Ontario Labour Relations Board

[1992] OLRB Rep. January 90

0066-90-R United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local Union 463, Applicant v. Turn-Key Installations Inc., Respondent v. Group of Employees, Objectors

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

APPEARANCES: A. J. Ahee, for the applicant; Robert MacDermid, for the respondent; Michael Horan and Shawn Johnston, for the objectors.

DECISION OF THE BOARD; January 7, 1992

1. The respondent and a group of employees of the respondent have requested, pursuant to section 106(1) of the Labour Relations Act, reconsideration of the Board's decision in this application for certification. The Board had disposed of the application for certification without a hearing in accordance with its discretion under section 102(14) of the Act. The respondent had filed a reply opposing the application, but on grounds unrelated to those on which it has based its application for reconsideration. The Board found that the grounds on which the respondent was opposing the application for certification did not require a hearing and were not a bar to the Board disposing of the application. The reply did not take issue with the bargaining unit proposed by the applicant. The respondent also filed a list of its employees who were employed in the unit on the date of making of the application. There were two names on it.

2. A hearing was scheduled, however, for the purpose of receiving the evidence and representations of the parties respecting whether the Board should reconsider and vary or revoke its decision. The Board panel was constituted of N. B. Satterfield, W. E. Gibson and N. Wilson. The parties agreed at the hearing that they should make written submissions on the evidence heard by the Board. Board Member Gibson died subsequent to the hearing. The parties agreed ultimately that another Board Member should be substituted for Mr. Gibson. Accordingly, D. A. MacDonald was substituted. The parties agreed also that the facts for purposes of dealing with the requests for reconsideration were those set out in the respondent's submissions. Those facts are found at paragraphs 3 through 24 of the respondent's submissions. The Board's conclusions of fact and law set out below have been made having regard for the facts as agreed by the parties and their submissions thereon.

3. The applicant trade union is an affiliated bargaining agent of a designated employee bargaining agency. The employee bargaining agency, the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States & 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, was designated by the Minister, pursuant to section 139(1) of the Labour Relations Act, to represent in bargaining in the industrial, commercial and institutional ("ICI") sector of the construction industry "all Journeymen and Apprentice Plumbers and Pipefitters" represented by affiliated bargaining agents of the designated employee bargaining agency.

4. The applicant was certified pursuant to section 144(2) of the Act for a bargaining unit described as:

“……all plumbers, plumbers' apprentices, steam fitters and steam fitters' apprentices in the employ of the Respondent in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario and in all other sectors of the construction industry in Prince Edward County, the geographical townships of Lake, Tudor and Grimsthorpe and all lands south thereof in the county of Hastings and the geographical townships of Percy and Cramahe and all lands east thereof in the county of Northumberland, save and except non-working foremen and persons above the rank of non-working foremen."

Section 144(2) provides for two certificates to be issued. One was issued to the applicant on its own behalf and on behalf of all other affiliated bargaining agents of the designated employee bargaining agency in paragraph 3. In accordance with the provisions of subsection 144(2), it was confined to the ICI sector of the construction industry. A second one was issued to the applicant for the same trades in all other sectors of the construction industry in the geographic area described above.

5. The Board has previously determined that the labels "pipefitter" used in the designation orders and "steamfitter" used in the Board's bargaining unit description are synonymous for the purposes of the Labour Relations Act (D. E. Witmer Plumbing and Heating Ltd. [1987] OLRB Rep. Oct. 1228.)

6. Pursuant to section 145(4) of the Labour Relations Act, when the applicant was certified in the ICI sector, the provincial collective agreement between the Ontario Pipe Trades Council and the Mechanical Contractors Association ("the Agreement") became binding on the respondent in the ICI sector to the extent that the Agreement is a provincial agreement as defined in section 137(1)(e) of the act. The Mechanical Contractors Association is the employer bargaining agency designated to represent employers, including the respondent employer, for whose journeymen and apprentice plumbers and pipefitters the affiliated bargaining agents, including the applicant, of the designated employee bargaining agency referred to in paragraph 3 hold bargaining rights in the ICI sector.

