[1998] OLRB REP. JULY/AUGUST 711
1150-95-R; 1363-95-U; 1364-95-R Labourers' International Union of North America, Local 183, Applicant v. 517739 Ontario Ltd., c.o.b. as Rolan Plumbing, Responding Party v. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local Union 46, Intervenor; United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local Union 46, Applicant v. 517739 Ontario Ltd., c.o.b. as Rolan Plumbing, Responding Party; United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local Union 46, Applicant v. 517739 Ontario Ltd., c.o.b. as Rolan Plumbing, Responding Party v. Labourers' International Union of North America, Local 183, Intervenor.
BEFORE: Lee Shouldice, Vice-Chair.
APPEARANCES: Mark Wright for Labourers' International Union of North America, Local 183; Mark Stone for 517739 Ontario Ltd., c.o.b. as Rolan Plumbing; David McKee for United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 46.
DECISION OF THE BOARD; July 14, 1998
1These proceedings are, respectively, an application for certification brought by Labourers' International Union of North America, Local 183 (hereinafter "Local 183") as against 517739 Ontario Ltd., c.o.b. as Rolan Plumbing (hereinafter "Rolan"), an unfair labour practice complaint brought by the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 46 (hereinafter "Local 46") against Rolan, and an application for certification brought by Local 46 as against Rolan. In accordance with a decision of a differently constituted panel of the Board dated July 14, 1995, consideration of the application for certification brought by Local 46 has been postponed pending the Board's final decision in Board File 1 150-95-R.
2These applications were filed with the Board prior to the effective date of the Labour Relations Act, 1995, and therefore are to be determined by reference to the Labour Relations Act, R.S.O. 1990, c. L.2, as amended (hereinafter "the Act").
3These proceedings have a long history, which I do not propose to outline in any great length in this decision. Condensed to its essential elements, these proceedings first came on for hearing before this panel of the Board in late 1995. At that time, certain issues were referred to a Labour Relations Officer for examinations and an Officer's Report. Three days of examinations followed. At the request of Local 183 and Rolan, these proceedings were re-listed for hearing in February, 1996. At that time it was agreed to argue certain legal issues at a subsequent hearing date in order to potentially narrow the matters to be dealt with before the Labour Relations Officer. Counsel then acting for Local 46 (Local 46 has since retained its current counsel) provided the Board with written submissions respecting all of the issues, and the Board directed that the Registrar contact the parties and set two hearing dates for argument. Dates have been set and adjourned and/or cancelled since then, until May 21, 1998, when these matters came back on for hearing of the legal argument.
4This decision deals with the one legal issue argued on May 21, 1998, namely the applicability of the Trades Qualification and Apprenticeship Act, R.S.O. 1990, c. T.17, as amended (hereinafter "the TQAA") to the circumstances of Local 183's certification application.
5The question of the applicability of the TQAA arises in the following circumstances. Local 183 has applied for a certificate entitling it to represent the following bargaining unit of employees of Rolan:
all plumbers and plumbers' apprentices and construction labourers in the employ of the responding party in all sectors of the construction industry, save and except the industrial, commercial and institutional sector of the construction industry in Ontario Labour Relations Board Areas 8 and 9, save and except non-working foremen and persons above the rank of non-working foreman.
Rolan agrees that this bargaining unit is a unit appropriate for collective bargaining. Local 46 disagrees with that proposition.
6Filed with the response of Rolan was a Schedule containing the names of all persons that it asserts were employed in the proposed bargaining unit on June 14, 1995, the certification application date. The list is composed of 25 individuals. Each of the individuals has been identified on the list as either a "plumber" or an "apprentice". Local 183 has not challenged the composition of that list, or the classification attributed to each of the persons on the list. Local 46 has made numerous challenges to the list.
