The Master Insulators' Association of Ontario Inc. and Misco Insulation Company Limited v. International Association of Heat and Frost Insulators and Asbestos Workers, Local 95, 1982 CanLII 1042

The Master Insulators' Association of Ontario Inc. and Misco Insulation Company Limited v. International Association of Heat and Frost Insulators and Asbestos Workers, Local 95

File No.: 0710-82-M Date: September 17, 1982 Ontario Labour Relations Board

Before: E. N. Davis, Vice-Chairman, and Board Members S. Cooke and W. Gibson.

Appearances: J. Forbes-Roberts, K. Labelle and R. Kirky for the applicant; M. Zigler and B. Mc Queen for the respondent.

DECISION OF THE BOARD; September 17, 1982

1. This is a referral of a grievance pursuant of section 124 of the Act. Misco Insulation Company Limited was bound to a provincial collective agreement with the respondent which expired April 30, 1982, and a "no Board" report was issued by the Minister on May 25, 1982. The circumstances giving rise to the grievance are alleged to have occurred on January 12, 1982, and a grievance dated July 6, 1982, was delivered to the respondent union on July 7, 1982. This referral to the Board was made on July 9. The respondent made the preliminary objection to the jurisdiction of this Board to entertain the referral and based on its objection on the grounds that the grievance itself was a nullity, and that, in any event, the collective agreement having expired, Misco is no longer a party to a collective agreement which precludes the operation of section 124 of the Act. In respect to this latter argument, the respondent relies on the reasoning expressed in the arbitration decision Milltronics Ltd., 30 LAC 393.

2. The grievance procedure included in the expired collective agreement between the parties reads as follows:

"6.01

Where a grievance, complaint or dispute arises, between an employer or employers and any employee or employees, or employ­ers and the Union, regarding the interpretation, application or administration of this Agreement, including any question as to whether a matter is arbitratable or where an allegation is made that this Agreement has been violated, such grievance, complaint or dispute shall be dealt with as described in the following paragraphs of this Article.

6.02

STEP NO. 1: By negotiations between the Union Stewards and/or the Union Business Representative and the appropriate fore­man, directly in charge of the work, acting for the Employer. If the grievance is not settled at this step, the Grievor may institute action under the O.L.R.A. Ref. Article 112A.

6.03

STEP NO. 2: "112A" - (1) Notwithstanding the grievance and arbitration provisions in the collective agreement or deemed to be included in a collective agreement under section 37, either 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 the 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 fourteen (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 grievances referred to it, including any question as to whether the matter is arbitrable, and the provisions of subsections 5a, 7, 8, 9, 10, and 11 of section 37 apply mutatis mutandis 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 1975, c. 76, s. 30."

6.04

The parties agree that any application under Section 112A must be filed with the Registrar of The Ontario Labour Relations Board within one hundred and eighty days (180 days) immediately follow­ing the date of the happening of the event giving rise to the grievance, complaint or dispute, failing which the parties agree that they will be deemed to have abandoned such grievance, complaint or dispute will be stopped from relying upon the provisions of Section 112A. In the case of a grievance, c9mplaint or dispute arising out of a continuing matter, the parties agree that they will be stopped from claiming damages for or monetary adjustment by reason of anything which happened prior to the one hundred and eighty (180) day period immediately proceeding the filing of the application under Section 112A. Section 37(Sa) of the Labour Relations Act does not apply to this Agreement."

It is noted that, apart from Article 6.04, the language is substantially a verbatim copy of what was then section 112a of the Act (now section 124).

3. Counsel for Misco argued that the arbitral principle is well established that where the events giving rise to the grievance occur within the terms of the collective agreement and where the grievance is filed within the mandatory time limits of that agreement then a Board of Arbitration is seized of the matter. Counsel referred us to the cases of Re Truck Crane Service 1973 CanLII 2053 (ON LA), 4 LAC (2d) 250; Re Hamilton Civic Hospital 30 LAC (2d) 112; and Re Corporation of the Township of Muskoka 1981 CanLII 4541 (ON LA), 1 LAC (3d) 125, and argued that the facts of the present case fall well within the reasoning expressed in those cited cases.

4. The initial question to be dealt with by the Board is not whether the grievance itself is arbitrable but whether that matter may be properly determined by this Board pursuant to section 124 of the Act. The purpose of this section is to provide a speedy and expeditious final and binding determination of contract disputes arising in the construction industry, and access to the section is available at the election of either party. The exercise of that election pre-empts any other mutually agreed upon arbitra­tion machinery existing in the collective agreement. Thus section 124(1) provides:

124.-(l) Notwithstanding the grievance and arbitration provi­sions in a collective agreement or deemed to be included in a collective agreement under section 44, 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. 1975, c. 76, s. 30, part; 1977, c. 31, s. 2.

In the instant case, the collective agreement which did exist between the parties contained a provision that adopted the process of referral of section 124 as the sole method for the final and binding determination of all contract disputes arising between them. This Board's jurisdiction however cannot be affected in this regard by the private agreement of the parties. The Board's jurisdiction flows from the statute and the Board must satisfy itself that it is acting within the authority conferred upon it by the Legislature.

