[1983] OLRB Rep. March 403
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.
APPEARANCES: Douglas J. Wray, T G. Harkness and J. C. Carruthers for the applicant; Pierre Jauvin appearing for Manacon Construction Limited, DAngelo Plastering Company Limited and Leader Structures (Ontario) 1980 Limited; Stephen R. Lentz appearing for S. R. Lentz Construction Incorporated; S. B. D. Wahl, T Connolly and P. Roy appearing for the interveners.
DECISION OF THE BOARD: March 17, 1983
1Pursuant to the findings herein as to the proper name of the applicant, the name of the applicant is amended to read: "United Brotherhood of Carpenters and Joiners of America, General Workers Local No. 1030, Province of Ontario."
2These are five applications for certification which were listed for hearing together with respect to two issues common to all five applications. The application in Board File No. 0165-82-R has been the subject of two earlier decisions, in the first case by the Board as constituted herein and without a hearing, and in the second case, by the Board differently constituted and after a hearing. The applicant has requested in its applications in Board Files No. 0227-82-R and No. 0258-82-R that pre-hearing representation votes be held. Pursuant to a ruling of the Board in the second decision issued with respect to Board File No. 0165-82-R, the hearing in these applications were held in Ottawa.
3During two days of hearings separated by some three months, the Board heard the evidence and representations of the parties on the two issues common to the five applications; that is,
(a) whether the applicant ("Local 1030") could take into membership persons other than carpenters, joiners and their apprentices and,
(b) whether the bargaining units sought by Local 1030 were appropriate under section 144 of the Labour Relations Act.
By the end of the first day Local 1030 had completed its evidence in chief and the interveners had started to call their evidence. Three months later when the hearing resumed, counsel for the interveners sought to call evidence to show that seven of the ten persons who purported to be the charter members of the Local 1030 were members of Local 527 at the time when they applied for the charter and continue to be members. That made the charter invalid, counsel contended, because the constitution of the United Brotherhood of Carpenters and Joiners of America ("the United Brotherhood") prohibits its members from retaining membership in trade unions having overlapping or competing jurisdiction with it. Counsel for the Local 1030 objected to the matter being raised at this point in the proceedings and to its relevance. In view of the stage of the proceedings and in the absence of any prior notice of intent to raise the issue, the Board refused to hear the evidence which the interveners were seeking to introduce.
4The five applications were brought under subsection 5 of section 144 of the Act. The bargaining units described in each application differ from one another in various respects, but they share the common feature that Local 1030 seeks to represent a trade or trades other than the carpenter trade in units which would include the industrial, commercial and institutional (ICI) sector of the construction industry. In all but File No. 0374-82-R, Local 1030 is applying to represent construction labourers, cement finishers, and waterproof applicators in the ICI sector in the Province of Ontario and, except for File No. 0212-82-R, in all other sectors of the construction industry in one or more of the Board's geographic areas #13, #14, #15 and #31. In File No. 0374-82-R, Local 1030 seeks to represent only construction labourers in Board area #15 in a unit described without reference to sector.
5The issue with respect to the appropriateness of the bargaining units which is common to the five applications revolves around whether Local 1030 is an affiliated bargaining agent within the meaning of clause (a) of section 137(1) of the Act. The interveners claim that it is and, further, that it is captured by the carpenters employee bargaining agency designation. According to the interveners this makes it a trade union which, if it wishes to make an application for certification that relates to the ICI sector, must apply under section 144(1) of the Act; and, if it wishes to make an application which does not relate to that sector, it must apply under section 144(3). Conversely, the interveners maintain that Local 1030 is not a trade union which can bring an application under section 144(5) of the Act. The reason why the interveners wish to confine Local 1030 to section 144(1) when making applications which relate to the ICI sector for bargaining rights for construction labourers, is that Intervener #2 in the Manacon application is the designated employee bargaining agency for a provincial bargaining unit of affiliated bargaining agents who represent construction labourers in the ICI sector. For reasons more fully set out in the argument of the interveners' counsel later in this decision, the interveners hold to the view that there would be no appropriate bargaining unit of construction labourers which Local 1030 could represent that would satisfy section 144(1) of the Act, thus its application should be dismissed. Local 1030, not surprisingly, takes the opposite view that it is not an affiliated bargaining agent and is not represented by a designated employee bargaining agency. As such, it would be a trade union which is eligible to make applications for certification (or enter into voluntary recognition agreements) on its own behalf under section 144(5) of the Act. Local 1030 contend further that bargaining units of all unrepresented trades at work on the dates of making these applications would be appropriate ones under section 144(5) pursuant to the Board's approach to defining bargaining units in the construction industry.
6Local 1030 had been certified twice by the Board prior to the making of these applications. In Board file No. 0023-82-R, Richard D. Steele Construction (1979) Ltd., a decision which issued April 29th, 1982, Local 1030 was certified to represent a unit of construction labourers in the Board's geographic area #30, a unit which was described without reference to sector. The unit was described pursuant to section 6(1) of the Act and the only employees at work on the date of the application were construction labourers. In Board file No. 0044-82-R, Ottawa Door Consultants Ltd., an unreported decision which issued May 17th, 1982, Local 1030 was certified for all employees of the respondent in the Regional Municipality of Ottawa-Carleton engaged in the installation, repair and maintenance of doors, excluding, inter alia, carpenters and carpenters' apprentices who were employed by the respondent and already represented by Local 1030's sister Local 93. That unit was determined pursuant to the provisions of section 6(1) of the Act too. Both of these certifications were issued without any hearing. In Steele Construction, supra, the Board found on the evidence before it that Local 1030 was a trade union within the meaning of section l(l)(p) of the Act, but was not an affiliated bargaining agent within the meaning of article (a) of section 137(1). Consequently, the Board found that the application was an application for certification pursuant to section 144(5) of the Act. The Board did not make a specific finding that the applicant was, in the words of clause (1) of section 117, "... a trade union that according to established trade union practice pertains to the construction industry.". It did find, however, that the application had been made pursuant to section 119 of the Act. That section mandates the Board to determine appropriate bargaining units by reference to a geographic area and not to confine the unit to a particular project. In order for the Board to make that finding, it had to be satisfied that the applicant was a trade union which pertains to the construction industry within the meaning of clause (f) of section 117 of the Act.
