2560-99-R International Brotherhood of Electrical Workers, Local Union 353, Applicant v. 1206468 Ontario Ltd. c.o.b. as Quadracon, Responding Party.
BEFORE: R. O. MacDowell, Chair, and Board Members G. Pickell and A. Haward.
APPEARANCES: Ursula Boylan and Larry Venning for the applicant union; Jeffrey Murray and L. Feldt for the responding employer; (no employee intervention or appearances).
DECISION OF THE BOARD; October 31, 2000
- This an application for certification, in which the Board is being invited to reconsider the way in which it has approached the definition of craft bargaining units in the construction industry. The nature of the case and the parties positions will be discussed in more detail below. However, in order to make this decision easier to read, the applicant will be referred to as “the IBEW” or “the union”, the responding party will be referred to as “the employer” or “Quadracon”, and the Ministry of Training, Colleges and Universities, may be referred to simply as “the Ministry”.
I – What this decision is about: in general
This is an application for certification in which the IBEW seeks to represent what might be described as its “standard craft bargaining unit” of “electricians and electricians’ apprentices”. The application was made pursuant to the construction industry provisions of the Labour Relations Act, 1995, and was filed with the Board on November 23, 1999.
In a decision dated November 29, 1999, the Board (differently constituted) determined the appropriate bargaining unit and voting constituency for the purposes of the certification application, then directed that a representation vote be taken, so that the employees in that bargaining unit/voting constituency could indicate, by secret ballot, whether or not they wished to be represented by the trade union in their employment relationship with Quadracon. The Board’s decision reads, in part, as follows:
The Board further finds, pursuant to section 158(1) of the Act, that 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 [geographic area] save and except non-working foremen and persons above the rank of non‑working foreman, constitute a unit of employees of the responding party appropriate for collective bargaining.
Having regard to the Board's finding as to the appropriate bargaining unit, the Board directs that a representation vote be taken of the individuals in the following voting constituency:
all electricians and electricians’ apprentices in the employ of 1206468 Ontario Ltd. c.o.b. as Quadracon 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 1206468 Ontario Ltd. c.o.b. as Quadracon in all other sectors of the construction industry in [geographic area omitted], save and except non-working foremen and persons above the rank of non‑working foreman.
The vote will be held on December 1, 1999 . Vote arrangements are set out on the attached "Notice of Vote and of Meeting".
All individuals who were employed by 1206468 Ontario Ltd. c.o.b. as Quadracon and at work in the voting constituency on November 23, 1999 are eligible to vote.
The representation vote was taken as directed by the Board. However, a number of ballots have been segregated and not counted pending resolution of the issue set out below.
There is no dispute about the description of the bargaining unit. The parties are agreed that the unit of employees appropriate for collective bargaining should encompass “all electricians and electricians apprentices”. However, there is a dispute about the composition of the bargaining unit – that is, who should be considered to be an “electrician” or “electricians’ apprentice” in the bargaining unit, established for the purposes of collective bargaining under the Labour Relations Act.
In particular, the parties do not agree upon whether the bargaining unit should include a number of employees who were hired as electricians and were doing “electricians’ work”, but who lacked the licensing (or other documentation) required by the Trades Qualification Act (“TQA”). For convenience, these individuals will sometimes be referred to as “unlicensed electricians”.
The positions of the parties can be stated quite simply.
The union says that in order to be included in the bargaining unit – which is to say, in order to be eligible to cast a ballot in the representation vote – an individual who claims to be an “electrician” or “electrician’s apprentice”, must be lawfully employed and lawfully working in accordance with the provisions pertaining to electricians found in the Trades Qualification Act. If the individual does not have the required accreditation, or is not working as an electrician “lawfully” pursuant to the TQA, then s/he should not be treated as an “electrician” or “ apprentice” for collective bargaining purposes. In the union’s submission, those words have a specialized meaning, that must be gleaned from the definitions and restrictions found in the TQA.
The union asserts that in determining the composition of this craft bargaining unit, the Board must take the TQA into account. The fact that someone is doing “electrician’s work” – indeed, may have been working as an electrician for some time – is not enough. The person must also possess any licences that may be required to perform that work “lawfully”.
The union points out that under the TQA, electricians are a “compulsory certified trade”: a tradesperson must have particular credentials in order to do the work of an electrician, and cannot lawfully do such work without those credentials. Similarly, in order to be an “apprentice electrician” an individual must have a recognized contract of apprenticeship in the form prescribed by the TQA. Accordingly, in the union’s submission, employees who are working contrary to, or outside of, the provisions of the TQA, cannot properly be described as electricians or apprentice electricians, eligible for inclusion in an electricians’ bargaining unit established under the Labour Relations Act. Nor, of course, are such employees entitled to cast ballots in any representation vote pertaining to an electricians’ bargaining unit. To put the matter colloquially: a tradesperson “without papers” cannot be included in a craft bargaining unit pertaining to a craft for which “papers” are required. The fact that the individual is doing the work of the craft or is exercising the skills of the craft is not sufficient.
In summary, then, the union asserts that an employee cannot be an electrician or electrician’s apprentice for collective bargaining purposes under the Labour Relations Act, unless s/he also meets the licencing requirements stipulated by the TQA. The union says that the two statutes must be read together, and together determine the composition of a “craft” bargaining unit of “electricians and electricians’ apprentices” under the Labour Relations Act. The TQA supplies the standard that controls bargaining unit definition and composition under the OLRA and is the way to distinguish those who are “really electricians” from those who are not. The union relies upon quite a number of Board decisions, including: Irvcon Roofing and Sheet Metal (Pembroke) Ltd., [1981] OLRB Rep. Nov. 1594; Marsil Mechanical Inc., [1997] OLRB Rep. July 636; Heritage Mechanical, [1995] OLRB Rep. Mar. 272; Rolan Plumbing, [1998] OLRB Rep. July 711; B.C. Meck, [1988] OLRB Rep. June 546; P & M Electric (1982) Limited, [1989] OLRB Rep. July 638; O.J. Pipelines Incorporated, [1989] OLRB Rep. Sept. 976; Gorf Contracting Limited, [1991] OLRB Rep. Apr. 483; and Siteco Electric Ltd., [1992] OLRB Rep. Mar. 383. [what we will refer to as the “Irvcon/Marsil” line of cases].
Quadracon urges the Board to depart from or qualify this line of cases.
In the employer’s submission, the TQA may be relevant to bargaining unit determinations under the Labour Relations Act, 1995. But the TQA is only one reference point; and the terms of the TQA do not govern bargaining unit composition under the Labour Relations Act. Nor does the TQA have the “preclusive effect” asserted by the trade union.
Quadracon urges the Board to take into account the actual composition of its work force, which includes about two dozen individuals who were hired as “electricians”, who regularly worked as “electricians”, and who (the employer says) should be treated as “electricians” for collective bargaining purposes - even though, at the time that the application for certification was made, they lacked the formal credentials required by the TQA. The employer submits that from the perspective of job skills, work functions, and community of interest, these individuals are no different from the “electricians” in the company’s employ who have a Certificate of Qualification issued under the TQA. Accordingly, the employer asserts that the two groups of “electricians” (functionally defined) should not be distinguished or subdivided for collective bargaining purposes. For collective bargaining purposes (or more accurately, allowing employees to choose whether they want a trade union to represent them), there should be no distinction between (as the employer puts it) “electricians with papers” and “electricians without papers”.
The employer concedes that the disputed individuals were working as “electricians”, without licences. They were not complying with the TQA. However, the employer points out that within a few days of the union’s certification application, (and before the representation vote was taken) about half of them approached the Ministry of Training, Colleges and Universities, and did in fact acquire a “provisional” Certificate of Qualification – thereby (so the employer says) confirming the “trade” to which they belonged, and meeting any regulatory requirements that the TQA might impose. The rest of the disputed individuals (with possibly one exception) obtained the necessary documentation from the Ministry within a few days or weeks. And in all cases (again with one possible exception) the Ministry was content to issue the disputed individuals with the required accreditation, because they were qualified to work as electricians and had been doing electrician’s work, for Quadracon and elsewhere, for quite some time.
The Ministry was content to confirm their status, and issue the necessary “papers”. The Ministry had no doubt that they were, and should be recognized as, “electricians”.
In the employer’s submission, therefore, these workers should all be treated as part of an “electrician’s bargaining unit” for collective bargaining purposes under the Labour Relations Act. Their (temporary) lack of licences under the TQA should not preclude them from participating in the certification process, or from being in the bargaining unit that pertains to their jobs, work, skills and interests. The employer urges the Board to reject or qualify the Irvcon/Marsil approach.
In employer’s submission, compliance with the TQA is not an absolute prerequisite for being an “electrician” under the Labour Relations Act, 1995, or for inclusion in an “electricians’ craft bargaining unit”, established under the Labour Relations Act, 1995. The TQA is “about” skills development and training. It is not “about” collective bargaining at all – let alone the way in which bargaining units should be structured or voting constituencies determined under the Labour Relations Act. Thus, in the employer’s submission, a person who is not working in compliance with the TQA may nevertheless be considered an “electrician” for collective bargaining purposes under the Labour Relations Act, 1995, provided that s/he is exercising the skills or performing the work functions of an electrician, and otherwise meets the labour relations/collective bargaining criteria prescribed by the Labour Relations Act, 1995.
