1837-98-R Don Park Inc., Applicant v. Sheet Metal Workers’ International Association, Local Union No. 285, Responding Party v. Ontario Sheet Metal Workers’ & Roofers’ Conference, Intervenor.
1984-98-U Sheet Metal Workers’ International Association, Local Union No. 285, Applicant v. Don Park Inc., Responding Party v. Ontario Sheet Metal Workers’ & Roofers’ Conference, Intervenor.
2104-98-G Sheet Metal Workers’ International Association Local Union 285, Applicant v. Don Park Inc., Responding Party.
BEFORE: John Morgan Lewis, Vice-Chair, and Board Members G. Pickell and G. McMenemy.
APPEARANCES: Bernard Fishbein and Louie Petricca for Sheet Metal Workers’ International Association Local Union 285; Scott Williams and Jack Van Beurden for Don Park Inc.; Robert MacDougall, Al Budway, John Collins and Jerry Raso for the intervenor.
DECISION OF THE BOARD; February 10, 2000
1On August 25, 1998, Don Park Inc. filed an application under section 127.2 of the Labour Relations Act, 1995 (the “Act”) seeking a declaration that Sheet Metal Workers’ International Association, Local Union 285 (referred to as either the “Union” or “Local 285”) no longer represents its employees who are employed or may be employed in the construction industry. This application has been assigned Board File No. 1837-98-R.
2Local 285 filed a response to the application on September 8, 1998. Shortly thereafter, Local 285 filed an application under section 96 of the Act and a referral of a grievance to arbitration under section 133 of the Act. Both matters named Don Park Inc. as the responding party. These matters have been assigned Board File Nos. 1984-98-U and 2104-98-G, respectively.
3The Board is also in receipt of interventions filed by the Ontario Sheet Metal Workers’ & Roofers Conference with respect to Board File Nos. 1837-98-R and 1984-98-U.
4These matters were set down for hearing together. After a number of adjournments, these matters came before this panel of the Board on October 15, 1999, at which time, and upon the agreement of the parties, the Board was asked to hear and determine a preliminary motion brought by Local 285. Upon hearing argument from counsel, the Board reserved in issuing a decision. This decision only addresses the preliminary motion raised by Local 285 on October 15, 1999.
5Local 285 seeks to have the Board dismiss the section 127.2 application without a hearing for failing to make out a prima facie case for the remedy requested. Local 285 raised two arguments in support of its position:
(i) the issue of whether Don Park Inc. is a construction employer is res judicata or, alternatively, Don Park Inc. is estopped from attempting to relitigate the issue, the issue having being raised and disposed of by the Board in its decision dated September 23, 1982 in Board File No. 2521-81-R, which was an application for accreditation;
(ii) alternatively, Don Park Inc. conceded at paragraph 12 of its response to the application under section 96 that it continued to fabricate and produce construction craft work and further conceded at paragraph 18 that the striking construction workers were not terminated (nor could they be pursuant to section 1(2) of the Act) so it cannot be said that Don Park Inc. did not employ employees in the construction industry as required by section 127.2 of the Act.
6Before addressing each of these arguments in turn, it would be useful to set out some background information relating to these matters. The background information is taken from the pleadings filed by Don Park Inc. and is deemed to be accepted by Local 285 for the purposes of this decision only.
BACKGROUND INFORMATION
7The facts of this case are somewhat unique. What appears to be an industrial employer was previously found by the Board to be a construction employer as defined under the Act. Further, Don Park Inc. has employed a number of individuals who have worked under the terms and conditions of a number of successive construction collective agreements.
8Don Park Inc. was founded in 1972 by Stan Meek. It currently operates two plants, which manufacture products for residential heating, ventilation and air conditioning systems. Products are produced and sold on a wholesale basis to individual wholesalers through Don Park Inc.’s wholesale business, as well as to project trade contractors. No employees of Don Park Inc. attend at any construction sites or work at any construction job sites.
