United Brotherhood of Carpenters' & Joiners of America, Local Union 27 v. Runnymede Development Corporation Limited

[1987] OLRB Rep. October 1305

2034-86-R United Brotherhood of Carpenters' & Joiners of America, Local Union 27, Applicant v. Runnymede Development Corporation Limited, Respondent v. Labourers' International Union of North America, Local 183, Intervener

BEFORE: G. T. Surdykowski, Vice-Chair, and Board Members D. A. MacDonald and J. Red­shaw.

APPEARANCES: Douglas J. Wray, David McKee, Tony Bucci and John Cartwright for the appli­cant; Mary Ellen Cummings, Irving Moss for the respondent; A. M. Minsky for the intervener.

DECISION OF THE BOARD; October 6, 1987

1. The Board finds that the applicant is a trade union within the meaning of sections l(l)(p) and 117(f) of the Act and is an affiliated bargaining agent of a designated bargaining agen­cy. Pursuant to the designation by the Minister under section 139(1) of the Act on April 10, 1980, the designated employee bargaining agency is the United Brotherhood of Carpenters and Joiners of America, and the Ontario Provincial Council of the United Brotherhood of Carpenters and Joiners of America.

2. This is an application for certification within the meaning of section 119 of the Labour Relations Act and is an application made pursuant to section 144(1) of the Act which provides that:

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

(a) an employee bargaining agency; or

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

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

3. In paragraph 7 of its application, the applicant describes the unit of employees of the respondent that it claims is appropriate for collective bargaining and for which it seeks to be certi­fied as:

(a) all carpenters and carpenters' apprentices employed by the employer in the industrial, com­mercial and institutional section of the construction industry in the Province of Ontario; and

(b) all carpenters and carpenters' apprentices employed by the employer in Board Area 8, excluding the industrial, commercial and institutional sector, save and except non-working fore­men and persons above the rank of non-working foremen.

4. On November 17, 1986, a differently constituted panel of the Board ("the Satterfield panel") issued the following order with respect to this application:

A Board Officer is authorized to inquire into and report to the Board on the list of employees filed by the respondent and the composition of the bargaining [sic] agreed by the applicant and respondent to be appropriate under the Labour Relations Act for collective bargaining.

5. Pursuant thereto, the parties (which by then included the intervener) met with a Labour Relations Officer C. Wheatley on November 27, 1986 and with Labour Relations Officer, B. Jack­son on January 22, and February 4,1987. At the January 22, 1987 meeting, the parties executed the following Memorandum:

2034-86-R

United Brotherhood of Carpenters and Joiners of America L27,

Applicant,

• and -

Runnymede Development Corporation Ltd.,

Respondent,

• and -

Labourers International Union of North America,

Intervenor.

(1) With respect to a bargaining unit description the parties agree that

all carpenters and carpenters apprentices employed by the Respondent in the indus­trial commercial and institutional sectors of the construction industry in the Province of Ontario;

• and -

all carpenters and carpenters apprentices employed by the respondent in all sectors of the construction industry except the industrial commercial and institutional sectors in Board Area 8; save and except non working [sic] foremen and persons above the rank of non working [sic] foremen

(2) It is the intervenors [sic] position that the bargaining unit is inappropriate because the per­sons covered by the application are already bound by a collective agreement, specifically between the Toronto Housing Labour Bureau and the Labourers International Union of North America L183 effective May 1,1985 to April 30, 1987 specifically Article 1.02. It is further the intervenors [sic] position that the respondent and the intervenor are bound to the current M.T.A.B.A. agreement. The intervenor agrees to furnish said document by the end of business Jan 23, 1987 to the Board.

(3) The parties agree that the following names constitute a [sic] list of employees in the bargain­ing unit at work on the date of application.

Brian Bursey

Scott Wells

(a) It is the respondents position that the list also contains the names

Andy Campbell

Emmanuel Lima

Michael Robertson

Tony laccino

Sam Primerano

(b) It is the applicants [sic] position that these names (persons) were i) not at work on the application date; ii) not engaged in carpentry either on the application date or during a representative period; (iii) not employed by the respondent.

(c) It is the intervenors [sic] position that all the names on the list fall within the collective agreement and were performing working captured by the col­lective agreement at times.

Dated at Scarborough this 22nd day of January, 1987.