Quadracon challenges the “correctness” of the Irvcon/Marsil line of cases; the Board is simply wrong to make “lawfulness” under the TQA the litmus test for bargaining unit definition under the OLRA. However, in counsel’s submission, the Board need not undertake a panoramic review and revision of the Irvcon/Marsil reasoning. The Board can simply depart from that approach in the rather unusual circumstances of this case - where, the employer asserts, the disputed individuals are “clearly electricians”, even though they were working without a licence. In counsel’s submission, the facts here are rather unusual, and quite distinguishable from earlier cases.
II – Some further background
Quadracon, operates an electrical contracting business from premises in Scarborough, Ontario. In order to meet the needs of its customers, Quadracon employs tradesmen to do electrical work. Some of those tradesmen have the required “Certificates of Qualification” (“C of Q”) for electricians, issued under the TQA. Others do not. But both groups do the work of an electrician on the company’s various job sites.
How has this situation come about?
The company has among its work force, quite a number of individuals who come from other countries. Those individuals worked as electricians in their homeland – often for many years. They continued to work as electricians once they came to Canada. However, many of them did not bother to register with the Ontario Ministry of Training, Colleges and Universities (or its predecessors), nor did they obtain the required Certificate of Qualification for the trade in which they were engaged.
It does not seem to be disputed that it is “unlawful” to work without the required licenses, or to assign work to unlicensed individuals. On the other hand, the lack of a license has not been a practical impediment to working as an electrician. None of the unlicensed electricians has ever been removed from a job site by any government agency, for not holding a Certificate of Qualification. And when they sought to obtain the required licences from the Ministry of Training, Colleges and Universities, they were able to do so with relative ease .
The information pertaining to these workers was put before the Board by means of an Agreed Statement of Fact. There are twenty-three individuals addressed in that Agreed Statement, and another three persons who, the union says, are similarly situated. The Agreed Statement of Fact has the following preamble, which helps to frame the issue which the parties have put before the Board:
Whereas the application for certification in Board File No. 2560-99-R was filed by the applicant on November 23, 1999 (“the application”);
And Whereas a representation vote pertaining to the application was held on December 1, 1999 (“the representation vote”);
And Whereas the eligibility of certain individuals to vote has been challenged by the applicant on grounds [that] such individuals were neither licensed electricians nor registered apprentices on the application date (the “unlicensed electricians”);
And Whereas the parties agree the Board shall determine which, if any, of the unlicensed electricians were not eligible to vote in the representation vote on grounds they were not licensed electricians or registered apprentices on the application date;
And Whereas the parties agree all other grounds for challenging voter eligibility asserted to date in these proceedings, and not specifically withdrawn, shall be preserved.
Now therefore the parties agree as follows: …
However, we do not think that it is necessary to reproduce the details on the background of each and every one of the disputed individuals. A few examples will provide the context in which the parties made their submissions.
Stojan Bogdanovic has been working for the company since 1997. He works forty hours per week, and is considered by the company to be a construction and maintenance electrician. That is his classification for pay and work purposes, and that is the kind of work that he does. Mr. Bogdanovic is no stranger to the electrical trade. From 1975 to 1996, Mr. Bogdanovic worked as a construction and maintenance electrician in Yugoslavia.
On the day of the union’s certification application (November 23, 1999) Mr. Bogdanovic was working at the Attersley School, installing lighting. He did not, on that date, have an electrician’s Certificate of Qualification. However, the Ministry issued him a provisional provincial Certificate of Qualification, Electrician-Construction and Maintenance, on November 29, 1999 – which is to say, barely a week after the union’s application, and before the taking of the representation vote.
In support of his request for an Ontario Certificate of Qualification, Mr. Bogdanovic was obliged to make a statutory declaration, describing his duties and experience. That statutory declaration was provided to the Ministry, and is what we presume the Ministry acted upon when it issued Mr. Bogdanovic with a provisional C of Q, on November 29, 1999 . Mr. Bogdanovic’s declaration lists the following duties that he has customarily performed:
Installation and maintain lighting system (incandescent lighting, fluorescent lighting, h.i.d. lighting, light dimming and control systems, exit emergency lighting, electronic ballast systems).
Installation, maintain and repair lighting systems (branch circuit wiring, feeder cables, etc.).
Installation and maintain power distribution equipment (switch gear and cabling, conduit, receptacles, voltage protection and control devices).
Installation and maintain instrumentation equipment (instrumentation devices, power and energy metering).
Installation and maintain step-by power systems (u.p.s.-uninterruptible power supply systems., battery stand by systems) during construction.
Installation and maintain motor drives and controls (a.c. – motors, d.c. – motors).
Installation, maintain and test data communication cables (fire alarm, nursing call, security).
Installation and maintain air – conditioning units.
Mr. Bogdanovic is not alone. Fifteen of the twenty-three individuals for whom we have information filed similar statutory declarations, containing a similar list of job duties. All of these employees, like Mr. Bogdanovic, affirmed that they had been performing that kind of work for some time. And it is not disputed that this is the kind of work that electricians typically do.
There is nothing in the material before the Board to suggest that the Ministry responsible for administering the TQA, had any concern that these applicants for a Certificate of Qualification had been working for some time without the proper licensing – as the union would say, “unlawfully”. Working without a license was not an impediment to obtaining one. Moreover, there is nothing to suggest that such work experience “unlawfully gained” would not “count” in the applicant’s favour as far as accreditation was concerned. Indeed, it appears that the Ministry gave the applicants “credit” under the TQA for the very “unlawful” work that the union contends disentitles them from being considered “electricians” and casting a ballot under the Labour Relations Act.
31 For example, Mr. Bogdanovic’s statutory declaration to the Ministry indicates that he has been working for Quadracon as an electrician (construction and maintenance) since 1997, performing the duties listed above. He admits to working without a licence –“unlawfully”- for two years. Yet he received his provisional Certificate of Qualification on November 29, 1999. The Ministry had no difficulty determining the trade in which Mr. Bogdanovic had been engaged, and it issued him a provisional C of Q, so that he could continue to do, lawfully, what he had been doing, unlawfully.
Mr. Milan Pavolick is another example. In his application to the Ministry, Milan Pavolick declares that he has worked as a construction and maintenance electrician for Quadracon since 1999, and before that for a Canadian firm called “Thompson Electric” from 1990 to 1995, and before that, for a firm in Belgrade Yugoslavia. He too was given a provisional Certificate of Qualification on November 29, 1999.
In other words, there is no indication that the Ministry responsible for administering the TQA has penalized the disputed individuals in any way for working without a license, or has discounted the work experience gained that way. On the contrary, the material before the Board suggests that these individuals were entitled to bring themselves into compliance with the TQA, provided that they did indeed have the required skills and experience. Accordingly, this Board is being urged to apply the TQA strictly, to conclude that the disputed individuals were working “unlawfully” cannot be treated as “electricians” for collective bargaining purposes, when the Ministry directly responsible for administering the TQA has not taken such rigid view.
On the day of the certification application, none of the disputed individuals held a Certificate of Qualification, or a provisional Certificate of Qualification or a contract of apprenticeship. However, some twelve of the twenty-three persons covered by the Agreed Statement of Fact obtained a provisional Certificate of Qualification from the Ministry within five days of the application, and thus before the vote. Two individuals received a provisional Certificate of Qualification the day after the vote (December 2). Two more received their provisional Certificate of Qualification, about three weeks later, on December 20. Three others received their documentation in the first week of February.
In other words, virtually all of the disputed individuals were able to come into compliance with the licencing regime relatively quickly; and the agency responsible for administering that regime was content that they do so.
Finally, it is worth noting for completeness, that at the time of the vote there were two persons who had earlier obtained a provisional Certificate of Qualification, but had allowed that Certificate of Qualification to expire. These two individuals had already satisfied that Ministry of their qualifications, but had never followed through to obtain a final Certificate of Qualification. So like their fellow workers, they are probably best described as “unlicenced electricians” as of the date of the union’s certification application.
In summary then, it is evident that (with perhaps one exception) none of the disputed individuals were strangers to the electrical trade, having worked as electricians for many years outside Canada, and for various periods of time in Ontario. Accordingly, it is hardly surprising that on November 23, 1999, the date of the application for certification, these individuals may have been doing work ordinarily performed by electricians.
The IBEW is a trade union that, as its name suggests, commonly represents workers associated with the electrical trade. The IBEW is a “craft union” entitled to seek bargaining rights for its historical “craft bargaining unit” established pursuant to section 9(3) of the Labour Relations Act, 1995. That section provides:
(3) Any group of employees who exercise technical skills or who are members of a craft by reason of which they are distinguishable from the other employees and commonly bargain separately and apart from other employees through a trade union that according to established trade union practice pertains to such skills or crafts shall be deemed by the Board to be a unit appropriate for collective bargaining if the application is made by a trade union pertaining to the skills or craft, and the Board may include in the unit persons who according to established trade union practice are commonly associated in their work and bargaining with the group, but the Board shall not be required to apply this subsection where the group of employees is included in a bargaining unit represented by another bargaining agent at the time the application is made.
The IBEW and its Local 353 are also “construction unions” within the meaning of the Labour Relations Act, entitled to participate in the scheme of province-wide bargaining in the construction industry, established under sections 151-168 of the Act.
