The 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 et al. v. Briar Mechanical Limited et al., 1998 CanLII 18260

[1998] OLRB REP. JANUARY/FEBRUARY 6

1624-96-R The 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 and its Locals 599 and 71, Applicants v. Briar Mechanical Limited and Marcan Mechanical Inc., Responding Parties

BEFORE: Inge M. Stamp, Vice-Chair.

APPEARANCES: R. C. Arnold, Robert Latreille and Brian Christie for the applicant; Hugh R. Scher for the respondents and Greg Lennie and Ciro Marrelli for Marcan Mechanical Inc.

DECISION OF THE BOARD; January 22, 1998

1This is an application for certification pursuant to the construction industry provisions of the Act. The Board (differently constituted) directed a vote be held of all plumbers, plumbers' apprentices, steamfitters and steamfitters' apprentices in the employ of Briar Mechanical Limited and Marcan Mechanical Inc. in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario and all plumbers, plumbers' apprentices, steamfitters and steamfitters' apprentices in the employ of Briar Mechanical Limited and Marcan Mechanical Inc. in all other sectors of the construction industry in the the Regional Municipality of Ottawa-Carleton, and the United Counties of Prescott and Russell (Board Area 15); the County of Simcoe and the District Municipality of Muskoka (Board Area 18), save and except non-working foremen and persons above the rank of non-working foreman.

2The applicant challenged persons on the voters' list on the basis they were not qualified, or not at work on the application date, or not performing bargaining unit work, or section l(3)(b) managerial. Of the nine persons on the voters' list six voted and those ballots were segregated and sealed.

3This matter was scheduled for hearing to deal with a number of outstanding issues including who is eligible to vote, the correct name of the responding parties and the bargaining unit description.

4On the day the vote was held there were six persons who voted. All of the persons were challenged and their ballots were segregated and the ballot box sealed.

5After having heard the evidence and considered the parties' submissions on the second day of hearing this matter, the Board made the following oral decision:

Having considered the evidence, the submissions of the parties and the cases cited.

1. In the circumstances of this case the Board is not persuaded to dismiss this application under section 11.2 of the Act, nor is the Board persuaded to order another vote. Even if the Board were to order another vote the application date would remain the same.

2. With respect to Victor Marcelli the Board finds that he was not at work in the bargaining unit on the date of application and is therefore not entitled to vote.

6Following are reasons for the Board's oral decision on November 13, 1996:

Section 11.2 of the Act provides:

11.(2) Upon the application of an interested person, the Board may dismiss an application for certification of a trade union as the bargaining agent for the employees in a bargaining unit in the following circumstances:

1. A trade union, council of trade unions or person acting on behalf of a trade union or council of trade unions has contravened the Act.

2. The result of the contravention is that a representation vote does not or would not likely reflect the true wishes of the employees in the bargaining unit about being represented by the trade union.

3. No other remedy, including the taking of another representation vote, is sufficient to counter the effects of the contravention.

7The responding parties assert the applicant has violated section 7(11) of the Act and section 43u of the Rules because it delivered the application to the old address. As a result the responding parties did not get the application until September 10, 1996. The Board (differently constituted) issued the decision on September 11, 1996 directing the vote be held on Friday, September 13, 1996. It is the responding party's position it did not have an opportunity to file a response before the Board made its decision with regard to the description of the bargaining unit and the time and place of the representation vote.

8The bargaining unit descriptions in ICI applications in the construction industry are mandated by legislation. There is no prejudice to the responding parties in these circumstances as it relates to the bargaining unit description.

9With respect to the vote arrangements there is no assertion that employees did not have notice of the vote, nor are there any submissions from any employees that they were unable to vote.

10It was not disputed that Victor Marcelli was working in Regina, Saskatchewan on the date of application. Pursuant to the Board's long-standing jurisprudence in construction industry certification applications only persons at work in the bargaining unit on the application date are eligible to vote. Victor Marcelli is not entitled to vote as he was not at work in the bargaining unit on the application date.