"A. Bucci" “Irving Moss”

Business Agent For the Respondent

For the Applicant Irving Moss

Construction Manager

6. Subsequently, by letter dated January 28, 1987, the applicant challenged the intervener's right to participate in this proceeding. In addition, at the meeting on February 4, 1987, the applicant and respondent agreed, by memorandum, as follows:

Board File #2034-86-R

Between:

United Brotherhood of Carpenters and Joiners of America L. 27,

Applicant

• and -

Runnymede Development Corporation Limited,

Respondent,

• and -

Labourers International Union of North America L. 183,

Intervenor.

The parties to this application state as follows

1. It is the position of the applicant and respondent that the appropriate bar­gaining unit description is as follows

all carpenters and carpenters apprentices in the employ of the respondent in the industrial, commercial, and institutional sectors of the construction industry in the Province of Ontario; and

all carpenters and carpenters apprentices in the employ of the respondent in all sec­tors of the construction industry except the industrial, commercial and institutional sectors in O.L.R.B. Area 8;

save and except non-working foremen and persons above the rank of non-working foremen.

(2) It is the position of the applicant and respondent that a complete list of employees in the applied for bargaining unit at work on the date of appli­cation is

Brian Bursey

Scott Wells

(3) It is the applicant and respondent position that no formal Labour Relations Officers report is required

"A. Bucci" "Irving Moss" Business Agent For the Respondent

For the Applicant Irving Moss Construction Manager

(4) The applicant and respondent further note that the intervenor [sic] (LI­UNA 183) has indicated it wishes to make submissions to the Board on this matter as per the statement of positions dated January 22, 1987. This note is without prejudice to any argument that L.I.U.N.A. Local 183 has no sta­tus to intervene in this application.

"A. Bucci" "Irving Moss"

Applicant Respondent Construction Manager

The officer advised the parties that he intended to report to the Board with respect to the situation as it then was and that they should make their submissions with respect to his report directly to the Board. At the request of the respondent and the intervener, the Board convened a hearing with respect to the matter on May 14 and 15, 1987.

7. At the hearing, counsel for the respondent advised the Board that her client wished to resile from the agreement it entered into with the applicant on February 4,1987 and revert to the position it had adopted on January 22, 1987 and previously. The intervener's position is that the respondent ought to be allowed to do so. The applicant argues that the Board should not permit the respondent to resile from an agreement it had made over three months before. It does con­cede, however, that if the intervener has status to participate in these proceedings it could raise the same "list" issues that the respondent seeks to raise by reverting to its previous position.

8. The intervener asserts the right to participate in these proceedings on the basis that it represents all construction employees of the respondent who are affected by this application pur­suant to a collective agreement between it and the Toronto Housing Labour Bureau ("the Housing Bureau Agreement") dated May 1,1985. The intervener also asserts that the respondent is bound to the collective agreement it has with the Metropolitan Toronto Apartment Builders Association ("the MTABA agreement") by virtue of the "cross-over" provision in Article 1.02 of the Housing Bureau Agreement. In the alternative, the intervener claims to represent some of the employees affected by this application and has filed membership evidence in support of that position.

9. The respondent supports the intervener's position with respect to the issue of status.

10. The applicant denies that either the Housing Bureau Agreement or the MTABA agree­ment cover any of the employees affected by this application. It also denies that the intervener otherwise represents any of the employees affected by this application unless it has filed member­ship evidence on behalf of one or both of the two persons that it asserts, and the respondent and intervener agree, were in the bargaining unit on the date this application was made.

11. As a preliminary matter, the intervener submits that this panel does not have the juris­diction to deal with the issues of its status in these proceedings and the status

of the February 4, 1987 agreement between the applicant and the respondent because these relate to the Satterfield panel's decision authorizing an officer to inquire into and report to the Board with respect to the list of employees and composition of the bargaining unit. Counsel argues that that order, which stands unless varied or reconsidered, has not been complied with and that it is inappropriate for this panel to sit "on appeal" of the Satterfield panel's decision. In support of the latter proposition, counsel sites Knight Security Guards Limited, [1970] OLRB Rep. June 377.

12. In our view, there is no merit to the intervener's submission that this panel cannot or should not deal with this matter. The Satterfield panel merely authorized a Labour Relations Offi­cer to inquire into and report to the Board with respect to the list of employees and composition of the bargaining unit that is the subject of this application. It did not direct that any examinations be held. In this case, the inquiry directed by the Board occurred in two stages and involved two differ­ent Officers. Both have made inquiries and both have reported to the Board with respect to the list of employees and composition of the bargaining unit. This panel is neither being asked to, nor it is necessary for it to, reconsider or vary the decision of the Satterfield panel which has, in our view, been complied with. It is as a result of the development on February 4, 1987 that the determination of the intervener's status in these proceedings became pivotal to the manner in which the officer would proceed. If the intervener does not have status to participate in these proceedings, the offic­ers' inquiry would have been complete because the Board could, and normally would as things then stood, have disposed of the application on the basis of the February 4, 1987 agreement between the applicant and the respondent (and from which the respondent now seeks to resile). If the intervener has status, the officer's inquiry could not be complete without the examinations of the disputed employees with which the intervener asserts the officer should have proceeded. In effect, the officer decided to report and remit to the Board this pivotal issue of the intervener's sta­tus.

