United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local Union 46 v. Superior Plumbing & Heating Company Ltd., 1986 CanLII 1468

[1986] OLRB Rep. November 1589

1484-85-R United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local Union 46, Applicant, v. Superior Plumbing & Heating Company Ltd., Respondent, v. Group of Employees, Objectors

BEFORE: Robert J. Herman, Vice-Chairman and Board Members J. P. Wilson and H. Kobryn.

APPEARANCES: A. J. Ahee and V. McNeil on behalf of the applicant; G. Grossman and R. Hogle on behalf of the respondent; Rejean St. Martin on behalf of the objectors.

DECISION OF THE BOARD; November 26, 1986

1. This is an application for certification made 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 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 United Association of Journey­men and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, and the Ontario Pipe Trades Council of the United Association (hereinafter, the "E.B.A."), and Local 46 is designated an affiliated bargaining agent (the "A.B.A."), in the same designation order.

3. The bargaining units sought by the applicant consist of all certified plumbers, plumbers' apprentices, and all certified steamfitters, steamfitters' apprentices and welders in the employ of the respondent in the industrial, commercial and institutional ("I.C.I.") sector of the construction industry of the Province of Ontario, and all certified plumbers, plumbers' apprentices, and all cer­tified steamfitters, steamfitters' apprentices, and welders in the employ of the respondent in all other sectors of the construction industry in Board Area #8 (i.e., 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). Although the specific wording of the description of these units is not consistent with the bargaining unit descrip­tion traditionally given to plumbers and steamfitters, consideration of the specific language used to describe the bargaining unit has been deferred to a later date. According to the schedules filed by the respondent employer, as of the application date the respondent employed a number of plum­bers, steamfitters (and their respective apprentices), welders, and employees described by the res­pondent as "gas fitters". On community of interest grounds, the respondent asks that the bargain­ing unit be described so as to include "gas fitters", along with those classifications requested by the applicant. The respondent submits that the "gas fitters" work goes hand in hand with the plum­bers, steamfitters and welders on the respondent's projects, both in the I.C.I. and other sectors, and thus should be included in the bargaining unit. The applicant, while opposing the respondent's request that "gas fitters" be expressly referred to in the bargaining unit description (and therefore included for purposes of the "count"), claims gas fitting work for its members, on the basis that gas fitting is part of its members' trade. The Board must determine the appropriate bargaining unit, and whether "gas fitters" should be referred to in the description, and whatever bargaining unit is determined as appropriate, which employees fall within that unit.

4. During six days of hearing, the Board heard the evidence and submissions of the parties with respect to whether the appropriate bargaining unit ought to refer to "gas fitters" and whether gas fitting work belonged to the plumbers and steamfitters. While we do not propose to specifically refer to the evidence of each witness, two comments are in order. First, the evidence placed before the Board dealing with community of interest was somewhat limited with respect to how work on particular projects was performed, and with respect to how plumbers and steamfitters interacted with those with gas fitting tickets on ICI or other sector gas related projects. The evidence was understandably sketchy in this regard as neither party called to testify a plumber or steamfitter who had worked for the respondent nor(with one exception) was an employee with a gas fitting ticket called upon to testify. The one exception occurred when the respondent did call the current branch manager from the Cornwall office, who had a gas fitting ticket at the application date; however, the evidence established that there were no plumbers or steamfitters with gas fitting tickets at the Cornwall office as of the application date. The Board was therefore left with second-hand, limited evidence with respect to the work actually being done on the projects in question, and the interac­tion between those with gas fitting tickets and plumbers and steamfitters. Second, the Board found most witnesses to be credible and forthright in their evidence, and not in any substantial dispute with respect to the matters in issue. The exception was Sean O'Ryan, a member of Local 46 and its business manager, who was called as a witness on behalf of the applicant. Throughout his cross-ex­amination, Mr. O'Ryan was evasive, non-responsive, argumentative (to the point where many of his responses began with "well [counsel's name], we could of course debate that matter, but...") and clearly tried to avoid giving any answer which he did not feel was beneficial to the applicant's case. On several occasions the Board requested or directed that the witness respond to the ques­tions as asked, but to little avail. In the Board's opinion Mr. O'Ryan's testimony cannot reason­ably be construed as reliable evidence, but rather as Mr. O'Ryan giving his view of what the Board ought to find, and we accordingly assign little weight to it.

5. The respondent is engaged in the installation of plumbing, piping and heating systems in both the I.C.I. and other sectors of the construction industry and operates out of offices in Osha­wa, Cobourg, and Cornwall, Ontario. Under the Gas Utilization Code, Ontario Regulation 826/82, a Regulation made under the Energy Act, an individual with a gas fitting ticket or certifi­cate must install, or be present during installation, and certify certain types of gas piping, inter alia, and is responsible for various other matters specified therein. There are different levels of gas fit­ting tickets with different qualifications, met for example by working for a specified number of hours on particular types of projects. In order to obtain any of the gas fitting tickets, an individual need not be a member of any trade or craft, and need not be certified pursuant to the Apprenticeship and Tradesmen's Qualification Act; an individual requires only a certificate or ticket obtained by successfully writing a government administered exam. Individuals can legally perform gas fitting work without belonging to any of the recognized construction industry trades and without necessarily having all the skills those trades demand. Gas fitting is a type of work, and on the evidence the performance of such work falls far short of its own "trade" or "craft" status.

