The United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local Union 628 v. Abitibi-Price Inc.
[1984] OLRB Rep. September 1155
0175-84-R The United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local Union 628, Applicant, v. Abitibi-Price Inc., Respondent, v. Local Union 1565 — International Brotherhood of Electrical Workers, Intervener #1, v. Canadian Paperworkers Union, Locals 67, 40, 32, 109, 90, 132, 134, 133, 239, 249, Intervener #2, v. International Association of Machinists and Aerospace Workers, Thunder Bay Lodge 1120, Intervener #3
BEFORE: N. B. Satterfield, Vice-Chairman, and Board Members J. D. Bell and H. Kobryn.
APPEARANCES: Malcolm Boyle, Georges Meservier, Mel Milbovich and Vein Astrom for the applicant; Paul S. Jarvis, Richard Dickson and J. Popeau for the respondent; William J. Moore for intervener #1; J. J. Nyman, M. Pupeza and R. Balina for intervener #2; Thomas Steele for intervener #3.
DECISION OF THE BOARD; September 19, 1984
1This is an application for certification made pursuant to the construction industry provisions of the Labour Relations Act.
2The application raises an issue, amongst others, of whether the respondent operates a business in the construction industry, and, therefore, is an employer for purposes of the construction industry provisions of the Act. The answer to that question depends on whether the work which the employees affected by the application were performing at the time it was made was work in the construction industry or, as the parties put the question, whether it was maintenance work or construction work.
3The applicant is seeking to represent all journeyman and apprentice plumbers and pipefitters employed by the respondent in the industrial, commercial and institutional (ICI) sector of the construction industry in the Province of Ontario and in all other sectors in the District of Thunder Bay. That is the construction industry bargaining unit which normally would be found to be appropriate for the applicant. Should the Board find that the respondent is not an employer for purposes of the construction industry provisions, the application would not be processed under those provisions, but could be processed under the general provisions pursuant to section 5 of the Act. Since the applicant does not wish to seek certification for a non-construction unit, however, a finding that the employer was not an employer under the construction industry provisions would dispose of the application. For that reason, the Board ruled in the hearing that it would hear evidence and representations respecting that issue and decide it first.
4During the course of the proceedings, the Mechanical Contractors Association of Ontario ("the MCAO"), through counsel, sought to be made a party to the proceedings. There being no challenge to its right to make that request, the Board heard the representations of MCAO's counsel and of all the parties. The submissions of the applicant and intervener #1 supported the MCAO's request to be made a party to the proceedings, while those of the respondent and intervener #2 opposed it. Intervener #3 did not take a position either way. The Board then reserved its decision and adjourned the proceedings. This interim decision is the Board's ruling on the issue.
5The MCAO is the employer bargaining agency designated pursuant to section 139 of the Act to represent in collective bargaining in the industrial, commercial and institutional (ICI) sector of the construction industry, all employers of journeymen and apprentice plumbers and pipefitters for whom the applicant ("Local 628") and most of its sister locals of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada ("the United Association") hold bargaining rights in the LCI sector. Its request to be made a party to the proceedings is based on its role as the employer bargaining agency for the employers of those two trades. MCAO counsel contends that the MCAO should be made a party to the proceedings on two grounds:
(1) The MCAO should have been given notice as the designated employer bargaining agency because, if a certificate should issue to the applicant, the MCAO would have a statutory obligation to represent the respondent in collective bargaining with respect to the ICI sector;
(2) the threshold issue of whether the work being performed by the employees affected by the application is maintenance work or construction work is an important issue to the MCAO and its members for which it has bargaining rights and which perform the plumbing and pipefitting work at issue.