The IBEW has two classes of membership: temporary and full. In order to be a “full member” of the union, authorized to do construction and maintenance electrical work, an individual is required to have a Certificate of Qualification or to be a registered apprentice under the Trades Qualification Act. A temporary member can have either a Certificate of Qualification, or be a registered apprentice, or have a provisional Certificate of Qualification. The Board was advised that without such TQA accreditation, an individual would not be admitted even as a temporary member. The IBEW looks to the TQA for membership purposes.
However, it is also worth noting that for the purposes of the Labour Relations Act, 1995, the term “member” has a statutory definition, which makes no reference to the TQA at all (see section 1 of the Act) or to the union’s constitution; moreover, a trade union can be relieved of any constitutional limitations on membership pursuant to section 111(4) of the Act. In fact, a employee may be a “member” of a trade union for certification purposes under the Labour Relations Act, if s/he has merely “applied for” membership, whether or not membership has been or could be granted. And, of course, following certification, it is not unusual for non-members to be required to join the union if a collective agreement that applies to them so requires (as virtually all construction industry collective agreements do). Indeed, it is doubtful whether a trade union could refuse membership to employees in the voting constituency, provided that they were willing to bring themselves into compliance with any applicable regulatory and constitutional requirements (i.e. that having won the vote, we do not think that the union could then purge the unit of certain voters). In this regard, employees are permitted to come into compliance with any conditions of continued employment in the bargaining unit to which they have been assigned. They can join the union after it has been certified as the employees’ bargaining agent.
Like many construction trade unions, the IBEW operates a hiring hall for the purpose of directing out-of-work members to prospective jobs or employers. For dispatching purposes, an individual is expected to be: a “temporary member” (with one of the three TQA documents mentioned above); or a “full-time member” with a Certificate of Qualification; or a “registered apprentice”. However, once someone is admitted to membership, the union does not monitor its members to ensure that they maintain their Certificate of Qualification in good standing. With respect to “temporary members” there is a review every three months to encourage conversion of provisional licenses into a proper Certificate of Qualification; however, the lapse of a license, would not result in expulsion from the union, nor would the hiring hall dispatcher ask, or know about, an individual’s licensing status. Someone without a valid license could still be referred out to work.
This is not to say that the union would condone working without a license, nor would the union knowingly dispatch an unlicensed worker to a job for which licensing is required. But as a practical matter, it is the individual’s responsibility to pay the required fees, or whatever else may be required to maintain that license. In practice therefore, a licensing defect or the absence of a licence, would not necessarily prevent someone from being dispatched to work through the union hiring hall. Or from working.
It is also worth noting that the so-called “principal agreement” which emerges from the province-wide collective bargaining process in the construction industry, includes in its recognition clause, certain classifications of employees (ground man/equipment operator, ground man/driver, ground man, utility man, and forester) who perform work in connection with line work (and are thus included in the line work section of the provincial agreement), but who are not required to have a Certificate of Qualification, nor be registered apprentices under the TQA. In other words, the bargaining unit under the “principle agreement” includes persons who lack TQA accreditation.
With that background then, we return to the issue put before the Board for determination: can an “unlicensed electrician” (by which we mean someone regularly doing the work of an electrician, but “without papers”) actually be an “electrician” for collective bargaining purposes under the Labour Relations Act, 1995?Or is it essential that such individuals hold the required credentials under the TQA, or otherwise meet the requirements of the TQA?
In answering these questions it may be useful to sketch in the way in which the Board approaches the definition of craft bargaining units under the Labour Relations Act, 1995.
We will then consider whether the Board is obliged to, or should consider the impact of the TQA.
III – How the Board determines bargaining units in the construction industry
On every application for certification, the Board is required to determine the unit of employees appropriate for collective bargaining, then calculate the level of trade union support in that unit. The bargaining unit is defined with reference to the statute and broad labour relations criteria. Union support is assessed by means of a representation vote. And once certified, the bargaining unit defines the generic grouping of employees whom the union is entitled to represent, and to whom any collective agreement will apply.
However, in the construction industry, bargaining-unit determination is a more complex exercise than it is in a manufacturing setting, because the construction industry has a number of features which make it unique. These include: the predominance of “craft unions” and “craft bargaining units” (electricians, plumbers, carpenters, sheet metal workers, etc.); a special regulatory regime that shapes the way in which construction industry bargaining units must be framed; and an unusually fluid work force, where the number of individuals at work on the job site can vary significantly from day to day - as can their work assignments on any given day. A person who is undoubtedly (or normally), a member of a craft or trade, may not be doing the work of the trade on the day on which the certification application in made. A plumber, say, may not be doing “plumbers work” on any given day, regardless of what s/he normally does.
These factors have to be taken into account when processing certification applications and determining bargaining units in the construction industry.
A “craft bargaining unit” consists of a group of employees who share a common set of skills, or can be said to be members of a “craft” by reason of the distictive kind of work that they do. It is a funtional and historical contruct. To repeat, craft bargaining units are addressed in section 9 (3) of the Act, which reads as follows:
(3) Any group of employees who exercise technical skills or who are members of a craft by reason of which they are distinguishable from the other employees and commonly bargain separately and apart from other employees through a trade union that according to established trade union practice pertains to such skills or crafts shall be deemed by the Board to be a unit appropriate for collective bargaining if the application is made by a trade union pertaining to the skills or craft, and the Board may include in the unit persons who according to established trade union practice are commonly associated in their work and bargaining with the group, but the Board shall not be required to apply this subsection where the group of employees is included in a bargaining unit represented by another bargaining agent at the time the application is made.
As will be seen: a “craft” bargaining unit is defined by reference to the “technical skills” or work functions customarily performed by a particular group of employees and not by others. A “craft bargaining unit” therefore, is determined with reference to that grouping of skilled workers, and to the historical collective bargaining patterns of trade unions that customarily represent workers possessing those skills. The craft bargaining unit is thus a collective bargaining construct, based upon an analysis of “work”, skills, institutional arrangements, and collective bargaining history.
However it is interesting to note that the legislation also contemplates that a craft bargaining unit need not consist only of members of that craft (i.e. exclusively of employees with the distinctive skill set). A craft bargaining unit need not be “pure”. The Board may also include in a craft bargaining unit “persons who according to established trade union practice are commonly associated in their work and bargaining with the [craft] group”.
In other words, under section 9 (3), the Board can go beyond the core of skilled tradesmen that gives the craft its definition, and can include in the craft bargaining unit semi-skilled or unskilled workers who, in accordance with established trade union practice are commonly associated in their work or bargaining with the skilled tradespersons. The statute is about collective bargaining, and therefore allows the Board to tailor its bargaining units in accordance with what makes sense from that perspective.
Insofar as the ICI sector of the construction industry is concerned, section 9(3) of the Act must also be read together with section 158, which determines how “ICI” and “non-ICI” bargaining units are structured (i.e. how individual bargaining-unit determinations fit within the prescribed scheme of province-wide bargaining by trade). That, in turn, takes one to the ministerial designations made under section 153 of the Act. The ministerial designations spell out the employee categories that construction trade unions are entitled – indeed obliged – to represent in province-wide bargaining (although the bargaining parties may choose to voluntarily extend the reach of their agreement beyond the designated group and the ICI sector). That is why paragraph 6 of the Board’s earlier decision is framed the way it is.
The statutory language is a little cumbersome, but the objective is to facilitate province-wide bargaining, by trade, through provincial bargaining agencies pertaining to those trades or crafts. The provincial bargaining scheme is built upon a framework of craft trade unions and craft bargaining units. Thus, for example: the Ministerial designation for provincial bargaining pertaining to the electrial trade, specifies that the provincial bargaining agency (the IBEW and its provincial construction council) are empowered to bargain on behalf of “journeyman and apprentice electricians and journeymen and apprentice linemen” represented by IBEW locals across the province, in the ICI sector of the construction industry. The Ministerial designation takes these craft groupings as a given, and does not further define, or refine, the term “electrician” .
The Board is obliged to make its bargaining unit determinations in accordance with the provisions of the Labour Relations Act; and in so doing, the Board may take into account labour relations policy and practice – either because that is a prudent exercise of discretion, or because of sections like 9 (3) which refer to such matters. However, there is nothing in the Labour Relations Act which requires the Board to make its bargaining units/vote eligibility determinations congruent with every piece of collateral legislation that touches on “work” or “employment” in some way (immigration law, worker compensation provisions, taxation statutes, pay equity rules, unemployment insurance regulations, reglulations under the Occupational Health and Safety Act, or municipal building codes, for example). Such congruence, may or may not be desirable. But that is a legal and labour relations judgment for the Board to make, in the context of a particular case, and in the exercise of the Board’s jurisdiction to interpret and apply the Labour Relations Act.
No doubt the Board cannot require the doing of something that would be “unlawful” under some other statute; and the Board should be cognizant of how outcomes determined under the Labour Relations Act may impinge upon other regulatory regimes -or the work of other regulatory agencies. However, so long as there is no overt collision or operating incompatibility, agencies like the Board are entitled to analyze the problems before them throughout their own legal lens.
We will return to this theme later.
