[1989] OLRB Rep. June 638
3109-88-R; 3120-88-R International Brotherhood of Electrical Workers, Local 353, Applicant V. P & M Electric (1982) Ltd., Northland Electric (Ont.) Limited, Respondent V. Group of Employees, Objectors; I.B.E.W. Construction Council of Ontario, International Brotherhood of Electrical Workers, Local 105, International Brotherhood of Electrical Workers, Local 353, Applicants V. P. & M. Electric Limited, Pomico Holdings Inc., P & M Electric (1982) Ltd., Northland Electric (Ont.) Limited, Respondents
BEFORE: G. T. Surdykowski, Vice-Chair, and Board Members W. N. Fraser and H. Kobryn.
APPEARANCES: S.B.D. Wahl, M. Oram and Robert Parker for the applicant; Stephen A. McArthur, Boyd Pollock and Brian Loewen for the respondents; Leo DiTomaso and Jason Longworth for the objectors.
DECISION OF THE BOARD; June 7, 1989, as amended July 4, 1989
The applicant is a trade union within the meaning of section l(l)(p) of the Labour Relations Act.
Board File No. 3109-88-R is an application for certification within the meaning of section 119 of the Act and is made pursuant to section 144(3). As such, it does not relate to the industrial, commercial and institutional sector of the construction industry which is referred to in section 117(e) of the Act.
Board File No. 3120-88-R is an application for relief under sections 1(4) and 63 of the Labour Relations Act.
The two matters came on for hearing together. On agreement of the parties, consideration of the application in Board File No. 3120-88-R was deferred until such time as it became necessary to deal with it for purposes of the certification application in Board File No. 3109-88-R.
In the certification matter, the applicant seeks to be certified for a unit of employees it describes as follows:
"all certified journeymen electricians and registered apprentices in the employ of the respondent in all sectors of the construction industry, excluding the industrial, commercial and institutional sector in, the Municipality of Metropolitan Toronto, the Regional Municipality of York and the County of Peel, the Township of Esquesing in the Towns of Oakville and Milton in the County of Halton and the Township of Pickering in the County of Ontario (OLRB Geographic Area 8); save and except non-working foremen and persons above the rank of non-working foreman."[sicl
The applicant submits that the Board is obliged to apply the Apprenticeship and Tradesmen's Qualification Act, R.S.O. 1990 Chapter 24 as a statute of general application, both in describing the bargaining unit and in determining which employees are properly included in it for purposes of this application. In that respect, it relies upon the Supreme Court of Canada decision in McLeod et al v. Egan et al (1974) 1974 CanLII 12 (SCC), 46 D.L.R. (3rd) 150 and a number of arbitral awards. The applicant also relies on the Board's own decisions in 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 Nov. 1563; Phase IV (Four) 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. It submits that where an applicant for certification is a construction trade union which represents persons in a compulsory certified trade within the meaning of the Apprenticeship and Tradesmen's Qualification Act, it is appropriate to describe the bargaining unit in terms of that trade and to include in such unit, for the purpose of an application for certification, only employees who are entitled to work in that trade pursuant to the Apprenticeship and Tradesmen's Qualification Act.
The respondent submits that although the Board is obliged to apply statutes of general application, the Board must not abdicate its duty, under section 6 of the Act, to determine the unit of employees that is appropriate for collective bargaining in an application for certification. In that respect, the respondent submits that, for the purpose of describing the bargaining unit in determining which employees are in it, the Board should concern itself with the work that employees do and not with their status under a statute other than the Labour Relations Act. The respondent could not refer the Board to any authority for its position. (In fairness to the respondent and its counsel, we note that in its April 10, 1989 decision herein, the Board (differently constituted in part) raised these issues with reference to the Board's recent decision in Superior Contracting, [1988] OLRB Dec. 1348.)
The applicant's standard construction industry bargaining unit has generally (there have been exceptions) been described in terms of journeymen and apprentice electricians. Adjectives such as "qualified", "certified", or "registered" have not (generally) been used in the bargaining unit description.
