Ontario Labour Relations Board
[1983] OLRB Rep. July 1104
0165-82-R; 0212-82-R; 0227-82-R; 0258-82-R; 0374-82-R United Brotherhood of Carpenters and Joiners of America, General Workers Local Union No. 1030, Province of Ontario, Applicant, v. Manacon Construction Limited, Respondent, v. Labourers' International Union of North America, Local 527, Intervener #1, v. Labourers' International Union of North America and Labourers' International Union of North America, Ontario Provincial District Council, Intervener #2; United Brotherhood of Carpenters and Joiners of America, General Workers Local Union No. 1030, Province of Ontario, Applicant, v. M. Sullivan and Son Limited, Respondent, v.Labourers' International Union of North America, Local 527, Intervener #1, v. Labourers' International Union of North America and Labourers' International Union of North America, Ontario Provincial District Council, Intervener #2, v. Labourers' International Union of North America, Local 247, Intervener #3; United Brotherhood of Carpenters and Joiners of America, General Workers Local Union No. 1030, Province of Ontario, Applicant, v. D'Angelo Plastering Company Limited, Respondent, v. Labourers' International Union of North America, Labourers' International Union of North America, Ontario Provincial District Council, and Labourers' International Union of North America, Local 527, Interveners; United Brotherhood of Carpenters and Joiners of America, General Workers Local Union No. 1030, Province of Ontario, Applicant, v. Leader Structures (Ontario) 1980 Limited, Respondent, v. Labourers' International Union of North America, Local 527, Intervener #1, v. Labourers' International Union of North America and Labourers' International Union of North America, Ontario Provincial District Council, Intervener #2; United Brotherhood of Carpenters and Joiners of America, General Workers Local Union No. 1030, Province of Ontario, Applicant, v. S. R. Lentz Construction Incorporated, Respondent
BEFORE: N. B. Satterfield, Vice-Chairman and Board Members H. Kobryn and J. Wilson.
DECISION OF THE BOARD; July 13, 1983
Decision
1The applicant ("Local 1030") has requested the Board to reconsider and revoke its decision in these matters which issued March 17th, 1983. Three grounds are cited for the request alleging that:
(a) the decision is contrary to the earlier decisions of the Board in Richard N. Steele Construction (1979) Ltd., Board File No. 0023-82-R and Ottawa Door Consultants Ltd., Board File No. 0044-82-R;
(b) the decision was based at least in part on grounds not argued before the Board; and
(c) the Board incorrectly interpreted sections 137(l)(a) and 146(2) of the Labour Relations Act, a result of which is to deprive the employees affected of the freedom to join a trade union of their choice, a right guaranteed by section 3 of the Act.
Item (b) above appears to be a reference to the Board's finding that Local 1030 was represented by the millwrights employee bargaining agency for collective bargaining in the industrial, commercial and institutional ("ICI") sector of the construction industry and to a concern expressed by the Board in paragraphs 41 and 42 of its decision with respect to a problem which, potentially, could arise from Local 1030 being expressly prohibited by the terms of its charter from representing carpenters in the ICI sector.
2The request for reconsideration was made by letter from counsel for Local 1030, the full text of which is set out hereunder.
We are acting on behalf of the Applicant in these matters. The Applicant is hereby requesting that the Board reconsider its decision dated March 17, 1983, pursuant to Section 106(l) of the Labour Relations Act.
It is submitted that the Board's decision is clearly contrary to its earlier decisions in the Richard D. Steele Construction (1979) Ltd. case, Board File No. 0023-82-R and Ottawa Door Consultants Ltd., Board File No. 0044-82-R. The Board also based its decision at least in part on grounds not argued before it and on which the Applicant, therefore, had no opportunity to make submissions. Finally, it is submitted that the Board's decision places an erroneous interpretation on its enabling statute and deprives employees the freedom to join the trade union of their choice, a right guaranteed by Section 1 of the Act.
The Applicant (obviously) does not dispute the Board's conclusion on the first issue before it wherein the Board found (in paragraph 24) that the Applicant does have the authority to accept into membership the employees for whom it sought certification in these applications.
Furthermore, the Applicant does not dispute the Board's conclusion that it is a "trade union" within the meaning of Section 117(f) of the Act, which reads:
"'trade union' means a trade union that according to established trade union practice pertains to the construction industry."
In this case, the applicant's parent organization (the United Brotherhood of Carpenters and Joiners of America), other chartered locals of the United Brotherhood and the Applicant itself, in its brief history, clearly have a practice pertaining to the construction industry.
The applicant does, however, dispute the Board's conclusion that it is an affiliated bargaining agent" within the meaning of Section 137(1)(a) of the Act. All of the Board's conclusions are based on this finding and if, as we respectfully submit, the Board is incorrect in this finding then all the Board's reasoning which follows is also incorrect:
Section 137(1)(a) reads as follows:
"'affiliated bargaining agent' means a bargaining agent that, according to established trade union practice in the construction industry, represents employees who commonly bargain separately and apart from other employees and is subordinate or directly related to, or is, a provincial, national or international trade union, and includes an employee bargaining agency.
Specifically, it is submitted that the Board was in error in concluding that the Applicant is a bargaining agent "that, according to established trade union practice in the construction industry, represents employees who commonly bargain separately and apart from other employees". It is submitted that the definition in Section 137(l)(a) is entirely different than the definition of a "trade union" in Section 117(f) and that the Board erred in concluding (in paragraph 30 of its decision) that the two sections have "the same purpose and effect". If that were so, then, why are there two separate and distinct definition sections'?