6. The respondent had employees possessing gas fitting tickets in 3 categories: members of the United Association who had gas fitting tickets, members of other trades (eg. sheet metal work­ers and electricians) who had gas fitting tickets, and four employees who only had gas fitting tick­ets. Employees in all 3 categories were legally performing gas fitting work, as required by the Energy Act and the Gas Utilization Code, and on construction in both the ICI and other sectors. Those individuals who only had gas fitting tickets received approximately the same pay and worked under the same terms and conditions of employment as did the plumbers and steamfitters with gas fitting tickets. Both parties maintained that the gas fitting work was an integral part of the gas pro­jects performed by the respondent, the applicant suggesting that this factor justified gas fitting work being given to the plumbers and steamfitters, and the respondent maintaining that this factor suggested that 'gas fitters' ought to be included in the description of the appropriate bargaining unit in the ICI sector.

7. This case purports to raise an issue not previously canvassed by the Board. Prior deci­sions on point considering the appropriate bargaining unit description in the ICI province-wide sec­tor have involved applications by employee or affiliated bargaining agencies to represent employ­ees who performed trades or crafts which their own designation orders did not assign to them, but which trades or crafts were assigned to different employee or affiliated bargaining agents by their respective designation orders. We refer here to such trades or crafts being "assigned to" the employee or affiliated bargaining agencies in the designations, because those designations not only list the bargaining agencies, thereby establishing a bargaining structure for the province-wide scheme, but they also establish who such agents may represent in the scheme, by listing specific trades in the designation. The applicable designation for the E.B.A. and A.B.A. before us in this proceeding designates them "to represent in bargaining all journeymen and apprentice plumbers and pipefitters". Unlike prior cases concerning this sector where applicants asked the Board to allow them to represent "trades" that the designations gave to other employee and affiliated bar­gaining agents, we are asked by this respondent to give to the applicant "work" (we intentionally do not refer to it as a "trade" or "craft") which is not expressly covered by any of the designation orders. Whether "gas fitting" is a trade or craft is not a question we must decide in order to deter­mine the description of the appropriate bargaining unit, for the reasons given below. The parties' characterization of the issue, as revolving around whether "gas fitters" ought to be included within the bargaining unit, partially prejudges the question. To describe people performing gas fitting work as "gas fitters" suggests that a trade or craft of "gas fitting" exists, whereas, as we noted in paragraphs S and 6, supra, gas fitting is a type of work individuals perform regardless of whether they otherwise work at a trade or have a trade ticket.

8. With this background, we turn to the submissions of the parties. Counsel for the appli­cant submitted that, as the applicant had requested its historically described bargaining unit, the Board ought to and must find that that bargaining unit is appropriate. Within that bargaining unit, gas fitting work would fall, as it was part of the applicant's trade. Counsel pointed to a history of the United Association bargaining on behalf 'of "gas fitters" performing work in the ICI, and at least one other sector, together with the evidence led which established that some plumbers and steamfitters had gas fitting tickets and were performing gas fitting work on the projects in question. Gas fitting was not, therefore, a separate trade or craft, but was part of the plumbing or steamfit­ting trade. In counsel's submission, section 144(1) of the Act, and Board jurisprudence considering this subsection, specifically Clarence H. Graham Construction Limited, [1981] OLRB Rep. Sept. 1195, (discussed infra), compelled the Board to find that the traditional bargaining unit requested by the applicant for the ICI sector was appropriate. To find otherwise would be to include employ­ees in the bargaining unit who were not covered by the provincial agreement and who thus would be outside the provincial scheme. The Board was in effect being asked by the respondent to change the entire bargaining unit structure and bargaining relationships within the ICI sector, and in the applicant's submission it was neither appropriate for nor open to the Board to do so.

