International Brotherhood of Electrical Workers, Local 105 v. Kvaerner Jaddco, 1999 CanLII 19993

[1999] OLRB REP. MARCH/APRIL 238

4384-98-G International Brotherhood of Electrical Workers, Local 105, Applicant v. Kvaerner Jaddco, A Division of Kvaerner Constructors Ltd., Responding Party v. General Presidents' Maintenance Committee, Intervenor

BEFORE: Janice Johnston, Vice-Chair, and Board Members G. Pickell and A. Haward.

APPEARANCES: Stephen Wahl, J. Beattie and J. Grimshaw for the applicant; Roy Filion and Craig Mosher for the responding party; Nick Coleman for the intervenor.

DECISION OF THE BOARD; April 30, 1999

1. The applicant has referred a grievance concerning the interpretation, application, administra­tion or alleged violation of a collective agreement to the Board for final and binding determination pursuant to section 133 of the Labour Relations Act, 1995 (the "Act").

2. The applicant, the International Brotherhood of Electrical Workers, Local 105 (the "union") takes the position that the responding party, Kvaerner Jaddco, A Division of Kvaemer Construction Ltd. (the "employer" or the "company") is bound by the Principal 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 (the "Principal Agreement"). The union also asserts that the employer has failed to apply the terms and conditions of the Principal Agreement to electrical construction work performed at its #4 blast furnace project at Dofasco, Hamilton, Ontario. The employer takes the position that the work in issue is maintenance work and not construction work.

3. The union previously filed a grievance in connection with the #4 blast furnace project dated July 3, 1998. That grievance was assigned Board File No. 1495-98-G. As a result of settlement discussions which were facilitated by former Board Member Neil Fraser and Board Member George McMenemy, the parties were able to reach agreement with regard to Board File No. 1495-98-G and Board File No. 1132-95-G. Board File No. 1132-95-G dealt with a grievance in connection with the #3 blast furnace at Dofasco.

4. The union argues that the issue before us is whether or not the work which is being performed on blast furnace #4 at Dofasco, Hamilton, is construction work or maintenance work and that this issue was the same issue that was before the Board in Board File No. 1495-98-G. Counsel suggests that the issue was determined by the Board in a decision dated February 2, 1999.

5. It is common ground between the parties that as a result of the agreement of the parties with regard to Board File No. 1495-98-G and Board File No. 1132-95-G the Board issued the following decision on February 2, 1999:

1. These are two applications brought pursuant to section 133 of the Labour Relations Act, 1995 (the "Act"). The parties agree that this panel of the Board may hear the merits of both applications: Board File Nos. 1132-95-G and 1495-98-G.

2. Upon hearing the representations of both parties the Board finds as follows:

(i) Jaddco Anderson Limited is ordered to pay the International Brotherhood of Electrical Workers, Local 105, $400,000.00 forthwith, in damages in relation to the work performed on blast furnaces #3 and #4 of Dofasco which is the subject of Board File Nos. 1132-95-G and 1495-98-G.

(ii) The proceedings in these matters are hereby terminated by the Board and the hearing dates scheduled in these two matters (April 20, 21 and May 19, 20, 1999 and June 8, 9, 10 and 21, 1999) are hereby cancelled.

6. In analyzing the above decision, counsel for the union suggests that in order for the Board to have concluded that damages were to be paid, the Board must have determined that the company was bound to the Principal Agreement, that the work performed in connection with the #4 blast furnace project was construction work and therefore covered by the Principal Agreement and that the employer had violated the Principal Agreement. In counsel's view, the fact that damages were ordered by the Board is a finding that the Principal Agreement is applicable and that damages for violations of that collective agreement were ordered. Counsel for the union also suggests in view of the decision of the Board dated February 2, 1999 set out above, that the employer was required to observe the Principal Agreement with respect to any work on this project which occurred after February 2, 1999.

7. In support of his position regarding the interpretation and affect of the February 2, 1999 decision, union counsel offered to call evidence with regard to the issue that was at the heart of the first grievance. This evidence would include the discussions and events which led up to the settlement of Board File No. 1495-98-G.

8. In addition, union counsel argued that the Board ought to apply principles analogous to issue estoppel or res judicata in the circumstances before us, to prevent a re-litigation of any issues concerning whether or not the work performed on the #4 blast furnace project was maintenance work as opposed to construction work. Counsel made the point that the grievance before us deals with the same collective agreement, the same parties, the same project and the same work as the grievance which was the subject matter of Board File No. 1495-98-G. Therefore, in counsel's view, the earlier decision of the Board reflects a final and binding decision with regard to the issues raised in the grievance before us. The Board has to control its own processes and be vigilant in putting an end to repetitive litigation with regard to issues put before it. Counsel stressed that the Board has on a number of occasions determined the applicability of the doctrine of issue estoppel to prevent abuses such as the case before us represents. In support of his argument counsel referred the Board to: Losereit Sales and Services Ltd., [1983] OLRB Rep. July 1090; Montgomery Elevator Co. Limited, [1985] OLRB Rep. Dec. 1776; Ellis-Don Limited, [1992] OLRB Rep. Sept. 999; Re Royalcrest/Yorkview Lifecare and Service Employees International Union, Local 204, 75 L.A.C. (4th) 31 (S.M. Walter).

