International Brotherhood of Electrical Workers Local Union 1687 v. Kidd Creek Mines Ltd., 1984 CanLII 937

[1984] OLRB Rep. March 481

2742-82-R International Brotherhood of Electrical Workers Local Union 1687, ("I.B.E.W Local 1687"), Applicant, v. Kidd Creek Mines Ltd., Respondent, v. United Steelworkers of America, ("the Steelworkers"), Intervener

BEFORE: R. O. MacDowell, Vice-Chairman, and Board Members J. A. Ronson and P. J. O'Keeffe.

APPEARANCES: A. M. Minsky, Q. C., B. Fishbein, L. Popovitch and D. Lounds for the applicant; F G. Hamilton, Q. C., D. F Grenville and R. Willoughby for the respondent; Brian Shell and Jack de Klerk for the intervener.

DECISION OF THE BOARD; March 23, 1984

I

1. This is an application for certification.

2. The Board finds that the applicant is a trade union within the meaning of section l(l)(p) of the Labour Relations Act.

3. The respondent is a mining company which has carried on business in Ontario, un­der various corporate names, since 1966. The operations with which we are concerned are located in the City of Timmins, and consist of a mine site in Kidd Township, and a metal­lurgical complex in Hoyle Township interconnected by a 32 mile railway operated by the com­pany. The mine site is a base metal mine extracting a variety of ores. The ore deposit was originally an open pit operation but now consists of two underground shafts. The ore is trans­ported by rail to a metallurgical site for crushing, milling, refining and smelting, in a large modern complex that includes laboratories and office buildings. The company's facilities are among the most advanced in the world. Its production equipment is complex and highly sophisticated.

4. The Timmins operation has an employee complement of about 2,800, split equally between the two locations. There are approximately 800 persons employed in the maintenance function, of whom 106 are electricians. The vast majority of those electricians have a prov­incial "certificate of qualification". A number also have specialized electronics training be­yond that required for the basic certificate of qualification, as well as certain "cross trades" training in skills typically used by other tradesmen.

5. Apart from electricians, the company employs in its maintenance function, large numbers of other skilled tradesmen, including: millwrights, welders, pipe/gas fitters, plumbers, machinists, carpenters, painters, masons, etc. In addition, the maintenance department in­cludes numerous semi-skilled and unskilled classifications as well as various technicians, tech­nologists, quality control personnel, expeditors, planners~ engineers, clerical and supervisory staff. Given the nature of the maintenance function, electrical crews will regularly work side by side with other tradesmen or employees in the maintenance department. The electricians work throughout the entire operations. They may receive direction from any number of fo­remen. The electricians report primarily, but not exclusively, to electrical foremen with the same background as themselves.

6. We might note that when this case was originally scheduled for hearing, the Board, differently constituted, granted the United Steel Workers of America ("the Steelworkers") lim­ited "amicus curiae" status to intervene and make representations. The Steelworkers did not represent any of the electricians, nor was it seeking to do so. There was no certification ap­plication wherein the Steelworkers were seeking to represent any of the respondent's em­ployees. However, the United Steelworkers of America is the dominant union organization in the mining industry, and, where organized, maintenance electricians typically fall within the Steelworkers' industrial bargaining unit. The original panel of the Board was persuaded that the Steelworkers had a sufficient contingent interest in the outcome of this case to warrant entertaining its representations on the legal and policy issues which it raises.

II

7. The main issue in this application is whether the group of electricians whom the union seeks to represent, constitute, by themselves, a unit of employees appropriate for col­lective bargaining. The applicant union claims that they do, and relies upon section 6(3) of the Act. The union claims that the company's maintenance electricians constitute a craft unit which is deemed to be appropriate. In the alternative, the union argues that the electricians share a separate and distinct community of interest, so that they would constitute an appro­priate unit even under the broader discretionary provisions of section 6(1). The employer re­jects both contentions. It argues that the union cannot meet the requirements of section 6(3), and that the only bargaining unit "appropriate" is an "industrial" unit comprising all of the employer's production and maintenance employees. The relevant provisions of the Act read as follows:

8. (1) Subject to subsection (2), upon an application for certification, the Board shall determine the unit of employees that is appropriate for collective bargaining, but in every case the unit shall consist of more than one employee and the Board may, before determining the unit, conduct a vote of any of the employees of the employer for the purpose of as­certaining the wishes of the employees as to the appropriateness of the unit.

(3) Any group of employees who exercise technical skills or who are members of a craft by reason of which they are distinguishable from the other employees and commonly bargain separately and apart from other employees through a trade union that according to established trade union practice pertains to such skills or crafts shall be deemed by the Board to be a unit appropriate for collective bargaining if the application is made by a trade union pertaining to such skills or craft, and the Board may include in such unit persons who according to established trade union practice are commonly associated in their work and bargaining with such group, but the Board shall not be required to apply this subsection where the group of employees is included in a bargaining unit represented by another bargaining agent at the time the application is made.

8. As will be seen, there are three conditions which a union must meet in order to bring itself within the craft unit provisions of section 6(3):

9. The group of employees whom the applicant seeks to represent must be employees who exercise technical skills or who are members of a craft by reason of which they are distinguishable from other employees;

10. the group of employees must commonly bargain separately and apart from other employees through a trade union that according to estab­lished trade union practice pertains to such skills or crafts;

11. the application must be made by a trade union which pertains to such skills or craft.

If those conditions are met, the Board is required to find the craft unit to be appropriate. Section 6(3) is mandatory. Conversely, if the applicant union fails to meet any one of these conditions, section 6(3) has no application at all. With this in mind, the parties agreed to focus initially on the so-called "second test" (item 2 above) and hear the union's evidence on its established bargaining practices. In the Board's experience, this is the barrier upon which craft claims most frequently founder, and seemed a sensible place to start. If the union could not meet the second test, it would not be necessary to consider the other aspects of section 6(3).

9. The hearings consumed a number of days and the union tendered voluminous oral and documentary evidence concerning its bargaining practices in Canada and the United States. Much of that evidence consisted of collective agreements which, it was said, showed that, in a number of industries, the I.B.E.W. represents bargaining units of maintenance electricians who commonly bargain separately and apart from other employees. The union's position was that it has a well-established and widespread practice of bargaining separately for maintenance electricians and that it was therefore unnecessary to show that it has a special or particular practice of bargaining separately for electricians employed in the mining industry.

10. The introduction of these agreements was strenuously resisted by the respondent employer on a number of grounds: that the agreements were irrelevant unless they showed an established practice of separate bargaining in mining; that the agreements — particularly the American ones — were irrelevant because they did not pertain to bargaining practice in Ontario; and that some of the agreements should not be admitted at all because the individual intro­ducing them had no direct knowledge of the bargaining situations to which they related.

11. Many of the agreements were put in by Don Lounds, a union official who was re­sponsible for reviewing collective agreements from across Canada prior to sending them to the union's head office in the United States. Mr. Lounds is familiar with the contents of these agreements because he is called upon to read them, but he did not necessarily have any per­sonal knowledge of the individual bargaining situations. In a number of instances, he had no direct knowledge of the composition of the bargaining units or the bargaining framework which led to the signing of the collective agreements, other than what might be inferred from reading the documents themselves. He also conceded that the fact that electricians might have a sep­arate collective agreement (i.e., a separate document) did not necessarily mean that the agree­ment resulted from separate bargaining by electricians, nor was it easy to determine whether the bargaining unit defined in a number of these collective agreements covered only electri­cians or a mixture of craft and non-craft employees. Either situation might arguably diminish the force of the union's argument that it commonly bargained separately and apart for elec­tricians. Some of these details were eventually supplied by other union officials with expe­rience in Ontario and other parts of Canada, but at the end of the union's case there was no similar supporting evidence respecting the American agreements. Mr. Lounds explained that he had obtained those agreements by writing to the union's collective agreement library in the United States and he knew no more about them than could be gleaned from their terms.