9. Counsel for the respondent asserted that individuals with gas fitting tickets were needed to legally perform the work in question, and to complete the projects of the respondent, and were therefore an integral part of the plumbing and steamfitting gas projects. Counsel submitted that the four individuals who had only gas fitting tickets were working legally in performing gas fitting work, spent approximately ninety-five per cent of their time performing such work, and were legally so working whether or not they were members of the United Association. The nature of the respondent's business and the projects on which these "gas fitters" worked, the marked similarity between their terms and conditions of employment and those of the plumbers and steamfitters employed by the respondent, and the fact that the applicant was claiming gas fitting work for its members, all indicated that there was a community of interest between those "gas fitters" and the plumbers and steamfitters, with or without gas fitting tickets, and therefore the Board ought to find that the appropriate bargaining unit description include reference to "gas fitters". With respect to section 144(1) of the Act, counsel submitted that gas fitting is specifically covered in the United Association constitution, and the province-wide ICI agreement also encompasses gas fitting by its reference in Article 1.08 to "pipefitter". Accordingly, even if counsel for the union was cor­rect in his submissions with respect to the meaning and effect of the Clarence H. Graham case (supra), there is no impediment in the instant case in including "gas fitters" in the unit, as they are covered by the provincial agreement and therefore would be employees covered by the province-wide scheme of bargaining. Alternatively, if the Board finds that the word "pipefitter" in the pro­vincial agreement does not encompass "gas fitters", counsel submitted that the Board must con­sider section 6(3) of the Act, dealing with craft unions, even though this certification application was made pursuant to section 144(1) of the Act. As new crafts or trades develop in the technologi­cally changing construction industry, the Board must be able to accommodate employees who are performing these new crafts or trades within the province-wide scheme of bargaining. The evi­dence ought to lead the Board to conclude that gas fitting is a trade or craft, and therefore ought properly to be included within the appropriate bargaining unit (although why such a finding would yield this conclusion was not made clear). Counsel distinguished Clarence H. Graham, (supra) on the grounds that that case dealt with a multi-trade situation, where there was a contest over the entitlement of one trade to represent, in the ICI, members of a trade designated to be and ordinar­ily represented by a different trade union. In the instant proceeding, "gas fitters" are not repre­sented by any of the designated trade unions, they are working legally, and therefore the issue is quite different. Finally, counsel submitted that were the Board to accede to the applicant's request, the respondent would be forced to terminate the four "gas fitters" who had legally been perform­ing their work, or alternatively, the respondent would be left in a position of having unionized employees (those represented by the A.B.A. if the applicant is successful in this application) work­ing along side with unrepresented employees (the four individuals who only have gas fitting tickets) and that either scenario would be destructive of sound labour relations.

10. The applicant in this proceeding is an affiliated bargaining agent as defined by the Act, and seeks to represent a group of employees in the ICI sector. Section 144 of the Act reads as follows:

(1) An application for certification as bargaining agent which relates to the industrial, commer­cial and institutional 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.

(2) If on the taking of a representation vote more than 50 per cent of the ballots case are cast in favour of the trade unions on whose behalf the application is brought, or, if the Board is satis­fied that more than 55 per cent of the employees in the bargaining unit are members of the trade unions on whose behalf the application is brought, 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.

(3) Notwithstanding subsection 119(1), a trade union represented by an employee bargaining agency may bring an application for certification in relation to a unit of employees employed in all sectors of a geographic area other than the industrial, commercial and institutional sector and the unit shall be deemed to be a unit of employees appropriate for collective bargaining.

(4) A voluntary recognition agreement in so far as it relates to the industrial, commercial and institutional sector of the construction industry shall be between an employer on the one hand and either,

(a) an employee bargaining agency;

(b) one or more affiliated bargaining agents represented by an employee bar­gaining agency; or

(c) a council of trade unions on behalf of one or more affiliated bargaining agents affiliated with the council of trade unions,

on the other hand, and shall be deemed to be on behalf of all the affiliated bargaining agents of the employee bargaining agency and the defined bargaining unit in the agreement shall include those employees who would be bound by a provincial agreement.

(5) Notwithstanding subsections (1) and (4). a trade union that is not represented by a desig­nated or certified employee bargaining agency may bring an application for certification or enter into a voluntary recognition agreement on its own behalf. R.S.O. 1980, c. 228, s. 144.

11. The effect of section 144 was considered by the Board in Clarence H. Graham (supra)

and it stated, in part, as follows:

6……..

An examination of this section shows that applications for certification can be made pursuant to subsections 1, 3 or 5. Both subsections 1 and 3 deal with applications for certification by trade unions covered by the regime of province wide bargaining (subsection 1 deals with applications for all sectors including the industrial, commercial and institutional sector, whereas subsection 3 deals with applications for sectors excluding the industrial, commercial and institutional sector). Subsection 5 deals with applications by "a trade union that is not represented by a designated or certified employee bargaining agency", that is trade unions not under the regime of province wide bargaining. For such trade unions it is clear that they are not affected by subsections 1 through 4, and clearly the Board policies set out in the Duron case continue to apply with respect to applications for certification by such trade unions. In light of the foregoing, it is clear that since section [144] deals with both applications for certification by trade unions under the province wide bargaining provisions of the Act, and also those not under the province wide bar­gaining provisions in the Act it deals with all possible applications for certification in the con­struction industry. Therefore, there can be no appropriate bargaining unit found under section 6(1) as requested by the applicant outside of section [144].

7. For those unions covered by the provincial bargaining scheme, subsection I and subsec­tion 3 of section [1441 apply. Subsection 3 applications are brought at the option of the trade union involved and by that subsection they can apply for certification in sectors other than the industrial, commercial and institutional sector (and thus outside the provincial bargaining scheme), and in such cases the appropriate bargaining unit is all sectors other than the industri­al, commercial and institutional sector in the appropriate board area. However, where a union covered by the provincial bargaining scheme, wants the application to relate to the industrial, commercial and institutional sector of the construction industry it must apply under subsection 1.

