Ontario Labour Relations Board

[1988] OLRB Rep. December 1348

1395-88-R International Brotherhood of Electrical Workers, Local 1687, Applicant v. 510706 Ontario Limited, operating as Superior Contracting, Respondent

BEFORE: G. T. Surdykowski, Vice-Chair, and Board Members J. Redshaw and D. A. MacDonald.

DECISION OF THE BOARD; December 2, 1988, as amended January 6, 1989

1. The name of the respondent is amended to "510706 Ontario Limited, operating as Superior Contracting".

2. 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 December 12, 1977, the designated employee bargaining agency is the International Brotherhood of Electrical Workers and the IBEW Construction Council of Ontario.

3. This is an application for certification within the meaning of section 119 of the Labour Relations Act and is an application made under section 144(1) of the Act.

4. The Board authorized a Labour Relations Officer to inquire into and report to the Board with respect to the list and composition of the bargaining unit with respect to which this application was made. A Labour Relations Officer met with the parties for that purpose and has reported to the Board. The parties have been provided with a copy of the Officer's report and asked for their written submissions, if any, and whether they desired a hearing before the Board. The applicant has made written representations with respect to the manner in which it submits the Board should dispose of this application. It also took the position that no hearing is necessary. The respondent has made no written representations with respect to the Officer's report. Neither has it requested that the Board hold a hearing with respect to it. (We note that the respondent did request a hearing in its reply but failed to offer any reason for the Board to do so, either in accordance with section 97 of the Board's Rules of Procedure or otherwise. Nor did it reiterate that request at any subsequent time.) In the circumstances, the Board finds it appropriate to dispose of this application on the basis of the materials filed without an oral hearing.

5. According to the Officer's report, the parties have agreed that the bargaining unit herein should be described as:

(i) all registered electricians and electricians' apprentices in the employ of the Respondent in the ICI sector of the construction industry in the Province of Ontario; and

(ii) all registered electricians, and electricians' apprentices in the employ of the Respondent in all sectors of the construction industry in Board Area 19 and the Town of Englehart, save and except the ICI sector save and except non-working foremen and persons above the rank of non-working foreman.

[emphasis added]

6. The designation orders issued pursuant to section 139(1) of the Act describe the provincial units of employees contemplated by the province-wide collective bargaining scheme established by the Act for the industrial, commercial and institutional ("ICI") sector of the construction industry in terms of trades, and designate, for each such bargaining unit, an employer and an employee bargaining agency. In effect, such orders designate the trade(s) which "belongs" to each employee bargaining agency and its affiliated bargaining agents. As a result, the employee bargaining agencies, and their affiliated bargaining agents, can only represent, in the province-wide ICI collective bargaining scheme, those employees who are in a trade they have been designated to represent (see Ninco Construction Ltd., [1982] OLRB Rep. Nov. 1692; Manacon Construction Ltd., [1983] OLRB Rep. Mar. 407 and July 1104; Superior Plumbing and Heating Ltd., [1986] OLRB Rep. Nov. 1589; D. E. Witmer Heating and Plumbing Limited, [1987] OLRB Rep. Oct. 1228). Consequently, in applications for certification under section 144(1), the Board, although not necessarily bound to use the precise words of the designation order, cannot describe an ICI sector bargaining unit in a manner which is inconsistent with the relevant designation order. To accommodate the designation system, and recognizing the trade union representation in the construction industry has historically been along trade or craft lines, the Board's practice in applications under section 144(1) is to describe bargaining units in terms of the relevant trade using the words of the relevant designation order.

7. The designation referred to in paragraph 2 above designates the International Brotherhood of Electrical Workers and the IBEW Construction Council of Ontario "as the employee bargaining agency to represent in bargaining in the industrial, commercial and institutional sector of the construction all Journeymen and Apprentice Electricians and Journeymen and Apprentice Linemen" (emphasis added) represented by locals of the International Brotherhood of Electrical Workers as specified in the designation order. The designation order does not use the word "registered" anywhere and makes no reference to the Apprenticeship and Tradesman's Qualification Act, R.S.O. 1980, c. 24, which the applicant submits the Board should apply in determining which persons were employees in the bargaining unit on the date this application was made.