12. While there was considerable merit to the employer's submission, the Board ruled that it would receive the disputed documentary material subject to later argument as to the weight (if any) which should be given to it. We were not disposed to alter the approach first enunciated by the Board in Art Wire & Iron Ltd. et al. 54 CLLC ¶17,080. In that case two locals of the Ironworkers' union sought to represent separate craft units of "inside" and "out­side" workers, but found it difficult to establish a history of separate bargaining for the former group in Ontario. It could, however, point to a history of separate bargaining on this basis in the United States. The respondent, as in the instant case, argued that such evidence was irrelevant to the construction of an Ontario statute. But the Board disagreed:

In so far as the United States is concerned, we find on the evidence sub­mitted that there is an established trade union practice there for archi­tectural and ornamental iron workers to bargain separately and apart from other employees through the International Association of Bridge, Struc­tural and Ornamental Iron Workers or its locals. In Canada, a similar bargaining pattern is emerging but it cannot be said that the practice in this regard has gained widespread or general acceptance in this industry in Canada. We would hesitate to say on the evidence presented that the practice has become established in Canada or in Ontario. We are of the opinion, however, that the applicant, Local #721, does not have to rely in these cases solely on the practice in Ontario. Subsection (2) [now (3)] of section 6 does not contain any geographic limitations, undoubtedly in recognition of the facts of economic life on this continent. Conditions which give rise to certain industrial patterns in the United States usually find their counterpart in Canada. Since both industry and trade unions cross the border without let or hindrance, it is inevitable that a trade union habituated to certain modes of organizing or bargaining in the United States will seek to follow them in Canada; experience has shown that any bargaining practice that becomes an integral part of industrial relations in the United States will in due course be reflected in the Canadian scene. To erect a barrier against the introduction of such a practice into Canada will usually only lead to industrial strife and we fail to see the wisdom of such a course unless it can be shown that the prac­tice would be harmful to the public interest. Their is nothing in the evi­dence that would warrant us in coming to the conclusion that such harm would be done if we were to recognize the "craft" status of Local #721 in this industry. Indeed, if we were to adopt any other principle than the one indicated~ we would in effect be saying that no international trade union having craft characteristics which had not heretofore endeavoured to organize employees in Canada can ever claim the benefits conferred by subsection (2) of section 6.

13. No doubt in the 30 years since Art Wire there has been some divergence between Canada and the United States in collective bargaining practice and legislative policy. The spill-over of American practices may no longer seem as inevitable as it once was, and American precedents may no longer be as useful. However, so long as Canadian employees are members of international unions, our collective bargaining system is influenced by North American eco­nomic trends, and our legislation remains roughly similar to that of the United States, Amer­ican collective bargaining experience will be arguably relevant. In our view, it is not so much a question of relevance but of weight. Evidence from foreign jurisdictions may not be as per­suasive as evidence of collective bargaining practices closer to home; moreover, reference to this broader context can be a double-edged sword. It may, as in Art Wire, permit the Board to conclude that separate bargaining is "common" even if it is uncommon in Ontario. On the other hand, if one has to go far a field to find examples, or if in surveying this much broader range of collective bargaining experience one still finds only a few instances of separate bar­gaining, these few instances will appear all the more unusual, infrequent, rare, unique, ex­traordinary, or, in short, uncommon. If the collective bargaining canvass is to include both Canada and the United States, a few cases from the latter jurisdiction will not establish the "widespread and generally accepted" practice considered by the Board in Art Wire to be nec­essary. Likewise, the absence of direct knowledge of the bargaining situations goes to the weight of the evidence which the union has submitted, rather than whether it should be re­ceived at all. We prefer to treat the collective agreements rather like "business records" com­monly filed by employers, since from a practical point of view it would be very difficult to assemble witnesses from all over North America, or find someone with personal knowledge of a longstanding bargaining relationship which may stretch back over forty years. However, as will be seen below, the absence of such evidence may significantly diminish the weight to be accorded to the documentary material submitted.

14. It is neither necessary nor practical in these reasons to attempt to reproduce all of the details of the union's oral and documentary evidence. It is sufficient to give an overview of the collective bargaining situations and agreements relied upon, and for ease of reference, these will be grouped together on an industrial basis. Since the whole purpose of this evidence is to establish that maintenance electricians commonly bargain separately and apart, we shall emphasize those features of the documentary evidence (and supporting testimony where ap­plicable) which bear specifically on this issue. We should state at the outset, however, that what we found particularly interesting is: the number of instances where the agreements filed by the union are the result of common bargaining with other trades and/or production em­ployees; and the number of instances where the group of employees on whose behalf the I. B. E . W. bargains, includes persons who are not certified electricians or apprentices. In other words, within their own units the electrician members of the unit bargain together with other employees who, strictly speaking, are not members of the craft, and at the employer level, the I. B. E . W. units bargain together with other skilled or unskilled employees in the enterprise. Of course, the fact that the I.B.E.W may find it expedient to negotiate in conjunction with other unions may not weaken its claim to a craft unit under section 6(3); nor would the Board wish to create a disincentive to engaging in joint bargaining. However, it does underline the extent to which collective bargaining realities have compelled the I.B.E.W. to simulate an "industrial" bargaining model.

III

15. The largest group of agreements filed by the union are in the pulp and paper in­dustry, where the I.B.E.W. has had a presence for many decades — in fact, well before the existence of collective bargaining legislation and the widespread organization of industrial unions. The pulp and paper mills were often located in remote areas, beyond the reach of established electrical power transmission lines, and, consequently the companies had to gen­erate their own electricity. It appears that these power stations provided the I.B.E.W its first foothold in the industry which it later extended into the mills themselves. At the time, the production employees were largely unorganized, although the skilled employees may have been represented by one or more craft unions. The oral evidence was that the I.B.E.W presence dates in some cases to the 1920's and 1930's, and the agreements filed with the Board indicate that the I. B. E .W. continues to represent electricians employed in the installation, maintenance repair, and sometimes operation, of electrical equipment in the employer's mills and power plants. This, the union argues, establishes its practice of separate bargaining through various of its local unions across Canada. But on closer scrutiny, the picture is much less clear.

16. The agreement with Abitibi Price at Iroquois Falls includes the classification of powerhouse operator, electric utility cleaner, mechanic wheelman and lineman. The Abitibi Price agreement at Port Arthur includes the classification motor oiler. In both cases the agree­ment appears to cover individuals who are not certified electricians. The Abitibi Price Pine Falls agreement, on its face, refers to a number of other trades and the recognition clause includes a reference to the United Paperworkers' International Union, Local 1375, as well as I.B.E.W. Local 658. William Brazeau, an I.B.E.W. official, admitted that this document was the result of common bargaining with the International Association of Machinists ("I.A.M.") which, together with the I.B.E.W, represents employees in the maintenance department. And, ironically, the small I.B.E.W. unit has relatively recently been absorbed into the larger in­dustrial unit. It no longer exists. This is one of several examples of a declining I.B.E.W. pres­ence in the industry.

