United Brotherhood of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local Union 800 v. O. J. Pipelines Incorporated, 1989 CanLII 2995

[1989] OLRB Rep. September 976

1028-89-R United Brotherhood of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local Union 800, Applicant v. O. J. Pipelines Incorporated, Respondent

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

APPEARANCES: A. J. Ahee and M. Zangari for the applicant; no one appearing on behalf of the respondent.

DECISION OF THE BOARD; September 21, 1989

1. 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 clause (a) of section 139(1) of the Act on May 14, 1982, the designated employee bargaining agency is the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, and the Ontario Pipe Trades Council of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada.

2. This is an application for certification within the meaning of section 119 of the Labour Relations Act and is an application made pursuant to section 144(1) of the Act which provides that:

144.-(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.

3. In paragraph 7 of its application herein, the applicant describes the unit of employees that it claims to be appropriate for collective bargaining as being:

All plumbers, plumbers' apprentices, steamfitters and steamfitters' apprentices in the employ of the Respondent engaged 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; and

All plumbers, plumbers' apprentices, steamfitters ad steamfitters' apprentices in the employ of the Respondent in Board Geographic Area No. 19, excluding the industrial, commercial and institutional sector of the construction industry, save and except non-working foremen and per­sons above the rank of non-working foreman.

In paragraph 10 of its application, the applicant requests "that a clarity note be added to the effect that welders working at the plumbing and steamfitting trades are employees in the bargaining unit".

4. The respondent failed to file a reply, a list of employees in the bargaining unit for which the applicant seeks to be certified, or any other material whatsoever, either within the time fixed therefore in accordance with the Labour Relations Act and the Board's Rules of Procedure or at all.

5. In circumstances such as these, the Board would normally proceed to process the appli­cation based on the material filed by the applicant pursuant to its powers under section 102(14) of the Act. However, the Board has recently indicated its concern with respect to whether the clarity note being requested herein is appropriate (see, for example, Heritage Mechanical Ltd., [1988] OLRB Rep. June 596). The bargaining unit applied for in this application is, subject to the substi­tution of the geographic area(s) specific to each application, the applicant's standard bargaining unit which the Board has, since the advent of provincial bargaining, historically found to be appro­priate for collective bargaining in applications by affiliated bargaining agents of the designated employee bargaining agency referred to in paragraph 1 above which are made pursuant to section 144(1) of the Act. It was also the Board's practice, prior to 1988, to issue a clarity note declaring that welders working in the plumbing or steamfitting trades are included in such a bargaining unit when it was requested to do so in such applications. The appropriateness of such a clarity note was raised as an issue, apparently for the first time, in Orocon Inc., (Board File No. 2383-87-R) but that matter was disposed of without the issue being decided. Since then, no such clarity notes have been issued as far as we are aware. Nor has the issue been decided in any other case (in Heritage Mechanical Ltd., supra, the application was disposed of by the Board without it being necessary to determine that issue).

6. Although section 6(1) of the Labour Relations Act gives the Board a discretion in deter­mining "the unit of employees that is appropriate for collective bargaining", that discretion is lim­ited in applications for certification in the construction industry by sections 6(3), 119, 139 and 144 of the Act. All applications for certification in the construction industry must be made pursuant to sections 119 and 144 (Clarence H. Graham Limited, [1981] OLRB Rep. Sept. 1195; Ninco Con­struction Ltd., [1982] OLRB Rep. Nov. 1692; Manacon Construction Limited, [1983] OLRB Rep. March 407 and July 1104; Ellis-Don Limited, [1988] OLRB Rep. Dec. 1254 and [1989] OLRB Rep. March 234; Wraymar Construction and Rental Sales Ltd., [1989] OLRB Rep. June 682). Under the province-wide bargaining provisions of the Act, there are organizations of trade unions, called designated employee bargaining agencies, which are designated to represent in the indus­trial, commercial and institutional ("ICI") sector of the construction industry those employees in certain specified trades or crafts (for our purposes those terms are synonymous) who are repre­sented by the trade unions, known as affiliated bargaining agents, which constitute them. A trade union which is an affiliated bargaining agent of a designated employee bargaining agency may, at its option, apply for certification under either section 144(1) or (3), or enter into voluntary recogni­tion agreements under section 144(4). Trade unions which are not represented by a designated employee bargaining agency, and which are therefore not affiliated bargaining agents to which sec­tions 144(1) through (4) of the Act apply (such as the Christian Labour Association of Canada) can apply for certification or enter into voluntary recognition agreements in the construction industry under section 144(5).

