Ontario Labour Relations Board

[1987] OLRB Rep. December 1556

0284-87-M Lumber and Sawmill Workers' Union, Local 2693 of the United Brotherhood of Carpenters and Joiners of America, and Labourers International Union of North America, Ontario Provincial District Council, and Labourers Interna­tional Union of North America, Local 607, and United Brotherhood of Carpen­ters and Joiners of America, Ontario Provincial Council, and Ontario Provincial Conference of the International Union of Bricklayers and Allied Craftsmen, and International Union of Operating Engineers, Local 793, and The Ontario General Contractors Association, and Construction Association of Thunder Bay Inc.

BEFORE: Ian C. Springate, Vice-Chair, and Board Members M. Eayrs and N. Wilson.

APPEARANCES: L. C. Arnold and Fred Miron for Lumber and Sawmill Workers' Union, Local 2693 of the United Brotherhood of Carpenters and Joiners of America; S. B. D. Wahl, T. Con­nolly and P. Little for Labourers International Union of North America, Ontario Provincial Dis­trict Council and Labourers International Union of North America, Local 607; N. L. Jesin and Robert Reid for United Brotherhood of Carpenters and Joiners of America, Ontario Provincial Council; S. B. D. Wahil and J. Zanussi for Ontario Provincial Conference of the International Union of Bricklayers and Allied Craftsmen; Jack J. Slaughter for International Union of Operating Engineers, Local 793, J. Liberman and J. Thompson for The Ontario General Contractors Associ­ation; J. Liberman and M. MacLeay for Construction Association of Thunder Bay Inc.

DECISION OF THE BOARD; December 31, 1987

1. This is a referral from the Minister in which he requests the Board's advice concerning the possible issuance of new designation orders under the provincial bargaining sections of the Labour Relations Act and/or amendments to existing designation orders.

2. These proceedings primarily concern the status of Lumber and Sawmill Workers' Union, Local 2693 of the United Brotherhood of Carpenters and Joiners of America ("Local 2693"). Local 2693 is headquartered in Thunder Bay. It represents employees in the three districts of North Western Ontario, namely the districts of Thunder Bay, Kenora (including the Patricia portion) and Rainy Riven. As indicated by its full name, Local 2693 is a local of The United Broth­erhood of Carpenters and Joiners of America (the "Carpenters Union").

3. Most Carpenters Union locals in Ontario have as members carpenters, millwrights and their apprentices employed in the construction industry. Local 2693 is one of two "Lumber and Sawmill Workers" locals of the Carpenters Union in Ontario, the other being Local 2995 in Kapus­kasing. Both of these locals represent sizeable numbers of employees engaged in woods operations and related industries. Unlike Local 2995, however, Local 2693 also represents employees in the construction industry.

4. Local 2693 has had a presence in the construction industry in North Western Ontario since the 1950's. Its entry into this field appears to have been due, in part, to the fact that many woods operations were conducted only during the winter months. Many members of Local 2693 who worked in the woods during the winter turned to the construction industry for summer employment. Another contributing factor was the relative inactivity in North Western Ontario of a number of the traditional building trades unions.

5. From the beginning of its involvement in the construction industry, Local 2693 was particularly active in the representation of construction labourers. This brought the local into direct conflict with the Labourers International Union of North America and its Local 607 ("Labourers cal 607") which is also based in Thunder Bay. Local 2693 initially established its pre-eminence as the representative of construction labourers in North Western Ontario in 1957 when the Board struck down as unlawful a voluntary recognition agreement entered into between Labourers Local 607 and The Lakehead Builders' Exchange and then certified Local 2693 as the bargaining agent for the employees of a number of employers who belonged to the Builders Exchange.

6. Local 2693 has never been recognized by the Board as a union entitled to be certified for construction industry bargaining units restricted only to a single trade or classification. The Board initially certified the local for "all employee" bargaining units. In accordance with a general change in the Board's practice of describing construction bargaining units for industrial unions, however, from the mid-1960's Local 2693 bargaining units were described in terms of all unrepre­sented trades or classifications at work on the date it filed its application for certification. In many instances the only unrepresented trade was construction labourers, resulting in the Board issuing certificates restricted to construction labourers. In negotiations with The Lakehead Builders' Exchange, and its successor, the Construction Association of Thunder Bay, Local 2693 entered into collective agreements described so as to cover "all employees" except those "bound by subsisting collective agreements". Similar language was utilized in collective agreements entered into with employers who did not belong to the construction association.