7In a previous decision of the Board dated November 8, 1995, I made reference to a certain difficulty raised in the circumstances of this case. The long-standing practice of the Board in applications for certification in the construction industry which exclude the ICI sector is to require the applicant to represent a bargaining unit consisting of all unrepresented trades employed by the responding party on the certification application date (see, for example, Duron Ontario Limited, [1976] OLRB Rep. Nov. 734, and Clarence H. Graham Construction Limited, [1981] OLRB Rep. Sept. 1195). If the Schedule affixed to the response is accurate, the appropriate bargaining unit cannot include "construction labourers", as there were none employed by Rolan on the certification application date. However, it is Local 183 and Rolan which argue that the bargaining unit description ought to include "construction labourers". Just as inconsistently, Local 46 (at that time at least) argued that Local 183 ought not to be entitled to represent "construction labourers", but asserted that there were persons performing work of a construction labourer in the employ of Rolan on the certification application date. Accordingly, I did not make a determination regarding the appropriateness of the -bargaining unit requested, and referred the matters to the Labour Relations Officer for examinations in accordance with specific challenges then raised by the parties.
8As noted above, the parties have agreed to argue the applicability of the TQAA to the circumstances in order to potentially minimize the issues to be litigated. The argument of the parties reflected their fundamentally different characterizations of persons who may be performing the work of a plumber or a plumbers' apprentice, in violation of the TQAA. Interestingly, with one rather significant exception, the parties did not dispute the state of the Board's jurisprudence.
9From the outset of these proceedings, Local 183 and Rolan have taken the position that any person at work on the certification application date who performed work normally performed by plumbers or plumbers' apprentices, but who was not a certified plumber or a properly registered apprentice was, by definition, a "construction labourer", and therefore that the bargaining unit it has requested (or agreed to, in the case of Rolan) is appropriate even if Local 46 is right in its assertion that certain of the individuals identified as "plumbers" or "apprentices" on the Schedule to the response were not certified plumbers or registered apprentices on the certification application date. Local 46 asserts that this is a fundamentally incorrect position.
10Local 46 posits that since the cases of E & E Seegmiller Limited, [1987] OLRB Rep. Jan. 41, and Gilvesy Enterprises Inc., [1987] OLRB Rep. Feb. 220, the Board has considered only what tasks an individual was performing on the certification application date when determining whether the person was performing bargaining unit work for the majority of his or her time on that day. If a person was performing the work of a plumber or a plumbers' apprentice on June 14, 1995, he or she would fall into a bargaining unit of "plumbers and plumbers' apprentices". If the TQAA, when applied, excludes any such person from lawfully being at work on that day, the effect is to exclude that person from "employee" status under the Act. It is submitted that it is wrong to utilize the concept of a "construction labourer" as a "basket classification" for everything beyond the lawful work of a plumber or plumbers' apprentice. As no one asserts that any employee did the work of a "construction labourer" on June 14, 1995, the appropriate unit is one consisting of "plumbers and plumbers' apprentices".
11Local 183 and Rolan disagree with this analysis. In their view the bargaining unit requested by Local 183 is appropriate for collective bargaining. All that Local 183 is trying to encompass in its bargaining unit description is the unrepresented trades at work for Rolan on the certification application date. Counsel noted that it has now been conceded by Rolan that at least 5 individuals on the Schedule were not properly described as a "plumber" or a "plumbers' apprentice" in accordance with the TQAA, and therefore submit that they are "construction labourers". That is, counsel for Local 183 and Rolan submit that the effect of the TQAA, if applied to those 5 persons, is to make those persons "construction labourers" for the purposes of the application. If the Board were to conclude otherwise, those 5 persons would be excluded from the bargaining unit inappropriately, and the Board would, in effect, be enforcing the TQAA, which the Board has specifically stated it does not do.
12As noted above, there was no dispute regarding the state of the law, with one significant exception. The parties agreed that the Board's jurisprudence, commencing with the decision of Irvcon Roofing & Sheet Metal (Pembroke) Ltd., [1981] OLRB Rep. Nov. 1594, and most recently elaborated upon in the decisions of Marsil Mechanical Inc., [1997] OLRB Rep. July 636, Briar Mechanical Limited, [1998] OLRB Rep. Jan. 6, and Marken Electric Ltd., [1998] OLRB Rep. Mar./Apr. 257, establishes that for compulsory, certified trades (which includes the trade of plumber), the Board will have regard to the terms of the TQAA and its related regulations when determining the "employee" status of an individual for the purposes of an application for certification filed under the Act.
