[1986] OLRB Rep. November 1555
2054-86-M Sheet Metal Workers International Association, Local 537, Applicant, v. Helmut Mueller, Respondent
BEFORE: G. T. Surdykowski, Vice-Chairman, and Board Members I. M. Stamp and H. Kobryn.
APPEARANCES: Stanley Simpson and Owen Pettipas for the applicant; Helmut Mueller appearing on his own behalf.
DECISION OF THE BOARD; November 24, 1986
This referral of a grievance to the Board pursuant to the provisions of section 124 of the Labour Relations Act had it genesis in a previous decision of the Board, by a differently constituted panel (the "Mitchnick" panel), in S. N. Ventilation Heating Limited, [1986] OLRB Rep. Sept. 1309. In that decision, also a referral under section 124 of the Act, the Board said as follows:
The evidence now discloses that much of the work in question was performed on a "subcontract" basis by Mueller Sheet Metal, and much of it by Steve Dojcinovic, the owner of Steve's Sheet Metal, himself. With respect to the former, Mr. Dojcinovic was approached by Mr. Mueller, who has been the proprietor of a registered company called "Mueller Sheet Metal" since 1977, and was asked if he would subcontract some fabrication work to him. Mr. Dojcinovic was aware of the restrictions under the collective agreement with respect to subcontracting, the relevant provision of which provides:
ARTICLE 9- SUB CONTRACTS
9.1 When subcontracting the employer agrees that any and all of the acknowledged work herein contained in the Clause covering Trade Jurisdiction in the respective Appendix must be subcontracted to an employer who is a signatory to this Provincial Agreement, providing such subcontractors are available.
Mr. Dojcinovic accordingly told Mr. Mueller that he would subcontract work to Mueller Sheet Metal if he were able to get a collective agreement with the applicant union.
Mr. Mueller consequently attended at the office of the applicant. He explained to the Union that he was setting up in business, and would like to become a Union member and sign a collective agreement. He was asked a few questions about his intentions for the business, after which the Union signed him to a collective agreement. With respect to becoming a Union member, however, the Union told him he would have to wait until he actually started up a shop, and the Union would look at the situation then. Mr. Mueller then took his collective agreement back to Mr. Dojcinovic, and Mr. Dojcinovic agreed to give him some of the fabricating work in Mr. Dojcinovic's shop. Mr. Mueller quoted an hourly rate, and was paid on that basis, without deductions (all of the normal matters subject to payroll deduction were the responsibility of Mr. Mueller). Mr. Mueller would bring his own tools in to the shop of Steve's Sheet Metal, would be handed a work order by Mr. Dojcinovic, and would be left by Mr. Dojcinovic (who was frequently out of the shop doing residential work) to complete the work.
The Board recognizes that it is not unusual for tradesmen to set themselves up as purported "independent contractors", and to be treated as such on the payroll by those engaging their services, under circumstances in which the Board would not necessarily find them to be "independent contractors" at all. See, e.g., Montreal Locomotive Works. (1947) 1946 CanLII 353 (UK JCPC), 1 D.L.R. 161; Babco Plumbing Services, 119851 OLRB Rep. Dec. 1693. In the present case, however, none of us are of the view that we ought to go behind the "subcontracting" arrangement upon which Mr.
Dojcinovic claims to have relied. As much as Mr. Dojcinovic had made his dislike for the collective agreement apparent throughout his testimony, we do find that he was acting in good faith in demanding from Mr. Mueller that he obtain a collective agreement from the Union before he could receive any work from the respondent.
The Union knew that Mr. Mueller was not set up in his own shop at that point, and in fact withheld membership from him on that basis. As the Union's business agent in his testimony acknowledged in hindsight, the Union might well have held back on the signing of a collective agreement until Mr. Mueller showed signs of opening his own shop as well. We understand why the Union would be anxious to sign any potential contractor to a collective agreement as early as possible, but we also have to consider what is fair to all of the parties involved in the present inter-relationship. If the Union is held to the "subcontract" arrangement that ensued, they still have a remedy against Mueller Sheet Metal, who asked to be signed to the collective agreement. If the Board goes behind the "subcontract" arrangement to place all of the liability on Steve's Sheet Metal, the latter company has no recourse against anyone. And it is Mueller Sheet Metal that has in fact been paid by Steve's for the work in question. Having regard to the good faith of Mr. Dojcinovic in requiring, as he saw it, that the terms of the "subcontracting" clause of the collective agreement be adhered to, and to the knowledge that the Union had of the situation (sufficient knowledge to hold hack from Mr. Mueller a Union card), we are not prepared to go behind that arrangement and examine its status, with a view to possibly placing the liability for the Mueller hours on Steve's Sheet Metal. While the combination of an innocent representation on the Union's part and innocent reliance upon it on the respondent's part has led us to this conclusion in the present case, the respondent should be aware that any future "subcontracting" arrangements would, in light of the knowledge he now has of the Union's position, be subject to closer scrutiny under the tests articulated by the Board in the past.
