United Brotherhood of Carpenters and Joiners of America v. Aero Block and Precast Ltd., 1984 CanLII 1120

Ontario Labour Relations Board

File No.: 2488-82-R Date: September 19, 1984

Between: United Brotherhood of Carpenters and Joiners of America, Applicant, v. Aero Block and Precast Ltd., Kamet Enterprises Ltd. and 541190 Ontario Inc., Respondents, v. The Form Work Council of Ontario, Intervener #1, v. Labourers' International Union of North America, Local 493, Intervener #2

Before: N. B. Satterfield, Vice-Chairman and Board Members I. M. Stamp and H. Kobryn.

Appearances: D. J. Wray, M. A. Church and Dale Chappell for the applicant; Jeremy Forgie, Denis Cancian and Brian Smeenk for the respondents; B. Fishbein, D. Henri and Q. Ceolin for the interveners.

DECISION OF THE BOARD

1This application for certification in the construction industry in which a pre-hearing representation vote has been held came before the Board previously for hearing on a number of issues. The parties agreed at that hearing that the Board should deal first with a single issue respecting membership evidence which could dispose of the application. When the result did not dispose of the application, the application came back on for hearing. In the interim and at the Board's direction the parties had conferred with respect to how to proceed with the issues remaining. As a result, when the parties came before the Board, they were agreed that the Board should hear and determine two inter-related issues with respect to the determination of the appropriate bargaining unit. Such determinations are made after a pre-hearing representation vote has been taken. The finding of the appropriate bargaining unit is a pre-requisite for finding whether not less than 35 per cent of the employees in the unit were members of the applicant at the time the application was made. In the instant case, it is also a pre-requisite to the counting of the ballots which have been cast.

2The Board proceeded pursuant to the agreement of the parties to hear their submissions with respect to whether the applicant United Brotherhood of Carpenters and Joiners of America ("the Carpenters"):

(1) would be required by the Board to displace the bargaining rights held by the intervener Labourers' International Union of North America, Local 493 ("the Labourers"') and represent the respondents' employees in the same bargaining unit which presently defines the Labourers' bargaining rights; and

(2) are entitled to apply to represent all of the respondents' employees employed in sectors of the construction industry other than the industrial commercial and institutional (ICI) sector.

Those are broad statements of the issues. The specific variations in which the issues present themselves and their significance to the determination of the appropriate bargaining unit for this application will become evident in dealing with the parties' submissions on the issues.

3The Board, for the reasons given in paragraph 4 of its decision directing that a pre-hearing representation vote be held, has declared that the respondents be treated as one employer for purposes of the Labour Relations Act and that they were bound at the time this application was made to a collective agreement between the Ontario Formwork Council and the Ontario Formwork Association ("the Agreement") which was effective from May 11, 1981 until April 30, 1983. The Formwork Council ("the Council") purports to be a council of trades unions and the Ontario Formwork Association purports to be an association of employers. The Agreement purports to recognize the Council as exclusive bargaining agent for a unit of all construction employees in the Province of Ontario.

4The Carpenters are seeking to be certified for the respondents' employees in the following bargaining unit:

All carpenters and carpenters' apprentices in the employ of the respondents in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario and all employees employed by the respondents in all other sectors within a radius of 33 kilometers (approximately 20 miles) of the North Bay post office, save and except operating engineers, non-working foremen and persons above the rank of non-working foreman.

The voting constituency for the pre-hearing representation vote was described in identical terms.

5Counsel for the interveners argues that the respondents are employers in concrete forming construction, their employees affected by this application are employed in concrete forming construction and the Agreement is a collective agreement pertaining to concrete forming construction. Counsel argues further that concrete forming construction bargaining units are unique and have a special standing which, when represented by certain local unions of the Labourers' International Union of North America (LIUNA), relate to all sectors of the construction industry and are outside of the parameters of the province-wide bargaining provisions of the Act which apply to the ICI sector of the construction industry. That special standing, he argues, results from the fact that the Minister's designation order made pursuant to what is now section 139(1) of the Act naming LIUNA and its Ontario Provincial District Council as the employee bargaining agency for construction labourers employed in the ICI sector specifically excludes qualified local unions of LIUNA from the order and its effects. Moreover, counsel claims the Board recognized this special standing in its decision in Matterhorn Construction (Hamilton) Limited, [1981] OLRB Rep. Sept. 1276, at paragraphs 6 and 7, when it found that Labourers' Local 183, when representing or seeking to represent employees in concrete forming construction, was neither an affiliated bargaining agent nor a trade union represented by an employee bargaining agency, a finding which relied on the express exclusion in the Minister's designation order referred to above.

