[1997] OLRB REP. JULY/AUGUST 636

3867-96-R; 4119-96-U Ontario Pipe Trades Council of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, and the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Applicant v. Marsil Mechanical Inc., Responding Party; Ontario Pipe Trades Council of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, and the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Applicant v. Marsil Mechanical Inc. and Marco Grande, Responding Parties

BEFORE: G. T Surdykowski, Vice-Chair.

APPEARANCES: James Fyshe, Garth Cochrane, Dennis Carter, Tony Timperio and Morris Frandsen for the applicant; Joseph Liberman, Erin Kuzz and Marco Grande for the responding parties.

DECISION OF THE BOARD; July 25, 1997

I Introduction

1. Board File No. 3867-96-R is an application for certification under the construction industry provisions of the Labour Relations Act, 1995 (the "Act"). By decision dated February 26, 1997, the Board (differently constituted) directed that a representation vote be taken in the following voting constituency:

all plumbers and plumbers' apprentices and steamfitters and steamfitters' apprentices in the employ of Marsil Mechanical Inc. in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario, and all plumbers' apprentices and steamfitters' apprentices in the employ of Marsil Mechanical Inc. in all other sectors of the construction industry in the County of Simcoe and the District Municipality of Muskoka, save and except non-working foremen and persons above the rank of non-working foreman. [sic]

Notwithstanding the apparent inadvertent omission of journeymen plumbers and steamfitters in the second part of the description of the voting constituency, it is apparent that it was intended to include them to reflect the bargaining unit description which the Board determined to be appropriate at paragraph 5 of that same decision.

2. The vote was held on February 28, 1997 as directed by the Board. Five persons cast ballots. All ballots have been segregated and the ballot box has been sealed pending the determination of the dispute between the parties in that respect.

3. The dispute between the parties concerns the status and entitlement to vote of Teddy Petrushevski and Silvio Grande. The applicant trade union (the "U.A.") asserts that Petrushevski was not properly working under the Trades Qualification and Apprenticeship Act (the "Apprenticeship Act") and should therefore not be included as an employee in the bargaining unit (and therefore had no right to vote). The U.A. asserts that Silvio Grande exercises managerial functions within the meaning of section l(3)(b) of the Act and is therefore deemed not to be an employee in the bargaining unit (and accordingly has no right to vote either).

4. I note that the employer ("Marsil") chose (rightly in my view - see Alcan Aluminium Limited, Board File Nos. 2736-96-R and 2743-96-R, decision dated June 9, 1997, unreported to date) not to pursue its challenges to two other persons (Morris Frandsen and Tony Timperio) whose names were included on the voters' list and who cast ballots on the basis that their employment was obtained by fraud, specifically an alleged undertaking or agreement by the U.A. not to bring an application for certification if they were employed by Marsil.

5. Board File No. 4119-96-U is a complaint under section 96 of the Act in which the U.A. alleges that Marsil and Marco Grande terminated the employment of Tony Timperio ("because of his union affiliation and his support for the [U.A.] in the certification application [in Board File No. 3867-96-R])", contrary to section 72 of the Act. The relief sought by the U.A. includes the reinstatement of Timperio and damages consisting of his lost wages and benefits, with interest; and certification in Board File No. 3867-96-R under section 11(1) of the Act.

II The Apprenticeship Act Issue

6. The facts relevant to the question of Petrushevski's status were not in dispute. Accordingly, after these facts were stipulated, the parties made their representations. The parties then called their evidence and made their representations with respect to the question of Silvio Grande's status and the U.A.'s section 96 complaint. It was agreed that the Board would determine whether Petrushevski and Silvio Grande were entitled to vote and that the ballot box would be opened and eligible ballots counted, and that only if the U.A. loses the vote would the Board determine the section 11(1) issue in the section 96 complaint, although the section 72 aspect of the complaint will have to be determined in any event.

7. Teddy Petrushevski was neither a registered apprentice plumber or steamfitter, nor a jour­neyman in either trade at the time the application for certification was made. He performed some work in the trade for Marsil in mid-to-late December, 1996 and then started to work full time during the week ending January 10, 1997. This application for certification was filed on February 20, 1997. It was not until February 26, 1997 that Petrushevski's apprenticeship documents were forwarded to the appropriate government Ministry for processing. In addition, the U.A. points out that if Petrushevski (and Silvio Grande) are counted as apprentices, Marsil was "out of ratio" on the certification application date because one of the other three employees was also an apprentice. There was no suggestion that Petrushevski was not doing bargaining unit work (i.e. working in either the plumbing or steamfitting trade) for a majority of his time on the date of application.

8. The question is whether Petrushevski should be considered to be an employee in the bargaining unit in this application notwithstanding that he was neither an apprentice nor a journeyman plumber or steamfitter at the time the application was made. In that respect, it calls into question the Board's "observation" in paragraph 37 of Heritage Mechanical, [1995] OLRB Rep. Mar. 272 as follows:

9. Finally, we observe that Goodlet and Drake would properly be included on the list of employees in the application for certification even if neither had been registered apprentice sheet metal workers on the certification application date. Section 9 of the Trades Qualification Act appears to permit a person to work at a trade for which an apprenticeship training program is established without a certificate of apprenticeship or qualification in the trade for up to three months. Accordingly, a person who is not a journeyman or registered apprentice may lawfully work in a compulsory certified trade for up to three months, and is therefore properly included on the list of employees for certification purposes for up to three months from the day s/he begins work in the trade. In this case, both Goodlet and Drake had worked for the responding employer for less than three months at the time the application for certification was made and would therefore be properly included on the list of employees in the bargaining unit even if they had not been registered as apprentice sheet metal workers.

Subsequently, in dismissing a request that it reconsider (only) paragraph 37 of that decision, the Board stated that:

4. If, as the applicant asserts, paragraph 37 of the March 21, 1995 decision (only part of which is excerpted in the applicant's request for reconsideration) is obiter, then it is unnecessary to the Board's decision and removing paragraph 37 entirely would not change the decision.

