Reference from The Minister of Labour re Certain Designations of Certain Employee and Employer Bargaining Agencies, 1980 CanLII 965

Reference from The Minister of Labour re Certain Designations of Certain Employee and Employer Bargaining Agencies

Court File No.: 1882-79-M Date: 1980-04-09 Ontario Labour Relations Board

Re: In The Matter of a Reference from The Minister of Labour to The Ontario Labour Relations Board under Section 127(4) of the Labour Relations Act; and in the Matter of Certain Designations of Certain Employee and Employer Bargaining Agencies.

Before: George W. Adams, Chairman, Ron A. Furness, and Ian C. A. Springate, Vice-Chairmen and Board Members H. J. F. Ade and C. A. Ballentine.

Appearances: Donald F. O. Hersey and Frank Lavalle for Intertior Systems Contractors Association of Ontario; Joseph Liberman and Fred Beldham for The Acoustical Association of Ontario; A. M. Minsky, N. LeBlanc and H. K. Weller for The Ontario Acoustical and Drywall District Council, the United Brotherhood of Carpenters and Joiners of America; Harold F. CalEy and Robert Reid for Ontario Provincial Council, United Brotherhood of Carpenters and Joiners of America; B. W. Binning and Leo Howes for Labour Relations Bureau, Ontario General Contractors Association.

DECISION OF THE BOARD

1This is a reference from the Minister of Labour to the Board pursuant to section 127(4) of The Labour Relations Act. Section 127 provides:

"(1) The Minister may, upon such terms and conditions as the Minister considers appropriate,

(a) designate employee bargaining agencies to represent in bargaining provincial units of affiliated bargaining agents, and describe those provincial units;

(b) notwithstanding an accreditation of an employers' organization as the bargaining agent of employers, designate employer bargaining agencies to represent in bargaining provincial units of employers for whose employees affiliated bargaining agents hold bargaining rights, and describe those provincial units.

(2) Where affiliated bargaining agents that are subordinate or directly related to different provincial, national or international trade unions bargain as a council of trade unions with a single employer bargaining agency for a province-wide collective agreement, the Minister may exclude such bargaining relationships from the designations made under subsection 1, and subsection 2 of section 133 shall not apply to such exclusion.

(3) Where a designation is not made by the Minister of an employee bargaining agency or an employer bargaining agency under subsection 1 within sixty days after this section comes into force, the Minister may convene a conference of trade unions, councils of trade unions, employers and employers' organizations, as the case may be, for the purpose of obtaining recommendations with respect to the making of a designation.

(4) The Minister may refer to the Board any question that arises concerning a designation, or any terms or conditions therein, and the Board shall report to the Minister its decision on the question.

(5) Subject to sections 128 and 129, the Minister may alter, revoke or amend any designation from time to time and may make another designation.

(6) The Regulations Act does not apply to a designation made under subsection 1."

2A request has been made to the Minister by the Ontario Acoustical and Drywall District Council, United Brotherhood of Carpenters and Joiners of America for designation as the employee bargaining agency to represent in bargaining a provincial unit of affiliated bargaining agents. This reference concerns the structure of bargaining for employees engaged in the erection and installation of acoustics, drywall, lathing and related interior systems in the industrial, commercial and institutional sector of the construction industry. In the reference to the Board, the Minister has indicated that the parties referred to in the appearances have apprised the Minister of the following facts and the Minister has referred three questions to the Board:

"On January 30th, 1978, the Minister of Labour pursuant to section 127(l)(a) of The Labour Relations Act designated the Wood, Wire and Metal Lathers' International Union, (hereinafter referred to as the 'Lathers International') and the Wood, Wire and Metal Lathers' International Union, Local 562, (hereinafter referred to as 'Local 562') as the employee bargaining to represent in bargaining all journeymen and apprentice lathers represented by the Lathers International, or Local 562, or any other local of the Lathers International which in the future may be chartered to represent journeymen and apprentice lathers in the industrial, commercial and institutional sector of the construction industry. Attached herewith as Schedule 'A' to this Reference is a copy of the said designation.

On January 30th, 1978, the Minister of Labour pursuant to section 127(1)(b) of The Labour Relations Act designated the Interior Systems Contractors Association of Ontario, (hereinafter referred to as 'VISCA' as the employer bargaining agency to represent in bargaining a provincial unit of employers for whose employees the Lathers International, Local 562, or any other local of the Lathers International chartered to represent journeymen and apprentice lathers holds bargaining rights in the industrial, commercial and institutional sector of the construction industry. Attached herewith as Schedule 'B' to this Reference is a copy of the said designation.

On March 3rd, 1978, the Minister of Labour, pursuant to section 127(1)(a) of The Labour Relations Act designated the United Brotherhood of Carpenters and Joiners of America, (hereinafter referred to as 'the Carpenters') and the Ontario Provincial Council of the United Brotherhood of Carpenters and Joiners of America, (hereinafter referred to as 'the Ontario Provincial Council') as the employee bargaining agency to represent in bargaining all journeymen and apprentice carpenters, other than millwrights, represented by the Carpenters, or the Ontario Provincial Council, or the Ontario Acoustical and Drywall District Council, or, inter alia, certain other affiliated bargaining agents including the United Brotherhood of Carpenters and Joiners of America, Local 1617, (hereinafter referred to as 'Local 1617'), or any other local of the Carpenters which in the future may be chartered to represent journeymen and apprentice carpenters, other than millwrights, in the industrial, commercial and institutional sector of the construction industry. Attached herewith is Schedule 'C' to this Reference is a copy of the said designation.