7. Article 2.1 of the Agreement says:

"The Association agrees to recognize the Council as the sole collective bargaining agent for all employees of the contractors as defined in Definition 1 .8."

Definition 1.8 defines "employees" as follows:

"1.8 'Employee' means a qualified and/or certified Journeyman or Apprentice employed by a Contractor as a plumber, steamfitter, pipefitter, welder and apprentice thereof, or job foreman."

[emphasis added]

8. The applications for reconsideration arose out of the fact that, while the certificate confined to the ICI sector was for journeymen and apprentice plumbers and steamfitters, the applicant filed a grievance shortly after the certificate was issued alleging that certain welders employed by the respondent were performing work covered by the Agreement and employed contrary to it.

9' Regulations 52 and 59 under the Apprenticeship and Tradesmen's Qualification Act, R.S.O. 1980, c.24 as am. designate the trades of "plumber" and "steamfitter" as certified trades for the purposes of that Act.

10. Prior to 1988 it was common for the applicant or its related affiliated bargaining agents to request a clarity note in a certification decision to the effect that welders working in the plumbing and steamfitting trade were to be included in the bargaining unit. However, in O.J. Pipelines Incorporated, [1989] OLRB Rep. Sept. 976 the Board decided that such a clarity note was unnecessary insofar as it related to welders who were also either journeymen or apprentice plumbers or steamfitters. Welders who were also either journeymen or apprentice plumbers or steamfitters would be included already in the bargaining unit.

11. The Board in O.J. Pipelines, supra, decided as well that the clarity note was not appropriate insofar as it related to other welders working in the plumbing or steamfitting trades since those welders are not properly included as employees in the bargaining unit. At page 977 it stated:

"7. 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 ICI 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 result, 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 unit 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."

12. Those welders are also not properly included in the bargaining unit if they are not qualified under the Apprenticeship and Tradesmen's Qualification Act to be working in the plumbing or steamfitting trades. The Board recognized in O.J. Pipelines, supra that welding has not been recognized as a separate trade either under the Apprenticeship and Tradesmen's Qualification Act or by the Board, and that neither welding nor welders have been the subject of a designation order under section 139(1) of the Act. If the work that was being performed by welders at the date of an application for certification was, however, work within the plumbing or steamfitting trade then, pursuant to section 11 of the Apprenticeship and Tradesmen's Qualification Act, those welders must hold a subsisting certificate of qualification or its equivalent in one of those certified trades or be an apprentice in one of those certified trades:

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 persons, other than an apprentice or a persons 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 persons 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.

13. Although the Ontario Labour Relations Board is not responsible for the enforcement of the requirements of the Apprenticeship and Tradesmen's Qualification Act, it is a law of general application. As the Board observed in E.S. Fox Limited, [1989] OLRB Rep. July 738, at paragraph 13, its decisions should not be "... inconsistent with laws of general application which are specifically directed at matters with which the Board must be concerned in the course of exercising its powers or performing its duties under the Labour Relations Act...". Therefore, where the Board has described an appropriate bargaining unit so as to be confined to a specific, certified trade or trades, as it did in this application, the need to be consistent with the Apprenticeship and Trademens Qualification Act bears on the way the Board discharges its mandate under section 7(1) of the Act to "...ascertain the number of employees in the bargaining unit at the time the application was made and the number of employees in the unit who were members of the trade union at such time as is determined under clause 103 (2) (j)". The Board does not include in the "count" of employees in the unit any employees who are performing work of the certified trade but are not qualified pursuant to the requirements of the Apprenticeship and Tradesmen's Qualification Act to work in that trade.

14. With that background, the Board turns now to consider the applications for reconsideration, beginning with the respondent's application.