The description of a craft bargaining unit is determined by reference to the historical work jurisdictions of the various crafts: carpenters, sheet metal workers, plumbers, electricians, and so on. A “carpenters” or “electricians” bargaining unit is composed of individuals who do “carpenters” or “electricians” work – individuals who exercise the technical skills of a “carpenter” or an “electrician”, by reason of which they are distinguishable from other employee groupings. That is what section 9(3) provides; and if the requirements of section 9 (3) are met, a craft union will be entitled to the craft bargaining unit pertaining to its trade.
In this respect, the exercise under section 9 (3) of the Act is more constrained than determinations of “appropriateness” under section 9 (1). Appropriateness is determined with reference to the criteria in section 9 (3) of the Act – not just the Board’s assessment of “community of interest”, or what appears to the Board to make “labour relations sense”. The criteria in section 9 (3) set out the criteria for determining the bargaining unit perimeter.
The composition of a craft bargaining unit refers to who is actually “IN” the unit for the purposes of the certification application at the time the application is made – for example, for the purpose of casting a ballot in a representation vote. In the construction industry, that is determined by ascertaining who was: an “employee”, “in the defined bargaining unit”, on the application date. It is a two-fold test that requires the Board to look at:
(a) who was actively at work on the application date, and
(b) what work those individuals were doing on that date.
For present purposes it is unnecessary to discuss item (a) which is not an issue in this case. It suffices to say that, in the construction industry, the bench mark for determining employee status is the application date, and the Board is not required to look at who was at work on any other date. (See Section 128 (2) of the Act and the policy considerations outlined in cases such as Megatech Electrical Limited, [1999] OLRB Rep. April 257 and Smiths Construction Company, [1984] OLRB Rep. March 521 and the Divisional Court in Colautti Construction (1986), 86 CLLC ¶14,065). It is a rough an ready rule designed to inject some certainty into case processing in a volatile employment environment where the work forces and work functions fluctuate and shift from day to day. So the Board focuses on the day that the certification application was filed, and uses that snapshot to make the determinations required of it under the statute.
However, in the construction industry, where there are craft bargaining units, it is not enough to determine who was actively employed on the application date. It is also necessary to determine which employees, at work, on the application date, were actually working at the particular “trade” or “craft” – which is to say, which employees were doing “bargaining unit work” on the application date.
To be in a craft bargaining unit, an individual has to be doing the work of the trade at the time that the certification application is made – that is, on the application date. That is essentially a factual question, requiring the Board to examine what work functions the employees were performing, then decide whether those functions fall within the historical work jurisdiction of the target trade. It is a matter of evidence and characterization of what the person was doing on the application date (while recognizing that s/he may be doing something else or may not even be employed the day before or the day after – but that is one of the characteristics of work in the construction industry. See again, the discussion in Megatech, supra).
This is not to say that such characterization of work is necessarily easy. Sometimes it is not. Indeed determining the boundaries of a particular trade may sometimes be quite difficult, because trade union “craft jurisdictions” overlap, and, in recent years, the boundaries between them have become even less distinct. Moreover, even the regulations under TQA (or the Apprenticeship and Tradesmen’s Qualification Act as it used to be known) do not provide an unfailing guideline to the work jurisdiction of craft unions in the construction industry. Thus in E. S. Fox Limited, [1989] OLRB Rep. July 738 the Board observed:
If the world of the construction industry was one in which there was no overlap between the jurisdictions of the various construction crafts or trades, it would probably be both a much simpler world, and also fair to say that doing the work that is done by a trade is equivalent to working in or being engaged in that trade. However, as the Board observed in Ellis Don Limited, [1988] OLRB Rep. Dec. 1254, the lines of demarcation between the jurisdictions of the various construction industry trade unions have never been clear and, have, in recent years, tended to become even more blurred. Trade union jurisdictions in the construction industry have always overlapped. If anything, these overlaps have increased in recent years.
In our view, the Apprenticeship Act was not intended to and has not had the effect of eliminating or lessening these jurisdictional overlaps. It does not stipulate that certain work can only be done by certain people. It does not specifically prohibit anyone from doing any particular kind of work, whether or not such work is a part of the work done by persons engaged in a compulsory certified trade. In that regard, the regulations under the Apprenticeship Act are full of overlaps between the trades with respect to which they have been promulgated. For example, there is an obvious overlap between the qualifications and the work of the various kinds of mechanics regulated under the Apprenticeship Act. There appears to be a similar overlap, in terms of training and work performed, between plumbers, (also a compulsory certified trade) and refrigeration and air-conditioning mechanics (which is a compulsory certified trade); between plumbers, steamfitters (also a compulsory certified trade) and fire protection installers; and between the electricians (another compulsory certified trade) and air and refrigeration mechanics. More apposite to this case, a review of the regulations reveal that auto body repairers (Regulation 22), construction millwrights (Regulation 29), electricians (Regulation 32), glaziers and metal mechanics (Regulation 39), ironworkers (Regulation 44), lathers (Regulation 45), painters (Regulation 50), plumbers (Regulation 52), refrigeration and air conditioning mechanics (Regulation 55), steamfitters (Regulation 59), and truck trailer repairers (Regulation 62) all clearly or very arguably are trained to use and do use sheet metal or sheet metal tools in the performance of the work of their trade. In addition, Regulation 36 under the Apprenticeship Act provides for the establishment of employer specific apprenticeship training programmes to which sections 9 and 10 of the Act do not apply. One such programme is for heat and frost insulation and asbestos workers of the "Joint Apprentice Committee" (a joint committee of labour and management rather than a single employer) clearly provides for persons enrolled in it to be trained to use, among other things, sheet metal and sheet metal tools in the performance of their work.
It is readily apparent that the Apprenticeship Act does not provide any trade, even a compulsory certified trade, with an exclusive trade jurisdiction. We do not view Regulation 57 under the Apprenticeship Act, which must be read in the context of that Act and its regulations as a whole, as requiring that any person who does anything with sheet metal in the construction industry be a journeyman or apprentice sheet metal worker. It does prescribe that anyone who works as a sheet metal worker or in the sheet metal trade must be a journeyman or apprentice. However, because of the overlap of craft or trade jurisdictions in the construction industry, and in the regulations of trades by the Apprenticeship Act, the question of which trade a person is engaged in is not necessarily determined by the work that that person is doing at any particular time. In order to determine the trade in which a construction employee is working, it is essential to consider ALL of the work that the employee is qualified to or does do and not merely that part of his/her work which falls within the description of work done by a compulsory certified trade, particularly where such work clearly or arguably falls within an overlap between the jurisdiction of two or more trades (see Ellis Don Limited, supra) [emphasis added in uppercase text]. Consequently, the mere fact that a person sometimes does what a sheet metal worker also sometimes does, or sometimes uses sheet metal or sheet metal tools in the course of his/her employment or work, does not necessarily mean that that person is a sheet metal worker or that s/he is engaged in the sheet metal trade within the meaning of the Apprenticeship Act.
The TQA is but one piece of evidence about what trade particular work should be assigned to (perhaps not exclusively).
That said, the Board has, in recent years, been inclined to take the Trades Qualification Act (or its legislative predecessors) into account in determining the composition of a craft bargaining unit established pursuant to section 9(3) of the Act (and, as necessary, the provisions of the statute dealing with the province-wide bargaining scheme). In Megatech Electrical Ltd., [1999] OLRB Rep. April 257, the Board described the approach this way:
In the construction industry, therefore, the Board gives a rather precise and literal reading to the words "employee in the [craft] bargaining unit [or voting constituency]", requiring that the individual in question:
(a) actually be at work on the application date; and
(b) be performing the work of the trade for a majority of his/her time on the application date.
If the disputed individual meets these requirements, then s/he is considered to be in the craft bargaining unit for the purposes of certification under the Labour Relations Act. Conversely, if the individual is not actively at work on the application date, or is at work but is not performing the work of the trade on that day, then s/he is not in the craft bargaining unit for the purposes of a certification application.
In recent years, the Board has added one additional element to the equation, in order to make its approach to craft bargaining units congruent with related legislation governing certain trades to which those collective bargaining units relate (the so‑called "compulsory certified trades": plumbers, electricians, sheet metal workers, boilermakers and operating engineers).
Under the Trades Qualification Act, certain work in certain trades can only be done "lawfully" by a journeyman or apprentice who is registered under that Act. An individual requires a legislated form of accreditation in order to do the work, and it is improper to assign the work to someone who does not have the proper accreditation. But because craft bargaining units are also defined with reference to "work", the requirement for a licence (without which performing the work would be unlawful) has influenced the way in which the Board treats workers in these particular trades.
If the work being performed on the application date is "bargaining unit work", then in the case of these compulsory certified trades, the Board has also looked at whether the individuals in question actually were "journeymen" or "apprentices" within the meaning of the regulatory statute ‑ that is, the Board has looked at whether they have the required licences that make them a "certified" tradesperson, or they have otherwise met the requirements of the statute pertaining to that trade. The Board has looked at whether they are "lawfully" entitled to do the work that they are performing. In this respect, the Board's craft unit definition is influenced by a collateral legal framework pertaining to certain trades.