On March 3rd, 1978, the Minister of Labour, pursuant to section 127(1)(b) of The Labour Relations Act designated the 'United Brotherhood of Carpenters and Joiners of America Employer Bargaining Agency' consisting of the Acoustical Association of Ontario, the Caulking Contractors Association of Ontario, the Labour Relations Bureau of the Ontario General Contractors Association, the Resilient Flooring Contractors Association of Ontario, and the Industrial Contractors Association of Canada as the employer bargaining agency to represent in bargaining a provincial unit of employers for whose employees the Carpenters, or the Ontario Provincial Council, or the Ontario Acoustical and Drywall District Council, or inter alia, certain other affiliated bargaining agents including Local 1617, or any other local of the Carpenters which in the future may be chartered to represent journeymen and apprentice carpenters, other than millwrights, holds bargaining rights in the industrial, commercial and institutional sector of the construction industry. Attached herewith as Schedule 'D' to this Reference is a copy of the said designation.

In 1979, the Carpenters and the Lathers International entered into an agreement of affiliation wherein the Lathers International agreed to affiliate with the Carpenters. Pursuant to the affiliation arrangement, on September 1st, 1979, the Carpenters issued a charter for Local 562L of the United Brotherhood of Carpenters and Joiners of America, (hereinafter referred to as 'Local 562L') with the understanding that Local 562L was the successor of Local 562. By reason of the said succession, Local 562L acquired the rights, privileges, duties, bargaining rights and jurisdiction formerly held by Local 562.

Local 1617 and Local 562L entered into merger arrangements. Effective January 1st, 1980, as a result of the said merger arrangements, the Carpenters issued a charter for Local 675 of the United Brotherhood of Carpenters and Joiners of America, (hereinafter referred to as 'Local 675').

The Ontario Acoustical and Drywall District Council, United Brotherhood of Carpenters and Joiners of America, requests the Minister of Labour to designate it as the employee bargaining agency to represent in bargaining all employees engaged in the erection and installation of acoustics, drywall, lathing and related insulation systems, represented by the Ontario Acoustical and Drywall District Council, United Brotherhood of Carpenters and Joiners of America, or any of its affiliated bargaining agents in the industrial, commercial and institutional sector of the construction industry. The Labour Bureau of the Ontario General Contractors Association and the Ontario Provincial Council have advised the Minister of their objection to the said request for designation.

NOW THEREFORE having regard to the circumstances outlined above and the request of the Ontario Acoustical and Drywall District Council, the Minister of Labour considers it advisable to refer the following questions to the Ontario Labour Relations Board pursuant to section 127(4) of The Labour Relations Act:

(i) Is the designation by the Minister of Labour of the Lathers' International as the employee bargaining agency and the designation by the Minister of Labour of ISCA as the employer bargaining agency still effective in view of the affiliation and merger between the Lathers International and the Carpenters, and between Locals 562, 562L, 675, and 1617, particularly having regard to Schedules 'C' and 'D'?

(ii) Notwithstanding the answer to question (i), is it appropriate to revise the said designation for employees engaged in the erection and installation of acoustics, drywall, lathing and related insulation systems represented by the Carpenters and for the employers of the said employees?

(iii) If separate designations are appropriate, what parties should be represented in the said designations?"

3Schedules "A","B", "C" and "D" to the reference of the Minister are in the following form:

"Schedule 'A'

EMPLOYEE BARGAINING AGENCY DESIGNATION

Pursuant to clause a of subsection 1 of section 127 of The Labour Relations Act, R.S.O. 1970, c. 232, as amended, I hereby designate The Wood, Wire and Metal Lathers' International Union and The Wood, Wire and Metal Lathers' International Union, Local 562 as the employee bargaining agency to represent in bargaining all Journeymen and Apprentice Lathers, represented by the following affiliated bargaining agents:

1. The Wood, Wire and Metal Lathers' International Union; or

2. Local Union 562 of The Wood, Wire and Metal Lathers' International Union; or

3. any other Local of The Wood, Wire and Metal Lathers' International Union which in the future may be chartered to represent Journeymen and Apprentice Lathers,

(which Unions are hereinafter collectively referred to as 'the Unions'), in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario, and without limiting the generality of the foregoing, bargaining as aforesaid in relation to bargaining rights of the Unions or any of them and the performance of work described in or covered by:

(a) certificates of the Ontario Labour Relations Board granted to the Unions or any of them;

(b) voluntary recognition agreements between the Unions or any of them and any employers;

(c) collective agreements to which the Unions or any of them have been or are party to or bound by, covering the industrial, commercial and institutional sector of the construction industry in the Province of Ontario, and without limiting the generality of the foregoing, the collective agreement made between Local 562 of The Wood, Wire and Metal Lathers' International Union and Interior Systems Contractors Association of Ontario,

and such similar or other collective agreements to which the Unions or any of them are party to or bound by.

'Bette Stephenson'

Bette Stephenson,

M.D.

Minister

January30, 1978

January 30, 2978

Schedule ‘B’

EMPLOYER BARGAINING AGENCY DESIGNATION

Pursuant to clause a of subsection 1 of section 127 of The Labour Relations Act, R.S.O., 1970, c. 232, as amended, I hereby designate the Interior Systems Contractors Association of Ontario as the employer bargaining agency to represent in bargaining all employers whose employees are represented by the following affiliated bargaining agents:

1. The Wood, Wire and Metal Lathers' International Union, or

2. Local Union 562 of The Wood, Wire and Metal Lathers' International Union; or

3. any other Local of The Wood, Wire and Metal Lathers' International Union which in the future may be chartered to represent Journeymen and Apprentice Lathers,

(which Unions are hereinafter collectively referred to as 'the Unions'), in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario, and without limiting the generality of the foregoing, to represent in bargaining as aforesaid, all employers bound by or parties to:

(a) certificates of the Ontario Labour Relations Board granted to the Unions or any of them;

(b) voluntary recognition agreements with the Unions or any of them;

(c) collective agreements to which the Unions or any of them have been or are party to or bound by, covering the industrial, commercial and institutional sector of the construction industry in the Province of Ontario, and without limiting the generality of the foregoing, the collective agreement made between Local 562 of The Wood, Wire and Metal Lathers' International Union and Interior Systems Contractors Association of Ontario,

and such similar or other collective agreements to which the Unions or any of them are party to or bound by.

'Bette Stephenson'

Bette Stephenson,

M.D.