The evidence before the Board was that the United Brotherhood and its locals had a practice of representing not only carpenters and millwrights, but also construction labourers. In evidence before the Board were:
(a) thirty-six (36) certificates issued by the Board since 1971 to the United Brotherhood which covered construction labourers;
(b) two (2) certificates issued to Local 1669 and one (I) to Local 446 covering construction labourers;
(c) eighteen (18) certificates issued by the Board since 1971 to Lumber and Sawmill Workers Union, Local 2693 (another local chartered by the United Brotherhood) covering construction labourers;
(d) Local 2693's collective agreement with the General Contractors Division of The Construction Association of Thunder Bay Inc. binding seventeen (17) employers and covering construction labourers.
It is, therefore, submitted that the Board is in error in concluding as it did in paragraph 31 of its decision that the Applicant is a trade union that according to established trade union practice represents employees in the construction industry who bargain separately and apart from other employees (carpenters and millwrights). This finding flies in the face of the evidence that the Applicant was not chartered, nor had any history, nor any intention of representing carpenters in the I.C.I. sector of the construction industry.
Local 2693 is a case in point, it clearly is a trade union pertaining to the construction industry within the meaning of Section 117(f). However, since the introduction of provincial bargaining, it has not been regarded as an affiliated bargaining agent for carpenters since it has represented and continues to represent construction labourers.
In paragraph 32 of its decision, the Board concludes that the Applicant, while not covered by the Carpenters' designation order, is covered by the Millwrights' designation order. No evidence or submissions were made before the Board on this point. Millwrights are clearly a subdivision of the carpentry trade. The Carpenters Employee Bargaining Agency designation refers to "carpenters other than millwrights". This reference would be unnecessary if a millwright was not a subdivision of the carpentry trade. Since the Applicant was chartered to exclude carpenters in the I.C.I. sector of the construction industry, it is submitted that such exclusion would also cover millwrights. There was no evidence that the Applicant was chartered or intended to ever represent millwrights.
Since the Applicant is not represented by a designated employee bargaining agency (either the Carpenters or the Millwright Employee Bargaining Agencies), it is submitted that it is entitled to apply under Section 144(5) of the Act. The Applicant is in no different position that Lumber and Sawmill Workers' Union, Local 2693: a local chartered by the United Brotherhood which is not represented by an employee bargaining agency and which represents construction labourers. This comparison is one heavily relied upon by the Applicant in its submissions before the Board and yet no reference is made to this in the Board's decision.
The Board, in paragraph 37 of its decision, found that even if the Applicant was not represented by a designated employee bargaining agency, the result would be the same. This conclusion is still based on the conclusion that the Applicant is an affiliated bargaining agent, which we have dealt with earlier. In addition, the offence created by Section 146(2) it is submitted must be read in the context of what constitutes a "provincial agreement" as defined in Section 137(e) of the Act. A provincial agreement is binding on an affiliated bargaining agent but only where it is represented by the employee bargaining agency. The concept of an affiliated bargaining agent has no meaning except to the extent that it is represented by a designated bargaining agency and is covered by the provincial bargaining regime.
The result of the Board's decision is that the employees who have indicated a desire to be represented by the Applicant are denied the freedom to join the trade union of their choice. The effect of the Board's decision is that they can only be represented by the Labourers' Union, or possibly the Christian Labour Association of Canada or the National Council of Canadian Labour. It is submitted that this result runs counter to the freedom guaranteed by Section 3 of the Act.
Finally, in paragraphs 41 and 42, the Board expresses another "concern" with respect to an issue the Board indicated at the hearing it was not going to deal with at this point in time. We note there is no evidence before the Board that there were unrepresented carpenters employed by any of the employers on the dates of application. Indeed, we believe the facts to be that any carpenters were represented on the application dates.
Based on the foregoing, we respectfully request that the Board reconsider and revoke its March 17, 1983 decision in these matters.
3Counsel's letter was sent to the other parties for their comments. Replies were received from the respondent S. R. Lentz Construction .Incorporated (Board File No. 0374-82-R) and from counsel for the interveners. The respondent opposes the request for reconsideration but on grounds different from those raised in the request. The text of the response from counsel for the interveners is set out below:
We are in receipt of the Board's letter dated April 7, 1983 enclosing counsel's Request for Reconsideration dated April 5, 1983.
We wish to respond to the Request for Reconsideration as follows:
The Decision of the Board over-rules its earlier Decisions in Richard D. Steel Construction (1979) Ltd. O.L.R.B. File No. 0023-82-R and Ottawa Door Consultants Ltd., O.L.R.B. File No. 0044-82-R insofar as the Board determined in those cases that Carpenters' Local 1030 could represent an appropriate bargaining unit consisting of construction labourers in the industrial, commercial and institutional sector of the construction industry;
All aspects of the evidence and the grounds for the Decision including the application of the designations, were fully argued before the Board and in no respect was the Applicant denied an opportunity to make submissions;
The Board's Decision is not an erroneous interpretation of its enabling statute and clearly draws the distinction between the freedom of employees to join the trade union of their choice and the ability of certain trade unions to represent appropriate bargaining units in industrial, commercial and institutional sector of the construction industry in view of status as an affiliated bargaining agent.
In particular, the entire argument contained on pages 2, 3, 4 and 5 was exhaustively argued and expressly rejected by the Board in the course of the Decision. We wish to specifically refer to the fact that Carpenters' Local 2693, Lumber and Sawmill Workers, escapes from the Carpenters' Provincial Designation by virtue of its existence prior to the date of designation. Carpenters' Local 2693 is not listed as an affiliated bargaining agent on the face of the Carpenters' Designation and further does not fall within the "basket" clause which only covers local to be chartered subsequent to the issuance of the designation. The question remains open as to whether Carpenters' Local 2693 is an affiliated bargaining agent by virtue of the definition of same contained within Section 137(l)(a). Specifically, Carpenters' Local 2693 does pertain to the construction industry and represents employees who commonly bargain separate and apart from other employees namely construction labourers and of course is subordinate or directly related to the United Brotherhood of Carpenters and Joiners of America. We trust that this issue in relation to Local 2693 will arise before the Ontario Labour Relations Board in the near future.