11. Mr. George Dedman, Training Consultant, Ministry of Education and Training testified with respect to the administration of the Rules and Regulations in the plumbing trade. He talked about the ninety day period in which the person is a "prospective apprentice" who is lawfully employed. There was evidence with respect to the changes in the process as it relates to the application of an apprenticeship contract. Under the previous system there appeared to be a two-step process where now there is a one-step process. The "application" and the "apprenticeship contract" is one document or in other words it is now a one step process. Mr. Dedman went on to explain how hours are credited in the trade, the effective date of the contract and the requirement to register as an apprentice within ninety days. Mr. Dedman stated that within this ninety day period the person is legally employed as a non-registered apprentice under the Trades Qualification and Apprenticeship Act ("Apprenticeship Act"). Hours are credited whether or not they are worked lawfully. The effective date of the apprenticeship contract is the date of employment. It is Mr. Dedman's view the longer the period to enter into the apprenticeship contract (up to ninety days) the better the parties are able to assess if the employer and the employee want to pursue this apprenticeship. Mr. Dedman testified as to when the three remaining individuals signed their apprenticeship contracts and the effective date, which is their date of hire.

12. Counsel for the responding party submits the designation calls for journeymen and apprentices in the pipefitting and plumbing trade. It does not refer to "registered apprentices". Counsel asserts there is a distinction between the established case law concerning the class of apprentices as opposed to registered apprentices.

13. Counsel submits in this application, unlike many of the other applications that have been decided, the specific issue of the work status of an employee employed during the ninety day period prior to the registration under section 9(2) of the Apprenticeship Act is at issue. Is an employee who is lawfully and gainfully employed under the Apprenticeship Act in the trade of plumbing included in the bargaining unit? Is he included in the definition of apprentice under the existing designation by virtue of section 9(2) of the Apprenticeship Act? The employee, an "unregistered apprentice" who is lawfully working on the application date, signs the contract of apprenticeship with an effective date prior to the certification application date. What is the status of this lawfully employed apprentice on the application date?

14. Counsel for the responding party submits the Board must determine the appropriate bargaining unit, whether apprentices must be registered on the date of application in order to be eligible to vote. The Board must consider whether there is a community of interest with others working in the trade pursuant to the designation and those who are working within the ninety day period provided for under the Apprenticeship Act.

15. Counsel submits the Board is not bound by the precise words of a designation order as long as the Board is not inconsistent in its description of an ICI bargaining unit with the relevant designation order. (See Superior Plumbing & Heating Company Ltd., [1986] OLRB Rep. Nov. 1589)

16. Counsel asserts what is different in this case is that the employees at issue became registered apprentices and the effective date of their contract of apprenticeship is prior to the certification application date. Prior to that these individuals were lawfully employed under section 9(2) of the Apprenticeship Act.

17. Counsel points out Local 599, one of the applicants, in Article 112 has a ninety day period in its collective agreement in which apprentices become indentured to the Joint Apprenticeship Board.

18. Counsel for the responding party cited a number of cases including Irvcon Roofing & Sheet Metal (Pembroke) Ltd., [1981] OLRB Rep. Nov. 1594 and Naylor Group Incorporated, [1986] OLRB Rep. Nov. 1563, however these do not deal with the ninety day period under section 9(2). Paragraph 10 of Naylor Group Incorporated, supra, talks about the effective date of the apprenticeship contract. This evidence is consistent with Mr. Dedman's (See paragraph 13 of Irvcon Roofing & Sheet Metal (Pembroke) Ltd., supra).

19. Irvcon Roofing & Sheet Metal (Pembroke) Ltd., supra, did not address the ninety day grace period, whether they were lawfully employed under section 9(2). The Board in Naylor Group Incorporated, supra, found they were not at work lawfully under section 10(2), the general prohibition. (See Naylor Group Incorporated, supra, paragraph 23)

20. Counsel for the responding party cited C T Windows Limited, [1983] OLRB Rep. May 627 and the concerns raised in Irvcon Roofing & Sheet Metal (Pembroke) Ltd., supra (See paragraphs 12 and 14). Counsel submits the individuals are doing the same work, they are lawfully at work in the trade and are eligible to vote. By virtue of the contract of apprenticeship they are performing bargaining unit work and are credited with time spent in the past.