Minister

January30, 1978

Schedule 'C'

EMPLOYEE BARGAINING AGENCY DESIGNATION

Pursuant to clause a of subsection 1 of section 127 of The Labour Relations Act, R.S.O. 1970, c. 232, as amended, I hereby designate the United Brotherhood of Carpenters and Joiners of America and the Ontario Provincial Council of the United Brotherhood of Carpenters and Joiners of America as the employee bargaining agency to represent in bargaining all Journeymen and Apprentice Carpenters other than Millwrights, represented by the following affiliated bargaining agents:

1. United Brotherhood of Carpenters and Joiners of America; or

2. Ontario Provincial Council of the United Brotherhood of Carpenters and Joiners of America; or

(1) the Carpenters District Council of Toronto and Vicinity, or the

(2) Lake Ontario District Council, or the

(3) Western Ontario District Council, or the

(4) Ontario Acoustical and Drywall District Council; or

3. the following Local Unions: 18, 27,38,93, 249,397,446,494,572, 666, 681, 785, 1071, 1133, 1256, 1304, 1316, 1450, 1617, 1669, 1747, 1946, 1963, 1988, 2041, 2050, 2222, 2451, 2466, 2480, 2482, 2486, 2965, 3227 or 3233 of the United Brotherhood of Carpenters and Joiners of America; or

4. or any other Local of the United Brotherhood of Carpenters and Joiners of America which in the future may be chartered to represent Journeymen and Apprentice Carpenters other then Millwrights,

(which Council and Unions are hereinafter collectively referred to as 'the Unions'), in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario, and without limiting the generality of the foregoing, bargaining as aforesaid in relation to bargaining rights of the Unions or any of them and the performance of work described in or covered by:

(a) certificates of the Ontario Labour Relations Board granted to the Unions or any of them;

(b) voluntary recognition agreements between the Unions or any of them and any employers;

(c) collective agreements to which the Unions or any of them have been or are party to or bound by, covering the industrial, commercial and institutional sector of the construction industry in the Province of Ontario.

'Bette Stephenson'

Bette Stephenson,

M.D.

Minister

March 3, 1978

Schedule "D"

EMPLOYER BARGAINING AGENCY DESIGNATION

Pursuant to clause b of subsection 1 of section 127 of The Labour Relations Act, R.S 0. 1970, c. 232, as amended, I hereby designate the United Brotherhood of Carpenters and Joiners of America Employer Bargaining Agency consisting of Acoustical Association of Ontario, Caulking Contractors Association of Ontario, Labour Relations Bureau of Ontario General Contractors Association, Resilient Flooring Contractors Association of Ontario and Industrial Contractors Association of Canada as the employer bargaining agency to represent in bargaining all employers whose employees are represented by the following affiliated bargaining agents:

1. United Brotherhood of Carpenters and Joiners of America; or

2. Ontario Provincial Council of the United Brotherhood of Carpenters and Joiners of America; or

(1) the Carpenters District Council of Toronto and Vicinity, or the

(2) Lake Ontario District Council, or the

(3) Western Ontario District Council, or the

(4) Ontario Acoustical and Drywall District Council; or

3. the following Local Unions: 18, 27, 38, 93, 249, 397, 446, 494, 572, 666, 681, 785, 1071, 1133, 1256, 1304, 1316, 1450, 1617, 1669, 1747, 1946, 1963, 1988, 2041, 2050, 2222, 2451, 2466, 2480, 2482, 2486, 2965, 3227 or 3233 of the United Brotherhood of Carpenters and Joiners of America; or

4. any other Local of the United Brotherhood of Carpenters and Joiners of America which in the future may be chartered to represent Journeymen and Apprentice Carpenters other than Millwrights,

(which Council and Unions are hereinafter collectively referred to as 'the Unions'), in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario, and without limiting the generality of the foregoing, to represent in bargaining as aforesaid, all employers bound by or parties to:

(a) certificates of the Ontario Labour Relations Board granted to the Unions or any of them;

(b) voluntary recognition agreements with the Unions or any of them;

(c) collective agreements to which the Unions or any of them have been or are party to or bound by, covering the industrial, commercial and institutional sector of the construction industry in the Province of Ontario.

This designation is subject to the condition that the employer associations which have formed the United Brotherhood of Carpenters and Joiners of America Employer Bargaining Agency shall file with my office an executed copy of a satisfactory constitution for the employer bargaining agency before April30, 1978.

'Bette Stephenson' Bette Stephenson,

M.D.

Minister"

March 3, 1978

4The parties which appeared before the Board filed briefs and addressed argument to the Board with respect to the reference. A joint brief was filed by the Ontario Acoustical and Drywall District Council, the United Brotherhood of Carpenters and Joiners of America (the "OADWDC") the Interior Systems Contractors Association of Ontario (the "ISCA") and The Acoustical Association of Ontario (the "AAO"). The Ontario Provincial Council, United Brotherhood of Carpenters and Joiners of America (the "OPC") and the Labour Relations Bureau of the Ontario General Contractors Association (The "OGCA") filed separate briefs.

5There is no real dispute among the parties on the facts which form the background to this reference. Prior to the mid-1960's, most interior walls were constructed of metal lath to which was applied two coats of plaster. Work connected with the preparation of the lath was performed by members of the lathing trade. The craft union pertaining to this trade was the Lathers' International. By 1970 the lath-plaster system had largely been replaced by metal furring components to which drywall board is attached. The skill of the lather could fairly easily be adapted to this new process and lathers in fact became actively involved in the installation of drywall. Lathers also became active in a related type of work, namely, the installation of acoustical ceiling systems. These systems generally involve the use of metal furring to which are attached finished panels or tiles. Throughout the 1970's most of the work performed by the lathers involved the installation and erection of drywall and acoustical ceiling systems.