13. We do not accept the intervener's assertion that the officer has made any rulings that he was not entitled to make. Nor can we accept its allegations that this hearing has been brought about because the officer questioned the intervener's status to participate in this proceeding. That issue has clearly been raised by the applicant. Further, the Satterfield panel had only the material that was in the Board file on November 17, 1986 before it when it made the order set out in para­graph 4 above. Everything that was before the Satterfield panel is also before this panel. Conse­quently, we are hard-pressed to understand how the Satterfield panel could be in any better posi­tion to deal with the issues now before the Board. Finally, it is quite common in, for example, construction industry applications for certification such as this one, in both construction and non-construction applications for certification in which a pre-hearing representation vote is requested, and in applications under section 106(2) of the Act, for one panel of the Board to authorize a Labour Relations Officer to inquire into and report to the Board with respect to a matter in issue and for a differently constituted panel of the Board to deal with the officer's report and conduct a hearing, if one is required, with respect thereto. This enables the Board to deal with such matters more expeditiously than would otherwise be possible in many cases. In our view, the Satterfield panel is neither seized with any aspect of this application, nor better placed than any other panel to deal with the issues now before the Board. In the result, we find that this panel has the jurisdiction to deal with this matter and we find it appropriate to do so.

14. A trade union wishing to intervene in an application for certification by another trade union must establish that it represents or is the bargaining agent for at least one employee in the bargaining unit that is the subject of the application before it is entitled to participate in the pro­ceedings. In Napev Construction Limited, [1976] OLRB Rep. Mar. 109 (at page 111), the Board summarized its approach to the issue of a trade union's status to intervene in certification proceed­ings:

Where attempts have been made to intervene in certification proceedings, the Board has con­sistently held that, in order to safeguard the rights of parties originating proceedings, and with a view to eliminating delay by parties claiming an interest a would-be intervener must meet cer­tain requirements. These requirements are deemed necessary in the field of industrial relations where time is indeed of the essence in order to avoid delay, multiplicity of proceedings and frus­tration of the purposes of the Act by parties who have no real representative status with respect to the employer and the employees involved. The Board has always required that an intervener must be either an employee in the bargaining unit to which the proceedings relate or a union holding representational authorization from one or more persons in the bargaining unit, or be the bargaining agent for employees in the bargaining unit. In the absence of these requirements, intervention has been denied.

(See also Neo Industries Limited, [1976] OLRB Rep. March 88; ESB Canada Limited, [1979] OLRB Rep. Dec. 1156.)

15. By certificate dated May 20, 1983, the Board certified the intervener as the bargaining agent for all construction labourers employed by the respondent in Board Area 8, excluding the industrial, commercial and institutional sector, save and except non-working foremen and persons above that rank. Parties are not obliged to incorporate the precise bargaining unit described in a certificate granted by the Board in any collective agreement between them. They may, by agree­ment, alter the bargaining rights granted by the Board by either expanding or abridging them (Gilbarco Canada Ltd. [1971] OLRB Rep. March 155; MacGregor Crane Service, [1979] OLRB Rep. Aug. 777). When, subsequent to the Board certificate being issued, the respondent became bound by the Housing Bureau Agreement the bargaining rights granted to the intervener by the Board were somewhat altered as a result. The effective dates of the Housing Bureau Agreement which is said by the intervener and, at the hearing, by the respondent, to be a bar to this appli­cation are May 1,1985 to April 30, 1987. It contains the following provisions:

ARTICLE 1- RECOGNITION

1.01(a) Each of the Employers recognize the Union as the Collective Bargaining Agent for allot its own Construction Employees (whose Classifications fall into a category listed in Schedule "A", attached hereto) engaged in the on-site construction of all types of low-rise housing only and their natural amenities while working within the following areas:

Geographical Area No. 8, established and used by the Ontario Labour Relations Board in matters of Certification (The Municipality of Metropolitan Toronto, the Regional Municipalities of Peel and York, the Towns of Oakville and Halton Hills and that portion of the Town of Milton within the geographic Township of Esquesing, and the Towns of Ajax and Pickering in the Regional Municipality of Durham) and the County of Simcoe.

