United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada Local Union 800 v. Gorf Contracting Limited

[1991] OLRB Rep. April 483

1057-90-R United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada Local Union 800, Applicant v. Gorf Contracting Limited, Respondent v. Group of Employees, Objectors

BEFORE: G. T. Surdykowski, Vice-Chair, and Board Members D. A. MacDonald and B. L. Armstrong.

APPEARANCES: M. Zangari and A. Ahee for the applicant; Jay Josefo for the respondent; Enrique Beboso for the objectors.

DECISION OF THE BOARD; April 12, 1991

1. By oral decision given at the hearing on April 3, 1991, the Board directed that certificates issue in the manner and for the reasons which follow.

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 of the Act on May 14, 1982, that 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.

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

4. The applicant sought to be certified as the exclusive bargaining agent for a bargaining unit it described as follows:

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 and steamfitters' apprentices in the employ of the Respondent in Board Geographic Area No. 20, 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.

This is very much a "standard" bargaining unit description for the applicant.

5. The respondent agreed with the applicant's bargaining unit description as far as it went but submitted that the "appropriate geographic area" for non-industrial, commercial and institutional sectors of the construction industry should include Board area 19 as well as well as Board area 20. The respondent submitted that both Board areas should be included because of the community of interest between the affected employees in them and to prevent fragmentation of the respondent's workforce.

6. There is no doubt that a bargaining unit including, plumbers, steamfitters and their apprentices employed by the respondent in the industrial, commercial and institutional ("ICI") sector of the construction industry in the Province of Ontario and such persons employed by the respondent in non-ICI construction in Board Areas 19 and 20 would constitute a bargaining unit of employees appropriate for collective bargaining. In other words, Board Area 19 plus Board Area 20 would be an "appropriate geographic area" within the meaning of section 144(1). That does not, however, mean that Board Area 20 does not by itself constitute such an appropriate geographic area. As the Board observed in Dagmar Construction Limited, [1987] OLRB Rep. Apr. 480, the Board, has, since Colonist Homes Ltd., [1980] OLRB Rep. Dec. 1729, interpreted section

144 as permitting but not requiring a trade union to apply to be certified for employees in more than one geographic Board area. At paragraph 12 of Dagmar Construction Limited, supra, the Board held that:

12. Section 144(1) of the Act requires only that an application for certification relating to the ICI sector of the construction industry be for a bargaining unit consisting of all employees who could be bound by a provincial agreement together with all other unrepresented employees in at least one appropriate geographic area. In our view, the language of section 144(1) contemplates that an employer in the construction industry may have unrepresented construction employees in other than the ICI sector of the construction industry in more than one geographic area, The words "in at least one appropriate geographic area" permit a trade union to make its application with respect to more than one geographic area. They do not, in our view, require the trade union to do so. Furthermore, in determining the unit of employees that is appropriate for collective bargaining, and ascertaining the number of employees in that bargaining unit at the time the application was made and the level of support in the unit for the trade union's application for certification, the Board has developed practices and procedures that recognize that the make up of any given employer's employee complement rarely remains constant. Even in non-construction businesses employees may be continually coming and going as a result of hiring, firing, layoffs, leaves of absence, and so on. The nature of the construction industry is such that employment with a particular employer tends to be even more ephemeral. In the face of this labour relations reality, the Board must, under section 7(1) of the Act, ascertain the number of employees in the bargaining unit and the number of such employees who are members of the applicant trade union at particular times. In addition, section 119(2) of the Act specifies that, in applications for certification under the construction industry provisions of the Act, the Board need not have regard to any increase in the number of employees in a bargaining unit after the application was made. The rule adopted by the Board in the construction industry is that persons who are not both employed by and at work for the respondent employer on the date the application is made are not included as employees in the bargaining unit for purposes of "the count" even though their absence on the date of application was due to uncontrollable circumstances (see for example, Smiths Construction Company Arnprior Limited, [1984] OLRB Rep. Mar 521; E & E Seegmiller Limited, [1987] OLRB Rep. Jan. 41). The requirements of the Act and the ephemeral nature of employment in the construction industry are such that it is neither possible nor practical for the Board to speculate about what persons may at some unspecified time in the future be affected by a successful application for certification. Accordingly, the applicant in this case is not required to make its application in relation to Board Area 8.

