2172-00-G Labourers International Union of North America, Local 506, Applicant v. Marel Contractors, Responding Party v. Drywall Acoustic Lathing and Insulation Local 675, United Brotherhood of Carpenters and Joiners of America, Intervenor #1 v. Acoustical Association Ontario (AAO), Intervenor #2 v. Interior Systems Contractors Association (ISCA), Intervenor #3 v. Carpenters District Council of Ontario, United Brotherhood of Carpenters and Joiners of America, Intervenor #4 v L.I.U.N.A. Ontario Provincial District Council, Intervenor #5.
APPEARANCES: S.B.D. Wahl and A. Cornacchia for the applicant; Joseph Liberman and Ian St. John for the responding party; John Moszynski for L.I.U.N.A. Ontario Provincial District Council; N. L. Jesin and C. Rodrigues for Drywall Acoustic Lathing and Insulation Local 675; Joseph Liberman for Acoustical Association Ontario; Joseph Liberman and Bob McKean for Interior Systems Contractors Association (ISCA).
BEFORE: Inge M. Stamp, Vice-Chair.
DECISION OF THE BOARD; October 18, 2001
1This is a referral of a grievance to the Board for determination under section 133 of the Labour Relations Act, 1995 (the “Act”).
2The applicant Labourers International Union of North America, Local 506 (“Labourers Local 506”) asserts the responding party, Marel Contractors Ltd. (“Marel”) is bound to the Labourers Provincial Agreement. The applicant alleges Marel has violated the collective agreement by failing to employ its members or subcontract work to contractors in contractual relations with the applicant on its Famous Players project in Newmarket. The applicant asserts the offloading, handling, distribution and/or conveying of drywall to various jobsite stockpiles and/or to stockpiles at the point of installation, on any other specific area, is work covered by the Labourers provincial agreement or work forming part of the ICI general contract. The applicant takes the position that Marel has been subcontracted the supply and installation of all drywall building materials at the project under the ICI general contract.
3The responding party, Marel, takes the position that what is at issue here is the delivery of construction materials. Marel purchased materials from Builders Supply Company “Builders Supply”). Marel asserts it purchased the materials f.o.b. the project. The price of the material includes the placement of drywall at the job stockpile(s). Marel submits the delivery of construction materials has not been found to be work in the construction industry and therefore the provincial ICI agreement has not been violated. The responding party submits this issue has been dealt with the Board in Four Seasons Drywall, [1990] OLRB Rep. May 525. In that case the Board considered this very issue involving the same supplier and the language in article 2.05 of the ICI agreement.
4Marel submits there has been no change in the language of article 2.05 since the decision in Four Seasons Drywall, supra, in 1990.
5Marel asserts the work claimed by the applicant was not subcontracted by Marel to the Builders Supply. The contract between Marel and Builders Supply was for the supply of materials, the price of which includes delivery to the floors and/or stockpiles.
6As a preliminary issue, Marel asserts this application should be dismissed on the basis of res judicata.
7Marel further submits that parts of the work claimed by the applicant are the proper subject matter of a jurisdictional dispute. Parts of the work have never been done by the applicant’s members. The majority of the drywall supply companies are not bound to the Labourers’ agreement. Drywall companies are represented by ISCA and AAO and utilize carpenters for the installation of drywall including handling drywall materials throughout the jobsite including from stockpile to stockpile and from stockpile to point of installation.
8ISCA, AAO, Carpenters District Council, Drywall Acoustics Lathing and Insulation Local 675 and LIUNA Ontario Provincial Council filed applications seeking intervenor status in this application.
9The Carpenters assert this grievance is not arbitrable as the work claimed is not covered by the applicant’s collective agreement or in the alternative it is work claimed by Local 675 and was performed pursuant to the Carpenters’ provincial collective agreement. The Carpenters further submit that if the grievance is arbritrable it should be deferred pending the outcome of a jurisdictional dispute.
10ISCA and AAO assert the work in question is covered by the Carpenters’ provincial collective agreement, specifically the Drywall and Acoustics Appendix. Marel is bound to that agreement. The Board’s determination of this issue will directly affect the interpretation of the intervenors’ collective agreement.