15. The respondent advances two grounds as cause for the Board to reconsider its decision. First, counsel submits that the Board has made a fundamental error in the application of section 144(1) of the Act by interpreting its requirement that the bargaining unit "...shall include all employees who would be bound by a provincial agreement..." by reference to the designation orders instead of by reference to the bargaining unit set out in the Agreement as described above at paragraphs 6 and 7. Second, by focusing on the designation orders in applying this section, the Board has denied the respondent and its employees who would be bound by the Agreement notice of the impact and legal significance of the application and, therefore, has denied the respondent and its employees their fundamental rights to natural justice.

16. With respect to first ground, the respondent submits that the Board's decision in O.J. Pipelines, supra, is incorrect. The respondent submits that, "there is nothing in section 144 that refers to the designations issued by the Minister under section 139 of the Act." Rather, the respondent submits, section 144(1) specifically refers to the bargaining unit as set out in the provincial ICI agreement. The respondent continues by saying that while the designations issued under section 139 of the Act are the legal basis for the authority of the employer bargaining agency and the employee bargaining agency to bargain on behalf of their members, the employer bargaining agency and the employee bargaining agency are free to extend (in bargaining) the scope of the employee bargaining agency's bargaining rights so as to include welders and their apprentices and that the bargaining unit for which the applicant union applied for certification should have been described in terms which conformed with the unit described in the Agreement.

17. With respect to the second ground, counsel submits that the Board's exclusive jurisdiction under section 106(1) of the Act to determine all questions of fact or law that arise in any matter before it, gives the Board the exclusive jurisdiction to interpret section 144(1). Since the Board has a choice to interpret this section to find that the bargaining unit mandated by it is the one defined to conform with the designations or the one defined in the applicable provincial ICI agreement, the Board should be guided by the principles applicable to the interpretation of legislation as set forth by the House of Lords in Shannon Realties, Limited and Ville Des St. Michel, 1923 CanLII 425 (UK JCPC), AC. 185 pp. 192 and 193. Those principles, according to counsel, are that, where alternative constructions of the statute are equally open, the alternative which will be consistent with the smooth working of the system which the statute purports to be regulating is to be chosen over the one which will introduce "...uncertainty, friction or confusion into the system." Counsel asserts that the Board's interpretation of section 144(1) has introduced uncertainty, friction and confusion into the working of the province-wide bargaining scheme. That is because, by defining the bargaining unit to conform with the designation orders and not with the provincial ICI agreement, the Board has created a situation where: the union did not have to organize the respondent's welders but, after the certificate issued, the applicant claimed damages on the ground that the respondent's employment of welders breached the provincial ICI agreement to which the respondent became bound; the welders employed by the respondent felt that they were being forced to join the union to protect their jobs; they felt aggrieved because they were not given the opportunity to participate in the certification proceedings; and, they were not given any notice of the impact of the application. Respondent counsel submits, therefore, that the only way to interpret section 144(1) to achieve the smooth operation of the province-wide bargaining scheme which the Act purports to regulate, would be to determine the bargaining unit in this application in terms consistent with the provincial ICI agreement. Had that been done in this application, counsel argues, all of the employees affected by the application would have been given notice of it.

18. Finally, counsel submits that, were the Board to agree with him and reconsider its decision, the application would be dismissed because the applicant did not file membership evidence for welders and it is an agreed fact that there were at least three welders employed by the respondent on the application date who, on that date, were performing work which the applicant claims was work of the plumbing and steamfitting trades and covered by the Agreement.

19. Respondent counsel cites the case of Gilbarco Canada Ltd. [1971] OLRB March 155 for the proposition that the parties are free to amend, alter, extend or abridge the bargaining rights contained in a certificate issued by the Board. That case is not, however, a case involving employer bargaining agencies and employee bargaining agencies bargaining in the ICI sector of the construction industry for designated trades and therefore, is not helpful.

