[1985] OLRB Rep. December 1776
1962-85-M Local 50 International Union of Elevator Constructors, Applicant, v. Montgomery Elevator Co. Limited, Respondent
BEFORE: Robert J. Herman, Vice-Chairman, and Board Members J. W Murray and T. H. Meagher.
APPEARANCES: Ernest Shaw, Reginald V. Spires for the applicant; C. C. White, R. Stinson, J. Aird and B. Taylor for the respondent.
DECISION OF THE BOARD; December 18, 1985
This is the referral of a grievance to the Board pursuant to the provisions of section 124 of the Labour Relations Act.
For reasons given below, this grievance is hereby dismissed.
The grievance in question reads:
it has come to the attention of Local 50 that one of your employees Mr. R. Spires has been assigned to the 80% wage classification, [sic] Local 50 contends that this action is contrary to and in violation of Article 10.15 of the Ontario Provincial Agreement and advised you that if Mr. Spires is not reinstated to the 100% wage classification and reimbursed for all wages and benefits lost due to this action, then this letter to you becomes a formal grievance."
- The parties provided the Board with a copy of the collective agreement effective from June 9, 1982 to April 30, 1984. The parties further agreed that the wording of Article 10. 15 contained therein was identical in all respects to the wording of Article 10.15 in the current collective agreement. That article reads as follows:
In the event that lack of work requires a reduction in the number of employees in the employ of an employer, employees shall be laid-off in the following order:
(a) Probationary Helpers I, without regard to seniority. (First block to be laid off.)
(b) Probationary Helpers II, without regard to seniority. (Second block to be laid off.)
(c) Helper I, without regard to seniority. (Third block to be laid off.)
(d) Helper II, without regard to seniority. (Fourth block to be laid off.)
(e) Improver Helpers without regard to seniority. (Fifth block to be laid off.)
(f) Mechanics in seniority, provided the Employers remaining Mechanics have the necessary skill and ability to do the work that remains.
Any Mechanic in the Employer's workforce, affected by a lack of work, may accept assignment to Improver Helper, or take a lay-off Assignments of this nature shall not be used as a disciplinary measure and will only be made as a result of a reduction in the Employer's workforce.
Such assignments shall not be prejudicial to the Mechanic and will not affect his classification of Mechanic for lay-off purposes
There shall be no industry-wide bumping except that Mechanics may bump Temporary Mechanics and Probationary Helpers on an industry-wide basis. Helpers may bump Probationary Helpers on an industry-wide basis.
Notwithstanding the foregoing provisions of 10.15, an employee has no seniority rights with an Employer for a period of six (6) months after commencing work with that Employer. After the six (6) month period, full seniority rights will be credited with the new Employer. In the event of a reduction in the workforce with that Employer during the six (6) month period this employee will be the first to be laid-off with the exception of Probationary Helpers."
Before commencing a consideration of the merits of this grievance, the respondent raised a preliminary matter. Counsel for the respondent asked that the Board dismiss the grievance in that two prior decisions of the Board had dealt with precisely the same issue and the interpretation of the identical clause of the same collective agreement and had already definitively interpreted the article in question. In proceedings 0603-83-M and 0604-83-M the Board, differently constituted, had had to consider the applicability of Article 10.15 to a change in classification of an employee rather than to a lay-off situation. In both those proceedings, the Board had held that Article 10.15 was inapplicable to classification or reclassifications issues, but dealt only with situations of lay-off from employment.
Counsel for the respondent asked that the Board dismiss the grievance on three alternative grounds. First, the applicant was asking that the Board reconsider its prior decisions referred to above and this was not a proper matter for reconsideration. The applicant conceded that they were not seeking reconsideration of any prior decision and accordingly no further submissions on this point were necessary.
Second, counsel for the respondent argued that this matter was res judicata in that the two prior decisions had interpreted the identical Article of the collective agreement and that essentially the same parties had been involved in those prior proceedings. In 0603-83-M the applicant had been the International Union of Elevator Constructors and the respondents were the National Elevator and Escalator Association and Montgomery Elevator Company Limited, the respondent before the Board in this grievance. Due to the peculiar nature of the construction industry provisions dealing with province-wide bargaining and province-wide collective agreements, counsel pointed out that the collective agreement in question was the provincial collective agreement which had been applicable to all parties in the earlier proceeding. The only distinguishing feature was that the applicant was the International Union rather than a Local of that union as is the case before the Board in this grievance. In counsel's submission this was not a significant difference for purposes of res judicata, in that the province-wide scheme of bargaining made both the International Union and the Local parties to the very same collective agreement and there was therefore privity between those parties. Counsel did concede that the grievor in each case was different but suggested that this was not a meaningful distinction for purposes of applying the doctrine of res judicata. Where the same grievance between the same parties is filed with respect to the same Article of the collective agreement, the Board ought to follow those prior decisions and rule inarbitrable and subsequent grievance unless in the Board's opinion those prior decisions are clearly wrong. Counsel referred in this regard to an excerpt from Canadian Labour Arbitration, Brown and Beatty, at page 15 and the following cases: Re United Steelworkers, Local 1005 and Steel Co. of Canada Ltd., (1963) 4 L.A.C. 74; James Stewart Mfg. Co. Ltd. (1958) 8 L.A.C. 346; Seneca College (November 11, 1977, unreported) (Howard D. Brown, Chairman); and Seneca College (June 1980, unreported) (Howard D. Brown, Chairman).
