Independent Plumbing & Heating Contractors Association v. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 46, 1986 CanLII 1667

Ontario Labour Relations Board

[1987] OLRB Rep. May 734

2211-86-R Independent Plumbing & Heating Contractors Association, Applicant v. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 46, Respondent v. Metropolitan Plumbing & Heating Contractors' Association, Intervener

BEFORE: Harry Freedman, Vice-Chair, and Board Members D. A. MacDonald and J. Redshaw.

APPEARANCES: George W. Adams, Q.C., Richard Charney, Bill Gohn and Adelchi Franzolini for the applicant; Bryan Hackett, Laurence Arnold and Vince McNeil for the respondent; Mark Geiger, Robert Salisbury, Martin Rosenbaum and Ed Winter for the intervener.

DECISION OF THE BOARD; May 6, 1987

1This is an application for accreditation by which the applicant seeks to become the bargaining agent for a group of employers. The respondent is party to collective agreements with 32 employers in the construction industry which cover units of employees in the construction industry encompassing the geographic area and sector of the construction industry for which the applicant seeks bargaining rights. Therefore, this application is properly before the Board under section 125 of the Labour Relations Act.

2The applicant is an unincorporated association. It entered into an arrangement with the Toronto Construction Association on October 1, 1985 by which the Toronto Construction Association provides the necessary administrative and secretariat services to the applicant. The Board received detailed evidence concerning the formation of the applicant and its ongoing activity. The applicant has a constitution that was formally adopted at a membership meeting on March 25, 1986. The constitution provides for membership and the manner in which members may be admitted, initiation fees and membership dues, annual and special meetings of members, a board of directors and meetings of the board of directors, the offices of president, vice-president, secretary and treasurer and contains other provisions enabling it to carry on its affairs. At a membership meeting on October 15, 1986, the election of the board of directors and officers was ratified by the members. The applicant has a bank account and has appointed auditors.

3The objects of the applicant are set out in article II of the constitution which provides:

"The objects of the Association shall be:

A) to provide leadership and assistance to its members.

B) to speak with authority as the voice of its members.

C) to provide a forum for the free discussion of subjects relative to the mechanical contracting industry.

D) to act on matters relating to our industry that effects its members' interests.

E) to promote and maintain improved methods of business.

F) to promote and improve tendering practices and jobbing procedures.

G) to increase the knowledge, skill and proficiency of members and their employees.

H) to represent members in their relations with professional bodies and related associations.

I) to represent members before Legislative Committees, Boards of Enquiry, Commissions and other similar bodies.

J) to promote public relations and goodwill for its members.

K) to represent all contractors whom the Association has the authority to represent in negotiations, general application and administration and the interpretation of collective agreements and in the arbitration of labour disputes.

L) to become an accredited employers organization under the Labour Relations Act as amended from time to time or any legislation substituted therefor and to regulate relations between employers and employees in the mechanical trade and all ancillary and allied trades.

M) to undertake all matters as are necessary or incidental to the promotion and attainment of the objects of the Association."

4The employers whom the applicant represented on the application date executed employer authorizations. Those authorizations are signed by persons who are stated to be authorized signing representatives of the employers and are sealed by the employers' corporate seals where the employers are incorporated. The employer authorizations are in the following form:

EMPLOYER AUTHORIZATION

RETURN TO: Independent Plumbing & Heating Contractors Association 1 Sparks Avenue Willowdale, Ontario M2H 2W1

RE: ACCREDITATION AUTHORIZATION

FULL COMPANY NAME: ______________________________________

ADDRESS. ______________________________________

TELEPHONE NO.: (the 'Company"), hereby authorizes and appoints the INDEPENDENT PLUMBING & HEATING CONTRACTORS ASSOCIATION (the "Association") as its agent and representative to make an Application for Accreditation under the Labour Relations Act of the Province of Ontario and to thereafter act as its accredited bargaining agent, in regard to the United Association of Journeymen and Apprentices of the Plumbing & Pipe Fitting Industry of the United States and Canada, Local 46, for the following geographic area and sector:

Sector - Residential (Low Rise), or such modification of said sector as the Association may apply for or the Ontario Labour Relations Board may require.

