United Brotherhood of Carpenters and Joiners of America, Local 27 v. Ellis-Don Limited

[1988] OLRB Rep. December 1254

3291-86-R; 3457-86-R; 0250-87-R United Brotherhood of Carpenters and Joiners of America, Local 27, Applicant v. Ellis-Don Limited, Respondent v. Labourers' International Union of North America, Local 183, Intervener #1 v. The Form Work Council of Ontario, Intervener #2 v. Metropolitan Toronto Apartment Builders Association, Intervener. #3; United Brotherhood of Carpenters and Joiners of America, Local 27, Applicant v. Milne & Nicholls Ltd., Respondent v. Labourers' International Union of North America, Local 183, Intervener #1 v. Metropolitan Toronto Apartment Builders Association, Intervener #2; United Brotherhood of Carpenters and Joiners of America, Local 27, Applicant v. Mollenhauer Limited, Respondent v. Labourers' International Union of North America, Local 183, Intervener #1 v. Metropolitan Toronto Apartment Builders Association, Intervener #2

BEFORE: G. T. Surdykowski, Vice-Chair, and Board Members D. A. MacDonald and P. V. Grasso.

APPEARANCES: Douglas J. Wray and David McKee for the United Brotherhood of Carpenters Local 27; W. Thornton for Ellis-Don Limited, Milne & Nicholls Ltd. and Mollenhauer Limited; A. M. Minsky for Labourers' Local 183 and The Form Work Council of Ontario; Doug Gilbert for the Metropolitan Toronto Apartment Builders Association.

DECISION OF THE BOARD; December 8, 1988

1. The applicant is a trade union within the meaning of section l(l)(p) of the Labour Rela­

tions Act.

2. These applications for certification are made under the construction industry provisions of the Labour Relations Act; that is, they are all applications for certification within the meaning of section 119. None of them, as filed, relate to the industrial, commercial and institutional sector of the construction industry referred to in section 117(e) of the Act. In two of the applications (3291-86-R and 0250-87-R), the applicant ("Local 27") requested a pre-hearing representation vote. Such votes were directed and taken. In each case, the ballot box was sealed pending resolution of the issues raised in the applications. In that regard, the Board, after hearing the representations of the parties, directed that the three applications be heard together with respect to the issues com­mon to them, namely:

(a) the status of the Labourers' International Union of North America, Local 183 ("Local 183"), the Metropolitan Toronto Apartment Builders Association ("MTABA") and the Form Work Council of Ontario (the "Form Work Council") to intervene and participate in them; and

(b) the bargaining unit description appropriate for the applications.

3. At the hearing, Local 27 conceded that the Form Work Council has status to intervene in Board File No. 3291-86-R. Accordingly, that one is a (partial) displacement application.

4. It was agreed that, for purposes of this stage of the proceedings, Ellis-Don Limited and Ellis-Don Construction Limited would be treated as one employer. We shall refer to them collec­tively as "Ellis-Don" herein.

5. In these applications, the respondents, Local 183, and the MTABA assert that, contrary to what the Board found in Runnymede Development Corporation Limited, [19871 OLRB Rep. Oct. 1305, the collective agreement between Local 183 and the MTABA with respect to the con­struction of apartment buildings ("MTABA Agreement") covers the employees of the respondents Mollenhauer Limited and Milne & Nicholls Ltd. for whom Local 27 seeks bargaining rights in the applications in Board File Nos. 0250-87-R and 3457-86-R respectively; namely, carpenters and car­penters' apprentices. A collective agreement between Ellis-Don and Local 183 ("the Ellis-Don Agreement") is substantially the same as the MTABA Agreement and the arguments with respect to it are substantially the same as those with respect to the MTABA Agreement. In addition, with respect to the Ellis-Don application only, the respondents and interveners Local 183 and Form Work Council argue that the collective agreement between that company and the Form Work Council, which Local 27 admits covers carpenters and carpenters' apprentices, specifies the appro­priate bargaining unit for that application. Local 27 submits that it should be permitted to "carve out" its craft or trade from the bargaining unit established by the Ellis-Don Form Work style agreement.

6. Accordingly, the Board must determine whether carpenters and carpenters' apprentices are covered by the MTABA or Ellis-Don Agreements. To do so, the Board would have to con­clude that Runnymede, and Hashman Construction Limited, [1973] OLRB Rep. April. 205, were wrongly decided. The Board must also determine whether it is appropriate to permit a construction industry trade union to "carve out" its craft from a larger existing bargaining unit insofar as the Form Work Council Agreement is concerned. If the Board concludes that the MTABA and Ellis­Don Agreements do cover carpenters and carpenters' apprentices, the carve out issue arises in that context as well.

