[1995] OLRB Rep. March 333
1433-94-R; 1661-94-U Local Union 47 Sheet Metal Workers' International Association, Applicant v. 2714744 Canada Inc. c.o.b. N C Sheet Metal, Responding Party
BEFORE: R. O. MacDowell, Alternate Chair, and Board Members R. W. Pirrie and J. Redshaw.
APPEARANCES: David Jewitt, Ross Mitchell, Bill Noel and Craig Hyland for the applicant; Neil Chartrand, Michael S. Ruddy, Jim Chartrand, Frank Medwenitsch and Brock Marshall for the responding party.
DECISION OF THE BOARD; March 30, 1995
I
This is an application for certification which was scheduled for hearing together with a related unfair labour practice complaint. On November 14, 1994 the Board disposed of the case with a brief "bottom line" decision, that reads as follows:
The name of the responding party in the title of proceedings is amended to read:
"2714744 Canada Inc. c.o.b. N C Sheet Metal".
This is an application for certification which was scheduled for hearing together with a related unfair labour practice complaint.
Having regard to the evidence and representations before it, and for reasons to be
given in writing, certificates will issue to the applicant in respect of units of the responding company's employees framed as follows:
all journeymen sheet metal workers and registered sheet metal apprentices in the employ of 2714744 Canada Inc. c.o.b. N C Sheet Metal in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario, save and except non-working foremen and persons above the rank of non-working foreman, and
all journeymen sheet metal workers and registered sheet metal apprentices in the employ of 2714744 Canada Inc. c.o.b. N C Sheet Metal in all sectors of the construction industry in the Regional Municipality of Ottawa-Carleton, and the United Counties of Prescott and Russell, excluding the industrial, commercial and institutional sector, save and except non-working foremen and persons above the rank of non-working foreman.
The Board notes that the companion unfair labour practice complaint has been settled. The terms of settlement need not be reproduced here. It suffices to say that the Board directs the terms to which the parties have agreed, and notes that the settlement is enforceable, in any event, pursuant to section 91(7) of the Act.
The issue dividing the parties was quite narrow. The Board had to decide whether certain individuals were "journeymen sheet metal workers" and thus employees in the bargaining unit described in paragraph 3 of the decision of November 14, 1994. The Board decided that they were, and that the union was entitled to represent them in the sheet metal workers' bargaining unit.
That issue will be discussed below. Before doing that though, it may be useful to briefly sketch in the way in which organizing is done in the construction industry. In that regard, we should record section 6(3) of the Act which reads as follows:
["Craft" bargaining units]
6.- (3) Any group of employees who exercise technical skills or who are members of a craft by reason of which they are distinguishable from the other employees and commonly bargain separately and apart from other employees through a trade union that according to established trade union practice pertains to such skills or crafts shall be deemed by the Board to be a unit appropriate for collective bargaining if the application is made by a trade union pertaining to the skills or craft, and the Board may include in the unit persons who according to established trade union practice are commonly associated in their work and bargaining with the group, but the Board shall not be required to apply this subsection where the group of employees is included in a bargaining unit represented by another bargaining agent at the time the application is made.
II
The construction industry is dominated by "craft unions" - that is, trade unions that represent employees with particular trade skills (carpenters, electricians, sheet metal workers etc.). Craft unions organize along craft lines, and their bargaining units are fashioned accordingly. Under section 6(3) of the Act, a craft union meeting the specified criteria is entitled to a "craft unit" as of right. It remains for the Board to determine how many employees are actually members of the craft on the application date and thus properly included in the craft bargaining unit.
Since 1978 the legislature has prescribed a system of province wide bargaining by trade. The details of that framework need not be elaborated here. It suffices to say that the provincial bargaining scheme continues to reflect the prevailing organizing pattern and bargaining structures of the construction industry: craft unions and craft bargaining units. Indeed, since 1978, craft unions have been obliged to seek craft bargaining units pertaining to, and defined in respect of, their particular trade (carpenters, electricians, sheet metal workers and so on).
Craft skills are acquired through a system of training and apprenticeship. It usually takes a number of years to become a fully qualified "journeyman." In many cases, the acquisition
and certification of trade skills is required by the Apprenticeship Act (formerly The Apprenticeship and Tradesmen's Qualification Act).
