International Brotherhood of Electrical Workers, Local Union 1687 v. Gorf Contracting Ltd., 1992 CanLII 6344

[1992] OLRB Rep. July 800

3418-91-R; 3523-91-U International Brotherhood of Electrical Workers, Local Union 1687, Applicant v. Gorf Contracting Ltd., Respondent; International Brotherhood of Electrical Workers, Local Union 1687, Complainant v. Gorf Con­tracting Ltd., Respondent

BEFORE: S. Liang, Vice-Chair, and Board Members W. N. Fraser and H. Kobryn.

APPEARANCES: Mark Lewis and Larry Lineham for the applicant; Jim Hassell and Mark Norkum for the respondent.

DECISION OF THE BOARD; July 22, 1992

1. These matters are an application for certification made under the construction industry provisions of the Labour Relations Act, and a complaint made pursuant to section 91 of the Act. The International Brotherhood of Electrical Workers, Local Union 1687 ("the union" or "Local 1687") seeks to represent a unit of electricians and electricians apprentices employed by Gorf Con­tracting Ltd. ("the company" or "Gorf'). The company takes the position that there were no per­sons in the bargaining unit on the date of application (February 5, 1992), as any electricians on site were either independent contractors, or were employed by Mike Norkum and not by Gorf. The complaint alleges that all electricians were laid off by the company when it found out about the application for certification. In addition to the remedies requested under the complaint, the union requests that the Board certify it pursuant to section 8 of the Act in the event that it is not other­wise entitled to automatic certification.

2. On the first day of hearing into these matters, the Board ruled that it would hear the parties' evidence and representations on all issues. Further, we directed the company to proceed first in presenting its case. Over the course of the hearing, we heard the evidence of Mark Nor­kum, Mike Norkum, Enrique Gaces, Andre Cecire, Doug Neely and Paul Reuben.

3. Mark Norkum is the president and general manager of God. The company was started by his father, Alfonse, who is now retired. At one time,the company was managed by both Mark and his brother Mike. However, Mike Norkum left God a few years ago. God is the general con­tractor for the construction of a student residence on the campus of Northern College in Porcu­pine, Ontario. Its work on site began on October 1, 1991, and the scheduled completion date is July 31, 1992. The completion date is of vital importance to Gorf, since it is a provision of its con­struction contract that God will be responsible for the cost of providing alternative accommoda­tion for students who would otherwise be housed at the residence, if the residence is not completed on time.

4. God entered into a number of subcontracts for the construction of the residence. It has a contract with a masonry subcontractor, a mechanical subcontractor, and an electrical subcontrac­tor. God also has a number of employees on site, including labourers, carpenters and operating engineers. Until approximately January 21, 1992, the electrical subcontractor on site was PME Electrical Contractors Ltd. ("PME"). The electricians at issue in this application were all employ­ees of PME until January 21.

5. Although Mike Norkum left Gorf a few years ago, he continues to have involvement with the company. On a previous Gorf project, he was retained to perform the role of a project superintendent. On this site, he was retained by Goff to provide construction management ser­vices, with the responsibility to manage the subcontracts, Gorf personnel, expedite material, and generally ensure completion of the project on time and on budget. Mike Norkum is paid weekly by Gorf on the basis of submitted invoices. He is paid on an hourly rate, plus expenses. From time to time, he may be reimbursed by Gorf for various expenditures such as materials, equipment rental, or courier charges. As well, he has the expectation of a bonus upon satisfactory completion of the project. Gorf has a trailer on the site which consists of Mike Norkum's office and an adjoining print room.