7. It appears that throughout the 1960's Local 2693 actively represented employees belonging to a number of different trades. Increasingly, however, the local limited the scope of its representation to construction labourers. With one major exception, it did not object to attempts by the traditional building trades unions to acquire bargaining nights for their respective trades, even when the employees involved were already covered by a Local 2693 "all employee" collective agreement. The exception was with respect to construction labourers. Local 2693 actively resisted numerous attempts by Labourers Local 607 to displace it as the bargaining agent for construction labourers. In consequence of these developments, Local 2693 for construction industry purposes became a trade union that primarily represented construction labourers. It did continue to repre­sent some employees in other trades, notably truck drivers and equipment operators, but not in any meaningful numbers.

8. Local 2693 does have a fairly recent history of representing persons performing cement finishing work. At one time, cement finishing was generally regarded as part of the work of a cement mason. Traditionally, cement masons were recognized as a specialized trade represented by the Operative Plasterers and Cement Masons International Association of the United States and Canada. In the late 1960's, however, cement finishing work came to increasingly be performed by construction labourers trained in the work. The situation became even more confused in the 1970's when certain locals of the Labourers Union acquired formal bargaining rights for units of cement masons. In similar fashion to the Labourers' Union, Local 2693 also began to represent employees performing cement finishing work. It referred to the individuals in question as "cement finishers". Local 2693 signed a number of separate collective agreements for cement finishers with the Cement Finishers' Division of the Construction Association of Thunder Bay. The last such agreement expired in 1982. It was not renewed because most of the bargaining rights involved had successfully been "raided" by Labourers Local 607. At the time of the hearing into these proceed­ings, Local 2693 continued to have some 15 to 20 "cement finishers" as members, of whom 6 on 8 were actively working. These members were employed pursuant to the terms of the same collective agreements that covered construction labourers.

9. As already indicated, since the late 1950's Local 2693 and Labourers Local 607 have been active rivals. Initially, Local 2693 was the more successful of the two. Over the years, how­ever, Labourers Local 607 acquired sufficient members and bargaining nights, often at the expense of Local 2693, to gain the ascendancy. Notwithstanding the growth of Labourers Local 607, Local 2693 continued to retain a meaningful presence in North Western Ontario. At the time of the hear­ing into these proceedings some 20 employers apparently bound to collective agreements with Local 2693 were engaged on projects in North Western Ontario employing approximately 75 to 80 of the local's members.

10. In 1978 the Labour Relations Act was amended to introduce a system of provincial bar­gaining in the industrial, commercial and institutional ("ICI") sector of the construction industry. The amendments to the Act followed the release of a report prepared by Mr. Don Franks acting as a one-person industrial inquiry commission into bargaining patterns in the construction industry. In his report, Mr. Franks recommended that local negotiations be consolidated at the provincial level through employer and employee bargaining agencies. An important cornerstone of the scheme he recommended was that only provincial agreements entered into by the appropriate employer and employee bargaining agencies be accorded legal recognition, and that any other agreements be of no force or effect.

11. The relevant sections of the Act relating to provincial bargaining are set out below:

137.-(1) In this section and in sections 135 and 138 to 151,

(a) "affiliated bargaining agent" means a bargaining agent that, according to established trade union practice in the construction industry, represents employees who commonly bargain separately and apart from other employ­ees and is subordinate or directly related to, or is, a provincial, national or international trade union, and includes an employee bargaining agency.

(b) "bargaining", except when used in reference to an affiliated bargaining agent, means province-wide, multi-employer bargaining in the industrial, commercial and institutional sector of the construction industry referred to in clause 117(e);

(c) "employee bargaining agency" means an organization of affiliated bargain­ing agents that are subordinate or directly related to the same provincial, national or international trade union, and that may include the parent or related provincial, national or international trade union, formed for pur­poses that include the representation of affiliated bargaining agents in bar­gaining and which may be a single provincial, national or international trade union;

(d) "employer bargaining agency" means an employers' organization or group of employers' organizations formed for purposes that include the represen­tation of employers in bargaining;

(e) "provincial agreement" means an agreement in writing covering the whole of the Province of Ontario between a designated or accredited employer bargaining agency that represents employers, on the one hand, and a desig­nated or certified employee bargaining agency that represents affiliated bar­gaining agents, on the other hand, containing provisions representing terms or conditions of employment or the rights, privileges or duties of the employer bargaining agency, the employers represented by the employer bargaining agency and for whose employees the affiliated bargaining agents hold bargaining rights, the affiliated bargaining agents represented by the employee bargaining agency, or the employees represented by the affiliated bargaining agents and employed in the industrial, commercial and mstitu­tional sector of the construction industry referred to in clause 117(3).

(2) Where an employer is represented by a designated or accredited employer bargaining agency, the employer shall be deemed to have recognized all of the affiliated bargaining agents represented by a designated or certified employee bargaining agency that bargains with the employer bargaining agency as the bargaining agents for the purpose of collective bargaining in their respective geographic jurisdictions in respect of the employees of the employer employed in the industrial, commercial or institutional sector of the construction industry referred to in clause 117(e), except those employees for whom a trade union other than one of the affiliated bargaining agents holds bargaining rights.