5. Whether or not paragraph 37, or that part excerpted in the applicant's request for reconsideration, is obiter. it is clearly reasoning in the alternative or in addition to the Board's finding that Messrs. Goodlet and Drake were registered apprentice sheet metal workers on the certification application date, which was by itself dispositive of the list issue between the parties with respect to those two persons, and with respect to which the applicant does not take issue.

6. Indeed, the applicant appears to concede all of this since it seeks to have the Board reconsider or "clarify" paragraph 37, and does not seek reconsideration of the decision itself.

7. Assuming that it would be appropriate for the Board to reconsider a part of a decision in these circumstances, we note that the application of the Trades Qualification Act was squarely in issue before the Board in this proceeding. Indeed, it was the applicant itself which raised that issue, which concerns the interpretation and application of that legislation, and specifically sections 9 and 11 thereof, to applications for certification before the Board. Consequently, while neither party specifically dealt with the application of section 9(1)(b) of the Trades Qualification Act, that matter was certainly before the Board. It would be inappropriate for the Board to ignore part of an applicable legislative provision merely because the parties failed or chose not to address it.

8. In any event, it appears that the applicant's real concern is that the Board's March 21, 1995 decision forever closes the door on the section 9(1 )(b) question. Those who regularly appear before the Board, as the applicant does, must know that a party which has a cogent argument to make on an issue of this nature will be heard by the Board, unless the matter is so well settled that it is considered to be trite law. As it stands the March 21, 1995 decision herein is the only one of which we are aware which addresses the question of how section 9(1)(b) of the Trades Qualification Act applies in Board proceedings, and if it is obiter (which it probably is) it is no more than one construction panel's view of the matter.

(Heritage Mechanical, [1995] OLRD No. 1448)

9. In contrast, in Nay/or Group Incorporated, [1986] OLRB Rep. Nov. 1563, the Board held that:

10. The Board disagrees with respondent counsel that any of the three employees are apprentices pursuant to the Apprenticeship Act. Section 1(a) defines apprentice to mean "...a person who is at least sixteen years of age and who has entered into a contract under which he is to receive, from or through his employer, training and instruction in a trade". The filing of an Application for Appren­ticeship. the payment of the requisite fee and the setting of the effective date for the application, together with an instruction from the Ministry's consultant as to the journeyman's rate on which the employer is to base the minimum apprenticeship rate to be paid to the apprenticeship applicant does not, in the Board's view, constitute evidence of a Contract of Apprenticeship in the common law sense. There is no evidence before the Board that the respondent had undertaken and the employees had accepted a rate of pay which satisfied the requirements of the Act. Nor does the Board read the judgement in the Singh case, supra, that such conditions constitute a Contract of Apprenticeship. The defendant Singh was found guilty of having violated the Apprenticeship Act by failing to pay the required rates under a Contract of Apprenticeship. It is clear from the judgement that the Court had before it a formal Contract of Apprenticeship and was not relying simply on the Application for Apprenticeship.

11. Should the Board be wrong and should the conditions cited by counsel be a Contract of Apprenticeship in common law, it is not a Contract of Apprenticeship within the meaning of the Apprenticeship Act. While it may be argued such a contract would satisfy section 1(a) of that Act, other sections of the Act and its Regulations cause the Board to conclude that it does not.

12. It is beyond dispute that section 9 of the Apprenticeship Act applies to a certified trade like the sheet metal trade. Subsection I of section 9 requires persons not qualified in the trade to "...forthwith apply in the prescribed form for apprenticeship in that trade; and within three months after commencing work in that trade, file with the Director his Contract of Apprenticeship" (emphasis added). Ontario Regulation 36 requires that an Application for Apprenticeship be in the form provided by the Minister (section 2) and section 11(1) requires that a Contract of Apprenticeship be in the form provided by the Minister. Therefore, in the Board's view, when section 1(a) of the Apprenticeship Act uses the word "contract" in defining apprentice, it is referring to a contract in the form prescribed by the Regulations under the Act. Similarly, this is the form of contract being addressed by section 15 of the Apprenticeship Act when it says "[e]very contract of apprenticeship shall, upon its approval by the Director, be registered by him forthwith". None of the three employees had signed a Contract of Apprenticeship with the respondent in the form prescribed by the Act and its Regulations on or before September 12, 1986. It follows, therefore, that none had filed contracts in the prescribed form with the Director of Apprenticeship for his approval and registration pursuant to section 15. It is not unreasonable to conclude in the circumstances that none of the three were apprentices under the Act and, if they are not apprentices, it follows that they could not be registered apprentices as that term relates to the requirements of the Apprenticeship Act.

13. That conclusion is supported by the Board's decision in Castle Plumbing and Heating Inc., Board File No. 0076-85-R, an unreported decision which issued July 22, 1985. The Board in that case was dealing with an issue respecting two employees who, by the date of making of an application for certification, had applied for apprenticeship in the sheet metal trade, were performing work of the trade and awaiting approval and acceptance of their applications. It was an agreed fact that they became "registered" sheet metal apprentices after the certification application date. The decision is silent with respect to what constitutes becoming registered. It would appear from paragraph 6 of the decision set out below, that the Board concluded that a Contract of Apprenticeship becomes registered at the time it is approved by the Director:

14. It is clear that under the Apprenticeship and Trade.sme,z 's Qualification Act and the regulations thereunder a contract of apprenticeship is registered after the approval of the Director of Apprenticeship and that Messrs. Beek and MacDonald were by the regula­tions exempt from the provisions of section 9 of the Apprenticeship and Tradesmen's Qualification Act because they had applied in the prescribed form for apprenticeship in the certified trade of sheet metal worker because they apparently worked in that trade for three months or less before becoming registered sheet metal apprentices. However, on the date of the making of the application they were not registered sheet metal apprentices and in determining the number of employees in the bargaining unit for the purpose of the count under section 7(1), the Board includes only those persons who were within the definition of the bargaining unit on the date of the making of the application. Accordingly. John Beek and Steve MacDonald are not including for the purposes of the count.