11The Labourers Provincial District Council is seeking to intervene stating the interpretation of its collective agreement is in issue.
12The Board proceeded to deal with the preliminary issue raised by the responding party without determining the status of the various parties seeking to intervene in this application.
13Counsel for the responding party cited the following cases in support of its motion: Construction Association of Thunder Bay Inc., [1987] OLRB Rep. July 976; Canadian General Electric Company Limited, [1978] OLRB Rep. April 384; Ellis-Don Limited, [1992] OLRB Rep. Sept. 999; Rasanen v. Rosemount Instruments Limited, 1994 CanLII 608 (ON CA), 17 O.R. (3d) 267 Feb. 1994; Four Seasons Drywall, [1990] OLRB Rep. May 525.
14Counsel for the responding party submits the Board should find the decision in Four Seasons Drywall, supra, is a decision in rem and is binding on other parties with similar facts. Because this is a provincial collective agreement the responding party submits the Board should take a decision which is final and apply it to subsequent cases such as this case. Article 2.05 has been interpreted in Four Seasons Drywall, supra, and should be determined in the same manner in this case and should be determined as being a decision of res judicata or in rem and should therefore be dismissed.
15Counsel for the applicant submits the decision in Four Seasons Drywall, supra, is not a decision res judicata or a decision in rem. In Four Seasons Drywall, supra, the Board looked at certain work and found that delivery of drywall to the fifth floor of the building is not construction work. The work involved the use of a boom to deliver materials to the fifth floor stockpile. In that case the Board looked at paragraph 23 of the suppliers’ agreement when making its determination as to which agreement covered the work. Counsel takes the position that the Board made its decision based on the language in article 23 of the suppliers’ agreement when it found the work was not construction work. Subsequently the language in article 23 of the suppliers’ agreement has been changed.
16Counsel refers to paragraph 39 of the decision in Four Seasons Drywall, supra, where the Board states that we do not have to decide in any general or all encompassing terms whether “delivery” of material is or is not construction work.” In light of paragraph 39 counsel submits there cannot be a decision in rem. The applicant submits the Board should hear the merits of the case and apply article 2.05 of the provincial collective agreement. Counsel submits the Board was careful to say this is only a decision with respect to the delivery of drywall to the fifth floor on that particular project and for that particular contractor.
17Counsel asserts the principles referred to in the Construction Association of Thunder Bay Inc., supra, do not apply. The collective agreement language is not the same. The Board in Four Seasons Drywall, supra, did not consider or rule on the words “or work forming part of an I.C.I. General Contract”. No part of that decision deals with those words.
18Counsel submits the collective agreement provisions are not the same, the contractor is not the same and the employer and employee bargaining agencies were not parties to the decision in Four Seasons Drywall, supra.
19Counsel submits that the responding party is not only trying to rely on the earlier arbitration award but is saying the applicant is bound by it no matter what the differences are or the changes to the provisions in the suppliers’ agreement. The builders supply agreement was changed to say this work is covered by the ICI agreement.
20Counsel for the applicant relied on the following cases in support of his position with respect to the issue of res judicata and the principles of issue estoppel. Isabelle v. Ontario Public Service Employees Union, SCC , May 11, 1981; Camp Hill Hospital and Nova Scotia Nurses Union, NSSC, Dec. 15, 1989; Manitoba Food & Commercial Workers Union, Local 832 and Canada Safeway Ltd., Manitoba Court of Appeal, Jan. 22, 1981;
21In reply the responding party submits that notwithstanding the addition of the word “contractors” contractors and/or subcontractors was squarely before the Board in Four Seasons Drywall, supra. To assume the Board did not read or was not concerned with the language of the agreement in its entirety is incorrect. The issue of whether the Board will apply res judicata – counsel refers to paragraph 11 of Ellis-Don, supra, which refers to the doctrine of res judicata precluding a party or its privies from re-litigating issues where a determination has been made of a right. A decision in rem is not limited to status interpretations. This is an issue of a decision in rem and of res judicata.