139.-(1) The Minister may, upon such terms and conditions as the Minister considers appropri­ate,

(a) designate employee bargaining agencies to represent in bargaining provin­cial units of affiliated bargaining agents, and describe those provincial units;

(b) notwithstanding an accreditation of an employers' organization as the bar­gaining agent of employers, designate employer bargaining agencies to rep­resent in bargaining provincial units of employers for whose employees affi­liated bargaining agents hold bargaining rights, and describe those provincial units.

(2) Where affiliated bargaining agents that are subordinate or directly related to different pro­vincial, national or international trade unions bargain as a council of trade unions with a single employer bargaining agency for a province-wide collective agreement, the Minister may exclude such bargaining relationships from the designations made under subsection (1), and subsection 146(2) shall not apply to such exclusion.

(4) The Minister may refer to the Board any question that arises concerning a designation, or any terms or conditions therein, and the Board shall report to the Minister its decision on the question.

142. Where an employee bargaining agency has been designated under section 139 or certified under section 140 to represent a provincial unit of affiliated bargaining agents, all rights, duties and obligations under this Act of the affiliated bargaining agents for which it bargains shall vest in the employee bargaining agency, but only for the purpose of conducting bargaining and, sub­ject to the ratification procedures of the employee bargaining agency, concluding a provincial agreement.

146.-(1) An employee bargaining agency and an employer bargaining agency shall make only one provincial agreement for each provincial unit that it represents.

(2) On and after the 30th day of April, 1978 and subject to sections 139 and 145, no person, employee, trade union, council of trade unions, affiliated bargaining agent, employee bargain­ing agency, employer, employers' organization, group of employers' organizations or employer bargaining agency shall bargain for, attempt to bargain for, or conclude any collective agree­ment or other arrangement affecting employees represented by affiliated bargaining agents other than a provincial agreement as contemplated by subsection (1), and any collective agree­ment or other arrangement that does not comply with subsection (1) is null and void.

12. In rather simplified terms, the scheme provided for under the Act is one where locals of the same building trades union are each an "affiliated bargaining agent" as that term is defined in section 137(1)(a). To represent these affiliated bargaining agents in negotiations, the Minister "designates" an "employee bargaining agency" as defined by section 137(1)(c). Each employee bargaining agency bargains with a counterpart on the employer side, namely a designated "em­ployer bargaining agency". These negotiations can produce only a single province-wide agreement, referred to as a "provincial agreement". In line with Mr. Franks' recommendation against allowing any agreement other than a provincial agreement, section 146(2) prohibits the negotiation of any agreement affecting employees represented by an affiliated bargaining agent that is not a provincial agreement, and stipulates that any such agreement is null and void. The language utilized in sec­tion 146(2) is clear and unambiguous. The single exception provided for in the Act is with respect to bargaining relationships involving councils of unions comprised of locals of different building trades unions. The Minister may exclude such bargaining relationships from the designations, and when he does so, the prohibition against any agreement other than a provincial agreement does not apply.

13. Provincial bargaining in the ICI sector is structured essentially on a multi-employer sin­gle trade basis. There are, however, a number of departures from the principle of single-trade bar­gaining. These exceptions reflect the fact that at the time provincial bargaining was introduced, certain construction trade unions represented ICI employees outside of their "normal" trade or classification. For example, the Labourers Union represented units of plasterers as well as units of employees engaged in restoration and waterproofing work, often referred to as "steeplejacks", both of which groups had traditionally been represented by the Operative Plasterers and Cement Masons International Association of the United States and Canada. Because of this, the designa­tion for the labourers employee bargaining agency covers not only labourers, but the other two classifications as well. Similarly, in recognition of the fact that the International Union of Bricklay­ers and Allied Craftsmen has traditionally represented plasterers in certain parts of the province, the bricklayers employee bargaining agency designation refers to plasterers as well as to bricklay­ers and stonemasons.

14. When the scheme of provincial bargaining was introduced into the Act, no special pro­vision was made to deal with the status of Local 2693. The Carpenters Union, together with a coun­cil of its Ontario locals, which did not include Local 2693, were designated as the employee bar­gaining agency for carpenters and carpenters' apprentices. A similar designation was issued for millwrights and millwrights' apprentices. These designations empowered the relevant employee bargaining agencies to represent in bargaining provincial units of affiliated bargaining agents, and listed the affiliated bargaining agents in question. In that Local 2693 did not represent carpenters or millwrights it was not listed on either designation. Accordingly, Local 2693 became a local of the Carpenters Union not represented by a designated employee bargaining agency. Notwithstand­ing this fact, because of the provisions of section 146(2) of the Act, if the local came within the definition of an affiliated bargaining agent, as that term is defined in section 137(1)(a), it would still be affected by the provincial bargaining sections of the Act. According to counsel for Local 2693, at about the time the amendments to the Act were being considered, the Local raised this matter with a representative of the then-Minister and was advised that the Local would not be covered by provincial bargaining. Presumably this advice was based on the understanding that Local 2693 bar­gained for a number of different classifications of employees, as opposed to a single group of employees who commonly bargain separate and apart from other employees, and accordingly did not fit the definition of an affiliated bargaining agent. Given Local 2693's role in representing con­struction labourers, it appears that the advice given to the local may not have been accurate. If in fact the advice from the Minister's representative was correct at the time, it would only remain so provided Local 2693 did not subsequently come within the definition of an affiliated bargaining agent.

