General Contractors' Division of the Construction Association of Thunder Bay Inc. v. Lumber and Sawmill Workers' Union, Local 2693 of the United Brotherhood of Carpenters and Joiners of America et al., 1987 CanLII 3069

[1987] OLRB Rep. July 976

0373-87-U General Contractors' Division of the Construction Association of Thunder Bay Inc., Applicant v. Lumber and Sawmill Workers' Union, Local 2693 of the United Brotherhood of Carpenters and Joiners of America and Labourers' International Union of North America, Local 607, and Labourers International Union of North America Ontario Provincial District Council, Respondent v. Ontario Provincial Council, United Brotherhood of Carpenters and Joiners of America, Intervener

BEFORE: R. A. Furness, Vice-Chair, and Board Members C. A. Ballentine and L M. Stamp.

APPEARANCES: Joseph Liberman for the applicant; L. C. Arnold and W. Mcintyre for Lumber and Sawmill Workers Union, Local 2693 of the United Brotherhood of Carpenters and Joiners of America; S. B. D. Wahl and P. Little for Labourers' International Union of North America, Local 607, and Labourers International Union of North America Ontario Provincial Council; N. L. Jesin for the intervener.

DECISION OF THE BOARD; July 31, 1987

1This is an application under section 135 (2a) of the Labour Relations Act. Section 135(2a) states:

Where, on the complaint of an interested person, trade union, council of trade unions, employ­ers' organization, employee bargaining agency or employer bargaining agency, the Board is sat­isfied that a 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, bargained for, attempted to bargain for, or concluded any collective agreement or other arrangement affecting employees represented by affiliated bar­gaining agents other than a provincial agreement as contemplated by subsection 146(1), it may direct what action, if any, a 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 do or refrain from doing with respect to the bargaining for, the attempting to bargain for, or the concluding of a collective agreement or other arrangement other than a provincial agreement as contemplated by subsec­tion 146(1).

2The financial secretary of the Building Trades Council of Northwestern Ontario (the "Council") appeared at the hearing and requested status to participate in the application. The Council had not participated in any of the proceedings which will be referred to subsequently. In addition, the Council had not intervened in this application and the financial secretary had not been authorized to represent the Council before the Board. The financial secretary conceded that he was "just here on my own". After hearing the representations of those who appeared before it, the Board ruled that the financial secretary and the Council which he purported to represent did not have status to appear in this application.

3The respondent Lumber and Sawmill Workers Union, Local 2693 of the United Broth­erhood of Carpenters and Joiners of America ("Local 2693") denied that it is an affiliated bargain­ing agent and, in addition or in the alternative, denied that it has entered into any agreement other than a provincial agreement as contemplated by section 146(1). It was the position of Local 2693 that this application was inappropriate and should be dismissed without a hearing. It was also the position of Local 2693 that if the Board determined to hold a hearing, the same ought to be adjourned pending a ruling by the Minister of Labour on an application for designation, presently referred to the Board pursuant to section 139(4) of the Act. In addition, it was also the position of Local 2693 that an adjournment should be granted on the further ground that there is presently before the Board an application for reconsideration in EKT Indus fries Inc., [1987] OLRB Rep. March 352. Having regard to the importance and the relationship of that decision to the instant application, Local 2693 reasoned that it would be appropriate to adjourn this application pending such request for reconsideration.

4The request for an adjournment was supported by the intervener and opposed by the applicant and Labourers' International Union of North America, Local 607 and Labourers' Inter­national Union of North America Ontario Provincial District Council ("Local 607"). In order to understand the instant application and the request for an adjournment, it is necessary to refer briefly to two earlier proceedings which also involved Local 2693, Local 607 and a local trade union of the intervener and a concurrent proceeding in the form of a reference to the Board from the Minister of Labour.

