International Brotherhood of Electrical Workers, Local 353 v. Delta Catalytic Industrial Services Limited, 1996 CanLII 11203

[1996] OLRB REP. MARCH/APRIL 233

1572-94-G International Brotherhood of Electrical Workers, Local 353, Applicant v. Delta Catalytic Industrial Services Limited, Responding Party v. General Presi­dent's Maintenance Committee for Canada, Intervenor #1 v. Petro-Canada, Intervenor #2

BEFORE: Jules Bloch, Vice-Chair, and Board Members F. B. Reaume and J. Redshaw.

APPEARANCES: L. A. Richmond and D. Hussey for the applicant; R. C. Filion and Tony Fanelli for the responding party; Chris G. Paliare, Nick Coleman and Steve Smillie for intervenor #1.

DECISION OF THE BOARD; April 22, 1996

1. This is a referral to the Board of a grievance filed by the International Brotherhood of Electrical Workers, Local 353 ("Local 353") against Delta Catalytic Industrial Services Limited ("Delta Catalytic") pursuant to what is now section 133 of the Labour Relations Act, 1995 ("the Act"). Local 353 filed this grievance under the terms and conditions of the collective agreement between The Electrical Trade Bargaining Agency of the Electrical Contractors Association of Ontario and The International Brotherhood of Electrical Workers and The IBEW Construction Council of Ontario representing affiliated Local Unions 105, 115, 120, 303, 353, 402, 530, 586, 773, 804, 894, 1687 and 1739 ("the Provincial Agreement").

2. Delta Catalytic performed the work pursuant to the "General Presidents' Maintenance Committee for Canada Project Agreements for Maintenance by Contract in Canada" (the "GPA"). Pursuant to the GPA there is a mechanism whereby a committee called the General Presidents' Maintenance Committee ("GPC") reviews work to decide whether the reviewed work is either maintenance work (to be done pursuant to the GPA) or construction work (to be performed under the Provincial Agreement). Under Article 7.000 of the GPA Local 353 filed a griev­ance in respect of 29 pieces of work arguing that the work was construction work as defined by the GPA. A panel of the General Presidents' Maintenance Committee, in a document entitled the "General Presidents' Maintenance Committee Grievance Panel Decision" dated July 18, 1994 decided that 27 pieces of the work in question were "maintenance" and two pieces of the work in question were "construction".

3. Delta Catalytic performed the 27 pieces of work labelled maintenance under the GPA agreement and subsequently Local 353 filed a grievance pursuant to the ICI Provincial Agreement alleging that the performance of such work was in contravention of the Provincial Agreement.

4. During the course of the first day of hearing in this matter the parties requested that the panel adjudicate a preliminary issue. At paragraph 6 of the May 12, 1995 decision this panel of the Board directed the parties to address the following questions:

6.... "Is Local 353 bound by the decision of the GPC panel or otherwise precluded, on a legal equitable or otherwise basis from raising the complaint by filing this grievance pursuant to the ICI Provincial Agreement. Further should the Board exercise its discretion by not awarding damages even if there was a breach of the ICI Provincial Agreement. Further, has Local 353 abandoned its grievance under the GPC and subsequently attempted to reinitiate it under the the Electrician's ICI Provincial Agreement."

5. The parties referred during argument to the following provisions of the Act:

133.-(1) Despite the grievance and arbitration provisions in a collective agreement or deemed to be included in a collective agreement under section 48, a party to a collective agreement between an employer or employers' organization and a trade union or council of trade unions may refer a grievance concerning the interpretation, application, administration or alleged vio­lation of the agreement, including any question as to whether a matter is arbitrable, to the Board for final and binding determination.

(2) A referral under subsection (1) may be made in writing in the prescribed form by a party at any time after delivery of the written grievance to the other party, and the Board shall appoint a date for and hold a hearing within 14 days after receipt of the referral and may appoint a labour relations officer to confer with the parties and endeavour to effect a settlement before the hear­ing.

(3) Upon a referral under subsection (1), the Board has exclusive jurisdiction to hear and deter­mine the difference or allegation raised in the grievance referred to it, including any question as to whether the matter is arbitrable, and subsections 48 (10) and (12) to (20) apply with necessary modifications to the Board and to the enforcement of the decision of the Board.

(4) The expense of proceedings under this section, in the amount fixed by the regulations, shall be jointly paid by the parties to the Board for payment into the Consolidated Revenue Fund.