7. Local 27 submits that because the question of the applicability of the MTABA Agree­ment to carpenters and carpenters' apprentices was determined in Hashman, supra, and Runnymede, supra, the principles of resjudicata or issue estoppel apply and the Board should not inquire into it further.

8. In Runnymede Development Corporation Limited, supra, [1987] OLRB Rep. Oct. 1305, the Board held, at paras 20-24, that:

9. 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, describe 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.

10. 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 analogous classifications.

11. 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 Rep. 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).

12. 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 (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.

13. 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.

14. The Board is an administrative tribunal established by the Labour Relations Act. As a creature of statute, it has only such powers as have been conferred upon it by or under the Labour Relations Act, (or such other legislation as delegates powers to it; see for example, section 24 of The Occupational Health and Safety Act R.S.O. 1980 c. 321). The Board has no separate or addi­tional inherent or equitable jurisdiction. However, the structure of the Act is such that the Board nevertheless enjoys a considerable discretion and latitude in bringing its expertise in labour rela­tions to bear on matters before it. In carrying out its functions, the Board can and does apply both legal and labour relations considerations (Re International Union of Operating Engineers, Local 793 and Trauggott Construction Ltd., (1984) 45 0. R. (2d) 127 (Div. Ct.); Re Shopman's Local Union 743, International Association of Bridge, Structural and Ornamental Ironworkers (AFL, CIO, CLC) and Brayshaws Steel Ltd. et al., Re Brayshaws Steel Ltd. and United Steelworkers of America, 1971 CanLII 364 (ON CA), 26 D.L.R. (3d) 153 (Ont. C.A.)).

15. Res judicata is a common law doctrine developed by the courts to preclude parties or their privies from relitigating issues (in other than the appellate process) which have already been resolved by a final judgement of a court of competent jurisdiction. In effect, such a previous deci­sion creates one of two forms of estoppel: cause of action estoppel or issue estoppel. Regardless of its form, the essence of the estoppel created is that once a right, question, or fact distinctly put in issue, is directly determined by a court of competent jurisdiction, it cannot be relitigated in subse­quent proceedings between the same parties or their privies. A right, question, or fact specifically determined is to be taken as conclusively established for so long as the judgement of the court which determined it stands, unless a litigant otherwise bound by the previous determination can establish that there exists a fact or facts which both entirely changes the situation and could not, by exercise of reasonable diligence, been previously ascertained (see Angle v. Minister of National Revenue, [1975] S.C.R. 248; Town of Grandview v. Doering, 1975 CanLII 16 (SCC), 61 D.L.R. (3d) 455 (S.C.C.)).

16. While it is not obvious that the Board is either bound or entitled to apply the doctrine of res judicata, it has applied it, or a principle analogous to it, in order to ensure that, subject to its power to reconsider any decision (urder section 106(1) of the Act), its decisions will be final and conclusive of the issues or facts which the Board adjudicates (see Arnold Markets Limited, 62 CLLC ¶16,221; Canadian General Electric Company Limited, [1978] OLRB Rep. April 384; K-Mart Canada Limited, [1981] OLRB Rep. Feb. 185; Construction Association of Thunder Bay Inc., [1987] OLRB July 976 among others).

17. It is also clear, however, that unless a relevant determination can be said to have been made in rem, res judicata, and any doctrine and principle analogous to it, operates only against the parties to those prior proceedings or those claiming under or through such a party (Angle v. Minis­ter of National Revenue, supra; Town of Grandview v. Doering, supra; Mr. Grocer, Willett Foods Limited, [1986] OLRB Rep. Oct. 1364; Oakwood Park Lodge, [1980] OLRB Rep. Oct. 1501; and see Valentine Enterprises Contracting Limited, [1981] OLRB June 807 where it was held that the dismissal of one union's claim that two employers be declared a single employer did not bar another union from seeking the same declaration with respect to the same employers). Generally, only decisions which relate to legal principles of general application are properly considered to have been made in rem. Furthe ,it would be inappropriate, in our view, to consider a decision with respect to the applicability of a collective agreement to have been in rem if one of the parties to it was not a party to that proceeding.

18. The respondents and the MTABA were not parties to the proceedings in either Hashman or Runnymede, although the respondent in Hashman was a member of the MTABA at the time that matter came before the Board. In the circumstances, we are not prepared to treat either the Hashman decision or the Runnymede decision as having been made in rem, and, in our view, neither res judicata, issue estoppel, nor any like principle, can or should preclude them from asking the Board to determine, in this proceeding, whether the MTABA Agreement covers car­penters and carpenters' apprentices. While Local 183 was a party in both Hashman and Runnymede, it would, in the circumstances, make little sense to bar it from pursuing the issue. Accordingly, we reject Local 27's submissions in that respect.

