Operative Plasterers' and Cement Masons' International Association, Local 172 v. Clifford Masonry Limited, 1981 CanLII 845

[1981] OLRB Rep. November 1561

0441-81-R Operative Plasterers' and Cement Masons' International Association, Local 172, Applicant, v. Clifford Masonry Limited, Respondent, v. Labourers' International Union of North America, Local 506, Intervener.

BEFORE: N. B. Satterfield, Vice-Chairman and Board Members J. Wilson and H. Kobryn.

APPEARANCES: L. Arnold, S. Stewart and A. Enman for the applicant; R. D. Perkins and James Briach for the respondent; S. M. Grant and P. Hitchen for the intervener.

DECISION OF THE BOARD; November 5, 1981

1. This is an application for certification, construction industry.

2. The Board finds that the applicant is a trade union within the meaning of section l(l)(p) of the Labour Relations Act, and is an affiliated bargaining agent of designated employee bargaining agency. Pursuant to the designation issued by the Minister under section 139(1) of the Act, on April 27, 1978, the designated employee bargaining agency is the Operative Plasterers and Cement Masons International Association of the United States and Canada and the Operative Plasterers and Cement Masons International Association of the United States and Canada, Local 172.

3. The Board further finds that this is an application for certification within the meaning of section 119 of the Labour Relations Act and is an application made pursuant to section 144(1) of the Act which provides that:

An application for certification as bargaining agent which relates to the industrial, commercial and institutional sector of the construction industry referred to in clause e of section 117 shall be brought by either,

(a) an employee bargaining agency; or

(b) one or more affiliated bargaining agents of the employee bargaining agency,

on behalf of all affiliated bargaining agents of the employee bargaining agency and the unit of employees shall include all employees who would be bound by a provincial agreement together with all other employees in at least one appropriate geographic area unless bargaining rights for such geographic area have already been acquired under subsection 3 or by voluntary recognition.

5. The application describes the bargaining unit for which the applicant is seeking to be certified in the following terms:

"All employees of the respondent engaged in restoration work in the industrial, commercial and institutional sector of the construction industry and all other sectors of the construction industry, in the Province of Ontario, save and except non-working foremen and those above the rank; and save and except those employees covered by existing collective agreements

6. The respondent's reply asserts that all of its employees engaged in restoration work at the projects affected by the application are covered by the provisions of"... the Provincial Labourers' Collective Agreement and the Provincial Bricklayers' Collective Agreement... On those grounds, the respondent requested that a hearing be held into the application and contends that the application should be dismissed.

7. The intervention filed by the intervener also requested that a hearing be held into the application on the grounds that:

(a) it was filing a separate application for certification on behalf of the employees in the bargaining unit proposed by the applicant and was requesting that its application be consolidated with the instant one; and

(b) it claims exclusive jurisdiction over the work in question and therefore should be certified as the bargaining agent for the employees who perform that work.

Subsequent to filing its intervention and prior to the hearing held into this application, the intervener claimed, in a letter addressed to the Board, that the intervener and respondent were bound to a collective agreement which was a bar to the application for certification.

8. Accordingly, a hearing was held into the application for the purpose, inter alia, of receiving the evidence and representation of the parties on those matters raised in the respondent's reply and the intervener's intervention. At the hearing the applicant acknowledged that there was a craft unit of bricklayers in the employ of the respondent whose bargaining rights were held by the International Union of Bricklayers and Allied Craftsmen and its Ontario Provincial Conference. While the intervener pursued, as its primary position at the hearing, its claim that a subsisting collective agreement to which it and the respondent were bound was a bar to this application, it also repeated its request that its application for certification in Board file #0580-81-R be treated as though it had been brought on the same day as this application. The Board heard the representations of the parties in respect of this latter request of the intervener and reserved its decision pending resolution of the alleged collective agreement bar to this application.