15. Respondent counsel argues that the Board need not and should not follow the decision in Castle Plumbittg, supra, because it does not address his alternative argument that the operation of section 7 of Ontario Regulation 57 is sufficient to satisfy the Board's concern about not wishing to include in the bargaining unit for purposes of the count under section 7 of the Labour Relations Act. persons who cannot lawfully work in the trade. Counsel submits that anyone working in the sheet metal trade on the date of making of the application should be considered prima facie to be included in the bargaining unit unless it is established that they are not lawfully at work in the trade. Persons who have fulfilled the conditions of section 7 of Regulation 57 are exempt from the prohibition set up under section 11(2) of the Apprenticeship Act and are entitled to lawfully work in the trade. Therefore, anyone working in the trade for the employer on the certification application date who has satisfied section 7 would be lawfully at work and the Board should include them in the bargaining unit. As the Board has said earlier in the decision, accepting this argument would include Laurien and Lowenberg in the unit.

16. There is no doubt that the Board has discretion to do as counsel argues, the question is whether that would be the appropriate exercise of its discretion. Section 9(2) of the Apprenticeship Act makes it clear that the effects of section 7 of Ontario Regulation 57 only exempts an employee in the trade for a three month period from the start of his employment in the trade. If the employee fails to file his Contract of Apprenticeship with the Director before the expiry of the three month period, section 9(2) mandates that the employee cease to work in the trade until he complies with section 9(l)(b). Therefore, it may be seen that the act of filing the Apprenticeship Contract with the Director establishes with greater certainty compliance with section II of the Apprenticeship Act. While the Board in the I,vcon decision did not explicitly address this issue, it seems to recognize the effect which would come from a filing of a Contract of Apprenticeship with the Director when it states as follows at paragraph 7:

17. In the context of the present case, of course, to adopt the applicant's position would mean that the employees in question are not employees in the bargaining unit. They would not be entitled to any voice in the determination as to whether the applicant trade union should be entitled to represent sheet metal workers, but it also follows that if the applicant trade union were certified they would not be able to continue as employees unless they became registered apprentices.

[emphasis added]

24. Having regard to all of the foregoing, to the provisions of the Apprenticeship Act and its Regulations and to the evidence before the Board herein, those persons who on September 12th, 1986, would be registered sheet metal apprentices in the bargaining unit found herein to be appropriate for collective bargaining, would be those persons who, on or before that date, had, at the very least, filed with the Director a Contract of Apprenticeship in the form prescribed by the Apprenticeship Act and its Regulations. Since no Contract of Apprenticeship in the prescribed form had been filed with the Director by or for Jordan, Laurien and Lowenberg on or before September 12th, none of them were registered sheet metal apprentices on that date. Accordingly, none of them are included in the bargaining unit for purposes of the count.

25. "Plumber" and "steamfitter" (the latter being the same as "pipefitter" for purposes of the Act: D.E. Witmer Plumbing and Heating Limited, [1987] OLRB Rep. Oct. 1228) are trades which are specifically recognized and dealt with by the Apprenticeship Act. Among other things, the Apprentice­ship Act provides that:

26. In this Act,

"apprentice' means a person who is at least sixteen years of age and who has entered into a contract under which the person is to receive, from or through his or her employer, training and instruction in a trade;

"certified trade" means a trade designated as a certified trade union section 10.

9. (1) Every person who commences to work at a trade for which an apprentice training program is established but who does not hold a certificate of apprenticeship or qualification in that trade shall,

(a) forthwith apply in the prescribed form for apprenticeship in that trade; and

(b) within three months after commencing to work in that trade, file with the Director his or her contract of apprenticeship.

(2) Every person who fails to comply with subsection (I) shall, upon the expiration of the period of three months mentioned in clause (I) (b), cease to work in that trade until the person files with the Director his or her contract of apprenticeship or until the Director authorizes in writing the continuation or resumption of such work.

10.-(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 or she holds a subsisting certificate of qualification in the certified trade.

(3) No person shall employ any person, other than an apprentice or a person of a class that is exempt from this section or a person referred to in subsection (4), in a certified trade unless the person employed holds a subsisting certificate of qualification in the certified trade.

(4) When a trade is certified under subsection (I), a person who is working in the trade at the time that it is certified shall be allowed a period of two years from the first day of the month following the month in which the trade is certified to qualify for a certificate of qualification in the trade, if the person,

(a) is the holder of a certificate of apprenticeship in the trade: or

(b) satisfies the Director that he or she 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 or she is qualified to work in the trade and meets such other requirements as the Director may prescribe.

11. In addition, section 5 of Regulation 1073 ("Plumber") under the Apprenticeship Act provides that:

12. A person is exempt from subsection 10(2) of the Act if he or she,

(a) applies in the prescribed form for apprenticeship in the certified trade; and

(b) works in that trade for three months or less.

(Section 5 of Regulation 1079 "Steamfitter" contains an identical provision).