15. Section 146(2) prohibits an affiliated bargaining agent from entering into a collective agreement that is not a provincial agreement. The wording of this section has led the Board to con­clude that a local of a building trades union which meets the definition of an affiliated bargaining agent cannot enter into a valid collective agreement for a trade or classification not referred to in the relevant employee bargaining agency designation. Following from this conclusion, the Board has on a number of occasions dismissed applications for certification by building trades unions "across craft lines". Accordingly, bargaining rights for an unrepresented unit of employees in the ICI sector can only be obtained by the building trades union designated to represent the trade or classification involved, (i.e., bricklayers can only be represented by the Bricklayers Union), or by a non-building trades union outside the scheme of provincial bargaining.

16. The leading case concerning attempts to organize across craft lines was Manacon Con­struction Limited, [1983] OLRB Rep. March 407, application for reconsideration dismissed [1983] 9LRB Rep. July 1104. The Manacon case arose out of the chartering of Local 1030 by the Carpen­ters Union to represent, among others, labourers employed in the ICI sector in the Ottawa area. Local 1030 applied to the Board to be certified to represent an ICI unit of construction labourers employed by Manacon Construction Limited. The application was challenged on the basis that Local 1030 was a carpenters affiliated bargaining agent and accordingly could not represent a unit of construction labourers. Because Local 1030 was a newly chartered local without a practice of its own, the Board looked to the general practice of the Carpenters Union in determining the local's status. That general practice was to represent units of carpenters and millwrights, two trades who according to established trade union practice generally bargain separate and apart from other employees. On this basis, the Board concluded that Local 1030 was an affiliated bargaining agent and accordingly barred by section 146(2) from entering into a collective agreement covering con­struction labourers employed in the ICI sector. In the result, the Board declined to certify Local 1030. It is of some interest that in the Manacon case, Carpenters Local 1030 claimed that its status was similar to that of Local 2693. In response, the Board commented that the collective agreement between Local 2693 and the Construction Association of Thunder Bay purported to coven a num­ber of classifications, not simply construction labourers, and hence Local 2693, unlike Local 1030, appeared not to come within the definition of an affiliated bargaining agent.

17. In its reconsideration decision in the Manacon case, the Board commented on the apparent purpose of the Carpenters Union in chartering Local 1030, namely to permit the union to enjoy the benefits of provincial bargaining while at the same time utilizing Local 1030 to get around some of the regime's strictures. The Board viewed this attempt as one which, if successful, would generate major instability in collective bargaining, reasoning as follows:

18. The Board is constrained not to conclude this decision without commenting on the obvious purpose of the chartering of Local 1030 as a new local. As the Board has already noted in para­graph 17 above, the province-wide bargaining part of the Act has brought to those trade unions which are part of that bargaining regime new benefits and new limitations. What the United Brotherhood is attempting to do is to enjoy all of the benefits of province-wide bargaining, while at the same time by its chartering of Local 1030, seeking to devise a vehicle which would enable the United Brotherhood to get outside of some of the regime's strictures, such as those imposed by sections 144(1) and 146(2). In other words, it is seeking to employ Local 1030 to enable the United Brotherhood to escape the reach and purpose of the province-wide bargaining part of the Act. The fact that there are already two locals of the United Brotherhood with geographic jurisdiction in the Ottawa area where Local 1030 is based serves to heighten the subterfuge at play here. The province-wide bargaining part of the Act was added to it by The Labour Relations Amendments Act, 1977, 5.0. c.31 ("Bill 22"). The legislative purpose of that amend­ment was first to recognize existing bargaining rights and patterns in the ICI sector and then to structure around them a province-wide bargaining regime, the objective of which was to stabi­lize the collective bargaining process in this significant sector of the construction industry. It is wholly inconsistent with that objective and clearly not contemplated by the Legislature that these provisions be interpreted in a way which would generate major and fundamental instabil­ity in the collective bargaining process. In not permitting the United Brotherhood to escape the reach and purpose of the provincial bargaining regime by the technique of chartering a local which appears to satisfy the form of the province-wide bargaining part of the Act without due regard for its purpose, the Board is giving primacy to substance over form.