Sections 1(a) and (b), 9, and 11 of the Apprenticeship and Tradesmen's Qualification
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 through his employer, training and instruction in a trade;
(b) "certified trade" means a trade designated as a certified trade union 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 of 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 or apprenticeship or until the Director authorizes in writing the continuation or resumption of such work.
1I.(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 or qualification ion 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.
Pursuant to Regulation 32 R.R.O. 1980, under the Apprenticeship and Tradesman's Qualification Act, the trade of "electrician" is a compulsory certified trade. Consequently, a person must be either a journeyman or apprentice in that trade within the meaning of the Apprenticeship and Tradesman's Qualification Act in order to be able to lawfully work or be employed as an electrician in Ontario.
The Apprenticeship and Tradesman'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 trades, 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 Tradesman'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.
In our view, it would be inconsistent with the Apprenticeship and Tradesman'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 at 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 Tradesman'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 Tradesman's Qualification Act. Consequently, it would be redundant to use words such as "qualified", "certified" or "registered" to describe either journeyman or apprentice electricians.
We assume that the applicant's description of the bargaining unit (which was repeated by the respondent in its reply) has mistakenly rather than intentionally misdescribed Board Area 8.
In the result, the Board finds that all journeyman and apprentice electricians in the employ of the respondent in all sectors of the construction industry, excluding the industrial, commercial and institutional sector, 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, 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.
The respondent filed a list of employees which contained 17 names on Schedule "A". Subsequently, the parties agreed to the deletion of one name but the respondent sought to add four others. It was common ground that none of the four persons whose names the respondent sought to add are either journeyman or apprentices electricians within the meaning of the Apprenticeship and Tradesman's Qualification Act. Having regard to our conclusions as aforesaid, none of them should be included on the list of employees. Consequently, the Board finds that there were 16 employees in the bargaining unit at the time the application was made.
In support of its application for certification, the applicant filed membership evidence in it in the form of fourteen combination application for membership and receipt documents, ten of which refer to employees in the bargaining unit at the time the application was made. All the membership evidence contains the names and original signatures of the persons with respect to whom the documents were submitted. The receipts are countersigned by the collector and indicate that a payment of $1.00 was made by the person applying for membership within the six month period immediately preceding the terminal date fixed for the application. The documents and money were collected by more than one person. The applicant also filed a duly completed Form 80, Declaration Concerning Membership Documents, Construction Industry which attests to the regularity and sufficiency of the membership evidence.
Also filed with the Board were six handwritten statements of desire (commonly known as "petitions"), in opposition to the application. Three, which bear thirteen signatures in total, were filed in a timely manner. The remaining three, which contain one signature each, were neither delivered to the Board nor mailed by registered mail by the terminal date and are therefore untimely. Of the six employees in the bargaining unit who signed the timely petition, only one had previously signed an application for membership, and paid $1.00 with respect thereto, in the applicant. It is only those bargaining unit employees who first signed union membership documents and subsequently signed a petition whose signatures are relevant to the Board's considerations. This is because employees for whom no membership evidence is filed are treated as being opposed to the application. Consequently, the signature of a non-union member on a petition can add nothing to the assessment of the support enjoyed by the applicant (see for example, Unlimited Textures Company Limited, [1984] OLRB Rep. Jan. 138). The Board therefore finds that the timely petition is not relevant to its considerations because even if it is voluntary, it would not raise sufficient doubt concerning the continued support for certification enjoyed by the applicant to cause the Board to exercise its discretion under section 7(2) of the Act to direct that a representation vote be taken despite the fact that more than fifty-five per cent of the employees in the bargaining unit were members of the applicant at the relevant time.
The Board is satisfied, on the basis of the evidence before it, 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 April 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 said Act.
The hearing with respect to these two applications will continue on the dates previously scheduled. The purpose of the hearing is to hear the evidence and representations of the parties with respect to all outstanding issues in them.