7These five applications for certification are the first instances in which the issues have been raised and joined with respect to Local 1030's ability to take into membership persons other than carpenters, joiners and their apprentices and its status to file applications for certification pursuant to section 144(5) of the Act. The interveners contend that Local 1030 is an affiliated bargaining agent within the meaning of the Act and, therefore, is limited to making applications for certification under section 144(1) of the Act if they relate to the ICI sector of the construction industry or under section 144(3) of the Act if they relate to other sectors.
8The Board heard the evidence of two witnesses on behalf of Local 1030 and one on behalf of the interveners and from their evidence it makes the following findings of fact.
9The charter was issued March 1st, 1982 by the United Brotherhood to Local Union No. 1030. The charter is signed by William Konyha, General President and by John S. Rogers, General Secretary of the United Brotherhood. The charter was installed at a meeting called for that purpose on March 25th, 1982. The meeting approved the Constitution and Laws of the United Brotherhood. Those present signed applications for membership and voted to adopt the Constitution and Laws of the United Brotherhood as the Constitution and Laws of Local 1030. The election of officers was also held at that meeting.
10The charter was issued in response to an application for charter made by ten persons on February 10th, 1982. The text of the application reads as follows:
In accordance with Section 29 of the Constitution and Laws of the United Brotherhood, we enclose herewith a money order of $50.00 together with our Charter Application. We seek a Charter for a Local Union to be called, 'General Construction Workers, Local
The jurisdiction we seek is 'helpers, including labourers, and other construction workers (excluding carpenters and carpenter apprentices, who are employed in the Industrial, Commercial and Institutional Sector of the Construction Industry)'
We expect that our office will be based in Ottawa and we seek authority to organize and represent workers in the above trade jurisdiction throughout the Province of Ontario.
The application was acknowledged by Konyha in a letter dated February 25th, 1982 addressed to Mr. Thomas Harkness, Director, Canadian Regional Organizing Office, with a copy indicated to Germain Picard which is the same name that appears as the first signature on the application for charter. The text of the letter is set out below:
I am in receipt of a request for charter for a Local Union to be called 'General Workers Union' and in accordance with Section 29 of the Constitution and Laws this request was accompanied by money order in the amount of $50.00.
The jurisdiction requested is 'helpers', including Labourers, and other construction workers (excluding carpenters and carpenter apprentices, who are employed in the Industrial, Commercial and Institutional Sector of the Construction Industry).'
I am approving of the application for a benefit schedule I local union to be known as General Workers Local Union No. 1030, Province of Ontario, to be effective March 1, 1982.
It is my understanding that the office will be based in Ottawa, Ontario and Local Union No. 1030 will organize and represent workers in the above trade jurisdiction throughout the Province of Ontario.
The charter and outfit will be shipped to you for installation.
(emphasis added)
11The charter issued to Local 1030 is the same as those issued to other local unions of the United Brotherhood, including locals of its Lumber and Sawmill sub-division. The charter empowers Local 1030, inter alia, to "... initiate into membership any person or persons, lawfully proposed and elected, in accordance with the Constitution, Rules and Regulations" of the United Brotherhood. It gives Local 1030 the same rights, privileges and benefits as any other Local Union of the United Brotherhood. The charter contains no reference to the trade jurisdiction of the local and no specific reference to its geographic jurisdiction except as is included in the name "Local Union No. 1030, Province of Ontario". The charter makes no reference to the rights, benefits and privileges of the members of Local 1030, but the evidence is that they have the same rights, benefits and privilege of any other "benefit schedule I local union of the United Brotherhood". The constitution of the United Brotherhood to which Local 1030 is required by its charter to conform is fully entitled "Constitution and Laws of the UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA and Rules for Subordinate Bodies Under Its Jurisdiction". It was this constitution which was adopted by Local 1030 as its own. Hereafter the use of the word "Constitution" will be with reference to the constitution of Local 1030 and the term International Constitution will be used to refer to the constitution of the United Brotherhood. The sections of the Constitution on which the parties rely include: Section 1, Name of Organization, Article A; Section 2, Objects; Section 6, Jurisdiction, Articles A and B; Section 7, Trade Autonomy, Articles A and B; Section 10, General President, Articles A, D, G and K; and under the General Laws, Section 25, Jurisdiction and Powers of Local Unions, Articles A and I; Section 29, Admission of Local Unions, Articles A and B; and Section 42, Qualifications for Membership, Articles A, B and F.
12In each of these five applications, Local 1030 is seeking to represent, inter alia, construction labourers employed by the respondents and it is these persons which the interveners contend Local 1030 lacks the jurisdiction to accept into membership. The persons who were charter members and those who applied for membership in Steele Construction, supra, were in this category. There is no evidence that their membership applications were approved specifically by General President Konyha. In all applications except Board File No. 0374-82-R, Local 1030 was seeking also to represent cement finishers and waterproof applicators. It is not disputed that the United Brotherhood has a past practice of taking into membership persons other than carpenters, joiners and their apprentices and the evidence before the Board reveals that sister locals of Local 1030 have a practice of accepting into membership persons other than carpenters, joiners and their apprentices. Local 1669 of the United Brotherhood has organized and been certified for construction labourers, together with carpenters and carpenters' apprentices, in many instances by the Board. After the Board's certificate has issued, it has been the local's practice to transfer the bargaining rights with respect to construction labourers to the Lumber and Sawmill Workers' Union, Local 2693 of the United Brotherhood. This local has a practice of admitting to membership construction labourers and persons other than carpenters and joiners as defined in section 7, Trade Autonomy of the Constitution. Local 2693 is party to a Collective Agreement with the General Contractors' Division of the Construction Association of Thunder Bay Incorporated. The agreement lists 17 member firms of the Association as being bound by the agreement. The wage schedule includes classifications of work such as: truck driver, compressor operator, operators of tractors, cranes, draglines, back hoes and shovels, welders, mechanics and cement finishers. Local 2693 has accepted persons in these classifications into membership. It has not had these persons refused for membership by the United Brotherhood nor has it received the specific approval of the General Brotherhood, Local Unions No. 446 and No. 2050 have been certified by the Board to represent construction labourers and Local 2050 was certified as well to represent painters and plumbers.