We respectfully request that the Board ought to dismiss this Request for Reconsideration in view of the fact that the parties were afforded a full and fair hearing and no new evidence which could have been obtained with reasonable diligence and would have a material or determining effect on the decision of the Board is now available. The Interveners are entitled to rely upon the decisions of the Board in the knowledge that they are final and conclusive. The Board should not permit the Applicant to re-argue the merits of its case (see Loin-am Products (Canada) Ltd. [1978] O.L.R.B. Rep. Mar. 262 at 263; Ottawa Journal [1977] O.L.R.B. Rep. Sept. 549; Detroit River Construction Ltd. 63 C.L.L.C. 16,260).
4The principal findings of fact in the decision were that Local 1030, a newly chartered local union of the United Brotherhood of Carpenters and Joiners of America ("the United Brotherhood"), was an affiliated bargaining agent of the United Brotherhood within the meaning of section 137(l)(a) of the Act and that it was an affiliated bargaining agent represented by the Millwright District Council of Ontario of the United Brotherhood of Carpenters and Joiners of America and the United Brotherhood of Carpenters and Joiners of America ("the millwrights employee bargaining agency") but was not represented by the United Brotherhood of Carpenters and Joiners of America and the Ontario Provincial Council of the United Brotherhood of Carpenters and Joiners of America ("the carpenters employee bargaining agency"). Having found Local 1030 to be an affiliated bargaining agent represented by the millwrights employee bargaining agency, the Board concluded that:
(a) if Local 1030 wishes to make applications for certification which relate to the ICI sector, as do these applications, it would have to bring them under section 144(1) of the Act and could not bring them under section 144(5), which it was seeking to do (see paragraph 33 of the decision);
(b) for the reasons given in paragraphs 35 and 36 of the decision, these applications could not succeed under section 144(1) because a bargaining unit comprised of the construction labourers, cement finishers and waterproof applicators whom it was seeking to represent would not constitute an appropriate unit as prescribed by section 144(1); and
(c) even were Local 1030 not represented by the millwrights employee bargaining agency and, therefore, eligible to bring an application under section 144(5) of the Act, the Board would not issue a certificate because Local 1030 would be prevented by section 146(2) of the Act from concluding a lawful collective agreement for the employees in question.
The key sections of the Act relative to those findings and conclusions are sections 137(l)(a) and 146(2), the sections which the Board is alleged to have interpreted incorrectly. Since the significance of Local 1030's claim that the Board considered grounds not argued before it in arriving at its decision largely rests on the Board's interpretations of those sections, it will deal first with counsel's submissions with respect to those interpretations.
5The Board agrees with counsel's statement that, if the Board has interpreted incorrectly the definition of affiliated bargaining agent in section 137(l)(a) of the Act, all of its reasoning which follows the finding that Local 1030 is an affiliated bargaining agent is also incorrect. The Board's finding that Local 1030 is an affiliated bargaining agent is the keystone of its decision. According to counsel, the Board made two errors in its interpretation.
6Its first error was to conclude at paragraph 30 of its decision that sections 117(f) and 137(1)(a) have the same purpose and effect. That was not a conclusion reached by the Board. The Board had found in paragraph 29 that Local 1030 was a trade union that according to established trade union practice pertains to the construction industry, thus was a trade union within the meaning of clause (f) of section 117 of the Act. Since it was a new trade union without an established practice of its own, in order to make that finding, the Board relied on the established practice of the United Brotherhood, following the long-established policy described in paragraphs 27 and 28. Local 1030's newness posed a similar problem for the Board with respect to the definition of an affiliated bargaining agent in section 137(l)(a); that is, the requirement that an affiliated bargaining agent be a trade union that "~.. according to established trade union practice in the construction industry,..., represents employees who commonly bargain separately and apart from other employees. It went on to observe that the use of the emphasized phrase in the definition of an affiliated bargaining agent had the same purpose and effect as the use of the phrase '... according to established trade union practice ..." in clause (f) of section 117. The Board concluded that, having been prepared to rely on the established practice of the United Brotherhood, in the absence of any established practice of Local 1030, to find pursuant to clause (f) of section 117 that Local 1030 was a trade union which pertains to the construction industry, it was reasonable for the Board to take the same approach in interpreting the phrase "... according to established trade union practice…….;" used in section 137(l)(a); that is, examine and rely on the established practice of the parent trade union when the local is a new trade union with no practice of its own. Local 1030 is a newly chartered trade union without any evidence before the Board of it having an established practice of its own. Since it has been chartered to represent employees in the construction industry, however, and having regard for the fact that the United Brotherhood is a trade union that, according to established trade union practice in the construction industry, represents carpenters and millwrights, employees who commonly bargain separately and apart from other employees, the Board concluded that Local 1030 is also a trade union which represents carpenters and millwrights who are employees in the construction industry who commonly bargain separately and apart from other employees.
7That conclusion, according to applicant counsel, was the Board's second error with respect to its interpretation of section 137(1) a), since it was made in the face of Local 1030's evidence that it ". . - was not chartered, nor had any history, nor any intention of representing carpenters in the I.C.I. sector of the construction industry". Furthermore, it was made in the face of evidence that the Board had issued 36 certificates covering construction labourers to the United Brotherhood since 1971, two to its Local 1669, one to its Local 446 and 18 to its Lumber and Sawmill Workers Union, Local 2693, which union has a collective agreement with the General Contractors Division of The Construction Association of Thunder Bay binding 17 employers and covering construction labourers.
