[1981] OLRB Rep. November 1575

0774-81-R Sheet Metal Workers' International Association Local Union #285, Applicant, v. Diversified Sheet Metal Limited, Respondent, v. Group of Employees, Objector

BEFORE: D. E. Franks, Vice-Chairman, and Board Members M. Eayrs and D. B. Archer.

APPEARANCES: S. B. D. Wahl and I. Kurchak for the applicant; I. P. Wearing and R. Hazell for the respondent; Stephen McGowan and Martin Schoblocher for the group of employees.

DECISION OF THE BOARD; November 18, 1981

1. By decision dated August 21, 1981, the Board listed this matter for continuation of hearing. By that decision the Board directed that the designated employer bargaining agency and the designated employee bargaining agency for sheet metal workers be given notice of the continuation of hearing, and set out certain problems which the Board saw with respect to section 143 of the Act. Notice of hearing was given to these agencies, however, it appears that they chose not to avail themselves of the opportunity to make representations concerning the matters at issue in the present case.

2. As the Board's decision of August 21st pointed out, the employees affected by this application are employed on two separate projects, one of which would appear to fall in the residential sector of the construction industry, and one which clearly falls within the industrial, commercial and institutional sector of the construction industry. That decision also pointed out that the applicant in the present case, Sheet Metal Workers' International Association Local Union #285 is not a party to the employee bargaining agency designated by the Minister under the Act, nor is it signatory to the provincial agreement affecting sheet metal workers.

3. It appears that the relevant facts in the present matter are not in dispute. The applicant local was chartered on October 10, 1957, and such charter does not contain any limitation on the activity of that local. That is, since that date it has apparently represented sheet metal workers in all sectors of the construction industry in the ordinary course of its operations. Indeed, at the hearing it was suggested that some 40 per cent of its membership work involved work in the industrial, commercial and institutional sector during any particular year, and that some 30 per cent consistently worked on industrial, commercial and institutional projects.

4. The designation for the employee bargaining agency relating to sheet metal workers reads as follows:

"Pursuant to clause a of subsection 1 of section 127 of the Labour Relations Act, R.S.O. 1970, c. 232, as amended, I hereby designate the Sheet Metal Workers' International Association and The Ontario Sheet Metal Workers' Conference consisting of Locals 30, 47, 235, 392, 397, 473, 504, 537, 539, 562 and 629 of the Sheet Metal Workers' International Association as the employee bargaining agency to represent in bargaining all Journeymen and Apprentice sheet metal workers, sheeters, sheeters' assistants and material handlers represented by the following affiliated bargaining agents:

1. The Sheet Metal Workers' International Association and The Ontario Sheet Metal Workers' Conference; or

2. The following Local Unions: 30, 47, 235, 392, 397, 473, 504, 537,

539, 562 and 629; or

3. any other Local of the Sheet Metal Workers' International Association which in the future may be chartered to represent Journeymen and Apprentice sheet metal workers, sheeters, sheeters' assistants and material handlers, (which Conference and Unions are hereinafter collectively referred to as "the Unions"), in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario, and without limiting the generality of the foregoing, to represent in bargaining as aforesaid all employees bound by or parties to:

(a) certificates of the Ontario Labour Relations Board granted to the Unions or any of them;

(b) voluntary recognition agreements with the Unions or any of them;

(c) collective agreements to which the Unions or any of them have been or are party to or bound by, covering the industrial, commercial and institutional sector of the construction industry in the Province of Ontario.~~

It is of course obvious from the above designation that Local 285 is not one of the locals listed as part of the Ontario Sheet Metal Workers' Conference nor is it a local outlined in paragraph 2 as one of the listed affiliated bargaining agents on whose behalf the designated agency is entitled to bargain.

5. The above designation was made by the Minister of Labour pursuant to section 139(l)(a) (then 127(l)(a)) whereby the Minister designated "employee bargaining agencies to represent in bargaining provincial units of affiliated bargaining agents, and describe[d] those provincial units". The provisions of the Act relating to province-wide bargaining only apply to bargaining activity in the industrial, commercial and institutional sector of the construction industry. This is clear from the definition of "bargaining" and "provincial agreement" which refer to section 117(e). These definitions are as follows:

"137.-(1) In this section and in sections 138 to 151,

(b) "bargaining", except when used in reference to an affiliated bargaining agent, means province-wide, multi-employer bargaining in the industrial, commercial and institutional sector of the construction industry referred to in clause 117(e);

(e) "provincial agreement" means an agreement in writing covering the whole of the Province of Ontario between a designated or accredited employer bargaining agency that represents employers, on the one hand, and a designated or certified employee bargaining agency that represents affiliated bargaining agents, on the other hand, containing provisions respecting terms or conditions of employment or the rights, privileges or duties of the employer bargaining agency, the employers represented by the employer bargaining agency and for whose employees the affiliated bargaining agents hold bargaining rights, the affiliated bargaining agents represented by the employee bargaining agency, or the employees represented by the affiliated bargaining agents and employed in the industrial, commercial and institutional sector of the construction industry referred to in clause 117(e)."

6. The consolidation of bargaining which is provided for in the Act deals with bargaining by "affiliated bargaining agents". These are defined in section 137(1)(a):

"affiliated bargaining agent" means a bargaining agent that, according to established trade union practice in the construction industry, represents employees who commonly bargain separately and apart from other employees and is subordinate or directly related to, or is, a provincial, national or international trade union, and includes an employee bargaining agency.