6In 1970 the Drywall Contractor Association of Ontario was formed to represent employers engaged in drywall and acoustic ceiling installation. On November 26, 1970, this Association voluntarily recognized Lathers' Local 562 as bargaining agent for those employees of Association members who were engaged in the installation of drywall and acoustic ceiling systems. On August 15, 1972 the Drywall Contractor Association of Ontario merged with the Metropolitan Lathing Contracting Association, an association of lathing contractors. Resulting from this merger was the formation of ISCA. On April 30 1974, ISCA entered into a province-wide collective agreement with Lathers' Local 562 covering tradesmen engaged in the erection and installation of acoustics, drywall and lathing in both the residential sector and industrial, commercial and institutional sector of the construction industry. On April 30 1977 the same parties entered into a new collective agreement which by its terms is effective from that date until April 30, 1980.

7The Lathers were not the only tradesmen to work on the installation and erection of drywall and acoustical systems. Carpenters represented by the United Brotherhood of Carpenters and Joiners of America ("the United Brotherhood") were also working in this field. Although some of the work was, and still is, performed by general carpenters, much of the work came to be performed by members of the United Brotherhood who engaged exclusively in this type of work. In 1963 the United Brotherhood chartered Local 1747 as a specific drywall and acoustic local for the Toronto area. In the ensuing rivalry between the United Brotherhood and the Lathers' International for acoustic and drywall work, the United Brotherhood benefited from the movement of a number of lathers away from the Lathers' International into the United Brotherhood. It appears that in 1971 the great majority of members of Lathers' Local 423 in Ottawa joined the United Brotherhood and were included in a newly chartered local, Local 2041. This local was specifically formed to represent tradesmen engaged in lathing, drywall and acoustic ceiling work. In 1973 members of the Lathers' Local in London joined the United Brotherhood and they likewise were included in a new drywall and acoustic local, namely, Local 1316. In the same year the majority of the members of Lathers' Local 97 of approximately two hundred and fifty tradesmen joined the United Brotherhood's Local 1747, the existing drywall and acoustic local of the United Brotherhood. In 1974 the United Brotherhood chartered Local 1617 out in Barrie, but covering the Metropolitan area. This Local appears to have replaced Local 1747 as the drywall and acoustic local in and around Metropolitan Toronto.

8In 1972 the OPC entered into a collective agreement with the AAO, an association of employers engaged in the drywall and acoustic industry. Some nineteen Ontario locals and district councils of the United Brotherhood agreed to be bound to this agreement for drywall and acoustic work. On January 1, 1975 the United Brotherhood chartered the OADWDC which was comprised not only of the three drywall and acoustic locals in Toronto, Ottawa and London, but also of a number of "mixed" locals, that is to say, locals whose members performed not only general carpentry work but also caulking, resilient floor work and drywall and acoustic work. The OADWDC entered into two successive collective agreements with the AAO, the first covering the period of May 1, 1975 to April30, 1977, the second covering the period of May 1, 1977 to April 30, 1978.

9In 1977, The Labour Relations Act was amended to provide for a system of province-wide bargaining in the industrial, commercial and institutional sector of the construction industry. (The Labour Relations Amendment Act, 1977, S.O. 1977, c 31) On January 30, 1978, the Minister of Labour designated the Lathers' International Union and Lathers' Local 562 as the employee bargaining agency to represent lathers in collective bargaining. On the employer side the Minister designated ISCA as the corresponding employer bargaining agency. On March 3, 1978 the Minister made the appropriate designations with respect to the United Brotherhood. The United Brotherhood and its OPC were designated as the relevant employee bargaining agency, while some five employer associations, including the AAO, were together designated as the employer bargaining agency. The OADWDC, as well as the individual locals belonging to the Council, were expressly covered by these carpenter designations.

10Pursuant to the scheme of province-wide bargaining, the OPC of the United Brotherhood and the carpenters employer bargaining agency entered into a provincial collective agreement which is in effect from September 6, 1978 until April 30, 1980. Attached to the collective agreement are three appendices, namely, a caulking workers' appendix, a resilient floor workers' appendix and an acoustic and drywall workers' appendix. The acoustic and drywall workers' appendix sets out working conditions and wages for members of locals affiliated to the OADWDC when employed by acoustic and drywall contractors. It should be noted that when general contractors who are bound to the carpenters' provincial agreement perform their own drywall and acoustic work, the work is generally performed by members of a "mixed" local under the general provisions of the carpenters' collective agreement, as opposed to the terms set out in the acoustic and drywall workers' appendix.

11On April 13, 1979, the United Brotherhood and the Lathers' International entered into an agreement whereby the Lathers' International would become affiliated with the United Brotherhood. On September 1, 1979, the United Brotherhood issued a charter to the former Lathers' Local 562, and it became Local 562L of the United Brotherhood. This Local in turn merged with Local 1617, the Barrie-Toronto drywall and acoustic local of the United Brotherhood, to become a new local, namely, Local 675. Local 675 is a member of the OADWDC and, as such, is one of three locals with the OADWDC comprised only of acoustic and drywall workers. As previously indicated, most of the locals belonging to the OADWDC are "mixed" locals.

12The erection and installation of acoustics, drywall, lathing and related interior systems in the industrial, commercial and institutional sector of the construction industry is included within the scope of the collective agreement between the OPC and the carpenters' employer bargaining agency and, in particular, the acoustic and drywall workers' appendix thereto. The erection and installation of acoustics, drywall, lathing and related interior systems falls within the generally recognized jurisdiction of the United Brotherhood and is included within the training programme for apprenticeship for both the general carpenters and the lathers. The work performed by former members of the Lathers' Local 562 is identical with the work described in the acoustic and drywall workers' appendix of the collective agreement between the OPC and the carpenters' employer bargaining agency. The affiliation of the Lat hers' International with the United Brotherhood has not brought any new or different skills into the United Brotherhood.

13In Ontario, not only do employers who are general contractors perform the erection and installation of acoustics, drywall, lathing and related interior systems in the industrial, commercial and institutional sector of the construction industry, but members of mixed locals of the United Brotherhood also perform this work both for the general contractors and subcontractors. Prior to the existence of the statutory scheme for province-wide bargaining in the industrial, commercial and institutional sector of the construction industry, in many of the collective agreements of councils and locals of the United Brotherhood the erection and installation of acoustics, drywall, lathing and related interior systems was specifically enumerated as the work of carpenters.