6The MCAO is not a party which was entitled to notice of this application and of the hearing into it pursuant to any provisions of the Act or the Board's Rules of Procedure. The Board's Rules of Procedure with respect to applications for certification under the construction industry provisions require that:
(1) the respondent be served with a copy of the application and notice of it [section 91(2)(a)];
(2) any trade union named in the application or reply to it as claiming, or known to the Registrar as claiming to be the bargaining agent of or to represent any employees who may be affected by the application, be served with a copy of the application and notice of it [section 94]; and
(3) where a hearing into the application is required (as it was here), notice of the hearing be served on the applicant, the respondent, any trade union in (2) which has duly filed an intervention or intervener's application and any employee or group of employees who have duly objected to the application, or the representative of such a group of employees [section 98].
There are no objecting employees in the instant application and interventions were duly filed by each of the three interveners. It is uncontested that they hold bargaining rights by means of collective agreements with the respondent. The parties to this application, therefore, are the applicant, the respondent and the three interveners. These are the parties who are entitled to and who did receive due notice of the hearing.
7Neither the Act nor the Board's Rules of Procedure require that the Board serve notice on a designated employee bargaining agency or a designated employer bargaining agency respecting applications for certification made under the construction industry provisions of the Act. Nor has it been the Board's practice to serve notice of applications for certification on such bargaining agencies except in circumstances where section 94 of the Rules of Procedure would apply to an employee bargaining agency. Similarly, prior to provincial bargaining, an employers' association accredited by the Board to be the exclusive bargaining agent to represent a unit of construction industry employers whose employees are represented by a common trade union, became obligated by operation of statute to represent in collective bargaining any employer for whose employees that trade union acquired bargaining rights in the ICI sector. Such employers' associations were not entitled under the Act or the Rules of Procedure to notices of applications for certification. Nor was it the Board's practice to serve them with notice. That remains to be the case with accredited employers' associations in sectors other than ICI. Therefore, in order for the MCAO to be entitled to notice of and participate in these proceedings, it would have to establish that it has a legal and direct interest in them. See the Board's decision in Napev Construction Limited and Vepan Leaseholds Limited, [1976] OLRB Rep. Mar. 109, upheld on judicial review in Re Bricklayers, Masons, Independent Union of Canada, Local I and Ontario Labour Relations Board, Ont. Div. Court, 218/76, dated May 24, 1977, unreported. The question, then, is whether either of the two bases on which the MCAO seeks to be made a party to the proceedings gives it that direct, legal interest.
8In Napev and Vepan, supra, the Board was dealing, amongst other things, with an application under section 1(4) of the Act to have Napev and Vepan treated as one employer for purposes of the Act. Such applications raise issues of representation rights similar to applications for certification or for termination of bargaining rights. In the Napev and Vepan case, a trade union rival of the applicant sought to be made a party to the proceedings. It was not in a collective bargaining relationship with either Napev or Vepan and did not represent employees of either company. The trade union contended that it should be granted intervener status because a declaration by the Board that Napev and Vepan be treated as one employer would cause a third company to lose a sub-contract with Vepan. The trade union had bargaining rights for employees of the third company and those employees, members of the trade union, would lose their jobs if their employer lost its sub-contract. The Board refused to make the trade union a party to the proceedings. One of the grounds for doing so was that the trade union did not meet certain requirements which are similar to those contemplated by sections 94 and 98 of the Rules of Practice respecting notices of applications for certification and hearings into them. In so doing, the Board described the rationale behind those requirements in the following terms:
- Where attempts have been made to intervene in certification proceedings, the Board has consistently held that, in order to safeguard the rights of parties originating proceedings, and with a view to eliminating delay by parties claiming an interest, a would-be intervener must meet certain requirements. These requirements are deemed necessary in the field of industrial relations where time is indeed of the essence in order to avoid delay, multiplicity of proceedings and frustration of the purposes of the Act by parties who have no real representative status with respect to the employer and the employees involved. The Board has always required that an intervener must be either an employee in the bargaining unit to which the proceedings relate or a union holding representational authorization from one or more persons in the bargaining unit, or be the bargaining agent for employees in the bargaining unit. In the absence of these requirements, intervention has been denied.