21. Counsel asserts the criteria with respect to ratio issues comes into effect when the apprenticeship contracts are signed. Whether there is compliance is for the Ministry to determine and is not relevant to the vote eligibility.

22. The ninety day period is designed for testing the waters and the ratio requirement does not apply. The key factors to be considered are:

a) were they employees sharing a community of interest?

b) were they engaged in bargaining unit work?

c) were they lawfully employed on the application date?

d) did they take steps as required under section 9(2) to register their apprenticeship within ninety days?

23. Counsel takes the position the individuals were lawfully employed and as such they should not be prevented from participating in the vote.

24. Counsel for the applicant asserts in order to be included in the bargaining unit a person must be a registered apprentice as envisaged by the Apprenticeship Act. The designation order reflects the bargaining unit for which the applicant applied. Counsel referred to Superior Plumbing & Heating Company Ltd., supra, where the Board excluded gasfitters relying on the designation.

25. Counsel for the applicant refers to Gorf Contracting Limited, [1991] OLRB Rep. April 483 where the Board has said the "community of interest" concept has limited application in the construction industry. Counsel argues that while a person may be lawfully at work under section 9(2) of the Apprenticeship Act and 5.5 of the Plumbers' Regulations, such a person is not an apprentice under the Apprenticeship Act. He is a potential apprentice. Counsel referred to a number of cases dealing with the interpretation and/or application of the Apprenticeship Act in O. J. Pipelines Incorporated, [1989] OLRB Rep. Sept. 976, Irvcon Roofing & Sheet Metal (Pembroke) Ltd., supra,, C T Windows Limited, supra, and Naylor Group Incorporated, supra.

26. Counsel for the applicant submits there is a distinction between compulsory trades and voluntary trades. The Board should conclude since credits given for hours worked in the trade do not distinguish between hours worked lawfully and hours worked unlawfully the ninety day period is irrelevant. The Board should consider persons who are registered apprentices on the application date. During the ninety day probationary period no journeymen/apprentice ratio is maintained. There is no retroactive pay adjustment. There is no obligation to become an apprentice. To permit a non-registered apprentice to be entitled to be in the bargaining unit on the application date would be contrary to the designation.

27. Counsel for the applicant argues Naylor Group Incorporated, supra, dealt with the issue of who is an apprentice, how applications for apprenticeship are entered into, the effective date of the contract of apprenticeship. The Board in Naylor Group Incorporated, supra, did not include persons in the bargaining unit who were not registered apprentices.

28. Counsel for the applicant states in Naylor Group Incorporated, supra, the issue of the ninety-day period was front and centre. Section 11 of the Sheet Metal Regulations are the same as 5.5 of the Plumbers. In Heritage Mechanical, [1995] OLRB Rep. Mar. 272 the comments with respect to the ninety day period were obiter and contrary to ten years of Board jurisprudence. Counsel submits the Board should follow Naylor Group Incorporated, supra, and the cases referred to in that decision. The applicant asserts accepting persons who were not registered apprentices on the date of application would change the interpretation of the Apprenticeship Act's application to the Labour Relations Act and the designation for the last ten years. There would be no degree of certainty on the application date. It would create chaos. The Board is urged not to change its practice.

29. Counsel for the applicant submits the Board has addressed the element of the apparent unfairness of persons who claim to be in the bargaining unit and are not allowed to vote in Turn-Key Installations Inc., [1992] OLRB Rep. Jan. 90. After the certificate is granted anyone can continue to work in the bargaining unit provided they are journeymen or registered apprentices in the trade.