The reasoning in these cases seems to be that if an individual is not "lawfully" performing the work of one of these compulsory certified trades, then that worker should not be included in the "craft bargaining unit" that pertains to that trade and that kind of work. A worker should not be treated as, say, an "electrician", if s/he does not have the required licence or otherwise meet the legislated criteria for that status. To put the matter colloquially: work performed "unlawfully" ‑ contrary to the Trades Qualification Act ‑ "doesn't count". And in order to meet the requirements of the Trades Qualification Act, a worker has to either be a journeyman as the law defines it, or s/he must make an application for apprenticeship (with the Ministry of Skills Development) within 90 days of beginning to perform the work of the trade.
It is that line of reasoning that the employer urges us to refine or reject in the instant case.
We might note at this point that the panel in Megatech was not invited to depart from the Board’s established approach to the use of the TQA, so the decision in Megatech is of no assistance in resolving the issue now before us. But the Megatech decision does contain a useful summary of what the Board has been doing over the last few years; and it provides a starting point for examining some of the concrete impacts of that approach.
IV – Some consequences of the Irvcon/Marsil line of cases
- As we have already indicated, the Irvcon/Marsil approach makes membership in the craft bargaining unit, for a few trades, dependent not (or not only) upon the work that the individual is doing and the terms of the Labour Relations Act, but also upon whether the worker is performing that work “lawfully”, in accordance with the licensing requirements of the Trades Qualification Act. If the worker is not properly “licensed”, the Board has not been inclined to treat that person as an employee “in the craft bargaining unit” - even though the disputed individual:
is undoubtedly a construction industry “employee” under the Labour Relations Act,
may be meet all of the skill requirements of the craft to which section 9(3) refers,
may have been working and using those skills for years
may see himself and be treated by his employer as if he were a member of the craft, for classification, work assignment and pay purposes, and
may be working side by side with, and doing the same work as, other
accredited tradesmen (i.e. people with papers)
The effect of the Irvcon/Marsil line of cases is to divide employees for collective bargaining purposes, in accordance with the “papers” they possess, rather than “the work” that they do – or indeed the community of interest which they may share with other tradesmen.
The labour relations impact can be illustrated in concrete terms by decisions of the Board such as B. C. Meck, [1988] OLRB Rep. June 1988.
In B.C. Meck, the employer operated a construction business in the Regional Municipality of Ottawa-Carleton (i.e. on the “border” with Quebec, just across the Ottawa river bridge). On one of its local projects, the employer had occasion to use some employees who were sheet metal workers, registered as such in the province of Quebec. Prior to the date of the union’s certification application, the employer had contacted the Ministry of Skills Development, (which had responsibility for the TQA), in order to commence the process for Ontario registration. However, that process was not completed by the time that the union’s certification application was made.
Accordingly, the question before the Board in B.C. Meck was somewhat similar to the one in the instant case. Were these skilled workers who were qualified and registered in Quebec, but lacked Ontario papers, eligible for inclusion in “their” craft bargaining unit in Ontario? Should they be grouped together for collective bargaining purposes alongside their co-workers with Ontario licenses? The Board said “no”: the employees were not part of the craft bargaining unit which encompassed their work and co-workers, because they were not properly licensed under the TQA .
In the result, a definable craft grouping, meeting the requirements of section 9(3) of the Labour Relations Act, and containing a coherent cluster of employees for collective bargaining purposes, was subdivided by reference to a licensing statute that has nothing to do with collective bargaining at all.
From a collective bargaining perspective, there is at the very least a certain artificiality to this rigid application of the TQA which divides workers who would otherwise clearly be members of the same craft and craft bargaining unit. There are also some troublesome ramifications for the work of the Board – ramifications that might not have been apparent when the Board in Irvcon first embraced the proposition now urged upon us by the union.
The Irvcon/Marsil approach takes the Board into the interpretation of a collateral statute for which the Board has no particular expertise or responsibility, and which was never (overtly at least) intended to have anything to do with collective bargaining structures. It involves the Board asking not (or not just) whether the circumstances meet section 9(3) and/or the construction provisions of the Labour Relations Act, (the Board’s “home statute”), but also whether the employee is, in some sense, working “lawfully”. But of course, the Board has no responsibility for enforcing compliance with this collateral statute; and as this case illustrates, the Ministry having such responsibility seems to be singularly unconcerned with the very “unlawfulness” which is so pivotal to the Board’s reasoning. In fact, the Ministry in this case was prepared to issue the required provisional certificates of qualification to the disputed individuals within a few days or weeks of the application date; and in so doing, the Ministry was not only giving the workers the “right to work” in that kind of bargaining unit, the Ministry was also confirming that the disputed individuals were, in fact, exercising the work functions of an electrician. The Ministry was content to give the disputed individuals credit for the experience gained by such “unlawful work”; and affirmed that the workers could be fairly described as “electricians”, at least insofar as the Trades Qualification Act is concerned.
Curiously, then, the Ministry is confirming that the disputed individuals are electricians in fact, when the Board is being urged to hold that they are not, purportedly relying on the TQA.
There is also a litigation impact flowing from the particular way in which the TQA is framed; because if the Board is required to determine the application of the TQA, and whether certain activity is “lawful” under the TQA, then the Board may be obliged to hear a lot more evidence than it normally does, in respect of a time frame other than the application date. And that has obvious ramifications for how quickly certification applications can be dealt with.
This result flows from the Board’s focus on the “lawfulness” of working (rather than whether someone is an “electrician”), and from the way in which the Board has read certain provisions in the TQA.
As the Board noted in the Marsil case (and others): under the TQA, a worker can, in fact, “perform the work” of a compulsory certified trade without the required documentation, provided that s/he makes application for apprenticeship with the relevant Ministry, within 90 days of beginning to perform the work of that trade. Working without a license is not always unlawful. The relevant passage from Marsil puts it this way:
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.[emphasis added]
Thus, if the union’s application for certification happens to be brought within this “90-day window”, the Board said that the unaccredited worker can still be treated as part of the craft bargaining unit, even though s/he lacks the required papers, because the work s/he is doing is not (or at least not yet) being unlawfully performed. It is open to him/her to get a contract of apprenticeship sometime later.
For these unaccredited employees, the Board has looked at their work functions only, and assigns them to a craft bargaining unit as an “apprentice” or “journeyman”, even though they are neither, if “papers” are what is required. In other words: for employees in this situation, the Board has stretched the term “electrician” for Labour Relations Act/collective bargaining purposes, to include someone who is clearly NOT an apprentice or journeyman as defined by the TQA (or perhaps, at all).
We might digress here for a moment to note that the term “journeyman” is not part of the Board’s traditional craft bargaining unit description, and is not a defined term in the TQA itself. In fact, section 10(4) of the TQA suggests that a person can obtain a C of Q if s/he “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”. In other words the statutory language suggests that even under the TQA, one can be a “journeyman” and also notionally “in the trade”, without yet having obtained a C of Q, or having had a formal apprenticeship agreement. One is a “journeyman” by doing the work, then one gets the C of Q later on the basis of that work. Similarly, O.Reg. 213/91 under the Occupational Health and Safety Act recognizes that one may have a C of Q or “equivalent qualifications by training and experience”. The C of Q is merely a cnfirmation of such experience.
In any event, the importation of a 90-day window from the TQA has a direct effect on the kind an amount of evidence which the Board has to consider to determine someone’s status. It means that in order to see whether an individual worker meets the TQA exception, and is within the 90 day “grace period”, the Board must look at what the worker was doing for the target employer, or some other employer, in the 90 days or so prior to the certification date. The Board has to do that in order to see when the 90 days start to run, when the employee “should have” been applying to the Ministry for the required documentation, and when his/her employment in the trade became “unlawful”. If “unlawfulness” is the test, that requires evidence – perhaps quite a lot of evidence - about what the employee was doing in the period prior to the certification date, plus a determination of how one should characterize those daily work functions.
In the result, if the employee has been working at the trade for less than 90 days s/he may be included in the craft bargaining unit pertaining to that trade because such employment is not contrary to the TQA. For the newcomer, it is not yet “unlawful”. Conversely, if the worker has been doing the work of the trade for more than 90 days – perhaps for years – s/he is excluded from the craft bargaining unit.
This evidentiary exercise is, to say the least, a potentially time consuming and difficult task, which is rather remote from the terms and focus of the Labour Relations Act; moreover, it requires the Board to depart from the date of the certification application, which has been the Board’s established benchmark for assessing employee status for many years (see again decisions such as Megatech, Smith Construction, Colautti Construction, above). For good labour relations reasons, these cases have held that an assessment of someone’s status as an employee, in the bargaining unit, (two separate issues) should be made as of the date of the application. What the worker was doing before or after that date is irrelevant. Unless, it seems, a TQA issue is raised – in which case the Board must go on an excursion, analyzing the work performed by the disputed individual over the previous three months, with the respondent employer, or perhaps some other employer, then assigning that work, or bits of it, to one trade or another, in order to see if the worker has been doing “trade work” for more than 90 days without a licence, and thus “unlawfully”.
There is a certain artificiality to this exercise, which also yields the curious result that an unskilled and inexperienced newcomer can be put in the unit, but an experienced but unlicensed tradesman cannot be. If the individual works for a few days unlawfully s/he can be put into the unit, but if s/he works unlawfully for years, s/he is excluded. Yet if the latter individual goes to the Ministry, that body has no difficulty recognizing the working reality and giving credit and craft status based upon the “unlawful work”.