In the final alternative, counsel for the respondent asked that the matter be dismissed in that a pri,na facie case had not been established and that the grievance was therefore not arbitrable. Counsel referred to Fanshawe College 1984 CanLII 3066 (ON HCJDC), 4 D.L.R. (4th) 564. Counsel submitted that the two earlier interpretations of Article 10.15 were interpretations the Board could and ought to properly rely upon. As stated previously, those interpretations stood for the proposition that Article 10.15 could not be relied upon to deal with matters of reclassification, but was applicable only to situations of complete lay-off of an employee. Unless the applicant union could point to some aspect of this grievance that distinguished it from the grievances already decided by two prior decisions of the Board, following those interpretations would mean that no prima facie case had been established in this grievance.
In the applicant's submission this grievance did deal with different matters. The applicant conceded that the factual issue in question was the reclassification of the grievor from the 100% wage category to 80% classification. The applicant stated that the company had so reclassified the grievor for business reasons, and the grievor was being penalized through no fault of his own. When asked what distinguished the instant grievance from those before the Board in the two prior decisions, the applicant indicated that the manner in which the grievor was reclassified distinguished the instant case. The submissions of the applicant made clear that its concern was to ensure that employees were dealt with fairly by the company and that the lay-off system as implemented by the employer was unfair and ought not to be allowed.
In support of this view the applicant referred to Article 10.16, dealing with recall rights of employees laid off. The applicant conceded however that the grievance as filed did not refer to Article 10.16. Notwithstanding this concession, the applicant requested a ruling of the Board on the meaning and application of Article 10.16 as well as Article 10.15.
The two prior decisions interpreting Article 10.15 of the collective agreement hold that the Article deals with situations of lay-off from employment; that is, 10.15 is only applicable to situations where an employee has at least temporarily been removed from the workforce. Article 10.15 does not deal with reclassifications of employees from one classification (in the instant case from the 100% wage category to the 80% wage category) to another. By the admission of the applicant, the factual basis for the grievance was the reclassification of the grievor from the 100% wage category to the 80% wage category. If the Board follows the two prior decisions interpreting and applying Article 10.15 then it must dismiss this grievance as it is already been held that the Article in question does not provide a remedy to an employee in the position of the grievor. Even if the manner in which the grievor was reclassified is assumed to be unfair, as suggested by the applicant, it would not give the grievor a remedy under the Article forming the basis of this grievance, as that Article does not deal whatsoever with reclassification issues.
Whether or not Article 10.16 may provide such a remedy is not in the Board's view a question properly before the Board in this grievance. That Article was not referred to in the grievance nor were any facts or submissions placed before the Board to suggest that it might be applicable. Further, there was no request to amend the grievance to now include reference to Article 10.16.
In our view this grievance ought to be dismissed for the reasons submitted by counsel for the respondent. While the Board is not compelled to apply the principle of res judicata, it appears to us to be appropriate to do so in the instant case. The interpretation and applicability of Article 10. 15 of the collective agreement applicable herein has already been twice litigated before this Board. While the applicant in the two prior proceedings was the International Union of Elevator Constructors, and not Local 50 of the International Union, the provincial scheme of bargaining under the Labour Relations Act makes clear that the International Union of Elevator Constructors acts as agent for the individual locals which it represents in the provincial bargaining scheme. Even on a strict contract analysis, the applicant Local Union would have been privy to the provincial collective agreement and therefore to the collective agreement in question in the two prior decisions. To hold otherwise would mean that after obtaining an adjudication by the Board as to the interpretation of a particular Article, each of the union members of the provincial bargaining agency would nevertheless be able to file their own individual grievances and thereby re-litigate precisely the same issue, involving precisely the same clause or Article of the collective agreement, and in any practical sense involving precisely the same parties. The entire thrust of the province-wide bargaining scheme is to avoid such fractured bargaining and to instead have agents who can both bargain and resolve disputes on a province-wide basis.
Similarly, it is not a significant distinction in our view that the grievor is different in the instant case than in the two prior proceedings. We say this in part because the decisions referred to by counsel for the respondent indicate that arbitration boards have not found such a distinction persuasive, and in any event, because common sense dictates this conclusion. Again, if it were otherwise, union's could re-litigate almost endlessly issues already determined by the artifice of having different individual grievors file succeeding grievances.
Alternatively, it is open to the Board to rely on previous Board decisions interpreting a clause of the collective agreement, at least where the applicant or grievor cannot suggest any fact distinguishing their case from the prior decisions. Relying on those prior interpretations must mean, as counsel for the respondent suggested, that the Article relied upon by the grievor and applicant is entirely inapplicable to the fact situation before us. Even if the Board accepts as true all the allegations put forth by the applicant, it would not change the fact that the applicant is seeking relief for an improper classification pursuant to an Article of the collective agreement which deals only with lay-off from employment. There may very well be other Articles of the agreement which may be applicable to reclassification situations, but those Articles are not part of this grievance nor properly before this Board. In the absence of any factual basis upon which to find a violation of Article 10.15 the applicant has not established a prima facie case and accordingly the Board dismisses the grievance on this ground as well.