19. With respect to the status issue, the respondents and interveners asserted that there is a latent or patent ambiguity in the relevant language of the MTABA and Ellis-Don Agreements. They sought to introduce extrinsic evidence with respect thereto, and specifically with respect to past collective agreements, negotiating history and past practice.

20. In determining the status issue, the Board must interpret the provisions of the MTABA and Ellis-Don Agreements in effect at the time these applications were made. It is a well estab­lished rule of contract interpretation that where the words of a collective agreement are clear and unambiguous, its meaning must be ascertained only from the words used in it. However, it is per­missible to refer to extrinsic evidence where the collective agreement is patently ambiguous, or to discover whether there is any latent ambiguity and, if one is found, to use extrinsic evidence as an aid to interpreting the collective agreement (see Noranda Metal Industries Ltd., Fergus Division and International Brotherhood of Electrical Workers, Local 2345 et al. 1983 CanLII 1690 (ON CA), 44 O.R. (2d) 529 (C.A.); Re International Union, United Automobile, Aerospace, and Agricultural Implement Workers, Local 1967 and McDonnell Douglas Canada Ltd. 1984 CanLII 2055 (ON HCJ), 47 O.R. (2d) 78 (Div. Ct.); The Brant County Board of Education, [1984] OLRB Rep. Oct. 1349). In the result, the Board finds it appropriate to consider the extrinsic evidence adduced at the hearing.

21. The MTABA Agreement effective from May 6, 1985 to April 30, 1987 was in effect at the time these applications were made. It was the 8th such agreement between Local 183 and the MTABA. The respondents Mollenhauer Limited and Milne & Nicholls Ltd. were members of the MTABA and bound by that MTABA Agreement at the time. Ellis-Don was not. The preamble of the MTABA Agreement provides, in part, that:

WHEREAS the Association acting on behalf of the Companies whose names appear on the attached Schedule of Employers and the Union wish to make a common Collective Agreement with respect to certain employees of the Employers engaged in construction as defined in Arti­cle 1 of this Collective Agreement and to provide for and ensure uniform interpretation and application in the administration of the Collective Bargaining Agreement;

The MTABA Agreement also provides:

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:

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 "low­rise 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.

1.03 Should an Employer sublet the following work:

(i) General Construction Labour;

(ii) Concrete Superstructure;

• forming

• reinforcing steel placing

• concrete placing and finishing

(iii) Concrete and Drains

(iv) Paving and Parking Lot Construction

(v) Hard Landscaping:

"hard landscaping which shall mean

poured in place curbs, planter boxes, sidewalks, and pathways and

the installation of payers including flag stone and interlocking stone."

(vi) Sheet Piling, Shoring and Lagging (Labour)

(vii) Buried Internal Site Services installed by, or let by, the Employer.

(viii) on-site manufacture and erection of structural precast concrete balcony panels and concrete stairs and other precast not normally erected by a precast specialty contrac­tor in the sub-structure and super-structure and excluding landscaping components,

then such work shall be sublet to companies in contractual relations with the Union.

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.

ARTICLE 7-SCHEDULE "A"

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

(i) Hours of Work & Overtime

(ii) Wages

(iii) Payment of Wages

(iv) Vacation Pay & Statutory Holiday Pay

(v) Premium Classifications

(vi) Classifications (vii) Working Dues (viii) Pension Plan (ix) Welfare

(x) Travel Allowance

and they are hereby made part of this Agreement.

SCHEDULE 'A'

WAGES

A.2. 1 The basic hourly rate of pay shall be, effective:

May 6, 1985 -$13.11

May 1,1986 -$13.51

PREMIUM CLASSIFICATIONS

A.5.1 It is agreed that employees hired at the start of their employment on a full-time basis into the following classifications:

Pipe Layers

Concrete Finishers

Form Erectors and Setters

shall be paid .30 (thirty cents) more than the basic Labourer's rate. It is also agreed that if a man is re-classified into one of the above classifications on a full-time basis he shall be paid the appropriate rate.

CLASSIFICATIONS

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 purposes 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

WAGE SCHEDULE

APARTMENT CONSTRUCTION

LOCAL 183 LABOURER

May 6, 1985 May 1, 1986 Basic Hourly Rate $13.11 $13.51 (Gross Wage) Vacation & Statutory $ 1.31 $ 1.35 Holiday Pay (at 10%) Welfare Fund $ 1.00 $1.10 Pension Fund $ .40 $ .50 Training Fund $ .05 $ .05 Package $15.87 $16.51 Industry Fund $ .15 $ .15 Cost to Employer $16.02 $16.66 [emphasis added]

17. The respondents Mollenhauer and Milne & Nicholls, and the interveners assert that the MTABA Agreement is an all employee agreement, subject only to the specific exclusions therein. Accordingly, they argue, it covers the carpenters and carpenters' apprentices who are the subject of the applications in Board File Nos. 3457-86-R and 0250-87-R. In that respect, Local 183 found itself having to make the rather unusual assertion that, in the residential sector of the construction industry in Board Area 8, and only there, "construction labourers" means "all direct employees" of MTABA builders, except employees of a company to whom work had been sub-contracted by a MTABA builder.