7. The designation orders issued pursuant to section 139(1) of the Act describe the provin­cial units of employees for the province-wide collective bargaining scheme established by the Act for the ICI sector of the construction industry in terms of trades, and designate, for each such pro­vincial bargaining unit, an employer and an employee bargaining agency. In effect, such designa­tion orders designate the trades which "belong" to each employee bargaining agency and its affili­ated bargaining agents for purposes of the province-wide collective bargaining scheme. In the result, 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 (Ninco Construction Ltd., supra; Manacon Construction Limited, supra; Superior Plumbing & Heating Ltd., [1986] OLRB Rep. Nov. 1589; D. E. Witmer Plumbing and Heating Limited, [1987] OLRB Rep. Oct. 1228; Ellis-Don Limited, supra; Wraymar Construc­tion and Rental Sales Ltd., supra). Indeed, the structure of the Act requires an affiliated bargaining agent to seek bargaining rights for all employees in the trade(s) which its employee bargaining agency has been designated to represent in bargaining in the ICI sector (in the pertinent designa­tion order) when making an application for certification which relates to that sector (Dufresne Pil­ing Co. (1967) Ltd.,[1984] OLRB Rep. July 924; Kraft Construction Company (1978) Ltd., [1989] OLRB Rep. Feb. 169; Wraymar Construction and Rental Sales Ltd., supra). 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 a bargaining which relates to the ICI sector in a manner which is inconsistent with the applicable designation order. To accommo­date the designation system, and recognizing that trade union representation in the construction industry has historically been along trade lines, the Board's practice, in applications under section 144(1), is to describe bargaining units in terms of the relevant trade and to use the words of the applicable designation order.

8. Pursuant to the designation order referred to in paragraph 1 above, the United Associa­tion of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, and the Ontario Pipe Trades Council of the United Association of the Plumbing and Pipefitting Industry of the United States and Canada, has been designated to represent in bargain­ing in the ICI sector of the construction industry" all Journeymen and Apprentice Plumbers and Pipefitters" represented by its affiliated bargaining agents.

9. Sections 1(a) and (b), 9 and 11 of the Apprenticeship and Tradesmen's Qualification Act, R.S.O. 1980, Chapter 24, provide that:

10. In this Act,

(a) "apprentice" means a person who is at least sixteen years of age and who has entered into a contract under which he is to receive, from or through his employer, training and instruction in a trade;

(b) "certified trade" means a trade designated as a certified trade under section 11;

9.-(1) Every person who commences to work at a trade for which an apprentice training pro­gram is established but who does not hold a certificate of apprenticeship or qualification in that trade shall,

(a) forthwith apply in the prescribed form for apprenticeship in that trade; and

(b) within three months after commencing to work in that trade, file with the Director his contract of apprenticeship.

(2) Every person who fails to comply with subsection (1) shall, upon the expiration of the period of three months mentioned in clause (1)(b), cease to work in that trade until he files with the Director his contract of apprenticeship or until the Director authorizes in writing the continua­tion or resumption of such work.

11.-(1) The Lieutenant Governor in Council may designate any trade as a certified trade for the purposes of this Act, and may provide for separate branches or classifications within the trade.

(2) No person, other than an apprentice or a person of a class that is exempt from this section or a person referred to in subsection (4), shall work or be employed in a certified trade unless he holds a subsisting certificate of qualification in the certified trade.

(3) No person shall employ any person, other than an apprentice or a person of a class that is exempt from this section or a person referred to in subsection (4), in a certified trade unless the person employed holds a subsisting certificate of qualification in the certified trade.

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

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

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

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

10. It is evident from the Board's decisions in cases like 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 & Siding Ltd., [1985] OLRB Rep. April 549; Naylor Group Incorporated, [1986] OLRB Rep. Nov. 1563; Phase JV (4) Electrical Contractors Limited, Board File No. 2792-87-R, unreported decisions dated March 25, 1988 and July 5, 1988), and B. C. Meck, [1988] OLRB Rep. June 546 that the focus of the Board's concern in applications for certification relating to bargaining units described in terms of compul­sory certified trades is that persons working or employed in such trades be lawfully so engaged before they are considered to be employees for certification purposes. Consequently, the Board has applied the Apprenticeship and Tradesmen's Qualification Act in such cases in determining the list of employees in such bargaining units for certification purposes.

11. Pursuant to Regulations 52 and 59 (R.R.O. 1980) respectively under the Apprenticeship and Tradesmen's Qualification Act, the trades of "plumber" and "steamfitter" are compulsory cer­tified trades. The Board has determined that the labels "pipefitter" and "steamfitter" are synony­mous for purposes of the Labour Relations Act (D. E. Witmar Plumbing and Heating Limited, supra, at paragraph 9). Consequently, a person must be either a journeyman or apprentice in the plumbing or steamfitting trades within the meaning of the Apprenticeship and Tradesmen's Qualifi­cation Act to be able to lawfully work or be employed as a plumber or steamfitter respectively in the Province of Ontario.