6. As stated above, until January 21 PME was the electrical subcontractor working on the site. PME is a unionized company, being party to a collective agreement with the applicant. Its on-site foreman was Paul Reuben. On the afternoon of January 21, Mr. Reuben encountered prob­lems in trying to purchase material from an electrical distributor. He telephoned a union represen­tative in the Sudbury area (where PME's offices are located) and was told that there were rumours PME had gone bankrupt. He informed the three other electricians working on the site, Andre Cecire, Doug Neely and Gerry Trepanier. The workers decided that they had no options but to pack their tools and leave the site. Mr. Reuben informed Mike Norkum of this. Mike Norkum requested that the men remain on site for another day, until the situation was clarified. It was con­veyed that the men would be compensated for that extra day. Paul Reuben's understanding was that Gorf would take care of their wages. Mike Norkum states that he told Reuben simply that somehow, he would make sure that the workers were paid for their services.

7. Mike Norkum informed Mark Norkum early the next morning of the rumour regarding PME, once the information began to appear more definite. Mike Norkum testified that in this con­versation with his brother, it was agreed that Mark was to try and get confirmation of the PME bankruptcy, while Mike was to make arrangements with the electricians to keep the electrical work going. Both testified that they did not discuss the details of these arrangements.

8. It is uncontested that it was very important to Gorf that the electrical work continue uninterrupted. The work of the electricians was proceeding in pace with the work of the masonry subcontractor, since the electricians were installing components inside the masonry blocks. If the electricians did not continue their work, construction on the project would come to a halt. Mike Norkum testified that he was "dumbfounded" when he heard of the PME bankruptcy. Present in both brothers' minds was the onerous penalty clause in Gorfs construction contract if the project were delayed.

9. By the afternoon of January 22, it had been confirmed that PME was out of business. Mike Norkum arranged to meet with the electricians in the Gorf trailer at 2:30 p.m. to discuss fur­ther arrangements with them. By this time, Mark Norkum had started taking steps to look for another electrical subcontractor to take over the work. At the meeting at 2:30 p.m., Mike Norkum and all four electricians were present in Mike's office. Mark Norkum and Joe Sanguiliano, a con­sultant to Gorf were also in the office. Joe Weir, another Gorf consultant may also have been present. Mike Norkum reviewed the situation with the electricians, informing them that Mark was in the process of searching for a new subcontractor. In the meantime, he requested that they stay on site. He proposed a wage rate based on the rates paid by Gorf to its most skilled tradesmen. Both Mike Norkum and Mark Norkum testified that Mark did not participate in this meeting, but was present in the room on other business. Mark, however, was aware of the nature of the discus­sion. Andre Cecire, Doug Neely and Paul Reuben testified that Doug Neely asked whether they would be receiving benefits, and Mark Norkum stated that Gorf only offered benefits after six months of employment. Mr. Cecire also remembers Mike Norkum stating that if they could not find a subcontractor for a reasonable price, they might keep the electricians for the rest of the job. Both of these comments are denied by the Norkums. The electricians left the meeting, discussed the offer amongst themselves, and then, through Mr. Reuben, told Mike Norkum that they would agree to stay for the wages offered.

10. The electricians testified that they left the meeting with the clear understanding that they would be working for Gorf. Mike Norkum testified that he never indicated to the electricians that they were being hired by Gorf. He states that his own assumption was that he would pay for their wages by personal cheque or cash. He saw the arrangement as informal and interim. His evi­dence as to who would bear the ultimate cost was somewhat contradictory. He states that if the arrangement had ended after a day or two, he may have absorbed the cost himself. However, he also testified that he assumed that once a subcontractor was chosen by God, he would recover his costs. Mark Norkum states that although he did not know of the details of the arrangement, he took it for granted that the cost would be recovered from Gorf at some point. He stated that he did not ask at what rate the electricians would be paid. When questioned about this, he analogized it to Gorf hiring a backhoe, in which case he would not necessarily need to know the rate. In fact, Mike Norkum eventually submitted an invoice to Gorf for the cost of the electricians' services.