(emphasis added)
The Board then considered whether by analogy with the following common law standard the trade union had a direct and legal interest in the proceedings so as to be made a party to them; the Board concluded not.
There is a rule at common law which states that a person who would only be commercially and incidentally injured by a judgment is not entitled to be made a party to an action on the ground of such prospective injury. (See Moser v. Marsden (1892), 1 CH. 487 at 490 (C.A.).) The plaintiff in that case was the patentee of a machine and brought an action against the defendant for using a machine which he alleged was an infringement of his patent. The foreign manufacturer of the machine applied to be added as a defendant alleging that a judgment in the action would injure him and that the defendant would not properly defend the action. The court held that the foreign manufacturer was not directly interested in the issues between the plaintiff and the defendant, but would only be indirectly or commercially affected and consequently had no right to intervene.
This case has been followed in Ontario in Westgate v. Sudbury Rand Mines Ltd., (1940) O.W.N. 258 (Master Barlow) at 259:
The law is neatly stated in Holmstead, 5th ed., p. 656 as follows:
'A person who would be commercially and incidentally, but not legally and directly, injured by a judgment being obtained against the defendant in an action, is not entitled, on the ground of such prospective injury, to be made a party to the action.'
See Moser v. Marsden, (1892) 1 Ch. 487.
9The first basis on which the MCAO is relying is that this application represents the possibility of it becoming the bargaining agency for the respondent if the Local 628 is certified to represent the respondent's plumbers and pipefitters. Until certification is a fact, the MCAO has no rights, duties or obligations respecting the respondent. There are clearly two steps to the acquisition by the MCAO of rights, duties and obligations to the respondent with the second step coming automatically on the heels of the first.
10The first step is the creation of bargaining rights for Local 628 with respect to employees of the respondent. Local 628 is an affiliated bargaining agent of the United Association and its Ontario Pipe Trades Council ("the Council") which, together, are the designated employee bargaining agency for journeymen and apprentice plumbers and pipefitters employed in the ICI sector for whom the United Association, the Council and any other local unions of the United Association which are captured by the designation order hold bargaining rights in that sector. Those locals, the United Association and the Council are also affiliated bargaining agents of the employee bargaining agency within the meaning of section 137(1) of the Act. When any one of them makes an application under section 144(1) of the Act, as this one purports to be made, that section mandates the application be brought on behalf of all affiliated bargaining agents of the employee bargaining agency. If the applicant has the requisite membership support for a certificate to be issued, section 144(2) directs the Board to certify the trade unions on whose behalf the application was brought (i.e., the affiliated bargaining agents captured by the designation order). Thus, if the Board certifies Local 628 with respect to the ICI sector, the certificate directly creates bargaining rights for the other affiliated bargaining agents respecting the respondent's employees in the ICI sector. The issuing of the certificate does not create of itself any representative rights for the MCAO respecting the respondent. While the certificate would be the triggering device for the MCAO to acquire those rights, only after the certificate were to issue would the MCAO acquire representative status respecting the respondent.
11That is the second step in the creation of the MCAO's representative status and it occurs automatically because of the operation of several sections of the Act. Upon certification, Local 628, the other affiliated bargaining agents and the respondent become bound pursuant to section 145(4) of the Act to the pipe trades provincial agreement. The respondent and Local 628 are prohibited by operation of section 146(2) of the Act from bargaining or attempting to bargain or from concluding any other agreement or arrangement with respect to Local 628's bargaining rights in the ICI sector than the provincial agreement. That section of the Act makes the provincial agreement the only lawful collective agreement for parties who are part of the provincial bargaining scheme, as are the United Association, the Council and their affiliated local unions and any employers of employees for whom they hold bargaining rights in the ICI sector. A provincial agreement by definition (clause e of section 137 of the Act) is an agreement made between an employer bargaining agency and an employee bargaining agency and, pursuant to section 147(2) of the Act is binding on those agencies, the employers and trade unions for which they bargain and the employees of the employers for whom the trade unions hold bargaining rights in the ICI sector.