So, in summary, an effort to apply the TQA (which has nothing to do with collective bargaining or the peculiarities of the construction industry) requires the Board to depart from the strict words of section 9(3), and depart from a labour relations practice that is soundly based on law and policy. It draws the Board into a potentially time-consuming historical inquiry, when it may be perfectly clear whether the disputed employee was or was not performing the work of the trade on the date of the application for certification, and equally clear whether s/he is, in reality, (i.e. licencing aside) a member of a particular trade. And it puts unlicensed and inexperienced newcomers into the craft bargaining unit, but excludes skilled and experienced tradesmen.
However, there is another peculiar “legal consequence” flowing from this application of the TQA – especially in the province-wide bargaining scheme, which as we have already noted, is based upon the prevailing structure of craft bargaining units. That consequence is illustrated by the case of Rolan Plumbing, [1998] OLRB Rep. July 711, which posed the following question:
“If a tradesperson performing the core functions of a particular trade is not in the bargaining unit pertaining to that trade because s/he lacks the required TQA licensing, then what trade or bargaining unit is s/he in?”
- Rolan Plumbing, involved a group of construction workers who were doing plumbing work at the time that the certification application was made, but did not fall within the 90-day “window” described above, nor otherwise meet the licensing requirements of the TQA. There, as here, the Board had to decide what bargaining unit to put them in, since they were undoubtedly “employees” within the meaning of the Labour Relations Act. They were certainly doing “plumbers work” – exercising the skills of a plumber. But were they properly regarded as “plumbers” for the purposes of a certification application? Or were these unlicenced persons, perhaps, construction labourers? The Board concluded that they were neither one:
The concept of a “construction labourer” is not a “default” option for use in certification applications under section 146(3) of the Act [now section 158(5)]. 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 plumber’s 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 plumber’s apprentice on that date, lawfully or otherwise, then he cannot be considered to be a “construction labourer” for the purposes of the application.
So these construction workers were held to be neither “labourers” nor “plumbers”. Nor indeed did they fit into any other construction industry/craft bargaining unit. According to the Board, there was no craft bargaining unit into which they could be placed. They could not be in a “plumbers’ unit”, because applying Irvcon/Marsil they lacked the required licences. But they could not be in any other craft unit, because they were doing plumbing work on the date of the application – not the work of some other craft. And they weren’t unskilled labourers either.
What is the legal effect of this ruling on the individuals in question, should they wish to organize and bargain collectively? This is what the Board said:
The 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 plumber’s apprentices in contravention of the TQAA.
In other words, a failure to comply with the licensing or apprenticeship arrangements described in the TQA, not only excludes them from the grouping to which they would be attached by reason of their skills and work functions, but also prevents employees from exercising the right to bargain collectively under the Labour Relations Act at all - even though the TQA has nothing to do with collective bargaining, and the Ministry responsible for its administration does not seem to be unduly concerned about the “unlawfulness” that is so critical to the Board’s reasoning.
In our view, this too is a curious consequence - as well as one not obviously consistent with the scheme of the Labour Relations Act. Why should the absence of a license deprive a group of individuals of the right to engage in collective bargaining altogether? To return to the scenario in B.C. Meck: why “should” a group of unlicensed but skilled tradesmen (visiting from Quebec) be precluded from engaging in any collective bargaining at all, because they have not (or have not yet) met the licensing requirements of the TQA? And what of fully-qualified tradesmen who let their licensing lapse for some reason, but continue to work? Do they therefore move outside of the scope bargaining unit – and incidentally, outside of the scope of the relevant collective agreement, which, in the construction industry, is typically confined to that craft? Do they too lose their collective bargaining rights, until they have come back into compliance with the TQA?
With respect, these are rather odd results, which this panel of the Board would not readily embrace unless the Board were legally compelled to do so.
But is it?
V – Some departures from the Irvcon/Marsil approach: old and new
Not all panels of the Board have been equally sanguine about an approach in which the result under the Labour Relations Act, is driven by a rigid application of the TQA.
N. C. Sheet Metal, [1995] OLRB Rep. Mar. 333 involved an application for certification in which the sheet metal workers’ union sought to represent its standard craft bargaining unit. However, there, as here, there were some individuals doing sheet metal work who were not in compliance with the TQA – in that case, because they had allowed their certificates of qualification to lapse. Strictly speaking, therefore, they were working “unlawfully”. They fell within the Irvcon/Marsil rationale. But should they be excluded from the sheet metal workers’ bargaining unit (and on the analysis of Rolan Plumbing, from collective bargaining altogether)? The Board described the situation in a long passage to which we might usefully refer:
The applicant is a "construction trade union" that according to established trade union practice represents sheet metal workers. The "craft unit" applied for by the applicant is its "standard craft unit" and is appropriate for collective bargaining.
The employees affected by this application were hired by the company as "sheet metal workers". At all material times they were doing sheet metal workers' work - that is work which falls within the sheet metal trade and would ordinarily be done by a journeymen sheet metal worker or a registered sheet metal apprentice. Each of the employees in the union's proposed unit is either a registered apprentice or has earned a Certificate of Qualification in the sheet metal work trade, issued pursuant to the Apprenticeship and Tradesmen’s Qualification Act (i.e. they have completed the required five year program of training and experience necessary to become a qualified/certified "sheet metal worker").
There is no dispute that a significant majority of the employees affected by this application wish to be represented by the union in a collective bargaining relationship with their employer. The problem is that three of those employees have allowed their Certificates to lapse for non-payment of fees. Those employees have continued to work for the employer as "sheet metal workers", they have been paid as a "sheet metal worker", and they have continued to do "sheet metal work"; moreover no one argues that they were no longer capable of performing the work to which they had been assigned. But it is also not disputed that on the date the union applied for certification, their Certificates of Qualification were not in good standing.
The expiry of the employees' certificates some months prior to the certification application had no practical affect on their work situation. They continued to work for NC Sheet Metal, as they had in the past, doing the same work that they did before. Indeed, the practice of the Ontario Training and Adjustments Board is to permit the holder of Certificate of Qualification that has expired to make application for its renewal after such expiry. Upon payment of the prescribed fee, a receipt is issued to the applicant which serves as proof of renewal pending a renewed Certificate of Qualification being prepared and forwarded by ordinary mail.
It is a little difficult to square the prescribed fee schedule with the old and new expiry dates on the Certificates for the disputed employees in this case. It appears, though, that as long as the tradesman is prepared to pay the arrears and any current fees, the Certificate is returned to "good standing" as if there had been no dereliction.
We were told that, in practice, a Ministry of Labour [sic] Enforcement Officer would not direct a worker off the site merely because he did not hold a valid subsisting Certificate. Instead, the inspector would provide the worker with a period of time to pay the required renewal fee to make the Certificate current. There is no evidence that any worker with a lapsed Certificate has ever been prosecuted, penalized, or prohibited from working - provided that he paid the required renewal fees within a reasonable period of time. In other words, the agency charged with the responsibility of insuring that workers have a valid Certificate of Qualification will not insist on their removal from the work site if they do not; nor does anyone suggest that the workers qualifications, skills or trade identification is in any way related to the non payment of annual fees.
About two weeks after the date of the application for certification, the employees with lapsed certificates paid the required renewal fees and were issued a receipt which had the effect of making their certificates current as of that date.
IV
The employer argues that the three disputed individuals were not "sheet metal workers" properly included in the union's proposed bargaining unit because they did not have current Certificates of Qualification on the date that the union applied for certification. The employer relies upon the decisions of the Board in O.J. Pipelines Limited, [1989] OLRB Rep. Sept. 976, P & M Electric (1982) Ltd., [1989] OLRB Rep. June 638 and, more recently, Gorf Contracting Limited, [1991] OLRB Rep. April 483. In each of those cases the Board ruled that only tradesmen who were journeymen or apprentices in the trade, within the meaning of the Apprenticeship Act [or the Apprenticeship and Tradesmen’s Qualifications Act] on the date of the application, were eligible to be in the craft bargaining unit.
In O.J. Pipelines, P & M Contracting and Gorf, the Board rejected the submission that it should determine the issue solely on the basis of the work that the individuals were doing. The Board noted that when dealing with a certified trade, its "craft" bargaining unit determinations should be consistent with the legally specified qualifications for that trade - particularly under the provincial ICI bargaining scheme, where the designation orders specify the trades which "belong" to each employee bargaining agency, [see O.J. Pipelines at paragraph 7]. Thus, in P & M Electric, supra, the Board commented:
In our view, it would be inconsistent with the for Apprenticeship and Tradesmen’s Qualification Act for the Board to find that persons who are neither qualified journeymen 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. ... 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 can not 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 Qualifications Act.
We agree with the results and the reasoning in these decisions. But the instant case is distinguishable. Here, the individuals in question are qualified journeymen, who have received the necessary Certificate of Qualification. They share a community of interest with their fellow workers in the proposed bargaining unit, and the evidence is that the failure to pay the prescribed fees, does not prevent them from working, nor require their removal from a job provided (as they have done) they bring their Certificates into good standing by paying the outstanding remittances.