17. The agreement with Bowater Newfoundland Limited at Corner Brook appears to be the result of joint negotiations between the company and I.A.M. Local 1567 and I.B.E.W. Local 404. There is a joint recognition provision and a reference to both unions on the cover page of this agreement. On its face, it is not an example of totally independent or separate bargaining by electricians apart from other employees.

18. The agreement between I.B.E.W Local 559 and Boise Cascade at Kenora and Fort Francis is also the result of co-ordinated bargaining with a number of trade unions, including two locals of the Canadian Paperworkers' Union ("C.P.U."), the I.A.M., the I.B.E.W., and the Office and Professional Employees' International Union ("O.P.E.I.U."). Changes to the unions' collective agreements are made in tandem, there are common provisions, and there is a common memorandum of settlement. There is a single spokesman in bargaining for all unions participating and a joint recommendation from the bargaining team for the agreement s acceptance or rejection. There is common voting, but if the I.B.E.W. rejects the package, it is said, there would be no collective agreement with that union. However, it appears that such possibility is remote. All of the constituent unions agree on changes to the central issues and any disagreements are worked out between them so that the various unions can present a "common front" to their employer. On one of the documents, a purported extension agree­ment, the names of a number of locals appear, including those of the C.P.U. and O.P.E.I.U. — two unions which organize on an industrial model. The Boise Cascade agreement with Local 559 at Kenora also includes powerhouse operators. The evidence does not clearly establish that those individuals are or must be certified electricians.

19. The recognition provisions of the collective agreement document between I.B.E.W. Local 1150 and Bathurst Division of Consolidated Bathurst, at Bathurst, New Brunswick also mentions I.A.M. Local 1505, the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada ("U. A.") and the Inter­national Union of Operating Engineers' ("I.U.O.E.") Local 894. The signing page of the collective agreement includes all four unions as does the attached memorandum of settlement. The only reasonable inference is that this agreement results from common rather than separate bargaining.

20. In the agreement between I.B.E.W. Local 2041 and Domtar Packaging at Red Rock, Ontario, there are common letters of understanding with various unions appended to the back of the agreement. Although no other agreements from these other unions were filed, there is certainly some form of common understanding and, it would seem, some common interpre­tation and application of common terms.

21. The agreement between I.B.E.W. Local 1888 and Irving Pulp and Paper Limited at Saint John, New Brunswick is framed in terms of "all employees", save and except a num­ber of employees represented by the Canadian Paperworkers Union. This agreement is not a "pure" electricians' unit either. It purports to include boiler operators, turbine operators, re­covery assistant, demineralizer operator, recovery helper, power boiler helper, utility man —steam plant, and a variety of operators. We do not have direct and specific evidence as to which of these classifications involve certified electricians but, on the surface, it would appear that at least some of these employees are not certified electricians. In the absence of direct evidence to the contrary we so find.

22. The agreement between I.B.E.W. Local 1149 and Kimberly-Clark at Kapuskasing includes helpers, cleaners, oilers, and utility men whom, we are told, would not be certified electricians. The document also mentions other trades. For the Kimberly-Clark agreement at Terrace Bay, there is a common memorandum of settlement with the United Paperworkers' International Union (U. P.1. U.) and Mr. Lounds agreed that this implied that there was common rather than separate bargaining. Jack King, another I.B.E.W. representative, confirmed that at least the last two agreements have been jointly negotiated at the same bargaining table with the U. P.1. U. Although there wereseparate ratification procedures, there was only one document with the same across-the-board percentage wage increase and a number of common clauses, on items such as wages, welfare, insurance plans, shift premiums, call-in pay and statutory holidays. Mr. King pointed out that it was possible for one union to reject the proposal or go it alone. As a practical matter it is not likely.

23. The agreement between I.B.E.W. Local 2354 and MacMillan Bloedel at Port Al­berni, British Columbia is interesting for another reason. It clearly does relate to a unit of maintenance electricians. But that unit may not last much longer. There is currently a pro­ceeding before the British Columbia Labour Relations Board to merge this unit into the larger industrial bargaining unit in order to avoid the collective bargaining problems which, the com­pany claims, arise from fragmented bargaining. If successful, this too will diminish the I.B.E.W. 's presence in the pulp and paper industry.

24. The agreement between Price Pulp and Paper at Grand Falls, Newfoundland and I.B.E.W. Local 512 is a common agreement between the company, the I.B.E.W. and the I. A. M. Both unions appear on the common front page, in the recognition clause, and through­out the agreement.

25. In the agreement between I.B.E.W. Local 1149 and Spruce Falls Power and Paper at Kapuskasing there are a number of trade unions purportedly signing and a number of crafts listed on the document. Mr. King testified that for many years there was joint bargaining with the C.P.U., although not in the last agreement. He testified that reference in the document to non-electrical job titles was a carry-over from previous years of bargaining.

26. In the agreement between I.B.E.W. Local 914 and Ontario Paper Company at Tho­rold, the recognition clause recognizes the signatory trade unions: the I.B.E.W., I.A.M., U.A., I.U.O.E., and Carpenters. The I.B.E.W. group includes ground men, motor room cleaner and helpers. The I.B.E.W. unit is not a "pure" craft grouping. In bargaining there is a single spokesman for the five trades, common proposals submitted and agreed to in one document and separate appendices for local issues. The unions' committee decides as a group when the results of bargaining should be taken back to the employees for ratification. Although each union ratifies on its own, no individual trade has ever rejected the proposal. Occasionally, the C. P. U. has also been involved in this bargaining structure. Mr. King testified that all the main­tenance activities were covered by a single agreement, the contract provisions are virtually identical for all trades, and that the package is negotiated at one bargaining table.

27. The best evidence before the Board is that there are approximately 170 mines cur­rently operating in Canada. The Steelworkers represent maintenance electricians in industrial units at a number of mines. The I.B.E.W. represents electricians at only one: Hudson's Bay Mining and Smelting at Flin Flon, Manitoba. But even here, the unit is not a "pure" craft unit of electricians and the bargaining is not "separate and apart" as one would usually use those terms.

28. The I.B.E.W. 's bargaining rights at Hudson's Bay mining and smelting can be traced back to certificates issued by the Canada Labour Relations Board more than 30 years ago, and it is interesting to note that if these certificates were issued pursuant to craft unit pro­visions in the federal legislation (the evidence is not clear in this regard) those craft provisions have now been repealed (see infra). There are two I.B.E.W. locals involved — Locals 1405 and 1598 — but neither appear to represent a "pure" electricians' unit. Local 1598 represents employees who operate a mechanical rail facility. The employees within its jurisdiction include such non-electrical classifications as: motor man, breakman, crane operator, locomotive en­gineer, and dispatcher. Local 1405's jurisdiction extends to operators of a coal plant, includ­ing: coal pulverizer, hoist man, labourer, cottrell helper. Neither of these groups are limited to electricians and electricians' apprentices. The craft employees bargain with non-craft mem­bers of the group. Nor is the bargaining really divorced from that of other company em­ployees. There has been a Council of trade unions which, until recently, included the Steelworkers. That Council bargains as a group with common proposals, and the committee decides by consensus when to recommend the package to its constituents. In the early 1970's, all of the trades engaged in a common strike. The I.B.E.W. did not bargain or strike sepa­rately. Again, there is an attempt to maintain a common front and, in practical terms, there is really only one "bargain" containing parallel changes for all trades and which all unions subscribe to. Thus, the one mine in which the I.B.E.W does have a bargaining presence is hardly a model of craft bargaining purity.

29. There was no direct evidence concerning the American mining agreements. We are left to draw such inferences as may be gleaned from a perusal of the contract language.