9In or around 1978, Local 285 obtained bargaining rights with respect to Don Park Inc. at its one plant located in York Mills by virtue of a voluntary recognition agreement. More particularly, Don Park Inc. became bound to a construction collective agreement covering its craft employees at the York Mills plant, which became the Residential Collective Agreement between Local 285 and the Toronto-Residential Air Handling Group (the “Construction Collective Agreement”). These employees perform custom work in the plant. Don Park Inc. also became bound to a non-construction collective agreement with Local 285 for its production employees at the York Mills plant.
10In 1981, Don Park Inc. acquired the operations of the Brunt Company located in Rexdale. The duct pipe, fittings, elbows and venting products, produced by the Brunt Company, were similar to those produced by Don Park Inc., were sold to the same class of companies and were delivered in a similar manner. Local 285 obtained bargaining rights with this facility in a similar manner as with the York Mills facility.
11In June of 1997, Don Park Inc. transferred the manufacturing operations from the Rexdale plant to the York Mills plant. Don Park Inc. currently has 9 employees employed under the Construction Collective Agreement and 110 employees under the production collective agreements.
12The Construction Collective Agreement expired on April 30, 1998. The parties to that agreement were not successful in reaching a resolution and consequently, the members of Local 285 commenced a legal strike on June 9, 1998. The strike ended on or about September 15, 1998. The craft employees, being engaged in the strike, did not attend at work. The production employees continued to attend at work during the strike and performed the work normally performed by them, including the craft work.
13As a result of the strike, Don Park Inc. experienced a downturn in its custom work. At some point Don Park Inc. determined that it would not require all of its craft employees to return to work when the strike ended. Accordingly, on or about Friday, August 21, 1998, Don Park Inc. contacted the craft employees and advised them that they should not attend at work when the strike ended. Don Park Inc.’s intention was to contact the craft employees and advise them of their status once work was available. According to Don Park Inc. the craft workers’ employment was not terminated as a result of its actions on August 21, 1998.
RES JUDICATA
14Counsel for Local 285 argued that in order to succeed with this application, Don Park Inc. must first demonstrate that it fits within the definition of a non-construction employer. If Don Park Inc. is able to do so, it then must demonstrate that it fits within the requirements of section 127.2 of the Act; namely that it did not employ any employees in the construction industry on the date of application. If Don Park Inc. cannot meet the definition of a non-construction employer, it is argued, then there is no need to proceed further to the second requirement. The res judicata or issue estoppel argument goes to this first requirement, meeting the definition of a non-construction employer.
15Section 127. 2 of the Act reads as follows:
127.2(1) This section applies with respect to a trade union that represents employees of a non-construction employer employed, or who may be employed, in the construction industry.
(2) On the application of a non-construction employer, the Board shall declare that a trade union no longer represents the employees of the non-construction employer employed in the construction industry if, on the day the application is made, the non-construction employer does not employ any such employees represented by the trade union.
(3) Upon the Board making a declaration under subsection (2), any collective agreement binding the non-construction employer and the trade union ceases to apply with respect to the non-construction employer in so far as the collective agreement applies to the construction industry.
(4) The Board may re-define the composition of a bargaining unit affected by a declaration under subsection (2) if the bargaining unit also includes employees who are not employed in the construction industry.
16A non-construction employer is defined under section 126 of the Act as follows:
“non-construction employer” means a person who is not engaged in a business in the construction industry or whose only engagement is incidental to the person’s primary business
17In 1981, Don Park Inc. was included in an application for accreditation by what was then known as the Residential Sheet Metal Contractors Organization, being the subject matter of Board File No. 2521-81-R. More particularly, Don Park Inc. was identified as being an employer of employees for whom Local 285 had bargaining rights in the residential sector of the construction industry in Board Area Number 8. In its response to the application for accreditation, Local 285 similarly identified Don Park Inc. as being an employer in the residential construction industry operating in Board Area Number 8. Don Park Inc. filed an employer filing with respect to the accreditation application. Interestingly, Don Park Inc. claimed that it was not an employer in the construction industry. Statement 2 in Don Park Inc.’s response to accreditation application is reproduced as follows:
- The employer is an employer in the construction industry.
