counsel for the applicant described the first grievance before the Board as a "simple damages claim" whereas the second grievance could be described as simply to do with the hiring of men. The demand made in the second grievance was not that Local 1316's members be hired and the collective agreement be enforced, but, rather, it was a demand for the hiring of Local 1316's members without those clauses of the collective agreement detrimental to the employer being enforced as well. The applicant argued that this offer preceding the grievance was a "compliance" with the Board's finding that the applicant was estopped, i.e., it would be inequitable or unjust to allow the applicant to enforce provisions upon which the respondent, in its bidding, had believed would not be enforced. What the offer does is eliminate the difference in wage rate that the members of Local 1316 should otherwise have been entitled to so that the respondent would be paying no more than it anticipated in making its bid. The position of the applicant is that if the detriment has been removed, then the estoppel "disappeared" as of May 10, 1983, insofar as this bid job was concerned. The act of filing a grievance and/or making the offer effective brings the estoppel found by the previous panel to an end. The applicant cited a number of authorities to us which set out the doctrine of res judicata and how it should be applied generally and in particular to arbitration proceedings. In Re Algoma Steel Corporation Limited and United Steelworkers Local 2251, (1982) 1982 CanLII 5039 (ON LA), 6 L.A.C. (3d) 346, the arbitration board refused to hear a grievance which it found involved an issue that had already been decided between the same parties in other proceedings. The applicant distinguished this case on the basis that the similarities that existed between those grievances do not exist between the two grievances filed by the applicant. This case showed the application of the doctrine in the narrow sense" where the same grievance was found relating to the same employees in the same period of time in the same location. The applicant contrasted the facts in that case with those before us because the grievance at hand deals with a different project and not one already decided upon by the Board. The applicant readily conceded that the effect of the decision of March 31. 1983 was to estop them from enforcing the entirety of Article 5 but it did not estop it from enforcing that part relating to the hiring. The applicant described the question before us as being: "Is the applicant estopped from enforcing those parts of the collective agreement which the respondent could reasonably have expected the applicant to enforce"? It was clear from the previous decision that the respondent could not have reasonably expected Local 1316 to enforce the wage rates and the travel allowances. But that did not necessarily lead to the conclusion that it could not necessarily expect that the applicant would not enforce its right to have its people on the job. If Local 1316's members are not on the job, then Article 5 would be breached with respect to one of the two carpenters employed. The applicant's response to the argument that it should have raised this matter by way of its reconsideration request was that it was not a matter that could legitimately be raised by reconsideration. The applicant believed it was too late to make a similar kind of offer in connection with the project at issue in the previous grievance. That grievance had been an 'ball or nothing" proposition. The temporal extent of the estoppel identified in paragraph 12 of the decision was not an order of the Board, i.e., that Local 1316 is ordered not to grieve any job bid prior to February 10, 1983. All that the Board did was to describe the extent of the estoppel found. The issue now before this panel was not one with which the previous panel was seized and. therefore, a reconsideration request, based in whole or in part on this offer of employing Local 1316's members at a lower rate in connection with the Owen Sound project, could not have been made. The panel asked the applicant whether it was not abnormal for one Local to work at the rates of another Local whose members are paid at a lower rate. The applicant acknowledged that it was abnormal. The panel also asked whether, in the normal case, when estoppel is brought to an end, there is a reversion to the strict rights of the collective agreement and that it is unusual to remove estoppel without the complete reversion to the rights of the collective agreement. The applicant agreed that what was done here was an unusual way to bring estoppel to an end. The applicant justified this approach by indicating that the offer was an attempt to fulfill the employer's expectations, while at the same time salvaging the right of Local 1316 to have its members at work in projects within its geographic boundaries. The applicant distinguished the Napev case from the fact situation before us because in Napev res judicata in the narrow sense was properly applied. The applicant also distinguished the Oak wood Pam-k Lodge decision on the same basis. The applicant cited a Supreme Court of Canada decision, A mingle v. Minister of National Revenue, (1974) 1974 CanLII 168 (SCC), 47 D.L.R. (3d) 544. which, although a taxation case, sets out the principles of res judicata applicable beyond the special subject matter considered. That decision stands for the proposition that issue estoppel only arises where the determination on which it is sought to establish the estoppel is 50 fundamental to the decision made that the latter cannot stand without the former. The applicant argues that the previous decision did not deal with bid projects which were yet to be manned, and even if it did, it was not fundamental to the previous decision. In response to the respondent's third argument that the result of the grievance before us is an attempt, through these proceedings, to make an arrangement contrary to the provincial collective agreement, the applicant says that there is no such attempt being made. Correctly perceived, it is an attempt "to live by" the Board's previous decision by removing reliance on all portions of the collective agreement which would be unfair or inequitable for the applicant to rely on. This grievance enforces Article 5, exclusive of wages and travel allowances. In any event, the Board under section 91 of the Act has jurisdiction to amend a provincial collective agreement and, therefore, if this grievance entailed an amendment, the Board would have jurisdiction to do so, notwithstanding section 146. Finally, the applicant argued that the letter of May 10, 1983 is a with prejudice offer which would be admissible before us.