[emphasis added]
The applicant submits that the determination by the Mitchnick panel of the (employment) status of the respondent is binding on this panel; in other words, that the issue is res judicata. In that regard, counsel submits that the respondent had to be, during the material times, either an 'employee' as defined by the Act or an independent contractor, and that that issue has been determined by the Mitchnick panel. In addition, counsel submits that the fact that the respondent signed what purports to be a collective agreement with the union means that he was an independent contractor. In the alternative, and if we do not agree with these submissions, counsel requested this panel 'reconsider' the decision of the Mitchnick panel. The respondent, who was not represented by counsel, adopted a contrary position.
Res ludicata is a common law doctrine which was developed by the Courts to preclude parties or their privies from relitigating issues that had already been resolved by a final judgement of a court of competent jurisdiction. In effect, such a previous decision creates an estoppel which can take 2 forms: cause of action estoppel and issue estoppel. Regardless of its form, the essence of the estoppel that is created is that once a right, question, or fact distinctly put in issue, is directly determined by a court of competent jurisdiction, it cannot be relitigated in subsequent proceedings between the same parties or their privies. A right, question, or fact once so specifically determined is taken to be conclusively established for so long as the judgement of the Court that determined it stands, unless a litigant otherwise bound by that previous determination can establish that there exist a fact which both entirely changes the situation and could not by reasonably diligence have been previously ascertained (see Angle v. Minister of National Revenue, [1975] S.C.R. 248; Town of Grandview v. Doering, (1975) 1975 CanLII 16 (SCC), 61 D.L.R. (3d) 455 (S.C.C.)).
It is not clear that the Board is bound to apply the doctrine of res judicata, particularly when it sits as an arbitrator under section 124 of the Act. However, the Board has applied that doctrine, or one analogous to it, so as to ensure that, subject to its power to reconsider any decision under section 106(1) of the Act, its decisions will be final and conclusive of the questions or facts that it adjudicates (see Arnold Markets Limited, 62 CLLC para. 16221; Canadian General Electric Company Limited, [1978] OLRB Rep. April 384; K-Mart Canada Limited, [1981] OLRB Rep. Feb. 185 among others).
It is clear, however, that neither res judicata, nor any doctrine analogous to it, to operate against anyone who was not either a party to the prior proceedings or someone claiming under or through such a party (see Angle v. Minister of National Revenue, supra; Town of Grandview v. Doering, supra; Mr. Grocer, Willett Foods Limited, [1986] OLRB Rep. Oct. 1364; Oakwood Park Lodge, [1980] OLRB Rep. Oct. 1501; and Valentine Enterprises Contracting Limited, [1980] OLRB Rep. June 807 where it was held that the dismissal of one union's claim that two employees be declared a single employer did not bar another trade union's claim for such a declaration with respect to the same employers).
The respondent in this proceeding is Helmut Mueller. Neither he personally nor Mueller Sheet Metal, which is an unincorporated sole proprietorship through which he carries on business, were parties to the proceedings before the Mitchnick panel in S. N. Ventilation Heating Limited, supra. Consequently, it is not appropriate that Mr. Mueller be bound by any of findings of the Mitchnick panel and we reject the trade union's submissions in that regard. In this proceeding, the trade union claims under an agreement between the Sheet Metal Workers' International Association Local Union No. 537, Ontario Sheet Metal Workers' Conference and Mueller Sheet Metal. In order for it to succeed in its claim, it must establish that the respondent was an "employer" at the material times, and that the "agreement" is a collective agreement that applies to the work claimed by it. These are the issues before the Board in this proceeding.