18. We do not agree. In our view, there is no patent ambiguity in the relevant provisions of the MTABA Agreement. Nor does the evidence disclose any latent ambiguity. Indeed, the extrin­sic evidence merely confirms our conclusion that carpenters and carpenters' apprentices are not covered by the MTABA agreement.

19. Article 1.01 of the MTABA Agreement begins with a recognition by the employers bound by it that Local 183 is the bargaining agent for all their "own construction employees". However, it then proceeds to restrict that apparently very broad recognition to those construction employees "whose classifications fall into a category listed on Schedule "A"' to the agreement who are engaged in the on-site construction of apartment buildings as specified. Article A.5. 1 of Sched­ule "A" lists three such classifications which receive a wage premium of .30 cents "more than the basic labourers rate" (emphasis added): pipe layers, concrete finishers, form erectors and setters (which latter classification is interesting since Article 1.05 of the MTABA Agreement specifically excludes concrete forming work from the agreement). This premium added to the single wage rate established by the agreement does no more than recognize that some labourers' work is more sophisticated, and valued more highly, than other labourers' work. Article A.6. 1 of Schedule "A" specifies that persons employed as operating engineers, non-working foremen, watchmen and per­sonnel hoist operators are excluded from the bargaining unit and that the MTABA Agreement covers only construction labourers. In our view, these exclusions do not suggest that the MTABA Agreement covers employees in all other trades. They do no more than underline the fact that per­sons employed in one of the categories listed are not covered by the agreement. Indeed, they are largely redundant. (Indeed, the operating engineers and operators of personnel hoists exclusions have been deleted from the 1987-89 MTABA Agreement). The terms "carpenters" and "carpen­ters' apprentice", both of which are terms well established and known in the construction industry, are not used anywhere in the MTABA Agreement. Nor is any term which is synonymous with, or specifically suggestive of, carpenters and carpenters' apprentice, or either of them, used anywhere in the agreement. Nor are any other trades, such as plumbers, steamfitters, electricians, (or their apprentices) listed, as one might expect they would be if the MTABA Agreement was truly intended to be an all employee agreement. In that regard, we note that "concrete painters" are included. If the agreement was intended to cover all painters why not simply put "painters" rather than specifying "concrete painters"? We also note, as did the Board in Runnymede, that Local 183 is familiar with the use of the terms carpenters and carpenters' apprentice as indicated by their presence in the Residential Housing Carpentry Agreement to which it is a party. The parties to the MTABA Agreement could have and should have used the words carpenters and carpenters' apprentice (or words like them) if they truly intended that such employees be covered by the MTABA Agreement.

20. Insofar as the classifications listed in the MTABA Agreement are concerned, they are claimed by the Labourers International Union of North America, of which Local 183 is a local union, as part of its work jurisdiction in every sector, including the industrial, commercial and institutional ("ICI") sector, of the construction industry in which they or analogous classifications exist. In the ICI sector, the United Brotherhood of Carpenters and Joiners of America also claims hoarding, fencing and guard rail work and such work is therefore within the overlap between the claimed work jurisdictions of the two unions. Subject to that clarification, we agree with, and find applicable to these proceedings, the observations and findings of the Board in paragraphs 20-24 of Runnymede (see paragraph 8 above). In paragraph 23 of Runnymede, the Board pointed out that the mere fact that labourers represented by Local 183 sometimes perform work for members of the MTABA which is also done by carpenters, and is claimed by Local 27, does not mean that Local 183 represents all carpenters employed by members of the MIABA. We wish to observe that this overlap in trade jurisdiction can make the Board's task of determining which employees are in either a "labourers" or "carpenters" bargaining unit on the date of application more difficult since, in applications such as these, the Board will have to determine whether a person performing work within the overlap on the date of application was a carpenter or a labourer (see, E & E Seegmiller Limited, [1987] OLRB Rep. Jan. 41; Gilvesy Enterprises Inc., [1987] OLRB Rep. Feb. 220).

21. In the result, we find, as did the Board in Runnymede, supra and Hashman, supra, that the MTABA Agreement does not, on its face, cover carpenters or carpenters' apprentices employed by members of the MTABA.