8. Having regard to the foregoing, it is clear that section [144] deals with both applications for certification by trade unions under the province wide bargaining provisions of the Act, and also those trade unions not under the province wide bargaining provisions of the Act. It deals with all possible applications for certification in the construction industry. It would follow, therefore, that whether the Board makes a finding of an appropriate unit under section 6(1) or section [6(3)] of the Act, that such a finding must be made within the confines of section [144]. thus the Board cannot as the applicant suggests find an appropriate unit under section [144] and a sepa­rate appropriate unit under section 6(1) outside the purview of section [144]. The Board must first deal with section [144] and apply section 6 in relation to section [144]. This requirement is clearly set out in section (138] which reads as follows:

"138. Where there is a conflict between any provisions in sections 139 to 151 and any provision in sections 5 to 57 and 62 to 136, the provisions in sections 139 to 151 pre­vail"

9. The language of subsection I is quite specific with respect to the instructions given to the Board as to the appropriate bargaining unit,

"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 geographic area."

The term provincial agreement is defined in [137(1)(e)] and reads as follows:

137(1) In this section and in sections [135 and 138 to 151],

(e) "provincial agreement" means an agreement in writing covering the whole of the Province of Ontario between a designated or accredited employer bargaining agency that represents employ­ers, on the one hand, and a designated or certified employee bar­gaining agency that represents affiliated bargaining agents, on the other hand, containing provisions respecting terms or condi­tions of employment or the rights, privileges or duties of the employer bargaining agency, the employers represented by the employer bargaining agency and for whose employees the affili­ated bargaining agents hold bargaining rights, the affiliated bar­gaining agents represented by the employee bargaining agency, or the employees represented by the affiliated bargaining agents and employed in the industrial, commercial and institutional sec­tor of the construction industry referred to in a clause 117(e).

That section deals with the bargaining rights held by "affiliated bargaining agents". That term is in turn defined by section [137(1)(a)],

"137(1) In this section and in [sections 135 and 138 to 151],

(a) "affiliated bargaining agent" means a bargaining agent that, according to established trade union practice in the construction industry, represents employees who commonly bargain separately and apart from other employees and is subordinate or directly related to, or is, a provincial, national or international trade union, and includes an employee bargaining agency."

[emphasis added]

Thus, those employees who would be covered by a provincial agreement are those represented by the applicant union "who commonly bargain separately and apart from other employees". In the present case that would be employees falling within the trade of carpenter. Clearly, neither bricklayers nor labourers would be covered by the provincial agreement made on behalf of the applicant, amongst others, by the designated employee bargaining agency representing the applicant.

10. Insofar as the present application relates to the industrial, commercial and institutional sec­tor of the construction industry, it is clear that those employees described as labourers and bricklayers would be outside the provincial agreement, and therefore, outside the regime of pro­vincial bargaining. However, as noted above, since section [144] deals with all applications for certification in the construction industry, and the applicant is clearly not applying for bricklayers and labourers under subsection 3 and cannot apply under subsection 5, it can only apply for labourers and bricklayers under subsection 1. However, since they would not be covered by the provincial agreement relating to carpenters we are of the view that they would not be appro­priate for inclusion in the unit found to be appropriate in the present case.

11. It should be noted that section [144] says "shall include all employees who would be bound by a provincial agreement". Normally this would imply that the Board has the power to include employees other than those covered by the provincial agreement. In the present case, however, this becomes a matter of including in a bargaining unit or series of bargaining units employees covered by the regime of provincial bargaining, together with employees outside the provincial bargaining regime. Clearly, subsection 3 and subsection 5 of section [144] deal with matters relating to employees outside the regime of provincial bargaining and we propose to limit the appropriate unit in this case to only those covered by the regime of provincial bargaining. In so doing we are of the view that this is consistent with the provisions of the Act relating to the pro­vincial bargaining. To certify the applicant in the present case for employees in the industrial, commercial and institutional sector in the construction industry, but outside the scheme of pro­vincial bargaining, would create representation rights for trade unions within that scheme for employees outside the regime of provincial bargaining. Such representation would clearly be disruptive of the overall scheme contemplated in sections [135 and 138 to 151].

12. The Board in Clarence H. Graham, (supra) concluded that the employees in question would fall outside coverage of the provincial agreement, and therefore it declined to find that they were properly included within the appropriate bargaining unit, on the analysis set out above in the quote from that decision. Paragraph 8 therein notes that findings of appropriate units, and consid­eration of either section 6(1) or what is now section 6(3) of the Act, must be made subject to a finding of the appropriate unit under section 144(1). We agree with and adopt that view. The ICI province-wide scheme of collective bargaining is highly structured and stratified, and the usual fac­tors relevant to a determination of the appropriate bargaining unit have only limited application in this statutory scheme. The concept of "community of interest" may well still apply, but if so, sub­ject to the overriding principles and structure set up by section 144 and by the designation system, a system which designates the agents, and the trades they are entitled to represent, in the ICI prov­ince-wide component of the construction industry.

