[1989] OLRB Rep. July 738
1585-88-JD International Association of Heat and Frost Insulators and Asbestos Workers, Local 95, Complainant v. E. S. Fox Limited, Pro Insul Limited, Sheet Metal Workers International Association, Local 562, Respondents v. Ontario Sheet Metal Workers' and Roofers' Conference, Intervener #1 v. Ontario Sheet Metal and Air Handling Group, Intervener #2 v. Master Insulators' Association of Ontario Inc., Intervener #3
BEFORE: G. T. Surdykowski, Vice-Chair, and Board Members W. Gibson and C. A. Ballentine.
APPEARANCES: David McKee and Joe De Wit for the complainant; W. J. McNaughton for the respondent E. S. Fox Limited; L. A. Richmond, G. Ward and C. Coffin for the Sheet Metal Workers; Peter Chauvin and Lou Cianfarani for the Ontario Sheet Metal Workers and Ontario Sheet Metal and Air Handling; Mark Contini and Ray Kurki for the Master Insulators' Association and for Pro Insul Limited.
DECISION OF THE BOARD; July 21, 1989
This is a jurisdictional dispute filed under section 91 of the Labour Relations Act. The work claimed to be in dispute by the applicant ("Local 95") is the application of aluminum cladding or lagging over insulation applied to oven circulation ducts in the paint shop of the Toyota plant in Cambridge, Ontario. The respondents E. S. Fox Limited ("E. S .Fox") and Pro Insul Limited ("Pro Insul"), and the interveners Masters Insulators' Association of Ontario Inc. ("Master Insulators") and the Ontario Sheet Metal and Air Handling Group (the "Sheet Metal Group") agree with the applicant's description of the work in dispute. The respondent Sheet Metal Workers International Association, Local 562 ("Local 562") and the intervener Ontario Sheet Metal Workers' and Roofers' Conference (the "Sheet Metal Conference") agree that the work in dispute includes that which is described by Local 95 but add that it also includes "all work related thereto, including the application of insulation material, preparatory to applying the cladding or lagging". It therefore appears that Local 562 and the Sheet Metal Conference are attempting to "up the ante" by expanding the work in dispute.
Further, as a preliminary matter, Local 562 and the Sheet Metal Conference, supported by the Sheet Metal Group, submit that the Board cannot, as a matter of "jurisdiction, law and public policy" (to the use the words of Mr. Richmond) grant the relief sought by the applicant (namely: (a) a declaration that E. S. Fox properly subcontracted the work in dispute to Pro-Insul and that the work was properly assigned to members of Local 95; and (b) a direction that E. S. Fox continue to subcontract the work in dispute to contractors bound to a collective agreement with Local 95, or assign it directly to members of Local 95). They submit that the work in dispute (as set out by the applicant) is the work of the sheet metal trade, which is a compulsory certified trade pursuant to the provisions of Apprenticeship and Tradesmen's Qualification Act R. S. 0. 1980, Chapter 24 (the "Apprenticeship Act"), and that it would therefore be unlawful for anyone, including the Board, to assign, or to direct the assignment of, the work in dispute to persons who are not journeymen or apprentice sheet metal workers within the meaning of the Apprenticeship Act. Because, they argue, the work in dispute can only be assigned to such sheet metal workers; that is, to members of Local 562 in this case, this complaint cannot succeed and ought to be dismissed without a hearing on the merits.
Local 95 does not concede that the work in dispute is the work of the sheet metal trade as defined in Regulation 57 to the Apprenticeship Act, and, further, that the Board cannot determine whether or not it is the work of a sheet metal worker or in the sheet metal trade in the absence of evidence with respect to how and by whom such work is done in practice. Indeed, Local 95 submitted that the Board need not determine that issue in this proceeding at all. It argued that the view of the Apprenticeship Act taken by Local 562 and the Sheet Metal Conference is overly technical and narrow, and that it does not reflect the purpose of that legislation. Further, it argued, the Apprenticeship Act and its Regulations themselves permit persons who are not sheet metal workers to do the work in dispute.