13The United Brotherhood and its Ontario Provincial Council is the designated employee bargaining agency for carpenters and carpenters' apprentices in the ICI sector of the construction industry. It was designated pursuant to section 139(1) of the Act to represent in collective bargaining in the ICI sector all journeymen and apprentice carpenters, other than millwrights, represented by the following affiliated bargaining agents:
United Brotherhood of Carpenters and Joiners of America; or
Ontario Provincial Council of the United Brotherhood of Carpenters and Joiners of America; or
(1) the Carpenters District Council of Toronto and Vicinity, or the
(2) Lake Ontario District Council, or the
(3) Western Ontario District Council, or the
(4) Ontario Acoustical and Drywall District Council; or
the following Local Unions: 18, 27, 38, 93, 249, 397, 446, 494, 562L, 572, 666, 675, 681, 785, 1071, 1133, 1256, 1304, 1316, 1450, 1617, 1669, 1747, 1946, 1963, 1988, 2041, 1050, 2222, 2451, 1466, 1480, 1482, 1486, 2965, 3227 of the United Brotherhood of Carpenters and Joiners of America; or
any other Local of the United Brotherhood of Carpenters and Joiners of America which in the future may be chartered to represent Journeymen and Apprentice Carpenters other than Millwrights.
The designation was made by the Minister of Labour April 10th, 1980, nearly two years before Local 1030 received its charter and replaced a prior one which had issued March 3, 1978. The United Brotherhood is also part of the designated employee bargaining agency for millwrights. It issued January 30, 1978 and designates the United Brotherhood and its Millwright District Council of Ontario to represent in collective bargaining in the ICI sector of the construction industry all journeymen and apprentice mllwrights represented by the United Brotherhood, the Council or Locals 38, 494, 1410, 1425, 1592, 1669, 1916 or 2309 of the United Brotherhood or any other local of the United Brotherhood that might be chartered to represent millwrights in the ICI sector.
14With respect to the challenge to Local 1030's jurisdiction to take into membership the persons whom it is seeking to represent in these applications, counsel for the interveners contends that the Constitution does not include "construction labourers" in section 42F of Qualifications for Membership amongst the divisions and sub-divisions of the Trade Autonomy described therein. He submits that the Constitution is quite specific with respect to qualifications for membership beginning with its Objects. Section 2 which include "... to organize workers employed within the trade autonomy of the United Brotherhood,…..” the description of the division and sub-division of its Trade Autonomy in Section 7 and the incorporation of that description into section 42F of Qualifications for Membership with the mandate that "A candidate to be admitted to membership in any Local Union of the United Brotherhood ... must be in one of the divisions or sub-divisions of the trade autonomy or a helper to one of them. Candidates for membership who are employed in a work classification not included in the trade autonomy may be admitted to membership on approval of the General President. Counsel contends that there is no evidence that the applications for membership in Local 1030 of persons who are not in the trade jurisdiction were approved by the General President. Local 1030's charter does not alter the situation, counsel claims. It is the same charter as is issued to other locals of the United Brotherhood and is not limiting in Local 1030's rights, duties and benefits as compared with other locals. Therefore, Local 1030 has a duty to represent all persons in work classifications included in the trade autonomy of its constitution and has no right to represent persons in other work classifications because such persons have not been approved for membership by General President Konyha. In other words, Local 1030 must represent carpenters, joiners and their apprentices without exception and cannot represent construction labourers unless their applications for membership have been approved by the General President. According to counsel, the February 25th letter from Konyha to Harkness does not provide that approval since it was issued prior to Local 1030 coming into existence March 1st when its charter was issued and, being the later document, the charter must prevail.
15The mandatory nature of the language of the Constitution in section 42F coupled with the other sections referred to, counsel for the interveners argues, results in the Constitution raising a bar to Local 1030 accepting into membership persons employed in the work classifications specified in the Constitution whose membership applications have not been approved by the General President. As a result of this bar, counsel argues, Local 1030 must demonstrate a practice of admitting persons to membership without regard to the eligibility requirements of its charter, constitution or by-laws so that, pursuant to section 103(4) of the Act, the Board "... need not have regard for such eligibility requirements .".
16Counsel for Local 1030 responds on three grounds to the challenge to the Local's jurisdiction to accept into membership those persons whom it is prepared to accept and to represent and whom it specifically seeks to represent by these applications:
(a) there is no express provision in the Constitution which would prevent the persons in question from being accepted as members of Local 1030;
(b) the General President of the United Brotherhood has authorized and issued a charter which would allow Local 1030 to admit to membership these persons; and,
(c) if the Board finds that there is a bar in the Constitution and that the General President has not authorized Local 1030 to admit them to membership, Local 1030 has a practice of admitting to membership such persons without regard to the eligibility requirement of its Charter or Constitution thus satisfies the requirements of section 103(4) of the Act.