5On November 10, 1983, Local 2693 filed an application for certification under the con­struction industry provisions of the Act with respect to certain employees of EKT Industries Inc. ("EKT"). Prior to the terminal date in that application, Local 607 intervened and claimed bargain­ing rights for those employees. Local 607 also filed on December 6, 1983, a referral of a grievance to arbitration by the Board pursuant to section 124 of the Act. That referral named as respondents EKT, Tamarron Group Inc. ("Tamarron") and Tamarron Construction Limited ("Tamarron Con­struction") and requested certain remedies pursuant to section 63 and/or section 1(4) of the Act. The application for certification and the referral were consolidated and heard together. Local 2693 claimed that EKT was the successor of, or related to, an entity called Kamtar with which Local 2693 allegedly had a collective bargaining relationship. Local 607 claimed to represent construction labourers employed by EKT by virtue of its provincial collective agreement with Tamarron. In the course of the hearing the Board was invited, on the agreement of the parties, to consider what the parties described as the "affiliated bargaining agent issue". The hearing of the consolidated cases required thirty-seven days. The Board heard extensive evidence and argument on the organiza­tional and bargaining history of Local 2693 over some thirty years and whether on the dates of these two applications Local 2693 was an affiliated bargaining agent as defined in section 137(1)(a) of the Act. In a decision dated March 27, 1987, the Board decided that Local 2693 was an affiliated bargaining agent within the meaning of section 137(1)(a) of the Act and could not lawfully repre­sent the construction labourers of EKT in the industrial, commercial and institutional sector of the construction industry because of the statutory scheme regulating collective bargaining in the Act. The Board noted that Local 2693 does not appear among the affiliated bargaining agents repre­sented by the Carpenters' Provincial Employee Bargaining Agency established pursuant to section 139(1)(a) of the Act or on any other designation of the Ministry of Labour. The Board reasoned that unless Local 2693 appeared on the designation it could not engage in collective bargaining for the construction labourers employed by EKT regardless of its past practice. The Board also noted that any collective agreement affecting employees in the industrial, commercial and institutional sector of the construction industry other than the provincial collective agreement between the des­ignated employer and employee bargaining agencies would be null and void by virtue of section 146 of the Act. The Board dismissed the claim of Local 2693 for bargaining rights and held that Local 607 had a stronger successor rights/related employer claim under sections 63 and 1(4) of the Act. It appears that the board dismissed the applications of Local 2693 for certification and for relief under sections 63/1(4) and granted the request of Local 607 for relief in those areas of the consolidated application where there was a dispute with Local 2693. While this decision of the Board is with respect to EKT, the reasoning in the decision, if accepted and applied to other employers in like circumstances, would call into question the bargaining rights of Local 2693 with respect to such employers in the industrial, commercial and institutional sector of the construction industry. The decision which has been discussed in this paragraph is hereinafter referred to as the "first decision".

6The implications of the first decision were apparently very clear to Local 2693 and in a letter dated April 8, 1987, Local 2693 requested the Board to reconsider its decision dated March 27, 1987, pursuant to the provisions of section 106(1) of the Act. The request was in two parts. Firstly, a request for the decision to be amended so as to provide for a stay for its effectiveness pending a determination of an application to the Minister of Labour for the designation of Local 2693 as an employee bargaining agency under section 139(1)(a) of the Act, and/or pending a deter­mination of the application for reconsideration of the first decision. Secondly, a request that the Board reconsider and revoke the first decision. In a letter dated April 23, 1987, the Minister of Labour advised counsel for Local 2693 as follows:

This is in reference to your request submitted on behalf of the Lumber and Sawmill Workers' Union, Local 2693 of the United Brotherhood of Carpenters and Joiners of America for a desig­nation pursuant to section 139 of the Labour Relations Act.

In my opinion, the request raises issues related to the Ministerial designations of employee bar­gaining agencies, issues related to the meaning of "affiliated bargaining agent", as well as gen­eral issues related to the intent of the province-wide bargaining system. Pursuant to section 139 of the Act, I will be referring this matter to the Ontario Labour Relations Board. More specifi­cally, I will be requesting that the Board consider whether the requested new designation is nec­essary or appropriate and whether any alteration or amendment to the existing designations is necessary or appropriate.

The Board has commenced hearings on this reference from the Minister of Labour before a differ­ently constituted division of the Board.