20. Counsel also relies on United Brotherhood of Carpenters and Joiners of America [1978] OLRB August 776 for the proposition that while the issue of the scope of the employee bargaining agency's bargaining rights cannot be bargained to impasse, the employer bargaining agency and the employee bargaining agency are free to extend the scope of the employee bargaining agency's bargaining rights. However, the issue in that case was whether the designated employee bargaining agency was failing to bargain in good faith when it sought to bargain to impasse a demand made on the employer bargaining agency to extend geographically to all areas of the province the bargaining rights of affiliated bargaining agents which were limited at the time to local geographic areas. That decision does not stand for the proposition that employer bargaining agencies and employee bargaining agencies are free to extend their bargaining rights beyond their designated trades and that those extended rights then describe the appropriate bargaining unit for certification.

21. The Board is given broad discretion under section 6(1) of the Labour Relations Act to describe the appropriate bargaining unit in a certification application. That discretion is restricted, however, in construction industry certification applications. Sections 137 to 151 of the Act set out the statutory framework for province-wide bargaining in the ICI sector of the construction industry. This framework provides for single-trade, multi-employer bargaining through designated employer and employee bargaining agencies. Section 138 of the Act provides that where there is a conflict between any provision in sections 139 to 151 and any provision in sections 5 to 57 and 62 to 136 of the Act, the provisions in sections 139 to 151 prevail.

22. Section 146(1) of the Act mandates the provincial bargaining system in the ICI sector by requiring one collective agreement for each provincial unit. Section 146(2) of the Act prohibits any alternative arrangement:

146.-(I) An employee bargaining agency and an employer bargaining agency shall make only one provincial agreement for each provincial unit that it represents.

(2) On and after the 30th day of April, 1978 and subject to sections 139 and 145, no person, employee, trade union, council of trade unions, affiliated bargaining agent, employee bargaining agency, employer, employers' organization, group of employers' organizations or employer bargaining agency shall bargain for, attempt to bargain for, or conclude any collective agreement or other arrangement affecting employees represented by affiliated bargaining agents other than a provincial agreement as contemplated by subsection (1), and any collective agreement or other arrangement that does not comply with subsection (1) is null and void.

23. Section 145(4) of the Act binds an affiliated bargaining agent which obtains bargaining rights for employees in the ICI sector and their employer to that provincial agreement made between the employee bargaining agency representing the affiliated bargaining agent and an employer bargaining agency:

145.-(4) After the 30th day of April, 1978 where an affiliated bargaining agent obtains bargaining rights through certification or voluntary recognition in respect of employees employed in the industrial, commercial and institutional sector of the construction industry referred to in clause 117(e), the employer, the affiliated bargaining agent, and the employees for whom the affiliated bargaining agent has obtained bargaining rights are bound by the provincial agreement made between an employee bargaining agency representing the affiliated bargaining agent and an employer bargaining agency representing a provincial unit of employers in which the employer would have been included.

24. Section 144(1) of the Labour Relations Act states that:

(1) An application or certification as bargaining agent which relates to the industrial, commercial and institutional sector of the construction industry referred to in clause 117(e) 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. (emphasis added)

25. Clauses (a), (b) and (c) of subsection 137(1) of the Act define "affiliated bargaining agent", "bargaining" and "provincial agreement" respectively:

137.-(l) In this section and in sections 135 and 138 to 151,

(a) "affiliated bargaining agent" means a bargaining agent that, according to established trade union practice in the construction industry, represents employees who commonly bargain separately and apart from other employees and is subordinate or directly related to, or is, a provincial, national or international trade union, and includes an employee bargaining agency";

(b) "bargaining", except when used in reference to an affiliated bargaining agent, means province-wide, multi-employer bargaining in the industrial, commercial and institutional sector of the construction industry referred to in clause 117 (e);

(c) "provincial agreement" means an agreement in writing covering the whole of the Province of Ontario between a designated or accredited employer bargaining agency that represents employers, on the one hand, and a designated or certified employee bargaining agency that represents affiliated bargaining agents, on the other hand, containing provisions respecting terms or conditions of employment or the rights, privileges or duties of the employer bargaining agency, the employers represented by the employer bargaining agency and for whose employees the affiliated bargaining agents hold bargaining rights, the affiliated bargaining agents represented by the employee bargaining agency, or the employees represented by the affiliated bargaining agents and employed in the industrial, commercial and institutional sector of the construction industry referred to in clause 117(e).