6Consideration for the unique nature of concrete forming construction bargaining units and the special standing given to those units, counsel submits, should cause the Board to follow its long-standing policy respecting displacement applications for certification described and affirmed in the Board's decision in Duron Ontario Limited, [1976] OLRB Rep. Nov. 734, at paragraph 13. Counsel further submitted that the same consideration is reason for the Board not to follow the holding in its decision in Clarence H. Graham Construction Limited, [1981] OLRB Ref. Sept. 1195, at paragraphs 6, 7 and 8, that the Board's policy delineated in Duron, supra, has application only to the extent that it satisfies the requirements of what are now subsections 1 through 4 of section 144 of the Act.

7According to counsel, the Board's displacement policy applied to this application would make the appropriate unit one comprised of all construction employees employed by the respondents in the Province of Ontario. While that would be the appropriate unit, it is not one for which the Carpenters could be certified, counsel contends. In so doing he is relying on the fact that the Carpenters have decided that this application is one which relates to the ICI sector, consistent with the Board's decision in Colonist Homes Ltd, [1980] OLRB Rep. Dec. 1729, and since the Carpenters are an affiliated bargaining agent of the carpenters designated employee bargaining agency, they are limited to a bargaining unit which would be appropriate under section 144(1) of the Act. Pursuant to the Board's decisions in Graham Construction, supra, and Ninco Construction Ltd., [1982] OLRB Rep. Nov. 1692, counsel further contends that the only appropriate unit for the Carpenters is one described in terms of carpenters and carpenters apprentices employed in the ICI sector and all other sectors of the construction industry. Thus, counsel submits, even if the Board decides not to require the Carpenters to represent all of the employees presently represented by the Labourers, which would be the result of applying the Board's displacement policy, the unit sought by the Carpenters which would include all employees employed by the respondents in all other sectors would not be appropriate. The Board, in counsel's opinion, made that determination in its decisions in Graham and Ninco, supra, notwithstanding the reference to "... all other employees..." in section 144(1) where the section deals with those employees in the appropriate unit who would be outside of the ICI sectors. Those decisions, counsel argues, make it clear that section 144(1) mandates the Board to find a single appropriate bargaining unit notwithstanding the provisions in section 144(2) for two certificates to be issued, one confined to the ICI sector and the other "...in relation to all other sectors...".

8Counsel for the respondents endorsed and enlarged on the alternative position of counsel for the interveners. The thrust of their arguments was the same and it will suffice at this stage in the decision to say that the argument of counsel for the respondents, while relying on the same authorities, dealt more explicitly with the application of those authorities to the specific circumstances of this application.

9Counsel for the Carpenters disputes the interveners' claim that concrete forming construction bargaining units are unique or have any special standing at all and certainly none which would be grounds for supporting the interveners' claim that the Board's displacement policy should or could take precedence over the requirements of section 144(1) of the Act when an application relates to the ICI sector, as this one does. Counsel claims that the Board's decision in Matterhorn, supra, is the only reported decision in which the Board has given effect to the concrete forming construction exclusion from the labourers employee bargaining agency designation order. Even in that decision, counsel claims, the Board would not give Labourers' Local 183, the applicant in the case, the unit in the Agreement herein. In fact the Matterhorn unit was limited to employees engaged in concrete forming on residential building projects in the Board's geographic area #8. More particularly, he argues the Board has not made a finding under the Act that the concrete forming unit which the interveners claim is described in the Agreement is an appropriate unit. Furthermore, counsel questions whether the Board has ever found a concrete forming unit to be appropriate except in Board area #8 and notes that the employees affected by this application are employed in the North Bay area, Board area #16. Counsel contends that the Board has not found a concrete forming unit to be appropriate either on a province-wide basis or in North Bay.