In his very able argument, counsel for Pro Insul and Master Insulators' agreed with Local 95's submissions and added that it would be inappropriate for the Board to dismiss this complaint on the basis of an assumption that it was or would be unlawful for an employer to assign the work in dispute to anyone who is not a journeymen or apprentice sheet metal worker; that is, that the Board should determine that issue, if at all, only with the benefit of evidence with respect thereto. Further, argued Mr. Contini, the Apprenticeship Act does not preclude a person who is neither a journeyman nor an apprentice sheet metal worker from doing sheet metal work and requires only that a person engaged in the sheet metal trade be a journeymen or apprentice sheet metal worker. It is on that basis also that he sought to distinguish the Irvcon Roofing & Sheet Metal (Pembroke) Ltd., [1981] OLRB Rep. Nov. 1594 line of cases upon which Local 562 and the Sheet Metal Conference relied.
Counsel for E. S. Fox concurred with the arguments of Local 95 and Mr. Contini, and reminded us that the Board takes it jurisdiction from the Labour Relations Act and that other legislations must be considered by the Board only to the extent that it impacts directly on the determinations which it must make. In this complaint, he pointed out, the Board was being requested to in effect confirm an assignment which had already been made as opposed to directing an assignment of the work in dispute.
In reply, Mr. Richmond submitted that the issue before the Board is whether or not it is satisfied that members of Local 95 are not qualified to and therefore cannot perform sheet metal work. He argued that there is no difference between working in the sheet metal trade and doing sheet metal work, and that the Apprenticeship Act must apply to everyone and not just to sheet metal workers if it is to have any meaning.
Sections 1(a), (b), 9, 11, 26(1), and 28 of the Apprenticeship Act provide that:
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 though his employer, training and instruction in a trade;
(b) "certified trade" means a trade designated as a certified trade under section 11;
9.-(l) 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 (l)(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.-(l) 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) satisfied the Director that he is qualified to work in the trade and meets such other requirements as the Director may prescribe.
26.-(1) Every person,
(a) who contravenes any provision of this Act or the regulations;
(b) who fails to carry out the terms of a contract of apprenticeship under this Act;
(c) who enters into a contract or arrangement relating to the employment of an apprentice that is not in accordance with this Act;
(d) who withholds any information with regard to the working or training conditions of apprentices or makes any misrepresentation with regard thereto;
(e) who obstructs, hinders, prevents or otherwise interferes with the carrying out of this Act or the regulations or the terms of a contract of apprenticeship under this Act; or
(f) who uses for the purpose of obtaining employment or business a certificate of apprenticeship, a certificate of qualification or a certificate of proficiency issued to another person, is guilty of an offence and on conviction is liable to a fine of not more than $1,000.
- The Lieutenant Governor in Council may make regulations,
(a) defining any trade;
(b) establishing an apprentice training program for any trade or group of trades;
(c) exempting any trade or class of persons in a trade from this Act and the regulations or from any provision of either of them;
(d) providing a system of proficiency certificates for any trade not designated as a certified trade under section 11;
(e) providing for approval by the Director of apprentice training programs established by employers;
(f) providing licences for trade schools teaching any trade to which this Act applies and respecting their issue and prescribing courses of study and methods of training in such trade schools and respecting their operation;
(g) respecting the periods of apprenticeship, qualifications and training of apprentices in any trade;
(h) approving or prescribing courses of training or study for apprentices, and fixing the credits to be allowed for such courses;
(i) prescribing, in respect of any trade, rates of wages for applicants for apprenticeship or apprentices or any class of applicants or apprentices;
(j) prescribing the maximum number of persons who may be apprenticed to an employer in a trade;
(k) respecting the ratio of apprentices to journeymen who may be employed by an employer in a trade;
(l) providing for Interprovincial Standards Examination and standing thereunder and for the recognition of certificates or standings granted under Interprovincial Standards Examinations in other provinces and the granting of certificates of qualifications pursuant thereto;
(in) providing for the granting of provisional certificates of qualification and the grounds therefor and the conditions thereof;
(n) respecting the renewal of certificates of qualification that have expired without being renewed and the conditions of renewal;
(o) providing for the issue of certificates of qualification or licences to persons who certificates or licences have been cancelled and the conditions upon which they may be issued;
(p) respecting the making, registration or transfer of contracts of apprenticeship;
(q) requiring and providing for the posting up in employers' premises of extracts from this Act or the regulations;
(r) defining any expression used in this Act for the purposes of this Act;
(s) providing for the prescribing fees;
(t) prescribing forms and providing for their use.