9. It was the position of both the intervener and the respondent at the hearing that they have been parties to or bound by a collective agreement since 1969. It was the respondent's evidence that it extended voluntary recognition to both the International Union of Bricklayers and Allied Craftsmen, Local 2 and the intervener when it began business in 1969, although no collective agreements were entered in evidence to corroborate this claim. The evidence does reveal, however, that the respondent and intervener had been bound to a collective agreement in the residential sector of the collective agreement in effect from May 20th, 1974 to April 30th, 1976. There is evidence before the Board in the form of a memorandum of understanding between the intervener and the respondent dated August 11, 1980 which purports to relate to a "Residential Masonry Agreement". While the parties may be bound to a collective agreement in the residential sector, the evidence before the Board is inconclusive of whether the parties are bound to such an agreement and the Board makes no finding either way. The respondent and intervener had been bound also to a collective agreement between the General Contractors' Section of the Toronto Construction Association and the Labourers' Union of North America, Ontario Provincial District Council effective August 4th, 1972. This agreement described the intervener's bargaining rights in terms of all labourers employed in Board area #8 in the industrial, commercial and institutional sector of the construction industry. It also contained a clause restricting the respondent's right to sub-contract work coming within the scope of those bargaining rights. The respondent understood that he was required to sub-contract such work only to other contractors which were in a collective bargaining relationship with the intervener. That agreement was still in effect on February 18th, 1975, when the Board certified the General Contractors Section of the Toronto Construction Association as the accredited bargaining agent for all employers of employees for whom the intervener held bargaining rights in the industrial, commercial and institutional sector of the construction industry. The respondent is named in the accreditation order as being an employer of employees for whom the intervener held such bargaining rights. Those bargaining rights of the intervener are now contained in the current Provincial Collective Agreement ("the Agreement") between the labourers employer bargaining agency and the labourers employee bargaining agency. The employer bargaining agency is comprised of the following associations, the Labour Relations Bureau of the Ontario General Contractors Association; Ontario Masonry Contractors Association; Industrial Contractors Association of Canada; Waterproofing Contractors Association of Ontario; and the Concrete Floor Contractors Association of Ontario, referred to collectively in the agreement as the E.B.A.. The employee bargaining agency is The Labourers' International Union of North America and the Labourers' International Union of North America, Ontario Provincial District Council. The employee bargaining agency acts on behalf of its affiliated local unions, of which the intervener is one, and collectively the employee bargaining agency and its affiliated local unions are referred to in the Agreement as the Union.

10. Article I Recognition of the "master portion" of the Agreement describes the bargaining rights of the parties in the following terms:

1.01 The E.B.A. recognizes the Union as the sole and exclusive bargaining agent for all construction labourers, including masons' or bricklayers' tenders, plasterers and plasterers' apprentices and all employees engaged in cement finishing, waterproofing or restoration work and all other construction Employees engaged in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario, for whom the Union has bargaining rights.

1.02 The Union recognizes the E.B.A. (the several parties are listed on Schedule "C") as the sole and exclusive bargaining agent for all Employers whose Employees are represented by the Union and for whom the Union has bargaining rights who are engaged in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario.

1.03 The Employer recognizes each Local Union as specified in the attached Schedule "A" to be the administrative party of this Collective Agreement for work performed within the geographical area and/or jurisdiction of the Local Unions as defined in Schedule "B" attached hereto.

1.04 This agreement shall also apply to an employer in all other sectors where the Union or any of its affiliated bargaining agents have bargaining rights in such other sectors for the Employees of such Employer, provided that such Employer may become signatory to the various Collective Agreements applicable in such other sectors.

The predecessor provincial agreement, which was the first one under province-wide collective bargaining, is not in evidence. It was the intervener's uncontradicted evidence, however, that the wording of clause 1.01 was closely similar, if not identical to the wording of clause 1.01 above.

The Agreement then seeks to buttress its bargaining rights by the following provisions in Article 2 — Union Security, Work Jurisdiction, Assignment of Work, Subcontracting

2.01 The Employer agrees to employ only members in good standing of the Local Union specified in Article 1 .03 for work covered by this Agreement.

2.02 As a condition of continuing employment, all Employees shall maintain in good standing their membership in the Local Union.

2.03 The employer acknowledges and agrees that the work covered by this Agreement is within the exclusive jurisdiction of the Union and its affiliated bargaining agents, notwithstanding the claims of any other Trade Union.

2.04 The Employer agrees that notwithstanding the claims of any other Trade Union, it shall assign exclusively to members of the Union and its affiliated bargaining agents all of the work covered by this Agreement.

2.05 The Employer agrees to engage only sub-contractors who are in the contractual relations with the Union and! or its affiliated bargaining agents for all work covered by this Agreement, or work forming part of an I.C.I. General Contract, except the work described in Schedule "D" hereof.