13. Further support for the proposition relied upon in Clarence H. Graham, that employees other than those covered by the provincial agreement ought not to be included in the provincial bargaining scheme set up by section 144, can be found in section 146 of the Act, which reads as fol­lows:

14. (1) An employee bargaining agency and an employer bargaining agency shall make only one provincial agreement for each provincial unit that it represents.

(2) On and after the 30th day of April, 1978 and subject to sections 139 and 145, no person, employee, trade union, council of trade unions, affiliated bargaining agent, employee bargain­ing agency, employer, employers' organization, group of employers' organizations or employer bargaining agency shall bargain for, attempt to bargain for, or conclude any collective agree­ment or other arrangement affecting employees represented by affiliated bargaining agents other than a provincial agreement as contemplated by subsection (1), and any collective agree­ment or other arrangement that does not comply with subsection (1) is null and void.

As noted in Rolland Duquette Construction, [1983] OLRB Rep. Nov. 1884, the purpose of section 146 of the Act is to ensure that unions and their umbrella organizations covered by the scheme of provincial bargaining enter only those collective agreements with respect to the ICI sector which are provincial in scope. As section 146(2) makes explicit, it is not open under this scheme for a trade union or the employee bargaining agency to attempt to bargain for or conclude any collective agreement "affecting employees represented by affiliated bargaining agents other than a provincial agreement...". As noted earlier, the designations explicitly state which trades the employee and affiliated bargaining agents are to represent in bargaining in this sector.

14. Although the earlier cases decided by the Board raise the question of whether the prov­ince-wide statutory scheme (and specifically section 144 of the Act) compels the Board to describe appropriate bargaining units only as encompassing trades coverect≤y the provincial collective agreements, they have held it unnecessary to decide that question, as the Board felt it was inappro­priate in the exercise of its discretion to include employees not so covered by the provincial agree­ments, whether it was open to it to do so. We agree with those decisions and the manner in which the Board exercised its discretion therein, however, in our view, the statutory scheme does compel the Board to find for purposes of province-wide bargaining in the ICI sector by the affiliated bar­gaining agents, that the only bargaining unit descriptions that are appropriate are referable to trades or crafts covered by the applicable designation orders.

15. In Manacon Construction [1983] OLRB Rep. Mar. 408, the Board stated, in part, as follows:

36... .Therefore when employees in those trades are represented by an affiliated bargaining agent that is not designated to represent those trades, in this case Local 1030 and the millwrights designated employee bargaining agency, those employees would be outside of the provincial bargaining regime. Since they are outside of that regime and not covered by the millwrights provincial agreement they are not amongst those employees ". . .who would be bound by a pro­vincial agreement..." of the millwrights employee bargaining agency. In the result, they would not qualify to be included in the bargaining unit prescribed by section 144(1) of the Act.

[emphasis added]

Pausing for a moment, what is critical in our view is the first emphasized phrase, that those trades would be purportedly represented by an affiliated bargaining agent that the agent would not be designated to represent. This in itself would render such employees outside the regime of provin­cial bargaining regardless of whether the provincial agreement made reference to such employees or trades. Reference to the definitions of a "provincial agreement" and "affiliated bargaining agent" in section 137 of the Act (set out in paragraph 11, supra, in the quote from Clarence Graham) and sections 144 and 146 make this clear. The "provincial unit" referred to in section 146(1), and as referred to in the balance of this decision, is comprised of various affiliated bargain­ing agents and the employee bargaining agency which in turn represents them. If an affiliated bar­gaining agent attempts to represent, in the province-wide ICI sector, employees not in trades it is designated to represent, it would not be representing them in its capacity as an affiliated bargaining agent bound by the provincial agreement. The provincial agreement is made by the employee bar­gaining agency, which is designated to represent in the instant case plumbers and pipefitters, not, for example, carpenters or "gas fitters". Manacon Construction makes this point:

