[1982] OLRB Rep. November 1597
1273-82-R International Brotherhood of Painters and Allied Trades — Local 1819 — Glaziers, Applicant, v. C T Windows Limited, Respondent
BEFORE: D. E. Franks, Vice-Chairman, and Board Members I. M. Stamp and W. F. Rutherford.
APPEARANCES: John Kemp and Lennart Anderson for the applicant; B. W Binning and C. Tarneja for the respondent.
DECISION OF THE BOARD; November 22, 1982
This is an application for certification pursuant to the construction industry provisions of the Labour Relations Act.
The Board finds that the applicant is a trade union within the meaning of section 1(l)(p) of the Labour Relations Act and is an affiliated bargaining agent of a designated employee bargaining agency. Pursuant to the designation issued by the Minister under section 139(1) of the Act on April 4, 1978, the designated employee bargaining agency is the International Brotherhood of Painters and Allied Trades and the Ontario Council of the International Brotherhood of Painters and Allied Trades.
The Board further finds that this is an application for certification within the meaning of section 119 of the Labour Relations Act and is an application made pursuant to section 144(1) of the Act which provides that:
An application for certification as bargaining agent which relates to the industrial, commercial and institutional sector of the construction industry referred to in clause e of section 117 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.
The applicant has requested a bargaining unit of all glaziers and glaziers' apprentices in the employ of the respondent in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario, save and except non-working foremen and persons above the rank of non-working foreman. The respondent is in agreement with this bargaining unit with one exception to which we will return. The Board, however, is of the view that section 144 of the Act is mandatory in terms of the appropriate bargaining unit in the instant application, thus the Board cannot accept the agreement of the parties to limit the application to the industrial, commercial and institutional sector of the construction industry. Therefore, the Board finds that all glaziers and glaziers' 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 glaziers and glaziers' apprentices in the employ of the respondent in all other sectors in the Municipality of Metropolitan Toronto, the Regional Municipalities of Peel and York, the Towns of Oakville and Halton Hills and that portion of the Town of Milton within the geographic Townships of Esquesing and Trafalgar, and the Towns of Ajax and Pickering in the Regional Municipality of Durham, 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.
The caveat by the respondent with respect to the above bargaining unit is that the term "glaziers" implies journeymen glaziers. The provincial agreement to which the applicant local is a party provides the following bargaining unit in Article 2:
"2.01
The association recognizes the Union as the exclusive bargaining agent for employees of employers engaged in the Industrial, Commercial and Institutional sector of the Construction Industry, for whom the Union has bargaining rights.
2.02
An employee is defined as a Journeyman Glazier Metal Mechanic, Working Foreman, Lead Hand or Apprentice working for any individual firm, co-partnership or corporation. He shall be in good standing with the Union and be a recognized apprentice or completed his apprenticeship and passed a required examination as to his proficiency as a mechanic to perform the duties pertaining to a Glaziers Metal Mechanic as an employee."
It will be seen from the above bargaining unit that the collective agreement affecting the employees contemplates only journeymen or apprentices and it would appear, therefore, that the qualification requested by the respondent in the above bargaining unit of journeymen glaziers would in fact be redundant since the term "glazier" would normally mean journeymen glaziers as distinct from apprentice glaziers.
In view of the finding with respect to the foregoing bargaining unit, the respondent takes the position that there are no glaziers or glaziers' apprentices in its employ. The applicant filed in support of this application three membership documents and there is no dispute that the documents relate to persons in the employ of the respondent. Nor is it disputed that none of the three persons in the employ of the respondent are apprentice glaziers or journeymen glaziers and in particular journeymen glaziers with respect to the Apprenticeship and Tradesmen's Qualification Act R.S.O. 1980, c.24. The respondent urges the Board to follow its decision in Irvcon Roofing & Sheet Metal (Pembroke) Ltd. [1981] OLRB Rep. Nov. 1594. In that case the Board excluded certain employees from a list of employees in a bargaining unit of sheet metal workers and sheet metal workers' apprentices. Those employee who were not certified journeymen or registered apprentices under the Apprenticeship and Tradesmen's Qualification Act, notwithstanding the fact that the employees were working at sheet metal work. In the present case, it is not disputed that the employees in question are working at "glaziers work". The argument of the respondent is that since they are not glaziers or glaziers' apprentices, and indeed, have no qualifications other than that two employees have had minor work experience doing installation of this type. In accordance with the Irvcon decision the Board should therefore find that they are not glaziers nor are they apprentices and, accordingly, there are no employees in the bargaining unit.