This is not a case like O.J. Pipelines where the disputed individuals had never been properly qualified and accordingly were always prohibited from doing the work in question. Here the disputed employees are both journeymen sheet metal workers in a functional sense, and have clearly qualified for certification as such under the applicable legislation; moreover the practice under that legislation is not to attach immediate consequences to the non payment of periodic license fees, (i.e. the loss of a right to work at the trade for which the individual is qualified). In the absence of evidence that the regulatory agency attaches great significance to the employee's administrative default, we are most reluctant to do so - not least because it would produce post certification changes to the composition of the bargaining unit in a wholly idiosyncratic way, entirely unrelated to the purposes of either the Labour Relations Act or the Apprenticeship Act.
In our view, for the purpose of the bargaining unit determination under sections 6(3) [now9(3)] and 146 [now 158] of the Labour Relations Act, the disputed individuals are "journeymen sheet metal workers" employed in the bargaining unit on the application date. This determination is consistent with both labour relations realities and what we understand to be the actual practice under the legislation to which the employer refers.
In the result, workers who were undoubtedly members of the craft bargaining unit within the meaning of section 9(3) of the Labour Relations Act were included in that craft bargaining unit, despite the fact that they were not complying with the requirements of the Apprenticeship and Tradesmen’s Qualifications Act, and were working without a current licence – working “unlawfully”. However, in N.C. Sheet Metal, the Board was not unduly concerned about that. The Board held that the focus of the certification application was the wishes of employees to engage in collective bargaining, rather than the lawfulness or otherwise of particular work assignments. And to the extent that “community of interest” was a consideration in fashioning craft bargaining units, the Board found that that was a determination to be made, in accordance with section 9(3) of the Labour Relations Act, with reference to the work performed by the individual – not whether s/he held a valid license.
A similar reluctance to have an external statute drive the collective bargaining result, can be found in the Neivex Masonry Inc. decision, Board File No. 0715-97-R, decision released on July 4, 2000. There, too, the Board decided that the lawfulness of the worker’s employment, was not determinative of whether s/he was in the bargaining unit for collective bargaining purposes, (and thus entitled to vote for or against a trade union in a representation vote).
In Neivex, the Board had before it an application for certification, in which the union sought to represent a grouping of construction employees. However, one of those employees was a newcomer to Canada, whose employment was contrary to the federal Immigration Act. The employer argued that this individual’s employment was “unlawful”, and that therefore he should not be considered part of the bargaining unit, nor be entitled to participate in any representation vote conducted to test employee wishes. The employer relied upon the Marsil/Irvcon line of cases. This is how the Board responded:
To focus on the question of the application of other statutes which the Board does not administer would be to lose sight of the task in which the Board is engaged. One can envision many circumstances in which construction work could be performed in a manner which is in conflict with other statutes. If an employer commences work on one site contrary to zoning by-laws and without a building permit, would an applicant union be entitled to ask the Board to disregard all persons employed on that site for the purposes of determining the count in a bargaining unit, since the work performed there was “unlawful”? Specifically, dealing with the Immigration Act and Regulations, should an employee be excluded from the bargaining unit if, contrary to section 18(2) of the Regulations, he or she worked beyond the geographic restrictions set out in the authorization? Would it make any difference if he or she started to work for his or her employer in that area and travelled outside it in the course of his or her employment? What about the employee who commences to work under a time-limited work authorization and continues to work after it has expired? Does the state of the employee’s or the employer’s knowledge make a difference? These latter questions are all valid questions to be asked if one were enforcing the provisions of the Immigration Act Regulations. It would not be surprising if those charged with the enforcement of that statute considered them to be relevant considerations in promoting the purposes of that statute. However, the Board’s determination of employment status must be grounded in Labour Relations Act issues, not issues arising from the application or enforcement of other statutes. Since we have found that Mr. Paiva is an employee, that is the end of the inquiry for the purposes of this application for certification.
Neivex argues that this analysis is insufficient. It argues that the Board is obliged to act “in accordance with the general law” and points to the numerous decisions of this Board dealing with the impact of the Trades Qualification and Apprenticeship Act, R.S.O. 1990 ch. T-17 as amended (“TQAA”) on applications for certification in the construction industry, where the bargaining unit sought consists of persons who perform work in a trade designated by the TQAA as both certified and compulsory. Counsel relies on statements such as those in Marsil Mechanical Inc., [1997] OLRB Rep. July 636:
“On the other hand, in more than fifteen years of jurisprudence (beginning with Irvcon Roofing and 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?” (paragraph 14).
To the extent that Marsil Mechanical and cases like it are correct (and they may not be) the question to which the Board directed its attention in them was a very different one from this case. In those cases the Board dealt with which employees were included in a particular bargaining unit. That is, the Board was defining the boundaries of the unit. Thus the TQAA may have an impact on how the Board defines the “group of employees who are members of a craft by reason of which they are distinguishable from other employees” or may be relevant to the mandatory application of provincial collective agreements, by which the members of that craft “commonly bargain separately and apart from other employees (see section 9(3)). This is not the same as determining the lawfulness of employment, but rather looking at one factual and legal issue which has a bearing on the Board’s task under the Labour Relations Act in determining membership in a bargaining unit.
To be fair to counsel for Neivex, several decisions of the Board do not fit well with this analysis. Cases such as O. J. Pipelines Inc., [1989] OLRB Rep. Sept. 976 (para. 10), Heritage Mechanical, [1995] OLRB Rep. Mar. 272 (para. 34), and Rolan Plumbing, [1998] OLRB Rep. July 711 (para. 22) do not articulate any analysis beyond the question of the lawfulness of the employment of certain individuals. Indeed, that limited analysis seems to this panel of the Board to lead to some very strange results viewed from the perspective of the Labour Relations Act. In those cases the Board included (or was prepared to include) persons in a craft bargaining unit who were doing the work of the certified trade, but did not hold a valid Certificate of Qualification or Contract of Apprenticeship. The Board found that their employment was “lawful” as they fell within a statutory exemption for persons employed in a trade for less than 90 days. Prima facie, it would seem to this panel of the Board that there may well be a number of difficult issues (depending on the facts of each case) raised by applying this test [the Irvcon/Marsil approach] rigidly. It raises the potentially absurd specter of including in a craft bargaining unit a person with few skills and little experience in a particular trade or craft while excluding a person fully skilled in that trade or craft with years of experience, but who lacks the Certificate of Qualification. How such a result can be justified for the purpose of determining membership in a craft for the purposes of defining a craft bargaining unit is not at all obvious. It may well be that this issue will require a more detailed analysis when and if it arises again.
(emphasis added)
- The panel in Neivex, not only casts doubt on the correctness of the Marsil line of cases, but also identifies one of the anomalies to which we have referred above: a rigid reading of the TQA ends up including unlicensed individuals in the craft bargaining unit provided that they do not have much experience, but excludes fully competent tradesmen, who under the TQA itself are “journeymen” who are working at the trade and who may qualify for a C of Q, if they but apply for it. Hardly a sensible labour relations result, nor one consistent with the thrust of section 9 (3) of the Act.
VI – Discussion
One of the pillars of the Irvcon/Marsil analysis, is the proposition that unlicensed tradesmen do not share a “community of interest” with their licensed co-workers, performing the same work for the same employer. That was view expressed in P&M Electric. However, in our opinion, that proposition is simply not sustainable. Not only is “community of interest” not the test for craft bargaining units under the Labour Relations Act (where the real question is the application of section 9(3) and/or section 158 and the ministerial designations), but it is evident that unlicensed tradesmen do have common interests for collective bargaining purposes, regardless of their compliance or otherwise with licensing regulations – provided that they are regularly exercising the skills and doing the work of the craft. Moreover, as the terms of section 9(3) clearly indicate: craft bargaining units can include other employees associated in their work or bargaining with employee-members of the craft. That is what “community of interest ( a phrase not found in the statute) means in the context of craft bargaining units. And as we have already noted, even the provincial collective agreement does in fact cover persons who do not hold a provincial C or Q.
So in our view, it is wrong in principle and wrong in practice, to focus so rigidly and exclusively on the TQA. What matters is the work setting.
The institutional, historical, work, and collective bargaining considerations that inform the Board’s task under the Labour Relations Act, have nothing to do with adherence (or otherwise) to licensing regulations. The language of section 9(3) itself, makes it clear that the Board need not adopt an approach of craft purity. The Labour Relations Act does not require the Board to take this rigid approach to bargaining unit determination; and what is ironic about the Irvcon/Marsil approach, is that the Board does not in fact do so for the inexperienced group of newcomers, who happen to be in the 90 “grace period”. For them, it is sufficient that they were doing “trade work” on the day of the application.
The other pillar of the Irvcon/Marsil approach, is the suggestion that the Board must – or at least ought to – make the definition and composition of bargaining units, for collective bargaining purposes, under the Labour Relations Act, congruent with whatever collateral licensing requirements may apply to those workers, or their work. In E. S. Fox Limited, [1989] OLRB Rep. July 738, the Board put it this way:
The Apprenticeship Act is a statue of general application in the province of Ontario. In our view, its purpose is to regulate the training and qualifying of tradesmen, and to regulate the employment of persons in compulsory trades. Although it is not within the Board’s mandate to enforce the Apprenticeship Act per se, the Board is obligated to make decisions and proceed in ways which are not inconsistent with laws of general application which are specifically directed at matters with which the Board must be concerned in the course of exercising its powers or performing its duties under the Labour Relations Act (see: McLeod et al v. Egan et al (1974), 1974 CanLII 12 (SCC), 46 DLR (3d) 150 (SCC); Re Ontario Hydro and Ontario Hydro Employees Union, Local 1000 et al (1983), 1983 CanLII 1868 (ON CA), 41 O.R. (2d) 669 (OCA)).