11. Ultimately, the electricians remained on the job until January 29. On January 29, Mark Norkum concluded a new subcontract with an electrical subcontractor. On January 29, the workers were informed that this subcontractor was to take over the job on January 30 and as a result their work was finished. During the period between January 22 and January 29, the electrical work pro­ceeded much as it had before, with a few exceptions necessitated by the circumstances. As with many skilled tradespersons, the electricians required little supervision or direction. On one occa­sion, Mike Norkum directed them move the PME materials from the PME trailer, to inside the building. When the need for additional materials arose during this period, they were obtained through Gorf. On one occasion, Paul Reuben was given permission to use a God vehicle to obtain materials from a supplier, paid for by God. As before the bankruptcy, the electricians supplied their own personal tools. The PME trailer was still present on the site and the electricians contin­ued to use it. The hours of work for the electricians were governed, as they had been before, by the needs of the masonry subcontractor.

12. There was conflicting evidence as to a number of the details of the terms of the arrange­ment during this week. Paul Reuben testified that he was given a handful of Gorf time sheets by Mike Norkum to fill out daily. Mike Norkum denies giving out God time sheets, and states that he received a daily record of hours worked from Paul Reuben on scrap pieces of paper or verbally, and entered these into his personal job diary. He recalls that one day's record was submitted on a Gorf time sheet by Mr. Reuben. Paul Reuben also testified that Mike Norkum asked Roy Weir to pick up Gorf employment application forms from the office, which were then given to him to dis­tribute to the electricians. He also asked Mike for TD1 tax forms, which were also given to him. Mike Norkum denies ever supplying the electricians with employment application forms, or TD1 forms. The other electricians testifying confirm that they were given both types of forms to fill in, by Paul Reuben.

13. On the morning of January 30, the electricians went back to the site to collect their paycheques and separation slips for the past week's work. Mike Norkum informed them that he had no paycheques, or separation slips, but would be paying the workers cash. He indicated that this had not been an employment relationship. They were dissatisfied with this, and insisted on paycheques and separation slips from Gorf. The workers left with the situation unresolved.

14. The application for certification was filed by the applicant on January 24, 1992. Notice of the application was sent to the company by the Board on January 27, by Priority Post. This package was picked up by Gorfs financial controller on the afternoon of January 29, and placed on Mark Norkum's desk, who was not present in the office at the time. Mark Norkum testified that he found out about the application on the morning of January 30, and posted the notice of the appli­cation at the site that afternoon, at 2:30 p.m. Mike Norkum states that he found out about the application when Mark Norkum visited the site to post it.

Argument

15. As stated at the outset, Goff takes the position that the electricians in question were engaged in work between January 22 and January 29 as independent contractors. In the alterna­tive, it states that these electricians were employed by Mike Norkum, not by Gorf. On the unfair labour practice complaint, the company urges the Board to find that the end of the working rela­tionship between the electricians and Gorf came about for purely business reasons, as the result of the arrival of a new subcontractor on site, rather than as the reaction of the company to news of the certification application.

16. Counsel for Gorf describes the arrangement which was struck between the electricians and Mike Norkum as a casual, stop-gap arrangement which was only intended to last until Gorf found a new subcontractor. In fact, the arrangement is not much different from situations where an electrician may offer out his or her services for small jobs for family or acquaintances. There was no intent on the part of anyone to create an employment relationship. On the facts, it is urged, nei­ther Mark nor Mike Norkum exercised any control over the electricians, who continued with their work as they had before. The electricians brought their own tools to the site. They had the ability to maintain control over their work, and would be held responsible for faulty work on their part. Furthermore, in the circumstances, the electricians had the bargaining power to negotiate favour­able terms for themselves, since their presence on the site was critical to the work on the project. In sum, counsel urged us to find that the situation in which the parties found themselves was a fluke, a one-time situation which will not be repeated. As such, it does not advance the purposes of the statute to find the existence of an employment relationship, particularly in view of the lack of any of the normal indicia of such a relationship.

17. Further, it was argued, if these electricians are considered by the Board as employees or dependent contractors, then their real employer was Mike Norkum, and not Gorf. Although nei­ther Mark nor Mike exercised any day-to-day control over the electricians, it was more likely that Mike would hold such power. Mike Norkum bore the burden of remuneration. To the extent that the electricians saw Gorf as their employer, counsel urges us to find that this perception was acquired after the fact. The evidence shows, it is submitted, that the electricians never put their minds to this question before January 30. Prior to that, all negotiations occurred between Mike Norkum and the electricians. If they were in fact dependent contractors, the relationship was with Mike, and not with Gorf.