13Since the Jrvcon Roofing decision, it has been established that an employee who holds an appropriate certificate of qualification in a compulsory certified trade, and an employee who has entered into a contract of apprenticeship in a compulsory certified trade can lawfully work in that trade. In Marsil Mechanical Inc., this principle was refined (as previously suggested by the Board in Heritage Mechanical, [1995] OLRB Rep. Mar. 272) to reflect the wording of section 9(1) of the TQAA, which permits a person to work at a compulsory, certified trade for which an apprenticeship training program is established without a certificate of qualification or a certificate of apprenticeship for up to three months. The critical passage of Marsil Mechanical Inc. consists of paragraphs 17 and 18 of that decision, which read as follows:
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.
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 ... 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.
As noted above, none of the parties to these proceedings disputed that the current state of the Board's jurisprudence is reflected by this passage from Marsil Mechanical Inc..
14I observed earlier that there was one substantive difference evident in the approaches taken by Local 46, on the one hand, and Local 183 and Rolan, on the other. Local 46 asserts that the legal principles reflected in Marsil Mechanical Inc. and its predecessors apply in all applications for certification in the construction industry involving compulsory certified trades. Local 183 and Rolan disagree. They submit that the case law enshrining the above legal principles is limited to applications for certification which affect the ICI sector of the construction industry.
15During the course of argument, the following cases were referred to by the parties: Irvcon Roofing & Sheet Metal (Pembroke) Ltd., cited above; 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; B.C. Meck, [1988] OLRB Rep. June 546; P & M Electric, [1989] OLRB Rep. June 638; O.J. Pipelines Incorporated, [1989] OLRB Rep. Sept. 976; Gorf Contracting Limited, [1991] OLRB Rep. Apr. 483; Siteco Electric Ltd., [1992] OLRB Rep. Mar. 383; Heritage Mechanical, cited above; N C Sheet Metal, [1995] OLRB Rep. Mar. 333; Marsil Mechanical inc., cited above; and Briar Mechanical Limited, cited above. To the extent that the decision identifies the nature of the certification application, each of the above cases -with one exception - involves an application for certification in the construction industry in which bargaining rights in the ICI sector of the industry were sought.
16The one exception is P & M Electric. In that case, the applicant desired a certificate to represent a bargaining unit of certified journeymen electricians and registered apprentices in all sectors of the construction industry, excluding the ICI sector of the construction industry, in Board Area 8. The application was brought pursuant to the predecessor of section 146(3) of the Act. After noting that the trade of electrician is a compulsory certified trade under the predecessor to the TQAA, the Board applied the principles of the TQAA (as the Board's jurisprudence then stood) to exclude four individuals who were neither journeymen nor apprentice electricians within the meaning of the TQAA. Counsel for Local 183 asserted that the unit applied for in P & M Electric was a craft unit, pursuant to section 6(3) of the Act, and accordingly the same principles that would apply to an ICI certification application applied to it. Here, Local 183's application is pursuant to section 6(1) of the Act, is not a "craft" unit, nor an ICI unit, and therefore the principles reflected by the 17 years of Board jurisprudence since Irvcon Roofing do not apply.
17I have considered quite carefully the argument of the parties on this point. For the reasons which follow, I am of the view that the position taken by Local 46 is correct in law, and therefore that the Board's longstanding approach to employee status issues with regard to certification applications respecting compulsory certified trades applies to Local 183's certification application.