162.-(2) Subject to sections 153 and 161, 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.

6. The parties also referred to the following provisions of the General Presidents' Mainte­nance Committee for Canada Project Agreements For Maintenance by Contract in Canada:

ARTICLE 1.000 - APPLICATION FOR PROJECT AGREEMENT

1 .100 Any company desiring to enter into a Project Agreement for Maintenance by Con­tract, must appear before the General Presidents' Committee (hereinafter the "Com­mittee") for purposes of review and orientation and present to the Committee written evidence of the owner's intent to engage that company in the performance of mainte­nance service for a minimum period of one full year, subject to the usual termination clauses in such contracts.

1.200 It is further understood that the Project Agreement shall not be applicable for "shut­down" or "turnaround" work except when such work is performed within the scope of full or year-round supplementary maintenance contracts. In order to implement this restriction, it is understood that on newly constructed plants or units a shutdown may occur at any time under the terms of the Project Agreement but existing plants employing this service must have been under contract for full or year-round supple­mentary Maintenance service for at least four months prior to commencement of the shutdown/turnaround or such work shall be performed under the terms of the local Construction Agreement.

1.300 Should the contract for full or year-round supplementary maintenance be terminated during the term of this Collective Agreement for any of the projects listed, this Col­lective Agreement shall be considered null and void as it applies to that project or projects.

ARTICLE 3.000 - RECOGNITION

3.200 The Company and the Unions:

3.201 Agree that the jurisdiction recognized herein for each Union shall be the jurisdiction recognized by the AFL-CIO, provided, however, that if they or the Unions are unable to agree upon the Union which is to have jurisdic­tion over any group of employees, the Company will recognize one as hav­ing jurisdiction until such time as the Claimant Unions agree upon another and provided further that work considered within the jurisdiction of any Union which is not represented by the Unions listed herein may be assigned by the Company to the jurisdiction of the most appropriate Union.

3.202 Recognize the Unions as herein duly constituted for the purpose of bar­gaining collectively and administering this Agreement for the members of their respective Unions. The responsibility for interpretation and adminis­tration of this Agreement rests in the Committee.

3.203 Agree to bargain collectively with the Unions and to be governed by the terms of this Agreement and by all lawful settlements of disputes and griev­ances made pursuant thereto. On maintenance work, the Project Agree­ment shall govern terms and conditions and take precedence over local con­struction agreements or area practices.

ARTICLE 6.000- DEFINITIONS

6.100 Maintenance shall be work performed for the repair, renovation, revamp and upkeep of property, machinery and equipment within the limits of the plant property.

6.101 Long-Term Maintenance" shall be the continuing work performed of a maintenance, repair, renovation character within the limits of the plant property exclusive of "Short-Term Maintenance" defined below.

6.102 The Company will designate the anticipated number of Long-Term Mainte­nance force job openings at the pre-job meeting and from time to time as job conditions warrant.

6.103 "Short-Term Maintenance" work means work that is terminated within 30 available days of work.

6.200 All work performed by the Company on existing equipment and machinery, including all associated work in a given plant, shall be maintenance. This shall include replace­ment of existing individual items of machinery and equipment with new units, includ­ing all associated work. It is understood that this concept would not include replace­ment of an entire process system installation in a plant in order to increase production.

6.300 Addition of spare machinery or equipment may be done under the Maintenance Agreement provided it is for debottlenecking purposes. Example: There are two existing pumps. Both pumps are required to run at all times to maintain full produc­tion. A spare may be added for the purpose of having one pump down for mainte­nance.

6.400 Changes to existing units for reasons of feed stock changes or fuel changes shall be maintenance.

6.500 The work "repair" used within the terms of this Agreement and in connection with maintenance, is work requested to restore by replacement or by revamp of parts of existing facilities to efficient operating conditions.

6.600 The word "renovation" used within the terms of this Agreement and in connection with maintenance, is work required to change by replacement or by "revamp" of parts of existing facilities to efficient operating conditions.

6.700 Fire restoration work will be administered as follows:

6.701 The restoration of a plant completely destroyed by fire is considered con­struction work.

6.702 The restoration of a major part of a plant including several sections which have been destroyed or damaged by fire, shall be governed by the following criteria:

(a) The removal of damaged equipment and the preparation of the damaged area to make it suitable for new equipment will be

Maintenance.

(b) The installation and erection of new equipment will be Construc­tion.