17Counsel submits that, while section 42F of the Constitution prescribes detailed qualifications for membership it contains no specific prohibition which would exclude from membership persons in the work classification of construction labourers. That fact is substantiated, he contends, by the way responsible officers of the United Brotherhood and some of Local 1030's sister locals have interpreted it by their actions of accepting persons other than carpenters, joiners and apprentices as members and by accepting specifically construction labourers. He points to the acknowledged practice of the United Brotherhood and to the evidence with respect to its Locals 1669 and
18With respect to the General President having authorized Local 1030 to accept these persons as members, counsel relies on its express authority in section 42F and the exercise of that authority in Konyha's letter of February 25th, 1982 approving the application for charter. Counsel maintains that section 42F gives the General President the express authority to approve admission to membership of candidates who are employed in a work classification not set out in that section. He maintains further that Konyha explicitly and specifically exercised that authority when he acknowledged in his February 25th letter that the charter applicants had requested a jurisdiction of helpers, including construction Labourers, and other construction workers . . ."' and then approved the application for a charter. This action demonstrates clear approval of the General President for Local 1030 to accept specifically construction labourers and generally other construction workers even though they may be employed in work classifications not listed in section 42F of the International Constitution.
19Should the Board nonetheless find that the Constitution contains a prohibition which would exclude from membership in Local 1030 the persons at issue herein, counsel argues that the evidence shows conclusively that Local 1030 has accepted into membership persons doing the same kind of work when it accepted as members its charter members and the persons whom it has been certified to represent in Steele Construction and Ottawa Door, supra. Since Local 1030 is a newly chartered Local Union of the United Brotherhood which has been chartered under the existing International Constitution and has adopted it as the Local's own constitution, the Board can take into account how the International Constitution has been interpreted by responsible officers of the United Brotherhood and responsible officers of some of its other Local Unions. Their interpretations of the International Constitution, counsel asserts, is demonstrated by the fact that the United Brotherhood and its Locals 446, 1669, 2050 and 2693 have accepted as members in numerous instances persons employed as construction labourers and that Local 2693 represents and has as members persons who are in work classifications other than those listed in section 42F of the International Constitution. Counsel argues that an inquiry by the Board into how responsible officers of the United Brotherhood and its other Local Unions have interpreted and applied the membership provisions of the International Constitution is a "persuasive inquiry" with respect to Local 1030's ability to accept into membership the persons in question.
20The Board has considered the submissions of the parties on the issue of the jurisdiction of Local 1030 to take into membership persons other than carpenters, joiners and their apprentices and it has reviewed and considered the wording of the sections of the Constitution on which they rely. Having done so the Board finds as follows.
21Counsel for Local 1030 and for the interveners apply different interpretations to the Constitution but, generally, both have correctly represented the content of the sections on which they rely. The Board is going to assume, without finding, that the mandatory language in section 42F of the Constitution with respect to membership qualifications creates a specific exclusion of persons other than those in work classification spelled out in the section. These work classifications are the same as the divisions and sub-divisions of the trade set out in section 7B of Trade Autonomy. These work classifications include helpers to any of divisions or sub-divisions of the trade, therefore the Board finds that construction labourers who are helpers to carpenters would be included by the work classification "helper to any divisions or sub-divisions of the trade". Local 1030, however, is not relying on that work classification to cover all construction labourers and admits it does not do so. Thus, on the assumption that there is a specific prohibition against Local 1030 accepting other types of construction labourers and any work classifications not set out in section 42F which might be captured by the term "other construction workers" used in the application for charter and Konyha's letter approving the application, in order for Local 1030 to accept such persons into membership it would require the approval of the General President.
22The words at the end of section 42F of the International Constitution and the Constitution which express his authority to admit such persons to membership contain nothing to suggest this requires him to give his approval to each individual application. Nor does it suggest that he cannot grant authority generally to a local union of the United Brotherhood to accept into membership persons who are not in any of the specified divisions or sub-divisions of the trade. Having regard to the evidence before the Board, it finds that the General President vested this authority in Local 1030 when he accepted and approved their application for charter for the requested jurisdiction of "helpers, including Labourers, and other construction workers (excluding carpenters and carpenter apprentices, who are employed in the Industrial, Commercial and Institutional Sector of the Construction Industry)." The Board gives no weight to the fact that the Charter, which followed in time the issuing of the approval letter, does not contain the same reference. The filing of the application, the letter accepting it and approving the issue of the Charter, the issuing and subsequent installation of the Charter are part and parcel of one process of chartering a new local union of the United Brotherhood. When viewed in this context, the Board is satisfied that the General President intended to grant the authority to Local 1030 referred to above and did do so and the Board so finds. For the same reason, the Board finds also that the General President intended to exclude and did exclude from Local 1030 the authority to accept into membership carpenters and carpenters' apprentices who are employed in the ICI sector of the construction industry; and intended to authorize and did authorize the use of the name General Workers Union, Local 1030, Province of Ontario.
23The Board finds further that Local 1030 desires to accept into membership and to represent such persons; that the employees whom they seek to represent, by applying for membership in Local 1030, have, prima facie, expressed their desire to be members of and be represented by Local 1030 and that the United Brotherhood is prepared to have these persons accepted into membership and to have them represented by Local 1030.
24For these reasons the Board finds that the proper name of the applicant is the United Brotherhood of Carpenters and Joiners of America, General Workers Union Local Union No. 1030, Province of Ontario and that it has the authority to accept into membership carpenters helpers, construction labourers and other construction workers, excluding carpenters and carpenters' apprentices employed in the ICI sector of the construction industry and confirms its finding that it is a trade union within the meaning of section l(l)(p) of the Act.
25The respective positions of the applicant and the interveners with respect to whether Local 1030 is an affiliated bargaining agent and the effect the answer to that question would have on these applications may be summarized as follows. Counsel for the interveners contends that Local 1030 satisfies that definition, is an affiliated bargaining agent and, since it was chartered after the designation of the carpenters employee bargaining agency, is covered by clause 4 (the "basket clause") of that designation (see paragraph 13 above) which reads as follows:
- any other local of the United Brotherhood of Carpenters and Joiners of America which in the future may be chartered to represent Journeymen and Apprentice Carpenters other than Millwrights.