8. In reply, the respondent indicated that the applicant's focus on its enforcement of a part of Article 5 was not the correct description of the issue before us. The wage rates and travel allowance which the applicant has waived are not a part of Article 5. They are set out in Article 6 and one does not get to Article 6 until one has established under Article 5 that the Local is entitled to have its members there in the first place. The previous Board has found it would be unfair and unjust to let Local 1316 assert its rights to such employment on behalf of its members under Article S and the applicant ought not to be allowed to re-assert its rights under Article 5 which have already been decided. On the issue of reconsideration, the respondent disputed the applicant's assertion that it would have no grounds for reconsideration before the other panel. The respondent contended that the applicant could have alleged not only that there were no grounds for the Board's original conclusion (which it did), but it also could have expressed surprise at the reference to other projects bid and argued that there was no jurisdiction in the Board to deal with other projects because such projects were not a part of the grievance or, alternatively, that since the decision only dealt with detriment insofar as wages are concerned, the applicant would be still entitled to require employment of its members pursuant to Article 5 on such other projects which, as of the day of decision, were unmanned.

9. The grievance dealt with by the Board in its March 31, 1983 decision was a policy grievance, although pertaining to or arising out of circumstances in a particular project, i.e., the Article alleged to have been violated was Article 5 of the Acoustic and Drywall Appendix and the remedy sought was damages. Article 5 of the Acoustic & Drywall Appendix provides:

ARTICLE 5 - UNION SECURITY

(Special Provision)

(This Special Provision shall replace Article S in the master portion of the Agreement.)

(a) (i) The employer agrees to only employ members in good standing of the United Brotherhood of Carpenters and Joiners of America to perform all work, within Article 19 of this appendix.

(ii) If an employer is a partnership or corporation. not more than one member of the firm shall work with the tools.

(h) All employees covered by this Appendix shall be hired through the offices of the affiliated Local Unions~. However, it is agreed that the employer may recall former employees who have worked for the employer within the last six months prior to recall through the affiliated Local Union office, provided the employee is unemployed and registered at the affiliated Local Union office on the date of recall. All employees before commencing work, must obtain a Referral Slip, from the affiliated Local Union or District Council.

(c) Notwithstanding the provisions of Section (b) the employer may transfer the first two key men from one geographical area to a project located in the geographical area of another affiliated Local Union. The next two (2) employees shall be hired from the affiliated Local Union and thereafter one employee from outside the geographical area and one from the affiliated Local Union area, to a maximum of a twelve man crew. An employee who is transferred from one area to another shall be paid the rate of wages in the area from which he was transferred or the rate in the area to which he was transferred whichever rate is the greater. This twelve man crew is defined as six men from outside the geographical area and six men from the affiliated Local Union's area. If the affiliated Local Union in the other area cannot supply sufficient competent workmen, additional employ­ees may be transferred as agreed upon between the employer and the affiliated Local Union in the other area.

It is understood that, if the Local Union or District Council is unable to provide the required competent workmen within two (2) working days, the employer is free to hire such manpower as is available, but such manpower shall, as a condition of employment before commencing work, apply to the affiliated Local Union having jurisdiction for the job or project where said manpower is working, and shall comply with all the applicable union regulations for membership therein.

(d) Where a project is located in a jurisdictional area other than that where the main business office of the employer is located, and where the project shall only require two men to complete, the employer must hire at least one of the men from the other affiliated Local Union. Prior to commencing a project the employer shall notify the affiliated Local Union or the District Council as to whether the project shall require two or more than two men to complete.

(e) Where a project is located in the area which has no affiliated Local Union, the employer may transfer any number of employees, who are members of the United Brotherhood of Carpenters and Joiners of America, to the project.

(f) All employees from other jurisdictions shall report to the affiliated Local Union office in which the job is located before proceeding to work.

(g) The employer shall lay off in reverse order of hiring as stipulated in Article 5 subsection (c).

(h) No person shall be refused employment or Union membership because of his/her sex, race, colour, creed, age or national origin.

Article 6 of the Appendix states:

ARTICLE 6 - WAGES AND METHOD OF PAYMENT

(a) The following wage rate schedules are inserted as part of the Agreement. Where, in any geographic area, no schedule appears in this Appendix, the schedule for Carpenter in the master portion of the Agreement shall apply.