6.703 When the fire damage is localized to a given operating unit, such as a heater, distillation tower, compressor, pumphouse equipment and the like, then the restoration of same is to be considered Maintenance.

6.800 The administration and interpretation of this Article is the responsibility and preroga­tive of the General Presidents' Committee for Contract Maintenance in Canada.

ARTICLE 7.000 – GRIEVANCE PROCEDURE

7.100 It is agreed that it is the spirit and intent of this Agreement to adjust grievances promptly. All grievances, including discharge for just cause, but not those pertaining to jurisdictional disputes that may arise on any work covered by this Agreement, must be initiated within fifteen (15) working days of the incident by either the employee in Step I or the Local Union in Step II and shall be handled in the following manner:

7.101 Step I: Between the aggrieved employee and/or his Steward and the Com­pany supervisor.

7.102 Step II: Between the aggrieved employee, his Steward and/or Local Union Business Representative and his Foreman, the Supervisor and the Project Manager. If settlement is not achieved at this step, the grievance must be presented in writing to the Company and to the International Representa­tive of the Union involved.

7.103 Step III: Between the International Union Representative and the Labour Relations Manager or the highest official of the Company.

7.104 Step IV: By negotiation between a committee of the unions signatory to this Agreement and senior officials of the Company at a meeting to be held at the place of work or a mutually agreeable location.

7.105 Step V: If any dispute or grievance concerning the interpretation, applica­tion or violation of this Agreement cannot be settled through the procedure described above within ten (10) working days, the matter may be submitted by a Signatory Union to this Agreement or the Company, to a Board of Arbitration for adjudication. This Board shall consist of three (3) Arbitra­tors, one appointed by each party to this Agreement and the third, who shall act as Chairperson, to be selected by the two so appointed. The party desiring arbitration shall appoint its Arbitrator and shall give notice in writ­ing to the other party together with a written statement of the question to be arbitrated. In the event that the other party does not appoint its Arbitra­tor within three (3) days the appointment shall be made by the Minister of Labour for the Province in which the grievance occurs.

In the event the two Arbitrators appointed cannot within three (3) days select a third Arbitrator who is willing to serve, the two Arbitrators shall jointly request the Minister of Labour of the Province in which the griev­ance occurs to designate the third Arbitrator who shall act as Chairperson. This Board when selected or appointed will proceed as soon as practicable to examine into the dispute or grievance and on the basis of the facts, ren­der its judgement. The majority or unanimous decision of the Board of Arbitration shall be final and binding and accepted by both parties for the duration of the Agreement.

In the event that a majority decision is not reached by the Board of Arbi­tration, the decision of the Chairperson shall be deemed to be the decision of the Board and shall be final and binding and accepted by both parties for the duration of the Agreement.

The Arbitration Board shall not be authorized to make any decisions incon­sistent with the provisions of this Agreement, nor to alter, modify or amend any part of this Agreement.

In arbitration proceedings, each party shall pay the expenses of its Arbitra­tor and the expenses of the Chairperson shall be shared equally by the par­ties.

The Company shall provide the necessary facilities for the grievance meet­ings.

7.200 Grievance forms will be provided by the Company at the jobsite.

7. The Board does not regard it as necessary to recount the evidence in detail nor to set out separately the complete submissions of the parties. The Board has carefully considered the tes­timony of the witness, the parties' representations, and the relevant jurisprudence in reaching its decision.

8. The only witness in this proceeding was Steven Smillie. Mr Smillie is the Executive Director of the GPC.

9. Delta Catalytic is a company that provides supplemental plant maintenance services to industrial operations. Delta Catalytic is bound to the Provincial Agreement. A company must first be bound to the Provincial Agreement before it can be bound to the General Presidents' Agree­ment. In other words, prior to receiving the benefit of the General Presidents' Agreement, which is a project maintenance agreement, the company must be signatory to the Provincial Agreement, which is an ICI agreement.

10. The signatories to this particular General Presidents' Agreement are Delta Catalytic and twelve international building trades unions, including the International Brotherhood of Elec­trical Workers ("IBEW"). Delta Catalytic has been performing work at Petro-Canada pursuant to the terms and conditions of successive General Presidents' Agreements since 1983.

11. On November 4, 1993 the IBEW, on Local 353 letterhead, filed a grievance pursuant to the General Presidents' Agreement. This grievance was filed in respect of certain work assigned as maintenance work under the GPA by Delta Catalytic at Petro-Canada's Mississauga refinery. Local 353 asserted that the work in question was construction work and should be performed under the Provincial Agreement.