30. The agreement between I.B.E.W. Local 571 and Kennecott Copper in Nevada ap­pears to encompass a unit of both electricians and non-electricians. So does the I.B.E.W. Lo­cal 2223 unit at the Magma Copper Company — San Manuel Division, where, according to Mr. Lounds, such classifications as helpers, water treaters, and pump man, would not be part of a typical maintenance electricians' unit. The agreement with the Magma Copper — Superior Division, mentions a settlement with the "Magma Unity Council" and refers to the I.A.M. — references which Mr. Lounds testified "could be" indications of a common bargaining structure. In the absence of evidence to the contrary, we draw that inference. Similarly, in the case of the I.B.E.W. agreement with Duval Corporation in its copper operations in Arizona, Lounds indicated that it could be joint bargaining with six trade unions at one bargaining ta­ble. He did not know and could not tell from the collective agreement.

31. The agreement with the Swindell-Dressler Energy Supply Company and I.B.E.W. Local 602 is a little clearer on its face. There is no indication of joint bargaining, however, the recognition clause, article 3, refers to all production and maintenance employees and in­cludes such diverse groups as coal handlers, facility operators and dozer operator. This latter classification, if it means what it says, would usually fall within the craft jurisdiction of the I.U.O.E. This is not a pure electricians' craft unit. It is a unit in which electricians are bar­gaining together with members of another craft and non-craft employees.

32. At the Utah Copper Division of Kennecott, the agreement with Local 1438 of the I.B.E.W. is said to be based upon an American National Labour Relations Board certificate of 1944. The unit, to the extent which one can discern it from the contract language, includes a whole series of employees who are not engaged in electrical operations, maintenance or re­pair, including: machinist, boilermaker, power plant operator, crane operator, painter, fly ash machine operator, shopmen, water softener/pump operator, utility man, janitor, and helper. These employees are not separately represented, nor do the electricians bargain separately and apart from them. Again, some of these employees would be unskilled or semi-skilled, and others would be members of another craft.

33. In the case of Inspiration Consolidated Copper Co. Limited and I.B.E.W. Local 518, the memorandum of settlement appears to be between the employer and a number of trade unions. This too implies co-ordinated bargaining in which all unions have signed, at the same time, a single document of the same date, with common terms and conditions of em­ployment. In the case of Inspiration Consolidated Copper Co. Limited, the group represented by the I.B.E.W. includes such classifications as: break-in crane men, excavator operator, crane man, switchboard operator. In Ontario practice, these classifications would either be repre­sented by the I.U.O.E. or be part of a broader non-craft bargaining unit. They would normally not be included in the electricians' craft unit.

34. A number of the collective agreements submitted do not fit easily 'into any specific category and can therefore be conveniently dealt with together.

35. The I.B.E.W. filed an agreement with the University of Toronto. It is unique. There are no agreements with any other post-secondary educational institutions (universities, col­leges, community colleges etc.). There are, however, two agreements with municipal school boards: Windsor and Toronto. The Windsor Board of Education has quite recently signed a collective agreement covering the two employees that it has employed for years and who were members of the I.B.E.W. We were told that, in effect, this is a first agreement, and of course, we are aware that there are a number of collective agreements, and a number of certificates issued by this Board, in which maintenance employees of school boards or municipalities, including electricians if there are any, are grouped together in "industrial" bargaining units.

36. The Board of Education of the City of Toronto is the only other entity in the ed­ucational sector where the I.B.E.W can claim a presence, but up to the 1980-81 round of bargaining — i.e., the most recent collective agreement — the electricians have bargained through the Toronto and Central Ontario Building and Construction Trades Council which is specifically listed as the contracting party for the employees and unions bound by the col­lective agreement. That body represents a variety of trades, and the evidence indicates that, although the I. B. F .W. bargained separately in the most recent set of negotiations, for some 17 years before that, it bargained as part of a council of trades. As in the case of the Windsor Board of Education, its history of separate bargaining is relatively recent.

37. The applicant union also submitted an agreement between its Local 353 and the Toronto Star. This is the only agreement which it has with any newspaper in Ontario and there is no indication that it has any agreements with any newspapers anywhere else. We do not need direct evidence to observe that there are dozens of newspapers in this province and doz­ens of collective agreements in the newspaper industry — often with craft unions. The I. B. E . W. has only one.

38. The purported "Marine agreement" with Canal Electric also stands out as some­thing of an exception. It purports to apply to marine "construction, maintenance, and fab­rication of panels to be installed on ships". However, not only was this the only agreement of its kind filed with the Board, and not only does it bear a marked resemblance to activities associated with the construction industry, but the evidence was that the work was in fact cur­rently being done pursuant to the general construction agreement applicable in the industrial, commercial and institutional (ICI) sectors of the construction industry. Canal Electric is also an ICI construction contractor.

39. The union filed two agreements with Catalytic Limited covering that company's ac­tivities at the Gulf Petroleum complex in Clarkson, Ontario and the Syncrude project in Mildred Lake, Alberta. Both agreements with Catalytic were said to be representative of what is known as a "General Presidents' maintenance agreement". The union's witnesses testified that there were a number of such standard form agreements with Catalytic and with several other companies which do maintenance work largely in the petroleum industry. None of the other agreements were actually filed with the Board, and, as we will discuss later, the term "maintenance" has a certain chameleon quality about it: it means quite different things in different contexts. The only common thread is that what is "maintenance" is not "construc­tion" and therefore can be done at rates, and under conditions, different from those prevailing in the ICI agreement. Indeed, it appears that the whole purpose of the General Presidents' maintenance agreement is to permit subcontractors to compete for work in industrial enter­prises which they could not get if they had to pay their employees construction rates, and, which therefore would be done by the purchaser's own forces.

40. The agreement with Catalytic for the Gulf site provides that the company's business is "plant maintenance, repair and renovation". The agreement has been entered into by a number of unions together for their mutual benefit. The bargaining unit is described as en­compassing "all employees" engaged in maintenance, repair and renovation. The trades and unions listed on the face of and bound by the agreement include: asbestos workers, boiler­makers, carpenters, cement masons, electrical workers, ironworkers, labourers, operating en­gineers, pipefitters, sheet metal workers, and teamsters — a mixture of both traditional craft unions, and the unskilled or semi-skilled workers represented by the Labourers and Teamsters. It is not a separate agreement with the I.B.E.W. which does not bargain separately and apart.

41. The applicant's witnesses explained that the General Presidents' agreement reflects the consensus of a committee of the officials of a number of trades and unions which is en­tered into with companies engaged in the maintenance field (although Catalytic is also engaged in standard construction work). They testified that the work covered by the "maintenance" agreement is not considered construction work, even though, by its terms, the company's busi­ness is listed as including "repair" and "renovation". The definition of "construction in­dustry" in the Labour Relations Act reads as follows:

l.—(l) In this Act,

(1) "construction industry" means the businesses that are engaged in constructing, altering, decorating, repairing or demolishing build­ings, structures, roads, sewers, water or gas mains, pipe lines, tunnels, bridges, canals or other works at the site thereof.

It is not clear why the "repair" and "renovation" mentioned in the agreement should be dif­ferent, from the "repair" and "alteration" contemplated in the statutory definition of what constitutes construction.