But is this proposition correct, and are these judicial authorities apposite?
In our view the answer is no.
Both of the cases referred to in E.S. Fox, involved an operating incompatibility between the negotiated terms of a collective agreement and the provisions of a statute. The Court found that the collective agreement provisions were “unlawful” and thus “unenforceable”. The bargaining parties could not create a legally enforceable agreement, which was actually unlawful when statutory considerations were taken into account.
But that is not the situation here at all.
The question in the instant case is how one defines a craft bargaining unit and voting constituency for the purposes of a certification application under the Labour Relations Act; and whether the provisions of the TQA necessarily prescribe the composition of those employee groupings. The answer to that question will determine who can participate in the selection of a union bargaining agent, and perhaps who can benefit from any collectively negotiated terms and conditions of employment. It involves the Board deciding, for the purposes of certification (i.e. conducting a representation vote to test employee wishes) who should be considered to be a member of the craft – which is to say, how to apply the relevant provisions of the Labour Relations Act.
But the bargaining unit definition and composition for the purposes of certification (and voting) does not require a union or employer to assign work to anyone, nor authorize anyone to do work which may have been prohibited by a collateral statute. A Board determination to include unlicensed personnel in a craft bargaining unit for the purposes of certification does not authorize or condone illegality. It simply places people for collective bargaining purposes together with those whose work jurisdiciton they share.
Now, no doubt a tradesperson who wants to do the work of a compulsory certified trade may have to come into compliance with the TQA, or s/he will not be able to work in what has become a “collective bargaining unit”. Nor will s/he enjoy the fruits of collective bargaining , as recorded in the negotiated collective agreement that pertains to that bargaining unit. S/he will have to comply with the law, as any employee would have to do, whether involved in collective bargaining or not. If s/he does not, she may risk being removed from the job site (or like the disputed employees in this case, having to go to the Ministry to obtain the required “papers). In fact, that would be so for the disputed workers here regardless of the disposition of the certification application, because, as they now know, they cannot continue to work as “electricians” without getting the necessary “papers”.
But that is not the same thing as suggesting that it is “unlawful” for the Board to put such individuals in the bargaining unit in the first place; or that it is “unlawful” to apply the words of section 9(3) equally, to those who are “licensed” and those who are not. In our view, it is not “unlawful”; nor is the Board obliged to apply the TQA in the manner suggested by the Irvcon/Marsil line of cases.
This is not to say that the TQA is irrelevant to the Board’s determination of who is an “electrician” or “electrician’s apprentice” under the Labour Relations Act. On the contrary, if an individual holds a C of Q or a contract of apprenticeship, that may be a very significant piece of evidence in establishing his/her status for certification purposes under the Labour Relations Act - it may help to characterize the “work” that s/he is doing on the application date, if there is a dispute about the craft category with which such work is normally associated. In the case of an apprentice (i.e someone holding an established contract of apprenticeship under the TQA, since one cannot really be an “apprentice” without it) it may actually broaden the way in which one looks at the work done on any given day by these “learners”, whom, one might be expect, would often be engaged in incidental duties or be acting as a the helper or observer of others. A contract of apprenticeship certainly shows the trade with which such individuals are normally associated, even if the work functions on any given day might look more like unskilled labour. In other words, a person doing what might otherwise look like “labourers work”, but holding an electrician’s contract of apprenticeship, is more likely to be assigned to an electrician’s bargaining unit, if the application for certification is made by the IBEW.
However, as the words of section 9(3) suggest: the determination of a craft grouping (be it electrician or otherwise) begins with the application of section 9(3) of the Act, read in light of the ministerial designations and other construction industry provisions; and that determination is based upon work functions on the day of the application - whether the craft grouping is one of the compulsory certified trades, or one of the numerous other trades which do not require compulsory licensing.
Holding a license is relevant to an individual’s status. But the absence of a license is not determinative.
To put the matter another way: the license may help confirm the trade status of an individual for collective bargaining purposes on the day of application, but it does not create that status; and there may be other forms of evidence which demonstrate that the disputed individual is within the parameters of the craft unit and voting constituency.
In summary then, we agree with the employer that the Irvcon/Marsil line of cases should be reconsidered. We have done so. And we conclude that it should no longer be followed.
In our view, the “status” of an individual, actively at work on the date of the application for certification, should be determined with reference to the work that s/he is doing on that day, whether or not that work is being performed “lawfully” in some sense, and whether or not the individual has the required “papers”. The C of Q and the contract of apprenticeship are only pieces of evidence that help characterize the work , and thus the status, of the disputed individual. The absence of a C of Q issued pursuant to the TQA, does not mean that someone cannot be an “electrician” for the purposes of the Labour Relations Act. For the reasons outlined earlier, we prefer this work-based test, which in our view, avoids some of the difficulties and anomalies to which we have referred.
Let us be clear. We think that it was open to the Board in the early 1980s to say that one cannot BE an electrician without a C of Q, and one certainly cannot BE an apprentice without a contract of apprenticeship. Indeed, that formula (rather than the one elaborated in Marsil with its curious 90-day window) has the real advantage of creating a “bright line test” for certification purposes. It remains very attractive from that perspective. The problem with it is that it ignores what seems to be going on in the industry, and rather artificially divides members of the craft by reference to the papers they hold rather than the work that they do. And it creates the kind of anomaly illustrated by this case: workers who have been doing electrical work for years, and who the Ministry confirms are electricians based upon that work, are excluded from the unit because they do not have the required papers until later. Yet on any collective bargaining analysis, these employees should be grouped together for collective bargaining purposes.
So on balance, we prefer the work-based test mentioned in section 9(3) rather than whether someone is working lawfully, or has the required “papers”.
Does this shift of approach impose an undue burden upon craft unions seeking to represent unorganized groupings of skilled workers? In our view, the answer is no. Whether or not licensing is part of the equation, (for most trades it isn’t) it will still be necessary to characterize the work done by individuals on the date of application; and if anything, that process may be simplified somewhat if the union need only focus on what the worker is doing on the application date – and if the Board is not obliged to also examine what a disputed worker might have been doing (perhaps with some other employer) in the 90-day window preceding the application date. For as the many cases in this area amply illustrate: the Irvcon/Marsil approach does not in fact produce a “bright line test” which permits the Board to characterize work or readily distinguish distinct craft groupings. But it does produce litigation and anomalous results, as in Rolan Plumbing.
All that the present decision does, therefore, is return the Board to the historical and functional analysis contemplated by section 9(3), and place the compulsory certified trades on the same plane as other craft groupings for which there is no obligatory licensing system.
VII- The situation in this case re-examined
With perhaps one exception, all of the disputed individuals in the instant case are “electricians” as that term would ordinarily be understood, having regard to their work functions. They are among the group of individuals who “exercise technical skills by reason of which they are distinguishable from other employees …”. Licensing aside, they are members of the “craft” of electricians. Indeed, any doubt about that may have been resolved (perhaps ironically given the argument in this case) by the actions of the Ministry, which granted them a provisional C of Q. The Ministry has in fact confirmed that they were “electricians” (under the TQA) by issuing “electricians’ papers” in respect of the work that they were doing, and had been doing for some time.
Whether from the perspective of section 9(3), or section 158 and the designations, or common sense, someone like Mr. Pavolich is an “electrician”. Mr. Pavolich, it will be recalled, was working at the Victoria Yard, performing wiring – electrician’s work - on the date of the application for certification. He has been working as an electrician for decades. He worked as an electrician in Yugoslavia from 1984 until 1988. He emigrated to Canada and worked for Thomson-Electric as an electrician from 1990-1995. He was working as an electrician for Quadracon. And he received a provisional certificate of qualification, electrician-construction and maintenance, on November 29, 1999, following the filing of a statutory declaration affirming that he had been regularly and routinely performing the duties of an electrician. Indeed, were it not for the Irvcon/Marsil line of cases, there is really no doubt whatsoever that a person like Mr. Pavolich would be treated as what he actually is: an electrician.
However, for the reasons outlined above, we do not think that it is necessary or appropriate for the Board to embark upon an enquiry about licencing and legality under the TQA. In our view, the test is the work that the individual was doing on the application date, and reference to licencing is only necessary if there is some dispute about how to characterize that work. In this regard we do not think that it is necessary to distinguish between the compulsory certified trades, and those that are not.
VII - Disposition
For the foregoing reasons, this panel is persuaded that the challenged employees are properly regarded as “electricians”, if on November 23, 1999, the date on which the certification application was filed, they were working as electricians or doing electricians’ work – whether or not they had electrician’s papers. If they meet that simple work-based test (which we understand the parties have agreed that they do), they are entitled to cast a ballot in the representation vote.
The application is therefore referred to the Registrar and the parties for further consideration and the counting of the ballots, in light of these reasons and the agreed statement of fact.
In our view, this decision should resolve the parties’ dispute and, in all likelihood, will permit a final disposition of this application. To the extent that it does not, the parties may make further representations to the Board.
This panel is not seized.
“R. O. MacDowell”
for the Board