No: Manufactures [sic] of sheet metal products
18Despite asserting that it was not an employer in the construction industry, Don Park Inc. did not contest its inclusion in the accreditation process and accordingly, it was listed in the Board’s decision dated September 23, 1982 issuing the Certificate of Accreditation. Paragraph 5 of that decision sets out the appropriate bargaining unit for accreditation:
- The applicant and the respondent agree that the appropriate unit is as follows:
All employers of employees for whom the respondent has bargaining rights in the residential sector of the construction industry in the Municipality of Metropolitan Toronto, the Regional Municipalities of Peel and York, the Towns of Oakville and Halton Hills and that portion of the Town of Milton within the geographic Township of Esquesing, and the Towns of Ajax and Pickering in the Regional Municipality of Durham.
19Pursuant to the Certificate of Accreditation, Don Park Inc. was bound and continues to be bound to the collective agreement between Local 285 and the Residential Sheet Metal Contractors Organization and its successor, the Toronto Residential and Air Handling Group.
20In this application, Local 285 argues that although Don Park Inc. was not a party to the application for accreditation, it was provided notice of the proceedings and participated in them to some degree. The determination of the Board in the accreditation process dealt with the question of whether Don Park Inc. was an employer in the construction industry. That same question is before the Board in this application and Don Park Inc. should not be entitled to relitigate the issue in these proceedings, having done so previously. While counsel for Local 285 makes a compelling argument for the Board to dismiss this application by invoking the doctrine of res judicata, the Board declines to do so for the following reasons.
21Counsel for Don Park Inc. raises a number of arguments on the issue of res judicata. I need not deal with all of the submissions of counsel but rather only that which the Board relies upon in making its determination.
22In its decision relating to the application for accreditation, the Board did not decide that Don Park Inc. did not fit within the definition of a non-construction employer, which is the specific question before the Board in this application. The Board did not address this question for the simple reason that the classification of non-construction employer did not exist in 1982. The non-construction provisions were introduced into the Act by virtue of the amendments contained in Bill 31, the Economic Development and Workplace Democracy Act, 1998. In particular, section 126 of the Act introduced the concept of being engaged in the construction industry in an incidental manner. Again, the Board in the accreditation process did not determine this issue, as it did not then exist. In order to invoke the doctrine of res judicata, the issue in dispute must have been adjudicated or the issue should have been raised by one of the parties in order to be adjudicated. It cannot be said that Don Park Inc. was somehow remiss for not raising the argument that it was a non-construction employer in the accreditation process when such a classification did not exist.
23The determination of the Board that Don Park Inc. was an employer in the construction industry is not determinative in these proceedings in light of the legislative amendments brought about by Bill 31. In the face of such legislative change, it would be inappropriate to apply the concept of res judicata. In Canadian General Electric Company Limited, [1978] OLRB Rep. Oct. 12, the Board declined to exercise its discretion to invoke res judicata in light of an amendment to section 1(3)(b) of the Act. The Board noted that in a 1954 decision the Board had held that senior cost clerks were not employees for the purposes of the Act and could not engage in collective bargaining. At the time of the 1954 decision, section 1(3)(b) of the Act excluded from the definition of “employee” managers, superintendents, persons exercising managerial functions or persons employed in a confidential capacity authority in matters relating to labour relations. Almost twenty-five years later the union attempted to once again organize senior cost clerks. During this period of time section 1(3)(b) of the Act had been amended to exclude any person who “in the opinion of the Board, exercises managerial functions or is employed in a confidential capacity in matters relating to labour relations.” Since the 1954 decision, therefore, the Act was amended to exclude two categories rather then four. In dismissing the employer’s argument that res judicata applied, the Board wrote as follows:
With respect to counsel’s argument that the statutory changes are merely changes of form, the Board is not prepared to accept that the Legislature intended to promulgate empty phrases by including “manager” and “superintendent” in the list of exclusions. This is especially true when “manager” or “superintendent” may reasonably encompass persons bearing those titles without reference to their duties. The brevity of the Board’s early decisions make it difficult to determine to what extent the Board at that time drew a distinction between the phrases.