42. There is no individual or separate bargaining between the I.B.E.W. and Catalytic, nor any bargaining at all with the petro-chemical enterprises (Gulf, Syncrude) for whom, on the evidence, Catalytic supplies services. There is no evidence at all that there is any main­tenance work in the mining industry done by subcontractors like Catalytic pursuant to the General Presidents' maintenance agreement, and very little evidence to indicate that such agreement is applied by maintenance subcontractors outside the petro-chemical industry. Ralph Tersigni testified that the General Presidents' agreement was applied by the Lummus Company to what Mr. Tersigni described as "maintenance" on a hydro project at Douglas Point. The "maintenance" work in question occupied between ten and forty electricians as well as a number of other trades for almost four years repairing storm damage, rewiring and reclamping lines in order to increase the level of protection, and replacing large portions of the wiring and electrical conduit. Tersigni maintained that this was not "repair" or "construction" work at all. It was "maintenance".

43. The I.B.E.W. has approximately 20,000 members in Ontario. Of these, about 10,000 are employed in production bargaining units in the manufacturing sector or by mu­nicipal utilities. The employees in these non-craft bargaining units are not all certified elec­tricians or apprentices and the applicant does not rely upon this collective bargaining activity to establish that it commonly bargains separately and apart from other employees for the mem­bers of its craft. If such craftsmen are employed in these units, they are clearly grouped to­gether, and bargain together with, other non-craft employees.

44. The other 10,000 I.B.E.W members in Ontario are generally certified electricians or electricians' apprentices. The majority of them work under the agreement negotiated pur­suant to the province-wide bargaining scheme applicable in the ICI sector of the construction industry ("the ICI agreement"); although in practice this agreement may be applied by em­ployers to other sectors of the construction industry as well. It is also applied to what is de­scribed as "maintenance" work done by electrical subcontractors engaged (on various bases) by manufacturing firms. Mr. Tersigni estimated that approximately 3,000 members were doing such "maintenance" work and that electrical subcontractors varied in the extent to which they moved back and forth between "construction" and "maintenance" activities. However, Mr. Lounds conceded that there was no clear distinction between "construction" and "mainte­nance" work. He said it was, a "grey" area; but in any event, much of the work in question was being done pursuant to the terms of the ICI agreement, by employers who frequently shift back and forth from "the grey area" into what is clearly construction work.

45. The supposed distinction between construction ("repair") and "maintenance" work is worth some further consideration. Although the focus in the second test is on bargaining practice, the union sought to buttress its position by demonstrating that its members frequently did work for manufacturing companies. As one witness put it, "electricians are in and out of plants all the time". Of course, the I.B.E.W. does not negotiate with such manufacturing concerns, nor are the electricians in question employees of those concerns. If there is a "bar­gaining practice" with respect to electricians working in manufacturing, there is certainly no practice of bargaining with those manufacturing concerns. The employees in question are em­ployed by the electrical subcontractors and work pursuant to the province-wide ICI agreement. The bargaining is with the electrical subcontractor. There is no electricians' bargaining unit in the industrial enterprise, nor are the electricians' wages and benefits negotiated in relation to the other employees in the plant as would be the case if there were a direct employment or bargaining relationship with the manufacturing enterprise. The employment context is quite different.

46. The other problem is, that in this situation, the term "maintenance work" really has no precise meaning. Not only is such work done pursuant to the ICI agreement at con­struction rates, but much of it may actually be construction work. The definition of main­tenance varies as one moves from I.B.E.W. Local to I.B.E.W. Local; moreover, the witnesses had quite different (and sometimes bizarre) characterizations of work which, in their view at least, was "clearly" maintenance — as opposed to construction.

47. All of the witnesses were certain that a small job installing a 220 volt line in a private home to hook up a newly purchased electric clothes dryer was "construction" work. On the other hand, running in lines and establishing lighting at the Canadian National Ex­hibition for its annual events or its special trade shows was maintenance. So was rebuilding seven transmission towers near Sarnia which had been destroyed by a tornado. The electricians on that job helped build seven new towers based upon salvagable parts, new steel, new lines, and new insulators, and it was conceded that there were structural modifications. But ac­cording to the applicant's witnesses, this work was not repair, renovation or construction. It was maintenance. Mr. Lounds suggested that installing a new motor on a new concrete base was maintenance. Running lines into a plant, including the removal of old electric poles and the erection of new poles and new lines was described as maintenance. Removing bad sections of underground cable and replacement with new cable was maintenance, not repair. According to Ralph Tersigni, adding to, altering, or increasing the capacity of lines was all maintenance for his Local. When a control room at Noranda Metals in Fergus was destroyed by an ex­plosion, the repairs were not "repair", but maintenance. Joe Mulhaul suggested that replacing a damaged motor control system or pump system with new ones was maintenance. For Mul­haul, who works in the electrical powers system sector of the construction industry, replacing conductors, installing new poles and transformers and restringing lines into homes in rural areas is maintenance. For Lou Popovitch, whose Local has jurisdiction in northern Ontario, the installation of temporary lighting and power for construction crews working on the re­spondent's premises some years ago was maintenance - although, again, done under the ICI agreement. When Rio Algom hired an electrical subcontractor to remove and replace equip­ment not in production from an abandoned mine, that too was regarded by Mr. Popovitch as maintenance. And we repeat, the employees doing the work are not directly employed in these industrial enterprises, and the I.B.E.W. has no collective bargaining relationships with them. Its only relationship is with the electrical subcontractor and, it is interesting to note that even there, there is no local bargaining between the I.B.E.W. and individual contractors. Since 1978, the Labour Relations Act has required province-wide bargaining by trade, with desig­nated employer associations. One purpose of this legislative change was to reduce the col­lective bargaining problems arising from fragmented bargaining structures originally founded on separate craft bargaining units granted pursuant to section 6(3). In any event, much of the so-called maintenance activity in manufacturing is clearly an off-shoot of construction industry bargaining.

48. The final bargaining relationship put before the Board was with Ontario Hydro and a small number of contractors in the electrical power systems sector of the construction in­dustry. About half of the union's members involved in that sector are certified electricians and about half are not. The latter group includes "ground men" and "linemen" who may not have a certificate of qualification. The employees in this sector work on generation projects or transmission lines constructing transformers, stations, switching stations, distribution sta­tions, and installing control equipment. The operating or running maintenance is primarily done by members of the Canadian Union of Public Employees, although Mr. Mulbaul sug­gested that some of his members also do such maintenance. Again, the definition of main­tenance was fuzzy because workers moved back and forth between construction and maintenance, all the bargaining has been in respect of construction work, and for purposes of applying the Electrical Power Systems' agreement, all the work is treated as construction.

IV

49. Before turning to section 6(3) itself, it may be useful to briefly sketch in something of the statutory framework of which section 6(3) is a part; for, implicit in the competing inter­pretations of section 6(3) urged upon us in this case, are important questions of industrial relations policy. The choice which we make may well have ramifications beyond the present parties. That is why the Board granted status to the Steelworkers.