You will be notified by the Registrar of the Board concerning the date of its hearing into this matter.

7Yet another differently constituted division of the Board entertained the request for a stay of the effectiveness of the decision of the Board dated March 27, 1987. The Board denied the request for a stay of the effectiveness of the decision of the Board dated March 27, 1987. The refer­ences in the following quotation to the "Franks decision" is the equivalent of the first decision referred to in the instant decision. In EKT Industries Inc., [1987] OLRB Rep. May 696 (Board Files 1856-83-R and 2087-83-M, decision dated May 27, 1987) [reported at [1987] OLRB Rep. May 696] the Board stated:

13. Section 106(1) of the Act confers upon the Board a plenary independent power to reconsid­er, vary, or revoke any earlier decision if the Board considers it advisable to do so.. In exercis­ing that authority, the Board is not restricted to a consideration of the facts as they existed at the time of the original order and may consider any new or subsequent facts which it deems rele­vant. In appropriate circumstances, and with due regard to the principles of natural justice; that power of reconsideration may be exercised by a differently constituted panel of the Board. If it were otherwise, reconsideration would not be available to a party if, after the release of the decision, a panel member died or was otherwise unwilling or unable to act. No doubt it is con­venient and prudent to have the original panel reconsider its decision because that panel will be in the best position to know the evidence and argument that was before it and to decide whether its decision should be varied. Indeed, if the request, for reconsideration involves a challenge to the Board's factual findings or reference to the evidence before the Board, the case may have to go back before the original panel because, in the absence of a transcript, there is no way that anyone else would be in a position to address those issues. If another panel tried to deal with the matter it might be drawn into what is, effectively, a trial de novo, which would seriously under­mine the finality of the decision which section 106 itself contemplates. Leaving aside the nature of the hearing which might be required, however, we do not think there is any absolute legal requirement that the power of reconsideration can only be exercised by the panel making the original decision. Moreover, here, we are not asked to reconsider or reject the factual or legal conclusions of the Franks panel; we are only asked to temporarily stay the operation of its deci­sion until Local 2693's other legal options have been explored.

14. On the other hand, we are not persuaded that is either necessary or desirable to stay the Franks decision. Based on the facts, as found, (which the applicants for a stay do not here con­test), they are only able to say that there is an argument that the decision may be wrong. They do not, and in our opinion cannot, argue that there is a strong prima facie case that this is so. They can plausibly argue that the decision exposes a potential problem from their point of view because, if the designation order is not amended, Local 2693's bargaining rights for other com­panies may be subject to attack. But that is only to say that the Board should grant a stay because they claim the decision is wrong or because the law, as it is, is not as Local 2693 and its supporters would like it to be. That cannot be a basis for reconsidering or staying a Board deci­sion. The same claim be made in virtually every Board case. Nor can we give much weight to the Carpenters' contention that they thought the case would turn out differently and that the status quo would be maintained. That belief may be understandable, but the fact is that the provincial bargaining scheme established in 1978 is based significantly on established craft/trade distinc­tions, and, within that context, it is not so surprising that the Board might conclude that a local of the Carpenters' union would not be entitled to represent construction labourers, who, under the provincial bargaining scheme (and elsewhere in Ontario) are represented by the Labourers' union.

15. It is also interesting to note that the Board is not required to, and does not bring its proceed­ings to a halt even when its jurisdiction is challenged on an application for judicial review (see Re Cedervale Tree Services Ltd. and Labourers International Union of North America, Local 183 et al, 1971 CanLII 341 (ON CA), [1971] 3 O.R. 832). An aggrieved party must seek relief from the Court by way of a judi­cially imposed "stay" pending judicial review. If the Board does not bring its proceedings to a halt when its very jurisdiction is challenged in Court, why should it do so simply because Local 2693 asserts that the Franks panel was "wrong", or because Local 2693 may be able to persuade the Minister to alter a designation order so as to preserve the anomaly in northwestern Ontario of a Carpenters ABA representing construction labourers, and the Minister may have jurisdic­tion to do so retrospectively so as to revive or "breathe life" into bargaining relationships which, as things now stand, are deemed by the statute to be illegal. (Again, we make no comment about whether the Minister can or should do so.) Assuming, as we do, that the Board has the power to "stay" its own decisions, it is a power which should only be exercised in truly excep­tional circumstances, and if it is to be exercised by a different panel of the Board the circum­stances must be even more extraordinary (bearing in mind that similar relief is available from a Court on an application for judicial review, with the added safeguard of judicial discretion and "costs".) Otherwise expedition and finality would be seriously prejudiced.