22. Nor, in our view, is there any latent ambiguity in the MTABA Agreement. The history of the MTABA Agreement has its roots in an agreement between the MTABA and the Toronto Building and Construction Trades Council (Residential Division) (it and its successors hereinafter referred to as the "Building Trades Council"), entered into on September 20, 1969. This agree­ment has been characterized as being a "peace treaty" which arose out of the turmoil in what is now the residential sector of the construction industry in Board Area 8. In its preamble, there is an expression of a mutual desire to "promote and encourage the residential construction industry and the productivity of the industry and insure a standard of safety and efficiency for the protection of the public and for those persons engaged in the residential construction industry, by the establish­ment of rules and regulations to govern employment, wage scales and working conditions and to eliminate unfair and destructive practices and to promote the amicable settlement of difference which may arise between the members of the respective organizations who are bound by this agreement and also to maintain industrial peace". Article 3.02 of that agreement provided that:

3.02 At such time as 80 per cent of those builders named in Schedule "C" hereto become members of this Association and bound by this agreement, the Association shall thereupon recognize Labourers Local Union 183, as the exclusive bargaining agent for their employees, save and except foremen and persons above the rank of foreman, and they shall immediately bargain in good faith and make every reasonable effort to make a collective agreement.

[emphasis added]

However, an addendum to that agreement, also dated September 20, 1969, provides (in part) that:

3. In connection with Article 3.02 of the said agreement the fourth line thereof is amended as follows:

Union 183, as the exclusive bargaining agent for their labourers, save and

IT IS UNDERSTOOD AND AGREED that labourers shall be permitted to continue to per­form such duties as are normally performed by them in the residential construction industry.

[emphasis added]

We cannot accept that, as was suggested by the respondents and interveners, the substitution of the word "labourers" for the word "employees" meant nothing. This addendum, together with the evidence before the Board, establishes that the change was made to placate other construction trade unions which were concerned that Local 183 was invading their trade jurisdictions. It also establishes that it was intended that Local 183 would represent labourers doing what they had tra­ditionally done, including some small scale concrete forming work, in the residential sector of the construction industry.

23. Article 3.02, as amended, of this first agreement was not carried forward in subsequent collective agreements between the MTABA and the Building Trades Council, the last of which expired on April 30, 1983. The general structure of the agreements between the MTABA and the Building Trades Council suggests that they were intended to provide a mechanism by which vari­ous trade unions, including Local 183, could obtain bargaining rights for those employees of mem­bers of the MTABA who were members of their trade, and not as a means by which Local 183 could obtain bargaining rights for all employees of such companies regardless of their trade. For example, in a memorandum dated July 5, 1973, the MTABA and the Building Trades Council agreed that:

MEMORANDUM OF AGREEMENT

B ETWEEN:

METROPOLITAN TORONTO APARTMENT BUILDERS ASSOCIATION

• and -

THE TORONTO BUILDING AND CONSTRUCTION TRADES COUNCIL

The parties hereto are parties to an Agreement between them dated September 20, 1969. With reference to Article 1.03 of the said Agreement, the parties have perused the Agreement between the Carpenters District Council of Toronto and Vicinity, United Brotherhood of Car­penters and Joiners of America, on behalf of Local Union 1190, and certain trim contractors, the names of which appear on Schedule A attached to this Agreement, in the trim carpentry trade. The parties hereto are satisfied in all the circumstances that the terms and conditions of the said Article 1.03 have been met with respect to this Agreement, and that a sufficient number of contractors in the trade have signed an Agreement with the said Local 1190 with respect to trim carpentry work (excluding concrete forming) in the residential sector of the construction industry which trim carpentry work is more particularly described as follows:­

A. (a) For the installation of wood doors or wood core doors, (wood frames where

applicable), and traditional wood door amenities including jambs, casings, stops, and traditional wood door hardware amenities including hinges, locks, closers, pulls, pushes and kick plates.

(b) For the installation of wood sash, (wood frames where applicable), and tra­ditional wood sash amenities including mullions, muntins, casings, stops, sills, stools, aprons and traditional wood sash hardware amenities including pulls, lifts, closers, stays and spiral balances.

(c) For the installation of wood baseboards, quarter-rounds, shoe strips, shelf supports, shelves, and traditional hardware amenities including closet rods,

rail and roller sets, and door bumpers.

B. It is agreed that should the Carpentry Contractor, as part of his Contract, in addition to the Trim Carpentry items (defined in A), undertake for the installation of miscella­neous items such as wood stairs, floor-to-ceiling closets doors, kitchen cabinets, vani­ties, hardwood floorings, lockers; and/or Site Service preparations including stake-outs, batterboards, fences, hoardings, field offices, temporary enclosures, temporary protection; and/or Rough Carpentry preparations including strappings, grounds, bucks, cant strips, and etc., only Carpenters affiliated with Local 1190 may be employed.

C. It is agreed that should the Carpentry Contractor be awarded, as part of his Contract, in addition to Trim Carpentry defined in A, any of the items outlined in B, such award is not intended to establish a jurisdictional precedence for any other future project of a Member.