22Subsequent to the hearing of this preliminary issue the applicant forwarded a copy of a Board’s decision in Ryco Alberici, [1997] OLRB Rep. Oct. 926. The responding party objected to this additional submission by the applicant in as much as final argument had been made with respect to this issue. However the responding party indicates that case is clearly distinguishable from the case before the Board.
DECISION
23The applicant’s grievance alleges the responding party has violated article 2.05 of the ICI collective agreement. That article provides for:
2.05 The Employer agrees to engage only contractors and/or subcontractors who are in contractual relations with the Union and/or its affiliated bargaining agents for all work covered by this Agreement, or work forming part of an I.C.I. General Contract except as provided in Schedule ‘D’ hereof.
24The applicant asserts the delivery of all drywall building materials to stockpiles at the Famous Players project is work covered under the ICI agreement.
25At the time the Four Seasons Drywall, supra, case was decided the language in article 2.05 was virtually identical - the only difference being that the words “contractors and/or” were added to “subcontractors”. Article 2.05 in 1990 read as follows:
2.05 The Employer agrees to engage only sub-contractors who are in contractual relations with the Union and/or its affiliated bargaining agents for all work covered by this Agreement, or work forming part of an I.C.I. General Contract, except as provided in Schedule “D” hereof.
26The preliminary issue before the Board is whether the applicant should be able to bring the instant grievance given the decision in Four Seasons Drywall, supra. As in the earlier decision Marel had a contract for the supply and installation of drywall. The same applicant, Local 506, claimed the delivery of the drywall to the stockpile in the Four Seasons Drywall, supra, grievance under article 2.05 of the ICI agreement.
27Paragraph 2 of Four Seasons Drywall, supra, describes the work the applicant at that time alleged was in violation of article 2.05 of the ICI agreement
- Four Seasons had a contract for the supply and installation of drywall and other acoustic construction material for a highrise senior citizens home in Scarborough, Ontario (“the project”). The grievance alleges that the following work performed at the project was subcontracted by Four Seasons in violation of the ICI agreement:
(1) The off-loading of drywall at the point of delivery on the
Construction site;
(2) conveying the drywall to local stockpiles, if any, on the floors of the building, or to the point of installation; and
(3) stockpiling the drywall at the local stockpiles, if any, or at the point of installation if there was no local stockpile.
The movement of drywall from stockpiles to point of application, or the movement of drywall from stockpile to stockpile is not an issue in these proceedings.
28The grievance in the instant case alleges that the offloading, handling, distribution and/or conveying of drywall building materials throughout the project to stockpiles including job area stockpiles, local stockpiles and or stockpiles at point of installation of any other specific work area is work covered by the Labourers’ provincial agreement or work forming part of the ICI general contract.
29The instant grievance involves the same applicant, the same supplier of drywall, Builders Supply, and article 2.05 of the Labourers’ provincial ICI agreement. The contractor Marel, as the contractor Four Seasons Drywall, is bound to the Labourers’ ICI agreement. That agreement is negotiated by the employer and employee bargaining agencies (EBAs).
30Paragraphs 21 through to paragraph. 24 of the Four Seasons Drywall, supra decision describe delivery of the drywall on that particular site.
Four Seasons purchased the drywall material from a supplier called Builders Supply Company ("Builders"). The terms of purchase provided that the material be delivered to the local stockpiles on each floor of the building. Title to the drywall did not pass from Builders to Four Seasons until the drywall was delivered to the local stockpiles. Risk of damage to the drywall during transportation or delivery was therefore born by Builders. Builders either had to replace damaged sheets of drywall or reimburse Four Seasons for repairing the damaged sheets of drywall.
Drywall can be delivered to designated places on a construction project either through use of a crane (generally for deliveries fifty feet up or more), a boom truck (generally for deliveries to the first three floors of a project), or manually (where drywall is unloaded and placed on the ground, or into a service elevator, or an outside hoist and then taken to the designated floor).