19. The status of Local 2693 under the scheme of provincial bargaining was directly raised for the first time in EKT Industries Inc., [1987] OLRB Rep. March 352. In that case, both Local 2693 and Labourers Local 607 claimed bargaining rights for the same unit of ICI construction lab­ourers. As part of its case, Labourers Local 607 contended that Local 2693 was an affiliated bar­gaining agent and accordingly ineligible to enter into a collective agreement covering employees in the ICI sector. In a unanimous decision, the Board panel concluded that what even its practice may have been in the past, Local 2693 was now a union that according to established practice bargained solely and separately for construction labourers apart from other employees. Given the local's rela­tionship with the Carpenters Union, the Board further found that the local came within the defini­tion of an affiliated bargaining agent. In consequence of this finding, the Board concluded that Local 2693 could not lawfully enter into an ICI collective agreement that was not a provincial agreement. The Board further concluded that Local 2693 could not lawfully represent construction labourers employed in the ICI sector. The reasoning of the Board is found in the following excerpts from the EKT Industries decision:

20. It follows from the above comments referring to "commonly bargain separately and apart from other employees" that a trade union that is an industrial union (in the sense that it bar­gains for all employees of an employer) can never be an affiliated bargaining agent within the meaning of section 137(1)(a) of the Act. Thus, when Lumber and Sawmill Workers Union, Local 2693 was an industrial union in construction, bargaining for all employees, it was not an affiliated bargaining agent. The problem is that regardless of what their collective agreement says and as a consequence of a number of years of representing only construction labourers, it cannot now be said that Lumber and Sawmill Workers Union, Local 2693 in Northwestern Ontario represents employees other than construction labourers. Indeed, when Local 2693 bar­gains it bargains solely and separately for construction labourers with a group of employers. For example, although it may appear on the face of the bargaining unit that carpenters not repre­sented by Carpenters Local 1669 in the employ of an employer bound by the standard collective agreement with Local 2693 are bound to that agreement, in no case has Local 2693 bargained with that employer for carpenters. Indeed, for any trade group other than construction labour­ers. In these circumstances, therefore, we are compelled to find that Local 2693 falls within the meaning of "affiliated bargaining agent" as set out in section 137(1)(a) of the Act. In sum, according to its established practice in its area it bargains solely and separately for construction labourers apart from any other employees and it is related to the United Brotherhood of Car­penters and Joiners of America and Carpenters Local 1669.

21. What then is the situation of Local 2693? On the one hand it is not part of an employee bar­gaining agency. On the other hand we have found that it is an affiliated bargaining agent within the meaning of section 137(1)(a). Any attempt by Local 2693 to bargain contrary to the scope of subsection (2) of section 146 would be unlawful if that section applies to Local 2693. In our view the key words to the section are as emphasized below:

(2) On and after the 30th day of April, 1978 and subject to sections 139 and 145, no person, employee, trade union, council of trade unions, affiliated bargaining agent, employee bargaining agency, employer, employers' organization, group of employers organizations or employer bargaining agency shall bargain for, attempt to bargain for, or conclude any collective agreement or other arrangement affecting employees repre­sented by affiliated bargaining agents other than a provincial agreement as contem­plated by subsection (1), and any collective agreement or other arrangement that does not comply with subsection (1) is null and void.

[emphasis added]

In our view the construction labourers represented by Local 2693 are employees represented by an affiliated bargaining agent and they are not represented under the aegis of the provincial agreement as required by section 146(1) insofar as they relate to the industrial, commercial and institutional sector of the construction industry.

41. What then is the effect of the prohibition of section 146(2)? In our view it means that Local 2693 as an affiliated bargaining agent cannot lawfully represent the construction labourers of the respondent E K T Industries insofar as those construction labourers are employed in the indus­trial, commercial and institutional sector of the construction industry. On the other hand, no such limitation applies to Labourers Local 607. It is our view that the Board ought not to pro­vide bargaining rights for Local 2693 through either section 63 or section 1(4) of the Act which would lead to collective agreements which would violate the prohibition of section 146(2) of the Act. In our view, therefore, the claim by Lumber and Sawmill Workers Union, Local 2693 for bargaining rights with respect to E K T with respect to employees in the industrial, commercial and institutional sector should be dismissed and the claim by Labourers Local 607 ought to be allowed.

42. In a subsequent proceeding in File No. 0373-87-U, filed by the General Contractors Division of the Construction Association of Thunder Bay, the Board concluded that the finding in Industries that Local 2693 is an affiliated bargaining agent, and thus unable to lawfully repre­sent construction labourers in the ICI sector, was a decision in rem. The Board further declared that in the ICI sector the collective agreement between the General Contractors Division of the construction Association of Thunder Bay and Local 2693 was an unlawful agreement contrary to section 146 and of no force and effect.