10All of the foregoing notwithstanding, counsel contends that the Carpenters are entitled to "carve out" from the bargaining unit in the Agreement their traditional building trade of carpenters and carpenters' apprentices. Counsel relies on the Board's decision in Duron Ottawa Ltd., [1983] OLRB Rep. Oct. 1639.

11With respect to the issue of whether the Carpenters are entitled to apply to represent a bargaining unit comprised of all carpenters and carpenters' apprentices employed by the respondents in the ICI sector of the construction industry, and all employees employed by the respondent in all other sectors, counsel offered the following argument. First the Carpenters acknowledge that they cannot apply for certification in the ICI sector for any unit other than carpenters and carpenters' apprentices. Second, no similar limitations apply with respect to all other sectors of the construction industry because the phrase "...together with all other employees in at least one appropriate geographic area...", which refers to employees who would not be in the ICI sector, indicates that it is not necessary for the "non-ICI" part of the unit to mirror the "ICI" part. In other words, the phrase would accommodate a bargaining unit described in terms of carpenters and carpenters' apprentices in the ICI sector together with employees in the carpenters' and other trades in all other sectors. Counsel submits that the Board has not dealt previously with the issue that the "non-ICI" part of the unit in an application under section 144(1) does not need to mirror the "ICI" part in order to be appropriate under that section. He contends that the Graham and Ninco decisions, supra, on which the respondents and interveners are relying, as well as the Board's decisions in Manacon Construction Limited, [1983] OLRB Rep. Mar. 407 and Manacon Construction Limited, [1983] OLRB Rep. July 1104 were not required to address that specific issue. The applicant in the Graham decision was the Carpenters and in the Manacon decisions the applicant was General Workers Local 1030 of the Carpenters.

12In the alternative, if the Board finds that section 144(1) will not accommodate the bargaining unit sought by the Carpenters, counsel submits that the Board can treat the application as though the Carpenters were applying for two separate units. One unit would be pursuant to section 144(1) and comprised of all carpenters and carpenters' apprentices employed by the respondents in the ICI sector in the Province of Ontario and in all other sectors in Board area #16. The other unit would be pursuant to section 144(3) and comprised of all other employees, excluding carpenters and carpenters' apprentices, employed by the respondents in the construction industry, excluding the ICI sector. Counsel asserts that treating the application in that manner would be analogous to the Board's practice in appropriate circumstances of issuing two certificates, one for a unit of full-time employees and the other for part-time employees, where the application originally described a single, all employee type of unit.

13In the further alternative, counsel contends that the very least the Carpenters are entitled to is a unit comprised of all carpenters and carpenters' apprentices employed by the respondents in the ICI sector of the construction industry in the Province of Ontario and in all other sectors in Board area #16.

14Sections 144(1), (2) and (3) are relevant to these issues and provide as follows:

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 and 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 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 unit 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.

15Having reviewed and considered the submission of the parties on the two issues, the Board draws the following conclusions.

16There is no dispute between the parties that this is an application made pursuant to section 144(1) of the Act in spite of the diversity and novelty of their arguments.

17That being the case, the holding in the Graham decision, supra, subsequently confirmed in the Duron Ottawa decision, supra, that the requirements of section 144(1) of the Act take precedent over the Board's displacement policy, applies to this application. Counsel for the interveners has argued that the Board should apply its displacement policy to this application, the Graham and Duron Ottawa decisions notwithstanding, because of the unique nature of concrete forming construction units and the special standing counsel claims has been granted to them by the Board. That policy was fully discussed in the Board's 1976 decision in Duron Ontario, supra, but the succinct summary of it in Duron Ottawa, supra, is entirely adequate for this decision:

"...even in cases involving the construction industry, the Board in displacement cases has always determined the bargaining unit under section 6(1) of the Act, and the applicant was required to take all employees in the existing bargaining unit."

Even if the Board had the option under section 144(1) to follow its displacement policy, it would not for two reasons. First, the Board agrees with counsel for the Carpenters that the Board has not granted the special standing to bargaining units in concrete forming construction asserted by counsel for the interveners. Second, it would be disruptive to the provincial bargaining scheme for the same reasons given in the Graham and Manacon decisions, supra, if the Carpenters were required to represent in the ICI sector trades other than carpenters. Therefore the Carpenters' will not be required to represent all of the employees in the existing agreement without regard for their trade classifications.