In this case Builders used a boom truck to raise the load of drywall to the fifth floor level of the project. On the fifth floor the load of drywall was received by employees of Builders who then stockpiled the drywall. The price of the drywall included the placement of the drywall on the different floors of the project as directed by Four Seasons.
The work which forms the basis of this grievance was performed on the project by the employees of Builders and not by the employees of Four Seasons. Builders does not have a contractual relationship with the applicant or with any of the affiliated local unions bound to the ICI agreement. Local 506 does have a collective agreement with a number of other building supply companies ("unionized suppliers") from whom the respondent does or can purchase drywall material.
31Paragraphs 31 and 32 set out the applicant’s position in the Four Seasons Drywall, supra, case.
- The Labourers further claim that the work has been subcontracted by Four Seasons to Builders insofar as Four Seasons has subcontracted the handling of construction material to Builders. The Labourers argue that the subcontracting is in violation of Article 2.05 of the ICI agreement. That article states:
2.05 The Employer agrees to engage only sub-contractors who are in contractual relations with the Union and/or its affiliated bargaining agents for all work covered by this Agreement, or work forming part of an I.C.I. General Contract, except as provided in Schedule "D" thereof.
It is asserted that Four Seasons has control of the work, chooses the drywall supplier and directs when, where and generally the manner of delivery and stockpiling of materials and that this work was improperly subcontracted to Builders in violation of Article 2.05. In so doing, counsel relied inter alia upon Dalton Engineering & Construction Ltd., [1988] OLRB Rep. June 567 and The Municipality of Metropolitan Toronto, [1989] OLRB Rep. March 279. Counsel asserted that the unloading, handling and distribution of drywall material on-site was severable from the purchase of that material. Although Four Seasons can continue to purchase material from non-unionized suppliers, it must arrange for a different method of delivering and handling or conveying that material on-site. It is asserted that part has been improperly subcontracted in this instance.
32The Labourers assert that in circumstances such as these a drywall contractor can use its own labourers to receive and stockpile the drywall on the various floors of the project when it is boomed up by the driver of the supplier's truck. Alternatively, the drywall contractor can use the general contractors' labourers to perform that work and reimburse the general contractor for the use of such labourers. Finally, it was argued that a drywall contractor such as Four Seasons can purchase drywall from a unionized supplier whereupon the employees of such unionized supplier could perform the work. It was asserted that each of these options would be in compliance with the subcontracting provisions of the ICI agreement.
Paragraphs 39 through to 43 set out the Board’s determination.
Notwithstanding counsel's submissions to the contrary, we find that we do not have to decide in any general or all encompassing terms whether "delivery" of materials is or is not construction work. Neither do we have to determine where the "delivery" of materials stops and the "handling and conveying of materials" or the "handling and distribution of all materials whatsoever into job area stock piles" begins. We do not read the cases referred to by counsel as standing categorically for the proposition that delivery of materials to a construction site is not construction work. Indeed in our view the cases indicate that whether or not "delivery" of materials is construction work is a question which can only be answered having regard to the particular facts and circumstances of the case. In our view it is neither necessary nor desirable that the Board precisely define what is "delivery" and what is "handling" or "conveying" or "distribution". An all encompassing definition of any of these terms is neither possible nor practical. Each case must turn on its own facts.
In the circumstances of this case we find that the delivery of drywall to the fifth floor of the building and the work performed by the employees of Builders in this regard is not construction work and is not work covered by the ICI agreement. On the basis of the facts and evidence before us and after consideration of the submissions of the parties we find that the work performed by the employees of Builders is work specifically covered and referred to in Article 23 of the suppliers agreement.
We agree with the respondent's submissions that Local 506 cannot have two different collective agreements covering the same construction work in the ICI sector. The evidence of the Labourers' witnesses, and their position throughout the hearing indicates that if Four Seasons had purchased from a unionized supplier, the "delivery" of the drywall to the fifth floor could have been performed by the employees of the supplier pursuant to the terms of the suppliers agreement. The reasonable inference to be drawn from that evidence and that position is that the work is not construction work and is not covered by the ICI agreement because construction work in the ICI sector must, by reason of statute, be covered by the ICI agreement. In the circumstances, we therefore conclude that the delivery and unloading of drywall by employees of a building supply company (and specifically the work performed by employees of Builders in this instance) is not construction work and does not, and was not intended to fall within the "handling", "conveying" and "distribution" of materials as referred to in Schedule E and Article 17.03 of the local union schedule for Local 506 of the ICI agreement.