12. Pursuant to Article 7.104 of the GPA, the grievance was referred to a panel of the GPC for resolution. (A full discussion of the role of the GPC is found below.) This grievance, like all other grievances involving the characterization of work as either "maintenance" or "construction", was resolved through the dispute resolution process. At the end of the process, and through the intervention of a panel of the GPC, it was determined that 27 of the 29 work items were "mainte­nance" work and properly performed under the General Presidents' Agreement. This matter was resolved through the process on or about July 18, 1994.

13. On or about August 2, 1994 IBEW Local 353 filed a grievance under the Provincial Agreement. This grievance involves the same issues and the same work that was resolved through the GPC process pursuant to the GPA.

14. Article 6.800 of the GPA assigns the responsibility for the administration and interpre­tation of Article 6.000 to the GPC. For our purposes Article 6.000 is the portion of the GPA that deals with the dichotomy between maintenance and construction (i.e. whether the work in ques­tion will be performed pursuant to the GPA or the Provincial Agreement).

15. Mr. Smillie testified that the GPC's purpose was to negotiate and administer a multi-craft maintenance agreement. This type of agreement allowed the trades to compete for supple­mental plant maintenance work. According to Mr. Smillie, during the currency of the GPA, it is the responsibility of the GPC to administer and interpret Article 6.000. This particular grievance was processed by Mr. Smillie in his capacity as Executive Director of the GPC. Upon receipt of the grievance, Mr. Smillie initiated a Step II grievance meeting between Local 353 and the company. In this case the grievance was not resolved at Step II. Subsequently, Mr. Smillie, in accordance with the GPA, arranged a Step III grievance meeting between Mr. Bill Warchow, (an IBEW inter­national representative) and Mr. Tony Fanelle, Delta Catalytic's Labour Relations Officer. Representatives from Local 353 were in attendance at this meeting. As well Local 353 had prepared Mr. Warchow for the meeting by outlining the problem in a letter to him dated April 12, 1994. This matter was not resolved at Step III. Subsequent to the failure to arrive at a settlement at Step III, the grievance procedure proceeded to Step IV.

16. Mr. Smillie testified that Step IV of the grievance procedure, as it relates to the obliga­tions on the GPC contained in Article 6.800, involves the setting up of a committee of Interna­tional Representatives from unions not involved in the dispute. In this case Mr. Smillie assigned Mr. Gerry Bentley from the U.A. (who served as Chair of the panel), George Henry, from the Boilermakers, and Don Oshanek, from the Ironworkers, who served on the panel as members. Mr. Smillie was present throughout the Step IV process and served as note taker.

17. Step IV of the process, according to Mr. Smillie, involves a review of all the work in dis­pute by the panel. All parties are able to make submissions to the panel on each piece of work. After hearing the submissions of the parties the panel then makes a written decision which is bind­ing on all of the parties involved in the dispute. This process satisfies the Step IV requirements and brings an end to the dispute.

18. Mr. Smillie testified that in Ontario, the GPC must comply with the terms of the Act. If the work performed by Delta Catalytic at Petro-Canada was "construction" work then the Provin­cial Agreement would apply to that work. Mr. Smillie testified that the GPC was aware of the Board jurisprudence in respect of the dichotomy between "construction" and "maintenance".

19. Mr. Smillie testified that all the international unions signatory to the GPA (and their locals) understand the process under Step IV of the GPA. According to Mr. Smillie, the process involves an acceptance by all the parties involved, including the local union that initiated the griev­ance at Step II, that the decision of the panel resolves the dispute. In effect, after a decision of the panel no party can bring the disputed issues to arbitration. Mr. Smillie testified that this was the first time that any union had challenged the process. As well, he testified that Local 353 had been part of the GPA for many years. They supplied members from the hiring hall and were paid according to a Local 353 wage and benefit schedule under the GPA. Further, Local 353 had partic­ipated in the grievance process in the past and had not previously challenged the process.