18Of course that still leaves the question of what employees the Carpenters will be required to represent; in other words, what is the appropriate bargaining unit. The facts of this case are quite analogous to those in the Duron Ottawa case, supra. In that latter case, the applicant was a trade union which is an affiliated bargaining agent of the employee bargaining agency for the cement masons' building trade and was seeking to represent certain employees who, at the time, were represented by a local of the LIUNA under the labourers provincial agreement. The provincial agreement described a bargaining unit which included "...employees engaged in cement finishing, water-proofing or restoration work...", a description which includes cement masons and labourers. The applicant had applied to represent cement masons only. The incumbent labourers' union argued that the applicant should be required to represent labourers as well. In the instant case we do not know precisely the trade classifications represented by the interveners because the Board has accepted the agreement of the parties to first hear and decide the legal issues set out above with respect to the appropriate unit. The agreement, however, includes classifications which could include carpenters as well as other trades. Therefore, if the unit includes carpenters, it could also be broader than carpenters. So for the purpose of this decision, the Board assumes, without finding, that the bargaining unit in the agreement includes carpenters and other trades.

19The Carpenters herein want bargaining rights in the ICI sector for carpenters, but not any other trades, employed by the respondent. That was the applicant's position with respect to cement masons in the Duron Ottawa case, not just respecting the ICI sector but all other sectors as well. The Carpenters, on the other hand, also want to represent in all other sectors any other trades included in the agreement's bargaining unit. In spite of that difference in the two cases, the Board finds instructional for this case, the reasoning and conclusions of the Board in Duron Ottawa. The extract set out below begins right after the quotation above summarizing the Board's displacement policy:

"4. In the Clarence H. Graham Construction Company Limited case, [1981] OLRB Rep. Sept. 1195, the Board noted that such a policy concerning construction industry bargaining units was probably in conflict with the policy implicit in section 144(1) of the Act dealing with applications for certification in the construction industry. The Clarence H. Graham Construction Company Limited case was not a displacement case. This case, however, is. Indeed, it falls squarely within the principles referred to in the Duron Ontario Limited case referred to above. Thus, the question which arises is whether in view of section 144 of the Labour Relations Act the applicant in the present case should be required to take a bargaining unit of cement masons and construction labourers. That is, the unit represented by the current incumbent, or whether the applicant can seek to represent a unit only consisting of cement masons. It is clear that the applicant does not seek to represent construction labourers, and is only seeking to represent cement masons. Section 144(1) of the Act reads as follows:

An application for certification as bargaining agent which relates to the industrial, commercial and institutional sector of the construction industry referred to in clause e of section 177 shall be brought be 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 the 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)

It is our view that the bargaining unit sought by the applicant, namely, a bargaining unit of cement masons correctly describes, in generic terms, the employees who would be bound by its provincial agreement. Further, to require the applicant to take construction labourers would in fact require the applicant to assume bargaining rights for employees who would not be bound by its provincial agreement. As the Board noted in the Clarence H. Graham Construction Company Limited case, this would lead to the mischief of establishing bargaining rights for trade unions bound by provincial bargaining with respect to employees who would be outside the realm of provincial bargaining. As the Board noted in paragraph 11 of the Clarence H. Graham Construction Company Limited case:

'It should be noted that section 131a(1) [now section 144(1)] says 'shall include all employees who would be bound by a provincial agreement. Normally this would imply that the Board has the power to include employees other than those covered by the provincial agreement. In the present case, however, this becomes a matter of including in a provincial bargaining unit or series of bargaining units employees covered by the regime of provincial bargaining, together with employees outside the provincial bargaining regime. Clearly, subsection 3 and subsection 5 of section 131a [now section 144] deal with matters relating to employees outside the regime of provincial bargaining and we propose to limit the appropriate unit in this case to only those covered by the regime of provincial bargaining. In so doing we are of the view that this is consistent with the provisions of the Act relating to the provincial bargaining. To certify the applicant in the present case for employees in the industrial, commercial and institutional sector in the construction industry, but outside the scheme of provincial bargaining, would create representation rights for trade unions within that scheme for employees outside the regime of provincial bargaining. Such representation would clearly be disruptive of the overall scheme contemplated in sections 125 [now section 137] to 136 [now section 151].'