16. We accept the submission that the E K T determination, if followed by other panels of the Board in other proceedings may lead to a result contrary to the interests of Local 2693. But there is nothing particularly unusual about that. Whenever the Board makes a significant legal determination there is the possibility that it will set a precedent which will be followed by other panels.. More telling, though, is Local 607's argument that any stay granted of the E K T deci­sion cannot foreclose another panel of the Board considering the reasoning of the Franks panel or coming to the same conclusion, nor would it foreclose Local 607 from raising the matter. There are practical and institutional reasons why the Board should not encourage continued liti­gation on the same point; however, the Board is not strictly bound by the doctrine stare decisis, (See: re Medi Park Lodges Inc. and Ontario Nurses Association and O.L.R.B. - unreported decision of the Divisional Court dated November 3,1981) and it is open to other parties to argue either that the original decision was wrong on the basis of the facts as found, or that there is other evidence not put before the original panel which might prompt another panel to reach a different conclusion. In the result then, any purported "stay" of the Franks decision would not put an end to litigation, but would merely prompt Local 607 to mobilize the same evidence and mount the same argument that was made successfully before the Franks panel. And, of course, we cannot ignore the collective bargaining reality in northwestern Ontario where two unions -Local 2693 and Local 607 - are now engaged in active competition to represent construction labourers. Any determination which advances the interests of one union and its supporters nec­essarily retards the interests of the other union and its supporters. Thus, for example, at E K T, Local 607 has now established bargaining rights for construction labourers so that available work opportunities will now be distributed among its members. Conversely, if the E K T deci­sion is stayed, work opportunities will presumably go to members of Local 2693. The balance of convenience does not obviously point in either direction; and there is certainly no undertaking that Local 2693 will contribute to any subsequent compensation claim made on behalf of mem­bers of Local 607. Finally, we are constrained to note the observation in paragraph 17 of the Franks decision that, over the years, Local 2693 has been "less than candid" with the Board when obtaining the bargaining rights which it now seeks to defend. It purported to acquire bar­gaining rights for all unrepresented tradesmen when, in fact, it really only wanted to represent labourers.

17. For the foregoing reasons, this panel of the Board is unanimously of the view that the deci­sion released on March 27, 1987 should not be reconsidered, varied, revoked or stayed.

The decision which has been referred to in this paragraph is hereafter referred to as the "second 4ecision".

8During the hearing the Board dismissed the request for an adjournment and stated that reasons would be given for that decision. These decisions are now set forth. The Board has the power, if it considers it advisable in the interests of justice, to adjourn any hearing for such time and to such place and upon such terms as it considers fit. Reference is made to section 82(1) of the Board's Rules of Procedure. The Board has generally refused to grant an adjournment unless all of the parties to a proceeding consent or unless there are exceptional circumstances. See Nick Masney Hotels Ltd., [1968] OLRB Rep. Nov. 833, Dec. 965. In the instant application all of the parties have not consented to an adjournment. Are there exceptional circumstances in this application? Local 2693 and the intervener centred their arguments on the extremity of the Local 2693's posi­tion with respect to its claims to bargaining rights with respect to members and non-members of the applicant. Quite clearly the consequences of any decision which might have been made by the division of the Board which made the first decision would have been of serious consequence to at least one of the parties. The Board in the first decision, on the agreement of all the parties, consid­ered the affiliated bargaining agent issue. The consequences of an adverse decision on the affiliated bargaining agent issue were known or ought to have been known by Local 2693. The collective agreements entered into by Local 2693 were obviously at risk. It is quite clear that Local 2693 and the intervener do not find the first decision to their liking. In any contest the party which receives an adverse decision no doubt finds the decision not to be to its liking and no doubt that feeling is proportional to the loss or prospective loss which has been suffered. The fact that by filing an application for certification Local 2693 has been placed in an extreme position is by no means unique and is not a reason for granting an adjournment. The arguments which were addressed to the division of the Board by Local 2693 in the instant application in support of the request for an adjournment were the same arguments which were addressed to the divisions of the Board which issued the first and second decisions. The request to the Minister of Labour for a designation is not a reason to grant an adjournment. The Board is independent of the Minister and the Minister may either choose not to implement any report from the Board made under section 139(4) of the Act or may decide not to make the designation requested by Local 2693 regardless of the report of the Board. On the other hand, the applicant and its members are being pressed by Local 2693 and Local 607 to adhere to their collective agreement to the exclusion of the other's collective agree­ment. The balance of convenience is decidedly in favour of not granting an adjournment. For the foregoing reasons the Board ruled at the hearing that it would not grant the request for an adjourn­ment.