Schedules ''A", ''B'', ''C'' and ''D" referred to in these two articles are schedules to the master portion of the Agreement. The first three of these schedules serve to define more specifically the parties to the Agreement, while schedule "D" serves to exclude certain work from the subcontracting limitations of clause 2.05 including, inter alia "all waterproofing and cement finishing work". There are also a series of Local Union Schedules, one for each affiliated local union of the employee bargaining agency. These schedules set out the wages and other working conditions which apply to the geographical jurisdiction of each local.

11. The Agreement also contains three trade appendices, one each for masonry tenders, cement finishers and waterproofing. These appendices contain their own recognition and union security clauses and other clauses dealing with working conditions and the regulation of work, some of which are set out below.

TRADE APPENDIX FOR MASONRY TENDERS

Article 1 — Recognition and subcontracting

1.01 The members of the Ontario Masonry Contractors' Association as outlined in Schedule "A" of this Appendix, and such other Employers who become bound by this Appendix hereinafter referred to jointly and severally as the "Employer" recognize the Union as the exclusive Bargaining Agency for mason tenders in the employ of the Employer while performing work outlined in Article 2 and classified under Schedule "B" of this Appendix in the Province of Ontario in the area outlined in Schedule "B" of the Master Portion of the Agreement and agree to be bound by the terms and conditions as set out in this Appendix. This Appendix shall also apply to all other Employers who are primarily engaged as masonry contractors for whose Employees the Union is the Bargaining Agency.

1.03 Where a conflict arises between this Appendix and the general clauses in the Master Agreement, or Local Schedules, this Appendix shall prevail in all instances with respect to any Employees! Employers covered under Article 1.01 above.

1.04 An individual Employer desirous of sub-contracting any work encompassing the skills of a mason tender as described in Article 2, shall only sub-contract such work to a sub-contractor for whom the Union holds bargaining rights.

Article 2 Work Jurisdiction

2.01 The Employer recognizes the Union work jurisdiction shall include that work which has been historically or traditionally or contractually assigned to members of the LABOURERS' INTERNATIONAL UNION OF NORTH AMERICA in the tending of Masons including unloading, mixing, handling and convening of all materials used by Masons including Refractory by any mode or method; the unloading, erecting, dismantling, moving, and adjustment of scaffolds; the starting, stopping, fueling, oiling, cleaning, operating, and maintenance of all mixes, compressors, mortar pumps, fork lifts, tuggers, and other devices under the direction of the Employer or his representative.

Schedule "A" lists the respondent amongst the members of the Ontario Masonry Contractors' Association.

CEMENT FINISHERS APPENDIX

Article I Recognition

1.01 The Employer recognizes the Labourers' International Union of North America, Ontario Provincial District Council as the sole and exclusive Bargaining Agency for all Employees for whom the Union has bargaining rights engaged in concrete finishing work as defined in Article 14 — Jurisdiction of this Appendix for the Province of Ontario.

Article 14 of the Cement Finishers Appendix does not make any specific reference to either restoration work or masonry restoration work.

Article 23 — Interpretation of this Agreement

23.01 In the event there is a conflict between the common clauses of the Master Agreement, and this Appendix for cement finishing, then this Appendix will prevail in all cases.

This Appendix contains no schedule of employers who are covered by it and there is no evidence before the Board that the respondent is an employer to which this Appendix applies.

WATERPROOFING APPENDIX

Article I Recognition

1.01 The employer recognizes the Labourers' International Union of North America and the Labourers' International Union of North America, Ontario Provincial District Council as the sole and exclusive Bargaining Agent for all Employees for whom the Unio has bargaining rights engaged in all waterproofing and restoration as defined in Article 10 [sic] of this Appendix, for the Province of Ontario.

Article 2 Union Security

2.01 The Employer agrees to employ only members who are in good standing with Local Unions affiliated to the Labourers' International Union of North America, Ontario Provincial District Council, for work coming within the scope of this Appendix.

Article 9 — Craft Jurisdiction

(The description of craft jurisdiction in this article contains the following references to the restoration work)

13. Installation of reinforcing steel and wire mesh on concrete and masonry restoration work.

14. Concrete restoration for the purpose of weatherproofing.

15. Sandblasting, acid and alkali cleaning of walls as part of restoration and weatherproofing or waterproofing work.

16. Application or installation of any material for the purpose of waterproofing, weatherproofing, dampproofing, acidproofing or restoration.