50. We may begin by observing that the notion of an "appropriate" bargaining unit is a labour relations concept with no common law antecedents and in the general case, no precise statutory definition. What it means, quite simply, is the group of employees whom it makes "labour relations sense" to lump together for the purposes of collective bargaining, and sec­tion 6(1) of the Act leaves the Board's discretion to fashion bargaining units largely unfettered. Yet the Board's determination is obviously of immense practical importance, not only for the immediate parties, but for the structure and performance of the collective bargaining system as a whole. The definition of the unit affects the bargaining power of the union and the point of balance it creates with that of the employer. It influences the potential scope and effec­tiveness of collective bargaining for dealing with different matters, and to some extent, even the substantive issues covered in the collective agreement. And, perhaps most important, the shape of the bargaining unit can profoundly influence the potential for industrial peace or col­lective bargaining discord. The more disparate are the interests enclosed within the unit, the more difficult it may be for the union to effectively represent the collectivity. Insufficient at­tention to these special interests generates internal strife, while too much attention to minor­ities may make it more difficult for a union to formulate a coherent package of proposals or make necessary concessions. On the other hand, there are dangers at the other extreme, as the Board noted in Bestview Holdings Limited, [1983] OLRB Rep. Aug. 1250:

51. Self-determination and community of interest often favour relatively small units, but these are not the only relevant factors in bargaining unit design. The Board must also strive to create a viable structure for on­going collective bargaining and, to this end, undue fragmentation must be avoided. Consolidated bargaining offers several advantages over a fragmented structure. A proliferation of small units may result in un­necessary work stoppages. Each time one group goes on strike, other em­ployees performing jobs that are functionally dependent upon the work normally done by strikers are brought to a halt. Even in the absence of functional integration, strikers may erect picket lines that keep other em­ployees away from work. The likelihood of a strike occurring increases as the number of rounds of bargaining grows, and is further enhanced by competition among bargaining agents. Secondly, each of several units typically becomes a separate seniority district, enclosed by walls which impede the movement of employees between jobs. In addition, broader-based structures may lower the cost and thereby increase the availability of insurance schemes and benefit plans. A multiplicity of bargaining units also inevitably spawns jurisdictional disputes over the assignment of work and entails the cost of negotiating and applying several collective agree­ments. Finally, the existence of a single bargaining unit facilitates equi­table treatment of employees doing similar jobs.

A patchwork quilt of bargaining units is a recipe for industrial unrest — if only because in an integrated enterprise it takes only one collective bargaining breakdown to start the whole sys­tem unravelling.

51. The point is, that the concept of the appropriate bargaining unit is an instrument of public policy, and in fashioning bargaining units under section 6(1), the Board endeavours to accommodate potentially competing collective bargaining values — including the right to self-organization and the desirability of industrial harmony. Both are objectives which the stat­ute seeks to promote and, significantly, both parties could point to portions of the Act's Preamble, to support their respective positions on the proper approach to section 6(3).

52. The union argues that section 6(3) is a specific and mandatory exception to section 6(1). It limits the Board's discretion and is designed to protect sectional interests, which might otherwise not be given sufficient recognition under the broader discretionary provisions of sec­tion 6(1). It is a legislative endorsement of craft units which has been translated into an aspect of public policy: an injunction that craft units must be found to be "appropriate". The union also stresses the employees' right to organize themselves and freely designate their collective bargaining representative. The union points out that this right of self-organization is now an aspect of freedom of association protected by the Canadian Charter of Rights. In the union's submission, section 6(3) should be interpreted in this light. The union further argues that if the Board declines to certify a craft unit of electricians the chances are that these employees will never be organized at all. Previous efforts to organize on an industrial basis have failed and, in the union's submission, the aspirations of these employees should not be thwarted be­cause their fellow employees have shown no appetite for collective bargaining. The union as­serts that fears of fragmentation are entirely hypothetical and based upon an assumption that numerous other crafts would overcome the formidable hurdles of section 6(3). The union maintains that the Board should give a liberal interpretation to section 6(3) because it is only by doing so that the rights of craft employees (obviously a matter of legislative concern or there would be no section 6(3)) can be appropriately recognized.

53. The employer stresses the statutory objective of orderly collective bargaining which, it argues, requires a bargaining unit structure which will minimize industrial conflict. In the employer's submission, fragmentation of its work force would create artificial barriers inhib­iting cross-trades training, promotion, flexible work practices, and the introduction of nec­essary technological change. With an integrated work force of employees working in co­operation with one another, it makes no sense to treat one trade as if it were a watertight compartment, or to ignore the real problems — jurisdictional disputes, picketing problems, strike-induced layoffs, etc. — which would inevitably follow the creation of an island of col­lective bargaining in a sea of employees with overlapping or functionally related skills. The employer asserts that craft unions and units are obsolete in a modern industrial society, and "as proof of the pudding" points to the evidence in this case which was replete with examples of common bargaining with other skilled and unskilled employees, and diluted craft bargaining units. In the employer's submission, section 6(3) is a historical anomaly and an exception to section 6(1) which should be strictly construed. The employer argues that harmonious em­ployer — employee relations demand it. In the employer's submission, the Board should not establish a unit which is inappropriate for collective bargaining if a plausible interpretation of section 6(3) will avoid that result, nor should it lightly extend balkanized bargaining structures beyond those industries in which they have historically existed.

V

54. Section 6(3) is an exception to section 6(1) and does have deep historical roots. Its origins can be traced to federal wartime collective bargaining regulations which, in turn, borrowed heavily from American experience in the 1930's. In both cases, the legal framework sought to accommodate the diverse interests of a labour movement which, at the time, was deeply divided. Traditional craft unions found themselves in fierce competition with aggressive new industrial unions bent on organizing workers in the mass production industries. These new unions rejected the notion of craft exclusivity and sought to organize employees on a broader industrial basis, regardless of whether they were skilled or unskilled.

55. By the late 1930's, craft and industrial unions had split into rival federations, each espousing its own preferred model of organization. When the process of organizing became the subject of state regulation, craft unions demanded recognition of their historical role and legal protection for the special interests which they feared would be submerged without it. Craft employees were primarily interested in the preservation and advancement of their craft. In their view, this could only be achieved by bargaining separately, rather than as a minority in a much larger bargaining unit comprising both skilled and unskilled employees. The result of their lobbying was the predecessor of section 6(3) (see generally: J. A. Willes, The Craft Bargaining Unit: Ontario and U.S. Labour Board Experience, Industrial Relations Centre, Queen's University, 1970).

56. Legislative protection for craft bargaining units was initially based upon the bar­gaining structures and rivalries of the 1930's and 1940's and after the war similar provisions crept into provincial legislation. However, requirements such as section 6(3) are now relatively uncommon. Because of problems associated with the proliferation of bargaining units in in­dustrial enterprises, federal policy has now shifted away from craft units. In fact, the trend is in the opposite direction. It has been recognized that in a modern industrial context craft units will generally be inappropriate. Following the recommendations of the Woods Task Force in 1968, federal legislation was amended to delete the provisions protecting craft bargaining units, and the circumstances in which an existing unit will be splintered are now closely con­fined (see Feed-Wright Ltd., [1979] 1 Can. L.R.B.R. 296; Atomic Energy of Canada Ltd., [1978] 1 Can. L.R.B.R. 92; and Cablevision Nationale Ltee, [1979] 3 Can. L.R.B.R. 267 and cases referred to therein). In British Columbia craft units will be certified only if they are "otherwise appropriate" for collective bargaining, and the British Columbia Labour Re­lations Board has shown a marked disinclination to endorse craft bargaining units in manu­facturing. As we have already noted, while this case was being litigated the British Columbia Labour Relations Board was considering whether to merge an I. B. E . W. bargaining unit at MacMillan-Blodell into an existing industrial bargaining unit, thereby eliminating alleged in­dustrial relations instability. Thus, while section 6(3) has deep historical roots, it is now some­thing of an historical anomaly.