18. With respect to the unfair labour practice complaint, counsel states that the evidence is overwhelming that the arrangement with the four electricians came to an end before Gorf became aware of the certification application. The arrangement came to an end when it did for compelling business reasons, the arrival of a new subcontractor. All parties knew from the beginning of the arrangement that it was temporary. On January 22, Mark Norkum began looking for a new sub-contractor, and finalized a deal with the ultimate successor company on January 29, to begin work on January 30. In his argument on all issues, counsel referred the Board to Colonial Tavern Limited, [1981] OLRB Rep. Aug. 1057; Cross Canada Equipment, [1980] OLRB Rep. Dec. 1736; Sutton Place Hotel, [1980] OLRB Rep. Oct. 1538; York Condominium Corporation, [1977] OLRB Rep. Oct. 645; Chukuni Lumber Company Limited, 64 CLLC OLRB Rep. Jan. 1239; Indusmin Limited, [1977] OLRB Rep. Sept. 552 and A. Cupido Haulage Limited, [1980] OLRB Rep. May 679.

19. Counsel for the applicant submits that whatever test of employment relationship is applied, these electricians are employees. When PME went bankrupt, the electricians stayed on site, doing work exactly as they had before. There is no evidence that they ever agreed to become independent contractors. Their arrangement was not a contract at a fixed price. Rather, they were paid at an hourly rate, and submitted records of hours work for payment. In fact, the hourly rate offered to them was based on what Gorf paid its own tradespersons. The electricians had no chance of profit or loss out of the arrangement. The lack of supervision from Mike or Mark Nor­kum reflects their status as skilled tradespersons, rather than any lack of employment relationship. The tools that they brought to the job are the same as those which every electrician owns, and the same that they had brought when they were PME employees. The end of the relationship came as the result of a unilateral decision by Gorf, rather than at the end of a project or contract.

20. Further, as between Mike Norkum and Gorf, it is submitted that Gorf held fundamen­tal control over the work of the electricians, and must be seen as the employer. The electrical work required on the project was initially part of Gorf's general contract. It entered into a subcontract transferring responsibility for the work to PME. When PME left the job site, responsibility reverted to Gorf, and not to Mike Norkum or the electricians. Any work that the electricians did was for the benefit of Gorf, and not Mike Norkum. The evidence shows that Mike Norkum does not hire his own employees or let out subcontracts. What he does for Gorf is maintain overall supervision of Gorf employees and sub-contracts. To the extent the electricians required further materials during the week of January 22 to 29, these materials were paid for by Gorf, and not Mike. To the extent that the respondent characterizes Mike Norkum himself as an independent subcontractor, counsel for the union submits that this is a legal fiction. Mike Norkum is not a sub­contractor in the sense this term is normally applied in the construction industry. He does not hold responsibility for electrical work in the way that an electrical subcontractor does. On the certifica­tion issues, counsel relies on Colonial Tavern Limited, [1981] OLRB Rep. Aug. 1057; At way Transport Inc., [1989] OLRB Rep. June 540; Gilvesy Enterprises Inc., [1987] OLRB Rep. Feb. 220; Sirfran Construction Managers Inc., [1988] OLRB Rep. May 529; Sutton Place Hotel, [1980] OLRB Rep. Oct. 1538; York Condominium Corporation, [1977] OLRB Rep. Oct. 645; Ellis-Don Limited, [1986] OLRB Rep. Aug. 1076; Quorum Inc., [1984] OLRB Rep. Dec. 1760 and Alwell Forming Limited, [1978] OLRB Rep. Aug. 709. In particular, counsel urges that Gilvesy is indis­tinguishable from the present case.