On the facts of the present case, Local 285 is, according to established trade union practice in the construction industry a union that represents employees which commonly bargains separately and apart from these employees (i.e. it is a construction craft union) and it is subordinate to the Sheet Metal Workers' International Association since it was chartered by that International Trade Union. It is thus clear that the applicant, Local 285 falls within the definition of "affiliated bargaining agent" as defined by section 137(I)(a).

7. Although the local is not included in the designation, that fact does not exempt the local from the strictures of section 146(2) and section 145(1) which read as follows:

"146.-(2) On and after the 30th day of April, 1978 and subject to sections 139 and 145, no person, employee, trade union, council of trade unions, affiliated bargaining agent, employee bargaining agency, employer, employers' organization, group of employers' organizations or employer bargaining agency shall bargain for, attempt to bargain for, or conclude any collective agreement or other arrangement affecting employees represented by affiliated bargaining agents other than a provincial agreement as contemplated by subsection (1), and any collective agreement or other arrangement that does not comply with subsection (1) is null and void."

(emphasis added)

"145.-(l) Subject to subsection (2), any collective agreement in operation on the 27th day of October, 1977 in respect of employees employed in the industrial, commercial and institutional sector of the construction industry referred to in clause 117(e) and represented by affiliated bargaining agents is enforceable by and binding on the parties thereto only for the remainder of the term of operation of the agreement, regardless of any provision respecting its renewal."

(emphasis added)

These sections clearly apply to employees represented by affiliated bargaining agents and employed in the industrial, commercial and institutional sector of the construction industry.

8. The problem which arises in the present case is the application of section 144 to the present application for certification. Section 144(1), (3) and (5) which deal with applications for certification read as follows:

"144.-(l) An application for certification as bargaining agent which relates to the industrial, commercial and institutional sector of the construction industry referred to in clause 117(e) shall be brought by either,

(a) an employee bargaining agency; or

(b) one or more affiliated bargaining agents of the employee bargaining agency,

on behalf of all affiliated bargaining agents of the employee bargaining agency and the unit of employees shall include all employees who would be bound by a provincial agreement together with all other employees in at least one appropriate geographic area unless bargaining rights for such geographic area have already been acquired under subsection (3) or by voluntary recognition.

(3) Notwithstanding subsection 119(1), a trade union represented by an employee bargaining agency may bring an application for certification in relation to a unit of employees employed in all sectors of a geographic area other than the industrial, commercial and institutional sector and the unit shall be deemed to be a unit of employees appropriate for collective bargaining.

(5) Notwithstanding subsections (1) and (4), a trade union that is not represented by a designated or certified employee bargaining agency may bring an application for certification or enter into a voluntary recognition agreement on its own behalf."

It is to be noted that subsection (1) deals with "affiliated bargaining agents of the employee bargaining agency" whereas subsection (3) deals with "a trade union represented by an employee bargaining agency" and subsection (5) deals with "a trade union that is not represented by a designated or certified employee bargaining agency".

9. Counsel for the applicant argues that the applicant, since it is not included in the designation, should be entitled to make an application for certification under subsection (5) since it is clearly a "trade union that is not represented by a designated or certified employee bargaining agency".

10. However, as noted above, the applicant trade union is clearly an affiliated bargaining agent notwithstanding the fact that it has not been included in the designation made by the Minister. To certify the applicant under subsection (5) would have the curious result that the applicant would not be able to enter into a lawful collective agreement with respect to certain of the employees in the bargaining unit, (namely, those in the industrial, commercial and institutional sector).

11. In view of the foregoing, the Board is reluctant to allow the applicant to make an application under subsection (5) of section 144 as requested by counsel for the applicant. We note, however, that whereas subsection (3) and subsection (5) of section 144 referred to trade unions represented by an employee bargaining agency and trade unions that are not represented by designated or certified employee bargaining agencies, subsection (I) talks simply of affiliated bargaining agents of the employee bargaining agency. It would therefore appear that the applicant is entitled to bring an application under subsection (1) of section 144. In such an application the appropriate unit of employees must include "all employees who would be bound by a provincial agreement together with all other employees in at least one geographic area, unless bargaining rights for such geographic area have already been acquired". However, as noted above, since the applicant trade union is not party to the provincial agreement, when the Board certifies the applicant as bargaining agent of the employees and issues two certificates as instructed by subsection (2) of section 144, it would appear that the provincial bargaining agency is certified for the industrial, commercial and institutional sector on a province-wide basis, whereas the applicant local would be issued a certificate in relation to all other sectors in the appropriate geographic area, and we propose to do this in the present case.

12. The Board further finds, pursuant to section 144(1) of the Act, that all journeymen sheet metal workers and registered apprentices in the employ of the respondent in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario and all journeymen sheet metal workers and registered sheet metal apprentices in the employ of the respondent in all other sectors in Metropolitan Toronto, the Regional Municipality of York and the County of Peel, the Township of Esquesing and the Towns of Oakville and Milton in the County of Halton and the Township of Pickering in the County of Ontario, save and except non-working foremen and persons above the rank of non-working foreman, constitute a unit of employees of the respondent appropriate for collective bargaining.

13. The Registrar is directed to list this matter for continuation of hearing in order to deal with the petition filed by the group of employees objecting to this application.