9The applicant is seeking declaration pursuant to section 135(2a) of the Act that the col­lective agreement between the applicant and Local 2693 is unlawful and being an agreement other than a provincial agreement is contrary to section 146(1) of the Act and that this agreement is not binding upon the applicant or any of its members.

10It was the position of the applicant and Local 607 that the first decision that Local 2693 is an affiliated bargaining agent within the meaning of section 137(1)(a) of the Act and that Local 2693 may not lawfully represent construction labourers in the industrial, commercial and institu­tional sector of the construction industry is a decision in rem. It was also the position of the appli­cant and Local 607 that in the course of proceedings before the Board which resulted in the first decision, the parties treated, by agreement, the issue to be a determination in rem such that it could not be relitigated between the parties by virtue of agreements to hold a number of certifica­tion proceedings currently pending before the Board in four other files in abeyance and to be sub­ject to the determination rendered by the Board in the first decision. In addition, the applicant and Local 607 pointed out that by its course of conduct since the first decision in seeking a stay and a new designation from the Minister of Labour Local 2693 ad implicitly acknowledged the in rem nature of the decision referred to in this paragraph. Local 2693 argued that in rem was a synonym for res judicata and is sometimes known as issue estoppel. Local 2693 also argued that the strict application of the judicial doctrine of issue estoppel should have no application to any statutory tri­bunal such as the Board and, as a harsh doctrine, should be confined strictly for the courts. Local 2693 reasoned that the first decision was only a persuasive value and could not be res judicata because the parties in the first decision are different from the parties in the instant application. Local 2693 urged the Board to require the applicant to call evidence in support of its request for

relief with a corresponding opportunity for the parties to call evidence.

11The rule of res judicata is grounded on the principles of public policy that the state has an interest that there should be an end to litigation and that no individual should be sued twice for the same cause. The constituent elements of the rule were enunciated in Spencer, Bower and Turner, Doctrine of Res Judicata (2d ed., 1969), pp. 18-19:

(1) that the alleged judicial decision was what in law is deemed such;

(2) that the particular decision relied upon was in fact pronounced, as alleged;

(3) that the judicial tribunal pronouncing the decision had competent jurisdiction;

(4) that the judicial decision was final;

(5) that the decision was, or involved, a determination of the same question as that sought to be contravened in the litigation in which the estoppel is raised;

(6) that the parties to the judicial decision, or their privies, were the same persons as the parties to the proceeding in which the estoppel is raised, or their privies, or that the decision was con­clusive in rem.