14Millwrights' locals of the United Brotherhood have bargained with the Association of Millwright Contractors for approximately eighteen years on a province-wide basis. During this period the millwrights' work of installing machinery has never been covered by the terms and conditions of the various other collective agreements of councils and locals of the United Brotherhood throughout Ontario. There is little or no interchange between carpenter members and millwright members of the United Brotherhood.

15Subsequent to the affiliation of the Lathers' International with the United Brotherhood, the OADWDC requested the Minister to designate it as an employee bargaining agency to represent in bargaining employees engaged in the erection and installation of acoustics, drywall, lathing and related interior systems. The OADWDC in effect desires to bargain on behalf of both former lathers and other members of the United Brotherhood belonging the OADWDC when they are engaged in acoustic and drywall work. This request is supported by ISCA and AAO. On the other hand, the OGCA and the OPC have requested the Minister to include the former lathers and other members of the United Brotherhood belonging to the OADWDC as part of one expanded designation which is currently expressed as Schedules "C" and "D".

16The OPC initially raised objection to the power of the Minister to amend and revoke any designation under section 127. There is no merit in this objection. Section 127(5) clearly gives the Minister the power to alter, revoke or amend any designation subject to the provisions of sections 128 and 129. While the Minister has the power set forth in section 127(5) he also has the power under section 127(4) to refer to the Board any question that arises concerning a designation or any terms or conditions therein. The Minister may exercise a general supervisory role under section 127 subject to the provisions of sections 128 and 129. There was nothing before the Board which indicated that any applications under either section 128 or section 129 had been filed with the Board. The Board finds that there is no provision of the Act which restricts the power of the Minister to exercise his discretion under section 127.

17The OADWDC argued that employers and employees who perform the work in question are entitled to a separate set of designations apart from a set of designations for general carpentry work. The OADWDC advanced the proposition that one of the criteria for such separate sets of designations is a history of separate collective bargaining between different parties and referred to the language of section 127(1)(a)(b) in support of this proposition. Reference was made to the length of such separate collective bargaining. The OADWDC also argued that a second criterion was the existence of separate skills and trade or work and whether there are differences in their training. As a third criterion it was argued that consideration should be given to the aspect of labour relations. The freedom of associations set forth in sections 3 and 4 of the Act was referred to and it was argued that the placing of different bargaining interests under one set of designations on a province wide basis was contrary to the wishes of the OADWDC. The Board was urged to read the Act in terms of free choice wherever possible. The OADWDC pointed out that since 1975 the Board had determined appropriate bargaining units for locals of the Lathers' International under the provisions of section 6(1) of the Act with respect to the work in question and argued that while such bargaining units were not craft bargaining units it was a significant change. It was pointed out that separate sets of designations existed with respect to the Labourers' International Union of North America with respect to the performance of pre-cast concrete work and it was argued that this reflected the separate history of bargaining in the performance of pre-cast concrete work. The OADWDC informed the Board that it was not interested in sustaining the set of designations referred to in the first question posed by the Minister and adopted the position that if such designations were still in effect they would have only a technical existence. However, the OADWDC argued that that set of designations would be effective until revoked.

18The AAO informed the Board that the set of designations referred in the first question posed by the Minister was no longer effective. The AAO compared the circumstances of 1980 with the circumstances of 1978 when the designations were initially made and pointed out that in 1980, unlike 1978, there is now a viable and strong acoustic and drywall industry under one house with groups of employers who engaged in this industry. It was argued that unless two separate sets of designations were made there would be conflict due to the composition of the employee and employer bargaining agencies, conditions of work, mobility of manpower and labour relations culminating in unsatisfactory collective bargaining. The AAO pointed out that since two separate sets of designations were in existence it could not be said that two different sets of designations would cause an undue separateness or fragmentation which did not already exist.

19The ISCA adopted a basic approach with respect to the first question posed by the Minister and stated that section 54 of the Act would clearly take precedence over the schedules to the reference. The ISCA argued, however, that such a conclusion did not make too much sense because it would not be a workable scheme of collective bargaining to have the trade unions who represent the employees who perform the work in question in two separate sets of designations. The Board was urged not to follow a strictly legal interpretation with respect to the first question. The ISCA made reference to the problems, goals and solutions set forth in the Report of The Industrial Inquiry Commission into Bargaining Patterns in the Construction Industry (the Franks Report) dated May 10, 1976. While the Board may look at that report in order to see what was the mischief at which the amendment to the Act in 1977 in The Labour Relations Amendment Act, 1977,S.O. 1977, c. 31, was aimed, we may not look at what the report recommended. In Letang v. Cooper, [1965] 1 Q.B. 232, Lord Denning, M.R. at page 240 expressed in this way:

"It is legitimate to look at the report of such a committee [the Tucker Committee on the Limitation of Actions] 'so as to see what was the mischief at which the Act was directed. You can get the facts and surrounding circumstances from the report so as to see the background against which the legislation was enacted. This is always a great help in interpreting it. But you cannot look at what the committee recommended, or at least, if you do look at it, you should not be unduly influenced by it. It does not help you much, for the simple reason that Parliament may, and often does, decide to do something different to cure the mischief."

The wisdom of this approach is demonstrated by the changes that were made to the various forms of the Bill which subsequently became The Labour Relations Amendment Act, 1977, S.O. 1977, c. 31.

20In one important respect the ISCA disagreed with the position of the OADWDC on the concept of the importance of a craft or trade. It was the position of the ISCA that crafts and trades come and go, are modified and disappear. The Board was urged to approach this reference that the concept of craft and trade is unimportant and that what is important is whether there is an area of specialty and whether there are identities which are in existence and which will continue to be in existence in this area of the construction industry. The ISCA referred to examples in the work of painting where areas such as taping were negotiated by the ISCA and the AAO separate and apart from the Painting Contractors' Association. The Board was asked to recommend to the Minister that the ISCA and the AAO should be included under the existing designation with the ISCA and the OADWDC as a successor under section 54.