12. The trades of plumber (Regulation 1073) and steamfitter (Regulation 1079) are compulsory certified trades under the Apprenticeship Act. This means that only persons who are qualified jour­neymen or apprentices in these trades, within the meaning of the Apprenticeship Act, may lawfully perform the work of a plumber or steamfitter. But this requirement is subject to exceptions specified in the Apprentice Act or the Regulations under the Act which are specific to the trade. In O.J. Pipelines Inc., [1989] OLRB Rep. Sept. 976, an application for certification by U.A., Local 800 from which the Board quoted at length in Heritage Mechanical, supra, the Board explained it this way:

13. Although section 6(1) of the Labour Relations Act gives the Board a discretion in determining 'the unit of employees that is appropriate for collective bargaining", that discretion is limited in applications for certification in the construction industry by sections 6(3), 119, 139 and 144 of the Act [as they then were]. All applications for certification in the construction industry must be made pursuant to sections 119 and 144 (Clarence H. Graham Limited, [1981] OLRB Rep. Sept. 1195; Ninca Construction Ltd., [1982] OLRB Rep. Nov. 1692; Manacozz Construction Limited, [1983] OLRB Rep. March 407 and July 1104; Ellis-Don Limited, [1988] OLRB Rep. Dec. 1254 and [1989] OLRB Rep. March 234; Wraymar Construction and Rental Sales Ltd., [1989] OLRB Rep. June 682). Under the province-wide bargaining provisions of the Act, there are organizations of trade unions, called designated employee bargaining agencies, which are designated to represent in the industrial, commercial and institutional (“ICI") sector of the construction industry those employees in certain specified trades or crafts (for our purposes those terms are synonymous) who are represented by the trade unions, known as affiliated bargaining agents, which constitute them. A trade union which is an affiliated bargaining agent of a designated employee bargaining agency may, at its option, apply for certification under either section 144(1) or (3), or enter into voluntary recognition agreements under section 144(4). Trade unions which are not represented by a desig­nated employee bargaining agency, and which are therefore not affiliated bargaining agents to which sections 144(1) through (4) of the Act apply (such as the Christian Labour Association of Canada) can apply for certification or enter into voluntary recognition agreements in the construc­tion industry under section 144(5).

14. 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.

15. Pursuant to the designation order referred to in paragraph I above, the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, and the Ontario Pipe Trades Council of the United Association of the Plumbing and Pipefitting Industry of the United States and Canada, has been designated to represent in bargaining in the ICI sector of the construction industry" all Journeymen and Apprentice Plumbers and Pipefitters" represented by its affiliated bargaining agents

In paragraph 9 of that decision the Board set out the definitions of "apprentice" and "certified trade" and the provisions in what are now sections 1,9 and 10 of the Apprenticeship Act as set out above, and then continued as follows:

10. It is evident from the Board's decisions in cases like Irvcon Roofing & Sheet Metal (Pembroke) Ltd., [1981] OLRB Rep. Nov. 1594; CT Windows Limited, [1982] OLRB Rep. Nov. 1597 and [l983] OLRB Rep. May 627; Mechanical Insulations Roofing & Siding Ltd., [1985] OLRB Rep. April 549; Nay/or Group Incorporated, [1986] OLRB Rep. Nov. 1563; Phase IV (4) Electrical Contractors Limited, Board File No. 2792-87-R, unreported decisions dated March 25, 1988 and July 5, 1988), and B. C. Meck, [1988] OLRB Rep. June 546 that the focus of the Board's concern in applications for certification relating to bargaining units described in terms of compulsory certified trades is that persons working or employed in such trades be lawfully so engaged before they are considered to be employees for certification purposes. Consequently, the Board has applied the Apprenticeship and Tradesmen's Qualification Act in such cases in determining the list of employees in such bargaining units for certification purposes.

11. Pursuant to Regulations 52 and 59 (R.R.O. 1980) respectively under the Apprenticeship and Tradesmen’'s Qualification Act, the trades of "plumber" and "steamfitter" are compulsory certified trades. The Board has determined that the labels "pipefitter" and "steamfitter" are synonymous for purposes of the Labour Relations Act (D. E. Witmer Plumbing and Heating Limited, supra, at paragraph 9). Consequently, a person must be either a journeyman or apprentice in the plumbing or steamfitting trades within the meaning of the Apprenticeship and Tradesmen's Qualification Act to be able to lawfully work or be employed as a plumber or steamfitter respectively in the Province of Ontario.

12. In P & M Electric (1982) Ltd., [1989] OLRB Rep. June 638, the Board observed that:

13. The Apprenticeship and Tradesmen's Qualification Act is a statute of general applica­tion in the Province of Ontario. Its purpose is to regulate the training and qualifying of tradesmen and, in the case of a compulsory certified trade, to regulate the persons who can work at various trades so designated. Although it is not for this Board to enforce statutes like the Apprenticeship and Tradesmen's Qualification Act, the Board is, in our view, obligated to not make decisions or proceed in ways which are inconsistent with laws of general application which are specifically directed at matters with which it must be concerned in the course of exercising its powers in performing the duties conferred or imposed upon it by or under the Labour Relations Act.

14. In our view, it would be inconsistent with the Apprenticeship and Tradesmen's Qualification Act for the Board to find that persons who are neither qualified journeyman nor apprentices, within the meaning of that legislation, to be in a bargaining unit which relates to a compulsory certified trade for the purpose of certification proceedings before the Board. Further, the issue of community of interest in trade or craft bargaining units is determined primarily on the basis of the skills and working conditions which are characteristic of employees engaged in that craft or trade. In the construction industry, the community of interest question has largely been resolved by the development and operation of businesses and trade unions in that industry along trade or craft lines. Both the structure of the Labour Relations Act and the Board's approach to the construction industry recognize that (see Ellis Don Limited, [1988] OLRB Rep. Dec. 1254, particu­larly at paragraphs 37-46). In our view, it would make no labour relations sense to include in a construction industry bargaining unit which relates to a compulsory certified trade, for the purpose of certification proceedings under the Labour Relations Act, persons who cannot lawfully work in the bargaining unit before or after certification and who share no real community of interest with electricians who are entitled to work in that trade pursuant to the Apprenticeship and Tradesmen's Qualification Act.