The statutory changes to section 1(3)(b) dictate that the Board not be inextricably bound by the decisions made 24 years ago and that it look anew at the duties and responsibilities of the cost estimators and cost analysts. As an administrative tribunal, the Labour Relations Board was established to respond efficiently and with expertise to ever-changing labour-management problems. To insist on the finality of a Board decision in the face of the statutory changes would be to elevate the reliance interest of the employer beyond both proper and necessary proportions and risk sacrificing equitable treatment for this applicant and the persons it seeks to represent.
24In The Municipality of Metropolitan Toronto, [1996] OLRB Rep. 644, the Board dealt with an application for a declaration terminating bargaining rights under section 8 of the transitional provisions of the Act. The union had previously been certified to represent a bargaining unit consisting of full-time security guards. In a subsequent decision, the Board determined that a conflict of interest would arise if, at the request of the union, it were to combine the unit of security guards with another unit already represented by the union. In the section 8 application, conflict of interest was also a consideration. Section 8(3) stated:
(3) The Board shall issue the declaration unless the trade union satisfies the Board that no conflict of interest would result from the trade union continuing to represent the guards.
25The first issue the Board was asked to determine was whether the issue of a conflict of interest was res judicata in light of the Board earlier determination. At paragraph 7, the Board noted that there were exceptions to the doctrine of res judicata:
Issue estoppel is a rule of evidence. It serves to prevent a party against whom an issue has earlier been decided from calling evidence to contradict that result. As the Board noted in Canadian General Electric Company Limited, supra, pp. 389-390, the rule is not without exceptions:
Two factors that would negate the application of an otherwise successful plea of res judicata, however, would be either a material change in the law or a significant change in the facts since the original decision.
26The Board concluded that the statutory context and consequences flowing from the determination of a finding of a conflict of interest were different in the section 8 application as from the Board’s earlier determination so that it made the use of res judicata inappropriate. At paragraph 17 the Board writes:
Consequently, and while there may be some attractiveness to the notion that a “conflict is a conflict is a conflict”, the Board is conscious of the fact that the tests it applies and the conclusions to which it comes are influenced by changes in both law and context. Where such changes occur, the Board must be prepared to consider the possibility that outcomes may also change.
27Similarly, there may be some attractiveness to the notion that an employer in the construction industry for the purposes of an application for accreditation is determinative of the status of a non-construction employer under an application under section 127.2. The statutory context in which these issues are being determined, however, is sufficiently dissimilar so as to preclude the exercise of res judicata.
28Finally, if the Board were to accept the proposition put forward by the Union, it would render the changes brought about by section 127.2 of minimal effect. Taking the Unions’ argument to its logical extension, no employer who was the subject of a successful application for certification, related employer or sale of business application, could terminate bargaining rights under section 127.2 as the issue of their being a non-construction employer could not be raised. It is the Board’s view that the Legislature could not have intended such a limited scope for the application of section 127.2.
29Accordingly, the Board dismisses the Union’s first argument. We will now address the Union’s second argument.
DID DON PARK INC. EMPLOY ANY EMPLOYESS ON THE DATE OF APPLICATION
30The second argument raised by the Union addresses the second component of the inquiry under section 127.2; on the day the application is made, the non-construction employer did not employ any such employees represented by the trade union.
31Local 285 relies on two separate arguments in support of its position that the pleadings filed by Don Park Inc. do not establish that it did not employ individuals represented by Local 285 on August 23, 1998. The first argument refers to the following statements contained in paragraph 18 of Don Park Inc.’s response to the application under section 96 that the striking construction workers represented by Local 285 were not terminated as of August 23, 1998. For ease of reference, paragraph 18 of the Don Park Inc.’s response is reproduced as follows:
- Don Park Inc. states, and the fact is, that employees were not terminated on or about August 21, 1998. Rather, they were advised that they would be contacted with respect to returning to work after the conclusion of the strike. Don Park states, and the fact is, that is not an unusual occurrence when a lengthy strike occurs.