12While those sections would operate together to make the MCAO the exclusive bargaining agency for the respondent if a certificate issues to Local 628 as a result of this application, the MCAO becomes the bargaining agency for the singular purpose of conducting bargaining and concluding a provincial agreement. This is clear from clause a of section 143 of the Act which provides as follows:
- Where an employer bargaining agency has been designated under section 139 or accredited under section 141 to represent a provincial unit of employers,
(a) all rights, duties and obligations under this Act of employers for which it bargains shall vest in the employer bargaining agency, but only for the purpose of conducting bargaining and concluding a provincial agreement.
The only other sections in the province-wide bargaining part of the Act which relate to the exercise of employer and employee bargaining agencies' bargaining rights are section 147(3) which makes them parties for purposes of grievance referrals under section 124, and section 151 which imposes a duty of fair representation on the bargaining agencies respecting the employers and trade unions which they represent. Sections 147(3) and 151, respectively, provide as follows:
147.-(3) Any employee bargaining agency, affiliated bargaining agent, employer bargaining agency and employer bound by a provincial agreement shall be considered to be a party for the purpose of section 124.
151 .-( 1) A designated or certified employee bargaining agency shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of the affiliated bargaining agents in the provincial unit of affiliated bargaining agents for which it bargains, whether members of the designated or certified employee bargaining agency or not and in the representation of employees, whether members of an affiliated bargaining agent or not.
(2) A designated or accredited employer bargaining agency shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employers in the provincial unit of employers for which it bargains, whether members of the designated or accredited employer bargaining agency or not.
13In order to decide whether the rights, duties and obligations which would accrue to the MCAO if a certificate issues to Local 628 would create a direct legal interest in these proceedings, it is useful to examine how the provincial bargaining scheme created by the Province-Wide Bargaining part of the Act (sections 137 through 151) operates. The provincial bargaining scheme is generally referred to as single-trade, multi-party and industry-wide bargaining. The scheme contemplates provincial units of employers represented by a designated employer bargaining agency bargaining with a building trade union represented by a designated employee bargaining agency with respect to a provincial bargaining unit of the employees of the employers in the trade represented by the union and for whom the union holds bargaining rights in the ICI sector. In the context of this application respecting the plumbing and pipefitting trades, for example, the MCAO bargains with the United Association and its Ontario Pipe Trades Council on behalf of all employers who employ plumbers and pipefitters for whom the United Association and any of its affiliated bargaining agents hold bargaining rights in the ICI sector.
14The rights, duties and obligations of an employer bargaining agency under this scheme were discussed by the Board in its decision in Beckett Elevator Company Limited, [1982] OLRB Rep. Sept. 1244, in the context of a referral of a grievance under section 124 of the Act. Beckett was represented in the provincial bargaining scheme by the National Elevator and Escalator Association ("NEEA"). Beckett was not a member of NEEA and was a member of a rival employer's association which had no bargaining status. The Board found it necessary to inquire into whether certain provisions in the provincial agreement respecting the handling of grievances constituted an extension of the employer and employee bargaining agencies' bargaining rights beyond bargaining and into the on going administration of the collective agreement. The collective agreement purported to give to a Joint Industry Committee ("JIC"), which the Board described as the alter ego of NEEA and the employee bargaining agency, the authority to make final and binding settlements of grievances under the collective agreement. The Board ultimately found that these particular provisions pre-empted arbitration, something which the bargaining agencies did not have the power to do. In the process, beginning at paragraph 14 and following a few brief comments on various studies dealing with labour
relations in the construction industry and the perceived need to stabilize collective bargaining in the industry, the Board commented in the following manner on the operation of the provincial bargaining scheme.