26. Section 144(1) of the Act mandates that an affiliated bargaining agent applying for bargaining rights apply for a unit which includes "all employees who would be bound by a provincial agreement". Respondent counsel has argued that, in this application, the Board must determine whom they would be by looking to the Agreement, and in particular clause 1.8 quoted above at paragraph 7. That clause defines employees for whom the applicant and other affiliated bargaining agents of the designated employee bargaining agency named in paragraph 3 hold bargaining rights in the ICI sector to include "welder and apprentice thereof'. While the Board agrees with counsel that, were the Board to describe the bargaining unit by reference to that definition, it would capture a welder who was not also "a qualified and/or certified Journeyman or Apprentice.. .plumber, steamfitter or pipefitter...", with respect, the Board cannot agree that, for this application, the bargaining unit in the Agreement is the bargaining unit which, for purposes of section 144(1) of the Act, would "...include all employees who would be bound by a provincial agreement...". Rather, the Board agrees with and adopts the conclusion reached by the Board in Manacon Construction Limited, [1983] OLRB Rep. March 407 at 424 that "...those employees represented by the trade union making application under [section 144(1)1 '...who commonly bargain separately and apart from other employees...' are the ones who would be covered by a provincial agreement". The Board came to that conclusion at paragraph 35 from reading together the section 137(1) definitions of "affiliated bargaining agent" and "provincial agreement" in the context of section 144(1).

27. In that respect, the applicant satisfies the requirement of the statutory definition of affiliated bargaining agent to represent employees who commonly bargain separately and apart from other employees when it represents plumbers and steamfitters. The same cannot be said if it represents welders who are neither plumbers nor steamfitters. Welders who are not qualified or certified journeymen and apprentices in a certified trade, do not commonly bargain separately and apart from other employees. Therefore, a unit described to include welders who are neither plumbers nor steamfitters would not satisfy the requirement of section 144(1) of the Act that ". ..the unit of employees shall include all employees who would be bound by a provincial agreement...". Furthermore, in order to determine who would be bound to the provincial agreement the Board must consider which employees the employee bargaining agency and its affiliated bargaining agents are entitled to represent. The designations issued by the Minister under section 139 are not only the legal basis for the authority of the employer bargaining agency and the employee bargaining agency to bargain, on the one hand, for certain employers and, on the other, for certain affiliated bargaining agents and employees, those designations also designate the specific trades or crafts that "belong" to specific bargaining agents and about which they are to bargain a provincial agreement. As the Board has previously stated in Superior Plumbing & Heating Company Ltd., [1986] OLRB Rep. Nov. 1589 at paragraph 14, the statutory scheme of province-wide bargaining "... does compel the Board to find for purposes of province-wide bargaining in the ICI sector by the affiliated bargaining agents, that the only bargaining unit descriptions that are appropriate are referable to trades or crafts covered by the applicable designation orders." [original emphasis].

28. In the alternative, if the Board's interpretation of section 144(1) is wrong, the Board would not define the appropriate bargaining unit by reference to the unit defined in the Agreement. In the Board's view, defining the unit in this application in terms consistent with the unit set out in the Agreement would not, as respondent counsel has argued, result in the smooth working of the province-wide bargaining regime. It would have the opposite effect and be disruptive of the scheme because it would result in the composition of the appropriate bargaining unit being determined by the designated bargaining agencies. There would be no protection against them agreeing to include trades not included in their designations, or even trades covered by other designations. That would be highly disruptive of the scheme.