18At the outset, it is important to outline the approach taken by the Board to applications for certification in the construction industry. As was pointed out by the Board at para. 6 of O.J. Pipelines Incorporated, cited above, section 6(1) of the Act provides the Board with a discretion in determining "the unit of employees that is appropriate for collective bargaining". However, in construction industry applications for certification, that discretion is limited by sections 6(3), 121, 141 and 146 of the Act. Every application for certification in the construction industry must be made pursuant to section 146 of the Act (see, for example, Clarence H. Graham Limited, cited above). A trade union which is an affiliated bargaining agent of a designated employee bargaining agency (as Local 183 is) may, at its option, apply for certification under either section 146(1) or 146(3) of the Act. In fact, the instant application was brought under section 146(3) of the Act, which reads as follows:
146(3) Despite subsection 121(1), a trade union represented by an employee bargaining agency may bring an application for certification in relation to a unit of employees employed in all sectors of a geographic area other than the industrial, commercial and institutional sector and the unit shall be deemed to be a unit of employees appropriate for collective bargaining.
19As in every application for certification, when a trade union applies for certification pursuant to section 146(3) of the Act the Board is required to determine the unit of employees that is appropriate for collective bargaining, as directed by section 6(1). As noted above, the Board's long-standing practice, where there are employees of more than one craft or trade at work on the certification application date, has been to find as a unit appropriate for collective bargaining all unrepresented employees as designated by their craft or classification at work for the employer on the certification application date. In this proceeding, the bargaining unit will be described, at its broadest, by reference to plumbers and plumbers' apprentices and/or construction labourers, as the parties have agreed that there were no employees at work on the certification application date performing work other than work of those trades. Of course, Local 46 denies that any "construction labourers" were at work for the employer on June 14, 1995.
20The question before the Board which must be addressed initially is whether the Board will apply the principle reflected by Marsil Mechanical Inc., cited above, to an application for certification brought pursuant to section 146(3) of the Act. As noted above, I am of the view that it is appropriate to do so.
21I reach this conclusion for the following reasons. First, it is not apparent to me that the rationale historically adopted by the Board for considering the limitations created by the TQAA does not apply to certification applications in the construction industry excluding the ICI sector, brought under section 146(3) of the Act. As noted by the Board in P & M Electric (1982) Ltd., cited above, the purpose of the TQAA is to regulate the training and qualification of tradespersons, and, in the case of those performing work in compulsory certified trades (such as plumbers), to regulate the persons who can lawfully work in those trades. This purpose is equally legitimate whether the tradesperson performs plumbing work in the ICI sector, the residential sector, or any other sector of the construction industry. The legislature has determined that a certain level of training and skill is expected of persons performing the work of a compulsory trade. That level of training and skill is expected of plumbers involved in the construction of office buildings, hospitals, or homes. Accordingly, the TQAA does not by its terms distinguish amongst the various sectors of the construction industry in its application.
22Although the Board is not responsible for enforcing the TQAA, the Board has noted on numerous occasions that it is obligated to make decisions in a manner which is not inconsistent with that legislation (see, once again, the decision of P & M Electric (1982) Ltd., cited above). As the TQAA applies equally to each of the sectors of the construction industry, it would be inconsistent with the broad purpose of the TQAA for the Board to apply one principle to the determination of employee status for the purpose of certification applications which include the ICI sector of the construction industry, and another principle to the determination of employee status in certification applications which exclude that same sector. In a somewhat odd result, two individuals working for the same employer, working in the identical non-ICI sector of the construction industry, and with identical status for the purposes of the TQAA, could be treated differently for certification purposes dependent upon the section of the Act under which the trade union applies for certification. There is no rational basis for such a distinction.
23For these reasons, then, I am of the opinion that the Board's long-standing principle, reflected most recently by the decisions of Marsil Mechanical Inc., Briar Mechanical Limited, and Marken Electric Ltd., all cited above, applies to this proceeding.
24Having resolved that question, the related question of the proper characterization of those individuals who do not satisfy the criteria established by the TQAA must also be resolved. As noted above, Local 183 asserts that any person who performed plumbing work on the certification application date in contravention of the TQAA must properly be described as a "construction labourer" for the purpose of this proceeding. Local 46, on the other hand, asserts that such an individual is not properly characterized as a "construction labourer" and may not remain on the list of employees. Having considered the argument of the parties, I am of the view that the position taken by Local 46 is correct.
