Ontario Labour Relations Board

[1985] OLRB Rep. April 549

1482-84-R Sheet Metal Workers International Association, Local Union 504, Applicant, v. Mechanical Insulations Roofing & Siding Ltd., Respondent, v. International Association of Heat and Frost Insulators and Asbestos Workers, Local 95, Intervener

BEFORE: R. A. Furness, Vice-Chairman, and Board Members L. Collins and J. Wilson.

APPEARANCES: L. Steinberg and A. Moore for the applicant; no one appearing for the respondent.

DECISION OF THE BOARD; April 29, 1985

1. The name of the applicant is amended to read: Sheet Metal Workers International Association, Local Union 504.

2. The applicant has applied for certification with respect to a bargaining unit of all sheet metal workers employed by the respondent, and working 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. All sheet metal workers employed by the respondent, and working in Board area 21, save and except non-working foremen and persons above the rank of non-working foreman and persons employed in the I.C.I. sector of the construction industry.

3. The intervener filed an intervention in order to ensure that its bargaining rights were not affected. Subsequently, the intervener withdrew its intervention. In the circumstances of this application, the intervention is withdrawn by leave of the Board.

4. The Board finds that the applicant is a trade union within the meaning of section l(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 12, 1978, the designated employee bargaining agency is 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.

5. 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 II 7(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.

6. The respondent in its reply agreed with the bargaining unit proposed by the applicant and filed a list of employees on Schedule A which contained thirteen names and a Schedule D which contained one name. The applicant challenged the lists of employees filed by the respondent and adopted the position that Art Belanger, Randy Fiddes, Percy McKay, Chris O'Brien, Dave Stadnyk and Russ Walls were outside the bargaining unit. The Board appointed a Labour Relations Officer to inquire into and report to the Board on the list and composition of the bargaining unit.

7. This application for certification is with respect to sheet metal workers. The Apprenticeship and Tradesmen 's Qualification Act, R.S.O. 1980, c.24 provides in section 11 as follows:

11-(1) 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.

(4) When a trade is certified under subsection (1), a person who is working in the trade at the time it is certified shall be allowed a period of two years from the first day of the month following the month in which the trade is certified to qualify for a certificate of qualification in the trade, if he,

(a) is the holder of a certificate of apprenticeship in the trade; or

(b) satisfies the Director that he has been continuously engaged as a journeyman in the trade for a period of time in excess of the apprenticeship period for the trade; or

(c) satisfies the Director that he is qualified to work in the trade and meets such other requirements as the Director may prescribe.

By virtue of Regulation 57 of R.R.O. 1980 under the Apprenticeship and Tradesmen's Qualification Act, the trade of sheet metal worker has been designated as a certified trade for the purposes of that Act.

8. The Report of the Labour Relations Officer has been considered by the Board. Art Belanger, Randy Fiddes, Percy McKay, Chris O'Brien, Dave Stadnyk and Russ Walls were employees of the respondent on September 7, 1984, the date of the filing of this application. They were engaged in a variety of tasks and performed varying amounts of work which may be regarded as work which is within the trade of a sheet metal worker. None of these employees possessed a certificate of qualification for the certified trade of sheet metal work and none of them was a holder of a certificate of apprenticeship in the trade of sheet metal worker.

9. In Irvcon Roofing & Sheet Metal (Pembroke) Ltd., [1981] OLRB Rep. Nov. 1594, the Board pointed out that the Apprenticeship and Tradesmen 's Qualification Act contains certain limiting provisions. By virtue of the provisions of section 11 of the Act, no person shall work or be employed in a certified trade, such as sheet metal worker, unless he holds a subsisting certificate of qualification in the certified trade or holds a certificate of apprenticeship in the trade or satisfies the Director of Apprenticeships under the provisions of section 11(4). In the instant case, it is clear that Art Belanger, Randy Fiddes, Percy McKay, Chris O'Brien, Dave Stadnyk and Russ Walls are not entitled under the provisions of that Act to be employed or work in the certified trade of sheet metal worker. Section 26 of that Act states that every person who contravenes any provision of the Act is guilty of an offence and on conviction is liable to a fine of not more than one thousand dollars. In Irvcon Roofing & Sheet Metal (Pembroke) Ltd., supra, the Board concluded that the appropriate bargaining unit for collective bargaining ought to be defined so as to reflect the designation of the trade of sheet metal worker as a certified trade. Regulation 57 of R.R.O. 1980 under the Apprenticeship and Tradesmen's Qualification Act refers to journeymen and apprentices. The Board in that case decided that the appropriate bargaining unit ought to be described in terms of journeymen sheet metal workers and registered sheet metal apprentices and should not include persons who were not qualified as sheet metal workers under the Apprenticeship and Tradesmen’s Qualification Act. In our opinion that approach is equally applicable in the instant application. Moreover, in C T Windows Limited, [1983] OLRB Rep. May 627, the Board emphasized the recognition to be given to such compulsorily certified trades such as, sheet metal worker, air-conditioning, refrigeration, plumbing and steamfitting and electrical. In addition, the Board pointed out that where it was dealing with a trade where certification of a tradesman was a voluntary matter, as in the case of glaziers, the concern expressed in Irvcon Roofing & Sheet Metal (Pembroke) Ltd., supra, did not apply.

10. In the instant application the applicant requested that the description of the proposed bargaining unit be amended to read journeymen sheet metal workers and registered sheet metal apprentices. In the circumstances of this application, the Board is prepared to grant this request. The Board finds that all journeymen sheet metal workers and registered sheet metal 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 that portion of the District of Algoma south of the 49th parallel of latitude, 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.

11. The Board finds that Bill Callaghan, Gary Cudney, Yvon Gervais, Peter Kelly, Charlie McKay, Manuel Pereira and Mike Slawson are properly included in the bargaining unit. In applications for certification which are filed under the construction industry provisions of the Labour Relations Act, the Board includes for the purpose of the count only those persons who were at work on the date of the making of the application. Accordingly, the person whose name appeared on Schedule D is not included for the purpose of the count. The Board is satisfied on the basis of all the evidence before it that more than fifty-five per cent of the employees of the respondent in the bargaining unit, at the time the application was made, were members of the applicant on September 18, 1984, the terminal date fixed for this application and the date which the Board determines, under section 103(2)(j) of the Labour Relations Act, to be the time for the purpose of ascertaining membership under section 7(1) of the said Act.

12. Section 144(2) of the Act, which states in part as follows, provides for the issuance of more than one certificate if the applicant has the requisite membership support:

…. the Board shall certify the trade unions as the bargaining agent of the employees in the bargaining unit and in so doing shall issue a certificate confined to the industrial, commercial and institutional sector and issue another certificate in relation to all other sectors in the appropriate geographic area or areas.

[emphasis added]

Therefore, pursuant to section 144(2) of the Act, a certificate will issue to the applicant affiliated bargaining agent on its own behalf and on behalf of all other affiliated bargaining agents of the employee bargaining agency named in paragraph 4 above in respect of all journeymen sheet metal workers and registered sheet metal 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.

13. Further, pursuant to section 144(2) of the Act, a certificate will issue to the applicant trade union in respect of all journeymen sheet metal workers and registered sheet metal apprentices in the employ of the respondent in that portion of the District of Algoma south of the 49th parallel of latitude, excluding the industrial, commercial and institutional sector, save and except non-working foremen and persons above the rank of non-working foreman.