[1986] OLRB Rep. November 1559

1730-86-R Sheet Metal Workers' International Association Local Union 537, Applicant, v. Naylor Group Incorporated, Respondent, v. Group of Employees, Objectors

BEFORE: Judith McCormack, Vice-Chairman, and Board Members W. H. Wightman and J. Redshaw.

APPEARANCES: Arthur L. Moore, Larry O'Neill and Owen Pettipas for the applicant; Carl Peterson, Paul Wrigley and Tom Hitchman for the respondent; Douglas Bowman and Carl Hughes for the objectors.

DECISION OF JUDITH McCORMAK, VICE-CHAIRMAN AND BOARD MEMBER J. REDSHAW; October 17, 1986

1. This is an application for certification pursuant to the construction industry provisions of the Labour Relations Act.

2. 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 28, 1986, 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, 473, 504, 537, 539, 562 and 269 of the Sheet Metal Workers' International Association.

3. 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 institu- tional 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.

4. The parties were in dispute as to the appropriate unit of employees for collective bargaining. The applicant took the position that the appropriate unit was one which was restricted to journeymen sheet metal workers and registered sheet metal apprentices, while the respondent argued that the bargaining unit should include all employees engaged in sheet metal work, whether or not they were journeymen sheet metal workers or registered sheet metal apprentices. In the circumstances of this case, the bargaining unit suggested by the respondent would thus include three employees who are either journeymen or registered apprentices in other trades or who are not registered in any craft, but who are alleged to be performing sheet metal work. The petitioners took no position on the issue of the appropriate bargaining unit.

5. In support of its position, the applicant referred the Board to Irvcon Roofing and Sheet Metal (Pembroke) Limited, [1981] OLRB Rep. Nov. 1594 and argued that the Board has consistently excluded sheet metal workers who are not journeymen or registered apprentices since that decision. The reasoning in Irvcon Roofing, supra, was urged upon us, and the need for stability was noted inasmuch as the Irvcon case had worked to the disadvantage of the applicant in the past, and should not now be overturned when it supported the applicant's position.

6. The respondent argued that the Board's focus had been too narrow, and that employees working side by side performing exactly the same work should be included in the same bargaining unit. Counsel asked the Board to reconsider its practice as set out in Irvcon Roofing, supra, on the basis that the test for the appropriate bargaining unit should not be so closely linked to the requirements for practising a trade under the Apprenticeship and Tradesmen's Qualification Act, R.S.O. 1980, c.24.

7. After reviewing the submissions of the parties, the Board made the following oral ruling:

The Board finds (Board Member W. H. Wightman dissenting) 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 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. Our written reasons will follow.

We now set out the basis of our decision.

8. One of the primary characteristics of the construction industry is the degree to which it is organized on the basis of specialization. As the report of the Royal Commission on Labour Management Relations in the Construction Industry (Carl Goldenberg, March 1962) noted at page 4:

The nature of [the construction industry's] products and the product market require a high degree of mobility and flexibility in the industry. It operates on the principle of specialization, which is reflected in the organization of construction firms by specialty trades and the parallel organization of the work force by crafts.

As a result, craft unions have played a major role in the collective bargaining structure of this sector, a role which was originally protected under the Labour Relations Act by section 6(3) which provides as follows:

Any group of employees who exercise technical skills or who are members of a craft by reason of which they are distinguishable from the other employees and commonly bargain separately and apart from other employees through a trade union that according to established trade union practice pertains to such skills or crafts shall be deemed by the Board to be a unit appropriate for collective bargaining if the application is made by a trade union pertaining to such skills or craft, and the Board may include in such unit persons who according to establish trade union practice are commonly associated in their work and bargaining with such group, but the Board shall not be required to apply this subsection where the group of employees is included in a bargaining unit represented by another bargaining agent at the time the application is made.

9. Of course, the application of section 6(3) was not restricted to the construction industry. However, it had particular significance for the construction sector because of the predominance of craft unions. As the Board pointed out in Kent Tile & Marble Co. Ltd., 61 CLLC ¶ 16,204:

We are of opinion that the words that were added to subsection 2 of section 6 [now section 6(3)] by the Labour Relations Amendment Act, 1960, confer upon the Board a discretion where an applicant seeks to sever a craft unit from an established unit, the employees in which are represented for collective bargaining by an incumbent trade union. In a case where there is no incumbent union, the Board is still bound by the mandatory provisions of the subsection to recognize craft rights in the circumstances indicated in the subsection. Where there is an incumbent, the provision as to craft privileges which was, as we pointed out, of a mandatory nature before the amendment, has been convened by the amendment into a discretionary one, but with a legislative instruction that the Board should give consideration to craft privileges and determine in all the circumstances of the particular case whether craft privileges should or should not be recognized. In the construction industry, where organization has traditionally been carried on on a craft basis, it is our opinion that great weight must be given to craft interests.