37. While the Board has arrived at this result having found that Local 1030 is represented by the millwrights designated employee bargaining agency and, consequently, is a trade union to which subsection 1 through 4 of section 144 apply and is not a trade union to which subsection 5 applies, the Board is of the view that the result would be no different if Local 1030 had been excluded from representing millwrights and their apprentices in the ICI sector. It would be a trade union that is not represented by a designated or certified employee bargaining agency as contemplated by section 144(5), but it would still be an affiliated bargaining agent within the meaning of section 137(1)(a). As an affiliated bargaining agent, it is subject to the strictures of sections 146 of the Act. Subsection 1 of section 146 allows the making of only one Collective Agreement by an employee bargaining agency and an employer bargaining agency for each unit (of affiliated bargaining agents or employers as the case may be) that it represents and that must be the provincial agreement. Subsection 2 makes it an offence for, inter alia, an affiliated bar­gaining agent (without reference to whether represented by an employee bargaining agency and so affecting all affiliated bargaining agents) or employee bargaining agency to bargain for, to attempt to bargain for or to conclude any collective agreement or any other arrangement affect­ing employees in the ICI sector represented by affiliated bargaining agents other than a provincial agreement. Since a provincial agreement must be between an employee bargaining agency and an employer bargaining agency, an affiliated bargaining agent cannot make a pro­vincial agreement unless it is also an employee bargaining agency. With that one exception, an affiliated bargaining agent cannot make a provincial agreement and it is prohibited from making any other agreement or arrangement with respect to employees in the ICI sector. Therefore an affiliated bargaining agent that is not an employee bargaining agency cannot make a lawful agreement with respect to employees in the ICI sector. By comparison, the Christian Labour Association of Canada and the National Council of Canadian Labour, trade unions which are eligible to apply under subsection 5 of section 144 of the Act, are not affiliated bargaining agents. Thus when they are certified to represent employees in the ICI sector, they are not sub­ject to the strictures of section 146(2) of the Act.

As paragraphs 36 and 37 of that decision indicate, an affiliated bargaining agent can only represent employees in the province-wide scheme in the ICI, in trades which the employee bargaining agency and the affiliated bargaining agent are designated to represent. The designations covering the United Association and Local 46 do not explicitly refer to "gas fitters". We return later to the question of whether "gas fitting" can be considered exclusively part of the trades of plumbing or pipefitting.

16. The provisions of section 139 of the Act must also be considered:

17. (1) The Minister may, upon such terms and conditions as the Minister considers appro­priate,

(a) designate employee bargaining agencies to represent in bargaining provincial units of affiliated bargaining agents, and describe those provincial units;

(b) notwithstanding an accreditation of an employers' organization as the bargaining agent of employers, designate employer bargaining agencies to represent in bargain­ing provincial units of employers for whose employees affiliated bargaining agents hold bargaining rights, and describe those provincial units.

(2) 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.

(3) Where a designation is not made by the Minister of an employee bargaining agency or an employer bargaining agency under subsection (1) within sixty days after the 27th day of Octo­ber, 1977, the Minister may convene a conference of trade unions, counsels of trade unions, employers and employers' organizations, as the case may be, for the purpose of obtaining rec­ommendations with respect to the making of a designation.

(4) The Minister may refer to the Board any question that arises concerning a designation, or any terms or conditions therein, and the Board shall report to the Minister its decision on the questions.

(5) Subject to sections 140 and 141, the Minister may alter, revoke or amend any designation from time to time and may make another designation.

(6) The Regulations Act does not apply to a designation made under subsection (1). R.S.O. 1980, c.228, s.139.

Section 139(1)(a) makes clear that it is the Minister, and not the Board in a certification proceed­ing pursuant to section 144 of Act, who designates employee bargaining agents and who further must "describe those provincial units" of affiliated bargaining agents. It is these "provincial units" which are referred to in section 146(1), in terms mandating that the employee bargaining agency make only one provincial agreement for each provincial unit that it represents.

17. For purposes of the instant proceeding, the Minister has designated the U.A. and the Ontario Pipe Trades Council of the U.A. as the employee bargaining agency and Local 46 as an affiliated bargaining agent. Equally important, it is the Minister's function pursuant to this subsec­tion to "describe those provincial units". In other words, the Act gives the Minister the power to describe the appropriate provincial unit with respect to the province-wide scheme set out under various sections of the Act as discussed above. Those designation orders do not merely indicate who the designated agents are, but they designate the trades or crafts that, in a sense, belong to each agent. If particular trades or crafts are not therefore given to employee bargaining agencies or their affiliated bargaining agents by the Minister's designation order, then for purposes of an application pursuant to section 144(1) of the Act, the Board cannot describe a bargaining unit that includes such trades as it cannot determine an appropriate bargaining unit which includes trades or crafts other than as encompassed in the designation orders. If employee bargaining agencies or affiliated bargaining agents in the province-wide scheme want to represent trades or employees performing skills other than they have been assigned in a designation order, they can resort to sec­tion 139(5) of the Act which creates the mechanism for amending the designation orders. Alterna­tively, parties can argue that the performance of the skill or work in question is part of their desig­nated trade or craft, and thus properly falls within the existing trade designation. Although this debate might form the basis of a grievance or a jurisdictional dispute, in this certification proceed­ing the applicant argues just this proposition. The Board's historical treatment of "welders" in the ICI was raised as a prime example of employees being found to perform the work of a particular trade or craft. For different projects and employers, welders have been found to be working at dif­ferent trades, and thus could be represented by the different, but appropriately designated, affili­ated bargaining agents. In each case it had to be determined whether welders were working at the trade in question. It is important to understand, however, that consideration of that issue may be necessary in a certification proceeding in order to determine which employees were performing the trade in question, and therefore which employees were included in the bargaining unit. An inquiry into the nature of the work being performed by employees is relevant in a certification proceeding to settle the parameters of the bargaining unit. Welders have been found by the Board in certifica­tion proceedings to be working at, inter alia, the plumbing and steamfitting trade for a particular employer, and they were covered by the provincial agreement. In the instant proceeding it is unnecessary for the Board to consider whether "gas fitting" is part of the plumbing and steamfit­ting trades, for reasons discussed below. A third alternative mechanism for becoming entitled to represent employees of a trade not given to the agent in the designation, would be through an application pursuant to s.140 of the Act. Which approach might be utilized depends of course on the circumstances of each case.