III
N C Sheet Metal operates a business in the construction industry. As its name suggests, it is in the "sheet metal" business.
At the time of the certification application on July 20, 1994, N C Sheet Metal was engaged in the installation of hearing, ventilating and air conditioning, and miscellaneous sheet metal work at the Ottawa Civic Hospital. That job has been ongoing since the spring of 1991.
The applicant is a "construction trade union" that according to established trade union practice represents sheet metal workers. The "craft unit" applied for by the applicant is its "standard craft unit" and is appropriate for collective bargaining.
The employees affected by this application were hired by the company as "sheet metal workers". At all material times they were doing sheet metal workers' work - that is work which falls within the sheet metal trade and would ordinarily be done by a journeymen sheet metal worker or a registered sheet metal apprentice. Each of the employees in the union's proposed unit is either a registered apprentice or has earned a Certificate of Qualification in the sheet metal work trade, issued pursuant to the Apprenticeship and Tradesmen's Qualifications Act (i.e. they have completed the required five year program of training and experience necessary to become a qualified/certified "sheet metal worker").
There is no dispute that a significant majority of the employees affected by this application wish to be represented by the union in a collective bargaining relationship with their employer. The problem is that three of those employees have allowed their Certificates to lapse for non-payment of fees. Those employees have continued to work for the employer as a "sheet metal workers", they have been paid as a "sheet metal worker", and they have continued to do "sheet metal work"; moreover no one argues that they were no longer capable of performing the work to which they had been assigned. But it is also not disputed that on the date the union applied for certification, their Certificates of Qualification were not in good standing.
The expiry of the employees' certificates some months prior to the certification application had no practical affect on their work situation. They continued to work for NC Sheet Metal, as they had in the past, doing the same work that they did before. Indeed, the practice of the Ontario Training and Adjustments Board is to permit the holder of Certificate of Qualification that has expired to make application for its renewal after such expiry. Upon payment of the prescribed fee, a receipt is issued to the applicant which serves as proof of renewal pending a renewed Certificate of Qualification being prepared and forwarded by ordinary mail.
It is a little difficult to square the prescribed fee schedule with the old and new expiry dates on the Certificates for the disputed employees in this case. It appears, though, that as long as the tradesman is prepared to pay the arrears and any current fees, the Certificate is returned to "good standing" as if there had been no dereliction.
We were told that, in practice, a Ministry of Labour Enforcement Officer would not direct a worker off the site merely because he did not hold a valid subsisting Certificate. Instead, the inspector would provide the worker with a period of time to pay the required renewal fee to make the Certificate current. There is no evidence that any worker with a lapsed Certificate has ever been prosecuted, penalized, or prohibited from working - provided that he paid the required renewal fees within a reasonable period of time. In other words, the agency charged with the responsibility of insuring that workers have a valid Certificate of Qualification will not insist on their removal from the work site if they do not; nor does anyone suggest that the workers qualifications, skills or trade identification is in any way related to the non payment of annual fees.
About two weeks after the date of the application for certification, the employees with lapsed certificates paid the required renewal fees and were issued a receipt which had the effect of making their certificates current as of that date.
IV
The employer argues that the three disputed individuals were not "sheet metal workers" properly included in the union's proposed bargaining unit because they did not have current Certificates of Qualification on the date that the union applied for certification. The employer relies upon the decisions of the Board in O.J. Pipelines Incorporated, [1989] OLRB Rep. Sept. 976, P & M Electric (1982) Ltd., [1989] OLRB Rep. June 638 and, more recently, Gorf Contracting Limited, [1991] OLRB Rep. April 483. In each of those cases the Board ruled that only tradesmen who were journeymen or apprentices in the trade, within the meaning of the Apprenticeship Act [or the Apprenticeship and Tradesmen's Qualifications Act] on the date of the application, were eligible to be in the craft bargaining unit.