17. Insulation in conjunction with waterproofing, weatherproofing, dampproofing or restoration work.

Article 20 Interpretation of this Agreement

20.01 In the event there is a conflict between the common clauses of the Master Agreement, and this "Appendix for Waterproofing", than this Appendix will prevail in all cases.

12. The Labourers' Employee Bargaining Agency has been designated"... to represent in bargaining all construction labourers, in bargaining all construction labourers, including masons' or bricklayers' tenders, plasterers and plasterers' apprentices and all employees engaged in cement finishing, waterproofing or restoration work, represented by [the affiliated bargaining agents of the employee bargaining agency], 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 employees bound by or parties to [certificates of the Ontario Labour Relations Board granted to any of the affiliated bargaining agents; voluntary recognition agreements with any of the affiliated bargaining agents; collective agreements to which any of the affiliated bargaining agents have been or are a party to or bound by, covering the industrial, commercial and institutional sector of the construction industry in the Province of Ontario.]".

13. The designation order referred to in paragraph 3 hereof designates the Operative Plasterers and Cement Masons International Association of the United States and Canada together with the applicant as a designated employee bargaining agency " . . . to represent in bargaining all masonry restoration employees represented by [its affiliated bargaining agents of which Local 172 is one], 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 employees bound by or parties to [certificates of the Ontario Labour Relations Board granted to any of the affiliated bargaining agents; voluntary recognition agreements with any of the affiliated bargaining agents; collective agreements to which any of the affiliated bargaining agents have been or are a party to or bound by, covering the industrial, commercial and institutional sector of the construction industry in the Province of Ontario.]". The employee bargaining agency was a party to a provincial agreement which expired April 30th, 1980, but, at the time of hearing into this application, had not concluded a renewal agreement. Ten masonry restoration contractors had bound to that agreement.

14. When the respondent started in the construction industry in 1969, it did so as a masonry contractor on new masonry construction. Occasionally it did restoration work, but only when it was incidental to a contract for new construction and in which case it was usually sub-contracted to a contractor specializing in that kind of work. It began to seek and perform masonry restoration work in 1979. By the time this application was made, the respondent had established a separately managed division to perform the masonry restoration work. As of the application date, the respondent, through its masonry restoration division, was engaged in two projects in Toronto, one a church and the other a four-storey building. Work on the four-storey building involves sandblasting to clean the masonry, removing old mortar from the mortar joints and replacing it and tuck pointing. The employees working on this project were members neither of Bricklayers' Local 2 nor the intervener. The evidence of the applicant and respondent is in conflict as to whether this latter project was a commercial or a residential one, but it is unnecessary for the Board to determine that issue.