43. Following the EKT Industries decision, Local 2693 requested that the Minister issue the necessary new designations to preserve its bargaining rights. The Minister referred the issue to the Board for its opinion, thus giving rise to the instant proceedings.

44. Local 2693 contends that the Board should advise the Minister that it is not, in fact, an affiliated bargaining agent and accordingly there is no need to make any changes to the existing designations. This contention is necessarily based on the proposition that the EKT Industries case was wrongly decided. The difficulty with this contention is that the EKT Industries case is a deci­sion of record of the Board. We have no reason to believe that other panels of the Board will decline to follow its reasoning. In these circumstances, we are not in a position to advise the Minis­ter that his decision in this matter can reasonably be premised on the basis that EKT Industries was wrongly decided. We can, however, advise the Minister that Local 2693 has requested that the Board reconsider its decision in EKT Industries. If in the course of such a reconsideration the Board should decide that Local 2693 is not an affiliated bargaining agent, then presumably the situation will revert to what it was prior to the EKT Industries decision, and Local 2693 will no longer be seeking the issuance of new designation orders.

45. Local 2693 proposes that it be exempted from the scheme of provincial bargaining in the same way the Minister has exempted Labourers Union Locals 183, 1081 and 493 with respect to concrete forming work. The only provision of the Act which permits such an exclusion is section 139(2), which provides as follows:

(2) Where affiliated bargaining agents that are subordinate or directly related to different pro­vincial, national or international trade unions bargain as a council of trade unions with a single employer bargaining agency for a province-wide collective agreement, the Minister may exclude such bargaining relationships from the designations made under subsection (1), and subsection 146(2) shall not apply to such exclusion.

Pursuant to this section, a bargaining relationship involving a council of trade unions comprised of Labourers Union Local 183 and the International Union of Operating Engineers has been excluded from the Labourers designation. Because of the specific wording of section 139(2), the prohibition against entering into a collective agreement other than a provincial agreement does not apply to the council. Local 2693 is not, however, part of a council of trade unions which would qualify for a similar exemption under section 139(2). In the Labourers designation the Minister does note that with respect to certain bargaining relationships covering employees engaged in con­crete forming, Labourers Locals 183, 493 and 1081 represent employees who do not commonly bargain separate and apart from other employees and according with respect to such bargaining rights the locals are not affiliated bargaining agents. In the context of these proceedings, there is no need to address the accuracy or effect of this statement in the designation. Suffice it to say that Local 2693 has been found to be an affiliated bargaining agent because it does represent employees who commonly bargain separately and apart from other employees. The Act contains no mecha­nism for exempting an affiliated bargaining agent that is not part of a council of trade unions from the prohibition against entering into an agreement other than a provincial agreement.

23. As an alternative method of preserving Local 2693's ICI bargaining rights, the Carpen­ters Union has proposed that existing designation orders be amended so as to expressly exclude from their scope employees represented by Local 2693. While such an amendment to the carpen­ters employee bargaining agency designation would serve to stress the fact that Local 2693 is not represented in bargaining by the carpenters employee bargaining agency, it would not legally change the situation regarding Local 2693. The local has been held to be an affiliated bargaining agent. As an affiliated bargaining agent, it is prohibited from entering into an agreement that is not a provincial agreement. An amendment to the Labourers employee bargaining agency designation so as to exclude from its scope employees represented by Local 2693 would likewise not be of any assistance to the local.

24. Local 2693 proposes that the Minister designate it, alone or with the Carpenters Union, as a separate employee bargaining agency representing construction labourers and certain other employee classifications, and that such a designation be restricted to North Western Ontario. The difficulty with this proposition is that the Minister is only empowered by section 139 to designate employee bargaining agencies to represent "provincial units" of affiliated bargaining agents. Logi­cally a "provincial unit" must encompass all of the Province of Ontario. It follows that it is not within the Minister's authority to designate Local 2693 as an employee bargaining agency only with respect to North Western Ontario.

25. We have set out above the reasons why we believe certain proposals put forward by the parties either could not lawfully be implemented by the Minister, or if implemented would not gave any meaningful effect. There appears to be, however, a number of other options open to the Minister. Unfortunately, none of these is the obviously "correct" one to adopt. Each can be viewed as having certain advantages as well as disadvantages. Complicating the situation is the fact that the parties to these proceedings have conflicting interests. What some parties view as an advantage, others see as a disadvantage, and vice versa.