In O. J. Pipelines, P & M Electric and Gorf the Board rejected the submission that it should determine the issue solely on the basis of the work that the individuals were doing. The Board noted that when dealing with a certified trade, its "craft" bargaining unit determinations should be consistent with the legally specified qualifications for that trade - particularly under the provincial ICI bargaining scheme, where the designation orders specify the trades which "belong" to each employee bargaining agency, [see O.J. Pipelines Incorporated at paragraph 7]. Thus, in P & M Electric, supra, the Board commented:
In our view, it would be inconsistent with the Apprenticeship and Tradesmen's Qualification Act for the Board to find that persons who are neither qualified journeymen nor apprentices, within the meaning of that legislation, to be in a bargaining unit which relates to a compulsory certified trade for the purpose of certification proceedings before the Board. . . . In our view, it would make no labour relations sense to include in a construction industry bargaining unit which relates to a compulsory certified trade, for the purpose of certification proceedings under the Labour Relations Act, persons who can not lawfully work in the bargaining unit before or after certification and who share no real community of interest with [electricians] who are entitled to work in that trade pursuant to the Apprenticeship and Tradesmen's Qualifications Act.
V
We agree with the results and the reasoning in these decisions. But the instant case is distinguishable. Here, the individuals in question are qualified journeymen, who have received the necessary Certificate of Qualification. They share a community of interest with their fellow workers in the proposed bargaining unit, and the evidence is that the failure to pay the prescribed fees does not prevent them from working, nor require their removal from a job provided (as they have done) they bring their Certificates into good standing by paying the outstanding remittances.
This is not a case like O.J. Pipelines where the disputed individuals had never been properly qualified and accordingly were always prohibited from doing the work in question. Here the disputed employees are both journeymen sheet metal workers in a functional sense, and have clearly qualified for certification as such under the applicable legislation; moreover the practice under that legislation is not to attach immediate consequences to the non payment of periodic license fees, (i.e. the loss of a right to work at the trade for which the individual is qualified). In the absence of evidence that the regulatory agency attaches great significance to the employee's administrative default, we are most reluctant to do so - not least because it would produce post certification changes to the composition of the bargaining unit in a wholly idiosyncratic way, entirely unrelated to the purposes of either the Labour Relations Act or the the Apprenticeship Act.
In our view, for the purpose of the bargaining unit determination under sections 6(3) and 146 of the Labour Relations Act, the disputed individuals are "journeymen sheet metal workers" employed in the bargaining unit on the application date. This determination is consistent with both labour relations realities and what we understand to be the actual practice under the legislation to which the employer refers.
For these reasons the Board found and hereby confirms that:
(1) The applicant is a trade union within the meaning of section 1(1) of the Labour Relations Act and is an affiliated bargaining agent of a designated employee bargaining agency.
(2) Pursuant to the designation issued by the Minister under section 141(1) of the Act on April 28, 1986, the designated employee bargaining agency is the Sheet Metal Workers' International Association and the Ontario sheet Metal Workers' Conference consisting of Locals 30, 47, 235, 392, 397, 473, 504, 537, 539, 562 and 269 of the Sheet Metal Workers' International Association.
(3) 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 the definition of "sector" in section 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.
(4) Pursuant to section 146(1) of the Act, all journeymen sheet metal workers and registered sheet metal apprentices in the employ of the responding party in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario and all journeymen sheet metal workers and registered sheet metal apprentices in the employ of the responding party in all other sectors in the Regional Municipality of Ottawa-Carleton, and the United Counties of Prescott and Russell, save and except non-working foremen and persons above the rank of non-working foreman, constitute a unit of employees of the responding party appropriate for collective bargaining.
(5) On the basis of all the evidence before it, that more than fifty-five per cent of the employees of the responding party in the bargaining unit on July 20, 1994, the certification application date, had applied to become members of the applicant on or before that date.
- Section 146(2) of the Act, 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.
Therefore, pursuant to section 146(2) of the Act, the Board ruled on November 14, 1994 that a certificate would 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 19 above in respect of all all journeymen sheet metal workers and registered sheet metal apprentices in the employ of 2714744 Canada Inc. c.o.b. N C Sheet Metal 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.
- Further, pursuant to section 146(2) of the Act, the Board ruled that a certificate would issue to the applicant trade union in respect of all all journeymen sheet metal workers and registered sheet metal apprentices in the employ of 2714744 Canada Inc. in all sectors of the construction industry in the Regional Municipality of Ottawa-Carleton, and the United Counties of Prescott and Russell, excluding the industrial, commercial and institutional sector, save and except non-working foremen and persons above the rank of non-working foreman.