Therefore, counsel contends, Local 1030 is limited to making applications for certification pursuant to either subsection I or subsection 3 of section 144 of the Act and is further limited to bargaining units which are appropriate for applications made there under. Counsel takes the position that the applications relate to the ICI sector and must be dealt with under section 144(1). Furthermore, he argues that a unit consisting of any trade other than carpenters would not be appropriate under that section. Therefore, since the applications are not made on behalf of carpenters, there would be no appropriate unit. Local 1030's counsel contends that it is not an affiliated bargaining agent and is entitled to apply under subsection 5 of section 144 and to represent bargaining units which would be appropriate under that subsection. The thrust of Local 1030's position is that units comprised of all unrepresented trades employed on the dates of the applications by the employers in all sectors of the construction industry including the ICI sector (but excluding carpenters in the ICI sector) would be appropriate and in accordance with the Board's approach to describing bargaining units in the construction industry. Both parties rely on the Board's decision in Clarence H. Graham Construction Limited, [1981] OLRB Rep. Sept. 1195 as authority for their arguments. The Board agrees that the principles of that decision apply to the facts of this case, but how and to what effect depends, in part, on whether Local 1030 is an affiliated bargaining agent.
26These applications have been brought under the Construction Industry and Province-Wide Bargaining parts of the Act; respectively sections 117 to 136 and 137 to 151. The sections which bear on the question of whether Local 1030 is an affiliated bargaining agent and what effect that determination would have on its status to bring applications for certification under section 144 are the following:
- In this section and in sections 118 to 136,
(f) "trade union" means a trade union that according to established trade union practice pertains to the construction industry.
(emphasis added)
137.-(l) In this section and in sections 138 to 151,
(a) "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;
(b) "bargaining", except when used in reference to an affiliated bargaining agent, means province-wide, multi-employer bargaining in the industrial, commercial and institutional sector of the construction industry referred to in clause 117(e);
(c) "employee bargaining agency" means an organization of affiliated bargaining agents that are subordinate or directly related to the same provincial, national or international trade union, and that may include the parent or related provincial, national or international trade union, formed for purposes that include the representation of affiliated bargaining agents in bargaining and which may be a single provincial, national or international trade union;
(d) "employer bargaining agency" means an employers' organization or group of employers' organizations formed for purposes that include the representation of employers in bargaining;
(e) "provincial agreement" means an agreement in writing covering the whole of the Province of Ontario between a designated or accredited employer bargaining agency that represents employers, on the one hand, and a designated or certified employee bargaining agency that represents affiliated bargaining agents, on the other hand, containing provisions respecting terms or conditions of employment or the rights, privileges or duties of the employer bargaining agency, the employers represented by the employer bargaining agency and for whose employees the affiliated bargaining agents hold bargaining rights, the affiliated bargaining agents represented by the employee bargaining agency, or the employees represented by the affiliated bargaining agents and employed in the industrial, commercial and institutional sector of the construction industry referred to in clause 117(e).
144.-(1) An application for certification as bargaining agent which relates to the industrial, commercial and institutional sector of the construction industry referred to in clause 117(e) 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.
(2) If on the taking of a representation vote more than 50 per cent of the ballots cast are cast in favour of the trade unions on whose behalf the application is brought, or, if the Board is satisfied that more than 55 per cent of the employees in the bargaining units are members of the trade unions on whose behalf the application is brought, 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.
(3) Notwithstanding subsection 119(1), a trade union represented by an employee bargaining agency may bring an application for certification in relation to a unit of employees employed in all sectors of a geographic area other than the industrial, commercial and institutional sector and the unit shall be deemed to be a unit of employees appropriate for collective bargaining.
(4) A voluntary recognition agreement in so far as it relates to the industrial, commercial and institutional sector of the construction industry shall be between an employer on the one hand and either,
(a) an employee bargaining agency;
(b) one or more affiliated bargaining agents represented by an employee bargaining agency; or
(c) a council of trade unions on behalf of one or more affiliated bargaining agents affiliated with the council of trade unions,
on the one other hand, and shall be deemed to be on behalf of all the affiliated bargaining agents of the employee bargaining agency and the defined bargaining unit in the agreement shall include those employees who would be bound by a provincial agreement.
(5) Notwithstanding subsections (1) and (4), a trade union that is not represented by a designated or certified employee bargaining agency may bring an application for certification or enter into a voluntary recognition agreement on its own behalf.
146.-(l) An employee bargaining agency and an employer bargaining agency shall make only one provincial agreement for each provincial unit that it represents.
(2) On and after the 30th day of April, 1978 and subject to sections 139 and 145, no person, employee, trade union, council of trade unions, affiliated bargaining agent, employee bargaining agency, employer, employers' organization, group of employers' organizations or employer bargaining agency shall bargain for, attempt to bargain for, or conclude any collective agreement or other arrangement affecting employees represented by affiliated bargaining agents other than a provincial agreement as contemplated by subsection (1), and any collective agreement or other arrangement that does not comply with subsection (1) is null and void.
27How then do these province-wide bargaining provisions affect the status of Local 1030 to bring applications for certification under section 144? The Board noted in paragraph 6 above that the Board in Steele Construction, supra, "... had to be satisfied .. ." that Local 1030 was a trade union which pertains to the construction industry within the meaning of clause (f) of section 117 of the Act. The Board has consistently interpreted the words of clause (f) to require an applicant trade union to demonstrate that it and/or its parent has an established practice of bargaining for employees in the construction industry. In this respect, the Board commented as follows in its decision in Ben Bruinsma and Sons Limited, [1964] OLRB Rep. Feb. 647:
It is clear from the evidence that the applicant trade union "pertains to the construction industry". (See in particular Articles 1 and 111 of its Constitution). The sole question, then, is what meaning ought to be given the words ..... that according to established trade union practice . . ." It is our considered view that if it had been the intention of the Legislature that the Board have regard only for the union constitution, there would have been no necessity for including in the definition the last quoted words. If the Legislature had intended the Board to consider only the union constitution then it seems to us the definition would have read, quite simply, "trade union means a trade union that pertains to the construction industry".