Subsections (1) and (2) of section 146 of the Act provides:

146.-(l) An employee bargaining agency and an employer bargaining agency shall make only one provincial agreement for each provincial unit that it represents.

(2) On and after the 30th day of April, 1978 and subject to sections 139 and 145, no person, employee, trade union, council of trade unions, affiliated bargaining agent, employee bargaining agency, employer, employers' organization, group of employers' organizations or employer bargaining agency shall bargain for, attempt to bargain for, or conclude any collective agreement or other arrangement affecting employees represented by affiliated bargaining agents other than a provincial agreement as contemplated by subsection (1), and any collective agreement or other arrangement that does not comply with subsection (1) is null and void.

Subsection (1) of section 91 of the Labour Relations Act provides:

The Board may inquire into a complaint that a trade union or council of trade unions, or an officer, official or agent of a trade union or council of trade unions, was or is requiring an employer or an employers organization to assign particular work to persons in a particular trade union or in a particular trade, craft or class rather than to persons in another trade union or in another trade, craft or class, or that an employer was or is assigning work to persons in a particular trade union rather than to persons in another trade union, and it shall direct what action, if any, the employer, the employers organization, the trade union or the council of trade unions or any officer, official or agent of any of them or any person shall do or refrain from doing with respect to the assignment of work.

(emphasis added)

DECISION

10. A comparison of the grievance forming the foundation of the first panel's decision and the grievance which initiated these proceedings reveals that, except for the projects named, they are the same, even to the description of the claim and relief sought. If the letter of May 10th from counsel for the applicant is examined as containing a fuller description, the essence of the claim remains the same, i.e., that Local 1316's members be employed. Only the damages of full wages at Local 1316's rates is abandoned. Logically, a claim for travel allowance where no travelling by Local 1316's members has occurred would not be made in any event. Both grievances are described as policy grievances, though each were relating to a specific (different) project. The issue before the previous panel was whether Local 1316 should be able to enforce its right, established under the collective agreement by Article 5, to insist that the respondent employ Local 1316's members to work on the project named. The issue before this panel is whether Local 1316 should be able to enforce its right, established under the collective agreement by Article 5, to insist that the respondent employ Local 1316's members working on another project.

11. The previous panel answered the question put to it in the negative, finding that it would be inequitable to allow Local 1316 to enforce its acknowledged right under Article 5 of the collective agreement against the respondent in the circumstances; that panel based its decision on the doctrine of estoppel. It found that the applicant ought not to be able to seek to enforce its rights under Article 5 because the respondent had detrimentally relied on a local area practice, acquiesced by Local 1316, which permitted the use of lower paid Local 785 members (a practice, strictly speaking, contrary to Article 5). The detrimental reliance proved was the expectation of the respondent in bidding for projects that the lower rates and different or no travel allowances would be payable.

12. The question is whether Local 1316 ought to be able to reassert its rights under Article 5 to the employment of its people on another project which. though already bid in the expectation that Local 785's prices would be paid, the applicant has made identical in cost to that anticipated by the respondent in its bid.

13. We have determined that this grievance involves the very issue already presented to the previous panel. As the applicant's counsel correctly sets out in his able argument, there are two levels on which res judicata or issue estoppel operate. One of the cases he cited to us contains the most authoritative and complete description of the two levels (termed species in that judgement. In Angle v. Minister of National Revenue, supra. Mr. Justice Dickson, speaking for the majority, said at page 555:

In earlier times res judicata in its operation as estoppel was referred to as estoppel by record, that is to say, estoppel by the written record of a Court of record, but now the generic term more frequently found is estoppel per rem judicatam. This form of estoppel, as Diplock, L.J., said in Thoday v. Thodlay, [1964] p. 181 at p. 198, has two species. The first. "cause of action estoppel", precludes a person from bringing an action against another when that same cause of action has been determined in earlier proceedings by a Court of competent jurisdic­tion. . . - The second species of estoppel per rem judicatam is known as “issue estoppel", a phrase coined by Higgins, J.. of the High Court of Australia in Hovsted et al. v. federal Commissioner of Taxation (1921), 1925 CanLII 607 (UK JCPC), 29 C.L.R. 537 at pp. 560-561:

I fully recognize the distinction between the doctrine of res judicata where another action is brought for the same cause of action as has been the subject of previous adjudication. and the doctrine of estoppel where, the cause of action being different, some point or issue of fact has already been decided (I may call it issue estoppel").

Lord Guest in Carl Zeiss Stiftung v. Raymmer & Keeler Ltd. (No. 2), [19671 1 A.C. 853 at p.935, defined the requirements of issue estoppel as:

. . . .(1) that the same question has been decided; (2) that the judicial decision which is said to create the estoppel was final; and, (3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies.