8The Board disagrees with counsel's argument that the Board was ignoring the evidence that Local 1030 "... was not chartered, nor had any intention of representing carpenters in the I.C.I. sector ....". The Board accepted in paragraph 22 the special conditions stipulated by William Konyha, the United Brotherhood's general president, which, inter alia, exclude Local 1030 from representing carpenters in the ICI sector. Furthermore it relied on that exclusion to find in paragraph 32 that Local 1030 was not captured by the "basket clause" of the carpenters employee bargaining agency designation. Neither of those findings required the Board to look behind Local 1030's chartering conditions or its constitution to the practice of Local 1030 or its parent. As the Board observed at paragraph 27 and 28 of the decision, the wording of clause (f) of section 117 of the Act requires more of the Board than simple reliance on the objects contained in an applicant's constitution in order to decide whether it is a trade union which pertains to the construction industry. The wording of the section requires the Board to see if those objects are sustained by an established practice, either of the applicant or the trade union which chartered it. Since Local 1030 was a newly chartered trade union, the Board accepted the established practice of its parent, the United Brotherhood. The wording of section 137(l)(a) also requires the Board to look beyond the chartering conditions and constitution of Local 1030 because of its reference to established trade union practice in the construction industry ...;". The Board took into account again the established practice of the United Brotherhood because Local 1030 was newly chartered and there was no evidence before the Board of any practice of its own. The Board found that the United Brotherhood satisfies the established practice requirement of section 137(l)(a). The request for reconsideration does not deny that fact. Based on that finding and on the evidence that Local 1030 had been chartered to organize and represent employees in the construction industry, the Board found it to be a trade union that represents employees in the construction industry (in other words carpenters and millwrights) who commonly bargain separately and apart from other employees and, therefore, was an affiliated bargaining agent of the United Brotherhood.
9The Board's conclusion is not inconsistent with the express limitation on Local 1030 representing carpenters. That limitation extends only to carpenters in the ICI sector, not to carpenters in any other sector of the construction industry. While the province-wide bargaining part of the Act deals only with bargaining in the ICI sector, affiliated bargaining agents are not limited to representing employees in that sector. This is clear from the absence from the definition of any reference to the ICI sector together with the express reference in the definition of a provincial agreement in clause (e) of section 137 as being binding on "... the employees represented by the affiliated bargaining agents and employed in the [ICI] sector of the construction industry…..”, a reference which would be superfluous if affiliated bargaining agents could only hold and exercise representation rights in the ICI sector. Moreover, the appropriate bargaining unit prescribed by section 144(1) clearly contemplates that they could represent employees in all other sectors.
10Nor is the Board's conclusion inconsistent with the evidence that the United Brotherhood and some of its locals have been certified to represent construction labourers. The certificates referred to were issued prior to .the existence in the Act of the province-wide bargaining part, so there was no affiliated bargaining agent definition in the Act. The Board only had to satisfy itself that they were trade unions which pertained to the construction industry within the meaning of what is now section 117(f) of the Act. The fact that they were certified to represent construction labourers does not determine the question of whether they are affiliated bargaining agents. Were the Board to accept this argument, it would have to conclude from that same evidence that the United Brotherhood and its Locals 446 and 1669 were not affiliated bargaining agents, notwithstanding the fact that they are named in the Minister's designation of the carpenters employee bargaining agency as affiliated bargaining agents represented by that agency. Since there has been no challenge to them being included in the designation, it has not been necessary for the Board to decide whether they are affiliated bargaining agents within the meaning of section 137(l)(a). Certainly Local 1030 is not challenging their status. Conversely. Lumber and Sawmill Workers Union, Local 2693 ("Local 2693") is not one of the locals of the United Brotherhood named either in the carpenters or the millwrights designations; but that does not mean that it is not an affiliated bargaining agent of the United Brotherhood. The fact that it has not been named as an affiliated bargaining agent in any designation of an employee bargaining agency is not determinative of the question.
11If the mere exclusion of an affiliated bargaining agent from the bargaining unit described in a designation order had the effect of determining affiliated bargaining agent status, there would seem to be no need for the powers granted to the Minister by section 139(2 of the Act which provides:
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 (I), and subsection 146(2) shall not apply to such exclusion.
A simple statement in the order excluding the particular bargaining agent from it would suffice. Similarly, if, as counsel for Local 1030 contends, "The concept of an affiliated bargaining agent has no meaning except to the extent that it is represented by a designated bargaining agency and is covered by the provincial bargaining regime,", there would be no need for the express powers conferred by section 139(2) on the Minister to exclude from a designation order certain bargaining relationships of affiliated bargaining agents and to exclude those affiliated bargaining agents from application of section 146(2) of the Act. The presence in the Act of section 139(2) supports a conclusion that a decision whether to include a particular local of an employee bargaining agency in the bargaining unit description of the designation order neither deprives the local of the benefits or excludes it from the limitations of affiliated bargaining agent status if otherwise it satisfies the definition of an affiliated bargaining agent in section 137(1) of the Act. The issue of whether a local trade union which had not been included in the designation order to which its parent organization was a party was before the Board in Diversified Sheet Metal Limited, [1981] OLRB Rep. Nov. 1575. Sheet Metal Workers Association Local Union No. 285 was not named in the Minister's designation of the sheet metal workers employee bargaining agency, but when the issue of whether it was an affiliated bargaining agent came before the Board, the Board found that it was an affiliated bargaining agent of the Sheet Metal Workers Association within the meaning of the Act, notwithstanding the absence of Local 285 from the designation order.
12It is the Board's view, therefore, that it has construed correctly the definition of an affiliated bargaining agent in section 137(l)(a) of the Act. Accordingly, the Board confirms its finding in paragraph 32 of its decision that Local 1030 is an affiliated bargaining agent within the meaning of that section.
