Lumber and Sawmill Workers Union, Local 2693 v. E K T Industries Inc., 1987 CanLII 3265

[1987] OLRB Rep. May 696

1856-83-R; 2087-83-M Lumber and Sawmill Workers Union, Local 2693 of the United Brotherhood of Carpenters and Joiners of America, Applicant v. E K T Industries Inc., Respondent v. International Union of Operating Engineers Local 793, Intervener #1 V. United Brotherhood of Carpenters and Joiners of America, Local Union 1669, Intervener #2 V. Labourers International Union of North America, Ontario Provincial District Council and Labourers International Union of North America, Local 607, Intervener #3; Labourers International Union of North America, Ontario Provincial District Council; and Labourers International Union of North America, Local 607, Applicants v. v. B K T Industries Inc., Tamarron Group Inc., Tamarron Construction Limited, Respondents

BEFORE: R. O. MacDowell, Alternate Chair, and Board Members M. Eayrs and N. Wilson.

APPEARANCES: L. C. Arnold for Lumber and Sawmill Workers Union, Local 2693; S. B. D. WahI for Labourers Local 607; R. J. Mc Comb for E K T Industries Inc.; N. Jesin for Carpenters Local Union 1669 and the Ontario Provincial Council of the United Brotherhood of Carpenters and Joiners of America; no one appearing for the other parties listed in the styles of cause.

DECISION OF THE BOARD; May 25, 1987

1. This is an application to reconsider and "stay the operation of' a decision of the Board (differently constituted) released on March 27, 1987 [now reported at [1987] OLRB Rep. Mar. 352]. The request is made pursuant to section 106(1) of the Act which reads as follows:

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.

Carpenters Local 2693, the Carpenters Ontario District Council, and E K T all urged the Board to grant this request for reasons set out more particularly below. Labourers Local 607 opposes the application on the ground that the Board has no jurisdiction to grant the relief requested; and, in any event, no such relief is warranted in the circumstances of this case.

2. In order to appreciate the context in which this application arises, it is necessary to sketch in some background. Much of this information is canvassed in, or flows from, the original Board decision, however it is useful to repeat it here.

II

3. These proceedings began as an application for certification in which Local 2693 sought to obtain or confirm the right to represent certain employees of E K T. Labourers Local 607 inter­vened in that application. Subsequently, each trade union sought to establish its bargaining rights pursuant to section 63 and/or section 1(4) of the Act. Local 2693 claimed that E K T was the suc­cessor of, or related to, a firm called "Kamtar" with which Local 2693 purportedly had a collective bargaining relationship. Local 607 claimed to represent construction labourers employed by E K T by virtue of its provincial agreement with the Tamarron Group Inc. ("Tamarron"). Those compet­ing claims were consolidated and heard together. In the course of the hearing the Board was invited to consider what the parties described as the "affiliated bargaining agent issue". At para­graph 3 of the decision the Board put it this way.

In the course of hearing the evidence and representations of the parties on these section 63 and 1(4) matters, counsel for Labourers Local 607 raised certain issues with respect to the status of Lumber and Sawmill Workers Union, Local 2693 to apply for or hold the bargaining rights in question. The issue raised by counsel stems from whether or not Lumber and Sawmill Workers Union, Local 2693 is an affiliated bargaining agent as defined by section 137(1)(a) of the Act. If it is such an affiliated bargaining agent, then the question arises whether that affects Lumber and Sawmill Workers Union, Local 2693's status given those sections of the Act dealing with the mandatory provisions concerning province-wide bargaining for certain trade unions in the con­struction industry. The intervening trade unions in these proceedings played an extensive part in that portion of the proceedings dealing with the "affiliated bargaining agent issue