15. Prior to these two projects, the respondent had performed some dozen masonry restoration jobs which it considered to be small ones, although they included buildings such as the Walter Stewart Building at the Ontario College of Art, the Adelaide Court Theatre on Adelaide Street East in Toronto, the Sidney Smith and McLellan buildings at the University of Toronto and an Ontario Housing Corporation project on Teasedale Avenue in Scarborough. The respondent estimated the aggregate value of ten of these jobs to be $50,000.00. The bulk of the work on all dozen jobs was performed by bricklayers who were members of Local 2 and labourers who were members of the intervener. The bricklayers removed the old mortar from the joints and replaced it and did tuck pointing. The labourers worked as mason tenders to the bricklayers and erected and dismantled scaffolding. In fact, the only work performed by members of the intervener for the respondent from 1969 to the date of this application was as mason tenders and erecting and dismantling scaffolding. The work which the bricklayers and laboureres did not do included sandblasting, chemical cleaning of the exterior masonry walls and caulking, which was done by either or both of the two employees who now manage the respondent's restoration division. Notwithstanding the respondent's assertion in its reply and its argument at the hearing that the Agreement applied to its employees affected by this application, at the time when the respondent was sub-contracting the incidental restoration work as well as when it employed persons who were not members of the intervener on the 12 restoration jobs referred to above, the respondent did not consider the Agreement to have been applicable to that work. The respondent's project signs on the 12 jobs used variably the names Clifford Masonry and Restoration Limited or Clifford Restoration. The intervener had not been aware of the respondent doing restoration work and was not aware of the four-storey building at the time that it filed the application in Board file #0580-81-R. That application names as respondent Clifford Masonry and Building Restoration Ltd. The intervener had filed a previous application for certification, which it withdrew with the Board's consent. The Board's record shows that the respondent named by the intervener in it was also Clifford Masonry and Restoration Ltd. Both of these applications arose from the intervener becoming aware of the respondent's possible presence on the church project. The intervener found that some of its members were engaged on the job and being paid pursuant to the terms of its provincial agreement. It also determined that there were other persons working on the project who were not its members or members of Local 2. According to Peter Hitchen, a business representative of the intervener, the intervener was unable to determine if the employer doing the restoration work on the church was the same one for whose employees the intervener held bargaining rights because the names differed. Therefore the intervener filed the first application to protect its interests. The second was filed five days after the first one was withdrawn. Neither application raised the issue of the two employers being under common direction or control nor sought to have them treated as one employer for purposes of the Act and thus for purposes of the Agreement which has been raised as a bar to this application. On the church job, the respondent has employed between two and six bricklayers or their apprentices, two labourers and twelve to fourteen employees who were newly hired for the project. The new employees were hired when they responded to the respondent's newspaper advertisement. The bricklayers were employed pursuant to the terms of the bricklayers' provincial agreement and were used initially to remove the old mortar from the mortar joints using pneumatic tools and replacing it with new mortar and to do tuck pointing. They also did some spray-coating of the masonry with a preservative. The twelve to fourteen newly hired employees also worked on the removal of mortar from the joints using pneumatic tools and, as they gained experience, they were used to do tuck pointing as well. The two labourers were regular employees of the respondent and were engaged with the erecting and dismantling of scaffolding on the job.

16. The applicant is seeking to represent those employees who were working on these two projects and whom it believed were not represented by either the bricklayers Local 2 or the intervener.

17. Considerable of the evidence adduced by both the applicant and the intervener dealt with their representative work jurisdiction claims. The issue for the Board to resolve, however, is not whether either one of them has jurisdiction over masonry restoration work, rather it is whether the Agreement is a bar to this application, as claimed by the respondent and the intervener. In order for it to be a bar, the Board must be satisfied that the intervener holds bargaining rights in respect of the employees of the respondent who perform masonry restoration work and that these rights are preserved in the Agreement. The respondent and the intervener claim that the intervener's bargaining rights for employees of the respondent have included masonry restoration work since 1969 when the respondent voluntarily recognized the intervener as bargaining agent for labourers employed by the respondent in the industrial, commercial and institutional sector of the construction industry. They claim further that these rights existed when the Board's accreditation order issued February 18, 1975 and were preserved by the designation of the Labourers Employee Bargaining Agency referred to in paragraph 12 above. Is their claim supported by the facts'?

18. The facts are sparse as to the specific scope of the intervener's bargaining rights with respect to labourers employed by the respondent prior to April 1, 1978 when province-wide collective bargaining in the industrial, commercial and institutional sector of the construction industry came into force. The description of the bargaining rights contained in the collective agreement in effect when the respondent became bound by the Board's accreditation order is broad enough to include masonry restoration work, but there is no evidence to establish that such work fell specifically within that scope. Restoration work was occasionally an incidental part of jobs performed by the respondent, but in all cases it was sub-contracted to another contractor. There is no evidence whether the sub-contracting conformed to the collective agreement, or if it did not, whether the intervener attempted to enforce the sub-contracting clause. On such limited evidence the Board makes no finding on whether the intervener held bargaining rights under that agreement for labourers performing restoration work. Clause 1.01 of the Agreement, however, does contain specific reference to restoration work and purports to recognize the intervener as sole and exclusive bargaining agent for, inter alia, “…all employees engaged in... restoration work.. .". The Board is satisfied on the evidence that the Agreement, contained the same or a closely similar reference.