57. Nor are the protections offered by section 6(3) absolute. An examination of the sta­tutory language indicates that it has been carefully drafted to preserve the status quo. It is a recognition of historical organizing patterns, rather than any general endorsement of craft bar­gaining units. Those historical criteria are built right into the section itself, and must be sat­isfied before it has any application. Section 6(3) is available only if the group of employees whom the union seeks to represent already commonly bargain separately and apart from other employees; and only if the applicant trade union has traditionally represented employees with those skills. Both conditions require the Board to look to the collective bargaining system for historical precedent to establish that the separate bargaining is already "common", and that the union's representation of these employees is in accordance with "established practice". These conditions effectively preclude the development of new craft unions and, in our view, limit the extension of craft bargaining patterns beyond their traditional boundaries. It is also interesting to note that even if these criteria are met, the section need not be applied where the union seeks to "carve out" a craft group from an existing bargaining unit. 'This latter qualification is legislative recognition of the bargaining problems which might result from multiplying the number of bargaining units in an industrial enterprise; and whether fragmen­tation arises because the system grows in a piecemeal fashion or is subsequently carved up, the industrial relations problems are the same.

58. The acceptance of a "liberal" interpretation of section 6(3), as advocated by the applicant, could well have significant industrial relations consequences both for this respondent and generally throughout the system where craft unions could mount similar claims. If the evidence in this case establishes that separate craft bargaining is "common" even though the I.B.E.W. has a presence in only one Canadian mine, it would also be entitled to craft units in any other manufacturing or service industry. So might a number of other craft unions for, as we have seen from the evidence in this case, where the I.B.E.W. has a presence, other craft unions are also commonly present. This is not to say, of course, that the consequences of a particular interpretation of the statute can be permitted to confute its clear meaning; how­ever, in construing the terms of the Act, the Board must necessarily be cognizant of the prac­tical consequences of the alternative interpretations urged upon it, as well as the competing collective bargaining interests which must be accommodated. The words of the statute are not infinitely elastic, but neither is the right of self-organization absolute.

59. Issues such as those arising in the present case have been relatively uncommon in recent years, however, there are at least two earlier Board decisions which are worthy of brief mention. In Firestone Tire & Rubber Company of Canada Limited et al. 65 CLLC ¶ 16,058, a trade union sought to carve out a group of maintenance electricians from an industrial bar­gaining unit represented by the Rubber Workers' Union, and encompassing all of the com­pany ' s employees in Hamilton, Ontario. In order to be successful, it had to first establish that it met the initial criteria now found in section 6(3) of the Act. The Board had this to say about the second test:

The second condition presents the applicant with greater difficulty. Electricians in the construction industry have almost invariably been rec­ognized by the Board as constituting a craft group where certification on their behalf has been sought by recognized electricians' craft unions such for example as the International Brotherhood of Electrical Workers or its locals. In the ship building and paper making industries, a number of employers have voluntarily recognized craft unions, including the Inter­national Brotherhood of Electrical Workers or its locals, as the bargaining agents for craft units. The first of these industries has many of the char­acteristics of the construction industry and in many establishments in the paper making industry there is a long history of bargaining on craft lines. However, in manufacturing in general, it is the rare exception rather than the rule for the Board to determine that any classification of maintenance mechanics constitutes a craft unit, the reason being that the several craft unions that have applied for certification for such units have rarely suc­ceeded in showing that according to established trade union practice they commonly bargain for the respective classifications in the maintenance department separately and apart from other employees. On the basis of the principles that the Board has applied in the past in cases of this na­ture, and having regard to the evidence adduced in this case, we find that the applicant failed to show that any union pertaining to the craft of elec­tricians commonly bargains for maintenance electricians in circumstances such as those disclosed in this application.

A similar result was reached in Dupont of Canada, Limited, Kingston Works, [1965] OLRB Rep. Jan. 539, where the I.B.E.W. was one of five craft unions seeking to sever its particular craft grouping from an employer's maintenance department which was included in a broader industrial bargaining unit represented by an industrial union. Once again, the craft unions each had to first establish that they commonly bargained separately and apart for the group of em­ployees in question, and once again they failed. The Board commented:

The applicant union claims to represent the employees in question be­cause of their trade classifications and relies on the foregoing exhibits to substantiate its claim that these employees commonly bargain separately and apart from other employees through a trade union, that according to established trade union practice pertains to their skills and trade. A pe­rusal of the collective agreements filed, however, shows that in each case bargaining in fact took place on a joint basis for employees in a com­posite rather than a separate bargaining unit. Also, on the evidence, we are led to conclude that the same situation prevailed with respect to at least most of the collective agreements enumerated in the two lists, Ex­hibits 1 and 7.

While, in the experience of this Board, of which, of course, we are constrained to take cognizance, a history of bargaining on craft lines in many establishments in the paper-making and shipbuilding industries has in previous cases been demonstrated (see e.g. The Firestone Tire & Rub­ber Company of Canada Limited, O.L.R.B. Monthly Report, February, 1963, p. 491), the Board's experience in past cases has indicated that, it is only in a few very rare exceptions that any bargaining on this basis has ever occurred with respect to classifications of trade or skilled per­sonnel employed in any maintenance departments of commercial, indus­trial or manufacturing firms. Unions that have made such unsuccessful applications for certification for trades employed in maintenance depart­ments, have in the past failed to show that according to established trade union practice they commonly bargain for such persons separately and apart from other employees.

The evidence before us indicates instances where bargaining has oc­curred by unions on a joint basis for maintenance employees in composite units and a number of instances where, although on the material before us the matter is left extremely vague, if not uncertain, bargaining, how­ever it came about, has occurred between some employers and some in­dividual unions for maintenance employees of particular trade classifications.

In our opinion, the evidence adduced on behalf of the applicant falls far short of proving that employees in maintenance departments of man­ufacturing firms such as the respondent or in manufacturing commercial or industrial firms in general, commonly (as distinguished from what is more probably a few scattered and isolated instances of bargaining in maintenance divisions of some particular employers in certain industries) bargain separately and apart from other employees.

As has often been the case in applications of this nature, counsel has relied heavily in his argument on the trade classifications and work done by the employees in question, together with the fact, as he argues, that they have clearly indicated their democratic wishes, by signing cards, to be separately represented by the applicant as their collective bargaining agent. As has been pointed out by the Board in previous cases, (see e.g. The Canadian Foundries & Forgings Limited Case (1961) C. C. H. Canadian Labour Law Reporter, ¶16,203, C.L.S. 76-753, and The Cooper & Beatty Limited Case, (1957) C.C.H. Canadian Labour Law Reporter, Transfer Binder 1955-59, ¶16,100, C.L.S. 76-581), these are not the only considerations for the application of the first part of section 6(2) [now 6(3)]; if they were, every industrial or commercial undertaking and part thereof in which tradesmen were employed would, contrary to the intent and purpose of the section, be vulnerable to indiscriminate fragmentization into separate bargaining units.

The principles and requirements of proof of a bargaining history enun­ciated and applied from time to time by this Board in dealing with cases affected by the section are to be found in the following, among other cases, The Cooper & Beatty Limited Case, ibid; The Firestone Tire & Rubber Company of Canada Limited Case, ibid; The Telfer Paper Box Case; ibid; Art Wire & Iron Company Case, (1954) C.C.H. Canadian Labour Law Reporter, Transfer Binder 1949-54, ¶17,080, C.L.S. 76-437; Brockville General Hospital, (1957) C.C.H. ibid, ¶16,061, C.L.S. 76-543; St. Mary's General Hospital (Kitchener), O.L.R.B. Monthly Re­port, February, 1963, p. 496; Kent Tile & Marble Co. Case, (1961) C.C.H. Canadian Labour Law Reporter, ¶16,204, C.L.S. 76-756; Canadian Foundaries & Forgings Limited Case, ibid, etc.). On the basis of the principles which this Board has applied in the past in cases of this nature, we are compelled to find on the evidence placed before us that the applicant has failed to bring itself within the provisions of the first part of section 6(2) [now 6(3)] of the Act.