29. For these reasons, the respondent's submissions have not convinced the Board that it should describe the bargaining unit in this certification application so as to conform with the bargaining rights described in the Agreement. Therefore, on the first ground, the employer has failed to convince the Board that it should reconsider its decision.

30. The Board will deal with the respondent's second ground for its application for reconsideration along with the application for reconsideration of the group of employees.

31. A group of employees who were welders employed by the respondent on the date of the certification application have also made a request for reconsideration. The employees state that they were never alerted by the notice of application for certification that was posted at the respondent's premises that this application for certification would affect them. The notice of application for certification only made reference to plumbers and steamfitters and their apprentices. It made no reference to welders. Furthermore, these employees submit that they made reasonable enquiry to ascertain whether they would be affected by the application and that none of their enquiries alerted them to the possibility that they might be affected were the applicant to be certified.

32. The employees submit that it is unfair to bind them to a decision of the Board without first affording them an informed opportunity to participate in the process that led to that decision.

33. Their concern arises out of the fact that, subsequent to its certification, the applicant referred to the Board for final and binding arbitration under section 124 of the Act the grievance described at paragraph 8. It alleged that welders employed by the respondent were performing work falling within the scope of the Agreement and that they were employed contrary to the terms of the Agreement. They are concerned that those welders who were in the employ of the respondent on and after the date of making of the application for certification and who, after the respondent became bound to the Agreement, were performing work coming within the scope of the Agreement, might find themselves subsequently replaced by union members or obliged to become union members themselves in order to retain their jobs.

34. Respondent counsel contends that the effect of the Board having focused on the designation orders for defining the section 144(1) bargaining unit, instead of defining it to conform with the bargaining unit in the Agreement, has been to deprive the respondent and any of its employees who would be bound by the Agreement "...of notice of the impact and legal significance of the application.". That deprivation of notice, counsel submits, is a denial of "...their fundamental rights to natural justice.". Counsel for the group of employees contends that "[w]hen a group of employees are going to be ultimately affected by a disposition to be made by an administrative tribunal they are entitled to be put on notice of the proceedings. To do otherwise constitutes a fundamental denial of natural justice.". In that respect, counsel for the employees relies on Re Bradley et al, and Ottawa Professional Firefighters Association et al, [1967] 20.R.311 and Re Hoogendoorn and Greening Metal Products & Screening Equipment Co. et al, [1966] 20.R.746.

35. The issue which is the source of concern for the respondent and the group of employees is the applicant's claim that welders employed by the respondent were performing work falling within the scope of the Agreement and that they were employed contrary to the terms of the Agreement. That is a problem of interpreting the Agreement, not, as presented in the applications for reconsideration, a bargaining unit definition problem. The proper context in which to decide that issue is the grievance and arbitration process, whether under the Agreement or section 124 of the Act, not in the context of an application for reconsideration of the Board's decision certifying the applicant. It is in the grievance context which deals with that issue where the employees might arguably have an interest and be afforded an opportunity to be heard on the issue. Indeed, the grievance and arbitration process was the context in which the issue of proper notice to an employee arose in each of the Bradley and Hoogendoorn cases on which counsel for the employees relies. The Board did not find them of assistance in these applications for reconsideration, having regard to the reasoning set out below. That is the context also in which the parties could seek a determination of the extent of the applicant's bargaining rights for employees of the respondent.