D. It is agreed, notwithstanding any of the preceding, the installation of Forming by Car­penters affiliated with Local 1190 is specifically excluded from this Agreement.

The parties hereto therefore agree and acknowledge that effective as of the date hereof that trim carpentry as defined above shall be designed as a trade which falls within the terms and condi­tions of Schedule "B" of the Agreement between the parties hereof, and Schedule "B" shall be accordingly amended to include the said Local 1190 with respect to this trade, which shall be defined as those employees engaged in trim carpentry work (excluding concrete forming) in the residential sector of the construction industry which trim carpentry work is more particularly described above.

DATED at Toronto this 5th day of July, 1973.

In our view, this suggests a recognition that both carpenters and non-carpenters work covered by the MTABA Agreement, but does not necessarily mean that carpenters were covered by it. Indeed, to the extent that it suggests anything, it suggests that the work specified in "B" was done and claimed by both carpenters and labourers, and that carpenters were not covered by the MTABA Agreement.

24. The MTABA and Local 183 picked up the essence and intent of the amended Article

3.02 of the first Building Trades Council agreement in the first collective agreement between them, which agreement was effective from May 1, 1970 to May 1, 1973. There is no suggestion in any of the evidence, either that any of the MTABA members at the time employed, or expected to employ, any trade other than that of construction labourer, or that the MTABA agreement was intended to cover any employees other than construction labourers performing labourers' work.

25. The Board's decision in Hashman issued just prior to the expiry of the first MTABA Agreement. There were no changes in any of the subsequent MTABA Agreements in any of the provisions which are relevant to our considerations in these proceedings as a result of the Board's determination in Hashman that the first MTABA Agreement did not cover carpenters or carpen­ters' apprentices. It is reasonable to expect that such changes would have been made had Local 183 and the MTABA intended that the agreement cover such employees. We do not accept the asser­tion of the MTABA and Local 183 that they were not aware of the Hashman decision prior to the proceedings in Runnymede. First, Local 183 was a party to the Hashman proceeding. Second, the Hashman decision was published in the Board's monthly reports. Third, Hashman Construction, the respondent in Hashman, was a member of the MTABA at the time and the MTABA either did know of must be taken to have known of the decision. Yet there were no substantive changes to any of the relevant provisions (which are set out in paragraph 16 above) in any of the MTABA agreements entered into subsequent to the Board's decision in Hashman, including the one which was in effect at the time these applications were made.

26. Furthermore, Local 183's request for the appointment of a conciliation officer with respect to the MTABA agreement in 1973, 1975, 1979, 1983, 1985 and 1987, all describe, in para­graph 1(d) of the request, the "specific nature of the work performed by employees affected by this application" as being "labouring" work "in connection with" residential or in some instances, more specifically, apartment construction.

27. In addition, in the negotiations leading to the 1983-85 MTABA Agreement and to the one presently in effect (that is, in effect from May 1, 1987 to April 30, 1989), Local 183 sought, unsuccessfully, to have the word "carpenter" added after "handyman" in Article 8.6.1 of Schedule A. Why would that be necessary (or, from the MTABA's view, objectionable) if the trade or work of carpenters or carpenters' was already covered by the MTABA Agreement? No satisfactory explanation was offered in that respect.

28. It is also instructive, and consistent with our analysis, that Local 183 wrote a letter dated July 14,1975, to the MTABA which contains the following paragraph:

let me assure you that our Local Union is only interested in representing the Builders' labourers on said projects, and in protecting our established jurisdiction in the Concrete Form­ing House Basement area.

[emphasis added]

This was written with respect to the collective agreement between the MTABA and Local 183 with respect to residential construction other than apartment buildings and which, pursuant to Article 1.01 covered all of the MTABA members "own construction employees ... whose classification falls into a category listed in Schedule A", which classifications are identical to those in what was then Article 8 and is now Article A.6. 1 of Schedule A to the MTABA Agreement. While the non-apartment building residential construction agreement does not contain any of the premium classi­fications, including "form erectors and setters", it is evident that insofar as the classifications listed in Article A.6.1 of Schedule A are concerned, Local 183 and the MTABA both understood the agreement to apply to construction labourers only. Accordingly, even in the minds of Local 183 and the MTABA, none of the employees in those classifications are anything other than labourers.

29. There is evidence before the Board of what work is captured by the classifications in the MTABA Agreement. There is no suggestion in any of the evidence that any of the work done under the MTABA Agreement is work which would otherwise be identified exclusively with the carpenters trade. On the contrary, it is evident that the labourers trade and the carpenters trade both assert that all of the work is within their jurisdiction.