[emphasis added]

10. The current scheme under the Act for construction industry labour relations is based largely on a bargaining structure which evolved from these craft distinctions. Under section 139(1) of the Act, the Minister may designate employee bargaining agencies to represent provincial units of affiliated bargaining agents and may describe those units. In the instant case, the applicant is designated to represent journeymen and apprentice sheet metal workers, sheeters, sheeters' assistants and material handlers by virtue of the designation order referred to earlier. Section 144(1) then provides certain minimum requirements with respect to the scope of the bargaining unit in an application for certification which concerns the industrial, commercial and institutional sector. Thus the collective bargaining structure contemplated by these provisions continues to reflect the pattern of specialization in the construction industry at the same time that it provides for greater stability in labour relations.

11. In determining the parameters of a bargaining unit in this context, it is then both logical and appropriate for the Board to examine the requirements for the practice of the trade in question. In Irvcon Roofing, supra, the Board found that sheet metal work had been designated as a certified trade under the Apprenticeship and Tradesmen's Qualification Act with the effect that persons who did not hold a certificate of qualification in this trade were prohibited from working or being employed in it, and would be outside the ambit of the provincial collective agreement. Consequently, the Board found that unregistered sheet metal apprentices should be excluded from the bargaining unit.

12. The Board came to a similar conclusion in Mechanical Insulations Roofing & Siding Ltd., [1985] OLRB Rep. April 549. In that case a differently constituted panel of the Board reaffirmed the reasoning in Irvcon Roofing, supra, and further pointed out that under the Apprenticeship and Tradesmen's Qualification Act, it would be an offence for an unqualified person to engage in sheet metal work and that conviction could make the offender liable to a fine of not more than a thousand dollars. As a result, the Board again excluded unregistered apprentices from the bargaining unit.

13. We find both the Mechanical Insulations and the Irvcon Roofing cases compelling in the context of the instant case. While the arguments advanced by counsel for the respondent might be attractive in another labour relations setting, given the unique historical and organizational features of the construction industry and the specific legislative requirements attached to the sheet metal trade, we do not find them persuasive.

14. This panel is not seized of the matter.

DECISION OF BOARD MEMBER W. H. WIGHTMAN;

1. The unique historical and organizational features of the construction industry have led to the present situation wherein craft unions not only do battle among themselves, which was predictable, find themselves collectively under siege from unions which operate with composite crews.

2. The use of substitute materials and changes in construction methods are two further realities which have placed unions representing craftsmen in the unhappy position of fighting constant rearguard actions to preserve what they perceive to be "their turf".

3. The evidence of the inability of craft unions to accommodate to these contemporary realities is clear. They appear doomed to continuing wars of attrition which damage not only the unions in an institutional sense but, more important, the craftsmen members whose interests constitute the raison d'etre for their existence.

4. This is not a situation which can be helped by attempting to lay blame. The craft unions are reacting predictably and understandably to the circumstances in which they find themselves, and they do so in the only manner they see open to them. Both the unions and union members are victims and they need help, some of which may have to come in the form of legislation which, I would emphasize, is not for this Board to comment upon.

5. It is however within the purview of the Board, to interpret the existing legislation in ways which may prove helpful to the individual workers, the union or, if possible, both.

6. The fact situation in this case is that new employees have an opportunity to gain working experience such as to allow them to make an informed choice as between the trades they may ultimately wish to follow. The composition and structure of the workforce also allows and contemplates the possibility of workers moving from one craft to another or perhaps qualifying in two or more crafts. All of the foregoing seems to me both socially desirable and in the interests of the individuals.

7. The majority decision, while it may be consistent with Board case law (which is not a requirement of the administrative tribunal), further entrenches the rigid lines of demarcation which are at the source of the dilemma faced by all craft unions. In my view it is the type of decision which makes the Board part of the problem rather than a facilitator of solutions