13The other section of the Act which counsel for Local 1030 contends has been misconstrued by the Board is section 146(2). Counsel submits that"... the offence created by Section 146(2) ... must be read in the context of what constitutes a 'provincial agreement' as defined in Section 137(e) of the Act.". Counsel submits further that a provincial agreement is binding on an affiliated bargaining agent only if it is represented by an employee bargaining agency and that the concept of an affiliated bargaining agent has no meaning except to the extent that it is represented by a designated bargaining agency and is covered by the provincial bargaining regime. Nowhere in the Board's decision does it say that a provincial agreement is binding on an affiliated bargaining agent which is not represented by a designated employee bargaining agency. Nor can it be construed to say that. The Board presumes that counsel is saying that an affiliated bargaining agent not represented by an employee bargaining agency is not affected by the express prohibition in section 146(2) against bargaining for, attempting to bargain for or concluding any collective agreement or other arrangement affecting employees represented by affiliated bargaining agents other than a provincial agreement. The Board found that this prohibition applied to Local 1030 because it is an affiliated bargaining agent. We disagree with counsel's conclusion and, as stated in paragraph 11 above, we disagree with his conception that an affiliated bargaining agent only has meaning if it is represented by an employee bargaining agency and is bound by a provincial agreement. The Board's construction in paragraph 37 of the decision of section 146(2) and its conclusion that the express prohibition of the section applies to an affiliated bargaining agent whether or not it is represented by an employee bargaining agent is consistent with a similar conclusion reached at paragraph 7 of its decision in Diversified Sheet Metal, supra. In that case, the Board, having found that the applicant was an affiliated bargaining agent, although not represented by an employee bargaining agency, went on to find that "Although the local is not included in the designation [of the sheet metal workers employee bargaining agency], that fact does not exempt it from the strictures of section 146(2) and section 145(1) ...:". The Board then quoted verbatim those sections emphasizing the phrase affecting employees represented by affiliated bargaining agents ...." in section 146(2) and the phrases "... in respect of employees employed in the [ICI] sector ..." and represented by affiliated bargaining agents ...." in section 145(1). The Board concluded by stating that "These sections clearly apply to employees represented by affiliated bargaining agents and employed in the [ICI] sector of the construction industry.".
14The Board finds other support for the conclusion that the express prohibition of section 146(2) applies to an affiliated bargaining agent whether or not it is represented by a designated employee bargaining agency. The definition of affiliated bargaining agent contains no reference to representation by an employee bargaining agency and, as noted at paragraph 9 above, no reference to the ICI sector. The term affiliated bargaining agent is used in many sections of the province-wide bargaining part of the Act sometimes modified by reference to representation by an employee bargaining agency or representation of employees employed in the ICI sector and other times absent such modification. In the Board's view, this reflects the fact that many affiliated bargaining agents represent employees in sectors other than ICI, a fact which is a matter of Board record. Finally, as stated in paragraph 11 above, there would be no need for the Minister to have the express power to exclude from the requirements of section 146(2) affiliated bargaining agents which have been excluded from designation orders with respect to certain of the affiliated bargaining agents' bargaining relationships if counsel's conclusion was correct.
15Accordingly, the Board is satisfied that it construed correctly section 146(2) of the Act when, at paragraph 37 of its decision, it concluded that the section would be a bar to Local 1030 concluding a lawful collective agreement with respect to employees in the ICI sector. Therefore the Board reaffirms its finding that Local 1030 cannot make a lawful agreement with respect to employees in the ICI sector.
16One of the effects of these interpretations of section 137(l)(a) and 146(2) of the Act, counsel for Local 1030 contends, is to deny the employees who are seeking to have Local 1030 represent them the freedom to join a trade union of their choice and that this result runs counter to section 3 of the Act. The Board does not agree. The Board's decision does not limit or restrict the freedom of the employees, in the words of section 3,"... to join a trade union of [their] own choice and to participate in its lawful activities.". The Board's decision simply limits to a degree the ability of the union which they have joined to represent them in collective bargaining. In the Board's view, that limitation is no different than many of the other limitations contained in the Act which may be placed on a particular trade union's ability to represent employees in collective bargaining; for example, the Board's authority to determine appropriate bargaining units, the timeliness of representation applications and the exclusivity of bargaining agents. No one has suggested, nor can it be reasonably suggested, that these restrictions run counter to section 3. The Board is of the view that the province-wide bargaining regime created by the province-wide bargaining part of the Act is of a similar nature.
17Clearly, the Legislature has created a regime of province-wide bargaining in the ICI sector of the construction industry and the Minister, pursuant to his authority under that part of the Act, has identified the kinds of trade unions which are to have access to that regime and be governed by it, that is, the designated employee bargaining agencies and their affiliated bargaining agents. They receive its benefits, such as province-wide recognition in the ICI sector as exclusive bargaining agents for their members employed in the trades for which those unions have been designated. Those trade unions are also affected by the regime's limitations on their bargaining, such as the limitation with respect to agreements or other arrangements imposed by section 146(2) or the limitations under sections 144(1) and 144(4) with respect to how they are to obtain bargaining rights in the ICI sector. Trade unions not captured by those designation orders and which are not affiliated bargaining agents are still free to represent employees in the ICI sector and other sectors pursuant to the provisions of section 144(5). Prior to the advent of the province-wide bargaining part of the Act, employees' choices of a bargaining agent affected whether they would be represented in collective bargaining under the construction industry provisions of the Act. For example, their choice of a trade union would determine whether their applications for certification would be processed under the construction industry provisions of the Act and whether they would be entitled to a craft-type bargaining unit. If they wished to have their application processed under the construction industry provisions, they had to select a trade union which pertains to the construction industry. If they wished to have a craft-type bargaining unit, they had to select a trade union which could satisfy the requirements of section 6(3) of the Act, or at least had been found by the Board to be a trade union which was entitled to a bargaining unit defined in terms of its trade, like the International Union of Operating Engineers or the Labourers International Union of North America. The addition of the province-wide bargaining part of the Act simply has had the effect of altering the range of choices for employees who work in the ICI sector. If they wish to be part of the province-wide bargaining regime, they must select a union which is designated for their trade for that purpose. If they do not wish to be part of the province-wide bargaining regime, they must select a trade union which is not part of it.
