[1998] OLRB REP. MARCH/APRIL 257
3865-97-R International Brotherhood of Electrical Workers' Local Union 402, Applicant v. Marken Electric Ltd., Responding Party
BEFORE: G. T Surdykowski, Vice-Chair.
DECISION OF THE BOARD; March 26, 1998
1This application for certification in the construction industry was filed on January 20, 1998.
2By decision dated January 26, 1998, the Board directed that a representation vote be held on January 28, 1998. It was, but because of the dispute between the parties regarding who was entitled to vote, the four ballots cast were segregated and the ballot box has been sealed pending the resolution of those issues.
3Subsequently, in February 1998, the parties made written submissions in accordance with the Board's usual practice, regarding the issues between them.
4By decision dated March 9, 1998, the Board (differently constituted) concluded that some of the issues could be determined on the basis of the submissions which had been provided, and opined that the remaining issues could probably be disposed of with the assistance of further written submissions which the Board went on to order. In that respect, the Board determined that:
(a) Chris Graham was entitled to cast the ballot;
(b) that Robert Pelletier was at work on the certification application date.
5The parties' have now made further written submissions as directed by the Board: the employer under cover of letter dated March 16, 1998, and the union by letter dated March 20, 1998.
6The Board is satisfied that the remaining issues can now be disposed of with the assistance of these further written submissions.
7The employer concedes that Garth Eyolfson was not at work on the certification application date. That is the end of the inquiry. In construction industry applications for certification an employee must be at work in the bargaining unit on the certification application date. The nature of the employment relationship as a general matter, or the reason for an employee's absence on that particular day are irrelevant (for a recent review of the Board's approach in this respect, see, Ken Anderson Electric Inc. [1996] OLRB Rep. Sep/Oct 846). Mr. Eyolfson was therefor not entitled to cast the ballot.
8It is common ground that Robert Pelletier is not a registered electrical apprentice in Ontario. The trade of electrician is a compulsory certified trade under the Trades Qualification and Apprenticeship Act. Accordingly, a person must be employed in accordance with that Act in order to be included in a bargaining unit of journeymen and apprentice electricians. However, as the Board pointed out in Marsil Mechanical Inc. [1997] OLRB Rep. Jul/Aug 636, this does not necessarily mean that a person must be a journeymen or a registered apprentice on the certification application date in order to included in such a bargaining unit. A person can work in a compulsory certified trade for up to three months without running afoul of the Trades Qualification and Apprenticeship Act. In this case, there is nothing to indicate that Mr. Pelletier was engaged in the trade for more than three months. Indeed, the employer's submissions suggest the contrary. Further, the employer states that Mr. Pelletier was performing the following work on the certification application date:
(a) attaching chain to ceiling and cutting to length to accommodate the hanging of light fixtures on the chair;
(b) running wire as required to the junction boxes for fixtures (all electrical connections were performed by electricians and not by Mr. Pelletier);
(c) general clean-up of the tools and site;
(d) assistance as required such as locating and retrieving ladders for electricians.
The work identified in (a) and (b) is electricians work. The clean-up work associated with work of the trade is also work of that trade (Ellis Don Ltd. [1994] OLRB Rep. Sept. 1222). The work identified in (d) is sufficiently connected to the work of the trade to be included in it. Accordingly, Mr. Pelletier was an employee in the bargaining unit herein on the certification application date. As such he was entitled to vote and his ballot should be counted.
9The employer states that on January 20, 1998, Norman Trimble performed the following work:
(a) assembled PCV pipe, boxes, connections and couplings as required for transportation to the Whitefish Water Treatment Construction project;
(b) made up a material list for material to be transferred to the Whitefish Construction project, which work took approximately three hours on January 20, 1998;
(c) sorted material and inventory respecting items returned from prior construction job sites for re-stocking inventory (0.5 hours of work);
(d) general shop clean-up (0.5 hours of work).
The clerical and clean-up work described in (b), (c) and (d) is clerical and general clean-up work which is not work in the electrical trade. It is interesting that the employer claims that he spent four hours performing this work, while the timesheet that the employer filed with its February 1998 submission indicates that he only worked four hours that day. This would leave no time for the work described in (a) (indeed, unlike (b), (c) and (d), the employer does not indicate the amount of time Mr. Trimble spent doing (a)). In any event, that work is in the nature of assembly and shipping work. Some of the assembly work could conceivably be fabrication work sufficiently connected with the job site to be considered construction work, but is not apparent that all of it would be. Further the shipping work, which he must have spent some time performing is not construction work. It is therefor clear that even on the employer's facts, and even if some or all of the assembly work could be considered to be bargaining unit work, Mr. Tremble did not spend the majority of his time on the certification application date performing construction industry bargaining unit work. He was therefor not entitled to cast the ballot.
10In the result, only Chris Graham and Robert Pelletier were entitled to cast ballots in the representation vote held herein.
11The Registrar is directed to proceed with the counting of their ballots forthwith.