21. On the unfair labour practice complaint, counsel submits that the timing of the dis­charges of the electricians raises suspicions. The fact is that every person who could have joined the union was laid off on the very day that the application for certification was delivered to the company. The circumstances leave an onus of explanation on the company. The union urges the Board to find that Mark Norkum must have known of the application on the afternoon of January 29, and that he would have called Mike Norkum right away upon discovering it. At the very least, the union urges the Board to find that the failure by God to provide separation slips and payche­ques on January 30 was motivated by the fear that doing so would prejudice their position on the certification application. Counsel submits that this constitutes discrimination against the employees as a result of the application, and ask the Board to order the company to provide these to the elec­tricians.

Decision of the Board - Certification Application

22. On the facts of this case, we agree with the applicant that the four electricians were employees of the respondent between January 22 and January 29, and are properly included on the list of employees in the bargaining unit on the date of application, January 24. Section 1(1) of the Labour Relations Act states that the term "employee" includes a person who is a dependent con­tractor. The term "dependent contractor" is defined in the Act as:

"dependent contractor" means a person, whether or not employed under a contract of employ­ment, and whether or not furnishing tools, vehicles, equipment, machinery, material, or any other thing owned by the dependent contractor, who performs work or services for another per­son for compensation or reward on such terms and conditions that the dependent contractor is in a position of economic dependence upon, and under an obligation to perform duties for, that person more closely resembling the relationship of an employee than that of an independent contractor;

23. In the broad spectrum of economic relationships between two parties, therefore, the Act affords the same protection to the category of "dependent contractors" as it does to persons occupying the more traditional category of "employees". The Board discussed the significance of these statutory provisions in Airline Limousine, [1988] OLRB Rep. March 225 as follows:

24. For collective bargaining purposes the Legislature has abandoned the traditional common law distinction between "employees" and "independent contractors". Rather, the Act now identifies a hybrid creature - the dependent contractor whose rights depend upon the statutory definition, labour relations considerations, and the extent to which s/he is in an economic posi­tion roughly equivalent to those for whom this collective bargaining statute has been designed. The legal form of the relationship or the possession of particular assets (for example, the owner­ship of vehicles - something specifically mentioned in section 1(1)(h)) are no longer determina­tive of an individual's status for collective bargaining purposes. There is no requirement that s/he receive "wages", as there was in the Alberta legislation under review in: Re Yellow Cab Ltd. and Board of industrial Relations et al. 1980 CanLII 228 (SCC), 2 S.C.R. 761. The test is whether the dis­puted individual is more like an employee than a self-employed entrepreneur, when viewed from a collective bargaining perspective and the "mischief" which this labour legislation was designed to remedy. It remains, as always, a question of just where to draw the line, because no magic formula can be propounded for determining which factors should, in any particular case, be treated as determinative. The Board must necessarily perform a balancing operation weigh­ing up the factors which point in one direction or the other, and assessing them in light of labour relations policy considerations.

25. In Colonial Tavern Limited, supra, the Board set out a number of factors which are of assistance in determining whether a person is a dependent contractor. We need not list them here. We are satisfied that an application of these factors leads to a conclusion that the electricians fall into the category of dependent contractors rather than independent contractors. We find that on January 22, the electricians were offered temporary work at an hourly wage. They did not carry on their own business between January 22 and January 29, just as they had not prior to January 22. Rather, they contracted to provide their personal labour to God, just as they had to PME previ­ously. In the circumstances, they had as limited control over the terms of their work as they had under PME. Within their area of skill and expertise, they went about their work without the need for direct supervision. However, it would have been a great surprise if they had chosen not to do their work personally, but to further contract out a portion of their work to others, or to change the manner in which they were working. It would also have been a great surprise if they, rather than Gorf, had been found liable for any deficiencies in the work performed between January 22 and January 29. The work was Gorfs to be performed. The electricians were hired to do this work for the benefit of Gorf, and had no chance of profit or risk or loss under the arrangement. Gorf was responsible for materials, for timing and for the adequacy of the work.