Some other meaning, therefore, must be given the words "that according to established trade union practice .. .". That practice in our opinion has to be established by ascertaining the collective bargaining history of the union, both local and parent. If the practice as ascertained by an examination of the union's collective agreements is to bargain for workers employed in the construction industry, then the union has satisfied the requirement "according to established trade union practice".
28When a newly chartered trade union which pertains to the construction industry applies for certification under the construction industry provisions of the Act, it has been the Board's policy to rely on the practice of the trade union's chartering organization in determining whether there is an established practice of bargaining for employees in the construction industry. If the parent organization has a demonstrated practice of representing employees in the construction industry and it has chartered the applicant to represent employees in the construction industry, then the Board accepts that as prima facie proof that the applicant satisfies the requirements of clause (f) of section 117. This recognition is of significant benefit to a new trade union because immediately the Board's Rules of Practice for construction industry applications apply to it and so do the construction industry provisions of the Act and the Board's approach to describing bargaining units in the construction industry. Amongst other things, in normal circumstances, this means a new union would be able to get certified without need of a hearing; have its bargaining unit described with reference to a geographic area rather than a municipality and with reference to a trade or trades rather than all employees. Thus, if the new trade union was seeking to represent its normal construction trade, it would need only to organize the employees in that trade, not all employees at work at the time the application was made. By contrast a new trade union which was unable to satisfy section 117(f) would be restricted to applying for certification under section 5 of the Act and its application would be subject to the Rules of Procedure for such applications. Those rules require, amongst other things, that the Board hold a hearing into the application. Nor, for example, would it be able to seek to represent only employees in a single trade if other unrepresented employees were employed at the time of the application because it would be unable to satisfy all three criteria set for craft trade unions in section 6(3) of the Act.
29Therefore, on the basis of that policy, Local 1030, which by its charter and constitution is a trade union that pertains to the construction industry and being a chartered local of the United Brotherhood which unarguably is a trade union that has an established practice of representing employees in the construction industry, is a trade union within the meaning of clause (f) of section 117 of the Act.
30This does not necessarily make it an affiliated bargaining agent, however. The definition of an affiliated bargaining agent in section 137 (1) (a) quoted above at paragraph 26 sets out two requirements:
(a) "... according to established trade union practice in the construction industry, represents employees who commonly bargain separately and apart from other employees . . ."; and
(b) "... is subordinate or directly related to, or is, a provincial, national or international trade union
(emphasis added)
No doubt Local 1030 satisfies the second requirement of the definition, but as a newly chartered trade union there is no evidence before the Board of its own practice from which it can be determined whether it satisfies the first requirement of the definition. Its parent, the United Brotherhood, represents employees in the construction industry (carpenters and millwrights) who commonly bargain separately and apart from the other employees and is itself an affiliated bargaining agent. The use of the phrase "... according to established trade union practice in the construction industry . . .” in the first part of the definition of an affiliated bargaining agent has the same purpose and effect, in the Board's view, as the phrase " ... according to established trade union practice .. ." used in clause (f) of section 117. That is, it means that a trade union cannot rely simply on its charter and constitution to establish that it represents employees in the construction industry who commonly bargain separately and apart from other employees, it must be able to demonstrate that it and/or its chartering organization has an established practice of doing so. Since the Board is prepared to rely on the established practice of the parent organization with respect to the "established practice" requirement of clause (f) of section 117 of the Act and not require one of its newly chartered locals to develop the practice before it can be found to be a trade union within the meaning of that section and having regard for the benefits of that policy to a new trade union, it seems reasonable for the Board to look also to the established practice of the parent when deciding whether a newly chartered trade union satisfies the first requirement of section 137(l)(a).
31The United Brotherhood is one of the international building trades unions which were affected by the introduction of Province-wide Bargaining part of the Act. It also has been made the designated employee bargaining agency, together with its provincial councils of carpenters and millwrights, for carpenters and millwrights in the ICI sector who are represented by its affiliated bargaining agents. Clearly, the United Brotherhood satisfies both requirements of section 137(1)(a) and is an affiliated bargaining agent. The Board is satisfied, therefore, that Local 1030, having been chartered to organize and represent construction industry employees, is a trade union that according to established trade union practice represents employees in the construction industry (that is employees in the carpenter or millwright trades) who commonly bargain separately and apart from other employees. Accordingly, the Board finds that Local 1030 fits within the definition of an affiliated bargaining agency in section 137(l)(a) of the Act and therefore is an affiliated bargaining agent.
32Does that finding, as counsel for the intervener contends it should, result in Local 1030 being caught by the "basket" clause of the United Brotherhood's carpenter designation? That designation authorizes the employee bargaining agency "... to represent in collective bargaining in the ICI sector) . . ." any locals chartered subsequent to its designation by the Minister. Local 1030 cannot represent carpenters and their apprentices in the ICI sector. Therefore it is not caught by the basket clause of the designation. The converse is true with respect to millwrights and their apprentices. The millwrights are the second of the United Brotherhood's two normal construction trades and there is no restriction in Local 1030's chartering conditions with respect to that trade. Therefore Local 1030 could represent millwrights without any limitation as to sector. Since Local 1030's charter does not deprive it of the jurisdiction to represent millwrights in the ICI sector, it would be caught by the basket clause of the designation order pertaining to millwrights and their apprentices. Therefore, Local 1030 is an affiliated bargaining agent represented by the millwrights employee bargaining agency.