(See also McLeod et al. v. Egan et al, (1974) 1974 CanLII 12 (SCC), 46 D.L.R. 3rd 150) 5CC.); Re Ontario Hydro and Ontario Hydro Employees Union, Local 1000 et al. (1983) 1983 CanLII 1868 (ON CA), 41 OR. 2nd 669) (Ont. CA.)). We agree and find that reasoning equally apposite to this case which deals with the compulsory certified trades of plumbing and steamfitting.

13. Having regard to section 144(1) of the Labour Relations Act, the provisions of the Apprentice­ship and Tradesmen's Qualification Act and Regulations thereunder, and the designation order referred to in paragraphs I and 8 above, the Board is satisfied that a person must be a journeyman or apprentice plumber or steamfitter, within the meaning of the Apprenticeship and Tradesmen 's Qualification Act in order to be counted as an employee in a bargaining unit described in terms of such tradesmen in an application for certification which relates to the ICI sector of the construction industry.

14. This brings us to the question of whether welders said to be working in the plumbing or steamfitting trades can be considered to be employees in such a bargaining unit. We note that while welding is subject to the provisions of the Boilers and Pressure Vessels Act, R.S.O. 1980 Chapter 46, it has not been recognized as a separate trade either under the Apprenticeship and Tradesmen's Qualification Act or by the Board. Nor is either welding or welders the subject of any of the designation orders which have been issued to date. Indeed, a number of construction industry trade unions, including the applicant, claim some type of welding as part of their trade jurisdiction.

15. In the result, we find ourselves constrained to conclude that the only persons who perform welding functions who should be included as employees in a bargaining unit of plumbers and steamfitters are those who are either journeymen or apprentices in one or other of those trades.

16. Counsel for the applicant referred us to the Board's decision in Rainscreen Metals Systems Incorporated, [1989] OLRB Rep. May 482 in which the Board found it appropriate to stipulate in a clarity note that sheeters, sheeters' assistants and material handlers were employees in a bargaining unit of journeymen and apprentice sheetmetal workers. The trade of sheetmetal worker is a compulsory certified trade under the Apprenticeship and Tradesmen's Qualification Act. However, there is no indication that the appropriateness of that clarity note was put in issue in that proceeding. Nor is it obvious that the employees working as sheeters, sheeters' assistants and material handlers to which that clarity note refers were other than apprentice or journeymen sheetmetal workers. Finally, the "Sheet Metal Workers" designation entitles the employee bargaining agency named therein to represent journeymen and apprentice sheetmetal workers and sheeters, sheeters' assistants and material handlers. (There is no reference to welders in the designation order which governs this application). Consequently, the Rainscreen decision is readily distinguishable from this case.

17. Counsel for the applicant also complained about the unfairness that would result from a decision which precludes the applicant and its employee bargaining agency from becoming the exclusive bargaining agents of welders who are engaged in the plumbing or steamfitting trade but who are neither journeymen nor apprentice plumbers or steamfitters. He set out the example of construction industry employers who employ primarily or exclusively such welders. Indeed, it appears that it is not uncommon for both unionized and non-unionized employers to employ welders who are neither journeymen nor apprentice plumbers or steamfitters to perform work generally considered to be in the plumbing or steamfitting trade.

18. The Board is not unaware or unsympathetic to the dilemma faced by the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada in this respect, particularly since a significant number of its members are (so we understand) welders who are neither journeymen nor apprentice plumbers or steamfitters. The Board also accepts that, to the extent that it is possible, the Board's practices and policies should reflect and be responsive to the real world of labour relations rather than vice versa. However, the applicant cannot have it both ways. Either the Apprenticeship and Tradesmen's Qualification Act applies or it does not. The applicant has consistently argued in cases before the Board that it does apply, and the Board, as the Irvcon Roofing & Sheetmetal (Pembrook) Ltd. line of cases illustrates, has accepted that argument. As the Board pointed out in P & M Electric (1982) Ltd., supra, it is not for this Board to enforce the Apprenticeship and Tradesmen's Qualification Act as such.

19. The Board is an administrative tribunal established by the Labour Relations Act to administer and apply that legislation. As such it is empowered and obligated "to determine all questions of fact or law that arise in any matter before it" (section 106(1)). However, as a creature of statute, the Board has no powers other than those conferred upon it by or under the Labour Relations Act (or other legislation which delegates powers to it; see, for example, section 24 of the Occupational Health and Safety Act, R.S.O. 1980 Chapter 321). Consequently, although it is obliged to apply laws of general application the Board has only those powers which have been conferred upon it by statute. The Board has no separate or additional inherent or equitable jurisdiction to "do what it thinks is best". In the Board's view, the solution to any difficulties which may be occasioned by the conclusions it has found itself constrained to arrive at in this case are to be found, if at all, in another forum.

20. We understand that the Ontario Pipe Trades Council has requested that the Minister amend the present designation order so that the employee bargaining agency referred to in paragraph I above would be entitled to represent in bargaining in the ICI sector "all plumbers, plumbers' apprentices, steamfitters and steamfitters' apprentices and all qualified welders working in the plumbing and steamfitting trades". Although that may be a solution, we observe that adopting that approach would seem to create a conflict between the designation order and the Apprenticeship and Tradesmen's Qualification Act. On the other hand, this kind of apparent conflict has existed for some years between the sheetmetal workers designation and the Apprentices/zip and Tradesmen's Qualification Act (see F. S. Fox Limited to be reported in [1989] OLRB Rep. July).

21. In the result, the Board is satisfied that it is unnecessary to include the clarity note requested by the applicant herein insofar as it relates to welders who are either journeymen or apprentice plumbers or steamfitters. The Board is also satisfied that the clarity note is not appropriate insofar as it relates to other persons employed as welders working in the plumbing or steamfitting trades since those persons are not properly included as employees in the bargaining unit applied for herein for certification purposes.

22. With respect, the approach taken in O.J. Pipelines, supra, is the correct one, and the Board's comments in paragraph 37 of Heritage Mechanical, supra, whether or not obiter in that case, indicate a natural and proper extension of that approach.

