[1984] OLRB Rep. February 230
2461-83-R The United Association of Journeymen, and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local Union 46, Applicant, v. Board of Governors of Exhibition Place, Respondent, v. The Canadian Union of Public Employees, Intervener
BEFORE: N. B. Satterfield, Vice-Chairman and Board Members H. Kobryn and F. W. Murray.
APPEARANCES: Cynthia Morton and Vince McNeil for the applicant; Brian P. Smeenk, J. Szymansi, D. McEachern and J. McKellar for the respondent; Helen 0 'Regan for the intervener.
DECISION OF THE BOARD; February 22, 1984
This is an application for certification.
The Board finds that the applicant is a trade union within the meaning of section 1(1)(p) of the Labour Relations Act.
The applicant seeks to be certified as the exclusive bargaining agent for "all electronic testing technicians employed by the respondent within the Municipality of Metropolitan Toronto".
The application included a request from the applicant to "... consider whether the work performed by electronic testing technicians falls within the existing bargaining unit; ..." described in a subsisting collective agreement between the applicant and the respondent. The applicant withdrew the question when, for reasons given orally at the hearing, the Board required the applicant to advise the Board whether the applicant was contending that the electronic testing technician were included in the bargaining unit described in the collective agreement or excluded from it.
The Board also received the representations of the parties on whether the bargaining unit described in the application was appropriate for collective bargaining within the meaning of section 6 of the Labour Relations Act. The respondent had alleged in its reply that there was only one employee in the unit and, therefore, it did not satisfy the condition precedent of section 6(1) that there be more than one employee in a unit determined by the Board to be appropriate for collective bargaining. At the hearing, respondent counsel took the position that, even if there were more than one employee in the unit described by the applicant, it would not be a unit appropriate for collective bargaining purposes, whether under subsections 1 or 3 of section 6 of the Act. For these reasons, the respondent contends, the application should be dismissed.
Applicant counsel contends that there are three employees in the bargaining unit, two of whom are persons described by the respondent as supervisor of electrical and mechanical services and head of instrumentation controls, respectively. These persons, according to the applicant, perform some of the same work as the one employee named on the lists filed by the respondent. Counsel contends also that the electronic testing technicians constitute a craft unit under section 6(3) of the Act. In the alternative, they do not share a community of interest with any of the respondent's other employees and thus would constitute an appropriate unit pursuant to section 6(1) of the Act.
Section 6(3) of the Act sets out three conditions which must be fulfilled if the electronic testing technicians are to qualify for a craft unit:
(1) They must exercise technical skills or be members of a craft by reason of which they are distinguishable from other employees;
(2) they must commonly bargain separately and apart from other employees through a trade union that, according to established trade union practice, pertains to such skills or craft; and
(3) the application must be made by a trade union pertaining to such skills.
When those conditions are met, the unit is deemed to be appropriate for collective bargaining.
With regard to the second condition, the Board has required, inter alia, evidence of a sufficient bargaining practice by the craft to satisfy the Board that the applicant has a history of bargaining for the craft. See for example, the Board's decision in Campbell Soup Company Ltd., [1968] OLRB Rep. Feb. 1091, wherein the applicant trade union was seeking craft unit status for a bargaining unit which included employees who exercised skills different to those of the trade union's traditional craft as well as employees of that craft. At paragraph 12, the Board, in commenting on the evidence showing the trade union to have established bargaining rights for similar groups of employees in half a dozen cases, concluded that "... such isolated instances do not establish a 'common' practice ...". The Board came to a similar conclusion in Pre-Con Murray Ltd., [1969] OLRB Rep. Jan. 1003. Both decisions followed the principle expressed by the Board in its decision in Dupont of Canada, Ltd., [1965] OLRB Rep. Jan. 538, that a few isolated incidents of representing in collective bargaining the employees in the craft being claimed does not amount to commonly bargaining separately and apart within the meaning of section 6(3) of the Act.
Having regard to that principle, even were the first condition to be made out in this case, the Board is not persuaded that the applicant's representations indicate that the evidence it would be relying on would satisfy the second condition, that is, that the employees commonly bargain separately and apart within the meaning of section 6(3) of the Act. The Board, therefore, is of the view that the unit sought by the applicant would not be a unit of employees deemed appropriate for collective bargaining purposes pursuant to section 6(3) of the Act.
Having further regard to the representations of the parties, the Board is persuaded, however, that the applicant's representations raise an arguable issue with respect to whether the unit sought would be appropriate for collective bargaining purposes within the meaning of section 6(1) of the Act. In order to determine that issue it will be necessary to determine the related issues of:
(1) whether the supervisor of electrical and mechanical services and the head of instrumentation controls exercise managerial function within the meaning of section 1 (3)(b) of the Act;
(2) whether there is more than one employee in the unit; and, if so,
(3) whether those employees have a community of interest separate and apart from the respondent's other employees.
Therefore, a Board Officer is authorized to inquire into and report to the Board on the duties and responsibilities of the supervisor of electrical and mechanical services and the head of instrumentation controls and on the community of interest, if any, between the persons described by the applicant as electronic testing technician and the other represented and unrepresented employees of the respondent. For purposes of clarity, the Board notes that the respondent refers to the electronic testing technician as electronic instrumentation technician.
- This application is referred to the Registrar.