(b) Low-rise housing for the purposes of this Agreement shall mean non-elevatored housing of not more than three (3) storeys in height (basement plus three (3) storeys).

1.02 Each of the Employers agree that when engaged in the on-site construction of apartment buildings, they shall abide by the term.s and conditions of the Collective Agreement between the Metropolitan Toronto Apartment Builders Association and the Labourers' International Union of North America, Local 183, then in effect. The term "apartment buildings", when used in this Article, shall have the same meaning as in the Collective Agreement between the Metropolitan Toronto Apartment Builders Association and the Labourers' International Union of North America, Local 183.

1.03(a) The Employer agrees to sublet the following work only to Contractors who are in con­tractual relations with the Union:

i) Basement forming; ii) Concrete and Drain; iii) Frame Carpentry.

(c) Should a subcontract for general on-site labour, as defined in Article 1, 1.01 and Schedule "A", Section 6 - Classifications, hereof, be awarded, such subcontractor must be in contractual relationship with L.I.U.N.A., Local 183.

Notwithstanding the preceding, and without prejudice, the following will be exempted:

i) Final House and Window Cleaning, and on-going Housekeeping Mainten­ance;

it) Landscaping and Driveway Paving;

iii) Those Labourers normally employed by traditional Trades such as Mason­ry, Drywall, Mechanical, etc.

1 .05 The Employer recognizes that the Union represents and bargains for its Members in vari­ous other Sectors of the Construction Industry not covered by this Agreement, such as Concrete Forming, Sewer and Watermain Construction, Road Building, etc.

Therefore, the Employer hereby agrees to recognize the Union as the Bargaining Agent in such Residential Sectors of the Construction Industry as it may from time to time become engaged in for its Labourers, and will meet with the Union in such event to negotiate on the appropriate applicable Collective Agreement for such work.

ARTICLE 7-SCHEDULE "A"

7.01 Attached hereto as Schedule "A" to this Agreement are Schedules of:

1. Hours of Work and Overtime

2. Wages

3. Payment of Wages

4. vacation Pay & Statutory Holiday Pay

5. Premium Classifications

6. Classifications

7. Working Dues

8. Pension Plan

9. Welfare

10. Travel Allowance and Map

11. Other Conditions of Employment

12. Wage Schedule

9.05 It is understood that this Agreement relates solely to the Bargaining Unit described in Arti­cle 1, 1.01 herein, and the said Agreement cannot be utilized in any way as an offset with respect to Collective Agreements between the parties hereto for any other Bargaining Units.

Schedule A

6. CLASSIFICATIONS

6.1 Employees covered by this agreement shall be all construction employees employed in accordance with Article 1, 1.01 hereof, save and except employees employed as non-working foremen, watchmen and engineering staff.

For the purposes of this Agreement, construction employees shall be generally those employees engaged in part, or all, of the following work or job functions, but shall in no way be limited to the following, which is intended as a general description only:

Handymen

Cleaning (all types)

Material Handlers and Stockpilers

Welders' Helpers

Landscapers

Salamander Heatermen

Flagmen

Concrete Workers (except Concrete Finishers

Sheathing and Shoring Men

Concrete Curers, Oilers and Painters

Grademen, Timbermen, Temporary Fencing, Hoarding and Guard Rail Instal­lers, Maintenance Men, Storemen, Gardeners

Pipe Insulators

Farm Tractor Drivers

[emphasis added]

16. Article 1.02 of the Housing Bureau Agreement is what has come to be known as a ''cross—over clause.'' This label does little to advance an understanding of the effect of any given such provision. Generally, they incorporate by some or all of another collective agreement into the collective agreement in which they are found. However, the precise effect of every such provision will depend upon its particular wording.