12. In P & M Electric (1982) Ltd., [1989] OLRB Rep. June 638, the Board observed that:

13. The Apprenticeship and Tradesmen's Qualification Act is a statute of general application in the Province of Ontario. Its purpose is to regulate the training and qualifying of tradesmen and, in the case of a compulsory certified trade, to regulate the persons who can work at various trades so designated. Although it is not for this Board to enforce statutes like the Apprenticeship and Tradesmen's Qualification Act, the Board is, in our view, obligated to not make decisions or proceed in ways which are inconsistent with laws of general application which are specifically directed at matters with which it must be concerned in the course of exercising its powers in per­forming the duties conferred or imposed upon it by or under the Labour Relations Act.

14. In our view, it would be inconsistent with the Apprenticeship and Tradesmen's Qualification Act for the Board to find that persons who are neither qualified journeyman nor apprentices, within the meaning of that legislation, to be in a bargaining unit which relates to a compulsory certified trade for the purpose of certification proceedings before the Board. Further, the issue of community of interest in trade or craft bargaining units is determined primarily on the basis of the skills and working conditions which are characteristic of employees engaged in that craft or trade. In the construction industry, the community of interest question has largely been resolved by the development and operation of businesses and trade unions in that industry along trade or craft lines. Both the structure of the Labour Relations Act and the Board's approach to the construction industry recognize that (see Ellis Don Limited, [1988] OLRB Rep. Dec. 1254, particularly at paragraphs 37-46). In our view, it would make no labour relations sense to include in a construction industry bargaining unit which relates to a compulsory certified trade, for the purpose of certification proceedings under the Labour Relations Act, persons who cannot lawfully work in the bargaining unit before or after certification and who share no real commu­nity of interest with electricians who are entitled to work in that trade pursuant to the Apprenticeship and Tradesmen's Qualification Act.

(See also McLeod et al. v. Egan et al, (1974) 1974 CanLII 12 (SCC), 46 D.L.R. 3rd 150) S.C.C.); Re Ontario Hydro and Ontario Hydro Employees Union, Local 1000 et al. (1983) 1983 CanLII 1868 (ON CA), 41 O.R. 2nd 669) (Ont. C.A.)). We agree and find that reasoning equally apposite to this case which deals with the compulsory cer­tified trades of plumbing and steamfitting.

13. Having regard to section 144(1) of the Labour Relations Act, the provisions of the Apprenticeship and Tradesmen's Qualification Act and Regulations thereunder, and the designa­tion order referred to in paragraphs 1 and 8 above, the Board is satisfied that a person must be a journeyman or apprentice plumber or steamfitter, within the meaning of the Apprenticeship and Tradesmen's Qualification Act in order to be counted as an employee in a bargaining unit described in terms of such tradesmen in an application for certification which relates to the ICI sector of the construction industry.

14. This brings us to the question of whether welders said to be working in the plumbing or steamfitting trades can be considered to be employees in such a bargaining unit. We note that while welding is subject to the provisions of the Boilers and Pressure Vessels Act, R.S.O. 1980 Chapter 46, it has not been recognized as a separate trade either under the Apprenticeship and Tradesmen's Qualification Act or by the Board. Nor is either welding or welders the subject of any of the designation orders which have been issued to date. Indeed, a number of construction indus­try trade unions, including the applicant, claim some type of welding as part of their trade jurisdic­tion.

15. In the result, we find ourselves constrained to conclude that the only persons who per­form welding functions who should be included as employees in a bargaining unit of plumbers and steamfitters are those who are either journeymen or apprentices in one or other of those trades.

16. Counsel for the applicant referred us to the Board's decision in Rainscreen Metals Systems Incorporated, [1989] OLRB Rep. May 482 in which the Board found it appropriate to stipu­late in a clarity note that sheeters, sheeters' assistants and material handlers were employees in a bargaining unit of journeymen and apprentice sheetmetal workers. The trade of sheetmetal worker is a compulsory certified trade under the Apprenticeship and Tradesmen's Qualification Act. How­ever, there is no indication that the appropriateness of that clarity note was put in issue in that pro­ceeding. Nor is it obvious that the employees working as sheeters, sheeters' assistants and material handlers to which that clarity note refers were other than apprentice or journeymen sheetmetal workers. Finally, the "Sheet Metal Workers" designation entitles the employee bargaining agency named therein to represent journeymen and apprentice sheetmetal workers and sheeters, sheeters' assistants and material handlers. (There is no reference to welders in the designation order which governs this application). Consequently, the Rainscreen decision is readily distinguishable from this case.