23. When it comes to the Apprenticeship Act, the concern of the Board has been that employees are lawfully at work at the times material to the Board's considerations in applications for certification. Accordingly, as decisions like C.T Windows Limited, [1983] OLRB Rep. May 627 demonstrate, for purposes of an application for certification, the Apprenticeship Act is irrelevant when it comes to trades which are not compulsory certified trades. On the other hand, in more than 15 years of jurisprudence (beginning with Irvcon Roofing & Sheet Metal (Pembroke) Ltd., [1981] OLRB Rep. Nov. 1594), the Board has consistently applied the Apprenticeship Act when it comes to employees engaged in compul­sory certified trades by asking the question: were those employees lawfully engaged in that trade at the material times?

24. Clearly, an employee who holds an appropriate certificate of qualification in a compulsory certified trade can lawfully work in that trade. So can an employee who has entered into a contract of apprenticeship in the appropriate form which has been duly signed and approved by the Director of Apprenticeship. Section 17 of the current Apprenticeship Act provides that upon approval every contract of apprenticeship shall be registered by the Director.

25. Earlier on, in decisions like Irvcon, supra, the Board spoke in terms of registered appren­tices, and expressed an apparent concern that bargaining units consisting of employees in compulsory certified trades be limited to employees who would be able to continue as employees in the bargaining unit after certification. In that respect, the Board suggested that persons who were not or did not become registered apprentices in the trade would not be able to continue as employees. With respect, that is both not necessarily the case and obscures the reason for the Board's concerns about the status of employees under the Apprenticeship Act. Similarly, I respectfully suggest that the Board in the Naylor Group Incorporated, supra, case did not directly address the question suggested by what is now section 9(2) of the Apprenticeship Act, although it did address a provision in an applicable Regulation to the same effect, even though that issue was squarely before the Board in that case. To the extent that that decision suggests that only employees who are journeymen or apprentices (as defined in the Apprentice­ship Act) can lawfully work in a compulsory certified trade, and that only those employees should be included in a bargaining unit which consists of employees in a compulsory certified trade, I respectfully disagree.

26. The Board's functions do not include administering or enforcing the Apprenticeship Act as such. In applying the Apprenticeship Act in applications for certification or other proceedings (jurisdic­tional disputes, for example), the Board is concerned only with the status of employees under the Apprenticeship Act for purposes of the Labour Relations Act, 1995. It is patently obvious that under the Apprenticeship Ad there are persons other than certified journeymen or registered apprentices who can lawfully work or be employed in even a compulsory certified trade.

27. It is true that under the Apprenticeship Act "apprentice" is in effect defined as being a person who has entered into a contract of apprenticeship, and that section 10(2) provides that no one other than an apprentice or person exempted under section 10(4) can work or be employed in a compulsory certified trade unless s/he is a certified journeyman. However, section 9(1) contemplates that a person can commence work in a trade without being either an "apprentice" as defined in the Apprenticeship Act or a certified journeyman, provided that such a person must "forthwith" apply to become an apprentice and within three months of commencing work in a trade file a contract of apprenticeship with the Director. Section 9(2) goes on to provide that a person who does not comply with section 9(1) within three months must then stop working in the trade until s/he either files a contract of apprentice­ship with the Director, or the Director gives written authorization for that person to continue or resume work in the trade. It is apparent that the definitions and the provisions of sections 9 and 10 of the Apprenticeship Act must be read together, and that section 9 in effect provides a three month grace period for persons to become apprentices in the trade. Similarly, the requirement that a person "forth­with" apply for apprenticeship in a trade must be read in context, and requires only that a person do the things required to become an apprentice in the trade within three months of starting work in it. If s/he does so that is "forthwith" enough. Read as a whole, the Apprenticeship Act contemplates that a person who is neither an apprentice nor a journeyman in a compulsory certified trade can lawfully work or be employed in that trade for up to three months, or even for such longer period as the Director may authorize in writing. Accordingly, for the Board's purposes in an application for certification, a person who is neither an apprentice nor a journeyman in a compulsory certified trade but who has been working or employed in that trade for not more than three months has the status of an employee who is properly included in a bargaining unit which includes employees in the trade.

28. In the case of plumbers and steamfitters, the trades in issue in this proceeding, section 5 of the respective regulations for those trades make that even clearer, in that they specifically exempt persons who have been engaged in either trade for three months or less from the prohibition in section 10(2) of the Act, something which section 26 of the Apprenticeship Act provides can be done by regulation (see paragraph 11, above).

29. Further, any concern regarding the post-certification (or indeed the post-date of application) status of employees in Board decisions in the construction industry which were made prior to 1987, which includes both Irvcon, supra, and Naylor Group Incorporated, supra, must be read in the context of the Board's overall approach to construction industry applications for certification. It was not until the Board's decisions in E & E Seegmiller Limited, [1987] OLRB Rep. Jan. 41 and Gilvesy Enterprises Inc., [1987] OLRB Rep. Feb. 220 that the Board settled on the certification application date as being the only relevant date for purposes of determining the number and identity of employees in a construc­tion industry bargaining unit for purposes of an application for certification (or for an application for terminating the bargaining rights). Since then, the Board has consistently applied the date of application test in that respect, and as recently reviewed in Ken Anderson Electric Inc., [1996] OLRB Rep. Oct. 846, has extended its application to determining voter eligibility in construction representation proceedings. Accordingly, events which occur after the date of application, whether these relate to the Apprenticeship Act, to a voluntary or involuntary termination of employment, or otherwise affect a person's employee status, are irrelevant to the Board's considerations concerning a person's employee status on the date of application. The question is whether the status of a person is that of an employee lawfully working in the bargaining unit on the date of application, not what his/her status was on some previous date, or what it might be at some future time.