18. Other cases support our analysis. In Ninco Construction Ltd., [1982] OLRB Rep. Nov. 1692, the Board stated at paragraph 5 therein:

19. The contention of the applicant is that in the Clarence H. Graham case the Board misinter­preted the relevant provisions of the Act and wrongly concluded that it was prohibited from cer­tifying an affiliated bargaining agent for employees falling outside the scope of the relevant des­ignation. Accordingly, contends the applicant, the Board should not follow the reasoning set forth in that case. We incline to the view that section 144 of the Act does not permit an affiliated -bargaining agent to apply to represent employees in the ICI sector who are outside the scope of the designation affecting it. However, even assuming that the Act does not actually prohibit such a result, we nevertheless regard the unit being requested here, (namely one which includes employees both within and outside the regime of provincial bargaining such that some but not all of the employees would fall under a provincial agreement) to be disruptive of the scheme of provincial bargaining and not appropriate for collective bargaining. The Board has a broad gen­eral authority under section 6(1) of the Act to determine the unit that is appropriate for collec­tive bargaining. In the ICI sector this broad authority is restricted somewhat by section 144. Nothing in section 144, however, mandates that the Board include different crafts or classes of employees within the same bargaining unit or requires that employees within and outside the scheme of provincial bargaining be included in the same unit. Accordingly, even if such a unit is permitted under the Act, nevertheless the Board still retains the authority under section 6(1) to conclude that it is inappropriate. As already indicated, we view the unit being requested in this case as inappropriate. Instead, we regard the appropriate bargaining unit as one which encom­passes only employees covered by the labourers' employee bargaining agency designation and who, accordingly, would fall under the labourers' provincial agreement.

[emphasis added]

19. The Board reached a similar conclusion in Loremar Structures Inc., [1985] OLRB Rep. Dec. 1747, where the Board stated at paragraph S therein:

20. The applicant is seeking to be certified for a bargaining unit of employees that would be com­prised of all construction labourers employed by the respondent in the industrial, commercial and institutional (IC!) sector of the construction industry in the Province of Ontario and all con­struction labourers, carpenters and carpenters' apprentices employed by the respondent in all sectors of the construction industry in the Board's geographic area #15. As stated in paragraph 3 above, the applicant is an affiliated bargaining agent of the designated employee bargaining agency named therein. That agency is designated to represent construction labourers in the ICI sector of the construction industry in the Province of Ontario. It is not designated to represent carpenters and carpenters' apprentices in that sector. Nor is the applicant seeking to be certified for carpenters and carpenters' apprentices in the IC! sector. The problem arises, however, with the requirements of section 144(1) of the Act under which the applicant has brought its appli­cation. It prescribes that an application which relates to the ICI sector be described to include all employees who would be bound by a provincial agreement (that is, those employed in the ICI sector) together with all other employees in at least one appropriate geographic area, which in this case would be the Board's geographic area #15. It is well settled law now that, whether or not the requirements of section 144(1) allow the Board to describe a bargaining unit to include trades other than those for which the applicant is designated to bargain in the ICI sector, the Board has found that it would not be appropriate to do so because of the disruptive effect that would have on the scheme of provincial bargaining set out in the Act. In this respect see the Board's decisions in Clarence H. Graham Construction Ltd., [1981] OLRB Rep. Sept. 1195; Ninco Construction Limited, [1982] OLRB Rep. Nov. 1692; and Manacon Construction Limited, [1983] OLRB Rep. Mar. 407 and July 1104.

21. For the reasons and analysis we have set out above, it is our opinion that we cannot describe a bargaining unit in this sector so as to give an affiliated bargaining agent the right to rep­resent employees in trades other than those covered in the designation orders in question. Again, the trade need not be explicitly or specifically referred to in the designation and description of the provincial unit, as long as it can be demonstrated that the trade or work not expressly designated is part of a trade which is explicitly assigned. We venture no opinion on whether employees can be included in a bargaining unit under section 144, where the trade or skill in question is covered by the relevant designation order but is not encompassed within the provisions of the provincial agree­ment. Reference to the designation order makes clear that gas fitting is not covered therein. Accordingly, the Board cannot find that "gas fitters", so described, can be included in the appro­priate bargaining unit as found pursuant to section 144(1) of the Act.