17. Scope or recognition clauses in collective agreements in the construction industry are generally worded in terms of work performed rather than in terms of the trade or employees cov­ered. Provisions like Article 1.02 of the Housing Bureau Agreement are common in such collective agreements in circumstances where the parties recognize that the employer(s) bound by agree­ment, though ordinarily engaged in the type of work covered by it, may also from time to time be involved in other types of work which could also be performed by members of the trade union. The Board has held that although, as a general matter, such provisions operate to incorporate into the collective agreement in which they are found some of the terms and conditions of the collective agreement(s) to which they refer, they do not operate to bind an employer to the referenced col­lective agreement(s) as though it is a party thereto (see Frank Plastina Investments Ltd., [1986] OLRB Rep. June 720; Sandercock Construction (1976) Ltd., [1984] OLRB Rep. April 653; C.D.C. Contracting, [1982] OLRB Rep. Nov. 1589). As a result, provisions like Article 1.02 of the Housing Bureau Agreement can operate to broaden the bargaining unit of employees for whom the employer recognizes the trade union as bargaining agent. Recognizing a trade union as the bar­gaining agent for certain employees, either by expanding the scope of an existing bargaining unit or otherwise, require a mutual intent to do so on the part of the employer(s) and trade union con­cerned. The requisite intent may be implicit or explicit but the mere existence of some "bargain­ing" with respect to certain employees is not sufficient to establish that the parties intended the trade union to be the exclusive bargaining agent for those employees. For example, parties to a collective agreement can bargain with respect to, and include in a collective agreement, provisions relating to wages, benefits, or working conditions of employees who are not intended to be in the bargaining unit covered by that collective agreement (Canadian Red Cross Blood Transfuction Service, [1981] OLRB Rep. Feb. 137).

18. Article 1.02 of the Housing Bureau Agreement operates to require all employers bound by it, including the respondent, to apply the "terms and conditions" of the MTABA Agreement "then in effect" when engaged in the on-site construction of "apartment buildings", as defined in the MTABA Agreement. This is unlike the situation in Canadian Red Cross Blood Transfusion Service, supra, and Sandercock Construction, supra, where the parties agreed only to apply those provisions of a referenced collective agreement relating to wages and associated benefits. It is, however, very much like the situation in C.D.C. Contracting, supra, and Frank Plastering Invest­ments Ltd., supra, where the parties to a collective agreement referred to the "terms and condi­tions" of six other "applicable" collective agreements. In both of those cases the Board found that the employer, though not a party to the collective agreement referred to, was obliged to perform all work covered thereby in accordance with the terms and conditions thereof, including using only members of the trade union which was a party to the collective agreement containing the referenc­ing clause. In our view, there is no material difference between the words and effect of Article 1.02 of the Housing Bureau Agreement and the relevant clauses in C.D.C. Contracting, supra, and Frank Plastering Investments Ltd., supra. Accordingly, we find that the words of Article 1.02 of the Housing Bureau Agreement are intended to and do operate to make the intervener the exclusive bargaining agent for all employees of employers bound thereby, including the respondent, who come within the bargaining unit described by Article 1.01 of the MTABA Agreement as well as for all of their employees covered by the Housing Bureau Agreement. This is, in effect, positions taken by the intervener and the respondent at the hearing.

19. Consequently, when the respondent to this application, although not a member of the MTABA and not a party to the MTABA Agreement, is engaged in construction work which is not covered by the Housing Bureau Agreement, but which is covered by the MTABA Agreement, it must do so, pursuant to Article 1.02 of the Housing Bureau Agreement, in accordance with all of the terms and conditions of the MTABA Agreement in effect at the time. As a result, the follow­ing provisions of the MTABA Agreement are relevant to our considerations in this proceeding:

ARTICLE 1- RECOGNITION - CO-OPERATION

CONTRACTING OUT

1.01 Each of the Employers recognize the Union as the Collective Bargaining Agent for all of its own construction employees, (whose classifications fall into a category listed on Schedule "A" attached hereto), engaged in the on-site construction of all types of apartment buildings only and their natural amenities, and without restricting the gen­erality of the foregoing, and for the purposes of clarification, it is agreed that the fol­lowing building types shall be deemed to be an apartment building for the purposes of this Agreement:

(vii) a separate residential structure(s) which forms part of a single project with an apartment building(s) under a common deed, architectural design and

building permit.

1.02 In the event an Employer covered by this Agreement engaged in the construction of an apartment building as herein defined, by means of a corporation, individual, firm, syndicate or association or any combination thereof, and where the Employer is the builder, it shall be deemed that the Corporation, individual, firm, syndicate or associ­ation or combination thereof, is bound by the Agreement for the purposes of such construction work.

Each of the Employers agree that when engaged in the on-site construction of "low rise housing" they shall abide by the terms and conditions of the Collective Agree­ment between the Toronto Housing Labour Bureau and the Labourers' International Union of North America, Local 183.

The term "low rise housing" whenever used in this Collective Agreement shall be given the same meaning as that term is given in the Collective Agreement between the Toronto Housing Labour Bureau and the Labourers' International Union of North America, Local 183.