17. Counsel for the applicant also complained about the unfairness that would result from a decision which precludes the applicant and its employee bargaining agency from becoming the exclusive bargaining agents of welders who are engaged in the plumbing or steamfitting trade but who are neither journeymen nor apprentice plumbers or steamfitters. He set out the example of construction industry employers who employ primarily or exclusively such welders. Indeed, it appears that it is not uncommon for both unionized and non-unionized employers to employ weld­ers who are neither journeymen nor apprentice plumbers or steamfitters to perform work generally considered to be in the plumbing or steamfitting trade.

18. The Board is not unaware or unsympathetic to the dilemma faced by the United Associ­ation of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada in this respect, particularly since a significant number of its members are (so we understand) welders who are or neither journeymen nor apprentice plumbers or steamfitters. The Board also accepts that, to the extent that it is possible, the Board's practices and policies should reflect and be responsive to the real world of labour relations rather than vice versa. However, the applicant cannot have it both ways. Either the Apprenticeship and Tradesmen's Qualification Act applies or it does not. The applicant has consistently argued in cases before the Board that it does apply, and the Board, as the Irvcon Roofing & Sheetmetal (Pembrook) Ltd. line of cases illustrates, has accepted that argument. As the Board pointed out in P & M Electric (1982) Ltd., supra, it is not for this Board to enforce the Apprenticeship and Tradesmen's Qualification Act as such.

19. The Board is an administrative tribunal established by the Labour Relations Act to administer and apply that legislation. As such it is empowered and obligated "to determine all questions of fact or law that arise in any matter before it" (section 106(1)). However, as a creature of statute, the Board has no powers other than those conferred upon it by or under the Labour Relations Act (or other legislation which delegates powers to it; see, for example, section 24 of the Occupational Health and Safety Act, R.S.O. 1980 Chapter 321). Consequently, although it is obliged to apply laws of general application the Board has only those powers which have been con­ferred upon it by statute. The Board has no separate or additional inherent or equitable jurisdic­tion to "do what it thinks is best". In the Board's view, the solution to any difficulties which may be occasioned by the conclusions it has found itself constrained to arrive at in this case are to be found, if at all, in another forum.

20. We understand that the Ontario Pipe Trades Council has requested that the Minister amend the present designation order so that the employee bargaining agency referred to in para­graph 1 above would be entitled to represent in bargaining in the ICI sector "all plumbers, plumb­ers' apprentices, steamfitters and steamfitters' apprentices and all qualified welders working in the plumbing and steamfitting trades". Although that may be a solution, we observe that adopting that approach would seem to create a conflict between the designation order and the Apprenticeship and Tradesmen's Qualification Act. On the other hand, this kind of apparent conflict has existed for some years between the sheetmetal workers designation and the Apprenticeship and Trades­men's Qualification Act (see E. S. Fox Limited, [1989] OLRB Rep. July 738).

21. In the result, the Board is satisfied that it is unnecessary to include the clarity note requested by the applicant herein insofar as it relates to welders who are either journeymen or apprentice plumbers or steamfitters. The Board is also satisfied that the clarity note is not appro­priate insofar as it relates to other persons employed as welders working in the plumbing or steamfitting trades since those persons are not properly included as employees in the bargaining unit applied for herein for certification purposes.

22. Further, and having regard to the material before the Board, and pursuant to section 144(1) of the Labour Relations Act, the Board finds that all plumbers, plumbers' apprentices, steamfitters and steamfitters' 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 plumbers, plumbers' apprentices, steamfitters and steamfitters' apprentices in the employ of the respondent in all sectors other than the industrial, commercial and institutional sector of the con­struction industry within a radius of 81 kilometres (approximately 50 miles) of the Timmins Federal Building, 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.

23. In support of its application, the applicant filed documentary evidence of membership in it in the form of six combination application for membership and receipt cards. All six cards con­tain the original signature of the person with respect to whom they are submitted and each indi­cates that a payment of $1.00 has been made with respect to membership in the applicant within the six-month period immediately preceding the terminal date fixed for this application. The cards and money were collected by one person who countersigned the receipts on behalf of the appli­cant. The applicant also filed a Form 80, Declaration Concerning Membership Documents, Con­struction Industry which attests to the regularity and sufficiency of its membership evidence.

24. The Board is satisfied on the basis of all the evidence before it, that more than fifty-five percent of the employees of the respondent in the bargaining unity at the time the application was made, were members of the applicant on August 3, 1989, 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.

25. Consequently, 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 1 above in respect of all plumbers, plumbers' apprentices, steamfitters and steamfitters' 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.

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