20. Mr. Smillie testified that, in respect of the instant grievance, a meeting was held on July 13, 1995 with the GPA panel at the Petro-Canada Mississauga refinery site. Present for the IBEW were Mr. Warchow, Dave Hussey, Business Agent for Local 353, Steve Milne, Business Agent for Local 353 and Alan Minsky, legal counsel. Present for Delta Catalytic were Tony Fanelli, Labour Relations Officer, Gord Duggan, Project Manager and Bruno Barazza, Site Manager. Everyone was entitled to make full submissions on the work in question. Everyone went on a plant tour. After the tour the meeting reconvened so that anyone who wanted could ask questions or make further submissions. The panel decision resolving all matters in dispute was issued on July 18, 1994.

21. The parties relied on the case law cited below:

Rasanen v. Rosemount Instruments Limited (1994), 1994 CanLII 608 (ON CA), 17 O.R. (3d) 267 (Ont.

C.A.)

Canadian General Electric Company Limited, [1978] OLRB Rep. Apr. 384

Oakwood Park Lodge, [1980] OLRB Rep. Oct. 1501

McIntosh Limousine Service Ltd., (Board File No. 0755-94-U, decision

dated August 8, 1994, as yet unreported)

Valdi Inc.,[1980] OLRB Rep. Aug. 1254

Windsor Western Hospital Centre Inc. (Riverview Unit) (1986), 16 O.A.C. 1

(Ont. Div. Ct)

City of Sudbury (1965), 1965 CanLII 991 (ON LA), 15 L.A.C. 403

E.S. Fox, [1992] OLRB Rep. Jan. 29

Comstock International Ltd., [1982] OLRB Rep. June 852

Losereit Sales & Services Ltd., [1983] OLRB Rep. Apr. 569

Losereit Sales & Services Ltd., [1983] OLRB Rep. July 1090

Union Gas (1967), 1967 CanLII 1011 (ON LA), 18 L.A.C. 285

Lummus Co. Canada, [1976] OLRB Rep. Jan. 980

EPSCA, [1987] OLRB Rep. Aug. 1079

National Elevator & Escalator Association, [19911 OLRB Rep. Apr. 555

Consamar Inc., [1991] OLRB Rep. May 601

Sikora Mechanical Ltd., [1982] OLRB Rep. June 941

All-Pro Contractors, [1982] OLRB Rep. Aug. 1109

Honeywell Controls Ltd., [1983] OLRB Rep. May 641

Quinard Limited, [1982] OLRB Rep. July 1054

Fahrhall Mechanical Limited, [1982] OLRB Rep. Aug. 1174

C. E. Lummus Canada Ltd.,[1983] OLRB Rep. Oct. 1688

The Board of Education for the City of Windsor, [1988] OLRB Rep. Mar.

342

Culliton Brothers Limited, [1982] OLRB Rep. Mar. 357

Abitibi-Price Inc., [1984] OLRB Rep. Sept. 1155

Municipality of Metro Toronto, [1992] OLRB Rep. July 817

Copper Cliff Mechanical Contractors Ltd., [1987] OLRB Rep. Nov. 1357

Inscan Contractors (Ontario) Inc., [1986] OLRB Rep. May 640

Williams Contracting Ltd., [1980] OLRB Rep. July 1115

Ontario Hydro, [1986] OLRB Rep. Aug. 1137

Belyea Construction Ltd. Cushing v. Snaddon et al, (1938) 1938 CanLII 508 (AB SCAD), 3 D.L.R. 221

MacKenzie v. Moore's Taxi Co. Ltd., 1938 CanLII 270 (MB KB), [1938] 2 D.L.R. 195

Walls v. Hanson (1964), 1964 CanLII 594 (NB COCT), 49 D.L.R. (2d) 435

Ontario Human Rights Commission et al. v. Borough of Etobicoke (1983), 1982 CanLII 15 (SCC), 132 D.L.R. (3d) 14

Ontario Hydro and Ontario Hydro Employees' Union, Local 1000 et al,

(1983), 1983 CanLII 1868 (ON CA), 41 O.R. (2d) 669

Longyear Canada Inc. and International Association of Machinists, Local Lodge 2412, (1981), 1981 CanLII 4522 (ON LA), 2 L.A.C. (3d) 72