[emphasis added]
Regulation 36, R.R.O. 1980 under the Apprenticeship Act provides, in sections 5 and 6(1) that:
5.-(l) Sections 9 and 10 and subsection 11(2) of the Act do not apply to persons,
(a) permanently employed in an industrial plant while performing work entirely within the plant and premises or on the land appertaining thereto, except work performed in the maintenance and repair of motor vehicles, trailers or conversion units registered for use on a highway under the Highway Traffic Act; or
(b) while engaged in a trade or occupation that in the opinion of the Director is not one in respect of which compliance with sections 9 and 10 and subsection 11(2) of the Act is required.
(2) Sections 9 and 10 of this Act and section 10 of this Regulation do not apply to each person who is engaged in a trade for which an apprenticeship training program is established by an employer and approved by the Director.
TRAINING AND INSTRUCTION
6.-(1) The Director may approve an apprentice training program established by an employer if, in the opinion of the Director, the program,
(a) is of sufficient duration and content to warrant a training program;
(b) contains both practical work and related units of study;
(c) meets or satisfies a perceived need of an employer; and
(d) provides a marketable skill in an identifiable occupation.
Regulation 57, R.R.O 1980 under the Apprenticeship Act designates the trade of sheet metal worker as a compulsory certified trade and provides, in section 1(b):
- In this Regulation,
(b) "sheet metal worker" means a person who,
(i) manufactures, fabricates, assembles, handles, erects, installs, dismantles, reconditions, adjusts, alters, repairs or services all ferrous and non-ferrous sheet metal work of No. 10 U.S. Gauge or of any equivalent or lighter gauge and all other materials used in lieu thereof; and
(ii) reads and understands shop and field sketches used in fabrication and erection, including those taken from original architectural and engineering drawings or sketches,
but does not include a person employed in production commonly known as mass production.
It also provides schedules of "in-school" and "work experience" training. In the result, a person must be either a journeyman or apprentice in the sheet metal trade, within the meaning of the Apprenticeship Act or Regulations thereunder, in order to be able to lawfully work or be employed in the sheet metal trade in Ontario.
The Apprenticeship Act is a statute of general application in the Province of Ontario. In our view, its purpose is to regulate the training and qualifying of tradesmen, and to regulate the employment of persons in compulsory trades. Although it is not within the Board's mandate to enforce the Apprenticeship Act per se, the Board is obligated to make decisions and proceed in ways which are not inconsistent with laws of general application which are specifically directed at matters with which the Board must be concerned in the course of exercising its powers or performing its duties under the Labour Relations Act (see McLeod et al. v. Egan at al. (1974) 1974 CanLII 12 (SCC), 46 D.L.R. (3rd) 150 (Supreme Court of Canada); Re Ontario Hydro and Ontario Hydro Employees Union, Local 1000 et al., (1983) 1983 CanLII 1868 (ON CA), 41 O.R. (2d) 669 (Ontario Court of Appeal)).