30. In argument, counsel for the U.A. referred to the employee bargaining agency designation for the U.A. and reminded the Board that this designation is for all journeymen and apprentice plumbers. Accordingly, argued counsel, anyone who is not an apprentice, within the meaning of the Apprenticeship Act cannot be included in the bargaining unit. In effect, the U.A. submits that being an apprentice within the meaning of its designation order requires more than merely working in the trade.

31. Many designations, both with respect to compulsory certified trades and trades which are not, are expressed in terms of journeymen and apprentices in the trade. For trades which section 10(2) of the Apprenticeship Act does not apply (i.e. non-compulsory certified trades) this has been liberally interpreted to require only that employees be working in the trade. For compulsory certified trades, it has been interpreted as requiring that an employee be lawfully engaged in the trade under the Appren­ticeship Act. That is, where the term "apprentices" appears in a designation order, it has been liberally construed, and interpreted in accordance with what is required or permitted under the Apprenticeship Act. Accordingly, the terms of the designation orders, or more specifically the U.A. designation order, adds nothing to the analysis of this particular issue.

32. Further, the fact that Marsil may have been "out of ratio" on the date of application is irrelevant to the Board's considerations in an application for certification. First of all, this issue was not raised until the morning of the first day of hearing on April 28, 1997 (two full months after the vote was held), and as such it is untimely. Second, questions concerning the apprentice to journeyman ratio are matters of enforcement and administration of the Apprenticeship Act, something over which this Board has no jurisdiction. The fact that an employer is out of ratio does not affect the status of an employee of that employer under the Apprenticeship Act.

33. Finally, the U.A. argued that permitting persons who are neither journeymen nor apprentices (as defined in the Apprenticeship Act) in a compulsory certified trade to count as employees in the bargaining unit for purposes of an application for certification would permit an employer to gerryman­der the list of employees in that respect to the prejudice of the trade union seeking certification (and presumably to the employees who support an application for certification in that respect). With respect, I am unable to understand this argument. It is only employees in the bargaining unit applied for on the date the application is made which "count" for purposes of an application for certification in any respect. The day on which an application for certification is made is within the sole control of the applicant trade union. On the other hand, it is possible that an employer could get wind of an application for certification, or might be otherwise sufficiently concerned that one might be made, that it would alter its complement of employees in an attempt to subvert an application before it was made. If such conduct interfered with the exercise of rights under the Act, it would be dealt with appropriately. If the employer's conduct was not unlawful, the trade union would have nothing to complain about, any more than an employer does when a trade union picks a certification application date which is particularly advantageous to it (like a Saturday or Sunday, for example). Although the word does carry a negative connotation, the fact is that not all gerrymandering is unlawful or otherwise prohibited. Additions to or deletions from an employer's complement of employees after the date of application cannot affect the "count" or the entitlement of individuals who are employees on the certification application date to vote.

34. In the result, a person who is not an apprentice or journeyman plumber or steamfitter on the date of application, but who spent a majority of his/her time on the date of application working in one of these trades is properly included in the bargaining unit herein and was entitled to vote, so long as that person had been working or employed in the trade for not more than three months. In this case, Petrushevski was working in the trade of plumber or steamfitter on the date of application. Although he was neither a registered apprentice nor a journeyman in either trade, he had not been working in the trade for more than three months at the time the application for certification was made. As a matter of status, Petrushevski was lawfully working or employed in the trade on the certification application date and he is therefore an employee in the bargaining unit and was entitled to vote.

III The Section 1(3)(b) Issue

26. I turn now to the question of Silvio Grande. The question is whether he was an employee in the bargaining unit on the date of the application, or should be excluded from the bargaining unit because he exercised managerial functions. The law and policy in this area are well settled, and I find it unnecessary to engage in any lengthy review or analysis of the jurisprudence generally, or of the arguments made or cases cited by counsel.

27. Section l(3)(b) of the Act provides that:

28. (1) In this Act,

(3) Subject to section 97, for the purposes of this Act, no person shall be deemed to be an employee,

(b) who, in the opinion of the Board, exercises managerial functions or is em­ployed in a confidential capacity in matters relating to labour relations.

This provision recognizes that the collective bargaining antagonism between managerial personnel on one hand and bargaining unit employees on the other is such that the former are presumed to be incompatible with the latter and should be excluded from bargaining units.

28. As the Board observed over 15 years ago in Vagden Mills Limited, [1982] OLRB Rep. June 968:

29. The Ontario Labour Relations Act does not contain a definition of the term "managerial functions", nor are there any statutory criteria to guide the Board in reaching its opinion. The task of developing such criteria has been left to the Board to work out on a case by case basis, in recognition of the fact that the exercise of managerial functions can assume different forms in different worksettings, and in light of its own developing knowledge and experience in collective bargaining matters. But while the line between "manager" and "employee" is often difficult to draw in particular cases, there is one common theme which pervades all of the cases involving so called "first line" managerial employees of "foreman": the extent to which the disputed individuals make decisions which significantly affect the economic lives of their fellow employees, thereby raising a potential conflict of interest with them. It was that kind of conflict which section l(3)(b) was designed to avoid. Thus, in a collective bargaining context, such things as the right to hire, fire, promote, demote, grant wage increases, or discipline other employees should be regarded as manifestations of managerial authority, the exercise of which would be incompatible with participa­tion in trade union activities as an ordinary member of the bargaining unit.

(See, also, the Corporation of the City of Thunder Bay, [1981] OLRB Rep. Aug. 1121 at paragraphs 3 and 4.)

29. In the construction industry, the managerial line of demarcation is generally drawn between non-working foremen and working foremen; that is, non-working foremen are generally excluded and working foremen, who are analogous to "lead-hands" in an industrial setting, are generally included in a construction industry bargaining unit. But that is not always the case. In appropriate circumstances, a person who is a working foreman will nevertheless be excluded. The test which the Board has developed in that respect is this: a working foreman will be included in the construction industry bargaining unit unless s/he has an overall responsibility for a project, or can and does affect the employment status of employees. This test recognizes the conflict of interest which is created for a working foreman who exercises such responsibilities if s/he is included in the bargaining unit.