1.04 The terms and conditions of this Agreement are recognized only in Geographic Area No. 8 established and used by the Ontario Labour Relations Board in matters of cer­tification:

The Municipality of Metropolitan Toronto, the Regional Municipalities of Peel and York, the Towns of Oakville and Halton Hills and that portion of the town of Milton within the geographic Township of Esquesing and Trafalgar and the Towns of Ajax and Pickering in the Regional Municipality of Durham and the County of Simcoe.

1.05 The Employer recognizes that the Union represents and bargains for its members in various other sectors of the construction industry not covered by this Agreement, such as concrete forming, sewer and water main construction, road building, etc. Therefore, the employers hereby agree to recognize the Union as the bargaining agent in such sectors of the construction industry as it may from time to time become engaged in for its labourers and will meet with the Union in such events to agree on the appropriate applicable collective agreement for such work.

Schedule A

A.6. 1 Employees covered by this Agreement shall be all Construction Labourers employed in accordance with Article 1, 1.01 hereof, save and except employees employed as Operating Engineers, non-working Foremen, Watchmen, and Operators of Personnel hoists.

For the purposes of this Agreement, Construction Labourers shall be those employ­ees engaged in construction work on residential construction projects being con­structed by the Employer, and as defined in Article 1, 1.01 hereof, up to the takeover of the said construction project or part thereof by Maintenance and Management employees of the Employer, or Maintenance and Management employees of some other Employer.

For the purpose of clarification, Construction Labourers shall be generally those employees engaged in part, or all, of the following work or job functions, but shall in no way be limited to the following which is intended as a general description only:

Cleaning (all types)

Material Handlers and Stockpilers

Welders' Helpers

Landscapers

Salamander Heatermen

Flagmen

Concrete Workers (except Concrete Finishers)

Sheathing and Shoring Men

Concrete Curers, Oilers, and Painters,

Grademen, Timbermen, Temporary Fencing, Hoarding and Guard Rail Instal­lers, Handymen, Maintenance Men, Storemen, Gardeners

Pipe Insulators

Farm Tractor Drivers

20. In our view, Article 1.01 of the Housing Bureau Agreement and Article 1.01 of the MTABA agreement, which is incorporated by reference into the Housing Bureau Agreement, describes the intervener's bargaining rights with respect to the respondent. At best, article 1.05 does no more than preserve some (or perhaps all) of the bargaining rights granted to the intervener by the Board's certificate that have not been exercised in the Housing Bureau Agreement. How­ever, by itself, it does nothing to add to those bargaining rights of the intervener which are in issue in this proceeding. We note that insofar as the employers, including the respondent, bound by the Housing Bureau Agreement have explicitly recognized the intervener as the bargaining agent for those employees doing the work covered by either agreement in the County of Simcoe, the scope of the Board's certificate has been exceeded and constitutes a voluntary recognition.

21. In Article 1 of the Housing Bureau Agreement, the employers who are bound by that agreement recognize the intervener as the bargaining agent of their "Construction Employees". However, that very broad term is restrictively defined in terms of the nature of work performed. Pursuant to Article 1.01(a), "Construction Employees" are those "(whose Classifications fall into a category listed in Schedule "A" attached hereto) engaged in the on site construction of all type of low rise housing only and their natural amenities ...". Article 6.01 of Schedule "A" goes on to define "Construction Employees" as being those who perform any or all of a series of listed work or job functions, all of which are, particularly in the industrial, commercial and institutional sector of the construction industry, commonly associated with construction labourers. In addition, unlike the Residential Housing Carpentry Agreement, to which the intervener is also a party and which is a collective agreement referred to in Article 1.03(a)(iii), the Housing Bureau Agreement makes no reference to carpenters or carpenters' apprentices and contains only one wage rate which applies to all of the work performed under it. In our view, the provision in Article 6.1 of Schedule "A" that the job functions listed "shall in no way be limited [thereto], which is intended as a general descrip­tion only ..." at best means no more than that other work or functions similar in nature to those listed are also covered by the agreement. Consequently, the intervener is not, in our view, the bar­gaining agent for all "Construction Employees" of employers bound by the Housing Bureau Agreement but only for those employees of such employers in the listed and analagous classifica­tions.