This enumeration has received judicial approval (see Re Bullen (1972), 1971 CanLII 1029 (BC SC), 21 DLR (3d) 628, at 631) and this Board's approval (see Canadian General Electric Company Limited, [1978] OLRB Rep. Apr. 384, at 386). In rem, therefore, is more correctly described as a component of res judicata than as a doctrine in its own right. This means that all the other elements of res judicata must per­tain; in rem applies only if the parties are not identical to the parties in the previous proceeding and the decision can be characterized as an in rem decision. In rem has been defined, in Spencer, Bower and Turner, Doctrine of Res Judicata, at 213:

A judicial decision in rem is one which declares, defines, or otherwise determines the status of a person or of a thing, that is to say, the jural relation of the person or thing to the work general­ly, and is therefore conclusive for or against everybody, as distinct from those decisions which purport to determine the jural relation of the parties one to another, and their personal rights and equities inter se, and which are commonly termed decisions in personam.

12Both Canadian General Electric Company Limited, [1978] OLRB Rep. April 384 and Oakwood Park Lodge, [1980] OLRB Rep. Oct. 1501, cite the definition found in The Canadian Encyclopedia Digest, 10 C.E.D. (Ont. 3d), at 122:

A judgment in rem is universally binding. It is an adjudication pronounced upon the status of some particular subject matter by a tribunal having competent authority for that purpose. Such an adjudication being a solemn declaration from the proper and accredited quarter that the sta­tus of the thing adjudicated upon is as declared, it concludes [sic] all persons from stating that the status of the thing adjudicated upon was not that declared by the adjudication. Judgments in rem are conclusive against all the world, not only as the res itself but also as the grounds on which the tribunal professes to decide or may be presumed to have decided.

There is some disagreement whether the grounds upon which the tribunal bases its judgment are in rem or in personam. Although neither Canadian General Electric Company Limited, supra, nor Oakwood Park Lodge, supra, addressed this issue, the court in McGregor v. McGregor (1977), 20 Q.R. (2d) 680 stated that the grounds for a decision were in personam and thus only binding between the parties; it is only the judgment itself which is in rem. However, the above excerpt from the Canadian Encyclopedia Digest has some judicial support. The Ontario Court of Appeal in Foster v. Reaume (1927), 1926 CanLII 416 (ON SCAD), 60 OLR 63, (1927] 1 DLR 1024 has held that an in rem judgment con­cludes not only the point actually decided but the grounds of the decision as well. See also, Love v. Love, 1968 CanLII 414 (ON HCJ), [1969] 1 OR 291, (1969) 2 DLR (3d) 273 (H.C.).

13In rem can be summarized as follows:

(1) It is a component of res judicata. This means that all of the other con­stituent elements of res judicata must pertain.

(2) An in rem decision is a declaration, definition or determination of the status or jural relation of a person or thing to the world general­

ly.

(3) While it is not entirely clear whether the grounds upon which a deci­sion is based are in rem or in personam, the better view is that the grounds upon which a divorce is based, such as cruelty or adultery, are in in rem.

The main bars to an application of the in rem component derive from a missing element of the res jydicata rule. In Canadian General Electric Company Limited, supra, the Board considered several factors that could bar the application of res judicata. These factors are: (1) A material change in the law. The Board noted that there had been statutory changes to section 1(3)(b) of the Act since 1954 (the date of the decision relied upon to establish res judicata) and this satisfied the Board that a prima facie case that there had been a relevant change in the law had been made out. In Canadian General Electric Company Limited, [1979] OLRB Rep. Jan. 12, the parties had a chance to respond to the prima facie case. After hearing submissions, the Board held that even though a change in the law would not have affected the previous decision, the change was sufficient to urge the Board to rehear the question whether cost analysts were employees within the meaning of the Act. (2) A significant change in the facts since the original decision. It is clear that a change in facts, as does a change in law, goes to the "same question" element of res judicata. If there has keen a change in fact or law then the question in the previous decision cannot be the same question ~s that now before the tribunal. (3) The finality of Board decisions. Do the powers of reconsidera­tion in s. 106(1) of the Act support an argument that no Board decision is sufficiently final to satisfy the criterion of finality which is a condition precedent to the application of res judicata? The Board has had little difficulty in disposing of this point. In Canadian General Electric Company Limited, supra, at 388, the Board stated:

15. The Board's use of a doctrine analogous to res judicata is not inconsistent with its power to reconsider its own decisions. Board decisions may be distinguished from the type of decision cited by Bower and Turner, supra, at pp. 132 and 138 where subsequent revisions based on changing circumstances between the parties may be found to cause a want of finality for the pur­poses of res judicata. An example of this type of decision would be certain matrimonial orders whereby the amount of alimony or maintenance is periodically revised in view of subsequent developments between the parties. The majority of consideration cases before the Board relate to the state of things prior to the Board's hearing rather than to subsequent events. Because of the importance of enabling parties to rely on Board decisions as final decisions, the Board does not normally assume the role of an ongoing guardian of the equities of a decision or remedy.