33How does that finding affect these applications? They are applications for certification in the construction industry; they relate to the ICI sector and have been made by an affiliated bargaining agent of an employee bargaining agency. The Board has previously found that section 144 of the Act deals with all possible construction industry applications for certification. See Clarence H. Graham Construction Limited, [19811 OLRB Rep. Sept. 1195. Therefore, these applications must be processed under that section. Its subsections 1, 3 and 5 each deal with applications for certification. Subsection 5 is reserved for trade unions "... not represented by a designated or certified bargaining agency . . .", so Local 1030 is not eligible to make application under that subsection. Clearly subsection 3 is not available to Local 1030 because it seeks to be certified for the ICI sector and subsection 3 deals with all sectors other than the ICI sector. That leaves subsection 1 which deals with all sectors including the ICI sector. It mandates that an application which relates to the ICI sector, as these do, be brought by an employee bargaining agency or one or more affiliated bargaining agents of the affiliated bargaining agency. So clearly Local 1030 is eligible to have its applications considered pursuant to subsection 1 of section 144.
34Section 144(1) also sets certain requirements for the bargaining unit that will be appropriate. It stipulates that:
"... 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.".
(emphasis added)
35A provincial agreement is, by definition, a collective agreement which, amongst other things, contains provisions respecting "... the rights, privileges or duties of ... the affiliated bargaining agents represented by the employee bargaining agency, . . ." and provisions respecting "... terms or conditions of employment of ... the employees represented by the affiliated bargaining agents and employed in the [ICI] sector . . .". Thus a provincial agreement deals with the bargaining rights held by affiliated bargaining agents represented by their employee bargaining agency. In turn, the first requirement of the definition of "affiliated bargaining agent" in section 137(1)(a), as noted at paragraph 30. is that it be a bargaining agent that "... according to established trade union practice in the construction industry, bargains separately and apart from other employees . . . ". From reading those two definitions together, and in the context of the requirement of section 144(1) that "... the unit of employees shall include all employees who would be bound by a provincial agreement . . .", it may be seen that those employees represented by the trade union making application under subsection 1 "... who commonly bargain separately and apart from other employees ." are the ones who would be covered by a provincial agreement. In the case of the applicant herein, being an affiliated bargaining agent of the United Brotherhood, it would be the employees falling within the trade of millwright, or if Local 1030 could represent carpenters employed in the ICI sector, the employees falling within the trade of carpenter; in other words, the two normal construction trades of the United Brotherhood. It is not established practice in the construction industry for labourers, cement finishers or waterproof applicators to be represented by the United Brotherhood or its affiliated bargaining agents in commonly bargaining separately and apart from other employees. Therefore those trades would not be covered by the provincial agreement made on behalf of Local 1030 by the millwrights employee bargaining agency, the one designated to represent Local 1030.
36The established practice in the construction industry is for employees in those trades to be represented by the Labourers International Union of North America or the Operative Plasterers and Cement Masons International Association when bargaining separately and apart from other employees. Accordingly, for purposes of the province-wide bargaining regime, those three trades are subject to two other employee bargaining agency designations and provincial agreements; those of the construction labourers and the operative plasterers. Local 1030 obviously is not an affiliated bargaining agent of either of those employee bargaining agencies. Nor is it a trade union which could be a party to or bound by those two provincial agreements by definition of a provincial agreement. Therefore when employees in those trades are represented by an affiliated bargaining agent that is not designated to represent those trades, in this case Local 1030 and the millwrights designated employee bargaining agency, those employees would be outside of the provincial bargaining regime. Since they are outside of that regime and not covered by the millwrights provincial agreement they are not amongst those employees ..... who would be bound by a provincial agreement .. ." of the millwrights employee bargaining agency. In the result, they would not qualify to be included in the bargaining unit prescribed by section 144(1) of the Act.
37While the Board has arrived at this result having found that Local 1030 is represented by the millwrights designated employee bargaining agency and, consequently, is a trade union to which subsections 1 through 4 of section 144 apply and is not a trade union to which subsection 5 applies, the Board is of the view that the result would be no different if Local 1030 had been excluded from representing millwrights and their apprentices in the ICI sector. It would be a trade union that is not represented by a designated or certified employee bargaining agency as contemplated by section 144(5), but it would still be an affiliated bargaining agent within the meaning of section.137(1)(a). As an affiliated bargaining agent, it is subject to the strictures of sections 146 of the Act. Subsection 1 of section 146 allows the making of only one Collective Agreement by an employee bargaining agency and an employer bargaining agency for each unit (of affiliated bargaining agents or employers as the case may be) that it represents and that must be the provincial agreement. Subsection 2 makes it an offence for, inter alia, an affiliated bargaining agent (without reference to whether represented by an employee bargaining agency and so affecting all affiliated bargaining agents) or employee bargaining agency to bargain for, to attempt to bargain for or to conclude any collective agreement or any other arrangement affecting employees in the ICI sector represented by affiliated bargaining agents other than a provincial agreement. Since a provincial agreement must be between an employee bargaining agency and an employer bargaining agency, an affiliated bargaining agent cannot make a provincial agreement unless it is also an employee bargaining agency. With that one exception, an affiliated bargaining agent cannot make a provincial agreement and it is prohibited from making any other agreement or arrangement with respect to employees in the ICI sector. Therefore an affiliated bargaining agent that is not an employee bargaining agency cannot make a lawful agreement with respect to employees in the ICI sector. By comparison, the Christian Labour Association of Canada and the National Council of Canadian Labour, trade unions which are eligible to apply under subsection 5 of section 144 of the Act, are not affiliated bargaining agents. Thus when they are certified to represent employees in the ICI sector, they are not subject to the strictures of section 146(2) of the Act.