8. The Board's general practice is to describe bargaining units of electricians in terms of all electricians and electricians' apprentices employed by the respondent employer. This is consistent with the aforesaid designation order and we see no reason to depart from that practice in this case. Accordingly, the Board finds, pursuant to section 144(1) of the Act, that all electricians and electricians' 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 electricians and electricians' apprentices in the employ of the respondent in all other sectors of the construction industry within a radius of 81 kilometers (approximately 50 miles) of the Timmins Federal Building, and in the Town of Englehart, 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.

9. The parties agree that Mike Paquette, Guy Vien, Doug Cannon, Gerry Bergeron, Brian McCallum, Luc Desjardins, and Dave Krupka were employees in the bargaining unit on the date this application was made and are properly included on the list of employees. The respondent asserts that Mitch Delich and Joe Mawdsley should also be included. The applicant submits that they should not be included because neither of them was either a journeyman electrician or registered apprentice electrician at the time the application was made.

10. The trade of "electrician" is a compulsory certified trade under the Apprenticeship and Tradesman's Qualification Act. We have already observed that, in the ICI sector of the construction industry, employee bargaining agencies and their respective affiliated bargaining agents can only represent in bargaining those employees in the trade which they have been designated to represent (see paragraph 6 above). There are also cases in which the Board has concluded that where an applicant for certification is a construction trade union designate to represent, in bargaining in the ICI sector, persons in a compulsory trade within the meaning of the Apprenticeship and Tradesman's Qualification Act, it is appropriate to include in such bargaining units only employees who are either journeymen or registered apprentices in that trade (see Irvcon Roofing & Sheet Metal (Pembroke) Ltd., [1981] OLRB Rep. Nov. 1594; C. T. Windows Limited, [1982] OLRB Rep. Nov. 1597 and 1983 OLRB Rep. May 627; Mechanical Insulations Roofing and Siding Ltd., [1985] OLRB Rep. Apr. 549; Naylor Group Incorporated, [1986] OLRB Rep. Nov. 1559 and [1986] OLRB Rep. Nov. 1563).

11. However, whether or not it is appropriate for the Board to apply the Apprenticeship and Tradesman's Qualification Act in determining which persons are employees in a bargaining unit relating to a compulsory certified trade for the purposes of an application for certification under the Labour Relations Act (and, concomitantly, whether or not the Irvcon Roofing & Sheet Metal (Pembroke) Ltd., supra, line of cases is correct), and whether or not the Board does apply it in this case, the Board can say with certainty that the applicant is entitled to be certified. In other words, regardless of the disposition of the dispute between the parties with respect to the inclusion of Messrs. Delich and Mawdsley on the list of employees, the Board is satisfied that more than fifty-five per cent of the employees of the respondent in the bargaining unit, at the time the application was made, were members of the applicant on September 21, 1988, the terminal date fixed for this application and the date which the Board determines, under section 103(2)(j) of the Labour Relations Act, to be the time for the purpose of ascertaining membership under section 7(1) of the Act.

12. For the reasons given in Robin Hood Multi-Foods Inc., [1985] OLRB Rep. July 1159 (at paragraphs 6 to 11), with which we agree and adopt herein, there is no need to adjudicate the dispute between the parties, and thereby delay the issuance of certificates to the applicant, because the disposition thereof could not affect the result. Accordingly, we find it inappropriate and unnecessary to do so.

13. In the result, pursuant to section 144(2) of the Act, a certificate will issue to the applicant affiliated bargaining agent on its own behalf and on behalf of all other affiliated bargaining agents of the employee bargaining agency named in paragraph 2 above in respect of all electricians and electricians' apprentices in the employ of the respondent in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario, save and except non-working foremen and persons above the rank of non-working foreman.

14. Further, and also pursuant to section 144(2) of the Act, a certificate will issue to the applicant in respect of all electricians and electricians' apprentices in the employ of the respondent in all sectors of the construction industry, except the industrial, commercial and institutional sector, within a radius of 81 kilometers (approximately 50 miles) of the Timmins Federal Building, and in the Town of Englehart, save and except non-working foremen and persons above the rank of non-working foreman.