And, at 389:

16. Furthermore, and perhaps most importantly, the Labour Relations Act itself makes it clear that the decisions of the Board are to be considered final and binding even though they may be revised. Section 95(1) [now 106(1)] provides,

The Board has exclusive jurisdiction to exercise the powers conferred upon it by or under this Act and to determine all questions of fact or law that arise in any matter before it, and the action or decision of the Board thereon is final and conclusive for all purposes, but nevertheless the Board may at any time, if it considers it advisable to do so, reconsider any decision, order, direction, declaration or ruling made by it and vary or revoke any such decision, order, direction, declaration or ruling.

[emphasis added]

17. Accordingly, because the Board has set a strict standard for reconsideration and because the Act clearly indicates that its decisions are to be considered final and binding unless and until revised, the Board is satisfied that the Board's powers under section 95(1) [now 106(1)] of the Act raise no want of finality and that a doctrine analogous to res judicata is properly applicable to the Board's decisions.

See, also Arnold Markets Limited (1962), 62 CLLC ¶16,221 at 992; Holland River Garden Com­pany Ltd. (1964), 64 CLLC ¶16,304 at 1256 and Tandy Electronics Ltd. (1980), 1979 CanLII 1914 (ON HCJ), 102 DLR (3d) 126 (Div. Ct.). (4) Does an argument based on the finding in McGregor v. McGregor, supra, that res judicata applies only to the decision itself and not the grounds on which the decision is based, bar an application of the in rem doctrine? It could be argued that the "real" decision in the first deci­sion was that, because of the operation of section 146(2) of the Act on the finding that Local 2693 was an affiliated bargaining agent, the collective agreement between the parties was null and void. The finding that Local 2693 was an affiliated bargaining agent and not an employee bargaining agency was the ground upon which the decision was based. If McGregor v. McGregor, supra, is followed then the applicant could not rely on the finding in the instant case. However, such a nar­row reading of the first decision should not be allowed to defeat the public policy behind the doc­trine of res judicata. There is sufficient judicial authority in Foster v. Reaume, supra, to defeat such an argument. (5) Policy considerations. Even though there are important reasons why the doctrine of res judicata should be applied, there are equally important reasons why the Board should not exercise its discretion. In Oakwood Park Lodge, supra, the Board said this in support of res judicata:

9. Although he Act does not expressly authorize the application of the doctrine of res judicata, there are strong practical and policy grounds for doing so. Rights and duties have meaning only if they are certain and relatively stable. Parties expect that a decision of the Board will clarify their legal relationship and put an end to the controversy between them. Board decisions would lose much of their value if they did not provide a reliable guide for the conduct or planning of the parties' affairs. Continuous litigation would undermine the harmonious relationship between the parties which the Act is designed to foster, and could give rise to abuse and harassment of a weaker party. It could also give rise to costly duplication, inefficient utilization of the Board's scarce resources, and a serious impediment to the effective administration of the Act. This potential consequence is especially serious in labour relations matters where "time is the essence" and finality is an important statutory objective. Moreover, from an institutional point of view, the prospect of relitigation greatly increases the possibility of inconsistent decisions which can only undermine the credibility of the adjudication system and the adjudicators. The doctrine of res judicata serves to minimize these possibilities, and is based upon the entirely rea­sonable expectation that if a judgment is rendered in an earlier case which is related logically to a subsequent proceeding, the former will be taken into account in resolving the latter. Indeed, this is the theory which underpins the development of the common law and the principle of stare decisis. Cases involving similar factual and legal questions should be decided in the same way, and if there is a close relationship in terms of the parties and issues involved, the interrelationship of the two proceedings may legitimately preclude the relitigation of those issues already set­tled.