38Were the Board to certify Local 1030 under subsection S then, it would not be able to enter into a lawful collective agreement with respect to employees in the ICI sector. Accordingly, a certificate issued to Local 1030 under that subsection with respect to a bargaining unit of employees in the ICI sector would be a nullity because Local 1030 could not conclude a lawful collective agreement for the employees who would be included in the unit and the Board would thus find that such a unit is not appropriate for collective bargaining. The Board faced the same circumstances in its decision in Diversified Sheet Metal Limited, [1981] OLRB Rep. Nov. 1575, and having concluded at paragraph 10 that the applicant would not be able to enter into a lawful collective agreement for employees in the ICI sector, expressed its reluctance in paragraph 11 to allow the applicant to make application under subsection 5 of section 144 of the Act.
39In Diversified Sheet Metal, supra, the applicant was an affiliated bargaining agent of the designated employee bargaining agency for the sheet metal trade, but was not represented by it in bargaining. The applicant was seeking to represent sheet metal workers in the ICI sector and, although the Board was reluctant to entertain its application under subsection 5, it found that it could entertain it under subsection 1 of section 144. Its reasons are given at paragraph 11:
We note, however, that whereas subsection (3) and subsection (5) of section 144 referred to trade unions represented by an employee bargaining agency and trade unions that are not represented by designated or certified employee bargaining agencies, subsection (1) talks simply of affiliated bargaining agents of the employee bargaining agency. It would therefore appear that the applicant is entitled to bring an application under subsection (1) of section 144.
Pursuant to that reasoning, since Local 1030 is an affiliated bargaining agent and since these applications relate to the ICI sector, they could be treated as having been brought under section 144(1) of the Act. In that event, however, employees classified as labourers, cement finishers and waterproof applicators would not qualify to be included in the bargaining unit prescribed by section 144(1) for the reasons given in paragraph 36 above.
40Therefore, even were Local 1030 not represented by either the carpenters or the millwrights employee bargaining agency and thus eligible to bring applications under section 144(5), the Board would not certify it as bargaining agent for those employees who, while employed in the ICI sector, were outside of the province-wide bargaining regime.
41The Board is concerned about another aspect of this application. It appears from the evidence as to the chartering of Local 1030 for the purpose of organizing and representing employees in the construction industry in Ontario, exclusive only of carpenters employed in the ICI sector of the industry, that the United Brotherhood has tried to create Local 1030 as a trade union which would not be a craft trade union pursuant to section 6(3) of the Act and, therefore, would not be restrained by the provisions of that section and would be able to represent construction employees across all trades. In other words, it would be an "all employee" — type of trade union for construction. The limitation in its charter conditions with respect to carpenters employed in the ICI sector, however, creates an impediment to achieving that end. Whenever an all employee-type union that is also a trade union which, pursuant to section 117(f), pertains to the construction industry, applies for certification, the Board's consistent and long-established practice with respect to defining a unit appropriate for collective bargaining is to describe the unit in terms of all unrepresented trades at work at the time the application is made. See Duron Ontario Limited, [1967] OLRB Rep. Nov. 734. A practical result of that practice is that the applicant must be able to represent all of the employees in those unrepresented trades. Furthermore, it was the Board's policy prior to the advent of section 144 to describe construction industry bargaining units without reference to sector. In this respect, see Lyle West Electric Limited. [19781 OLRB Rep. Nov. 999 and the discussion of this policy in the Report to the Minister of Labour concerning Bill 204, an Act to amend the Labour Relations Act, submitted on April 11, 1980 by George W. Adams. That policy continues to apply to applications made under section 144(5) of the Act. See Matterhorn Construction (Hamilton) Limited, [1981], OLRB Rep. 1276. Section 144(5) is the section under which all employee-type unions would make applications for certification and, of course, the section under which Local 1030 seeks to make these applications.
42Clearly, if there were unrepresented carpenters at work on the date of an application made by Local 1030, the Board would describe the unit appropriate for collective bargaining so as to include carpenters and carpenters' apprentices. If the carpenters were employed in the ICI sector, Local 1030 would be unable to represent them thus rendering inappropriate a unit described so as to include carpenters. Conversely, a unit described without reference to carpenters or specifically excluding them, would be contrary to the Board's consistent and long-standing practice and, therefore, would be found to be inappropriate for collective bargaining. Nor would the problem disappear if the unrepresented carpenters were working in a sector other than ICI and if the employer was not bound to the carpenters provincial agreement. The appropriate bargaining unit would be described without reference to sector and so would include the ICI sector. Therefore, if Local 1030 were certified to represent carpenters and the employer later employed carpenters in the ICI sector, they would be employees in the bargaining unit and Local 1030 would be unable to represent them. Thus it would be unable to fulfill its duty under section 68 of the Act.
43In summary, the Board has found that the United Brotherhood of Carpenters and Joiners of America, General Workers Local Union No. 1030, Province of Ontario, has jurisdiction to take into membership persons in the work classifications affected by these applications. For the reasons given above, the Board has further found that employees in the trades of labourers, cement finishers and waterproof applicators when represented by the United Brotherhood of Carpenters and Joiners of America, General Workers Local Union. No. 1030, Province of Ontario, are employees outside of the province-wide bargaining regime; thus, pursuant to the definition of provincial agreement in clause (e) of section 137(1) of the Act, they are not employees who would be covered by either of the millwrights or carpenters provincial agreements and, therefore, do not qualify as employees in the bargaining unit prescribed by section 144(1) and do not constitute an appropriate bargaining unit under that section. For the reasons set out above, the Board further finds that, had the Board found the United Brotherhood of Carpenters and Joiners of America, General Workers Local Union No. 1030, Province of Ontario, eligible to bring these applications under section 144(5) of the Act, the applicant would be unable to enter into a lawful collective agreement with respect to these employees, therefore, there would be no unit which would constitute a unit appropriate for collective bargaining.
44Accordingly, the Board finds the bargaining units sought in each application are not an appropriate unit within the meaning of section 144 of the Act and these applications are dismissed.