30. With respect to the evidence regarding the three individuals the applicant submits Mario Giardinazzo started on June 4 and on September 4 (the application date) was employed ninety-two days. The applicant has filed primafacie evidence that he was not at work on the application date. He received no pay for the week ending September 6. Three months would be September 3, ninety days was Mr. Dedman's own interpretation. On September 26 when Mario Giardinazzo signed his contract of apprenticeship, either he or Philip Minervino should not have been hired because the required ratio no longer existed. Philip Minvervino was given an apprenticeship contract based on incorrect information. Instead of seven plumbers there were only four. When Tardif and Vezina left there were only two. Debiasio was given an apprenticeship contract when there were clearly only two journeymen plumbers in the week ending October 4. Ciro Marcelli is not on the list, he is the employer. The contracts of apprenticeship were improperly obtained.

31. Counsel for the applicant asserts there is no cogent reason not to follow Naylor Group Incorporated, supra, decision. The only route to certainty is to continue to determine apprentice status under the Apprenticeship Act. If the Board opens the door to persons other than registered apprentices each case will require more and more enquiries as to what people were doing, their status, whether they were lawfully at work in the trade.

32. Counsel for the responding party in reply submits Irvcon Roofing & Sheet Metal (Pembroke) Ltd., supra, has been wrongfully decided. The employees must be lawfully employed in their trade under the Apprenticeship Act and apply within three months. There is a distinction between voluntary and compulsory trades. In a compulsory trade there are qualifications set out in the Act. Within ninety days individuals are working lawfully under the Apprenticeship Act. Counsel submits the individuals were lawfully employed in the trade as unregistered apprentices on the application date. The effective date of their contract is prior to the application date. For these reasons there can be no issue with respect to their status as employees on the application date and their eligibility to vote. To ensure certainty and success in the apprenticeship program it is important to interpret the Apprenticeship Act as the legislature intended it to ensure the letter as well as the spirit of the legislation be adhered to. These individuals are apprentices and eligible to vote in the bargaining unit as was the case in C T Windows Limited, supra, employees doing lawful work in the trade under their statute.

Decision

33. The Board has addressed the community of interest issue in the construction industry in a number of Board decision. In P & M Electric (1982) Ltd., [1989] OLRB Rep. June 638, the Board stated:

34. 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.

35. All of the Board's decisions cited above dealing with the status of an individual on the application date as it relates to the Apprenticeship Act focus on whether they are lawfully working in the trade. In this case the question involves a compulsory trade which requires persons working in the trade to be journeymen or apprentices.

36. The remaining three persons which are in dispute were working on the application date without a contract of apprenticeship. The parties agreed, for the purpose of making their argument it is assumed the three individuals were performing bargaining unit work on the application date.

37. On the application date, September 4, 1996 P. Debiasio, P. Minervino and M. Giardinazzo were at work without a contract of apprenticeship. This raises the question of whether these three individuals are eligible to vote. The applicant's position is unless they are registered apprentices or journeymen pursuant to the Apprenticeship Act they are not eligible to vote. The responding party asserts the Board, when interpreting the Apprenticeship Act as it relates to the Labour Relations Act, 1995, must have regard to section 9 of the Apprenticeship Act which provides for a grace period of three months. During this period a person is lawfully employed (under the Apprenticeship Act) in the trade, in this case a compulsory trade and therefore eligible to vote as an employee in the bargaining unit on the application date.

38. The Board in paragraphs 36 and 37 of Heritage Mechanical, [1995] OLRB Rep. Mar. 272 made the following comment:

39. Further, as the Board pointed Out in O.J. Pipelines Incorporated, supra. (and in P & M Electric (1982) Ltd., OLRB Rep. June 638). the Board applies the Trades Qualification Act and regulations to its proceedings but it does not, and does not have the jurisdiction to, enforce or administer that Legislation as such. Consequently, for purposes of an application for certification, the Board is concerned with the status of employees under the Trades Qualification Act and regulations; in this case, whether they were journeymen or registered apprentice sheet metal workers on the certification application date. On the evidence before the Board in this case, both Goodlet and Drake were registered apprentice sheet metal workers. Whether or not they were wrongly registered is not a matter for this Board. Further, on the evidence, only one of the two was wrongly registered at most, and even if one was wrongly registered any cancellation or voiding of the contract of apprenticeship would not have a retroactive effect.

40. 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.

41. The relevant sections of the Trades Qualification and Apprenticeship Act provide as follows:

42. 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.-( I) 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.