The evidence before us establishes that S. N. Ventilation Heating Limited, which carries on business as Steve's Sheet Metal Company (hereinafter "S. N. Ventilation") is bound to a provincial "I.C.I." collective agreement between the Ontario Sheet Metal and Air Handling Group and the Sheet Metal Workers' International Association and Ontario Sheet Metal Workers' Conference for Locals 30,47, 235, 269, 392, 397, 474, 504, 537, 539 and 562. This agreement specifies that all persons employed to do sheet metal work by employers bound by it must be members of the listed local unions, of which the applicant is one. It further provides that any subcontracting of sheet metal work must be to an employer bound by the agreement. The respondent was generally aware that S. N. Ventilation was bound to the collective agreement and was required to hire members of the applicant to do its "I.C.I." sheet metal work. In addition, the evidence discloses that Mr. Mueller, established what appears on its face to be a sole proprietorship under the name of "Mueller Sheet Metal" in 1974, that he identifies himself as being self-employed on his income tax returns, and that he does not receive a statement of earnings from S. N. Ventilation for tax purposes. In addition, he has referred to and held himself out to be an independent contractor. He is not, and was not at any material time, a member of the applicant. He sought to become a member in February, 1985, was rejected, and instead signed what purports to be a collective agreement with the applicant. The only evidence before us of the purpose for which the respondent entered into this agreement is that he wanted to be a union contractor and have the applicant supply him with employees. There is no evidence before us that he made any representations to the applicant with respect to his relationship with, or any work to be performed for, S. N. Ventilation. Nor is there any evidence before us of any discussions between Mr. Mueller and Mr. Dojcinovic. Consequently, there is no evidence before this panel to permit us to make any of the findings of fact made by the Mitchnick's panel in paragraphs 3 and 4 of the S. N. Ventilation Heating Limited decision supra.
Subsequently, the respondent performed work for S. N. Ventilation. Whatever he may be for income tax purposes, we are satisfied on the evidence before us, Mr. Mueller was, for labour relations purposes, an employee of S. N. Ventilation during the period for which the trade union claims damages, namely March, 1985 through April 1986. Superficially, Mr. Mueller may appear to be an independent contractor. However, in determining whether a person is an "employee" for labour relations purposes, the Board concerns itself with the substance of the working relationship and not its mere form or label. In assessing the true nature of the relationship, the Board applies the fourfold test of Montreal v. Montreal Locomotive Works Ltd. et al. 1946 CanLII 353 (UK JCPC), [1947] 1 D.L.R. 161 in the context of the overall organization of the operation, the organization test being one that was applied in Koch v. The Trustees of the Ottawa Civic Hospital, [19791 3 ACWS 201 (Ont. H.C.) (see Babco Plumbing Services Limited, [1985] OLRB Rep. Dec. 1693; K-Mart Canada Ltd., [1983] OLRB Rep. May 649, among others). Although he professes to be a self-employed contractor, Mr. Mueller, who has never had any employees, has worked for only S. N. Ventilation for approximately five years. He has regular scheduled hours of work, including specific starting and stopping times; he reports to and works at the shop, not the job site; he is paid the same regular hourly wage rate, which is established by S. N. Ventilation, regardless of what work he is performing and regardless of what profit or loss may result from the work undertaken; the work he does is determined by work orders given to him by S. N. Ventilation and he plays no part in selecting what work will be done, what jobs will be accepted or the costing thereof; and there is no indication that he uses tools and materials other than those supplied by S. N. Ventilation. In our view, on the tests applied by the Board, Mr. Mueller was, at all material times, an employee of S. N. Ventilation within the meaning of the Labour Relations Act.
On its face, our decision in this respect may appear to be at odds with the decision of the Mitchnick panel. However, it is also readily apparent that the evidence before the Mitchnick panel was radically different from that before us. It appears that the Mitchnick panel heard only from Mr. Dojcinovic, the principal of S. N. Ventilation, with respect to the nature of that company's relationship with Mr. Mueller. We heard evidence on that issue only from Mr. Mueller himself, even though Mr. Dojcinovic was subpoenaed by the union and gave evidence with respect to other issues. It appears therefore that each panel had a different part of the relevant evidence before it, but that neither panel had the benefit of all of the relevant evidence. Of course, each panel must decide the application before it on the basis of the evidence that it hears and is not entitled to speculate that other evidence may exist. Absent the application of res judicata or some doctrine analogous thereto, findings in a previous proceeding are not evidence in a subsequent proceeding. In this instance, though the result may be an unhappy one from the union's perspective, it ought not to be surprising.
Finally, even if we have the jurisdiction to do so in the context of this proceeding, which we doubt, we do not find it appropriate to attempt a reconsideration of the decision of the Mitch-nick panel, as suggested by counsel. There is no proper request for reconsideration before us. Further, any reconsideration would be with respect to a finding of fact of the Mitchnick panel. We know neither the details of the evidence placed the Board in the prior proceeding, nor what evidence, if any, became available subsequent to the decision in that proceeding that could not by reasonable diligence have been previously ascertained and adduced. On the basis of the information before us, we are not prepared to grant such a request.
In the result, we find that the respondent was not an employer during the material times and that he is therefore not liable to any claim made by the applicant with respect to the work claimed herein by the trade union. In view of that finding, it is unnecessary for us to decide whether or not the agreement between the parties is a collective agreement, a proposition which is not free from doubt (see International Union of Operating Engineers, Local 793 [1981] OLRB Rep. June. 692; Nicholls - Radke and Associates Limited, [1982] OLRB Rep. July 1028).
The grievance is dismissed.