22. Delta Catalytic submitted that Local 353 initiated a grievance process, pursuant to the GPA, which culminated in an alternative dispute resolution mechanism and a final and binding res­olution to the issues in dispute. The process for deciding which work will be done pursuant to the GPA (maintenance work) and which work will be done pursuant to the Provincial Agreement (construction work or ICI work) involves a unique method of dispute resolution. This process, asserted Delta Catalytic, in light of Article 6.800 and Article 7.104 of the GPA, involved a binding mechanism for resolution of issues like this one. A panel of international union representatives is struck to review all the work in dispute, hear all submissions from all the parties, and then issue a binding resolution to the matter. Local 353 never challenged the process during the grievance pro­cedure. In fact, contended Delta Catalytic, it initiated the process and retained legal counsel. Local 353, asserted Delta Catalytic, had previously been involved in this process and had accepted the process in total. Local 353, in Delta Catalytic's view, knew of the binding nature of the process, waited until it received the decision of the panel, was unhappy with the panel's resolution and then filed for arbitration at the Board pursuant to section 126 (now section 133), hoping for a better result. Delta Catalytic relied on the principles of issue estoppel (See: Rasanen v. Rosemount, supra; Mcintosh Limousine, supra).

23. GPC, which intervened, adopted all the submissions of Delta Catalytic. Further, it asserted that this case was similar to the decision in E.S Fox Limited, supra. Local 353 initiated the dispute resolution mechanism under the GPA, received a final resolution to the dispute, and con­sequently cannot be allowed to begin a new process under the Provincial Agreement because all matters in dispute have been resolved. In respect of the issue estoppel argument, GPC also relied on Comstock, supra; and Losereit Sales and Services Ltd., supra.

24. Local 353 asserted that the GPC process under the GPA could not bar its right to arbi­tration. Local 353 asserted that it was not a party to the GPA. In its view it had no right on author­ity to launch grievances under the GPA. It was, contended Local 353, the international unions that set up this mechanism to block arbitrations, and consequently Local 353 should not be considered to be bound by a decision of a panel of the GPC.

25. In Local 353's view, the decision of the panel of the GPC was in violation of section

162(2) of the Act. This panel of the GPC, contended Local 353, had found some of the twenty-nine items of work in dispute to be maintenance work when they were clearly construction work. By permitting the performance of construction work pursuant to the GPA, asserted Local 353, the

GPC was administering a collective agreement which acts as a second Provincial Agreement in the ICI sector and consequently runs afoul of 162(2) of the Act. In Local 353's view, no one may prop­erly contract out of the Act. By allowing Delta Catalytic to perform ICI work pursuant to the GPA, the Board, in Local 353's view, would be allowing Delta Catalytic to receive the benefit of a second provincial ICI agreement. (See: Inscan Contractors, supra; Sikora Mechanical, supra; and All-Pro Contractors, supra.)

26. Further, asserted Local 353, the Board cannot apply an equitable doctrine such as estoppel against a public statute. The administration of Article 6.800, insofar as the process adopted determines ICI work to be "maintenance" work and therefore capable of performance under the GPA, cannot find the underpinnings of the doctrine of estoppel.

27. Local 353 asserted that the determination pursuant to Step IV of the grievance process was suspect because of a lack of independence of the panel. Local 353 asserted that it was in the panel's interest to place as much work as possible into the GPA. In Local 353's view, the panel did not take into account section 162(2) of the Act when making its decision and consequently its deci­sion cannot form the basis of an estoppel since the issue subject to the estoppel had not been prop­erly adjudicated upon.

Decision

28. Local 353, in accordance with Step II of Article 7.000 of the GPA, initiated the griev­ance procedure. In a letter dated April, 12 1994 from Local 353 to Mr. Warchow, the Local set the stage for Step III of the grievance procedure. A Step III meeting was held, and the matter was not settled. Both the Local and the International requested a Step IV meeting. Step IV involves the process described in paragraph 11 and paragraphs 15 through 17 above.

29. We find that, on July 13, 1994, a Step IV meeting was held with the panel at the Petro­Canada Mississauga refinery site. All present were given a full opportunity to make submissions respecting the nature of the work in question. Everyone went on the plant tour. After the tour the meeting reconvened and anyone who wanted to could ask questions or make further submissions. The panel decision resolving all matters in dispute was issued on July 18, 1994.

30. We find that Local 353 initiated the grievance process and was aware or ought to have been aware of the dispute resolution mechanism at Step II involving the GPC, found in the GPA. At no time during the submissions before the GPC panel did Local 353 raise any concerns about the make-up of the panel, the ability of the panel, or the panel's understanding of section 162(2) of the Act. Further we find that the GPC was fully aware of section 162(2) of the Act and the Board's jurisprudence pursuant to that sub-section when it rendered its decision resolving all matters in dis­pute.