26. The facts of this case are very similar to those in Gilvesy, supra. In that case, a drywall subcontractor of the respondent went into bankruptcy. The respondent asked the drywall tapers employed by the subcontractor to remain on the job to complete the work. The company stated that its intention was to secure the services of the men in question as independent subcontractors and not as employees. Like this case, the nature of the arrangement between the parties was never discussed. As in this case, the only matters that were discussed and agreed to was that the workers would continue to do the same work that they had done as employees of the subcontractor, for cer­tain remuneration. The Board found the workers to be employees of the respondent at the mate­rial times.

27. The case before us is different in one respect from Gilvesy, and this concerns the role of Mike Norkum in retaining the services of the electricians. The respondent argues that if the elec­tricians are found to be employees, they are employees of Mike Norkum, and not Gorf. In its sub­mission, it was Mike Norkum who hired them and supervised them and exercised fundamental control over their work. As we have indicated, we are satisfied that the true employer of the elec­tricians during the week of January 22 to 29 was Gorf. Mike Norkum may have been the person with whom all of the discussions as to the arrangements for that week occurred. However, in our view, this is the only factor that might point to an employment relationship with him. We need not determine whether indeed Mark Norkum took part in the discussion in the Goff trailer on January 22, because even if we accept the evidence of Mark and Mike Norkum, Mark Norkum was cer­tainly present in the room and heard what was being discussed. Mark Norkum had agreed with Mike earlier in the day that arrangements should be made to keep the electricians on the job. Mark Norkum understood that the cost of the electricians' services on the job for that week would eventually be borne by Gorf. In all of the discussions with the electricians or between the Nor­kums, there was no indication, until January 30, that Mike Norkum considered them as his employees (just as there had been no indication that they were considered as independent contrac­tors).

28. Although Mike Norkum took the position with the employees on January 30 that they were not employees of Gorf, we are reluctant to give any weight to this, as it is a position taken after Gorf received the notice of the application. Despite his evidence, we are not convinced that Mike Norkum did not have know of the application by this time. Likewise, we need not give any weight to the electricians' evidence that they filled out Gorf application forms and TD1 forms dur­ing the week of January 27. It is not essential to our findings and as evidence of positions taken after the application was filed, we prefer in this case not to have regard to it.

29. What is clear is that for all parties, the priority was simply to keep the work going. The elements necessary to ensure this were the electricians' agreement to remain on the job and the parties' agreement on the wage rate. The lack of clarity amongst the parties as to a definition of the relationship does not militate against a finding that Gorf employed the electricians. What it neces­sitates, however, is that the Board review the evidence to determine the underlying relationship most consistent with the parties' actions and reasonable assumptions.

30. In York Condominium Corporation and Sutton Place Hotel, supra, the Board had to determine which of two corporations was the real employer of the employees in question. A num­ber of factors were identified as being relevant to that determination. Among these are: the party which exercises direction and control over the employees; the party bearing the burden of remu­neration; the party imposing discipline; the party hiring the employees and having the authority to dismiss employees; the party who is perceived to be the employer by the employees; and the exis­tence of an intention to create the relationship of employer and employees.

31. In our view, to the extent that there is any evidence about each of these factors, they point to Gorf as the employer. It would be unrealistic to elevate the relationship between Mike Norkum and the electricians to that of an employer and employees. Mike Norkum's job is to deal with various tradespersons and contractors on site, on behalf of Gorf. He does not have his own employees. He does not run his own business on the site, but provides his personal construction management services to Gorf at an hourly rate. Any expenses which he incurs in his work are passed on to Gorf. He cannot be compared to a genuine subcontractor which hires employees, sup­plies its own materials, and expertise, takes the risks and in all ways controls the work under the subcontract. Mike Norkum's function is to ensure that Gorf's interests are being served by the vari­ous people whom it has engaged to do work. His relationship with the electricians was not much different from his relationship with other Gorf employees on the site. Even if there are some dif­ferences, the interposition of Mike Norkum between Gorf and the electricians does not in our view change the substance of the relationship. As with those other employees, the ultimate control over the electricians lay with Gorf.