Geographic Area - The geographic area for which the Union currently holds bargaining rights for the employees of the Company, being 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, or such modified description of Board Area No. 8 as the Association may apply for or the Ontario Labour Relations Board may deem appropriate.

Authorized signing

Representative ______________________________________

Signature PER: ________________________________

Date ______________________________________

Corporate Seal

(where applicable)

5Based on the oral and documentary evidence adduced at the hearing, we are satisfied that the applicant is an employers' organization within the meaning of section 117(d) of the Act and that it has been properly constituted. Furthermore, in view of article II of the applicant's constitution, and in particular, paragraphs K and L of article II and the employer authorization forms executed by the employers represented by the applicant, we are satisfied that each of the employers that the applicant represents has vested appropriate authority in the applicant to enable it to discharge the responsibilities of an accredited bargaining agent for purposes of section 127(3) of the Act.

6At the hearing of this matter, the parties advised the Board that they had reached an agreement on the description of the unit of employers appropriate for collective bargaining. That agreed upon description is:

all employers of plumbers and plumbers' apprentices, steamfitters and steamfitters' apprentices and welders on whose behalf the respondent has bargaining rights 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 in the low-rise part of the residential sector of the construction industry.

The parties also agreed upon a definition for the low-rise part of the residential sector of the construction industry.

7The Board ruled at the hearing of this matter that the agreed upon description of the unit of employers was appropriate for collective bargaining. In doing so, we recognized that we were segregating a part of a sector for purposes of determining the appropriate bargaining unit of employers.

8Section 126(1) of the Act states:

"Upon an application for accreditation, the Board shall determine the unit of employers that is appropriate for collective bargaining in a particular geographic area and sector, but the Board need not confine the unit to one geographic area or sector but may, if it is considers it advisable, combine areas or sectors or both or parts thereof."

That section permits the Board to determine the unit of employers appropriate for collective bargaining by reference to part of a sector where, in the Board's opinion, it is appropriate to do so.

9In 1973, the Board granted an accreditation certificate to the Metropolitan Plumbing and Heating Contractors Association, a division of the Mechanical Contractors Association Toronto in respect of the entire residential sector of the construction industry in the geographic area affected by this application. See Metropolitan Plumbing and Heating Contractors Association, a division of Mechanical Contractors Association Toronto, [1973] OLRB Rep. April 199. The Mechanical Contractors Association Toronto, although given notice of this proceeding, did not intervene. Indeed, the Board was advised at the hearing of this matter that the Mechanical Contractors Association Toronto had not exercised the bargaining rights granted in respect of the low-rise part of the residential sector of the construction industry since being named in the accreditation certificate.

10Section 107 of the Board's Rules of Procedure states:

"An employers' organization, ... that is served with a notice of application [for accreditation] or that claims to have an interest in the application, shall file its intervention, if any, in quadruplicate in Form 91 not later than the terminal date for the application and, if it fails to file such an intervention, it may be deemed by the Board to have abandoned any claim to have any interest in the application."

11Based on the advice received by the Board at the hearing of this matter and having regard to the failure of the Mechanical Contractors Association Toronto to file an intervention, the Board is satisfied that the Mechanical Contractors Association Toronto had abandoned any bargaining rights that it held with respect to the low-rise part of the residential sector of the construction industry in the geographic area affected by this application.

12Additionally, counsel for the intervener advised the Board that the intervener has not exercised any bargaining rights it held in respect of the low-rise part of the residential sector of the construction industry in the geographic area affected by this application. Counsel for the intervener submitted that because the intervener had not exercised bargaining rights in that part of the sector and geographic area at any time it should be taken to have abandoned its bargaining rights for employers in that part of the residential sector and geographic area whom the applicant seeks to represent.