[emphasis added]

Further, as the Board pointed out in Superior Plumbing & Heating Company Ltd., [1986] OLRB Rep. Nov. 1589, the "community of interest" concept has limited application in the construction industry, which is fragmented by its very nature and subject to the overriding principles and structure of the construction industry provisions of the Act. The applicability of the community of interest concept and the Board's general discretion to determine whether a bargaining unit is appropriate in the construction industry are limited by sections 6(3), 119, the designations issued under section 139, and section 144 of the Act (see, for example, Wraymar Construction and Rental Sales Ltd., [1989] OLRB Rep. June 682; Ellis-Don Limited, [1988] OLRB Rep. Dec. 1254 and [1989] OLRB Mar. 234; Beaver Brook Estates Inc., [1989] OLRB Rep. Apr. 322; Beling Cement Construction Limited, [1989] OLRB Rep. July 709).

7. The issue before the Board in applications like this one is not which bargaining unit is the most appropriate, but rather whether the bargaining unit applied for is an appropriate one.

8. In this application, the respondent was unable to point either to any changes in the construction industry or to any special circumstances in its case which merited a different approach by the Board either generally or specifically in this case. Accordingly, the Board found, pursuant to section 144(1) of the Act, 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 of the construction industry other than the industrial, commercial and institutional sector in the Town of Kirkland Lake and the geographic Townships adjacent thereto in the District of Temiskaming (i.e. Board Area 20), 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. With respect to the list of employees in the bargaining unit, the parties agreed that R. Bleau, J. Middleton, L. Landers and F. Knox were employees in the bargaining unit on the date of application herein. They also agreed that J. Sornberger and J. Traykowicz were not at work on the date of application and should therefore not be included on the list of employees. As a result of the Board's ruling with respect to the bargaining unit description as aforesaid, B. Butterworth, M. Caron, J. Nabuab, R. Raymond, and L. Scott (who were at work for the respondent in other than the ICI sector in Board area No. 19 on the date of application) were not employees in the bargaining unit. Eighteen other individuals had been included by the respondent on the list of employees it filed. The applicant challenged their inclusion on the basis that they were not journeymen or apprentice plumbers or steamfitters within the meaning of the Apprenticeship and Tradesmen's Qualifications Act (the "Apprenticeship Act"), which the respondent conceded they were not.

10. The respondent did not dispute that the Board could apply the Apprenticeship Act, but it submitted that the Board should not do so. Counsel submitted that the Board should determine the issue on the basis of the work that the individuals in question were actually doing at the material times, and not on the basis of whether they held the status of a journeyman or apprentice in the trade. In essence, counsel submitted that if a person was performing either plumbing or steamfitting work s/he should be included in the bargaining unit for purposes of an application for certification.

11. The Board dealt with this very issue in 0. J. Pipelines Incorporated, [1989] OLRB Rep. Sept. 976 as follows:

12. 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 IC! 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 results 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.

13. 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.

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

1.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 1V (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) 5.C.C.); Re Ontario Hydro and Ontario Hydro Employees Union, Local 1000 et al. (1983) 1983 CanLII 1868 (ON CA), 41 OR. 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 Regnlations 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.5.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 [sic] 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, to be reported in [1982] OLRB Rep. July).

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.

(See also E. X. Fox Limited, [1989] OLRB Rep. July 738.) We agreed with this approach and found it both generally appropriate and applicable to this case. The respondent was unable to suggest any cogent reason to find otherwise.

12. The Board therefore ruled that only plumbers or steamfitters who were journeymen or apprentices in the trade, within the meaning of the Apprenticeship Act, on the date of application herein were eligible to be counted as employees in the bargaining unit herein. The eighteen individuals included on its list of employees by the respondent as aforesaid and were neither such journeymen nor apprentices were therefore not employees in the bargaining unit for purposes of this application.

13. Finally with respect to the list of employees, the applicant asserted that T. Rae, R. Whitman, R. Zaba and A. Bois should be counted as employees in the bargaining unit. The respondent conceded these four individuals were employed by it in the plumbing and steamfitting trade in Board area 20 on the date of application, and that they were apprentices within the meaning of the Apprenticeship Act at the time. However, the respondent submitted that they should not be included on the list of employees because they were apprenticed to the "Sudbury Plumbers & Steamfitters L.A.C".

14. It was not suggested that the "Sudbury Plumbers & Steamfitters L.A.C." is not a local apprenticeship committee within the meaning of the Apprenticeship Act. Sections 1(d) and 4 of the Apprenticeship Act provide that:

15. In this Act,

(d) "employer" includes the Crown and any other public authority, the Ontario Apprenticeship Institute and any local apprenticeship committee;

4. The Director may appoint local apprenticeship committees composed of such persons as he considers appropriate for any area of Ontario to advise and assist him in matters relating to apprenticeship or tradesmen's qualifications in the area.