While these were both "carve out" cases, that question was irrelevant because the unions failed to meet the preliminary criteria.

60. This is not to say that all craft claims in manufacturing industries have been re­jected. Many of the traditional crafts did in fact have a history of separate bargaining in a number of industrial settings and were, therefore, entitled to separate craft bargaining units.

Among these in particular cases were: stationary engineers, pattern makers, draftsmen, li­thographers, printing pressmen, die cutters, and molders. What these cases indicate is not that the criteria of section 6(3) are impossible to meet, but that the applicant union must clearly show that it meets them — including showing, inter alia, that it has a well-established or com­mon practice of separate bargaining. Moreover, in assessing whether a union has met this requirement, the Board has not been disposed to give much weight to a union's established bargaining practices in the construction industry — a setting which has its own peculiar in­dustrial relations and collective bargaining characteristics. What may commonly happen in the construction industry is definitely not common in any other context — hence the need for spe­cial statutory provisions to deal with the unique problems and environment of the construction industry. If anything, the Board's experience in dealing with problems in the construction in­dustry provides ample reason why those bargaining patterns should not be lightly imported into other sectors.

VI

61. As a matter of syntax, section 6(3) begins with a reference to the "group of em­ployees" whom the union seeks to represent — here a group of electricians employed in the respondent's mining operations in Timmins, Ontario. This is the reference group to which the rest of the section relates, and it might be said that the practice of separate bargaining which the union must establish is in the respondent's enterprise, or in Ontario, or even in Timmins. However, in our view, such interpretation would be an unduly restrictive reading of the terms of section 6(3), which the Board has not adopted heretofore, and which is not justified in light of the section's purpose and historical roots. However, assuming the union's position that the subject group of employees can be described generically, and are, "electricians", the union must still put before the Board a coherent body of collective bargaining experience to dem­onstrate that it commonly bargains on behalf of such employees, separately and apart from other employees. In our view, the I.B.E.W. has not done so in this case.

62. In ordinary parlance, "common" means prevalent, widespread, general, well-es­tablished, regular, ordinary, or routine, — as opposed to sporadic, irregular, infrequent, or un­common. However the word only takes its meaning against some established background with which the particular situation can be compared. Snowstorms are "common" in Canada, but are "uncommon" in summer. What makes snow uncommon in the latter case is that when one establishes the context — summer, or previous summers — a snowstorm stands out as un­usual. It is a question of relative frequency which can only be determined against some es­tablished norm. Likewise, to determine the intended meaning of "common" in section 6(3) (i.e., to assess how common a union's bargaining practice actually is) one must necessarily delimit a field of bargaining behavior against which the situation of the employees in question can be tested. To do that, it is helpful to refer to the purpose of section 6(3), for as we have noted, section 6(3) was intended to preserve rather than extend craft representation rights. It was meant to protect craft rights where they were already commonly established. At the very least, this requires the union to show that it commonly bargains for electricians like these sep­arately and apart from other employees in the industry in which the certification application is made, or related industries; or, alternatively, that it commonly bargains separately and apart for electricians like these in the collective bargaining system as a whole, even if not in the particular industry in question. These are the reference points which appear to us to be most consistent with the thrust and terms of the section.

63. The applicant here meets neither test, nor indeed most of the other possible alter­native constructions of the common bargaining requirement. It does not commonly bargain separately for maintenance electricians in bargaining units in mining or manufacturing. By and large there are no electricians' craft units in the context. Where organized, most maintenance electricians fall within industrial bargaining units — in the mining industry usually represented by the United Steelworkers of America, in the auto industries by the United Autoworkers, in the rubber industry by the Rubber Workers' union, and so on. Of the 170 operating mines in Canada, the I.B.E.W. can point to only one — Hudson's Bay mining and smelting — where it has an established presence. Even there, it bargains together with a number of other trade unions, and the bargaining unit it represents is not a pure unit of electricians for whom the I.B.E.W. bargains by themselves, but a mixed group of electricians and others. We do not know how many mines there are in the United States, but there must certainly be many more than in Canada. Yet the union was able to find only a half a dozen instances where the I.B. E.W. had a foothold and, again, a number of the agreements suggest both common bar­gaining with other trades and bargaining on behalf of both electricians and other employees (i.e., not electricians separately and apart).

64. The strongest I.B.E.W. foothold is in the pulp and paper industry, but even there, there are numerous mills with no I.B.E.W. presence, and the units upon whose behalf the I.B.E.W. bargains (in co-ordinated bargaining structures) frequently include individuals who are not members of the craft. The General Presidents' maintenance agreement is not a clear example of separate bargaining either, but rather a single, multi-trade agreement, applied to work which, on the surface at least, looks very much like construction work. There is no individual bargaining by the I.B.E.W. and no distinctive or autonomous I.B.E.W. bargaining unit. Nor in the case of the General Presidents' agreement, or the ICI agreement binding elec­trical subcontractors, is there any direct bargaining at all with the industrial employers who may engage the services of these subcontractors.

65. Of the dozens of newspapers in Ontario with dozens of trade union relationships — many of them with craft unions — the I.B.E.W. has a presence in only one. Of the numerous universities and community colleges in this province — let alone in Canada or the United States — the I.B.E.W. can find but one agreement. Of the dozens of county and municipal school boards in this province — let alone in Canada or the United States — the I.B.E.W. can point to but two collective agreements. And there is no evidence at all that the applicant union has a presence (i.e., commonly bargains separately and apart) in industries or enterprises con­cerned with: food processing (feed mills, dairy products, cereal manufacturers, food proc­essing, canning, slaughter houses, sugar refineries, bakeries, vegetable oil mills, breweries, distilleries, soft drinks), rubber products, leather goods, textiles (both mills and manufactur­ing), electrical equipment, printing and publishing, iron and steel, smelting and refining, fab­ricated metals (ornamental metal, wire products, metal stamping, or hardware), agricultural implements, automobiles, aircraft, commercial refrigeration and heating systems, synthetic ma­terials, pharmaceuticals, scientific or precision equipment, and so on. The problem is to de­limit the field against which the "commonness" of the union's bargaining practice may be tested. But if mining is too narrow a field, and the system as a whole is too wide, what sen­sible subdivision would include the pulp and paper industry but exclude so many others?

66. One need not multiply the examples or run through the entire list of industries in which there is collective bargaining to demonstrate that outside the construction and related industries the I.B.E.W. presence is minimal. Nor need one do a survey of the some 8,500 agreements in Ontario binding over a million workers or the approximately 20,000 agreements across Canada. The fact is, that even if we assume that the group of employees whom the union seeks to represent in this case can be described as the craft of "electricians" or "main­tenance electricians"~ the union simply does not commonly bargain for such group separately and apart from other employees. Where electricians are employed in industry as part of a larger employee group, they are not typically segregated in their own bargaining units or represented by the I.B.E.W. On the contrary, apart from its established base in the construction industry and perhaps the pulp and paper industry (though even here the evidence is equivocal), the union does not have an established presence or consistent craft bargaining practice. Such bar­gaining as the evidence discloses is isolated, sporadic, unrepresentative, and decidedly uncommon.

67. For the foregoing reasons, we are not satisfied that the union has met the second test prescribed by section 6(3) and, for this reason alone, is not entitled to a separate craft bargaining unit. The matter is referred to the Register for re-listing of hearing.