13The Board in Metropolitan Plumbing and Heating Contractors Association, A Division of the Mechanical Contractors Association Toronto, supra, refused to divide the residential sector into high-rise and low-rise parts. The Board in that case wrote at page 200-201:

"Counsel for the intervener has requested that the Board divide the residential sector into two parts and that the order in this case should be limited to only one of these parts. The distinction made by counsel was between high rise residential construction and low rise residential construction. The basis for this distinction is that the work characteristics in high rise construction are different from the work characteristics in low rise construction. In light of this distinction counsel suggests two reasons why the Board should limit the accreditation order to high rise residential construction and should exclude from the order low rise residential construction. The first reason is that because of the differences in work characteristics between these two types of construction there is no community of interest or interchange between employers in these two parts of the residential sector. The second reason forwarded by counsel for the intervener was that whereas high rise residential construction is generally performed by 'unionized contractors' the work performed in low rise residential construction is generally performed by 'non-unionized contractors'; the affect of an accreditation order covering both sectors might very well lead to a 'misuse' of the accreditation order for the-purpose of organizing unorganized employees in low rise residential construction.

The applicant and the respondent both take the position with respect to these arguments by the intervener that there is no valid distinction to be made between high rise and low rise residential construction, and that the reasons proposed for limiting the accreditation order to high rise construction are not valid. The applicant further submits that even if the Board finds that the residential sector of the construction industry is made up of two such parts then the applicant is entitled to be accredited in both parts.

We will first deal with the argument of the intervener that because of the different work characteristics there is little community of interest between these two types of construction. The Board heard evidence that in certain instances there is a difference in the materials used in these two types of construction. However, the major difference seems to be that in high rise residential construction the work is done by a larger group of workmen performing specific jobs at the job site. On the other hand in low rise residential construction it would appear that the work is done by a few men who perform all of the jobs in a dwelling unit. There does not, however, appear to be a great deal of difference in the net result of the work done and it would appear that skilled workmen in the one type of construction could quite readily perform the tasks involved in the other type of construction. It is not therefore clear as to why there is no community of interest as suggested by the intervener. If the reason is merely the fact that low rise residential contractors are small contractors who don't bid on high rise construction jobs because they lack the manpower or capital, then such a distinction cannot be the basis for fragmenting the sector. Such a difference in size is already protected by the requirement that an applicant association obtain a 'double majority' of the contractors in an appropriate unit of employers for collective bargaining in accordance with section 115(1) of the Act.

If we examine the second argument for limiting the accreditation order to high rise residential construction, namely, that the order may be misused by the respondent as an organizing tool, an accreditation order only affects employers who have a bargaining relationship with the trade union with respect to which the employers' organization is an accredited employers' organization. It is true that the Act provides that any contractors for whom that trade union obtains a certificate as the bargaining agent of its employees is by the operation of section 116 bound by any collective agreement in existence between the accredited employers' organization and the trade union. However, we can see no difference between the position of the members of the intervener who are 'unorganized' and any other employer in any other sector where an accreditation order is issued. Indeed, given the clear language of subsection 4 of section 116 of the Act we can only conclude that such a result was contemplated by the Legislature.

In view of the foregoing we do not see any merit in the arguments for limiting the accreditation order to one part of the residential sector of the construction industry. However, we are also of the opinion that the distinction between high rise residential construction and low rise residential construction has not been made in such a manner as to convince the Board that the residential sector should be divided into two such parts. Indeed, counsel for the intervener found it very difficult to suggest anything other than a criteria which was admittedly arbitrary in distinguishing between these two parts of the residential sector. The witness called by the intervener suggests that the best criterion was probably whether or not there was an elevator in the building. Thus, those buildings without elevators were low rise residential construction whereas those with an elevator were high rise residential construction. It was not made clear what an elevator had to do with distinguishing between the work characteristics of these two types of construction. Further, the evidence tendered in support of this distinction was not such as to show an overwhelming difference between the installation of plumbing in a house and installation of plumbing in an apartment. We are of the opinion that unless there are clear and compelling reasons to divide a sector into parts the Board ought not to unnecessarily fragment the sectors of the construction industry set out in clause (e) of section 116 of the Act."

14In our opinion, there are in this case clear and compelling reasons to divide the residential sector of the construction industry in the geographic area for which the applicant seeks bargaining rights, that is Board geographic area 8, into two parts. In doing so, we are not creating a new sector of the construction industry. Sectors of the construction industry are determined on the basis of work characteristics (see section 117(e) of the Act) and can usually be ascertained by reference to the end use of the construction. See The Heavy Construction Association of Toronto, [1973J OLRB Rep. May 245 at 247-249. There was nothing presented to us to suggest that the work characteristics associated with the low rise part of the residential sector of the construction industry in Board geographic area 8 warrant finding that it is a discrete sector of the construction industry.

