NDT Management Association v. Quality Control Council of Canada

[1983] OLRB Rep. January 140

0473-82-R NDT Management Association, Applicant, v. Quality Control Council of Canada, Respondent

BEFORE: D. E. Franks, Vice-Chairman, and Board Members W. G. Donnelly and S. Cooke.

APPEARANCES: W. G. Phelps and G. H. Grossman for the applicant; no one appearing for the respondent; no one appearing for the employer-interveners.

DECISION OF THE BOARD; January 26, 1983

1. This is an application for accreditation wherein the applicant seeks to be accredited as the bargaining agent for certain employers who have a bargaining relationship with the respondent council of trade unions. The respondent is party to a collective agreement with the applicant which was effective from December 1, 1980 to November 30th, 1982.

2. Having regard to the materials filed before it, the Board is satisfied that more than one employer who is affected by this application is bound by this collective agreement. Accordingly, the Board finds that it has the jurisdiction to entertain this application for accreditation under section 125 of the Labour Relations Act.

3. The applicant association is an unincorporated association of employers. The constitution of the organization was adopted by the three members on October 30th, 1974 by signing the constitution in the City of Toronto. Subsequently, every member of the association has signed and adopted both the constitution and By-Law No. 1 of the association made pursuant to the constitution dealing primarily with membership, the Board of Directors and Officers of the association, together with certain other matters affecting the operation of the association. Having regard to this material, the Board finds that the applicant is an employers' organization within the meaning of sectional(1)(d) of the Labour Relations Act and it is satisfied that the applicant fulfills the requirements of section 127(3) of the Act.

4. The applicant filed in support of its application 18 documents entitled "Authorization". These documents authorize and appoint the applicant association to bargain on behalf of the employer with the respondent, Quality Control Council of Canada, in all of the provinces and territories of Canada. Further, the document also authorizes the association to make application to become, amongst other things, accredited in any or all sectors of the construction industry under the applicable labour legislation in each of the provinces or territories as may be deemed appropriate by the applicant association. These documents are signed and dated by each of the 18 employers on whose behalf the authorizations were filed. The applicant also filed a duly completed Form 88, Declaration Concerning Representation Documents, Application for Accreditation. The Board is satisfied that the evidence of representation meets the requirements set out in section 120 of the Board's Rules of Procedure, and the Board is further satisfied that the individual employers on whose behalf the applicant has submitted evidence of representation have vested appropriate authority in the applicant to enable it to discharge the duties of an accredited bargaining agent.

5. The applicant has applied for a unit of employers as follows:

"all employers of non-destructive testing technicians, trainees and helpers for whom the respondent has bargaining rights in the Province of Ontario in the industrial, commercial and institutional sector, the sewers and watermains sector, the roads sector, the heavy engineering sector, the pipeline sector and the electrical power systems sector of the construction industry."

The respondent council of trade unions did not file an appearance in this matter, however, by telegram; the secretary of the council of trade unions informed the Board that they were supporting the application by the applicant association. The above described unit of employers reflects in part article 1.01 of the collective agreement in force between the applicant and the respondent. That article is entitled "Recognition" and it reads as follows:

"The Employer recognizes the Council as the sole and exclusive bargaining representative for all Non-Destructive Testing Technicians, Trainees and Helpers in the employ of the Employer within the scope of this Agreement save and except office and sales staff, and persons above the rank of working supervisor."

6. The respondent, Quality Control Council of Canada, is a council of trade unions made up of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada (hereinafter referred to as the United Association), and the International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers (hereinafter referred to as the Boilermakers). In order to understand the significance of the recognition clause in article 1 of the collective agreement it is necessary to look at the recitals which introduce the agreement. These recitals are as follows:

"WHEREAS the Employer's business involves non-destructive testing and the employment of persons skilled and qualified to perform the same, and

WHEREAS the nature of the work and the size and scope of the Employer's business requires that persons employed by the Employer be available to perform work where and when such work may be requested by owners and contractors; and

WHEREAS the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, and the International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, (hereinafter referred to as the "affiliated Unions") wish to negotiate and administer this Agreement through the Council and for that purpose have constituted the Council and empowered it to act as agent for each and both of them; and

WHEREAS the Employer recognizes for the purposes of this Agreement the formation by the affiliated Unions of the Council and agrees to deal with the Council as the agent of the affiliated Unions in negotiating and administering this Collective Agreement; and

WHEREAS the parties hereto desire that persons trained to perform non-destructive testing work may be admitted to the appropriate affiliated Union, and that the said affiliated Union should have jurisdiction over such persons; and

WHEREAS the work of the Employer is carried out in many places in Canada so that it is essential that the Employer's personnel be available to work promptly when required throughout Canada.

