International Brotherhood of Electrical Workers v. Siteco Electric Ltd. and Leo Alarie and Sons Limited, 1992 CanLII 6766

Ontario Labour Relations Board

International Brotherhood of Electrical Workers v. Siteco Electric Ltd. and Leo Alarie and Sons Limited

[1992] OLRB Rep. March 383

3133-89-R International Brotherhood of Electrical Workers, Applicant v. Siteco Electric Ltd. and Leo Alarie and Sons Limited, Respondents v. International Union of Operating Engineers, Local 793, Intervener

BEFORE: N. B. Satterfield, Vice-Chair, and Board Members D. A. MacDonald and N. Wilson.

APPEARANCES: L. A. Richmond, L. Lineham and M. J. Lewis for the applicant; Harry Freed­man, Chuck Humphrey and Carole Truchon for the respondents; Maurice A. Green, Jack Slaugh­ter and Michael Quinn for the intervener.

DECISION OF THE BOARD; March 31, 1992

1. This application for certification was made under subsection 146(1) [formerly subsection 144(1)] of the construction industry part of the Labour Relations Act on March 16, 1990. It came before a different panel of the Board for hearing on April 20, 1990 and, following some substantive and procedural decisions respecting the application, it was adjourned sine die on agreement of the parties. That panel was not seized with the application. Subsequently, the parties agreed that the application should be re-listed for hearing in order to determine the remaining issues. Accordingly, it came before this panel of the Board on May 7, 1991 for the purpose of receiving the parties evi­dence and representations on whether:

(1) any of Messrs. Michael Therrien, Dan Laforest and Bernard Mon­derie can lawfully perform work in the bargaining unit (described at paragraph 1 of the November 2nd decision) on behalf of the respon­dent Leo Alarie and Sons Limited and, therefore, be included in the unit even though he is not a qualified electrician or electricians' apprentice under the Trades Qualification Act, R.S.O. 1990, c.T-17 [formerly the Apprenticeship and Tradesmen's Qualification Act];

(2) on March 20, 1990, John Milroy was an electrician or registered elec­tricians' apprentice within the meaning of the Trades Qualification Act;

(3) on March 20, 1990, Ray Kensley, Blain Baker and Shawn Burrows were at work in the bargaining unit; and

(4) the intervener is the exclusive bargaining agent for the respondent's electricians and electricians' apprentices employed in the construc­tion industry in Ontario, excluding the industrial, commercial and institutional sector.

2. The parties had agreed in the earlier proceedings that the respondents should be declared as constituting one employer for purposes of the Act pursuant to subsection 1(4) of the Act. The Board declined to make any declaration pending notice to the respondents' employees of the application for the declaration. The Board directed that notice be given to the employees and advised the parties that no hearing would be needed if no employee submitted a statement of desire in accordance with the notice. None was made. Therefore, when these matters came before this panel of the Board at the hearing on May 7, 1991, having regard to the agreement of the par­ties, the Board declared that Siteco Electric Ltd. and Leo Alarie and Sons Limited carry on related activities or businesses under common control or direction within the meaning of subsection 1(4) of the Labour Relations Act and, pursuant to that subsection, are to be treated as constituting one employer for purposes of the Act.

3. The Board accepted also the agreement of the parties on the following substantive and procedural matters:

(1) John Milroy is not an apprentice electrician as defined by the Trades Qualification Act and its regulations, although the applicant reserved its right to take the position that he was an employee in the bargain­ing unit on the same grounds that any employee named in item (1) above might be found to be in it.

(2) Ray Kensley was not at work on March 20, 1990 and is not to be counted as in the bargaining unit on that date.

(3) The issue of whether Shawn Burrows was at work in the bargaining unit on March 20, 1990 and the issue set out in item (4) above are set aside for later determination, if needed, together with the allegation that the Board ought not to rely on the applicant's membership evi­dence because it was obtained with the assistance of Tyler Card, who is alleged to be a former member of management with Siteco having a significant degree of control over employees' working times.

(4) The Board should receive the parties' evidence and representations and determine whether any of Michael Therrien, Dan Laforest, Ber­nard Monderie and Blain Baker were at work in the bargaining unit on March 20, 1990.

The parties did not agree on the order in which the Board should determine the issues described in item (3) of this paragraph, or, if needed, the residual issue in item (1).

4. The Board is required by subsection 7(1) of the Act to "... ascertain the number of employees in the bargaining unit at the time the application made ..." when determining an applica­tion for certification. When an application is brought under the construction industry part of the Act, as this one was, the Board satisfies that mandate by "counting" only those persons who were employed by the respondent employer on the date of making of the application and were actually at work in the bargaining unit on that date; in other words, employees who spent the majority of their time on that date doing bargaining unit work. See E & E Seegmiller Limited, [1987] OLRB Rep. Jan. 41, at paragraph 12, and other Board decisions referred to therein.