30. The corporate records produced by Marsil in this case are incomplete, and not particularly satisfactory. Nevertheless, I am satisfied on a balance of probabilities that Marco Grande is the sole owner, officer and director of the company. Silvio Grande is a brother of Marco Grande. The Act does not contemplate that a person will be deprived of rights which s/he would otherwise have under the Act, merely because s/he is related to the principal of an employer. However, this is something which can be taken into account as part of the context in which an issue of managerial exclusion is being considered.

31. The evidence reveals that Silvio Grande is a fifth year steamfitters apprentice. There is nothing in the evidence which suggests that, notwithstanding that the name "Marsil" is derived from a combination of the first names of Marco and Silvio Grande, Silvio Grande has had anything to do with the way in which Marsil operates, or the work which it has obtained. Nor does the evidence indicate that Silvio Grande has overall responsibility for Marsil's operations at the Windermere House project (which is where the employees who are the subject of this application were working), or that he can or does affect the employment status or situation of Marsil's employees. On the contrary, it is apparent that Marco Grande runs Marsil, and that he personally supervised the company's operation on the Windermere House project.

32. Silvio Grande works with the tools alongside the other Marsil employees. He has the same hours of work, and takes his breaks at the same time as and with the other employees. There is no evidence that Silvio Grande directs, organizes or supervises the work of other employees in any managerial sense. The interesting salary arrangement which he has with the company (pursuant to which he is paid only $400.00 per week, which generally results in him being paid at a lower hourly rate than any other employee on Marsil's payroll, but which he receives each and every week regardless of how many hours he works or whether he works at all), is a product of the relationship and understanding he has with his brother, Marco Grande. I note that Silvio Grande is not the only one to receive a salary. Vince Gross, who apparently is an electrician who no one suggested was not an employee, also received a salary (of $600.00 per week).

33. Marco Grande is clearly in charge of all aspects of the job when he is there. Marco Grande has been there every day except when he would leave in order to pick up employees' paycheques which had been prepared for the employees by the company's bookkeeper. He would do this once a week, usually on a Thursday, and he would usually be gone the whole day. Although Silvio was "in charge" of the job site while Marco was not there, that was true only in a lead-hand sense. Marco Grande would make sure that all the employees knew what work was to be performed while he was away before he left, and it is apparent that Silvio Grande had no authority to make any significant decisions in that respect, or with respect to Marsil's employees, in Marco Grande's absence. To the extent that Silvio Grande "supervised" the work of other employees, whether Marco Grande was there or not, he did so in no more than the way that many working foremen in construction industry bargaining units do.

34. It is also apparent that Marco Grande did all of the hiring and firing of employees. Silvio Grande had nothing to do with this. For example, Marco Grande hired Frandsen, Timperio, and all the other Marsil employees, and he personally terminates them, as he did Timperio. Nor did Silvio Grande have anything to do with establishing wage rates or terms and conditions of employment for employees. In that respect for example, when Tony Timperio came onto the job site and questioned Silvio Grande about his wage rate, Silvio Grande told him that he would have to speak to Marco Grande. Similarly, when Morris Frandsen and Timperio became unhappy with the irregular way in which Silvio was "calling" breaks, they decided to establish a regular pattern, and they did so. There is no evidence that Silvio had any power to discipline employees, or that employees would have accepted any attempt by him to exercise such an authority. In that respect for example, when Silvio Grande began to chastise Timperio on February 24,1997, Frandsen immediately leapt to Timperio's defence, and he and Timperio felt no compunction in arguing and telling Silvio Grande off. Indeed, Frandsen told Silvio that: "I don't work for you, I work for Marco": and neither Frandsen nor Timperio accepted Silvio's assertion of authority when during the squabble he attempted to puff himself up by suggesting that he was a part owner of the company. Finally, although Silvio Grande apparently had some dealings with the general contractor s superintendent, and with the plumbing inspector, there is no evidence indicating the nature of those dealings, or that these were any different than the dealings that other employees had in that respect.

35. Silvio Grande did collect the hours of Marsil employees for paycheque purposes. However, it is apparent that this was a clerical function. Not only is there no evidence to suggest otherwise, but what evidence there is indicates that any problems with paycheques were dealt with by Marco Grande.

36. In the result, Silvio Grande does not exercise any functions which can properly be character­ized as being managerial, or which otherwise suggest that his presence in the bargaining unit would be incompatible with other bargaining unit employees or for collective bargaining purposes. Indeed, he has less authority than many construction industry working foremen have. The fact that Silvio Grande collected the hours, and that he was very much the eyes and ears of Marco Grande is not enough to justify a finding that Silvio Grande exercises managerial functions that he should be deemed not to be an employee. Nor does the fact that he clearly opposes this application for certification. Nor do these things taken together suggest that Silvio Grande should be excluded. It is not unusual for there to be working foremen or regular employees who, although they are not related by blood or marriage, have a close relationship with an employer and who ally themselves in opposing a trade union, either generally or specifically in an application for certification. This does not justify a managerial or other exclusion. Adding the fact that such an employee is actually related to a principal of the employer does not change this. (Indeed, the U.A. placed little emphasis on this as a consideration in this case.)

37. In my opinion, Silvio Grande is properly considered to be an employee for the purposes of the Act and this application.

38. In the result, the following persons were employees in the bargaining unit at the time the application was made, and were entitled to cast ballots:

Morris Frandsen

Tony Timperio

Teddy Petrushevski

Silvio Grande

Adrian Torti

39. The Registrar is directed to make the necessary arrangements to have the ballot box opened and the ballots counted. I will defer my decision with respect to the unfair labour practice complaint, and its effect on the application for certification, if any, pending the results of the vote.