We, therefore, are of the view that the appropriate bargaining unit is, as found in our previous decision, described in terms of all cement masons and cement masons' apprentices.

5. Before leaving the matter of the appropriate bargaining unit, however, it is perhaps necessary to comment on the Board's decision in Ninco Construction Limited, [1982] OLRB Rep. Nov. 1692. In that case, the Board, commenting on the Clarence H. Graham Construction Company Limited case, also dealt with the matter of the type of employees affected by this application:

'5. The contention of the applicant is that in the Clarence H. Graham case the Board misinterpreted the relevant provisions of the Act and wrongly concluded that it was prohibited from certifying an affiliated bargaining agent for employees falling outside the scope of the relevant designation. Accordingly, contends the applicant, the Board should not follow the reasoning set forth in that case. We incline to the view that section 144 of the Act does not permit an affiliated bargaining agent to apply to represent employees in the ICI sector who are outside the scope of the designation affecting it. However, even assuming that the Act does not actually prohibit such a result, we nevertheless regard the unit being requested here, (namely one which includes employees both within and outside the regime of provincial bargaining such that some but not all of the employees would fall under a provincial agreement) to be disruptive of the scheme of provincial bargaining and not appropriate for collective bargaining. The Board has a broad general authority under section 6(1) of the Act to determine the unit that is appropriate for collective bargaining. In the ICI sector this broad authority is restricted somewhat by section 144. Nothing in section 144, however, mandates that the Board include different crafts or classes of employees within the same bargaining unit or requires that employees within and outside the scheme of provincial bargaining be included in the same unit. Accordingly, even if such a unit is permitted under the Act, nevertheless the Board still retains the authority under section 6(1) to conclude that it is inappropriate. As already indicated, we view the unit being requested in this case as inappropriate. Instead, we regard the appropriate bargaining unit as one which encompasses only employees covered by the labourers' employee bargaining agency designation and who, accordingly, would fall under the labourers' provincial agreement.

6. At the hearing, counsel for the applicant contended that any bargaining unit fashioned by the Board should expressly include not only construction labourers but also 'all employees engaged in cement finishing, waterproofing or restoration work'. This phrase is utilized in both the labourers' employee bargaining agency designation and the labourers' provincial agreement. Presumably the phrase found its way into the designation because of its use in collective agreements entered into be various Ontario locals of the Labourers' International Union prior to the advent of provincial bargaining. To our knowledge, except for displacement applications where the wording had previously been utilized by the employer and the incumbent union, the Board has never recognized employees in cement finishing, waterproofing or restoration work as being one or more separate trades or classifications of employees for certification purposes. Indeed, the Board's experience is that the types of work involved can, and, have been, performed by members of more than one trade. We are not satisfied on the material before us that the Board should now begin to describe bargaining units in these terms. However in that on the application date the respondent did have employees engaged in cement finishing work, we think it appropriate to describe the bargaining unit in terms of construction labourers but to specify in a clarity note that employees performing this type of work do come within the scope of the bargaining unit. In that the respondent had no employees engaged in waterproofing or restoration work at the relevant time, we do not feel it appropriate to include a similar clarity note relating to this type of work.'

The term used in that decision, namely, "employees engaged in cement finishing, waterproofing or restoration work" includes both cement masons and labourers. That is, it is clearly broader than "cement masons". The point in the present application is that the applicant is entitled by virtue of our interpretation of section 144(1) to represent cement masons and cement masons' apprentices (the term in its designation) and need not take all employees engaged in cement finishing, waterproofing or restoration work."