As the delivery of the drywall to the local stockpiles on the fifth floor is not work covered by the ICI agreement it is unnecessary to determine whether the contract between Four Seasons and Builders in respect of that work is a subcontract. Assuming without deciding that the work was in fact subcontracted by Four Seasons to Builders, such subcontract would not be a violation of the ICI collective agreement because it is not with respect to work covered by the ICI agreement.
The grievance is dismissed.
33The Board in Four Seasons Drywall, supra, decided that the delivery of drywall to the fifth floor and the work performed by the employees of Builders Supply in those circumstances was not construction work.
34Counsel for the responding party urged the Board to apply the doctrine of res judicata to the circumstances in this application. However, as the Board has said in Oakwood Park Lodge, [1980] OLRB Rep. Oct. 1501, “…..In our view, despite the undoubted utility of the doctrine from an administrative point of view, its complexity and the need to harmonize its principles with the purposes embodied in the Act, fully justifies a cautious approach in its application.”
35The Board has also said in Construction Association of Thunder Bay Inc., supra, the Board should be cautious about an uncritical application of the doctrine of res judicata which developed in areas and contexts of law entirely different from labour relations.
36For the purpose of this decision the parties agreed to make their argument based on the materials filed in the application. The Board has reviewed the allegations of the work the applicant asserts was done in violation of the ICI collective agreement. The work described in the instant application and that in Four Seasons Drywall, supra, is virtually identical. The work claimed by the applicant is the delivery of drywall by the supplier to the various stockpiles. This decision does not deal with the distribution of drywall from the stockpile to point of installation or to any other stockpile. That work in any event does not appear to be in issue.
37Essentially this preliminary motion deals with whether there is an issue estoppel given the Board’s decision in Four Seasons Drywall, supra. The preconditions of issue estoppel were set out by Dickson J. in Angle v. Minister of National Revenue, 1974 CanLII 168 (SCC), [1975] 2 S.C.R. 248 at p. 254 as follows:
that the same question has been decided;
that the judicial decision which is said to create the estoppel was final; and
that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies…
38The question or issue is the “delivery of drywall”. The Four Seasons decision dealt with the “delivery of drywall” to the first stockpile which was coincidentally the fifth floor. The decision in Four Seasons Drywall, supra, was clearly a judicial decision which was a final decision.
39With respect to the third precondition, the parties are the same except for the responding party. The applicant is the same applicant. The supplier is the same supplier. The party that is not the same party, is the one raising this preliminary issue.
40The applicant is Local 506 in both grievances. In both grievances the supplier is Builders Supply Company, a non-union supplier of drywall. The decision in Four Seasons Drywall, supra, sets out the applicant’s position with respect to the suppliers’ agreement. In the instant case the applicant asserts that the language in the suppliers’ agreement has been changed indicating that this work (the delivery of drywall to the stockpiles) is work that is covered by the provincial agreement. This is not a persuasive argument. Delivery of construction materials is not work designated by the various designations in the ICI sector. One party cannot unilaterally change the conditions of the ICI provincial agreement by amending a non-construction agreement governing the supply of drywall materials, and then assert delivery of drywall is part of construction work.
41What was decided in Four Seasons Drywall, supra, is the delivery of drywall to the first stockpile on the jobsite, which happened to be the fifth floor. Should the Board and the parties to the ICI agreement relitigate the delivery of drywall to the first drop each time a contractor bound to the ICI agreement purchases drywall from a non-union supplier? It would appear that whether it is drywall or other construction materials the applicant asserts only suppliers bound to the applicant’s supplier agreement can supply materials to the site. This position is not supported by the decision in Four Seasons Drywall, supra.
42In the circumstances this grievance is hereby dismissed.
Inge M. Stamp”
for the Board