4. The hearings before the original panel of the Board ("the Franks panel") consumed some 37 days. There was extensive evidence and argument concerning the bargaining history of Local 2693 and whether at the time of its applications, it was an affiliated bargaining agent ("ABA") pursuant to section 137(1) of the Act. For reasons set out at paragraphs 14-41 of the Franks decision, the Board concluded that Local 2693 was an ABA and that, therefore, it was not entitled to represent construction labourers employed by E K T, because of the statutory scheme regulating collective bargaining in the industrial, commercial and institutional (ICI) sector of the construction industry. Local 2693, does not appear among that "family" of ABAs appearing on the Ministerial designation specifying those ABAs represented by the Carpenters' Provincial Employee Bargaining Agency (see section 139 of the Act), or on any other Ministerial designation for that matter. The Board reasoned (and the parties herein do not dispute) that unless Local 2693 appeared on the designation, it could not engage in ICI collective bargaining for E K T's construc­tion labourers - regardless of its past practice. The Board further observed that any collective agreement affecting employees in the ICI sector other than the provincial collective agreement between the designated employer and employee bargaining agencies would be deemed to be void under section 146 of the Act which reads as follows:

146.-(1) 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.

(3) Every provincial agreement shall provide for the expiry of the agreement on the 30th day of April calculated biennially from the 30th day of April, 1978.

5. In the result, the Board dismissed Local 2693's claim for bargaining rights, on the basis that it was inconsistent with the statutory scheme and would necessarily involve an arrangement deemed by the statute to be illegal and void. The Board further found "on the merits" (and this may be particularly significant for such bargaining rights as may exist outside the ICI sector) that Local 607 had a stronger successor rights/related employer claim than Local 2693. Although the decision does not explicitly say so, it is implicit that the applications of Local 2693 were dismissed, in their entirety, and the applications of Local 607 granted.

6. What is the effect of the E K T decision? Again, this is not really disputed. The narrow result is to establish Local 607's bargaining rights for construction labourers employed by E K T, and to bring E K T and those employees into the provincial bargaining scheme which regulates the terms and conditions of employment for construction labourers employed by "ICI employers" across Ontario. The Board's decision necessarily affects only E K T. It does not purport to affect the rights of any other employees or employers, or any other bargaining relationships.

7. However, for Local 2693 the implications were ominous. If the reasoning of the Franks panel were accepted and applied to other employers in circumstances similar to E K T, a number of Local 2693's bargaining relationships might be called into question. Indeed, that ts not Just an academic concern because there is currently pending before the Board an application under section 135(2a) of the Act, brought by certain construction employers in the Thunder Bay area, seeking clarification of their bargaining obligations/collective agreements in light of the E K T decision. Section 135(2a) provides:

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).

That is why Local 2693 seeks reconsideration of the Franks panel decision, urges the Board to grant a "stay" pending that reconsideration, and, in addition, has requested the Minister of Labour to amend the designation, retrospectively, to make it clear that Carpenters Local 2693 is entitled to represent construction labourers. (Whether the Minister can or should do so we need not here determine. It suffices to say that he has referred that question to the Board pursuant to section 139(4) of the Act).

8. Local 2693 contends that the Board should give careful consideration to the fact that it has held bargaining rights for construction labourers in northwestern Ontario for many years and that those bargaining rights have, heretofore, been unchallenged. The E K T decision, although strictly speaking applying to only one company, represents a marked departure from the parties' perceptions of the preexisting legal status quo. It calls into question Local 2693's right to represent between 200 and 400 construction labourers (depending upon the level of local construction activi­ty). Given the potential consequences if the E K T reasoning is applied in other circumstances, Local 2693 argues that the Board should "stay" the result of E K T pending a full reconsideration and/or a review by the Minister pursuant to his authority under section 139 of the Act to revise the designation orders.