9. Counsel of behalf of the company took the position that the concepts of issue estoppel and res judicata have no bearing on the situation before us. He pointed out that in the case before us there can not be a "re-litigation" of the issues with regard to the character of the work performed on blast furnace #4 nor can it be characterized as a re-litigation of the applicability of the Principal Agreement to the work, as neither of those issues were ever litigated in the first instance. With regard to the grievance which was the subject of Board File No. 1495-98-G no evidence was ever called and no arguments or submissions were ever made as to whether or not the work was construction work or maintenance work. The parties entered into lengthy settlement discussions which culminated in a "consent order" of the Board. Accordingly, there was no final judgment ever rendered on the merits as the Board did not hear the merits. The Board's decision of February 2, 1999 merely reflected the settlement which had been reached between the parties.

10. Employer counsel pointed out that there was no finding in the February 2, 1999 decision that the employer had violated the Principal Agreement, nor was there a finding that any of the work performed on blast furnace #4 was construction work as opposed to maintenance work. Counsel stressed that at no time did the employer ever admit that the work performed on blast furnace #4 was construction work or that the Principal Agreement applied to it. Therefore, there is no basis for any finding that the issues which are before the Board in this case were decided by the Board in the previous case. Counsel also pointed out that there is nothing to indicate that the work which is the subject matter of the grievance currently before the Board, is the same as the work which was the subject matter of the earlier grievance. Accordingly, in counsel's view the doctrines of issue estoppel and res judicata have absolutely no applicability to the situation before the Board.

11. Employer counsel also pointed out that it makes labour relations sense to encourage settlement and avoid litigation. That is exactly what happened in the earlier grievance. Pursuant to that settlement, the employer did not admit any liability nor did it admit that the work which was the subject matter of the grievance was in fact covered by the Principal Agreement.

Decision

12. In the Ellis-Don case (supra) at paragraph lithe Board said the following, regarding the doctrine of res judicata:

11. Res judicata is a form of estoppel. Developed by the courts, the doctrine in its modern form is based on two broad principles of public policy:

a) that all litigation should have an end; and,

b) that no party should be forced to litigate the same matter more than once.

The doctrine of res judicata operates to preclude a party or its privies from re-litigating issues (other than through an appellate process) which have been resolved by a final judgement on the merits by a court or tribunal of competent jurisdiction. In effect, such a decision creates two forms of estoppel: cause of action estoppel and issue estoppel. The essence of such an estoppel, regardless of its form, is that a specific final determination by a court or tribunal of competent jurisdiction of a right, question or fact is conclusive evidence thereof in any subsequent proceeding between the same parties or their privies (or, if the judgement is in rem, in any subsequent proceeding) so long as the judgement stands, unless a party otherwise bound by such a previous determination can establish that there is a fact which, if proved, would entirely change the situation and could not, by the exercise of reasonable diligence, have been previously ascertained (Angle v. Minister of National Revenue, 1974 CanLII 168 (SCC), [1975] SCR 248, 47 DLR (3d) 544; Town of Grandview v. Doering, 1975 CanLII 16 (SCC), [1975] 61 DLR (3d) 455 (Supreme Court of Canada)).

12. The Board is an administrative tribunal established by the Labour Relations Act. As a creature of statute, it has only such powers as have been given it by or under the Labour Relations Act or other legislation (like, for example, the Occupational Health and Safety Act). The Board has no separate or additional inherent or equitable jurisdiction. However, the Act gives the Board a considerable discretion and latitude in dealing with matters before it. Accordingly, in carrying out its functions, the Board can and does apply both legal and labour relations considerations (Re International Union of Operating Engineers, Local 793 and Trauggott Construction Ltd., (1984) 48 OR. (2d) 127 (Div. Court)); Re Shopmans Local Union 743, International Association of Bridge, Structural and Ornamental Ironworkers (AFL:CIO:CLC) and Brayshaws Steel Ltd. et al., Re Brayshaws Steel Ltd. and United Steelworkers of America, (1972) 1971 CanLII 364 (ON CA), 26 DLR (3d) 153 (Ont. Court of Appeal)).

13. While not bound to apply the doctrine of res judicata, the Board has applied it (or a principle analogous to it) in order to ensure that, subject to its power to reconsider, its decisions are final and conclusive of the disputes or issues which the Board determines (see, among others, Canadian General Electric Company Ltd., [1978] OLRB Rep. Apr. 384 and cases cited therein; Napev Construction Limited, [1980] OLRB Rep. June 862; K-Mart Canada Limited, [1981] OLRB Rep. Apr. 185; Construction Association of Thunder Bay Inc., [1987] OLRB Rep. July 976). The Board's application of resjudicata has been approved of by the courts (Radio Shack, [1979] OLRB Rep. Mar. 248, upheld at 79 CLLC ¶14216 (Ont. Div. Court) and see also 80 CLLC 1114017 (Ont. Div. Court); Oakwood Park Lodge, [1980] OLRB Rep. Oct. 1501, application for judicial review dismissed, November 3, 1981, Ont. Div. Court, unreported).