18The Board turns now to the claim that it erred in concluding that Local 1030 is covered by the millwrights designation order. Counsel asserts that the prohibition on Local 1030 with respect to carpenters in the ICI sector included millwrights because millwrighting is a subdivision of the carpentry trade. Counsel further asserts that there was no evidence that Local 1030 was chartered or intended to ever represent millwrights. The latter assertion only holds true if the carpenter exclusion incorporates millwrights. The evidence before the Board is that the charter received by Local 1030 was identical to the charters issued to all locals of the United Brotherhood and is without reference to the trade or geographic jurisdiction granted to Local 1030. Therefore such jurisdiction would issue from the constitutions of the United Brotherhood and Local 1030, subject to the modifying terms of general president Konyha's letter granting the charter. See paragraphs 9, 10 and II of the Board's decision. The trade jurisdiction in the constitutions would be that of the carpenter and joiner trade in all of its divisions and subdivisions. Therefore if the trade jurisdiction described by Konyha's letter does not have the effect of excluding millwrights, they are included within the scope of Local 1030's charter.
19Counsel points to the fact that the designation of the carpenters employee bargaining agency excludes millwrights by the phrase "carpenters other than millwrights and argues that there would be no need to do so if millwrighting was not a subdivision of the carpentry trade. The fact that the Minister has excluded millwrights from the carpenters employee bargaining agency designation is neither a finding that millwrighting is part of the carpentry trade nor that carpentry and millwrighting are two separate trades. It is simply recognition of what was the bargaining pattern in the ICI sector at the time the designations were made. That circumstance is reflected in the Board's record. It is a matter of Board record that eight locals of the United Brotherhood have certificates of status on file with the Board as trade unions within the meaning of section l(l)(p) of the Act. They also have status as trade unions which pertain to the construction industry within the meaning of section 117(f) of the Act and are craft trade unions within the meaning of section 6(3) of the Act which, when they apply for certification, entitles them to seek a craft unit of millwrights and apprentices. The Millwright District Council of Ontario, which is joined with the United Brotherhood in the Minister's designation to form the millwrights employee bargaining agency, has been certified by the Board under section 10 of the Act as a certified council of trade unions to represent those eight locals in collective bargaining without reference to sector, in other words, across all sectors of the construction industry, with the exception of one local for which the Council can bargain in the ICI sector only. It is also a matter of Board record that the Millwright District Council of Ontario has its counterpart in other Carpenters District Councils which have been certified by the Board as certified councils of trade unions to represent in collective bargaining, without, reference to sector, other locals of the United Brotherhood which have bargaining rights for units of carpenters and carpenters apprentices. The Board's consistent practice over many years has been to grant to the United Brotherhood, its certified district councils and its locals bargaining units described in terms either of carpenters or millwrights. It is patently clear therefore, no matter how the constitutions refer to millwrights, the Board has recognized carpenters and millwrights as distinct crafts under section 6(3) of the Act. The Board's interpretation of the limitation in Local 1030's charter is entirely consistent with that distinction of carpenters and millwrights as separate crafts.
20Even if the Board has erred by not according to the term "carpenter", as used in Kohyha's letter granting the charter to Local 1030, the broader meaning counsel claims for it under the United Brotherhood's constitution, it would still find Local 1030 to be captured by the basket clause of the millwrights designation. The admitted purpose of the charter limitation was to create Local 1030 as a trade union to be in no different position than Lumber and Sawmill Workers' Union, Local 2693, with the intent that it be a trade union with access to section 144(5) of the Act. In order to achieve this purpose, it was deemed necessary to charter it in such a way as to avoid being swept in by existing designations affecting newly chartered locals of the United Brotherhood, of which there were two, the carpenters and the millwrights. Since the formal charters issued to new locals contain no reference to their trade jurisdiction, the Board has to rely on supporting documents, such as Konyha's letter in the instant case, to determine that jurisdiction. The designation orders distinguish carpenters and millwrights and Konyha's letter does not. In the absence of any clear exemption of millwrights in the ICI sector from Local 1030's charter jurisdiction, the Board presumed that they were free to represent millwrights and, therefore, were captured by the basket clause of the millwrights designation. This is a reasonable presumption, particularly in light of the sweeping nature of the inclusive description of Local 1030's jurisdiction with respect to "other construction workers".
21The parallel which counsel drew in the hearings between Local 1030 and Lumber and Sawmill Workers' Union, Local 2693, and reiterated in the request for reconsideration, is of no assistance to his claim that Local 1030 should have access under section 144(5) of the Act. Since the coming into force of the province-wide bargaining part of the Act, Local 2693 has not had to determine its status under section 144 or to determine whether it is affected by the strictures of section 146(2) of the Act. While it would certainly qualify as a trade union which, on the strength of its own practice, pertains to the construction industry within the meaning of section 117(f) of the Act, that same practice would not likely satisfy the requirement of section 137(l)(a) of being ".... a bargaining agent that, according to established trade union practice in the construction industry, represents employees who commonly bargain separately and apart from other employees ….". There is no assertion that Local 2693 bargains separately and apart for carpenters according to established trade union practice in the construction industry, and, if in fact it does not, it was properly excluded from the Minister's designation order for carpenters. The collective agreement between Local 2693 and The Construction Association of Thunder Bay Inc., on which counsel relies does not purport to cover carpenters, but it does purport to cover classifications other than construction labourers such as truck drivers, operators of cranes, shovels and other equipment, mechanics and welders. If in fact Local 2693 represents those classifications together with construction labourers, it is not reasonable to say that it bargains separately and apart for construction labourers. In fact, the established practice in the construction industry with respect to crane and shovel operators, for example, and persons primarily engaged in the maintenance of such equipment, is for the International Union of Operating Engineers to represent them in collective bargaining. In such circumstances, Local 2693 is not likely to satisfy the first requirement of the affiliated bargaining agent definition in section 137)1 )(a) of the Act and is not likely an affiliated bargaining agent.