However, in the same case the Board made an equally compelling argument for a cautious appli­cation of the doctrine. Definitions of in rem and of res judicata have been fashioned and the Board stated at p. 1513:

.in a legal context entirely foreign to that which concerns the Board. We do not think that 19th century cases concerning, in many instances, the resolution of the property disputes or the devo­lution of estates, provide a very reliable source for the interpretation of The Labour Relations Act. Even the matrimonial cases do not provide an exact analogy; and it is interesting to note that the notion of an in rem determination has been described by the Supreme Court of Canada in Sleeth v. Hurlbert (1896), 25 5CR. 620 as a "harsh doctrine - a dcctrine that may be used to the unjust destruction of individual rights and interests". We were unable to find any case in which the Courts faced a situation identical to that now before us, but even if we had, it must be recognized that as a statutory tribunal with a mandate to administer a statute, monitor relations between employers and employees, and promote orderly collective bargaining, the Board might well have to approach the problem in a way that is different from that of the Courts. Moreover, at common law, it is clear that the Courts have been unwilling to extend the doctrine of res judicata even where the rationale underpinning the doctrine would appear to be applicable... .In our view, despite the undoubted utility of the doctrine from an administrative point of view, its complexity and the need to harmonize its principles with the purposes embodied in The Labour Relations Act, fully justify a cautious approach in its application.

Essentially, the Board in Oakwood Park Lodge, supra, is arguing for a res judicata, restricted by the labour relations realities of each case. The doctrine of res judicata developed in areas and con­texts of law entirely different from labour relations. The Board should therefore be cautious about ai~ uncritical application of the doctrine.

14In Wright Assemblies Limited 61 CLLC ¶16,215, the Board first discussed the possible application of the principle of res judicata to the decisions of the Board. In the following year the Board applied this principle in Arnold Markets Limited, supra, and has since applied this principle in several other instances. See, for example, the cases cited under the third heading in the preced­ing paragraph. While the analysis in Canadian General Electric Company Limited, supra, makes an argument pro and contra the application of the principle of res judicata to the decisions of the Board, we are strongly of the opinion that the principle ought to be applied to the decisions of the Board where the necessary conditions and safeguards are met. The first decision, notwithstanding its unpopularity with Local 2693, was made after thirty-seven days of evidence and argument. The issue of whether Local 2693 is an affiliated bargaining agent was exhaustively dealt with in the first decision. While Local 2693 argued that the applicant should be required to prove its case and that the other parties should have an opportunity to call evidence, there was no suggestion either that Local 2693 had in any way changed since the facts referred to in the first decision or that Local 2693 had any evidence or argument to present to the Board which it had not presented to the Beard in connection with the first decision.

15Having regard to the analysis of the principle of res judicata and to the component of res judicata known as in rem decisions, the Board finds that first decision that Local 2693 is an affili­ated bargaining agent within the meaning of section 137(1)(a) of the Act and that Local 2693 may not lawfully represent construction labourers in the industrial, commercial and institutional sector of the construction industry is a decision in rem.

16Having regard to the foregoing and pursuant to the provisions of section 135(2a) of the Act, the Board declares that the collective agreement between the General Contractors' Division of the Construction Association of Thunder Bay Incorporated and the Lumber and Sawmill Work­ers' Union, Local 2693 of the United Brotherhood of Carpenters and Joiners of America made on December 17, 1986, is unlawful as an agreement or other arrangement other than a provincial agreement contrary to subsection 146(1) of the Labour Relations Act, R.S.O. 1980, c.228 as amended and accordingly is null and void and of no force and effect and is not binding upon the General Contractors' Division of the Construction Association of Thunder Bay Incorporated or any of its members.

17The Registrar is directed to cause a copy of this direction to be filed exclusive of reasons in the prescribed form at the Office of the Registrar of the Supreme Court of Ontario.