21The OGCA posed a series of assumptions and the Board was asked to assume that by operation of section 54 Local 562L of the United Brotherhood became the successor to Lathers' Local 562 and then Locals 562L and 1617 of the United Brotherhood merged into Local 675 of the United Brotherhood. The Board was also asked to assume that the provisions of section 54 had been complied with. The OGCA reasoned that the designations contained in Schedules "C" and "D" would pick up both Local 675 of the United Brotherhood and employers who were originally bound by the collective agreement with Lathers' Local 562. In this way, the OGCA reasoned, the designations referred to in the first question posed by the Minister would be without any parties and, while not operative, would not lapse and such employers and Local 675 of the United Brotherhood would be bound by the sets of designations referred to in Schedules "C" and "D". Upon being questioned by the Board on the legal basis for this result, the OGCA was unable to satisfactorily explain how employers opposed to trade unions could be affected by section 54.

22The OGCA pointed to the existence of mixed locals in Schedules "C" and "D" and argued that if such locals were to be included in a separate set of designations there would be a great deal of duplication. The OGCA argued that the chief criterion in section 125 is the definition of affiliated bargaining agent in section 125(a) and that section 125(a) was not directed to criteria but rather is directed towards whether or not a bargaining agent represents employees who commonly bargain separately and apart from other employees. The OGCA adopted the position that the work in question is not a separate trade but is rather a classification within the general trade of carpentry. It was stressed that under the collective agreement between the OPC of the United Brotherhood and the carpenters' employer bargaining agency the rates for general carpentry work and the work in question are generally the same. It was also argued that millwrighting is classified as a specialized skill in that not all carpenters are able to perform the work of a millwright and that therefore it should be regarded as virtually a separate trade. The OGCA argued that the community of interest of the OPC and the OADWDC are so close that it made good sense to have them negotiate within the same set of negotiations.

23The OGCA raised the spectre of jurisdictional disputes if two sets of designations were created and argued that the positive effects of the affiliation would be in large part nullified. The possibility of restraint of trade was referred to as arising if two sets of designations were created and it was argued that all employers which performed the work in question should be competing on the same labour cost basis. The OGCA predicted that separate collective agreements would inevitably lead to one group of employers securing more favourable conditions than another group. The OGCA stressed that to create two sets of designations would be a dangerous precedent and would invite similar requests from other groups within the bargaining framework of the United Brotherhood, the Labourers' International Union of North America and other comprehensive designations.

24The OPC opened its argument by emphasizing that the OADWDC would not indicate the geographic jurisdiction of Local 675 and that if the geographic jurisdiction of Local 675 is province-wide then jurisdictional conflicts would arise in the future. The OPC stressed that it is the carpenters who under sections 6(2) and 125(a) according to established trade union practice in the construction industry and not the employees who perform the work in question commonly bargain separately and apart from other employees. It was pointed out that the employees who perform the work in question are usually included by the Board in appropriate bargaining units determined under section 6(1) rather than constituting craft bargaining units determined under section 6(2). The OPC argued that there would be no infringement of sections 3 and 4 of The Labour Relations Act under a single set of comprehensive designations and that if a separate designation for drywall, acoustics, etc. was in existence section 3 could be infringed with respect to members of mixed locals.

25The OPC characterized the conduct of the OADWDC as an attempt to expand its jurisdiction in the guise of requesting a separate set of designations. It was the position of the OPC that most of the designations under section 127 were expressed in terms of trades, such as, for example, carpenters and electricians and that peace and stability would be best served under a single set of designations. The OPC viewed the possibility of two sets of designations as a fragmentation in that it would create two trades in carpentry and pointed to the existence of thirty-one mixed locals, a caulking local, a resilient floor layers' local and the Ontario Acoustical and Drywall District Council and under the umbrella of the collective agreement between the OPC of the United Brotherhood and the carpenters' employer bargaining agency. The OPC pointed out that it had permitted the Ontario Acoustical and Drywall District Council to negotiate a separate appendix covering the work in question. The OPC also expressed its opinion that two separate sets of designations would create the potential for jurisdictional disputes of great magnitude.

26The OPC adopted the position that bargaining rights had not been transferred under section 54 because the formalities required under that section had not been observed. The fear was expressed that if two sets of separate designations were in existence the general contractors would cease bargaining with respect to members of mixed locals who perform the work in question and that these members would not be able to perform such work. This also gave rise to the fear that the OPC would then be unable to protect the work in question for all carpenters in Ontario under article 4.01 of the collective agreement between the OPC of the United Brotherhood and the Carpenters' employer bargaining agency. It was pointed out that section 136 provided protection for affiliated bargaining agents and employers in that it prohibited a designated employee bargaining agency and a designated employer bargaining agency from acting in a manner that is arbitrary, discriminatory or in bad faith in the representation of affiliated bargaining agents and employers in the provincial unit of employers. The separate set of designations for millwrights was distinguished by the OPC on the grounds that millwrights had bargained separately for eighteen years and had never been covered by other collective agreements by the United Brotherhood throughout Ontario.

27It was the position of the OPC that the answer to the first question posed by the Minister should be that the designation was not effective and should be revoked. The OPC argued that Locals 562L and 675 of the United Brotherhood were automatically caught by the designation and that this has made the description of lathers redundant. With respect to the second and third questions, the OPC submitted that the designations in Schedules "A" and "B" should not be revised and that all affected affiliated bargaining agencies and employers' organizations should be added to the designations set forth in Schedules "C" and D “.

28This reference from the Minister arises from the consequences of the affiliation of the Lathers' International Union with the United Brotherhood. Prior to the affiliation, locals of the Lathers' International Union and the United Brotherhood had been engaged in different sets of negotiations with different groups of employers. Although locals of the Lathers' International Union and the United Brotherhood had each negotiated and concluded separate collective agreements which covered employees who performed the work in question, in our opinion, it was the reality of the existing collective bargaining relationships between locals of two international trade unions and two different groups of employers which necessitated the creation of two separate sets of designations for province-wide collective bargaining in the industrial, commercial and institutional sector of the construction industry.