32Local 285 argues that by virtue of paragraph 18, Don Park Inc. has conceded that it had employees represented by Local 285 on the date of application and therefore cannot meet the requirements found in section 127.2 of the Act. The Union also maintains that even if Don Park Inc. had not acknowledged that the employees had not been terminated, the striking employees would be deemed to still be in the employ of Don Park Inc. by virtue of section 1(2) of the Act. Section 1(2) is set out below:
For the purposes of this Act, no person shall be deemed to have ceased to be an employee by reason only of the person’s ceasing to work for the person’s employer as the result of a lock-out or strike or by reason only of being dismissed by the person’s employer contrary to this Act or to a collective agreement.
33The second argument the Union relies upon in asserting that Don Park Inc. has not established that it did not employ individuals represented by Local 285 makes reference to the production bargaining unit represented by Local 285 at Don Park Inc. and that those employees were carrying out work normally performed by the striking construction/craft workers on the date of application. Paragraph 12 of Don Park Inc.’s response to the section 96 application reads as follows:
- During the course of the strike, the “production’ employees continued to attend at work. The ‘production’ employees have continued to perform the work normally performed by them. This included any such work which the Applicant has claimed to be “craft’ work.
34Counsel for Local 285 argues that as the production employees performing the craft work were also represented by Local 285, Don Park Inc. cannot establish that it did not employ any such employees represented by the trade union on the date of application. In support, counsel notes that the reference in section 127.2 is to employees represented by a trade union and does not refer to the specific bargaining unit.
35Counsel for Don Park Inc. raises a number of arguments in response to the position taken by Local 285. First, Don Park Inc. argues that the craft workers are not employees in the construction industry as defined under the Act. Accordingly, their employment status on the date of application is not a relevant consideration for the analysis under section 127.2. Secondly, counsel for Don Park Inc. invites the Board to interpret the term “employ” to mean actively employed on the date of application. In other words, Don Park Inc. could still bring an application under section 127.2 if it had employees in the construction industry as long as they were not actively engaged on the date of application.
36In arguing that the craft workers are employed in the construction industry, counsel for Local 285 relies upon Duffy Mechanical Contractors Limited, DuraSystems Barriers Inc., [1995] O.L.R.D. No. 150 File No. 2016-93-G (“Duffy”) in which the Board addressed this specific issue. In Duffy, the Board ruled on whether the ICI agreement covered fabrication work performed in the shop of Duffy Mechanical. In determining this issue, the Board reviewed the practice in the industry and interpreted the definition of employee in section 119 [now section 126] of the Act. The Board framed its analysis in the following manner:
As a result of the introduction of the definition of “employee” into the construction provisions of the Act in 1970, it is no longer necessary for work to be performed at the site in order for the construction industry provisions of the Act to apply. The definition of “construction industry” must now be read subject to the definition of “employee” in section 119. Thus, a question which we must determine is whether the employees who work exclusively in DuraSystems’ shop (entirely off-site) are commonly associated in their work or bargaining with on-site employees. If they are so commonly associated, they are construction employees, and the work they perform in connection with the fabrication of ductwork destined for ICI construction site is covered by the ICI agreement.