26. Before reviewing the alternatives open to the Minister, we believe it useful to first dis­cuss in a general way some of the relevant considerations. One is the fact that for some 30 years Local 2693 has been representing construction employees, notably construction labourers, in North Western Ontario. Further, Local 2693 is apparently the only union whose existing bargaining rights waive effectively been nullified by the scheme of provincial bargaining. As indicated in the Manacon case, all unions bound by the scheme of provincial bargaining are now unable to represent classifi­cations of employees not referred to in their designation orders. With the exception of Local 2693, however, trade unions with a pre-existing practice of representing a particular classification or trade had those trades on classifications referred to in their designation orders.

27. Another consideration is the instability that can result when rival trade unions represent the same employee classification or trade. Competition between unions can seriously impact on the collective bargaining process. Depending on the state of the economy and employment levels, competing unions may seek to attract employee support by outdoing each other in the negotiation 9f wages and benefits. Alternatively, one union may seek to negotiate lower wage rates and benefits than the other so as to enable the employers with which it has bargaining relationships to be more competitive. Conduct of this sort is of particular concern in the ICI sector, given that provincial bargaining was introduced so as to bring greaten stability to this sector of the construction industry.

28. As noted above, there do exist a number of employee classifications and trades for which more than one employee bargaining agency has been designated. To date, this situation has not resulted in any serious disruption to the scheme of provincial bargaining. This appears to be due to several factors, including the relatively small total number of employees in certain classifica­tions, and, in other situations, the limited number of employees negotiated for by one of the bargaining agencies. Perhaps of greater importance, however, is a general acceptance of the status quo on the part of the unions involved. Unlike these other situations, if the carpenters and labour­ers unions are provided with an opportunity to become more active rivals than they are already, there is a real possibility they will avail themselves of the opportunity. As noted above, Local 2693 and Labourers Local 607 have long been rivals with respect to the representation of construction labourers. There is no reason to suspect that if Local 2693 is again empowered to represent ICI construction labourers, this rivalry will not continue. Further, if designations are amended so as to allow the Carpenters International and/or other locals of the carpenters union to represent ICI construction labourers outside of North Western Ontario, it is quite possible they will seek to do so. It will be recalled that the Carpenters Union chartered Local 1030 in Ottawa to do just that. The Carpenters Union might well view attempts on its part to represent construction labourers out­side North Western Ontario as being comparable with the current practice of the Labourers Union on representing carpenters engaged in house framing as well as substantial numbers of employees engaged in carpentry work in the concrete forming field.

29. One option open to the Minister is to amend the carpenters designation so as to list Local 2693 as one of the affiliated bargaining agents represented by the carpenters employee bar­gaining agency, and at the same time extend the scope of the designation to cover not only carpen­ters, but construction labourers as well, including those engaged in cement finishing. Such amend­ments would serve to protect Local 2693's bargaining rights in much the same manner that the Labourers Union's bargaining rights for classifications other than construction labourers have been preserved in its designation. A major difference, however, is the possibility of serious conflicts developing across the province as various locals of the Carpenters Union, including Local 1030, seek to acquire bargaining nights for ICI construction labourers, including bargaining rights already held by the Labourers Union. Should this occur, the system of provincial bargaining with respect to construction labourers would be severely undermined.

30. Another possible alternative, one not referred to by any of the parties at the hearing, but which nevertheless may be worthy of consideration, involves a variation of the approach set out in the preceding paragraph. It entails an amendment to the carpenters designations so as to refer to Local 2693 in the designation orders as one of the locals represented by the Carpenters employee bargaining agency, as well as an expansion of the employee bargaining agency's author­ity to bargain so as to cover not only carpenters and carpenter apprentices, but construction lab­ourers as well, including those engaged in cement finishing. The reference to construction labour­ers, however, would be restricted to those employed in the Districts of Kenona, Rainy River and Thunder Bay. The result would be an employee bargaining agency designation that covers a pro­vincial unit of affiliated bargaining agents, albeit with respect to one of the classifications listed in the designation order it is limited to a particular part of the province. The relevant provincial agreement would be the carpenters provincial agreement with whatever special terms might be agreed to with respect to construction labourers in North Western Ontario. Such a result is not one sought by Local 2693,for under this arrangement the local would not be able to bargain its own local agreement. It is, however, a result that would enable Local 2693 to continue as the local bar­gaining agent for construction labourers.