5. It is common ground here that the appropriate tests for deciding the "count" issues in this application are those which were suggested in Seegmiller Limited, supra, at paragraph 23 and first applied in Gilvesey Enterprises Inc., [1987] OLRB Rep. Feb. 220. They are:

(a) whether the person at issue was employed by the respondent and at work on the date of application; and

(b) if so, the work that the person spent the majority of his/her time doing on the date of application or,

(c) where there is no conclusive evidence with respect to the work that the person per­formed on the date of application, any other relevant factor, including the primary reason for hire.

6. The bargaining unit which the applicant proposes to be appropriate for this application is described in terms of electricians and electricians' apprentices. The trade of electrician is a com­pulsory, certified trade under the Trades Qualification Act (hereafter "the Trades Act"). It is com­mon ground that Blain Baker is qualified to work in that trade. On March 20th he was on a one-week training program to which he had been sent by Siteco and for which Siteco was paying him his normal wages. The purpose of the training was to upgrade Baker's knowledge of the design, installation, and repair of programmable logic control ("PLC") systems. The work which Baker does for Siteco involves PLC systems on equipment which Siteco installs in the mining industry. Counsel for the respondents asserts, and it is not disputed, that the installation of such equipment is work in the construction industry. Counsel submits that, when an employer such as Siteco assigns an electrician or apprentice electrician to a training program to upgrade his skills required for the construction work on which he is employed and pays his regular wages, the employee is employed in the construction industry and in the bargaining unit. On that basis, counsel argues, Baker was at work in the bargaining unit on the application date.

7. The Board has reviewed counsel's full submissions made in support of that proposition and it respectfully disagrees. The main reason why the Board focuses on the date of application in construction industry applications for certification when determining which employees are to be counted in the unit is for certainty in an employment environment which is inherently transitory. That same need for certainty is why the Board requires that an employee be at work on the appli­cation date as compared to being simply an employee. The Board has consistently applied the term "at work" to mean physically performing the work of the bargaining unit. The parties to an appli­cation for certification benefit from these rules because they reduce the uncertainty about which employees will be counted as being in the unit and they assist the expeditious resolution of applica­tions for certification. See the discussion in Al Gordon Electric Limited, [1990] OLRB Rep. June 637, at paragraphs 12 through 20. An employee who is on a training course which has no physical connection with the work being performed by employees in the bargaining unit on the application date cannot be said to be "at work" in the unit even if the training being taken does have direct application to that work. Therefore, the Board finds that Blain Baker was not at work in the bar­gaining unit on March 20th and is not to be included on the list of employees for purposes of the count made by the Board pursuant to subsection 7(1) of the Act.

8. Michael Therrien, Dan Laforest and Bernard Monderie were employed by Leo Alarie and Sons Limited on the date of making of the application. Each of them was at work on premises owned by Alarie and used for the conduct of its business. Therrien and Laforest were running wire for light fixtures and installing the fixtures in two, new extensions to the shop part of the premises. Monderie was doing similar work in new offices. He was running new wiring, including wiring for the computer systems, installing electrical receptacles and fixtures. Therrien and Monderie were occupied all day on March 20th with this work, and Laforest spent the majority of the day on it.

Counsel for the respondents acknowledges that none of them is an apprentice electrician or quali­fied to work in the compulsory, certified trade of electrician.

9. When the Board is discharging its mandate under subsection 7(1) of the Act to ascertain the number of employees in the bargaining unit at the time the application was made ..." where the unit is confined to a compulsory, certified trade, it does not include in the unit any per­son who is not qualified pursuant to the requirements of the Trades Act to work in the trade even though the person may have been performing the work of the trade. In that respect, the Board looks to the Trades Act as a guide to deciding whether a person is employed in the trade in ques­tion and is to be "counted" in a bargaining unit confined to that trade. See O. J. Pipelines Incorporated, [1989] OLRB Rep. Sept. 976.