15While we are not concerned here with defining a sector of the construction industry, we are determining a unit of employers appropriate for collective bargaining. In making that determination regard must be had to the pattern of collective bargaining that exists at the time the application for accreditation is made. The determination of the appropriate bargaining unit ought to be supportive of the bargaining structure that the parties have fashioned unless that structure is not a viable one under the Act.

16In the General Contractors Section of the Toronto Construction Association, [1971] OLRB Rep. Nov. 719 the Board combined the industrial, commercial and institutional sector and the heavy engineering sector of the construction industry in describing the appropriate bargaining unit and excluded from that bargaining unit the electrical power systems sector based on the pattern of work performed by employers in those sectors. The Board based its exclusion of the electrical power systems sector from that bargaining unit by considering the existing structure of collective bargaining in that sector. The Board wrote in that case at page 722-723:

"Having regard to the evidence that the employers for whom the applicant is seeking accreditation by and large do work in both the industrial, commercial and institutional sector and the heavy engineering sector and the evidence of the interchange of rodmen working for a single employer between the two sectors, the Board in these circumstances deems it advisable to combine the industrial, commercial and institutional sector and the heavy engineering sector.

Having regard to the evidence of what appears to be a highly complicated structure of collective bargaining in the electrical power systems sector, the Board is not satisfied that the electrical power systems sector is appropriate for inclusion in the unit of employers in the instant application. With respect to the road sector, the evidence is that virtually no rodmen are employed in that sector. For this reason, the Board also is not satisfied that the road sector is appropriate for inclusion in the unit of employers in the instant application."

17In Mechanical Contractors Association Hamilton, [1972] OLRB Rep. Nov. 923 the Board combined the industrial, commercial and institutional sector and residential sector in one bargaining unit based, in large part, on the fact that the collective agreements between the employers represented by the applicant for accreditation and the respondent union applied to both of those sectors and that the employers worked in both sectors. The Board stated at page 931:

"Nevertheless, the collective agreement in question does cover such work and some employers bound by the agreement do work in both sectors. If the residential sector is not included, then for the existing contract the applicant in its accredited capacity would administer that part of it in the one sector but not in the other. Further agreements would have to be negotiated separately for the two sectors and, of course, with different consequences flowing therefrom. Thus, one day an employer might be operating under one set of rules and under another on the next day. In fact, this could happen on the same day. In the event of a lawful strike or lockout the union would be entitled to bargain with individual employers in the residential sector and not in the industrial sector. Similarly, the union would be entitled to lawfully supply men to the residential sector but not to the industrial sector.

The question of combining sectors or parts thereof is a matter of discretion for the Board under section 114. Up to the present time the Board has had little experience in dealing with this question. In one case the Board refused to combine sectors (The Ontario Erectors Association v. International Association of Bridge, Structural and Ornamental ironworkers, Local Union 721 et al [1971] OLRB Rep. (Aug.) 522 at 525), and in another (The General Contractors' Section of the Toronto Construction Association v. international Association of Bridge, Structural and Ornamental Ironworkers, Local Union 721 et al [1971] OLRB Rep. (Nov.) 719 at 721), the Board acceded to such a request. These cases do not appear to be of assistance in the present application. On balance, we do not, on the basis of the evidence before us, see any substantial reasons for refusing to combine the sectors requested in this case."...

18In Ontario Precast Concrete Manufacturers Association, Erectors Division [1975] OLRB Rep. March 171 the Board discussed the inclusion or exclusion of sectors from the description of the unit of employers at pages 174-175:

"In considering the question of whether to include or exclude a sector one of the tests employed by the Board has been whether the employers involved in the accreditation application have worked in the sector. See for example the General Contractors Section of the Toronto Construction Association v. The international Association of Bridge, Structural and Ornamental iron-workers, Local 721, (hereinafter referred to as Ironworkers Local 721) [1971] OLRB REP 719, where the Roads sector was excluded because employers affected were not working in this sector. See also Mechanical Contractors Association Hamilton v. The United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting industry of the United States and Canada, Local Union 67, (1972) OLRB REP 923 where the residential sector was combined with the industrial, commercial and institutional sector because the collective agreement in question covered both sectors and work was performed in both sectors though admittedly of a limited nature in the residential sector.