5. The case of Milltronics Ltd., supra, raised a similar issue to that now before us. That case involved an application under section 37a of the Act (now section 45) made at a time subsequent to the expiry of the collective agreement but while the terms of section 70(1) of the Act (now section 79(1)) continued to be operative. Section 37a (now section 45), in language similar to that of section 124(1) accords access to the section for "a party to a collective agreement". The arbitrator concluded that at the time of the request the union was no longer "a party to a collective agreement" and therefore had no right to make the request, although it is suggested that had the arbitration provisions of the collective agreement been invoked rather than a section 37a request, the matter might well have been found to be arbitrable in that form.

6. The Board's decision in Sinclair Welding Limited, [1980] OLRB Rep. March 343 canvasses arbitral jurisprudence in respect to the right to have a contractual dispute arbitrated subsequent to the expiry of the collective agreement under which the dispute arose. In that case the Board quoted, with approval, the previous decision of the Board in Genstar Chemical Limited, [1978] OLRB Rep. Sept. 835, and determined that it should deal with the grievance arising out of an expired collective agreement. In the instant case, in our view, the grievance in which these proceedings are founded was rooted in events occurring on January 12th, 1982 at which time the collective agreement was operative and the grievance itself, while filed considerably later, was filed within the time limits provided for in that agreement. Those circumstances fall well within the reasoning of the Board of Arbitration in the case of Re Truck Crane Ltd., 1973 CanLII 2053 (ON LA), 4 L.A.C. (2d) 250, and which we adopt. That Board said, in part,

"The right to file a grievance for a breach of the collective agreement which takes place during the eleventh hour of the opera­tion of a collective agreement is not extinguished until after the expiration of any mandatory time limits referred to in the grievance procedure of the collective agreement...."

The question before us then becomes one of whether the Board is precluded from entertaining a referral to arbitration under section 124 of the Act where such referral is made after the expiry of a collective agreement. The union argued that the words "a party to a collective agreement" in the section must be interpreted to mean, in effect, "a party to an existing collective agreement".... The company argued that it, as the referring party, was a party to a collective agreement at the time at which the right claimed had crystallized or vested and was thus arbitrable by this Board in the same manner as similar matters are arbitrable before a tribunal constituted by the collective agreement itself.

7. In the Genstar case, supra, it was concluded that,

"Our conclusion is that the policy mandated by section 37 [now section 44] of the Act requires that all grievances which relate to events arising during the term of a collective agreement may be submitted to arbitration, even though the grievance is not filed until after the collective agreement has expired."

The reasoning of the Board in the Genstar case is, in our view, applicable to the case before us. In the case before us the actual filing of the grievance was subsequent to the date when the statutory "freeze" had ceased to be operative. However the critical considerations have to be that the grievance is founded in an incident occurring during the existence of the collective agreement and that it is filed within the mandatory time limits provided by that collective agreement, both of which circumstances are met in the instant case.

8. The language of section 124 must be read in the light of the general policy background of the Act. The use of the words "a party to a collective agreement" does not have to be read as meaning "a party to an agreement existing at the time of referral" as is argued by the union. To give it that restricted reading is to ignore the fact that vested rights arose under a collective agreement to which the union was a party and the purpose of the statute as outlined in Genstar, supra, is to provide for the final and binding settlement of such disputes. It is in that sense that the words must be interpreted.

9. In addition to the Milltronics arbitral award to which we are referred and dealing with similar language under section 45 of the Act, there is the unreported decision of J. D. O'Shea, Q.C. sitting as a sole arbitrator appointed under section 37a [now section 45] in which he came to an opposite conclusion than that of the Milltronics case. Mr. O'Shea in the case of St. Joseph's Health Centre (1981) was dealing with the interpretation of these words in the case of a request filed after the expiry of the collective agreement and while there was a "freeze" under the Hospital Labour Disputes Arbitration Act. He there said, in part,

"I further find that even though the collective agreement had expired before the request was made under section 37a of the Labour Relations Act, the union continued to be a "party" for the purposes of section 37a. Under Article 10 of the Hospital Labour Disputes Arbitration Act, the rights, privileges etc. which are continued in effect are continued not only for employees, but for the employer and trade union as well, until such time as the right of the trade union to represent the employees has been terminated. Since there was no evidence that the union's right to represent the employees was terminated, I find that the Union's right as a "party" under the expired collective agreement, continued, and that the Union could therefore give effect to that right by making a request for the appointment of an arbitrator under section 37a of the Labour Relations Act".

We agree with that reasoning and would not differentiate in the interpretation of the words "a party to a collective agreement" merely because the referral is not made until after the expiry of the statutory freeze. The fact is that the dispute arose out of an existing contract and it is the settlement of that dispute of which the applicant is seeking to have a final and binding settlement.

10. The Board therefore concludes that it will entertain this referral and the matter is referred to the Registrar for listing for further hearing.