22. In the alternative, if we are wrong in our view that it is not open to us to so find, we would follow the noted cases and their rationale, wherein the Board exercised its discretion to conclude that it would be inappropriate to describe a bargaining unit as to include employees not cov­ered by the provincial agreement. "Gas fitters" (employees who perform gas fitting work) are not employees to whom the ICI agreement in question applies. In our view, the word "pipefitter" in the provincial agreement does not encompass "gas fitters". Mr. O'Ryan (the applicant's business manager) testified that "gas fitters" are not included within the term "pipefitters", and although we give little weight to his evidence, we are left with no evidence supporting such inclusion, other than the word "pipefitter" itself in the provincial agreement. There was no evidence of any instance of "gas fitters" being described as "pipefitters". Of some assistance in considering whether the word "pipefitter" in the provincial agreement includes "gas fitter", we note that indi­viduals who only have gas fitting tickets, and who are not otherwise members of the applicant, can­not become members of the applicant for purposes of working in the ICI sector, according to both the United Association constitution and Mr. O'Ryan's unchallenged evidence to that effect. All these factors together lead us to conclude that "gas fitters" are therefore not covered by the pro­vincial agreement. We would accordingly exercise our discretion to not include "gas fitters" within the appropriate bargaining unit, for to do so would be to include employees not covered by the province-wide scheme with those who are so covered. If the statutory language does not actually preclude inclusion of trades or skills not covered by the designations or the provincial agreements, the structure and intent of that scheme, wherein it divides different trades and crafts amongst dif­ferent bargaining agents, and assigns to each agent specific trades through the designation orders, suggests that the appropriate description encompasses the designated trades and employees cov­ered by their provincial agreements.

23. The respondent also argued that "gas fitting" is a separate trade or craft, that the appli­cation of section 6(3) thus leads the Board to find a unit of "gas fitters" as appropriate, and that community of interest grounds suggest that "gas fitters" ought to be included within the bargaining unit in question. Apart from the observation that section 6(3) deals with "craft" concepts which negate traditional community of interest principles, as noted in Clarence H. Graham (supra, at 8 of that decision), any finding under section 6(3) must be made within the confines of section 144. Our analysis of section 144 set out above, and the conclusion we have reached thereunder, that it would be inappropriate to include "gas fitters" in the bargaining unit description, illustrates that resort to section 6(3) to so include them would be inconsistent with the exercise of our discretion pursuant to section 144(1) of the Act. The applicant is only entitled to represent, in this sector, employees performing plumbing or steamfitting, inter alia, but not gas fitting. In addition to the view that in these circumstances section 6(3) Cannot cause the Board to include employees in an ICI bargaining unit who would not be covered by the province-wide scheme of bargaining, as a factual matter we are not satisfied that the evidence established that "gas fitting" is a craft or trade within the mean­ing of section 6(3). The evidence fell far short of this and suggested the opposite.

24. Finally, the respondent and applicant both asked the Board to deal with the question of whether 'gas fitting' is part of the trades of the applicant. The respondent asserts that such a find­ing would mean that employees performing such work, including those who only have gas fitting tickets, should be included within the bargaining unit, presumably on the theory that all employees performing work of the plumbing or steamfitting trades should be included within the bargain unit, whether or not they are plumbers or steamfitters. The applicant contends that such a finding, that "gas fitting" is part of their trade, yields the conclusion that the work belongs to plumbers or ste­amfitters, and those performing such work who are not plumbers or steamfitters, would be doing so improperly once the applicant becomes certified. In the Board's view, we need not and should not answer this question in this certification proceeding. Beyond describing the bargaining unit, as we have above, we ought not to deal with whether certain work is part of the applicant's trades unless necessary in order to determine which employees fall within the described unit (and there­fore are to be included for purposes of the "count") and to determine who will therefore be repre­sented by the applicant should it be certified. The resolution of that issue does not revolve around whether "gas fitting" is part of the trade of plumbing or steamfitting, as the parties have suggested, but rather whether the work actually being performed by the employees at the relevant time, pre­sumably on the application date, is plumbing or steamfitting work. Whether there exists work which one could accurately describe as "gas fitting", and whether any such work would be part of the plumbing or steamfitting trade, is of little assistance. We must decide whether employees work­ing for this respondent, at the relevant time, were performing the work of plumbing or steamfit­ting, not whether something called "gas fitting" is part of those trades. Although we heard lengthy evidence of what work employees perform for this respondent, we are not satisfied that the parties directed their minds and evidence to what work disputed employees performed on the application date, and this matter will be relisted to deal with that issue.

25. Having regard to the above, the Board will find as appropriate a bargaining unit which refers only to plumbers, steamfitters, and welders, and their respective apprentices, but does not refer to 'gas fitters' or gas fitting work, both with respect to the ICI sector and all other sectors in Board Area #8. Specific wording of the appropriate bargaining unit must wait until the parties have had an opportunity to make submissions with respect to the description requested by the applicant in this regard.

26. This matter is referred to the Registrar for relisting for hearing to consider all matters that remain in issue, including those referred to above. This panel is not seized with this matter.