36. The grievance which gave rise to these applications for reconsideration is not before the Board, however. It was settled between the applicant and respondent without need to be litigated before the Board. What is before this panel of the Board are the applications of the respondent and the group of employees that the Board reconsider and vary or revoke its decision to certify the applicant, applications based in part on the claims that the Board's notice to employees about the application for certification did not alert them to the fact that they would be affected by the application. The notice to employees which the respondent and the employees claim was inadequate is the Board's Notice in Form 78: "Notice to Employees of Application for Certification, Construction Industry Before the Ontario Labour Relations Board". It identified the applicant and informed the employees that the applicant was seeking to be certified to represent in bargaining plumbers, steamfitters and their apprentices employed by the respondent in the ICI sector of the construction industry in the Province of Ontario, and in all other sectors in certain specific Board geographic areas not relevant to the application for reconsideration. The Notice also informed them of the requirements to be met if they wished to file objections to the application. Specifically, it advised employees that, if they wished to object to certification of the applicant, they must make their objections in writing to the board on or before the terminal date set for the application. In the Board's view, that was sufficient and proper notice of the proceedings. The employees were on notice of the fact that the applicant was seeking to represent the respondent's plumbers, steamfitters and their apprentices, and if they wished to participate, how to do so. It is up to the employees to inform themselves of whether they have a legal interest which might be adversely affected and to decide whether to participate. If they choose to get involved, then they must do so at the appropriate time. The group of employees who made the application for reconsideration did make inquiries. Their inquiries apparently did not disclose the concern which now motivates them, the threat which they perceive to their employment as welders with the respondent. That is what they contend the Board's notice should have done; specifically indicated that, if the applicant was certified to represent plumbers, steamfitters and their apprentices, it might mean that a welder would have to be a plumber or steamfitter, or an apprentice thereof in order to continue employment with the respondent. That is nothing less than a claim that the Board should give notice of specific, potential legal consequences which might flow from a certificate should one issue in an application for certification. Such notice is neither required nor appropriate. The legal consequences flowing from a certificate will depend on the union's exercise of its newly acquired rights and the legal consequences would only become known when a particular issue arose from that exercise and was dealt when in the appropriate forum, as would have been the case had the applicant's grievance been litigated.

37. The same reasoning applies to the respondent's second ground for its application for reconsideration described above in paragraph 34. Its claim that the respondent and its employees were deprived of proper notice is a claim that the Board should have given the respondent and its employees notice of specific, potential legal consequences which might flow from a certificate should one issue in the application for certification. As the Board has already stated for reasons given above, such notice to employees is neither required nor appropriate. For the same reasons, such notice to the respondent is neither required nor appropriate. The respondent was given Notice in Form 77 "Notice of Application for Certification, Construction Industry Before the Ontario Labour Relations Board". Amongst other things, that Notice identified the applicant and informed the respondent that the applicant had applied to be bargaining agent for the respondent's journeyman and apprentice plumbers and steamfitters in a bargaining unit described in terms which, for all practical purposes, were the same as the unit described above at paragraph 4. The Notice also required the respondent to send to the Board a reply and a list of the respondent's employees who were employed on the application date in the unit proposed by the applicant. These were to be sent not later than the terminal date set for the application given in the Notice. The reply provided for the respondent to describe the bargaining unit which it claimed to be appropriate for collective bargaining. If the respondent chose to propose a unit which was different from the applicant's unit, the Notice instructed the respondent to indicate on the list of employees the name and classification of any person..." whom the respondent proposed should be deleted from or added to the list. Therefore, the Notice specifically informed the respondent of the nature of the application and, by reference to the reply, gave the respondent the opportunity to propose a different bargaining unit than the one proposed in the application and to name the employees who would be included in the respondent's unit. Therefore the respondent was on notice of which employees the applicant was seeking to represent and what the respondent needed to do if it proposed that the applicant be required to represent a different unit of employees. It is the Board's view, as with the Notice to Employees, that was sufficient and proper notice of the proceedings before the Board.

38. In these circumstances, therefore, the respondent's application is denied on the second ground and the application for reconsideration on behalf of the group of employees is also denied.

39. In the result, the Board will not reconsider and vary or revoke its decision to certify the applicant pursuant to section 144(2) of the Act.