30. With respect to Local 183's assertion that the term "construction labourers" has the special and expanded meaning of "all employees" in the residential sector of the construction industry in Board Area 8 (see paragraph 17 above), we observe that the Board in Runnymede found that not to be so in respect of the non-apartment portion of the residential sector when it decided that the Housing Bureau Agreement (between Local 183 and the Toronto Housing Labour Bureau), which agreement is the successor agreement to the one referred to in the July 14, 1975 letter quoted in paragraph 28 above, and which has been characterized as being the "low rise MTABA agreement", does not cover carpenters or carpenters' apprentices. That decision has not been challenged either in these proceedings or elsewhere.

31. Finally, we come to the collective agreement between the Ontario Form Work Associa­tion and the Form Work Council of Ontario (the "Form Work Agreement"). Local 183 is a con­stituent trade union of the Form Work Council. The history of the manner in which it became a bargaining agent for employees engaged in concrete forming construction in Ontario is well known and has been reviewed in previous decisions (see, for example, Peniche Construction Forming, [1974] OLRB Rep. April 208; Urban Consolidated Construction Ltd.,,[1977] OLRB Rep. Feb. 41; West York Construction Ltd., [1983] OLRB Rep. Dec. 2132). Although the Form Work Agree­ment contains no "carpenter" or "carpenters' apprentice" classification, it is common ground in these proceedings that it does cover such employees. The Form Work Agreement covers employ­ees classified as "Form Builders-Setters" and "Form Helpers". It is apparent that carpenters and carpenters' apprentices covered by that agreement must fall within one of those classifications. The M'TABA Agreement also covers employees classified as "Form erectors and Setters", and was used to cover small scale concrete forming construction done by direct employees of MTABA members, notwithstanding that Article 1.05 excludes concrete forming work from coverage by it. Indeed, Local 183's evidence suggests that while it was anticipated that "flat" concrete forming work (e.g., sidewalks, curbs) would be covered by the MTABA Agreement but that concrete forming of superstructures would not be. Does this mean that the MTABA also covers carpenters and carpenters' apprentices?

32. We think not. First, the Form Work Agreement is of broader application than the MTABA Agreement, which applies to but one part of the residential sector of the construction industry in Board Area 8 and part of Board Area 18. It also contains a wage structure which more clearly dif­ferentiates between the different classifications of jobs involved in concrete form work. It may be that both carpenters and labourers are able to build, erect, and set concrete forms. It may also be, and there is no evidence before the Board on this point, that "building" a form is the same as "erecting" one. We note that the term "form erectors and setters" is used in the agreement between the Heavy Construction Association of Toronto and Local 183 which covers "construction labourers" in the heavy engineering sector of the construction industry. Other than for Mr. Min­sky's assertion, in argument, that there is an understanding in the industry that this heavy engi­neering agreement covers an "all employee" bargaining unit which includes them, there is no sug­gestion in anything before the Board that it covers carpenters. On its face, it does not. However, even if it does it would be either as form "builders" or form "setters". The Board has previously found that form setters may be, but are not necessarily, carpenters (and vice versa) (see Gisar Contracting Limited, [1985] OLRB April 528). The same can be said for form builders. (Similarly, sheeting [sic] and shoring men, and timbermen in (trenches) are construction labourers covered by the heavy engineering agreement). Further, while the heavy engineering agreement does include a wage rate for "form builder, fabricator and erector ..." as distinct from "form setters" (who receive different wage rate), it also has appended to it the following letter of understanding:

LETTER TO: The Heavy Construction Association of Toronto

FROM: Labourers' International Union of North America, Local 183

Re: Collective Agreement, May 1st, 1986

Further to the signing of the collective agreement between us, this letter will serve to confirm certain understandings which were reached in connection with the classifications of Form Builder, Fabricator and Erector. It is agreed and understood that the said classification does not apply to those employees engaged in the building, fabrication and erection of forms and in the employ of an employer who is in contractual relationship with the United Brotherhood of Car­penters and Joiners of America.

Dated at Toronto, this 6 day of Nov, 1986.

Signed on behalf of The Signed on behalf Heavy Construction of the Labourers' Association of Toronto International Union of North America, Local 183

In our view, we cannot conclude that a "form builder-setter" is the same as a "form erector and setter", or that either of them are, in any event, carpenters. Even if we could so conclude, the fact that a classification under one collective agreement includes (in this case) carpenters and their apprentices does not mean that the same or equivalent classification in another collective agree­ment also does so. Accordingly, the fact that "form erectors and setters" are covered by the MTABA agreement does not mean that carpenters employed by members of the MTABA are nec­essarily covered by the MTABA Agreement. In our view, neither the words of that agreement, nor the extrinsic evidence support such a conclusion.