22Furthermore, with respect to construction labourers, the established trade union practice in the construction industry is for them to be represented in collective bargaining by the Labourers' International Union of North America and the designation order for construction labourers was made to that international union. Since that order covers only affiliated bargaining agents of the Labourers International Union of North America, Local 2693 would not be included in it. Not having been included in the designation order for carpenters or labourers (or for that matter, for any other trade), Local 2693 would not be represented by a designated employee bargaining agency, would be outside of the provincial bargaining regime and would not have access to the carpenters provincial agreement or that of any other trade. If it is not an affiliated bargaining agent, it would not be subject to the prohibition in section 146(2) against concluding any collective agreement or other arrangement than the provincial agreement in respect of employees in the ICI sector. Since it would have access to section 144(5) of the Act and also could conclude a lawful collective agreement covering employees in the ICI sector, it would be free to represent ICI employees in any bargaining unit found by the Board to be appropriate for collective bargaining. In that respect, it would differ from a trade union like Local 285 of the Sheet Metal Workers Association in Diversified Sheet Metal, supra. While Local 285 had not been included in the sheet metal workers designation order and, therefore, was outside of the provincial bargaining regime, it was precluded by section 146(2) from being able to conclude a lawful collective agreement for the sheet metal workers employed in the ICI sector whom it was seeking to represent. The Board declined, therefore, to process Local 285's application for certification under section 144(5) even though it was entitled to apply under that section.
23The request for reconsideration does not make it clear whether the millwrights designation order is one of the grounds which Local 1030 claims was not argued before the Board. The millwrights designation is one of two to which the United Brotherhood is a party. The designation is not only a matter of Board record, but the United Brotherhood is one of the parties to which it was issued and under which it has performed as an employee bargaining agency jointly with its Millwrights District Council of Ontario. Therefore, it must have been patently obvious to Local 1030 that any question of whether it was an affiliated bargaining agent of the United Brotherhood and whether it was represented by a designated employee bargaining agency would involve both the carpenters and the millwrights designations. For whatever reason it chose not to deal with the millwrights designation, it must now accept the consequences.
24The request for reconsideration correctly states that the Board's decision is contrary to its earlier decisions in Richard D. Steele Construction (1979) Ltd., Board File No 0023-82-R which issued April 29th, 1982 and Ottawa Door Consultants Ltd., Board File No. 0044-82-R which issued May 17th, 1982, both unreported. As the Board noted at paragraph 6 of its decision, however, those decisions, in which Local 1030 was granted certification, were issued without a hearing. Therefore, when the Board made the necessary finding that Local 1030 was not an affiliated bargaining agent, it did 50 absent any argument that Local 1030 was an affiliated bargaining agent. The interveners in the instant applications have raised that issue. Therefore the issue was properly before the Board and it was necessary for the Board to exercise it jurisdiction, deal with it afresh and determine Local 1030's status in that respect. It would have been a failure of jurisdiction not to do 50.
25The Board turns finally to the reference in the last paragraph of counsel's request about paragraphs 41 and 42. These paragraphs simply express the Board's concern about the potential for conflict between the Board's policy for determining and describing appropriate bargaining units in the construction industry and Local 1030's inability to) represent carpenters in the ICI sector. Since there was no evidence of carpenters being employed by any of the respondents on the date when these applications were made, bargaining units described in terms of all unrepresented trades might be appropriate. On the other hand, in circumstances where unrepresented carpenters were employed, bargaining units described in those terms would not be appropriate. However, in the absence of evidence of carpenters being employed on the date of application, the decision contains no finding with respect to the presence of unrepresented carpenters. Therefore there is no) need for Local 1030 to make argument on the subject matter of the two) paragraphs.
26In summary, the issue of whether Local 1030 is an affiliated bargaining agent of the United Brotherhood was properly before the Board in these applications notwithstanding the Board's two earlier decisions to the contrary. Therefore it was a necessary exercise of the Board's jurisdiction to decide that issue. The parties had full opportunity to present their evidence and make their representations thereon, including the opportunity to call evidence on the carpenters and millwrights employee bargaining agency designations, the two agencies to which the United Brotherhood is a party. The parties argued fully the issue of whether Local 1030 is an affiliated bargaining agent of the United Brotherhood and whether it was represented by the carpenters employee bargaining agency. The Board decided that issue, and the parallel one with respect to the millwrights designation, on the evidence before it and on a matter of Board record to which the United Brotherhood is a party. With respect to the Board's expression of concern in paragraphs 41 and 42 of the decision about a potential problem where there might be unrepresented carpenters employed, the Board made no finding that there were any with respect to these applications. Therefore, the Board has not based its decision in part either on grounds not argued before the Board or on grounds which the parties did no)t have full opportunity to argue. Nor has the Board erroneously interpreted its enabling statute, in particular, sections 137(l)(a) and 146(2) thereof and its interpretation does not have the result of depriving the employees of the freedoms contained in section 3 of the Act.