22. Except for bargaining units of or including operating engineers, it is the long-standing practice of the Board to describe bargaining units in the construction industry in terms of trades or crafts (for our purposes these terms are synonymous) rather than in terms of the work performed. This practice recognizes that trade union representation in the construction industry has tradition­ally been along trade lines and attempts to avoid interfering with established trade union work jurisdictions (see Robertson-Yates Corporation Limited, [1979] OLRB Rep. April 344; Semple-Gooder Roofing Ltd., [1983] OLRB Rep. Nov. 1908). Unfortunately, the work jurisdictions of trades do overlap. In addition, as we have already noted, collective agreements in the construction industry often identify the employees in the bargaining unit to which they apply in terms of the work they perform. As a general rule, there is no necessary congruence between the bargaining rights held by a trade union and its work jurisdiction. Consequently, a construction industry trade union does not necessarily have a general absolute right to a particular kind of work, even though that work may be performed by employees whom it represents (which in the construction industry usually means its members) pursuant to the terms of one or more collective agreements. The fact is that, in the construction industry, more than one trade union may have bargaining rights for employees who, though described in terms of different job categories, perform some of the same work. These overlaps give rise to competing claims for work between trade unions; that is, jurisdic­tional disputes (see for example Toronto Star Newspaper Limited, [1979] OLRB May 451). An application for certification is not the appropriate forum for settling such disputes or for determin­ing the jurisdictional limits of trade unions (Industrial Lighting and Contracting Limited, [1979] OLRB Rep. Oct. 985). Further, because the Board's practice in the construction industry is to describe bargaining units in terms of trade rather than work performed, the mere fact that mem­bers of one trade union, pursuant to the terms of a collective agreement, perform work that mem­bers of another trade union perform as well (for other employers), does not mean that that collec­tive agreement covers that other trade (see The Frid Construction Company Limited, [1975] OLRB Rep. March 146; Graff Diamond Products (Board File No. 2817-86-R) decision dated June 29, 1987, unreported).

23. Some of the work covered by the Housing Bureau Agreement is work which can be, and is, performed by either construction labourers, or by carpenters or carpenters' apprentices; that is, it is work over which both trades assert jurisdiction. In other words, some of the work cov­ered by the Housing Bureau Agreement can be done by either members of the United Brother­hood of Carpenters and Joiners of America, (the "Carpenters") or by members of the Labourers' International Union of North America (the "Labourers"). It is both "labourers work" and "car­penters work". In such circumstances, the work being performed cannot be determinative of the trade of the person performing it; that is, it is not work belonging to the Labourers just because a labourer is doing it, nor is it work belonging to the Carpenters just because a carpenter or carpen­ter's apprentice is doing it. An employee is not a construction labourer merely because s/he is doing work that a construction labourer sometimes does if carpenters also perform that work as part of their trade. Consequently, the fact that members of the intervener sometimes perform work (for the respondent) that carpenters also do does not mean that the intervener represents all car­penters employed by the respondent.

24. In Hashman Construction Limited, [1973] OLRB Rep. April 205, the Board concluded that the MTABA agreement, as it then was, did not cover carpenters or carpenters' apprentices. There is nothing before the Board in this proceeding that persuades us that we should come to any different conclusion with respect to the present MTABA agreement insofar as its terms and condi­tions have been incorporated into the Housing Bureau Agreement. Further, we find that for the purposes of this proceeding the Housing Bureau Agreement does not apply to or cover carpenters or carpenters' apprentices in the employ of the respondent. In the result, we find that, in the con­text of the agreement as a whole, the Housing Bureau Agreement covers only construction labour­ers, not carpenters, who perform certain construction work on certain non-industrial, commercial and institutional projects, as specified in the agreement, in Board Area 8 and the County of Sim­coe (which is part of Board Area 18). Accordingly, the Labourers do not have status to intervene in this application on the basis of the Housing Bureau Agreement.

25. The documentary evidence of membership filed by the intervener consists of 12 proof of membership documents. The documents contain the original signature of the members and indi­cate that they are members in good standing of the intervener. Eleven of the documents were delivered to the Board on October 28, 1986, the terminal date fixed for this application, and indi­cate that the persons concerned had paid monthly membership dues for at least one month within the six month period immediately preceding the terminal date. The 12th document was submitted at the hearing on May 14, 1986, and indicates that the person concerned became a member of the intervener subsequent to the terminal date in this application and had paid membership dues for at least one month prior to the first day of hearing in this matter but for no month prior to the termi­nal date. The applicant objects to the Board receiving and relying on this last document on the basis that it is filed too late. While none of the other eleven relate to either the two individuals who all parties agree are properly on the list of employees to this application or to the five persons whose inclusion is disputed, the 12th document does relate to one of the five persons whose status is in dispute. Consequently, that latter piece of evidence is crucial to the intervener's assertion that it has status to participate in this proceeding.