The Minister is given a broad authority to designate such employer or employee bargaining agencies as he sees fit in accordance with his own assessment of the requirements of the situation (which may, of course, include the representativeness of the employer association). But having endorsed the proposition that extended area bargaining is more conducive to industrial relations stability, the Legislature has also sought to protect the individual employer's authority to deal with his own employees, subject to the terms of the province-wide collective agreement. The employer's rights are vested in the designated bargaining agency only for the purpose of collective bargaining and concluding a provincial collective agreement. The day to day relationships between the employer and his employees, the administration of the collective agreement, and the application of that collective agreement to the circumstances of individual employers, are all left for resolution at the local level — subject only to the injunction that there cannot be a local arrangement inconsistent with the provincial agreement (see section 146 of the Act). Thus, while recognizing the necessity of vesting considerable authority in the employer association for the purposes of collective bargaining, the Legislature has sought to limit that authority to the conduct of bargaining. In addition, the designated bargaining agencies are both under a statutory obligation to represent their constituents in a manner that is neither arbitrary, discriminatory, nor in bad faith (see section 151).
[original emphasis]
The new province-wide bargaining scheme is an attempt to reconcile different and potentially competing concerns: the need for extended area bargaining in order to promote industrial relations efficiency; and the desire to recognize, to some degree, the autonomy of the individual employer. Both objectives are important, and it is hardly surprising that the Legislature should attempt to strike a balance between them — especially since, on the "employer side", the interests at issue may be much more diverse than on the "union side", where, by definition, all of the union locals represented by the designated employee bargaining agency must be affiliated to a common trade union parent (although even on the "union side" there is sometimes competition between locals and friction with the employee bargaining agency). The employers represented by the designated employer bargaining agency may be active competitors in the market-place, with diverse and conflicting interests, and may not even be members of the employer association with the statutory right to represent them. Thus, the Statute provides that the employer association has the right to negotiate the agreement in the first instance, there is a prohibition against local arrangements, and the employer association has access to this Board under section 124/or section 89 in order to ensure that the system is being maintained and the agreement is being uniformly administered. By the same token, however, the local union (affiliated bargaining agent) and employer have access to this Board under section 124, the Statute restricts the role of the designated bargaining agents to "conducting bargaining and concluding a provincial agreement," and there is a statutory duty of fair representation.
In the instant case, the NEEA clearly has the legal authority, by virtue of section 143 of the Act, to represent Beckett — but only in accordance with that section and, consequently, "only for the purpose of conducting bargaining and concluding a provincial agreement". Article 14 of the collective agreement, however, includes a mechanism representing the union and the NEEA — but not Beckett — which in their submission can render a decision which is final and binding upon all parties. That decision can include a definitive interpretation of the collective agreement, a finding that there has been a breach of its terms, a direction that compensation be paid, and an order as to costs. But an individual employer like Beckett is unrepresented on the decision-making body. At most, such employer can, as Beckett did in this case, make submissions that it does not feel that there has been a breach of the agreement, or that the measure of damages is not that ultimately assessed by the JIC. There are none of the procedural or legal safeguards which would be available before this Board or a board of arbitration.
We have carefully considered the submissions of the union and the NEEA, and we are not unmindful of the valuable role which the JIC was played, and can continue to play in resolving labour disputes in the elevator industry. However, in our view, the thrust and intent of the legislation is clear: a designated employer bargaining agency cannot, through the process of collective bargaining itself or otherwise extend its role beyond "the conduct of bargaining and concluding a provincial agreement". No doubt the designated bargaining agency will have an interest in the enforcement of such collective agreement, and such interest would give it status to appear in any arbitration proceeding involving that agreement. There is also a legitimate concern that the agreement be applied uniformly and not be undermined by contradictory local arrangements. Moreover, as a practical matter, if the designated employer and employee bargaining agencies are ad idem on the meaning of the terms which they have concluded, an employer bound by that agreement might be hard pressed to prove that they are wrong. JIC decisions might also provide some evidence of the parties' intentions, or, if duly incorporated by reference, may come to be terms of the contract. The parties may even find it necessary to amend the agreement during its operation to meet changing circumstances, and, subject to section 151, there is no reason why they cannot do so. However, to suggest that the designated bargaining agencies may have a role to play in interpreting the collective agreement is not to say that, through a mechanism of their own creation, they can reserve to themselves the exclusive right to determine whether the agreement has been properly applied or administered by an individual employer which is not a member of the employer association and has not delegated such authority to it...