31. In our view this is not a case which involves the performance of ICI work pursuant to the GPA thus allowing Delta Catalytic to receive the benefit of a "second" provincial ICI agree­ment contrary to section 162(2) of the Act. We are of this view because a determination was made by the panel of the GPC and their mandate was specifically to decide which work was in fact ICI work to be performed under the Provincial Agreement and which work was in fact "maintenance" work to be performed under the GPA. The GPA panel's resolution of the issues before it was based upon the statutory imperative found in section 162(2) of the Act.

32. The Board's decision in E.S. Fox Limited, sup ra, involves the settlement of a grievance at step three. E.S. Fox Limited was bound to the then current collective agreement between the Association of Millwrighting Contractors of Ontario Inc. and the Millwright District Council of Ontario covering the ICI sector of the construction industry. The grievance process included at step three a dispute resolution system similar to the one in this case. A committee formed of mem­bers of the trade union and a committee formed of members of the employer association met and issued a decision. The members of the association committee were, in fact, competitors of E.S. Fox Limited. The decision of the Committees resolved the grievance. The Board held that the grievance had been settled at step three and that the settlement was binding on E.S. Fox Limited. The Board at paragraph 21 said the following about the parties intent with respect to an alternative dispute resolution system:

33. In the Beckett Elevator Company case, [1983] OLRB Rep. March 309 (the reconsideration of the case we have referred to as the Beckett case) the Board after noting the statutory limita­tion set out in section 145(a) went on to say:

For the purposes of this case we need not speculate on the factual or contractual cir­cumstances which might prompt the Board to give binding effect to a body such as the J.I.C. [Joint Industry Committee], nor should our decision be interpreted as a signal that the Board is anxious to deal with problems which traditionally have been, and probably should be, resolved in another less formal forum. But we do not think that this JIC., under this agreement, in these circumstances, has given an interpretation of the parties' collective agreement which the Board must merely enforce....

The contractual circumstances in this case are quite different from those in Beckett. Beckett did not deal with "contractual circumstances which might prompt the Board to give binding effect to a body such as the JIC ...". The issue before us is whether those contractual circumstances are present here. There is no doubt given the statutory framework (see for example section 139(d) and (e), section 145, 149 [formerly section 147]) that the employer and employee bargaining agencies can negotiate into their collective agreement provisions for a JIC as they did in this case. In the circumstances of the case before us and for the reasons outlined in paragraph 15, we feel it is important to give effect to the collective agreement language. Fox participated in the Committee meeting and now seeks to resile from the settlement reached at the meeting. Signa­tories to the collective agreement, in this case the Association and the Council, have freely negotiated the current language in the collective agreement. This type of clause, providing for a joint committee, is common in the construction industry and the Board should be reluctant to interfere with a process which has been agreed to by the parties. Stability in labour relations is very important and the Board should tread lightly in making decisions which could upset an ongoing relationship. In our view, it is appropriate to enforce the decision of the Committee set­tling this matter at Step Three of the grievance procedure.

33. In our view this fact situation is similar to the fact situation presented before the Board in E.S Fox Limited, supra. One distinction is that Local 353 had an alternative to the dispute reso­lution mechanism found in the GPA, while E.S. Fox Limited did not have an alternative to the Provincial Agreement. In Inscan Contractors (Ontario) Inc., supra ,the International Association of Heat and Frost Insulators & Asbestos Workers and the International Association of Heat and Frost Insulators & Asbestos Workers, Local 95, initiated a grievance pursuant to their ICI agree­ment because Inscan Contractors (Ontario) Inc. allegedly performed ICI work pursuant to a Gen­eral Presidents' Project Agreement. The Board in that case found for the trade union. The trade union in that case decided to grieve pursuant to its ICI agreement and chose the Board as its forum to decide what work ought properly be done pursuant to the ICI agreement and what work, if any, ought properly be performed pursuant to the General Presidents' Agreement.

34. In the case before us, Local 353, by initiating the grievance pursuant to step two of the GPA, set in motion a set of events that led to the matter being resolved by the GPC. In our view it

would be patently unfair for the Board to allow Local 353 to re-litigate this issue. Once Local 353 set off on the course of its own choosing it became the author of its own destiny.

35. The Board upholds the preliminary motion of the responding party and concludes that the dispute before us has been resolved by the panel of the GPC. In that regard there is no out­standing grievance before us. This proceeding is terminated.