31. The language of section 144(1) of the Act, wherein it provides that a bargaining unit determined by the Board in a certification application shall include "all employees who would be bound by a provincial agreement", does give rise to one potential problem with respect to the approach set out above. On one possible interpretation, this language would require that every time a local of the Carpenters Union applied to be certified to represent carpenters, the appropri­ate unit would also have to include construction labourers in the employ of the employer in North Western Ontario. Conversely, every unit of construction labourers for which Local 2693 sought bargaining rights would also have to include carpenters in the employ of the employer throughout the province. The adoption of such an interpretation could create serious organizing problems for all locals of the Carpenters Union, including Local 2693, as well as possible difficulties for Labour­ers Local 607 when seeking to "raid" Local 2693 bargaining rights. We raise these concerns out of an abundance of caution. It is fan from clear that such difficulties would in fact anise. When consid­ering applications for certification the Board has, to date, generally defined ICI bargaining units by reference to a single classification or trade, and has not described the unit so as to encompass all of the classifications or trades referred to in the relevant designation orders. For example, when the Labourers Union has applied to be certified to represent units of construction labourers, the Board has generally described the bargaining unit solely by reference to construction labourers without also including in the unit other classifications referred to in the labourers designation order. This approach reflects the historical pattern in this province by which construction trade unions have generally obtained bargaining nights for one trade or classification at a time. It is, however, an approach that has been adopted by the Board without being seriously questioned or challenged. Should the Minister adopt the option set forth in the proceeding paragraph, it is quite possible that the Board's existing practice on point will be challenged. Because of this, prior to adopting this option the Minister may desire to ascertain whether the parties to the carpenter designations, par­ticularly the Carpenters Union, are agreeable to this manner of proceeding.

32. Another alternative open to the Minister is to designate Local 2693, alone or together with the Carpenters Union, as a separate employee bargaining agency representing construction labourers, including those engaged in cement finishing, on a province-wide basis. If the Minister selects this option, the local, perhaps in conjunction with the Carpenters Union, would be able to enter into a lawful provincial agreement covering construction labourers. Such a designation would preserve Local 2693's long-established position in North Western Ontario as a union that repre­sents construction labourers. Another result, however, is that the local would be able to represent construction labourers employed in the ICI sector outside of North Western Ontario, in much the same way as Carpenters Local 1030 sought to do in the Ottawa area. Even if Local 2693 were not to take any active steps to extend its activities outside of North Western Ontario, such a result might well occur as a matter of law. Section 137(2) would extend Local 2693's ICI bargaining nights province-wide. Accordingly, for any employers that also operate in other parts of Ontario, or local employers who expand their operations outside of North Western Ontario, Local 2693's bargaining rights would also be extended. If this option is the one selected, serious consideration should be given to departing from the standard practice of listing the relevant international union as one of the affiliated bargaining agents represented by the bargaining agency. To follow the general prac­tice in the instant case would presumably enable the Carpenters International to actively acquire bargaining nights for ICI labourers anywhere in the province.

33. There is one final option open to the Minister. That is not to make any changes to the carpenters designation orders or to issue any new designation orders. The effect of this option would be to ensure that Local 2693 cannot represent construction labourers in the ICI sector. This would end the rivalry that has gone on for many years between Local 2693 and Labourers Local 607. In addition, it would not involve any of the disadvantages associated with the other options discussed above. It would also, however, mean a permanent end to Local 2693's thirty-year prac­tice of representing construction labourers in North Western Ontario.

34. We would address one further matter, namely the current legal status of Local 2693's bargaining nights. As noted above, in previous proceedings the Board determined that as the situa­tion now stands, Local 2693 cannot enter into valid collective agreements on behalf of construction labourers in the ICI sector. From this, the Board concluded that the Local could not lawfully rep­resent such employees. There is no provision in the Act, however, which expressly served to extin­guish Local 2693's bargaining rights. An arguable case could be made that should the Minister adopt any of the options available to him, other than that of accepting the status quo, Local 2693's bargaining rights would once again be given meaning in that the employees it represents could now be covered by a provincial agreement. So as to ensure such a result, however, the Minister may Wish to expressly make any new designation orders, or amendments to existing designation orders, retroactive to a point in time prior to the Board's decision in EKT Industries.

35. The decision as to which option to select is one the Act assigns to the Minister. To assist the Minister in making his decision, we have reviewed the factual and legal backgrounds to this matter. We have identified those proposals put forward by the parties which either cannot be implemented for legal reasons, or if implemented would not produce any meaningful change to the existing situation. We have also set out the four meaningful options which may be open to the Minister and discussed the possible impact of each. There remains the issue of which of these options, if any, the Board should recommend to the Minister. On this point the panel members disagree. It is the view of a majority of the panel, namely Board Members Eayrs and Wilson, that in the inter­ests of promoting stability in provincial bargaining, the Minister should not alter the existing status quo. They recommend that the Minister neither issue any new designation orders nor amend any of the existing orders. Vice-Chairman Spningate disassociates himself from this recommendation. Given Local 2693's 30-year history in representing construction labourers in North Western Ontario and the fact that the introduction of provincial bargaining did not result in any other trade union losing bargaining rights, it is his view that the appropriate result is one that preserves the local's ICI bargaining rights in that geographic area, whether this be through the adoption of one of the alternatives set out above on through an amendment to the Act. Having made these com­ments, however, all three panel members recognize that the Minister's decision will depend on his own views concerning the competing interests involved and the relative importance he attaches to each.