Consequently, in applications for certification under section 144(1) of the Labour Relations Act in which the applicant is a construction industry trade union designated to represent in bargaining in the ICI sector of the construction industry persons engaged in a compulsory certified trade under the Apprenticeship Act, the Board has found it appropriate to describe the bargaining unit in terms of the journeymen and apprentices in that trade, and to include in such bargaining units only employees who are either such journeymen or apprentices (see, for example, Irvcon Roofing & Sheet Metal (Pembroke) Ltd., supra, 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 Nov. 1559 and [1986] OLRB Rep. Nov. 1563; P & M Electric (1982) Ltd., Northland Electric (Ont.) Limited, [1989] OLRB Rep. June 638. At paragraphs 10 and 11 of this decision in P & M Electric (1982) Ltd., supra, the Board commented that:
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.
The Board is also satisfied that there is no reason to not give the terms "journeyman" and "apprentice" the same meaning in proceedings before the Board as those terms have under the Apprenticeship and Tradesmen's Qualification Act. Consequently, it would be redundant to use words such as "qualified", "certified" or "registered" to describe either journeyman or apprentice electricians.
The question before the Board as a preliminary matter in this case is somewhat different however. In certification proceedings, the question which the Board sometimes faces is which employees are in the bargaining unit. In applications with respect to journeymen and apprentice electricians, for example, the question is whether persons employed by the respondent were journeymen or apprentice electricians, and performing work in that trade on the date of application. The preliminary issue in this proceeding is whether anyone other than a sheet metal worker, that is, a journeyman or apprentice in that trade, can lawfully do the work in dispute, which it is asserted by Local 562 and the Sheet Metal Conference is sheet metal work.
If the world of the construction industry was one in which there was no overlap between the jurisdictions of the various construction crafts or trades, it would probably be both a much simpler world, and also fair to say that doing the work that is done by a trade is equivalent to working in or being engaged in that trade. However, as the Board observed in Ellis Don Limited, [1988] OLRB Rep. Dec. 1254, the lines of demarcation between the jurisdictions of the various construction industry trade unions have never been clear and, have, in recent years, tended to become even more blurred. Trade union jurisdictions in the construction industry have always overlapped. If anything, these overlaps have increased in recent years.
In our view, the Apprenticeship Act was not intended to and has not had the effect of eliminating or lessening these jurisdictional overlaps. It does not stipulate that certain work can only be done by certain people. It does not specifically prohibit anyone from doing any particular kind of work, whether or not such work is a part of the work done by persons engaged in a compulsory certified trade. In that regard, the regulations under the Apprenticeship Act are full of overlaps between the trades with respect to which they have been promulgated. For example, there is an obvious overlap between the qualifications and the work of the various kinds of mechanics regulated under the Apprenticeship Act. There appears to be a similar overlap, in terms of training and work performed, between plumbers, (also a compulsory certified trade) and refrigeration and air-conditioning mechanics (which is a compulsory certified trade); between plumbers, steamfitters (also a compulsory certified trade) and fire protection installers; and between the electricians (another compulsory certified trade) and air and refrigeration mechanics. More apposite to this case, a review of the regulations reveal that auto body repairers (Regulation 22), construction millwrights (Regulation 29), electricians (Regulation 32), glaziers and metal mechanics (Regulation 39), iron-workers (Regulation 44), lathers (Regulation 45), painters (Regulation 50), plumbers (Regulation 52), refrigeration and air conditioning mechanics (Regulation 55), steamfitters (Regulation 59), and truck trailer repairers (Regulation 62) all clearly or very arguably are trained to use and do use sheet metal or sheet metal tools in the performance of the work of their trade. In addition, Regulation 36 under the Apprenticeship Act provides for the establishment of employer specific apprenticeship training programmes to which sections 9 and 10 of the Act do not apply. One such programme is for heat and frost insulaton and asbestos workers of the "Joint Apprentice Committee" (a joint committee of labour and management rather than a single employer) clearly provides for persons enrolled in it to be trained to use, among other things, sheet metal and sheet metal tools in the performance of their work.