32. We briefly address the respondent's arguments regarding the labour relations logic in finding an employment relationship in an arrangement which only lasted for a week. As Gilvesy illustrates, the situation in which these parties found themselves was not unique. Unfortunately, bankruptcies do happen on construction sites. We are sympathetic with Gorfs predicament in this situation and accept that it probably entered into an arrangement whose consequences (in terms of the certification application) came as a surprise to it. However, to the extent that Gorf became, however briefly, the employer of these electricians, those employees have the right to organize and seek a bargaining agent.

Complaint of Unfair Labour Practices

32. We find on the facts that Gorf laid off these electricians because it entered into a new subcontract on January 29. Despite the coincidence in timing with the arrival of the notice of the application for certification, we are satisfied that the application did not play any part in the deci­sion to lay off the workers. All parties were aware from January 22 that Gorf was seeking a new subcontractor. During the week of January 22 to January 29, various potential subcontractors visited the site. It was made clear to the electricians that Gorf wished to conclude a new arrange­ment quickly. We find that it was no surprise to them when they were told of their lay-off.

33. With respect to the company's failure to provide paycheques or separation slips, we are confident that our decision provides guidance to the parties in resolving this situation, if it is still outstanding. It appears to us that the company's position on these matters flows out of the litiga­tion connected with the certification application. To the extent that this is now at an end and the parties have our determination on the issues, we are sure that God will comply with its obligations on these matters.

Conclusion

34. We therefore find that Andre Cecire, Doug Neely, Paul Reuben and Gerry Trepanier were employed by the respondent in the bargaining unit on the date of application.

35. In this application for certification the applicant filed 4 combination applications for membership and receipts. The combination applications for membership are signed by the employ­ees and the receipts are countersigned and indicate that a payment of $1.00 has been made within the six-month period immediately preceding the terminal date of the application. The money was collected by one person. The applicant also filed a duly completed Form 80, Declaration Concern­ing Membership Documents, Construction Industry.

36. The Board finds that 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 141(1) of the Act on December 12, 1977, the designated employee bargaining agency is the International Brotherhood of Electrical Workers and the IBEW Construction Council of Ontario.

37. The Board further finds that this is an application for certification within the meaning of section 121 of the Labour Relations Act and is an application made pursuant to section 146(1) of the Act which provides that:

An application for certification as bargaining agent which relates to the industrial, commercial and institutional sector of the construction industry referred to in clause 119 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.

38. The Board further finds, pursuant to section 146(1) of the Act, that all electricians and electricians' apprentices in the employ of the respondent in the industrial, commercial and institu­tional sector of the construction industry in the Province of Ontario, and all electricians and electri­cians' apprentices in the employ of the respondent in all other sectors within a radius of 81 kilome­ter (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.

39. The Board is satisfied on the basis of all the evidence before it that more than fifty-five per cent of the employees of the respondent in the bargaining unity at the time the application was made, were members of the applicant on February 4, 1992, the terminal date fixed for this applica­tion and the date which the Board determines, under section 105(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.

40. Section 146(2) of the Act, which states in part as follows, provides for the issuance of more than one certificate if the applicant has the requisite membership support:

the Board shall certify the trade unions as the bargaining agent of the employees in the bar­gaining unit and in so doing shall issue a certificate confined to the industrial, commercial and institutional sector and issue another certificate in relation to all other sectors in the appropriate geographic area or areas.

[emphasis added]

Therefore, pursuant to section 146(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 36 above in respect of all electricians and electri­cians' apprentices in the employ of the Gorf Contracting Ltd. 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.

41. Further, pursuant to section 146(2) of the Act, a certificate will issue to the applicant trade union in respect of all electricians and electricians' apprentices in the employ of the Gorf Contracting Ltd. in all sectors of the construction industry within a radius of 81 kilometers (ap­proximately 50 miles) of the Timmins Federal Building, excluding the industrial, commercial and institutional sector, save and except non-working foremen and persons above the rank of non-working foreman.