29The affiliation of the Lathers' International Union with the United Brotherhood has had a considerable and a positive affect on labour relations in the construction industry in Ontario. In the years prior to the affiliation, locals of these two international unions were frequently engaged in seeking to represent the same bargaining unit of employees. See, for example, the Volens Contractors Ltd. case, (Board File No. 0444-75-R, unreported decision of the Board dated August 28, 1975); and the C. Strauss (1973) Limited case, [1975] OLRB Rep. July, 581, Jurisdictional disputes occurred on many occasions between locals of these two international unions and complaints were filed with the Board under section 81 of the Act. See, for example, the Donaldson-Barron Limited and Suburban Lathing & Acoustics Ltd. case, (Board File No. 0020-79-JD, unreported decision of the Board dated June 1, 1979); the Gryd Construction Inc., The Manufacturers Life Insurance case, [1975] OLRB Rep. Mar. 230; the Northdown Drywall & Construction Ltd. case, (Board File No. 2207-72-JD, unreported decision of the Board dated July 11, 1972); the Northdown Drywall & Construction Ltd. case, (Board File No. 2334-72-JD, unreported decision of the Board dated September 13, 1972); the Ellis Don Ltd. case (Board File No. 1423-71-JD, unreported decision of the Board dated March 14, 1972); the Northdown Drywall & Construction Ltd. case, (Board File No. 1411-71-JD, unreported decision of the Board dated June 28, 1972); the Northdown Drywall & Construction Ltd. case, (Board File No. 1305-71-JD, unreported decision dated February 3, 1972); the Marel Contractors case, (Board File No. 1843-70-JD, unreported decision of the Board dated November 20, 1970); and the Vero Forms Ltd. case, (Board File No. 15507(a)-68-JD, unreported decision dated July 7, 1969). Unlawful strikes occurred in situations which involved conflict between locals of these two international unions and applications were filed with the Board under section 123 of the Act. See, for example, the Carpenters Local 38, ArthurJ. Varty and Larry Beaudoin case, (Board File No. 0382-77-U, unreported decision dated June 7, 1977); the United Brotherhood of Carpenters and Joiners of America, The Carpenters District Council of Toronto and Vicinity case, (Board File No. 0226-75-U, unreported decision dated May 12, 1975); the United Brotherhood of Carpenters and Joiners of America, The Carpenters District Council of Toronto and Vicinity, William Johnston and P. Robichaud case, (Board File No. 5653-74-U, unreported decision dated May 14, 1974); the United Brotherhood of Carpenters and Joiners of America Local 1256, Donald Loocks and Jack Piggot case, (Board File No. 5942-74-U, unreported decision dated July 15, 1974); the United Brotherhood of Carpenters and Joiners of America, Local 38 and W. Hague case, (Board File No. 7438-74-U, unreported decision dated March 18, 1975); the United Brotherhood of Carpenters and Joiners of America, Local 1946, and David Noble case, (Board File No. 4081-73-U, unreported decision dated July 25, 1973); and the United Brotherhood of Carpenters and Joiners of America, Local 18, and J. Tarbutt case, (Board File No. 5178-73-U, unreported decision).

30In some respects the affiliation reflects the general trend of legislation with regard to labour relations in the construction industry in Ontario. This general trend is one of the consolidation of bargaining rights and, effectively, commenced in 1962 with the legislative directive to determine appropriate bargaining rights with reference to a geographic area and not with reference to a particular project. In 1970 the scheme of accreditation was introduced into the Act designed as it was to support the wider-area bargaining patterns that had evolved in the construction industry over time. See Goldberg and Crispo, Construction Labour Relations (1968) at page 376. The introduction of province-wide bargaining in 1977 in the industrial, commercial and institutional sector of the industry presently represents the most significant legislative initiative aimed at consolidating and rationalizing bargaining rights.

31While no particular pattern in support of separate designations is discernable from a review of all the designations made pursuant to section 127, they do reflect, to a greater or lesser degree, pre-existing bargaining patterns and do not always correspond to what may be perceived as craft or trade lines. However, this claim for two separate sets of designations is one centred of self-interest and, thus, is a claim which may be made by other groups of trade unions and employers currently part of more comprehensive designations. Indeed, counsel to ISCA agreed that the issue before the Board was not particularly unique and that other groups should also be able to seek separate designations. But, in the fact of an overwhelming trend toward the consolidation of bargaining situations, a queue of additional requests for separate designations would be somewhat anomalous and not easily adjudicated because of the absence of meaningful criteria. Thus, the question of balancing and reconciling the claims based upon self-interest by groups of trade unions and employers against the viability and aspirations of larger and more divergent employee bargaining agencies and employer bargaining agencies poses a real dilemma at this point in time. It is our view that this balancing must have regard to the reality of the pattern of bargaining and the more general drift to consolidation. As the Board stated in the United Brotherhood of Carpenters & Joiners of America case, [1978] OLRB Rep. August 776 at pp.782-3:

"A reading of the provisions of the Act establishing provincial bargaining indicates that the Legislature intended the foundation of provincial bargaining to be pre-existing local bargaining rights. Section 127(1)(b) clearly provides that the employer bargaining agency is to represent only those employers 'for whose employees affiliated bargaining agents hold bargaining rights'. The bargaining obligation of these employers then vest in the employer bargaining agency by operation of section 131. On the union side, the bargaining rights of the affiliated bargaining agents, by operation of section 130, vest in the employee bargaining agency designated under section 127(1)(a) of the Act. The legal result is simply a consolidation in the bargaining agencies of those bargaining rights and obligations existing at the time of designation."