13. After having carefully considered the submissions of counsel for the applicant, we are of the view that the doctrines of res judicata and issue estoppel have no applicability to the situation before us. With the assistance of former Board Member Neil Fraser and Board Member George McMenemy, the parties were able to reach a settlement with respect to Board File No. 1495-98-G. Pursuant to that settlement, the parties requested that the Board issue a "consent" order. The Board did so on February 2, 1999. The decision simply directs the payment of damages and the termination of the Board files. Given that the Board did not hear any evidence or submissions from the parties on the merits of the grievance in Board File No. 1495-98-G, it cannot be said that the "merits" of that case were ever litigated. Therefore, how can the situation before us pose a potential re-litigation of the issues when the issues were never initially litigated? Accordingly, we do not accept counsel for the union's argument that the doctrine of res judicata or issue estoppel has any applicability to the situation before us.

14. Counsel for the applicant also argued that by ordering damages, the Board has found that the employer was bound to the Principal Agreement, that the work was covered by the Principal Agreement and that the employer violated the Principal Agreement. With all due respect to the argument of counsel, on the face of the February 2, 1999 decision, there are no such findings. In addition, nowhere in that decision does it indicate that the employer agreed that it was bound by the Principal Agreement, or that it had violated that collective agreement or that the work at issue was covered by that collective agreement. Had the parties reached agreement on the applicability of the Principal Agreement, or that the work was covered by the Principal Agreement or that the employer violated the Principal Agreement, then it was incumbent upon them to request that the Board include such findings in the final decision. They did not do so and in fact counsel for the employer specifically denied that any such admissions had been made by the employer.

15. For a number of obvious and important policy reasons, it is not appropriate for the Board to go behind the February 2, 1999 decision. As was argued by counsel for the employer, it makes good labour relations sense to encourage settlement and to avoid litigation. There are many reasons why the parties may choose to settle a particular matter as opposed to litigating it, but one of the obvious reasons why a party would settle a case is to avoid a finding by the Board that it feels is against its interest. For example, as may have happened in the earlier situation, an employer may well agree to pay a sum of money to a union to avoid a finding by the Board that the employer is bound to a particular collective agreement or that the work which was the subject matter of a grievance is covered by a particular collective agreement.

16. Pursuant to the section 133 grievance referrals dealt with by the Board on a daily basis, it is very common for the Board to issue what are referred to as "consent orders". These brief Board decisions often contain wording that indicates that the employer acknowledges that it is bound by the applicable collective agreement, that it agrees that it has violated the applicable collective agreement and that it agrees to pay damages for the violation of the collective agreement. There is no indication in the February 2, 1999 decision that the employer ever admitted to being bound by the Principal Agreement or to have violated the Principal Agreement. In our view, it is completely inappropriate for the Board to infer, as counsel for the applicant requests us to, a finding that the employer was bound to the Principal Agreement and that the employer has admitted violating the Principal Agreement, simply because damages were ordered to be paid.

17. Counsel on behalf of the applicant has also requested that the Board hear evidence with regard to the settlement discussions that ultimately culminated in the issuance of the February 2, 1999 decision. These settlement discussions were facilitated by two Board Members. After having considered this request, we are of the view that it is neither necessary, nor is it appropriate for the Board to hear any evidence with regard to those discussions.

18. We have reached this conclusion for a couple of reasons. First of all the February 2, 1999 decision is on its face quite clear. It is not ambiguous in any way. There is no need therefore to go behind that decision. Secondly, it would not be appropriate in the circumstances to go behind that decision as to do so would set a dangerous precedent. Just as it is not appropriate for the Board to hear evidence concerning discussions which have occurred with a view to settlement involving a Labour Relations Officer, it is equally inappropriate for the Board to hear evidence concerning settlement discussions that involve Board Members. Should the Board go down this path, it could potentially undermine the settlement process in a significant way. The parties would be reluctant to enter into full and frank discussions if they felt that these discussions might ultimately be scrutinized by the Board. If the parties cannot fully and openly discuss the relevant issues in a case, they will have difficulty assessing the benefits of settling a matter rather than litigating it. Obviously, this would seriously impair the settlement process, something the Board should go to great lengths to ensure does not happen.

19. The employer and the intervenor have requested particulars of the work which is the subject matter of the grievance currently before us. In addition, the applicant has requested production of certain documents. As it now appears that this matter will go forward on its merits, the parties are directed to correspond with each other with a view to resolving these two issues. If they are unable to do so they can request the assistance of the Board.

20. Unless the parties otherwise agree, this matter will be re-listed for hearing on May 7, 1999 commencing at 9:30 a.m. in the Boardroom, 2nd floor at 505 University Avenue, Toronto, Ontario.

21. This panel of the Board is not seized of the merits of this grievance.