9. Counsel contends that it would not be conducive to orderly collective bargaining in northwestern Ontario if the Board were to follow the E K T reasoning in other cases, only to find that reasoning rejected on an application for reconsideration, or effectively reversed by a change in the ministerial designation(s). There are currently several certification applications pending before the Board in which Local 607 seeks to displace Local 2693 as the purported bargaining agent for construction labourers in the Thunder Bay area, and counsel points out that these applications would be dealt with quite differently if it were determined that Local 2693 was not an "incumbent union" with valid bargaining rights capable of being displaced. Similarly, the employers' challenge under section 135(2a) might be entirely academic and unnecessary if it were definitively deter­mined (one way or the other) that Local 2693 was not entitled to represent construction labourers. Local 2693 maintains that there is a good argument to be made that the Franks panel was wrong in law, but prefers to make that argument either before the panel hearing the reconsideration, or before the Court on an application for judicial review. Here it seeks only a "stay". E K T adds that it may be facing conflicting legal obligations and potential liability until the situation is clarified and finalized. In E K T's submission the convenience of other parties potentially affected, and of the Board itself, support a "stay".

10. Counsel for Local 607 points out that the parties agreed to have the Board determine the affiliated bargaining agent issue, and Local 2693 must now live with the result which the statute makes "final and conclusive for all purposes". There was ample opportunity during the three years this matter was before the Board for E K T or the Carpenters to approach the Minister to seek rec­tification of what is now characterized as an unfortunate omission from the designations, prejudi­cial to historic bargaining patterns in northwestern Ontario. Counsel further points out that all of the issues raised before this panel of the Board were put before the Franks panel - including the question of whether that panel should postpone the effective date of its decision until such time as Local 2693 had the opportunity to petition the Minister for a change in the designation. The Franks panel chose not to do so. Thus, we are being asked to reconsider the very argument which the Franks panel implicitly rejected.

11. Local 607 argues that there is nothing in the material before the Board to indicate that Local 2693 or E K T wish to lead any evidence which was not available by reasonable diligence during the extensive hearings, nor does Local 2693 set out any new legal submissions which were not, or could not have been, made before the original panel. The objecting parties do not contend, nor can they, that the parties did not have a full and fair hearing before the Board, and a complete opportunity to present all of their evidence and make all of their legal submissions. Accordingly, Local 607 contends, the objecting parties do not meet the standards which the Board has pre­scribed for the exercise of its discretion under 106(1) of the Act. (See: Detroit River Construction Limited, 63 CLLC ¶16,260; International Nickel Company of Canada, 63 CLLC ¶16,284; Imperial Tobacco Products (Ontario) Limited, [1974] OLRB Rep. Sept. 609; Canadian Union of General Employees, [1975] OLRB Rep. April 320; York University, [1976] OLRB Rep. April 187; (1977) 1977 CanLII 1393 (ON HCJ), 19 O.R. (2d) 226 (Divisional Court) - application for judicial review dismissed; Lorain Products (Canada) Ltd., [1978] OLRB Rep. March 262; Ontario Precast Concrete Manufacturers' Association, [19781 OLRB Rep. March 284; K-Mart Canada Limited (Peterborough), [1981] OLRB Rep. Feb. 185; The Corporation of the City of Ottawa, [1982] OLRB Rep. Nov. 1698; and, generally, G. W. Adams, Q.C. Canadian Labour Law, (1985) Canada Law Book at p. 141).

12. Local 607 concedes that the situation is fluid, but points out that it already has several certification applications pending before the Board and the rights of its members may be equally prejudiced if it is foreclosed from relying upon the E K T precedent. Employees who have opted for representation by Local 607 may find their wishes delayed and frustrated, for, in labour rela­tions, time is of the essence - especially in the construction industry. Counsel further maintains that, as a matter of law, it cannot be so foreclosed by a "stay" issued in this matter, because other parties are no more bound by a decision of this panel of the Board than they would be by the Franks decision. Finally counsel contends that this panel of the Board has no jurisdiction to, and should not, "second guess" the Franks panel. If there is to be a reconsideration of that decision, in

whole, or in part, or a "stay of its effect" that is a matter which should be canvassed before the Franks panel itself - particularly since the matter was already raised in that forum and the Franks panel decided not to accede to Local 2693's request. The Franks panel, having heard the evidence and argument on the point, would be in the best position to determine whether the additional ele­ment - the request to the Minister for a change in the designation - would prompt it to delay imple­mentation of its decision.

DECISION

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 it 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 Cedarvale 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.