27While it appears that one result of the Board's interpretation of those two sections is that a building trades union could not charter a new local which could operate in the ICI sector outside of the provincial bargaining scheme, that conclusion would be incorrect. No doubt a trade union newly chartered by an established building trades union and therefore having no construction industry practice of its own would, if it sought certification under section 144 of the Act, encounter the same result as the applicant herein. That is, the Board would rely on the practice of its parent organization and sister locals in order to determine whether the new local was a trade union within the meaning of section 117(f) and an affiliated bargaining agent within the meaning of section 137(l)(a). In all likelihood, the evidence would lead to a positive finding in both instances. On the other hand, if the new local proceeded to obtain voluntary recognition from construction industry employers as bargaining agent for their employees in a variety of the building trades and, by so doing, build up a practice of its own of representing construction industry employees across a number of trades, it would be able on the strength of its own practice to satisfy section 117(f), but would fail to satisfy the first requirement of section 137(l)(a) of representing employees who, according to established trade union practice in the construction industry, commonly bargain separately and apart from other employees. Therefore it would be a trade union which pertains to the construction industry but would not be an affiliated bargaining agent and would be eligible to apply for certification under section 144(5) of the Act. In that event, the strictures of section 146(2) with respect to agreements or other arrangements covering employees in the ICI sector would not operate to prevent it from concluding a lawful collective agreement with respect to that sector.
28The Board's experience demonstrates that such a result is attainable. In a somewhat analogous context, Local 183 of the Labourers' International Union of North America which customarily had been entitled to a construction industry bargaining unit described in terms of all construction labourers employed by the employer without the need to represent any other unrepresented trades employed by that employer at the time of an application for certification, by building a practice of representing employees across several trades employed by employers in residential concrete forming work, qualified in 1974 to be certified as bargaining agent for a bargaining unit of employees described in terms of "... all employees of the [employer] engaged in concrete forming on residential building projects .9 in the Board's geographic area #8. See Peniche Construction Forming Ltd., [1974] OLRB Rep. 208. Local 183 was certified for such a unit in that case by demonstrating a practice of representing employees who worked as a crew exercising skills of more than one craft, with each member of the crew performing the work of its other members. The effect of that decision was to enable Local 183 to be certified for that type of unit regardless of whether the employer had at the time of the application employees in other trades falling outside of the unit who were not represented by any trade union. Thus Local 183, by its demonstrated practice, was able to bring itself outside of the Board's policy of not describing construction industry bargaining units in terms of "all employees". That policy deemed units described in terms of all employees of the employer not to be appropriate in the construction industry since such units created an opportunity for jurisdictional disputes between trade unions over work assignments. The Board had consistently applied that policy since its decisions in A. K. Penner & Sons Ltd., [1966] OLRB Rep. Oct. 493 and Winter and Son Limited, 11966[ OLRB Rep. Oct. 889. Those decisions served notice on construction industry employers and trade unions of that policy. See Practice Note 11 in the Board's Rules of Procedure, Regulations and Practice Notes, December 1981. See also the Board's decision in Matterhorn Construction (Hamilton) Limited, [1981[ OLRB Rep. Sept. 1276 referred to in paragraph 41 of the decision under reconsideration here.
29A newly chartered local of a non-building trades union, or for that matter an established local with no practice of representing employees in the construction industry, also would be able to be certified to represent employees employed in the ICI sector of the construction industry. Since, however, it would have no practice of its own and since its parent organization likely would not have a practice on which the new local could rely to make it a trade union pertaining to the construction industry within the meaning of section 117(f), it would have to apply for certification under the general provisions of the Act. Thus the employees whom it sought to represent would have to constitute a bargaining unit which could be found appropriate under section 6(1) of the Act. Normally this would be a unit described in terms of employees in all unrepresented trades employed by the employer within an appropriate municipality at the times material to the application. Once the local had developed a practice of its own which would enable a finding by the Board that it is a trade union which pertains to the construction industry pursuant to section 117(f), it would be entitled to apply for certification under section 144(5) of the Act. Its own practice would likely prevent the Board from finding that it was an affiliated bargaining agent, so it would be able to apply to represent employees employed in the ICI sector and it would not be affected by the strictures of section 146(2).
30The Board is constrained not to conclude this decision without commenting on the obvious purpose of the chartering of Local 1030 as a new local. As the Board has already noted in paragraph 17 above, the province-wide bargaining part of the Act has brought to those trade unions which are part of that bargaining regime new benefits and new limitations. What the United Brotherhood is attempting to do is to enjoy all of the benefits of province-wide bargaining, while at the same time by its chartering of Local 1030, seeking to devise a vehicle which would enable the United Brotherhood to get outside of some of the regime's strictures, such as those imposed by sections 144(1) and 146(2). In other words, it is seeking to employ Local 1030 to enable the United Brotherhood to escape the reach and purpose of the province-wide bargaining part of the Act. The fact that there are already two locals of the United Brotherhood with geographic jurisdiction in the Ottawa area where Local t030 is based serves to heighten the subterfuge at play here. The province-wide bargaining part of the Act was added to it by The Labour Relations Amendment Act, 1977, S.O. c.31 ("Bill 22"). The legislative purpose of that amendment was first to recognize existing bargaining rights and patterns in the IC! sector and then to structure around them a province-wide bargaining regime, the objective of which was to stabilize the collective bargaining process in this significant sector of the construction industry. It is wholly inconsistent with that objective and clearly not contemplated by the Legislature that these provisions be interpreted in a way which would generate major and fundamental instability in the collective bargaining process. In not permitting the United Brotherhood to escape the reach and purpose of the provincial bargaining regime by the technique of chartering a local which appears to satisfy the form of the province-wide bargaining part of the Act without due regard for its purpose, the Board is giving primacy to substance over form.
31Having regard for all of the foregoing, the Board finds that the parties have had a full and fair hearing and the request for reconsideration contains neither any new evidence which previously, with due diligence, could not have been obtained nor any request to make representations not already considered by the Board. Furthermore, the request for reconsideration does not raise any other grounds which would cause the Board to reconsider, vary or revoke its decision.
32In the result, the Board is of the opinion that it should not reconsider, vary or revoke its decision which issued in these matters March 17, 1983 and the applicant's request is therefore denied.