20The principles set out in Duron Ottawa, including those which it adopts from the Ninco decision, are entirely applicable to the facts of this case. Their application leaves no doubt that the Carpenters are entitled "at the very least", as counsel put it, to a bargaining unit comprised of carpenters and carpenters' apprentices in the ICI sector in the Province of Ontario and in all other sectors in Board area #16. The question is whether it is entitled to anything more respecting the trades to be included in the "all other sectors" part of the bargaining unit. It appears that the Board has not addressed that question in its reported cases, like all of the ones referred to herein, wherein it has held that an affiliated bargaining agent making application under section 144(1) of the Act must apply for a unit comprised of the trades which would be bound by its provincial agreement, in this case carpenters and their apprentices. Counsel for the Carpenters has argued that they are entitled to include trades other than carpenters in the "all other sectors" part of the unit on the two bases argued above; that is, the wording of section 144(1) provides for that result or, in the alternative, the Board should treat the application as though it were made for two bargaining units. One unit would be limited to carpenters and apprentices in the ICI sector and in all other sectors in Board area #16 and the other would be comprised of all other trades in sectors other than the ICI sector in Board area #16.

21A plain reading of the words "...together with all other employees in at least one appropriate geographic area..." certainly accommodates what the Carpenters are seeking. However, as the Board observed in paragraph 5 of the Ninco decision quoted from the Duron Ottawa decision, supra, the Board retains general authority under section 6(1) of the Act to determine the unit that is appropriate, and, although section 144 places some restriction on that broad authority, it does not mandate the Board to include different crafts or classes of employees within the same bargaining unit or require that employees within and outside the provincial bargaining scheme be included in the same unit. Therefore, even though the wording of section 144(1) allows what the carpenters are seeking, the Board still retains authority under section 6(1) of the Act to determine whether the unit would be appropriate. There are sound labour relations policy reasons why it would not be appropriate.

22In the Board's decision in Colonist Homes, supra, it interpreted section 144 of the Act to mean that the applicant in an application under that section, and not the Board, decides whether the application relates to the ICI sector and is made under section 144(1) of the Act or does not relate to the ICI sector and is made under section 144 (3). It further interpreted section 144 to mean that it was necessary only for the application to describe the bargaining unit in terms that encompassed the ICI sector as well as other sectors and it was not necessary that there be employees at work in the ICI sector on the making of the application. In reaching those conclusions, the Board took into account the legislative history of what is now section 144 and the fact that, when first enacted, it required an application for certification in the ICI sector to be for "...employees... employed in the [ICI] sector...", and when enacted in its present form, that requirement had been dropped. That amendment persuaded the Board that the current wording of section 144(1) was intended to avoid the need in each application to make a determination as to the sectors employees are working in within the relevant Board area. The important labour relations policy served by that result is the avoidance of a significant potential for delay in the certification process. Prior to the advent of section 144, the Board had consistently rejected a sector approach to certification proceedings in the construction industry for that reason. See the Board's decision in Lyle West Electric Limited [1978] OLRB Rep. Nov. 999.

23Were the Board to accept the proposition that the wording of section 144(1) would allow an appropriate bargaining unit to be described as Carpenters' counsel suggests, the Board would have to determine whether the employees who are not carpenters and carpenters' apprentices were working in the ICI sector. This would be necessary because, if the application succeeds, two certificates would issue pursuant to section 144(2). The certificate respecting "all other sectors" in Board area #16 would be described to include the other trades. For example, assume that the Carpenters were seeking a unit described as "all carpenters and carpenters' apprentices employed by the respondent in the ICI sector of the construction industry in the Province of Ontario and all carpenters, carpenters apprentices, cement masons and cement masons' apprentices and construction labourers employed by the respondent in all other sectors of the construction industry in Board area #16". The "all other sectors" certificate in that case would be described as "all carpenters, carpenters' apprentices, cement masons, cement masons' apprentices and construction labourers employed by the respondent in all other sectors of the construction industry in Board area #16". If the certificate issued without any determination of whether the cement masons and construction labourers were working in the ICI sector and if in fact they had been working in that sector, the Carpenters would be acquiring bargaining rights which would not have been available to them had an application been made under section 144(3) of the Act in the same circumstances. Applications brought under that section must relate "...to a unit of employees employed in all sectors of a geographic area other than the [ICI] sector...." (emphasis added). Under section 144(3), therefore, it is necessary to determine that the employees are not employed in the ICI sector. In this example, therefore, in order to avoid the possibility of the Carpenters inadvertently acquiring bargaining rights for the cement masons and construction labourers under section 144(1) which they could not get under section 144(3), the Board would have to make a sectoral determination respecting those trades. Such a determination would be unnecessary if the unit was described in terms of carpenters alone. Describing a bargaining unit under section 144(1) which would have that result would be contrary to one of the labour relations policies underlying the Board's decision in Colonist Homes, supra, the very decision which has made it possible for the Carpenters, instead of the Board, to determine that the instant application relates to the ICI sector without the need of establishing that there were any carpenters employed in that sector at the time it was made.