The contrast made between these two species of estoppel is reflective of the more rigid categorization of proceedings before the Courts. However, the distinction is applicable to the arbitral jurisprudence because distinctions still can and should be made between the general nature of a grievance and issues determined within it. The rationale behind both species is to ensure that repetitious litigation is avoided. This rationale is as applicable in the context of our proceedings as in those of the Courts. We are here concerned with something comparable to "cause of action" estoppel because the type of project in connection with which the grievance is lodged and the core of the claim made in connection with it are identical to the ones already litigated, i.e., both are projects bid prior to February 10, 1983, and both require the employment of members of Local 1316. The difference is that the applicant in the grievance before us waives its right to the payment of its members at their normal rates. We think that this was a matter that could have been raised in the context of the original grievance when it became apparent to the applicant that such a waiver could allow that panel to describe the limits of the estoppel in different terms. The requirement to hire and what rates must be paid are normally interrelated, indivisible rights. If the applicant seeks to have them divided for jobs bid prior to February 10, 1983, it is incumbent upon it to raise this in the context best suited to the full consideration of the proposed division. While this may not have been possible in the initial proceedings, it was a recourse available to the applicant via reconsideration. The previous panel was dealing with a policy grievance. This meant that, strictly speaking, the issues to be resolved were intended to apply beyond the particular case and deal with all like cases. The Board's power of reconsideration is a plenary power (see The Journal Publishing of Ottawa Ltd., [1979] OLRB Rep. Sept. 549) and could encompass this type of special unforeseen circumstance. The argument raised in the grievance before us could have been made either to avoid the estoppel being described in the terms it was or to argue for its alteration. It is noteworthy that as of the date of application for reconsideration, May 2, 1983, the applicant was possessed of the knowledge that there were bid, but as yet unmanned, jobs within the relevant area. The applicant should not, through a second grievance, put forward an argument which could reasonably have been litigated in the first instance (see Henderson K Henderson quoted in Napev, supra). It would submit the respondent to a repetitious piece of litigation because the whole of the evidence from both the applicant and the respondent relating to estoppel could have been presented in the proceedings to do with the first grievance. This is the very repetition which the doctrine of res judicata is meant to avoid.

14. Even if the fact situation before us had been raised as a part of the first grievance, we are concerned that in describing the estoppel to be limited to bid but unmanned jobs and allowing Local 1316 to waive its rights to the rates set in the collective agreement for those jobs. the Board would be ordering the respondent to enter into an arrangement with Local 1316 which is contrary to the letter and spirit of sections 146411 and (2) of the Act. While under section 124 we are sitting as an arbitration board interpreting the provincial collective agreement, we continue to be guardians of the integrity of that collective agreement and the legislation which supports it. The applicant candidly conceded that normally a Local, whose members commanded higher rates pursuant to schedules established under Article 6, could not agree to work for the lower rates of a sister Local. This is normally not done because such a "price war' within the ranks of the affiliated bargaining agents would decimate the carefully-constructed orderliness of the provincial collective agreement. It is clear that affiliated bargaining agents are subject to section 146 as much as other bargaining agents or other entities. For work within the ICI sector, the provincial agreement is the only agreement (see Manacon Construction Limited, (unreported). Board File No. 0165-82-R, dated March 17, 1983, at paragraphs 37 and 38). The refusal by the previous panel to allow the applicant to enforce its legal rights as set out in the collective agreement is a limited exception to the principle established in sections 146(1) and (2) that only one set of contractual terms, i.e., as set out in the provincial agreement, prevails. This limited exception is permissible because Local 1316 itself was found to have tolerated the circumstance for a significant period of time and the enforcement of the letter of the collective agreement would be unfair to the respondent who has relied on the status quo. The effect of estoppel does come to an end and the collective agreement is eventually restored. What this second grievance attempts to do is have this Board itself create or assist in the creation of a new arrangement which is contrary to the spirit and letter of the collective agreement. It is one thing for the previous panel to refuse, for equitable reasons, to let the applicant revert to the strict letter of the provincial collective agreement after a long-standing Local practice has lulled the respondent into believing it was permissible for Local 785 to do the work, and quite another for this panel to order the respondent to enter a fresh arrangement created by Local 1316 which, to our mind, would contravene the letter and spirit of sections 146(1) and (2).

15. Finally, we do not consider that our powers under section 91 allow us to amend collective agreements, except in connection with jurisdictional disputes (see, for example, Harold R. Stark, [1982] OLRB Rep. Feb. 222, application for judicial review dismissed June 8, 1983).

16. For all these reasons we consider that this grievance ought not to be arbitrated by us.