37The Board found the employees working in the fabrication plants to be construction workers. The Board noted that the industry treated fabrication plants as falling under the provisions of the ICI agreement and that historically, employees in the fabrication plants participated in strikes in the ICI sector without challenge from any of the respective employers or the Employer Bargaining Agency. At paragraph 21 the Board writes:
The definition of “employee” for the purposes of the construction industry provisions of the Act includes an employee engaged entirely in off-site work provided such employee is commonly associated in (work or) bargaining with on-site employees. In our view, the evidence before us establishes that employees engaged in the shop fabrication of ductwork are commonly associated in bargaining with the on-site employees who install the ductwork. Both groups of employees have been consistently considered by the parties to the ICI agreement to be covered by its terms. When a strike under the ICI agreement occurs, both groups of employees, without challenge by any party to the agreement, go out on strike. As the decision in Hamilton and District Sheet Metal Contractors Inc. indicates, in 1972 this Board accredited an employer’s organization to represent employers who employ sheet metal workers who engage in on-site work and work in sheet metal shops. Hence, there has been a long-standing practice in the sheet metal industry for employees who fabricate ductwork off-site in fabrication shops to be associated in bargaining with on-site employees. On this basis, it is our determination that the employees of DuraSystems are construction employees and, when they engage in the fabrication of ductwork destined for an ICI job site, their work is covered by the ICI agreement.
38The Board adopts the analysis of the Board in Duffy and finds that the craft workers employed by Don Park Inc. are employees in the construction industry. As was the case in Duffy, the craft workers employed by Don Park Inc. were covered by the terms of successive construction collective agreements, which is the norm in the industry. Further, the craft workers participated in the construction strike during the summer of 1998 without challenge from Don Park Inc. In these circumstances, the craft workers employed by Don Park Inc. fit within the definition of employee articulated in section 126 of the Act, as they are commonly associated in bargaining with on-site employees.
39The Board now turns to the proposition that the term “employ” should be interpreted as meaning actively engaged at work on the date of application. Counsel suggests that this interpretation should be adopted in order to give meaning to the phrase “employed or who may be employed” found in section 127.2(1). Counsel argues that “employed” must mean something different than “may be employed” which would capture those employees not actively working such as those on strike or on disability benefits.
40The Board does not agree. The reference to “who may be employed” in section 127.2(1) is a reference to the use of hiring halls by trade unions in the construction industry. Those “who may be employed” are not those employees on strike or on disability, but rather those union members who would secure employment with Don Park Inc. through the union hiring hall. Accordingly, there is no need to read in the words “actively engaged at work” in section 127.2(2).
41The Board is not unmindful that historically it has focused on active employment on the date of application with respect to applications for certification and termination in the construction industry. See Ken Anderson Electric Inc., [1996] OLRB Rep. Sept./Oct. 846 for a summary of the Board’s jurisprudence in this regard. The rationale for focusing on active employment on the date of application, and in contrast to similar applications in other sectors, is in recognition of the transient nature of the construction industry and the difficulty in determining who are the employees of the employer for the purposes of ascertaining whether they wish to be represented by a trade union for collective bargaining.
42The purpose of section 127.2, however, is to allow an employer not engaged in the construction industry and who does not employ construction employees on the date of application to rid itself of the terms and conditions of a collective agreement applicable in the construction industry. The same considerations for imposing an active employment standard are not present in this type of application, as the wishes of the employees are simply not relevant. The requirement to measure the preference of employees with respect to collective bargaining is nowhere to be found in the non-construction employer provisions of the Act. Hence, there is no corresponding need to address the transient nature of their employment relationship by focusing on active employment on the date of application.
43Upon considering the submissions of counsel, the Board finds that the striking craft workers are employees in the construction industry and were employed by Don Park Inc. on the date of application in accordance with section 1(2) of the Act or by virtue of the representations made by Don Park Inc. Accordingly, the Board finds in favour of the Union’s motion and dismisses the application under section 127.2 for failing to make out a prima facie case that Don Park Inc. did not employ individuals represented by Local 285 on the date of application. Having ruled in favour of the Union on these grounds, the Board declines to rule on the issue of production workers performing craft work on the date of application.
44Having dismissed Board File No. 1837-98-R, there remains the section 96 complaint (Board File No. 1984-98-U) and the grievance referral (Board File No. 2104-98-G). The Manager of Field Services is directed to appoint a Labour Relations Officer to meet with the parties in an attempt to mediate any remaining unresolved issues.
“John Morgan Lewis”
for the Board