Further, section 7 of Regulation 52 to the Apprenticeship Act (for "plumbers") provides that:

7. The number of apprentices who may be employed by an employer in the certified trade shall not exceed,

(a) where the employer is a journeyman in the trade, one apprentice plus an additional apprentice for every three journeymen employed by the employer in the trade and with whom the apprentice is working; and

(b) where the employer is not a journeyman in the trade, one apprentice for the first journeyman employed by the employer plus an additional apprentice for each additional three journeymen employed by the employer in the trade and with whom the apprentice is working.

(See also Regulation 59 for "steamfitters" under the Apprenticeship Act).

15. There is nothing in either the Apprenticeship Act or the Regulations thereunder which requires an apprentice to be apprenticed to the employer for which s/he works either for ratio purposes or otherwise. On the contrary, the Apprenticeship Act contemplates that a local advisory committee, which does not employ tradesmen as such, is nevertheless an "employer" for purposes of the Apprenticeship Act. In may appear somewhat anomalous that an employer may not necessarily know when one of its employees becomes a true apprentice. On the other hand, if a person is engaged in a compulsory certified trade (like plumbing or steamfitting) he must be either a journeyman or such an apprentice. Further, the transitory nature of much of the employment in the construction industry is well suited to apprenticing individuals to local advisory committees in that it does not require a change in the apprenticeship contract every time the apprentice changes employment. In any event, the Board's concern in a construction industry application for certification is whether an individual was employed in the bargaining unit on the date of application; that is, in this case whether s/he was a journeyman or apprentice plumber or steamfitter employed by the respondent and at work for it on the date of application.

16. In the result, we ruled that Rae, Whitman, Zaba and Bois should be included on the list of employees.

17. We wish to note that in his submissions with respect to all of the above issues, counsel for the respondent argued that the Board was not bound by its own precedents and that because every case must be decided on its own merits, the Board should be prepared to revisit the issue in every case. It is of course true that the Board is not "bound" by its own precedents and that each case stands to be determined on its own merits. However, the Board's practices and policies, as reflected in its jurisprudence, do provide guidelines and a background against which cases are decided. No case is decided in a vacuum and it would be inappropriate to attempt to re-invent the labour relations wheel at every turn. On the other hand, there is much to be said for consistency. The Board's practices and policies try to reflect and be responsive to the real world of labour relations and exist for the guidance of the labour relations community, not for the Board. And while no policy or practice is, or should be, written in stone, it would be inappropriate to change or depart from them without there being cogent reasons for doing so. In this case, the respondent offered no such cogent reasons.

18. In the result, the Board was satisfied that there were eight employees in the bargaining unit herein at the time the application was made. The Board was also 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 unit, at the time the application was made, were members of the applicant on August 3, 1990, 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.

19. Also filed with the Board was a statement of desire in opposition to the application. Although it contained some seventy-four signatures, only two of these are of employees in the bargaining unit on the date of application who had previously signed one of the pieces of membership evidence submitted by the applicant in support of this application. Because it is only these "overlapping" signatures which would be relevant to the Board's considerations (see, for example, Unlimited Textures Company Limited, [1984] OLRB Rep. Jan. 138), the statement of desire would not, even if voluntary, have raised a sufficient doubt with respect to the continued support for the application among the respondent's bargaining unit employees to cause the Board to exercise its discretion under section 7(2) of the Act to direct that a representation vote be taken notwithstanding the applicant's level of support as manifested by the membership evidence it filed.

20. Consequently, the applicant was entitled to be certified. Accordingly, and having regard to the provisions of section 144(2) of the Act, the Board directed (orally) that a certificate, to be dated April 3,1991, issue to the applicant affiliated bargaining agent on its own behalf and on behalf of all other affiliated bargaining agents of the employees bargaining agency named in paragraph 2 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.

21. Further, and also pursuant to section 144(2) of the Act, the Board directed (also orally) that a certificate, also to be dated April 3, 1991, issue to the applicant with respect to all plumbers, plumbers' apprentices, steamfitters and steamfitters' apprentices in the employ of the respondent in the Town of Kirkland Lake and the geographic Townships adjacent thereto in the District of Temiskaming, excluding the industrial, commercial and institutional sector, and save and except non-working foremen and persons above the rank of non-working foreman.