NOW THEREFORE this Agreement witnessed, and the parties aforementioned hereto mutually covenant and agree together as follows: . .

7. The applicant association made certain representations to the Board concerning the nature of the non-destructive testing industry, and how the nature of the industry, together with the collective agreement on which this application is based, give rise to the appropriateness of the unit of employers requested in this matter. Since the unit of employers requested raises two unusual problems, it is necessary to outline some extensive background in order to establish the appropriateness of the requested unit of employers. What is peculiar about the unit requested, is that it refers to "non-destructive testing technicians" which would appear to be a classification of employees, or perhaps a craft, which has not heretofore been recognized as a construction craft by this Board. Further, it will be noted that the application requests the unit cover all sectors of the construction industry except the residential sector of the construction industry and that, of course, would include the industrial, commercial and institutional sector of the construction industry which, of course, is subject to the province-wide bargaining regime outlined in section 137 and following of the Labour Relations Act. This gives rise to the obvious question of how the present accreditation application would relate to the existing scheme of province-wide bargaining.

8. The purpose of non-destructive testing is to find cracks in metals. These cracks result from the stresses created in metal during welding operations or from simple metal fatigue after extended use. As the name implies, non-destructive testing involves testing without destroying the material being tested, and therefore, it uses a variety of techniques such as radiography (similar to x-ray techniques), ultrasonic analysis, iron filing patterns and penetrating dyes. These techniques disclose cracks or faults in the material. The tools used include portable x-ray cameras, portable ultrasonic devices, portable materials for magnetic particle or liquid penetrate analysis, mobile dark rooms for developing x-rays and specialized vehicles to transport these tools, including the transporting of certain radio-active materials. Non-destructive testing work performed on construction projects includes work on pipelines, gas plants, petro-chemical installations, heavy water plants, oil sands plants, reconstruction of pulp mills, refineries and mining installations, bridge construction, dam construction, watermain and subway construction. Obviously, the work is very specialized and the testing contractor is only on a construction job site for very specific times during which the testing of the materials can be performed.

9. The jurisdiction over non-destructive testing work has been claimed by both the United Association and the Boilermakers' Union. The claim by the United Association relates to piping systems whereas the claim of the Boilermakers relates to the testing on pressure vessels. Given the nature of the specialized business of non-destructive testing employers, it is easy to see that on a job site which involves both piping systems and pressure vessels, these two historical claims by the two trade unions could lead to extensive and complicated jurisdictional claims being made by each of the two unions claiming jurisdiction in this area. Thus, by forming a council, the respondent, Quality Control Council of Canada, the two unions claiming jurisdiction have eliminated the possibility of jurisdictional disputes arising over the performance of particular work by the two constituent trade unions. Indeed, apparently half of the employees of an employer join the United Association and the other half joins the Boilermakers. However, they all work without restriction on either piping or pressure vessels. There are two other important characteristics of the non-destructive testing industry and the collective agreement upon which this application is made. First, it is the undisputed position of the applicant in this matter that new employees are not hired through the union hiring halls of either of the constituent trade unions in the council of unions. Rather, employees tend to be trained specifically in the skills of non-destructive testing. In accordance with this they are required to pass tests set up by the Canadian Standards Bureau in radiography and ultrasonic. These skills are not typically skills exercised by the trades which claim the work, but are quite clearly specialty skills learned as employees of a non-destructive testing company. The other important characteristic is that the collective agreement itself is not an agreement which refers to or picks up terms of other collective agreements. Rather, it is in fact a specialty agreement which is negotiated by the parties to that agreement and sets specific wage rates for the classifications of non-destructive testing technicians of various qualification. In this regard, a reference should be made to schedule "B" of the collective agreement relating to inter alia the Province of Ontario which sets out the following classifications with various wage rates:

"SCHEDULE "B"

B.0l Ontario, Quebec, Nova Scotia, New Brunswick, Prince

Edward Island, Newfoundland

B.0l 'Certificates' shall mean a CGSB Certificate in any of the following:

Aircraft Structures

Other Junior (Tech 1)

Magnetic Particle (Tech II-M.P.)

Liquid Penetrant (Tech II-L.P.)

Eddy Current (Tech II-E.C.)