It is readily apparent that the Apprenticeship Act does not provide any trade, even a compulsory certified trade, with an exclusive trade jurisdiction. We do not view Regulation 57 under the Apprenticeship Act, which must be read in the context of that Act and its regulations as a whole, as requiring that any person who does anything with sheet metal in the construction industry be a journeyman or apprentice sheet metal worker. It does prescribe that anyone who works as a sheet metal worker or in the sheet metal trade must be a journeyman or apprentice. However, because of the overlap of craft or trade jurisdictions in the construction industry, and in the regulations of trades by the Apprenticeship Act, the question of which trade a person is engaged in is not necessarily determined by the work that that person is doing at any particular time. In order to determine the trade in which a construction employee is working, it is essential to consider all of the work that the employee is qualified to or does do and not merely that part of his/her work which falls within the description of work done by a compulsory certified trade, particularly where such work clearly or arguably falls within an overlap between the jurisdiction of two or more trades (see Ellis Don Limited, supra). Consequently, the mere fact that a construction employee uses a particular material(s) or tool(s) in his/her work from time to time is not necessarily determinative of what trade that employee is in. Concomitantly, the mere fact that a person sometimes does what a sheet metal worker also sometime does, or sometimes uses sheet metal or sheet metal tools in the course of his/her employment or work, does not necessarily mean that that person is a sheet metal worker or that s/he is engaged in the sheet metal trade within the meaning of the Apprenticeship Act.
Local 562 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 Labour Relations Act, on April 28, 1986, the Sheet Metal Workers' International Association and the Sheet Metal Conference are designated as the employee bargaining agency to represent in bargaining in the industrial, commercial and institutional ("ICI") sector of the construction industry in Ontario all journeymen and apprentice sheet metal workers represented by any of their affiliated bargaining agents. However, this employee bargaining agency is also designated to so represent sheeters, sheeters' assistants, and material handlers represented by any of its affiliated bargaining agents.
In addition, the provincial agreement between the sheet metal employer and employee bargaining agencies also appears to cover employees other than journeymen and apprentice sheet metal workers; namely, probationary employees, material handlers, sheeters/deckers and sheeters/deckers assistants. At least some of the persons employed under this provincial agreement in these latter four classifications are neither journeymen nor apprentice sheet metal workers. However, they are employed under that provincial agreement to perform work which Local 562 considers to be sheet metal work.
In the result, and assuming, without finding, that the work in dispute in this case (or any of it) is "sheet metal work", we are not persuaded that we should find, as a preliminary matter, that it could be done lawfully only by journeymen or apprentice sheet metal workers. In our view, it would not be appropriate to make such a finding without the benefit of a full hearing on the merits of this complaint unless it was absolutely clear that it was so. In this case, the nature of the construction industry and the trade jurisdiction overlaps therein, the conduct of the sheet metal employee bargaining agency and its affiliated bargaining agents in representing persons who are neither journeymen or apprentice sheet metal workers but who perform what they consider to be sheet metal work, the structure of the Apprenticeship Act and the Regulations thereunder, and the nature of the evidence which Local 95, Pro Insul and Masters Insulators seeks to adduce with respect to the practice they assert is applicable to this complaint make it far from clear that the submissions of Local 562 and the Sheet Metal Conference are correct. Consequently, the motion is dismissed, but without prejudice to the matter being raised again in final argument.
The Registrar is directed to schedule this application for hearing unless, within two weeks the date hereof, the parties, or any of them indicate (in writing) that a further pre-hearing conference is both desirable and potentially useful, in which case the Registrar may schedule a further pre-hearing conference. Any such further pre-hearing should deal with a number of hearing days which will be required in the scheduling of such dates. In that regard, the parties are directed to provide their available dates for hearing between October 1, 1989 and April 30, 1990 within three weeks of the date hereof whether or not they wish a further pre-hearing conference or when it is scheduled, failing which the Board may set the dates on which this matter will be heard without further notice or consultation with them.