0836-99-R International Brotherhood of Electrical Workers, Construction Council of Ontario, Applicant v. Clift Electric Inc., Responding Party.
BEFORE: John Morgan Lewis, Vice-Chair, and Board Members G. Pickell and G. McMenemy.
APPEARANCES: Ursula Boylan, Gordon Nye, Dan MacKinnon and Dave Neddeau for the applicant; Fabrizio Gallucci for the responding party.
DECISION OF THE BOARD; February 4, 2000
This is an application for certification in the construction industry.
In its decision of June 22, 1999, the Board found the following bargaining unit to be appropriate for collective bargaining:
all electricians and electricians’ apprentices in the employ of the responding party in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario and all electricians and electricians’ apprentices in the employ of the responding party 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.
Pursuant to the direction of the Board, a representation vote was conducted on June 24, 1999. There is no dispute about the regularity of the balloting. However, there initially was a dispute about whether five individuals were entitled to vote. In light of this dispute, the ballot box was sealed and the ballots were not counted.
This matter was heard on January 4, 2000. At the hearing, the applicant advised that it no longer was challenging the status of all five individuals but rather only that of Mike DiMillo and Joe Carnevale. The applicant further advised that should the Board find that Mike DiMillo was not entitled to have his ballot counted, it would drop its challenge with respect to Joe Carnevale.
Upon considering the evidence and submissions of the parties, the Board ruled orally at the hearing that Mike DiMillo was not entitled to cast a ballot in the representation vote. The Board’s reasoning is set out as follows.
The applicant challenged Mike DiMillo on the basis that he was not a certified electrician nor was he a registered apprentice in the trade on the date of application. The responding party asserted that Mr. DiMillo was a registered apprentice and should be entitled to vote.
The responding party advised that Board that Mr. DiMillo obtained his contract of apprenticeship pursuant to the Trades Apprenticeship and Qualification Act, R.S.O. 1990, C.T. 17 as amended (the “Apprenticeship Act”) on July 22, 1999. The responding party produced a copy of the Contract of Apprenticeship which discloses that Mr. DiMillo was credited with 1500 hours in light of his past work experience in the trade. The responding further advised the Board the Mr. DiMillo had worked almost 2,700 hours for three different electrical contractors over a period of sixteen months prior to the filing of the application for certification.
The applicant did not call any evidence.
Counsel for the applicant relies upon the Board’s jurisprudence set out in Marsil Mechanical Inc., [1997] OLRB Rep. July, 636 and Heritage Mechanical, [1995] OLRB Rep. Mar. 272 for the proposition that the only those employees who are lawfully at work at the times material to the Board’s considerations in applications for certifications are eligible to cast a ballot in a representation vote. In Marsil Mechanical Ltd., supra, the Board interpreted the Apprenticeship Act in the following manner to determine those categories of employees considered to be “lawfully at work” and therefore entitled to take part in the representation vote:
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.
The evidence before the Board has clearly established that Mr. DiMillo was not a journeyman in the electrical trade. The evidence further established that as of the date of application, Mr. DiMillo was not a registered apprentice pursuant to the Apprentice Act, and had been working in the trade well in excess of ninety days. In accordance with the Marsil Mechanical Ltd., supra and Heritage, supra, Mr. DiMillo was not lawfully employed on the date of application and therefore was not entitled to cast a vote.
Upon delivering the oral ruling at hearing, the applicant advised the Board that it was dropping its challenge with respect to Joe Carnevale. The hearing then adjourned and the parties met with a Labour Relations Officer in order to open the ballot box and count the ballots cast.
On the taking of the representation vote directed by the Board, more than fifty per cent of the ballots cast by employees in the bargaining unit were cast in favour of the applicant.
Section 160(1) of the Act, which states as follows, provides for the issuance of more than one certificate if the applicant has the requisite support:
(1) The Board shall certify the trade unions on whose behalf an application for certification is brought as the bargaining agent of the employees in the bargaining unit if more than 50 per cent of the ballots cast in the representation vote by the employees in the bargaining unit are cast in favour of the trade unions. The Board shall issue one certificate that is confined to the industrial, commercial and institutional sector and another certificate in relation to all other sectors in the appropriate geographic area or areas.
Therefore, pursuant to section 160(1) of the Act, a certificate will issue to the applicant affiliated bargaining agent on its own behalf and on behalf of all other affiliated bargaining agents of the International Brotherhood of Electrical Workers and the IBEW Construction Council of Ontario in respect of all electricians and electricians’ apprentices in the employ of Clift Electric Inc. in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario, save and except non-working foremen and persons above the rank of non-working foreman.
Further, pursuant to section 160(1) of the Act, a certificate will issue to the applicant trade union in respect of all electricians and electricians’ apprentices in the employ of Clift Electric Inc. in all sectors of the construction industry in the County of Simcoe and the District Municipality of Muskoka, excluding the industrial, commercial and institutional sector, save and except non-working foremen and persons above the rank of non-working foreman.
The Registrar will destroy the ballots cast in the representation vote taken in this matter following the expiration of 30 days from the date of this decision unless a statement requesting that the ballots should not be destroyed is received by the Board from one of the parties before the expiration of such 30-day period.
The responding party is directed to post copies of this decision immediately, adjacent to the "Notice of Vote and of Meeting" posted previously. These copies must remain posted for a period of 30 days.
“John Morgan Lewis”
for the Board