32The Board is in agreement with the ISCA with respect to the importance of craft or trade in the designation of employee bargaining agencies. The Board agrees that trades come and go, are modified and disappear. In the context of this reference it may be pointed out the names of the Lathers' Union and the United Brotherhood illustrate the impermanence of craft or trade. The name "The Wood, Wire and Metal Lathers' International Union" chronicles the changes in construction materials and methods of construction since that union's formation. Similarly, the name "The United Brotherhood of Carpenters and Joiners of America" reminds us that the craft or trade of joinery as long since disappeared as a recognized arid separate craft or trade.

33The Board in determining appropriate bargaining units of employees who perform the work in question has not defined such bargaining units as craft units pursuant to section 6(2) of the Act but has rather defined such bargaining units as appropriate bargaining units pursuant to section 6(1). The Board has not stated in any of its decisions that the employees who perform the work in question are a separate craft or trade. The reason why the Board has determined appropriate bargaining units pursuant to section 6(1) and not section 6(2) was to avoid describing the employees who perform the work in question as either lathers or carpenters and thereby avoiding the conversion of applications for certification into jurisdictional disputes. The fact that representatives of the United Brotherhood sat on opposite sides of the table before the Board and vigorously advocated either one or two sets of designations gives cause for concern that if there were two sets of designations the opportunity for jurisdictional disputes might well arise. In the past jurisdictional disputes have occurred between two locals of the same international trade union. In this regard reference may be had to the J. R. Seguin et Fils Ltd. case, (Board File No. 1178-76-JD - unreported decision dated June 28, 1977).

34The first question posed by the Minister refers to whether the employee bargaining agency and the employer bargaining agency set forth in Schedules "A" and "B" are still effective. None of the parties presented a detailed analysis of the operation of section 54 of the Act to the known facts surrounding the affiliation of the Lathers' International Union with the United Brotherhood, the consequent disappearance of some local unions and the appearance of new local unions. The fact that the United Brotherhood has chartered a new Local 675 means that such local falls into the general catch-all clause of the designation of Schedule "C". Another argument may be made that following the affiliation there was a flow through of rights to Local 675 that the Lathers' unions possessed under the designation in Schedule "A". The parties, however, interpreted the first question as a question concerning industrial relations and not as a question which required the word "effective" to be examined and given a legal meaning. Even though the designations set forth in Schedules "A" and "B" might have a technical existence and would therefore be effective until revoked, such designations neither reflect the existing realities of the bargaining relationships nor serve any meaningful purpose by their continued existence.

35It is the Board's opinion that the preferable interpretation of the impact of the merger on the designations contained in Schedules "A" and "B" is that these designations are no longer effective in either a legal or an industrial relations sense.

36Section 127 provides the Minister with power to designate employee and employer bargaining agencies for provincial units of affiliated bargaining agents and with power to describe such provincial units. Schedules "A" to "D" are the result of exercises of these powers and, in our opinion, the "basket clause" found in paragraph 4 of Schedules "C" and "D" explicitly provide for the containment of all bargaining rights held by the newly chartered local, Local 675. We are not of the view that section 54 operates to transfer the status of the employee bargaining agency from Local Union 562 of The Wood, Wire and Metal Lathers' International Union to Local 675 of the Carpenters Union. The rights and obligations of one designation must be read in conjunction with other designations. Where the designations themselves provide for the allocation of bargaining authority through the description of provincial units of employees and employers, we are of the view that there is no right, privilege, or duty under the Act arising from a designation to acquire within the meaning of section 54. Thus, when Schedules "A" and "C" are read in the light of the subject merger, one sees that the trade unions mentioned in Schedule "A" no longer exist in name and the newly chartered local which acquired the primary rights and obligations described in paragraphs (a), (b) and (c) of Schedule "A" is one that falls within Schedule "C". Schedule "A" is no longer of any effect and should, therefore, be revoked. Similarly, all employers whose employees are represented by this same affiliated bargaining agent covered by Schedule "C" are now subject to the Schedule "D" designation and, thus, Schedule "B" is no longer of any effect and should be revoked. Finally, even if the foregoing was not the legal effect of the merger, Schedules "A" and "B" are ineffective designations in an industrial relations sense because of the history of overlapping jurisdiction between the two sets of designations which the subject merger was obviously intended to eliminate. Accordingly, the answer of the Board to the first question is "No."

37With regard to the second question, we are not of the opinion that two sets of designations are either appropriate or justifiable in the circumstances. Many of the arguments addressed to the Board were based upon a high degree of "speculation" as to what may happen if two separate sets of designations are not maintained by the Minister. The Board is not persuaded that "restraint of trade" or other undesirable commercial side effects are contingent on the number of sets of designations. Similarly, the Board does not accept that the freedoms which are set forth in sections 3 and 4 are infringed by the number of sets of designations. The effect of such designations is not to deprive any person of his freedom to join a trade union or an employer's organization of his own choice. We are also of the view that the history of separate bargaining is only one factor to be considered in deciding the appropriateness of one or two sets of designations and that, in any event, the history of bargaining associated with Lathers' Local 562 is not a substantial one in relative terms, clearly distinguishing it from the history underlying the separate millwrights designations. Finally, sections 125 and 127 of the Act do not impose a criterion of separate skill and trade or work in the designation of employee bargaining agencies or employer bargaining agencies and, therefore, the various submissions on this aspect of the work in question cannot be determinative. What is determinative is the fact of the merger; the trend in the construction industry towards the consolidation of bargaining situations; and the evidence in this case establishing that all parties before the Board are capable of working harmoniously together within the context of a single set of designations. Accordingly, it is our view that both the carpenters and the former members of Lathers' Local 562 who perform the work in question should be included within the same employee bargaining agency designation. The corresponding employer organizations should also bargain together under one designation. The answer to the second question posed by the Minister is, therefore, "Yes." In our opinion it is desirable to revise the set of designations referred to in the first question by revoking the designations set forth in Schedules "A" and "B" and by the specific addition to Schedule "D" of ISCA, together with all incidental changes necessary to effect the purpose of this recommendation.

38Because we are of the opinion that separate designations would not be appropriate, the third question does not require an answer.