[emphasis added]
15When the Legislature limited the role of employer bargaining agencies to that set out in section 143(a) of the Act, as the Board stated in the Beckett decision, the Legislature was striking a balance between the need for extended area bargaining as a means of promoting industrial relations efficiency in the construction industry and a desire to recognize the autonomy of the individual employer. There is nothing in the legislation which explicitly or implicitly gives an employer bargaining agency a voice in the process under which bargaining rights are established in the ICI sector of the construction industry. This is made clear by reference to section 144(1) of the Act which expressly provides that an employee bargaining agency is entitled to make an application for certification which relates to the ICI sector and is silent with respect to the role of an employer bargaining agency. That provision of the statute was the subject of two bills passed by the Legislature before section 144(1) became law in its present form. The Board is satisfied, therefore, that neither the Act nor the Rules of Procedure provide for employer bargaining agencies to be given notice of or be made parties to applications for certification.
16Even were the Board to find, nonetheless, that employer bargaining agencies like the MCAO had a direct, legal interest in applications for certification because of their role in provincial bargaining, that still would not assure them a voice in the creation of all bargaining rights which trigger for employer bargaining agencies the obligation to bargain on behalf of employers. Voluntary recognition agreements still play a significant role in the acquisition of bargaining rights by building trade unions which are parties to the provincial bargaining scheme. Section 144(4) of the Act recognizes that reality by providing the mechanism and setting the standards for voluntary recognition agreements within the provincial bargaining scheme. Bargaining rights so acquired have the same legal result as the Board's certificates. The Act, however, does not give the Board any general jurisdiction to intervene in or otherwise supervise the creation of bargaining rights by voluntary recognition, except upon an application made under section 123(2) of the Act for a declaration terminating those bargaining rights. Nor does section 144(4) of the Act provide for employer bargaining agencies to participate in the creation of those rights. Therefore, employer bargaining agencies would have no voice in affiliated bargaining agents acquiring, by voluntary recognition, bargaining rights in the ICI sector which would trigger a legal obligation for an employer bargaining agency to bargain on behalf of the employer party to the voluntary recognition agreement.
17Having regard to all of the foregoing, the Board concludes as follows with respect to the MCAO's first basis for requesting that it be made a party to these proceedings. Sections 144(1) and 144(4) read together with the definition of bargaining unit in section 1(1 )(b) of the Act make it clear that the Act contemplates that bargaining rights in the ICI sector for building trade unions covered by the provincial bargaining regime be acquired without reference, explicit or implied, to employer bargaining agencies. They are acquired by the trade union on behalf of its other affiliated bargaining agents with respect to the employees of an employer. The critical issues in any application for certification which relates to the ICI sector are whether the applicant is a trade union within the meaning of section 1(1 )(p) and an affiliated bargaining within the meaning of section 137(1 )(a) of the Act; whether the applicant and respondent are parties to which section 119 applies; whether the bargaining unit sought by the applicant is appropriate for collective bargaining; and whether the applicant has as members the requisite number of employees in the bargaining unit to be entitled to a representation vote or certification without a vote. The parties to the instant application directly affected by those issues are Local 628, the respondent and the three interveners. They are the parties of interest within the meaning of the Act and the Rules of Procedure. The MCAO's status as the potential employer bargaining agency for the respondent is not directly affected by the Board's determination of those issues, although, if their determination results in the Board issuing a certificate to Local 628 covering the ICI sector, the MCAO will become legally obligated to bargain for the respondent. That result occurs, however, not by the Board's finding that Local 628's application satisfies the requisite conditions for a certificate to issue, but incidentally by operation of statute following upon the certificate issuing. In these circumstances, the MCAO does not have a direct legal interest in the processing of the application for certification.