24Having regard to the Board's long-standing policy of avoiding sector determinations in construction industry applications, a policy which appears to have been heeded by the Legislature when it enacted the present section 144(1), and the fact that the unit proposed by the Carpenters would require the Board to make a sector determination, the Board finds that it would not be a unit appropriate for collective bargaining. Instead, the Board finds the appropriate unit to be all carpenters and carpenters' apprentices in the employ of the respondent in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario and all carpenters and carpenters' apprentices in the employ of the respondent in all other sectors within a radius of 33 kilometres (approximately 20 miles) of the North Bay post office (Board area #16).

25It remains for the Board to deal with the final alternative argument of Carpenters' counsel; that is the proposition that the Board treat the application as though it had been made for two separate units. The first would be the one found in the preceding paragraph to be appropriate under section 144(1). The second would be for all employees, excluding carpenters and carpenters' apprentices, in the employ of the respondent in the construction industry in Board area #16.

26Where, as here, a building trades union seeks under the construction industry provisions of the Act to represent employees in a bargaining unit which is not its normal craft or trade, in the instant case not carpenters and carpenters' apprentices, the Board will consider the appropriateness of the unit pursuant to section 6(1) of the Act. In such cases, the unit considered by the Board to be appropriate is one comprised of all trades or classifications unrepresented by any other trade union and at work on the date of the application. See Duron Ontario, supra. When an affiliated bargaining agent like the Carpenters wants that type of unit, it must make its application pursuant to section 144(3) of the Act. See Rolland Duquette Construction, [1983] OLRB Rep. Nov. 1884. In such cases, the Board does not describe the appropriate unit in terms of "all employees", rather it describes the unit by the trades or classifications actually at work. In the instant case, if there were cement masons and construction labourers, for example, it would describe the unit in terms of all cement masons, cement masons' apprentices and construction labourers. If those were in fact the trades at work on the date of making of the application, the Carpenters would have been at liberty to apply under section 144(3) of the Act to represent those classifications in Board area #16, excluding the ICI sector. If it had the requisite number of employees as its members, it would be certified for that type of unit. What it is seeking to do is have the Board treat its application as though it had requested one bargaining unit which would be appropriate under section 144(1) and another which would be appropriate under section 6(1) as applied to applications made under section 144(3). Were the Board disposed to grant the Carpenters' request, a plain reading of sections 144(1) and 144(2) makes it clear that section 144(1) describes one bargaining unit and the question of whether an applicant has the requisite membership support is determined amongst the employees in that single unit. The Carpenters could not rely on the membership support of or the ballots cast by the employees in that unit for the proposed second unit. It would have to demonstrate the requisite membership support amongst the employees in the proposed second unit to have been entitled to the pre-hearing representation vote and, if it was to be certified, a majority of the ballots cast by the employees in that unit would have to have been cast in favour of the Carpenters.

27The Board frequently processes applications outside of the construction industry provisions in which a single, all-employee type of unit is being sought. If there are full-time and part-time employees in the unit, the Board may find that part-time employees should be excluded from a unit of full-time employees because of a separate community of interest. When that happens, if the applicant seeks also to represent the part-time employees, the Board will find a second appropriate unit comprised of all part-time employees. It does so without requiring the applicant to file a fresh application. Applications outside of the construction industry are made pursuant to section 5 of the Act and the appropriate bargaining unit is determined pursuant to section 6. Section 6 gives the Board broad discretion to determine the appropriate unit and obviously has been broadly construed by the Board in order for it to find, in appropriate circumstances, more than one appropriate unit in a single application. As the Board stated in its decision in Parnell Foods Limited, [1969] OLRB Rep. April 38, on page 40:

"...if the Board finds there is more than one unit of employees appropriate for collective bargaining then in the interests of industrial peace it has a wide discretion in choosing a unit or units that it will certify."