On the other hand the Board has been somewhat reluctant to exercise its discretion under section 114(1) to combine sectors and has not issued an accreditation certificate covering all of the sectors set out in section 106(e). Again the Board has not included the electrical power systems sector in any certificate issued up to this time. The issue was faced in the Ironworkers, Local 721 case and the sector was excluded 'having regard to the evidence of what appears to be a highly complicated structure of collective bargaining in the electrical power systems section .....' Immediately following this portion of the decision the Board excluded the roads sector because the employers affected were not working in this sector. It is reasonable to assume from this that had the employers affected not been working in the electrical power systems sector the reason for excluding the roads sector would have applied equally to the case of the electrical power systems sector. But different reasoning was applied to that sector. This conclusion is reinforced by the fact that G. & H. Steel Service of Canada and Gilbert Steel Ltd. described in the Ironworkers, Local 721 case as the companies which do the largest volume of work in the reinforcing steel field in the area affected by that case, were, on the evidence in this case, members of the intervener as of March 11, 1971. (See Exhibit #14). In any event the highly complicated structure of collective bargaining in the electrical power systems sector is given as the reason for excluding that sector in the ironworkers, Local 721 case.

On the evidence before us in this case it is clear that a highly complicated structure of collective bargaining was in existence in the sector at the time this application was made. The evidence also establishes that significant efforts are being made by the parties to that bargaining structure, and by certain employers, members of the intervener, to effect changes in that structure in order to establish an orderly industrial relations system in the sector. The evidence also establishes that in many respects the electrical power systems sector differs materially from other sectors and these differences should be taken into account in determining whether the collective bargaining structures, existing or proposed, in the sector should be materially altered. After having given careful consideration to all of the arguments advanced by the applicant and respondent for inclusion of the sector in the unit of employers in this case we do not consider it advisable in all of the circumstances to combine the electrical power systems sector with the other sectors involved in this case."

19The Board in Quality Control Council of Canada [1983] OLRB Rep. Jan. 140 reviewed the nature of the non-destructive testing industry and the collective bargaining relationships in that industry in determining the unit of employers. The Board's determination in that case also reflected the structure of collective bargaining that was in existence at the time of the application.

20The parties in this matter advised the Board that collective bargaining with the respondent in respect of the residential sector of the construction industry has been carried on by the intervener pursuant to the 1973 accreditation order and that such collective bargaining has excluded the low rise part of the residential sector. Both the intervener and the Mechanical Contractors Association Toronto have submitted that they have abandoned any bargaining rights that they have had in respect of that part of the residential sector before this application was made. The respondent and the employers represented by the applicant are parties to collective agreements that are applied to the low rise part of the residential sector. Additionally, the parties have agreed to a definition of the low rise part of the residential sector, thus avoiding the difficulties described in the Board's decision in the Metropolitan Plumbing and Heating Contractors Association, A Division of Mechanical Contractors Association Toronto case, supra. For these reasons, we were persuaded that there are, in the circumstances of this case, clear and compelling reasons to separate the low rise part of the residential sector of the construction industry.

21Therefore, based on the evidence and submissions of the parties presented to the Board and having regard to the agreement of the parties, the Board finds that all employers of plumbers and plumbers' apprentices, steamfitters and steamfitters' apprentices and welders on whose behalf the respondent United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 46 has bargaining rights in Ontario Labour Relations Board geographic area 8, that is 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 in the low rise part of the residential sector of the construction industry, constitute a unit of employers appropriate for collective bargaining.

22For purposes of clarity, the low rise part of the residential sector is defined as:

1. all single and semi-detached family dwellings,

2. all row-house and townhouse units,

3. (a) all residential projects now governed by the existing N.B.C. requirements for plastic pipe and fire ratings,

(b) all projects of mixed usage, where the residential portion comprises 50 per cent or more which are now governed by the existing N.B.C. requirements for plastic pipe and fire ratings,

4. apartment buildings of not more than six units,

5. all projects of mixed usage, where the residential portion comprises

50 per cent or more and less than three floors.

[Remainder of decision omitted. Certificate of accreditation issued:

Editor]