26. Pursuant to section 73 of the Board's Rules of Procedure, a trade union seeking certifi­cation must file the membership evidence upon which it relies in support of its application on or before the terminal date fixed therefor. The Board will not accept membership evidence delivered subsequent to the terminal date. Where a trade union seeks to intervene in another trade union s application for certification, but does not itself seek to be certified, there is no provision in the Act or the Board's Rules of Procedure regarding the filing of any membership evidence upon which the intervention may be based. Any employee affected by an application is entitled to participate in the proceeding relating thereto either in person or through a representative. That is so even if such an employee gives no indication that s/he intends to participate prior to the hearing. In our view, the five individuals whose inclusion on the list of employees is in dispute are all persons affected by this application for purposes of ascertaining status to participate in the proceeding. Because one of those five is a member of the intervener, it too has status to participate. In our view, documentary evidence of membership upon which an intervention, such as the one in this proceeding is based, is filed in a timely manner so long as it is before the Board at the time that the issue of the interven­er's right to participate is being dealt with (Chukini Lumber Company Limited, [1970] OLRB Rep. April 63). Accordingly, we accept the document filed with the Board at the hearing on May 14, 1987 and on the basis thereof, we find that the intervener is entitled to participate in this proceeding.

27. This brings us to the issue of the status of the February 4,1987 "agreement" between the applicant and the respondent with respect to the list of employees. We note that the Board's Rules and Procedures are structured in a manner designed to limit the ability of any party to ger­rymander the list of employees or the structure of the bargaining unit. The respondent to an appli­cation for certification is required to provide the Board with a complete list of the employees in the bargaining unit proposed by the applicant on the date the application was made by the terminal date fixed for the application. A list of employees cannot be filed late, or amended once filed, without leave of the Board. However, the Board will generally permit a respondent to either file its list of employees, or amend a list that it did file to reflect new information not previously avail­able or to correct errors that could not reasonably have been discovered beforehand, as late as the outset of the hearing (Santa Maria Foods, [1981] OLRB Rep. Nov. 1618; Corecon Developments, [1985] OLRB Rep. May 657).

28. In this case, the respondent filed a list of employees containing 7 names on Schedule "A" on the terminal date. Subsequently, the respondent met with a Labour Relations Officer (and the applicant and intervener) on two separate occasions specifically with respect to the list of employees and composition of the bargaining unit. During the course of the record of these meet­ings on February 4, 1987, the respondent specifically agreed, in writing, that the applicant's posi­tion with respect to the list of employees is correct and that 5 of the 7 names originally on the list should not be on it. The respondent subsequently affirmed that agreement when it did not dispute the correctness of the Officer's report that contained the agreement and by letter dated February 27, 1987. It was not until more than three months after it signed the agreement that the respondent decided that it had "erred" and sought to resile from the agreement.

29. In our view, the circumstances under which the agreement was made and the respon­dent's subsequent actions (and inaction) make it wholly inappropriate for the Board to permit it to resile from that agreement (see Harnden & King Construction Ltd., [1986] OLRB Rep. May 635). Accordingly, the Board declares that the applicant and respondent are bound by the terms of the February 4, 1987 agreement with respect to the list of employees. The Board will not entertain evi­dence or representations from either of them that are inconsistent with that agreement. Of course, the intervener, which is not a party to that agreement, is entitled to maintain, as it has throughout, that the 5 individuals who the applicant and respondent have agreed are not in the bargaining unit should be on the list, until such time as the Board may determine that the individual who is a mem­ber of the intervener should not be on the list and therefore is not affected by this application.

30. However, all of the parties have agreed on the appropriate bargaining unit description. Having regard to the agreement of the parties and the requirements of the Act, the Board finds, pursuant to section 144(1) of the Act, that all carpenters and carpenters' apprentices employed by the respondent in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario and all carpenters and carpenters' apprentices employed by the respon­dent in the Municipality of Metropolitan Toronto, the Regional Municipalities of Peel and York, the Towns of Oakville and Halton Hills and that portion of the Town of Milton within the geo­graphic Townships of Esquesing and Trafalgar, and the Towns of Ajax and Pickering in the Regional Municipality of Durham, excluding the industrial, commercial and institutional sector, save and except non-working foremen and persons above the rank of non-working foreman, con­stitute a unit of employees of the respondent appropriate for collective bargaining.

31. Under the circumstances, the Board authorizes a Labour Relations Officer, to be desig­nated by the Registrar, to inquire into and report to the Board with respect to the list of employees in the bargaining unit.

32. The matter is referred to the Registrar.