In the Irvcon case the Board dealt with this issue as follows:
"6. The present case raises a significant policy problem with respect to bargaining units in the construction industry. A review of previous Board certificates granted to the sheet metal workers union indicates that in a number of situations the Board has described such units as 'all sheet metal workers and sheet metal workers apprentices'. In other cases the Board has described the bargaining unit as 'all journeymen sheet metal workers and sheet metal apprentices'. In only one case apparently, on agreement of the parties, was the unit described as 'all journeymen sheet metal workers and registered apprentice sheet metal workers'. In the present case therefore the applicant trade union is asking the Board to develop a practice of describing the appropriate bargaining unit as referring to 'journeymen sheet metal workers and to registered sheet metal apprentices'. The applicant's reason for making such a request relates directly to The Apprenticeship and Tradesmen's Qualification Act. According to that Act, a person who is neither a journeyman sheet metal worker nor a registered apprentice is prohibited from lawfully working at the sheet metal trade. Thus, at the hearing in this matter, the representative of the sheet metal workers union clearly admitted that such persons would not be taken into membership, and further would be outside the ambit of the collective agreement to which the sheet metal workers union is party.
In the context of the present case, of course, to adopt the applicant's position would mean that the employees in question are not employees in the bargaining unit. They would not be entitled to any voice in the determination as to whether the applicant trade union should be entitled to represent sheet metal workers, but it also follows that if the applicant trade union were certified they would not be able to continue as employees unless they became registered apprentices.
The respondent takes the position that the employees in question are working in the sheet metal industry and should therefore be included in the count.
We are of the view that the disputed employees should not be listed as employees in a bargaining unit. Section 10 of The Apprenticeship and Tradesmen's Qualification Act is quite clear:
'10.-(l) The Lieutenant Governor in Council may designate any trade as a certified trade for the purposes of this Act, and may provide for separate branches or classifications within the trade.
(2) No person, other than an apprentice or a person of a class that is exempt from this section or a person referred to in subsection 4, shall work or be employed in a certified trade unless he holds a subsisting certificate of qualification in the certified trade.
(3) No person shall employ any person, other than an apprentice or a person of a class that is exempt from this section or a person referred to in subsection 4, in a certified trade unless the person employed holds a subsisting certificate of qualification in the certified trade.'
By Regulation 298/73 the Lieutenant Governor in Council designated the trade of sheet metal worker as a certified trade for the purposes of that Act. It is our view that the appropriate bargaining unit for collective bargaining with respect to sheet metal workers should reflect that designation. Accordingly, in the present case the bargaining unit shall be described in terms of 'journeymen sheet metal workers and registered sheet metal apprentices'. It follows therefore, that the three employees in question will not be employees on the list of employees for the purposes of the count."
Like the Sheet Metal Worker, the "Glazier and Metal Mechanic" has been designated as a certified trade pursuant to section 11(1) of the Act. (See R.R.O. 19800. Reg.39). The representative of the applicant trade union suggested that the glaziers are a "voluntary" certified trade whereas the sheet metal workers are a "compulsory" certified trade. No reference, however, was given for the basis for this distinction. In the Irvcon case, the Board relied on the broad prohibitions in section 11(2) (then section 10(2)) of the Apprenticeship and Tradesmen's Qualification Act in holding that the employees were not to be included in the appropriate bargaining unit.
- In the present case, however, the Board is concerned about the application of 0. Reg. 36, the general regulation under the Apprenticeship and Tradesmen's Qualification Act and in particular section 5 thereof which reads:
"Sections 9 and 10 and subsection 11(2) of the Act do not apply to persons,
(a) permanently employed in an industrial plant while performing work entirely within the plant and premises or on the land appertaining thereto, except work performed in the maintenance and repair of motor vehicles, trailers or conversion units registered for use on a highway under the Highway Traffic Act; or
(b) while engaged in a trade or occupation that in the opinion of the Director is not one in respect of which compliance with sections 9 and 10 and subsection 11(2) of the Act is required."
If the Director of Apprenticeship is not of the opinion that section 11(2) of the Act applies to glaziers then the proscribed conduct on which the Irvcon bargaining unit was based is not relevant to the present case.
- The Registrar is directed to list this matter for continuation of hearing to hear the evidence and representations of the parties with respect to the issue raised in paragraph 8 above.