19. It was during the term of the first provincial agreement that the respondent began to pursue actively masonry restoration projects. Prior to the church job on which the intervener states that it became aware for the first time of the respondent's activities in restoration work, the respondent performed some 12 jobs displaying on them either the name Clifford Restoration or Clifford Masonry and Restoration Limited. On all of these jobs the respondent employed members of the intervener for part of the work. Four or five of the jobs were in prominent locations where, had not the respondent employed members of the intervener, with reasonable diligence the intervener could have been aware of the respondent's presence. Since the respondent did employ the intervener's members of these jobs, the intervener should have been aware of the nature of the work being performed. Therefore the intervener should have known that part of the work which it is now claiming falls within the scope of its bargaining rights under the Agreement was being performed by persons who were not its members. Furthermore, when the intervener became aware that the respondent might be the contractor on the church job, its president sought a meeting with the president of the respondent but failed to show up for an agreed meeting at the job site. It was shortly after this event when the intervener made its first application for certification. This is not the conduct of an exclusive bargaining agent actively asserting those bargaining rights which it claims are contained in the Agreement. It is conduct which is more compatible with that of a union which is unaware that it has the bargaining rights in question.

20. Other facts about the intervener's conduct raise the same question of whether it was aware of the rights which it is now claiming or are indicative that the intervener was at least uncertain about whether it held those rights. The collective agreement bar was raised by the intervener only after it had filed its intervention to this application. The intervention itself does not contain any claim that the intervener already holds the bargaining rights sought by the applicant. To the contrary, one of the grounds on which the intervener sought a hearing into the application was the fact that it too had made an application for certification for the same employees and wanted its application to be consolidated with the applicant's application. The filing of the two applications for certification and the intervention filed herein are the only efforts made by the intervener prior to the hearing into this application to protect its claimed bargaining rights. While it is reasonable to view the two certification applications as steps to protect its claimed bargaining rights in restoration work, as counsel for the interverner argued they were, in a situation where the intervener was uncertain whether the respondent in each of those applications was the respondent herein and an employer with which the intervener had an established bargaining relationship, it is difficult to understand why a seasoned trade union like the intervener would not have referred in those applications to the fact that it held bargaining rights with a company of similar name and was seeking, in the alternative, a declaration under section 1(4) of the Act that the two companies be treated as constituting one employer for purposes of the Act. In light of the intervener's claim that it holds bargaining rights in restoration work by virtue of the Agreement, that would have been a logical stance for it to take. The fact that it did not do so detracts from its claim.

21. The respondent did not consider that the Agreement applied to the restoration work which it had been doing for the two years prior to this application even though its reply to the application raised the Agreement as a possible bar to the application. While an employer's opinions of whether a collective agreement applies to a particular work situation is not determinative of the fact, the respondent's conduct in the circumstances of this case are a significant factor in interpreting the intervener's conduct as it relates to the claim that the Agreement gives the intervener bargaining rights for the respondent's employees engaged in masonry restoration work. The respondent claims to have been bound to collective agreements with the intervener continuously since they first entered into a voluntary agreement in 1969. The respondent employed members of the intervener to do the work of mason tenders on all of the twelve restoration jobs which it had done in the two years prior to this application, therefore it was not attempting to hide the fact that it was doing restoration work. Nor did it attempt to hide or disguise its hiring of new employees for the church job, which hiring appears clearly to be contrary to clause 2.01 of the "master portion" of the Agreement. When the intervener's president asked for a meeting on the church project, the respondent's president agreed to meet him on the job. This is not the conduct typical of an employer which is trying to avoid its obligations under a bargaining relationship. It is, however, conduct consistent with the respondent's belief that the Agreement did not apply to the restoration work at issue and with a conclusion that the respondent was under no pressure from the intervener to recognize the bargaining rights which the intervener now claims. In short, the respondent's conduct complements that of the intervener and lends credence to the view that neither understood the intervener to hold bargaining rights for the respondent's restoration employees, or if the intervener did hold those rights, for reasons not evident to the Board, it was not asserting them.

22. As a result of all of the foregoing, even were the Board to assume without finding that the intervener held bargaining rights for employees of the respondent performing masonry restoration work when the respondent began in 1979 to actively seek such work, the facts reveal that the intervener has at all times acted as though it did not have those rights. Consequently, on these facts the Board could conclude only that the intervener, by its own conduct, had abandoned voluntarily those bargaining rights if it had them in the first place. it is unnecessary, therefore, for the Board to determine whether in fact the intervener held, by virtue of the Agreement, the bargaining rights which it claimed for the respondent's employees performing restoration work. In the result there is no collective agreement bar to this application insofar as it relates to masonry restoration work. The Board finds, therefore, that this is a timely application for certification.