C.W.B. Certification (Tech II)

Senior Technician

(Technician II — Radiography or Ultrasonics)

— with 3 Certificates

— with less than 3 Certificates

— unchargeable time

Junior Technician

(Technician I — Radiography or Ultrasonics)

— with 2 Certificates

— with less than 2 Certificates

— unchargeable time

Trainee

— with 1 Certificate

— no Certificates

Within each classification (i.e. — Level II, Level I, Trainee) when the Employer is laying off from a project it will not lay off employees for the reason that they are over-qualified."

10. In view of the foregoing history and explanation of the background up to the present period, we are of the view that the request by the applicant to describe the unit of employers as all employers of non-destructive testing technicians, trainees and helpers is indeed an appropriate way of describing those affected by this application. In so doing we are not creating a new craft "unit" for the construction industry. That decision can only be made by a panel of the Board dealing with an application for certification for the employees of an employer in the non-destructive testing industry.

11. A more complicated problem arises when we turn to the sectors requested by the applicant. Section 126(1) of the Act allows the Board to combine sectors of the construction industry in determining the appropriate unit of employers for accreditation. As noted, the applicant's request is for all of the sectors set out in section 117(e) of the Act, with the exception of the residential sector. From the foregoing description, it is clear that with the exception of residential construction, non-destructive testing is in fact carried on in all of these sectors of the construction industry under the collective agreement upon which this application is based. That quite obviously includes work which would fall clearly within the industrial, commercial and institutional sector of the construction industry. How then does this request for a combination of sectors relate to the province-wide bargaining in the industrial, commercial and institutional sector of construction industry? Both the constituent trade unions in the Quality Control Council, namely, the United Association and the Boilermakers' Union are subject to designations with respect to collective agreement in the industrial, commercial and institutional sector by the Minister of Labour pursuant to section 139(1)(a). Section 139(2) of the Act reads as follows:

"Where affiliated bargaining agents that are subordinate or directly related to different provincial, national or international trade unions bargain as a council of trade unions with a single employer bargaining agency for a province-wide collective agreement, the Minister may exclude such bargaining relationships from the designations made under subsection (1), and subsection 146(2) shall not apply to such exclusion."

The designations affecting Boilermakers were made January 30th, 1978 and both the designation of the employer bargaining agency and the employee bargaining agency contained an exemption.

"Pursuant to subsection 2 of section 127 of the Labour Relations Act I hereby exclude from this designation the bargaining relationships between the Quality Control Council of Canada and the Stress Relieving Contractors and between the Quality Control Council of Canada and the NDT Management Association, this exclusion is subject to the condition that the constitution of the Quality Control Council of Canada is filed together with a copy of the collective agreements affecting these employees.

With respect to the other constituent member of the Quality Control Council, the designation related to Plumbers and Pipefitters, was amended by the Minister of Labour on May 14th, 1982 in precisely the same terms as set out for the Boilermakers designation. It is, therefore, clear that the Minister of Labour has exempted from the regime of province-wide bargaining, the Quality Control Council of Canada and its collective agreement between it and the NDT Management Association, the applicant in the present case. In such circumstances, therefore, there is no impediment to including the industrial, commercial and institutional sector as one of the sectors of the construction industry appropriate for collective bargaining in the present application. Indeed, given the exemption from the industrial, commercial and institutional sector of the construction industry, it is desirable that the sectors of the construction industry affected by this application for accreditation ought to be as extensive as is possible, anti, since on the facts, it is clear that the work performed under the collective agreement on which this application is based is performed in all sectors of the construction industry other than residential construction, it is highly appropriate that all such sectors be included in the appropriate unit of employers in this application.

12. For the foregoing reasons, therefore, the Board finds that all employers of non-destructive testing technicians, trainees and helpers for whom the respondent has bargaining rights in the Province of Ontario in the industrial, commercial and institutional sector, the sewers and watermains sector, the roads sector, the heavy engineering sector, the pipeline sector and the electrical power systems sector in the construction industry, constitutes a unit of employers appropriate for collective bargaining.

[Detailed findings of fact relating to employer membership omitted].

18. Having regard to all of the above findings, a Certificate of Accreditation will issue to the applicant for all employers of non-destructive testing technicians, trainees and helpers for whom the respondent has bargaining rights in the Province of Ontario in the industrial, commercial and institutional sector, the sewers and watermains sector, the roads sector, the heavy engineering sector, the pipeline sector and the electrical power systems sector in the construction industry and in accordance with section 127(2) of the Labour Relations Act, for such other employers for whose employees the respondent may obtain or has obtained bargaining rights after June 7, 1982.