39. The Board has dealt with this issue in Marsil Mechanical Inc., [1997] OLRB Rep. July/ Aug. 636 and had this to say with respect to the Board's jurisprudence in the earlier cases:

40. 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:

41. 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; Ninco Construction Ltd., [1982] OLRB Rep. Nov. 1692; Manacon Construction Limited, [1983] OLRB Rep. March 407 and July 1104; Ellis-Don Limited, [1988] OLRB Rep. Dec. 1254 and [1989] OLRI3 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).

42. 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; Wravmar 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; Km/i Construction Companv(1978) Ltd., [1989] OLRB Rep. Feb. 169; Wravmar 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.

43. 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; C.T Windows Limited, [1982] OLRB Rep. Nov. 1597 and [1983] OLRB Rep. May 627; Mechanical Insulations Roofing & Siding Ltd., [1985] OLRB Rep. April 549; Naylor 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. 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, [19831 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?

13. 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.

14. 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 Navlor 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.

15. 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 Act there are persons other than certified journeymen or registered apprentices who can lawfully work or be employed in even a compulsory certified trade.

16. 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(l) 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. Ifs/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.

17. 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 II, above).

18. 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.

19. 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.

20. 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.

21. 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 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.

22. In interpreting the Apprenticeship Act for the purposes of the Labour Relations Act, 1995 the Board's focus is on who is lawfully at work in the bargaining unit on the application date in the particular trade. On the application date who was lawfully at work in the bargaining unit and therefore eligible to vote? Mr. P Debiasio and Mr. P. Minervino started to work for Marcan on August 28, 1996. On the application date, September 4, 1996 pursuant to Article 9 of the Apprenticeship Act they were lawfully at work in the trade, in the bargaining unit on the application date. Subject to any other challenges Mr. P. Debiasio and Mr. P. Minervino are eligible to vote.

23. The Labour Relations Board has no control over the administration or enforcement of the Apprenticeship Act. Section 9(2) is directory and requires a person to cease working in the trade after three months if no contract has been filed. The fact that contracts have been filed subsequent to the application date is not relevant to the determination of status on the application date. What is relevant is whether they were lawfully at work in the trade on the certification application date.

24. Mr. Dedman the Training Consultant of the Ministry of Education and Training in his evidence described the grace period as ninety days. The Apprenticeship Act however refers to three months. Mr. Mario Giardinazzo commenced working with Marcan on June 4, 1996. The day his apprenticeship contract was registered on September 26, 1996 was after the expiry of the ninety days or the three months. On September 4, it was ninety-three days since Mr. Giardinazzo started to work in the trade with Marcan. The three months grace period expired on September 3. On September 4, Mr. Giardinazzo was no longer lawfully employed pursuant to section 9(2) of the Apprenticeship Act and therefore not eligible to vote.

25. With respect to the applicant's submissions that the apprentice to journeymen ratio was not properly applied and therefore one of the contracts of apprenticeship should not have been entered into, the Board agrees with the comments of paragraph 23 of Marsil, supra. It is a matter of enforcement and administration of the Apprenticeship Act. This Board does not have jurisdiction over the enforcement of the Apprenticeship Act.

26. There are some additional outstanding issues. The correct name of the employer and further challenges with respect to individuals found to be eligible to vote. The parties had agreed to assume the individuals were doing bargaining unit work for the purpose of dealing with the Apprenticeship Act.

27. No section 1(4) application was filed. Given the responding party's representations that Marcan is the employer and Briar is no longer operating, the applicant is directed to advise the Board if this issue is still outstanding.

28. The applicant in its submissions makes reference to "further canvass the nature of the work performed" by the challenged individuals in the event the Board found they were entitled to vote under the Apprenticeship Act. There were no specific pleadings or allegations on which the applicant intends to rely as to what work it says these persons performed. In light of the above the parties are directed to advise the Board if any of these issues are still outstanding. If there are no outstanding issues, arrangements will be made to count the ballots. If there are outstanding issues the party making the assertions is directed to plead the facts it intends to rely on.