25My analysis begins by reaffirming the proposition that for the purpose of determining whether a person is properly within a construction industry bargaining unit, the Board, since the decisions of E & E Seegmiller Limited and Gilvesy Enterprises Inc., both cited above, has considered as relevant whether the person was employed by the responding party and at work on the certification application date, and, if so, the type of work performed by that person for the majority of his or her time worked on the date of application. Accordingly, for the purposes of this application, the Board's inquiry will undoubtedly focus on the nature of the work performed by the individuals in question on June 14, 1995, the certification application date.
26The concept of a "construction labourer" is not a "default" option for use in certification applications under section 146(3) of the Act. That is, I do not think that one can properly characterize an individual who, on the certification application date, performed the usual work of a certified plumber or a registered plumbers' apprentice contrary to the provisions of the TQAA, as a "construction labourer". If the person was at work for the responding party employer on June 14, 1995, and the majority of his time was spent performing the work of a plumber or a plumbers' apprentice on that date, lawfully or otherwise, then he cannot be considered to be a "construction labourer" for the purposes of the application.
27That conclusion begs, immediately, the question of just what the proper characterization of such a person is for the purposes of this application for certification. Any individual who meets that criteria (i.e. a person who worked for the responding party on the certification application date, spent a majority of time performing the work of a plumber or plumbers' apprentice, and was working beyond the scope of the TQAA, as set out in Marsil Mechanical Inc., cited above) is, by definition, off the list of employees for the purpose of the application. For the purposes of this proceeding, such individuals do not "count" at all.
28The effect of reaching this conclusion is to preclude such individuals from becoming organized, as long as they continue to perform the work of plumbers and plumbers' apprentices, in contravention of the TQAA. Is this a reason to not conclude as I have above? In my view, the answer to that question must be in the negative. In many of the decisions relied upon by the parties during the course of argument, the Board concluded that one or more individuals were not "employees" for the purposes of the certification application in question, because they had not satisfied the obligations reflected by the TQAA. Effectively, those persons were precluded from organization for as long as they continued to perform work of the particular certified trade for the employer in contravention of the TQAA. This effect has always resulted from the Board's approach to determining employee status issues by reference to the TQAA, and the effect ought to be no different in applications pursuant to section 146(3) of the Act.
29Accordingly, I am of the view (a) that the Board's long-standing principle of applying the TQAA to applications for certification in the construction industry relating to compulsory certified trades applies to applications brought under section 146(3) of the Act; and (b) that it is incorrect to conclude that someone who does not satisfy the obligations contained in the TQAA may be characterized as a "construction labourer" for the purposes of this proceeding.
30Having reached those conclusions, and given the parties' agreement regarding the lack of other trades at work for the employer on the certification application date, it is evident that the unit appropriate for bargaining in the circumstances of this proceeding is the following:
all plumbers and plumbers' apprentices in the employ of the responding party in all sectors of the construction industry, save and except the industrial, commercial and institutional sector of the construction industry in Ontario Labour Relations Board Areas 8 and 9, save and except non-working foremen and persons above the rank of non-working foreman.
31As noted above, these proceedings have been prolonged as a result of the various issues in dispute as amongst the parties. Keeping that in mind, and recalling as well that the Board has relatively recently developed a process of dealing with status disputes in construction industry applications for certification which will govern any future litigation of the proceedings (see Information Bulletin #3), I have considered the possibility of requiring the parties to provide detailed submissions regarding their respective positions on each of the persons currently on the list of employees filed by Rolan, for the purposes of setting the parameters of any future litigation.
32However, in the circumstances, I have concluded that it would make more sense, at this stage at least, for a Labour Relations Officer to be appointed in order to identify and resolve (or, at the very least, to narrow these issues, with the assistance of the parties and this decision. Accordingly, I refer these proceedings to the Manager of Field Services, who is to assign a Labour Relations Officer to meet with the parties in order to resolve or narrow the remaining list issues.
33I will remain seized of these proceedings.