Ontario Labour Relations Board
[1980] OLRB Rep. March 352
1880-79-M International Association of Heat and Frost Insulators and Asbestos Workers, Local 95, Applicant, v. Per-fec-tion Insulations Limited, and R. N. Flynn Insulations Limited, Respondents.
BEFORE: Rory F. Egan, Vice-Chairman, and Board Members E. C. Went and S. H. Lewis.
APPEARANCES: S. B. D. Wahl and L. Duffy for the applicant; R. A. Werry for the respondents.
DECISION OF THE BOARD; March 17, 1980
The applicant has referred a grievance to arbitration under section 112a of The Labour Relations Act.
The applicant alleges that the respondents are in breach of the provisions of a collective agreement effective from May 14, 1979 until April 30, 1980 made between The Master Insulators' Association of Ontario, Incorporated and International Association of Heat and Frost Insulators and Asbestos Workers Local 95.
The grievance alleges, inter alia, that the respondents failed or refused to: employ persons who are members in good standing of the union and to hire persons through the union office.
The respondents submitted at the commencement of the hearing that The Master Insulators' Association of Ontario, Incorporated ought to be given notice of these proceedings as an interested party. The respondents further argued that the employees hired by the respondents ought to receive notice since their employment might be jeopardized as a result of the arbitration.
The applicant submitted at the hearing that the collective agreement applicable to the situation is one dated May 1, 1975, which incorporates the terms of an agreement between the International Association of Heat and Frost Insulators and Asbestos Workers, Local 95 and The Master Insulators' Association of Ontario, Incorporated. As a consequence, it was submitted, The Master Insulators' Association of Ontario, Incorporated is not a party to the collective agreement under which the grievance is filed.
It is a matter of record that on April 28, 1978 the Minister designated The Master Insulators' Association of Ontario, Incorporated as the employer bargaining agency to represent in bargaining all employers whose employees are represented by, inter alia, International Association of Heat and Frost Insulators and Asbestos Workers, Local 95. On the same date the Minister designated International Association of Heat and Frost Insulators and Asbestos Workers, Local 95 as the employee bargaining agency to represent in bargaining all journeymen and apprentice insulators and asbestos workers represented by, inter alia, International Association of Heat and Frost Insulators and Asbestos Workers, Local 95.
In Board File No. 1945-79-R the Board found in a decision dated November 1, 1979, that the respondents, who were the same as these named herein, were bound by a collective agreement covering the Province of Ontario between International Association of Heat and Frost Insulators and Asbestos Workers, Local 95, the applicant herein, and The Master Insulators' Association of Ontario, Incorporated. That agreement was effective from July 7, 1975 to April 30, 1979. A like agreement effective from May 14, 1978 to April 30, 1980 was filed at this hearing by the applicant, reference to which was made earlier in this decision.
On the basis of the foregoing and the Board's decision of November 1, 1979 referred to above, the parties hereto are bound by the collective agreement between Local 95 and The Master Insulators' Association, effective May 14, 1978 to April 30, 1980.
Furthermore, in the Reply to the application the respondents raise a question as to whether the work in question is covered by the collective agreement. That broad matter being in issue, the Board finds that in any event The Master Insulators' Association of Ontario, Incorporated is an interested party which ought to be given notice of these proceedings.
It is also apparent that certain employees named in the Reply are liable to be adversely affected by the decision made on the arbitration. The applicant opposed the submission of the respondent that the employees of the respondent be given notice of these proceedings on the grounds that the dispute lies directly between the applicant and the respondent and that the interests of the employees would only be incidentally affected by the arbitration decision. The applicant referred to the decision of the Board in Napev Construction Limited, [1976] OLRB Rep. March 109 in support of its submission. The foregoing decision, however, dealt with the case of an attempt by a union representing employees of a sub-contractor to be added as a party to proceedings between the general contractor and a union representing the latter's employees. The Board refused to add the bargaining agent for the employees of the subcontractor on the basis of the rule of common law that a person who would only be commercially or incidentally affected by a decision is not entitled to be added as a party.
In the present instance, however, the employees of the respondent are liable to be directly and adversely affected by the result of the arbitration. Their interest is personal and immediate. The applicant union is entirely adverse in interest to the employees so that the employees would be left without representation in a situation where their jobs are in jeopardy if the union's position is upheld.
In J. A. Wotherspoon & Son Ltd. and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America Local 1256, (1972), 1972 CanLII 608 (ON HCJ), 25 D.L.R. (3d) 70 the Court in dealing with the question of failure to give notice to any person whose rights may be affected stated:
Failure to give notice to a party does not necessarily constitute a lack of jurisdiction invalidating the whole award but it does render the award null and void ab initio against any worker whose past or future rights might be affected by the award and who has not had proper notice. One might very well say that an arbitrator has no jurisdiction to make the award binding against any such person...
The right of an employee not otherwise a party to an arbitration to receive notice of the proceedings if his job or his employment status is in jeopardy is similarly upheld in Hoogendorn and Greening Metal Products and Screening Equipment Co. et al., (1967), 1967 CanLII 20 (SCC), 65 D.L.R. (2d) 641 and Re Bradley et al. and Ottawa Professional Fire Fighters, (1967), 1967 CanLII 160 (ON CA), 63 D.L.R. (2d) 376.
In light of the foregoing the Board finds that notice of these proceedings ought to be given to the employees of the respondent involved in the work in question.
The Board accordingly directs the Registrar to ascertain from the respondent the names of the employees concerned and to serve notice of these proceedings on those employees.