While that broad discretion has been restricted somewhat by section 144(1) of the Act respecting applications relating to the ICI sector, there is nothing in section 144(1) which would prevent the Board from finding more than one appropriate unit in proper circumstances, so long as one of the units found by the Board to be appropriate fulfills the mandate of section 144(1) with respect to the "...employees who would be bound by a provincial agreement...".

28There are some sound labour relations reasons in this application for doing as counsel for the Carpenters requests. Most importantly, the necessary findings with respect to the appropriateness of the section 144(1) unit of carpenters and the number of employees in the unit who were members of the Carpenters on the making of the application could be made without delay and, therefore, without need to delay the counting of the ballots or the issuing of a certificate if a majority of the ballots cast have been cast in favour of the Carpenters. If there is an issue of whether the other trades were working in the ICI sector, it will have to be resolved before a second appropriate unit could be found. But that would be a severable issue and would not interfere with disposing of the application as it relates to the carpenter unit. In the context of an application for certification where there has been no request for a pre-hearing vote, it would mean that the application, insofar as it relates to the section 144(1) unit, could be fully and finally determined without delay pending the resolution of any problem with respect to the second bargaining unit. By treating an application in this manner when an affiliated bargaining agent is seeking to represent its designated trade in the ICI sector and something more in all other sectors, multiple proceedings would be avoided as would the delay attendant upon them. It would assure also that all related bargaining unit issues would be dealt with simultaneously, as a whole and by one identically constituted Board. There is also uncertainty in the instant case as to the trades at work on the date of the application and whether the persons at work were performing work of the carpentry trade. It is possible, therefore, that the Carpenters could have conducted their organizing campaign amongst persons whom they considered to be performing carpentry work who, in fact, were not performing such work at the times material to the application. If that were to be the case, there would be no unit of carpenters and carpenters' apprentices available. Were the Board to deny the Carpenters' request for the second bargaining unit, the Carpenters' would lose the right to represent persons who are members of the Carpenters unless a fresh application could be successful. In all of these circumstances, the Board would be disposed to grant the Carpenters' request.

29There may be other sound labour relations reasons in other instances for the Board applying the same policy, and there may be cases where the Board would decline to apply the policy. Obviously, decisions whether to apply the policy would have to be made on a case by case basis. Some may see the application of this policy to applications made under section 144(1) of the Act as having a disruptive effect on traditional trade jurisdiction by inviting more trade unions to cross traditional trade lines. In the Board's experience, those lines are not as clearly defined as some persons would like to believe. What is more significant, however, and while the Board does not wish to do anything to increase the opportunity for disputes over trade jurisdiction, the Act does not give to any trade union a monopoly respecting the representation of any unit of employees. See Duron Ontario, supra, at paragraph 13, wherein the Board also observed as follows:

"... In our opinion, the root cause of the arguments over the appropriateness of the bargaining unit is grounded in a view that trade unions in the construction industry should not as a matter of principle cross craft lines in their organizing activities. Many arguments may be made in support of this view. Such a point of view, however, is best debated within the ranks of trade unions rather than before this Board."

30Having regard for all of the foregoing, if the respondent employed carpenters on the date of this application made pursuant to section 144(1) of the Act, there would be an appropriate unit described in terms of all carpenters and carpenters' apprentices in the employ of the respondent in the ICI sector in the Province of Ontario and in all other sectors within a radius of 33 kilometres (approximately 20 miles) of the North Bay post office. If the respondent employed on the date of making of the application classifications other than carpenters in sectors other than the ICI sectors, whether or not carpenters were employed, there would be an appropriate unit described in terms of all other sectors within a radius of 33 kilometres (approximately 20 miles) of the North Bay post office, and the classifications or trades of the persons employed who were represented by the interveners pursuant to the Agreement or who were not represented by any other trade union.

31The Registrar is directed to list this matter for hearing on the issues remaining. The parties are directed to meet and attempt to agree on how to proceed with those issues. The applicant, accordingly, is to advise the Registrar of the results of their meeting.