23. Since the Board has found this application to be timely, it is necessary for the Board to decide how it should exercise its discretion under section 103(3) of the Act in respect of the interverner's request to consolidate its application in Board file #0580-81-R with this application. When the Board has not issued a final decision in an application and it receives a subsequent application in respect of any of the employees in the original application, its customary practice is to exercise its discretion pursuant to clause (a) of section 103(3) and treat them as having both been made on the same date as the original one, provided that the subsequent application was made not later than the terminal date of the original application. When the subsequent application is made later than the terminal date of the original one, it is the Board's customary practice to exercise its discretion pursuant to clause (b) of section 103(3) and postpone consideration of the subsequent application until it has issued a final decision on the original application. Having considered the representations of the parties on the intervener's request, the Board is not satisfied that there is reason for it to depart from its customary practice and it declines to do so. Therefore the Board will postpone consideration of the application in Board file #0580-81 -R until it has issued a final decision with respect to the application at hand.

24. Turning now to the matters remaining to be determined in this application, pursuant to section 144(1) of the Act and having regard for the designation referred to in paragraph 3 and described in paragraph 13 herein, the Board further finds that all masonry restoration employees of the respondent in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario and all masonry restoration employees of the respondent in all other sectors in Metropolitan Toronto, The Regional Municipality of York and the County of Peel, the Township of Esquesing and the Towns of Oakville and Milton in the County of Halton and the Township of Pickering in the County of Ontario, save and except non-working foremen persons above the rank of non-working foremen and persons covered by subsisting collective agreements, constitute a unit of employees of the respondent appropriate for collective bargaining.

25. For the purposes of clarity, the Board declares that the bargaining unit description must be read in the context of the designation referred to in paragraph 3 herein.

26. The applicant filed eighteen combination applications for membership and receipts. The combination applications for membership are signed by the employees and the receipts are countersigned and indicate that a payment of at least $1.00 has been made within the six month period immediately preceding the terminal date of the application. The money was collected by one person. The applicant also filed four confirmations of membership. The confirmations are signed by the members, indicate that the persons in question are members in good standing of the applicant and also indicate that monthly dues ranging from $11.00 to $13.00 have been paid for at least one month within the six month period immediately preceding the terminal date of the application. The configurations contain a certification by an officer of the applicant that the person signing the confirmation is in fact a member in good standing. The applicant also filed a duly completed Form 54, Declaration Concerning Membership Documents, Construction Industry.

27. The respondent filed a reply, a list containing the names of 13 employees and specimen signatures within the time fixed in accordance with the Labour Relations Act and the Board's Rules of Procedure. The names on nine of the combination applications coincide with the names of employees on the respondent's list.

28. The Board is satisfied on the basis of all the evidence before it that more than fifty-five per cent of the employees of the respondent in the bargaining unit, at the time the application was made, were members of the applicant on June 8, 1981, the terminal date fixed for this application and the date which the Board determines, under section 103(2)(j) of the Labour Relations Act, to be the time for the purpose of ascertaining membership under section 7(1) of the said Act.

29. Section 144(2) of the Act, which states in part as follows, provides for the issuance of more than one certificate if the applicant has the requisite membership support:

the Board shall certify the trade unions as the bargaining agent of the employees in the bargaining unit and in so doing shall issue a certificate confined to the industrial, commercial and institutional sector and issue another certificate in relation to all other sectors in the appropriate geographic area or areas.

(emphasis added)

Therefore, pursuant to section 144(2) of the Act, a certificate will issue to the applicant affiliated bargaining agent on its own behalf and on behalf of all other affiliated bargaining agents of the employee bargaining agency named in paragraph 3 above in respect of all masonry restoration employees of the respondent in industrial, commercial and institutional sector of the construction industry in the Province of Ontario, save and except non-working foremen, persons above the rank of non-working foremen and persons covered by subsisting collective agreements.

30. Further, pursuant to section 144(2) of the Act, a certificate will issue to the applicant trade union in respect of all masonry restoration employees of the respondent in Metropolitan Toronto, The Regional Municipality of York and the County of Peel, the Township of Esquesing and the Towns of Oakville and Milton in the County of Halton and the Township of Pickering in the County of Ontario, excluding the industrial, commercial and institutional sector, save and except non-working foremen, persons above the rank of non-working foremen and persons covered by subsisting collective agreements.