18The MCAO's second basis for its claim that it should be made a party to these proceedings is that the threshold issue being dealt with by the Board raises a question of whether the work being performed by the respondent's employees is construction work. Counsel for MCAO submitted that the determination of that question was a matter of important concern to the MCAO and the employers who are its members and perform that kind of work. Therefore, it should be made a party to the proceedings in order to protect its interest and those of its members. The threshold question which the Board must answer is whether the respondent operates a business in the construction industry within the meaning of clause c of section 117 of the Act. The wording of clause c invokes section 1(1 )(f) which defines construction industry to mean:
..... the businesses that are engaged in constructing, altering, decorating, repairing or demolishing buildings, structures, roads, sewers, water or gas mains, pipe lines, tunnels, bridges, canals or other works at the site thereof."
19The answer to that question may be important to the MCAO for any number of reasons, some of which may relate to the commercial interests of its members and others to the role of the MCAO as the employer bargaining agency for its members and other employers for whom it is the bargaining agency. However, until such time as the provincial agreement applies to the work, the MCAO's interest, insofar as this application is concerned, is limited to the potential application of the provincial agreement to the respondent's work. The agreement only has actual application to the work on or after the date when a certificate issues to Local 628. Even then, the MCAO's interest would arise only if a party to the provincial agreement alleged that the employer was performing the work at issue contrary to the provisions of the provincial agreement.
20If the MCAO is concerned that a determination by the Board that the work at issue was not work in the construction industry might affect its interest if a similar fact situation arose in the future, obviously the Board's determination could not be binding on the MCAO since it would not have been a party to the determination. That would apply also if the Board finds that the work is construction work, ultimately certifies Local 628 and later a similar fact situation arises in the context of a referral of a grievance under section 124 of the Act or a work assignment dispute under section 91 of the Act in which the MCAO was an intervener. Those are concerns for the precedential effects of the Board's decision. Were the Board to accept those concerns as a proper basis for granting status in its certification proceedings, almost any person might successfully claim an interest sufficient to be made a party to those proceedings. To adopt the words of the Board in Napev and Vepan, supra, that clearly would be contrary to the need ..... to avoid delay, multiplicity of proceedings and frustration of the purposes of the Act by parties who have no real representative status with respect to the employer and the employees involved.".
21The courts have rejected precedential effect as grounds for being joined as a party to proceedings before the court. See Schofield v. Minister of Consumer and Commercial Relations, 1980 CanLII 1726 (ON CA), 28 O.R. (2d) 764. In that case a solicitor was seeking to be made a party to an appeal on behalf of two clients whom he was representing in separate actions from that under appeal on the grounds that his clients had a direct interest because the outcome of their cases would be determined by the outcome of the appeal. Wilson, J.A., as she was then, speaking for the majority of the court in rejecting the solicitor's claim for status, said in part ". .., it seems to me that the fact that a decision . .. may be applied subsequently by another Court as a precedent . . . is not a sufficient interest to justify a grant of standing. . .
22The Board finds nothing in the submissions of the parties to persuade it that the MCAO or its members will be legally and directly injured or prejudiced by the Board's determination of the threshold issue of whether the respondent operates a business in the construction industry. Nor does the Board find anything in the submissions of the parties to persuade it to exercise its discretion to determine its own practice and procedure to make the MCAO a party to the proceedings. In the result, the Board is satisfied that the issue of whether the respondent operates a business in the construction industry will be fully and fairly argued by the parties to this application.
23In summary, for all of the foregoing reasons, the Board finds that the Mechanical Contractors Association of Ontario is not a party of interest within the meaning of the Act in respect of this application for certification and it is not a party with a direct, legal interest in the application. Accordingly, the MCAO is not a party to these proceedings.
24The Registrar is directed to list this matter for continuation of hearing on the earliest possible date.