10. Counsel submits that Therrien, Laforest and Monderie were at work in the proposed bargaining unit on the date of making of the application and should be included on the list of employees even though they are not qualified pursuant to the Trades Act to work in the electrician trade. This is because they were employed by Alarie on the application date and spent the majority of their time on that date performing bargaining unit work and were lawfully employed on that work. Counsel argues that the work which they were performing for Alarie was work coming within the definition of industrial electrician in Section 1(a) of Regulation 718/86 of the Trades Act. It was also work coming within the definition of the compulsory, certified trade of electrician in section 1(b)(i) of Regulation 32 of the Trades Act. Since the trade of industrial electrician is a vol­untary, certified trade, persons working in that trade are exempt from the prohibitions of subsec­tion 11(2) of the Trades Act and may lawfully work in the trade without being a qualified journey­man electrician or registered apprentice electrician. In that respect, counsel relies on the legal analysis in C T Windows Limited, [1983] OLRB Rep. May 627 at paragraphs 7 to 9. Furthermore, even though the work which they were performing was also work of the compulsory, certified trade of electrician, they were lawfully performing that work because it was limited purpose work in the industrial electrician trade being performed for Alarie on its own premises. In those circumstances, counsel argues, they do not have to be qualified journeymen electricians or registered apprentice electricians to perform the work because section 1 of Regulation 32 states that the definition of electrician under that regulation does not include "... a person who is permanently employed in an industrial plant at a limited purpose occupation in the electrical trade.".

11. Accordingly, counsel submits that Therrien, Laforest and Monderie were employed for the limited purpose of the industrial electrician trade performing work of the compulsory, certified trade for which the applicant is seeking to be certified. They were employed on that work by Alarie on its own construction site and, therefore, lawfully employed pursuant to the Trades Act according to the Board's analysis at paragraph 9 of C T Windows, supra. The work which they were doing was construction work falling within the trade of industrial electrician. Since it is also work which falls within the definition of electrician under Regulation 32, it is work of the bargain­ing unit for which the applicant is seeking certification. Therefore, as at the date of making of the application for certification, they were employees of the respondent lawfully performing work of the electrical trade and, pursuant to the principles expressed in Irvcon Roofing & Sheet Metal (Pembroke) Ltd., [1981] OLRB Rep. Nov. 1594; P & M Electric (1982) Ltd., [1989] OLRB Rep. June 638 and B. C. Meck, [1988] OLRB Rep. June 546, must be included in the bargaining unit.

12. It is unnecessary for the Board to decide whether respondent counsel's analysis of the Trades Act and its Regulations 32 and 718/86 is correct and that Thernen, Laforest and Monderie were lawfully performing the work of the bargaining unit on the date of making of the application. This is because the Board would still not include them on the list of employees who would be in a bargaining unit confined to the compulsory, certified trade of electrician which the applicant proposes to be a unit of the respondents' employees appropriate for collective bargaining. As the Board pointed out in P & M Electric, supra,

“…..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 [Trades Qualification Act]".

Even if Therrien, Laforest and Monderie were lawfully performing work of the electrician trade on the application date, unlike the other employees who were at work in the unit on that date and were journeymen or apprentices in the electrician trade, they would not be able to lawfully per­form work of that trade on construction sites for the respondents' clients. They would be limited to performing such work on the respondents' premises. In those circumstances, they would share no real community of interest with the journeymen and apprentice electricians who are not so limited and would be included in the unit. Therefore~ whether or not Michael Therrien, Dan Laforest and Bernard Monderie were lawfully at work on March 20th in the proposed bargaining unit, they are not to be included on the list of employees for purposes of the count to be made by the Board pur­suant to subsection 7(1) of the Act. For similar reasons, and having regard to the agreement of the parties, John Milroy would not be included on the list.

13. In summary the Board has:

(1) declared that Siteco Electric Ltd. and Leo Alarie and Sons Limited are to be treated as constituting one employer for purposes of the Labour Relations Act; and,

(2) found that John Milroy, Ray Kensley, Blain Baker, Michael Ther­rien, Dan Laforest and Bernard Monderie are not on the list of employees who would be included in the bargaining unit for pur­poses of the count to be made by the Board pursuant to subsection 7(1) of the Labour Relations Act.

14. In the result, the Registrar is directed to list this application for continuation of hearing for the purpose of receiving the evidence and representations of the parties respecting:

(1) whether Shawn Burrows was at work in the bargaining unit on March

20, 1990;

(2) whether the intervener already holds the exclusive bargaining rights which the applicant is seeking in all sectors of the construction indus­try, excluding the ICI sector, in the Board's geographic areas 19, 21 and 22 and within a radius of 100 kilometres of Kapuskasking, Ontario;

(3) whether the Board ought to rely on the applicant's membership evi­dence; and,

(4) any other matters arising out of or incidental to the application.

In order to assist the Registrar in the scheduling of the application for continuation of hearing, the parties are directed to provide the Registrar with their estimate of the number of days required for the hearing and their available dates to June 30, 1992. This information is to be supplied to the Registrar within 14 days of the date of this decision. The Registrar may schedule the hearing on such dates as she considers appropriate, without further consultation, should the parties, or any of them, fail to provide her with the information as directed.