33. In the result, we find that the MTABA Agreement does not cover carpenters or carpen­ters' apprentices. Consequently, neither Local 183 nor the MTABA has status to intervene in the applications in Board File Nos. 0250-87-R or 3457-86-R on the basis thereof.

34. The Ellis-Don Agreement expressly provides that the direct employees of Ellis-Don engaged in concrete forming construction are covered by the collective agreement between the company and the Form Work Work Council of Ontario. Other than that, the Ellis-Don Agreement is identical in all material respects to the MTABA agreement. Further, on the evidence before the Board, we are satisfied that the aforesaid analysis with respect to the MTABA Agreement is equally applicable to it and the result is the same. The words of this MTABA style agreement between Ellis-Don and Local 183 do not support the opinion of the witnesses who testified on behalf of Ellis-Don to the effect that all of its employees were covered by it. Nor is there any other cogent evidence which does so. In that regard, the evidence reveals that there was little real discus­sion between the parties with respect to the classifications in the agreement, that the classifications were of some significance to Local 183 but of no real importance to Ellis-Don, and that the Form Work Agreement which Ellis-Don entered into with the Form Work Council, rather than the Ellis-Don Agreement (with Local 183), was intended to cover all direct employees of Ellis-Don doing concrete form work. There was no explanation for the failure to include the terms "carpenters" or "carpenters' apprentice" (or any other trade designation), and no suggestion that Ellis-Don directly employed any trade other than the construction labourer at the time it and Local 183 entered into their agreement or that the MTABA style agreement was intended to cover anyone other than construction labourers. Also, as in the case of the MTABA Agreement, Local 183's request for the appointment of a conciliation officer in respect of its MTABA style agreement with Ellis-Don identified the nature of the work performed by employees affected by the application as all labouring work in connection with residential construction. Finally, it is clear that Ellis-Don, the Form Work Council and Local 183 understood that the Ellis-Don Agreement does not cover all direct employees doing concrete forming work. Indeed, the Ellis-Don Agreement itself and Local 183's letter to the Board dated April 30, 1987 in this matter confirm that the employees cov­ered by Local 183's Form Work Council style agreement with Ellis-Don are not covered by the Ellis-Don (MTABA style) Agreement. Nor does the evidence support the suggestion that any of Ellis-Don's concrete forming construction work has been done under the Ellis-Don Agreement rather than under its Form Work Council style agreement.

35. We come then to the question of whether Local 27 should be permitted to "carve out" its craft or trade; that is, carpenters and carpenters' apprentices, from the broader bargaining unit defined by the Form Work style agreement between Ellis-Don and the Form Work Council. Because of our conclusions with respect to the scope of the MTABA Agreement, that issue does not arise in the other two applications or in respect of the Ellis-Don Agreement.

36. As far as we are aware, the Board has never been faced with a carve out issue in circum­stances precisely like those before us. Here, Local 27 seeks, in an application made pursuant to section 144(3) of the Act, to be certified as the bargaining agent for its standard non-ICI craft unit; that is, the carpenters and carpenters' apprentices employed by Ellis-Don in all sectors of the con­struction industry, except the ICI, in Board Area 8. Carpenters and carpenters' apprentices employed by Ellis-Don who are engaged in concrete forming construction in the residential sector of the construction industry in Board Area 8 and the County of Simcoe are already represented by the Form Work Council under a Form Work style collective agreement. Accordingly, this is a par­tial displacement application. Neither Local 183 nor the Form Work Council are designated employee bargaining agencies (or affiliated bargaining agents of one) with respect to employees engaged in concrete forming construction. Indeed, there is no designation order directed specifi­cally at such employees. The collective agreement between The Ontario Form Work Association and The Form Work Council of Ontario, by virtue of the exclusions from the designation issued by the Minister of September 30, 1983 where the Labourers' International Union of North America and the Labourers' International Union of North America, Ontario Provincial District Council (the employee bargaining agency of which Local 183 is an affiliated bargaining agent), is a section 144(5) type of bargaining unit (Matterhorn Construction (Hamilton) Limited, [1981] OLRB Rep. Sept. 1276). The Form Work style agreement between Ellis-Don and the Form Work Council is somewhat different in that, unlike the Form Work Agreement itself, it is limited in its scope to the residential sector of the construction industry in Board Area 8 and the County of Simcoe (which is part of Board Area 18) and, accordingly, it does not come within the terms of the exclusion to the designation order.

37. Sections 6, 119(1) and 144 of the Labour Relations Act provide that:

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

(2) Where, upon an application for certification, the Board is satisfied that any dispute as to the composition of the bargaining unit cannot affect the trade union's right to certification; the Board may certify the trade union as the bargaining agent pending the final resolution of the composition of the bargaining unit.

(3) Any group of employees who exercise technical skills or who are members of a craft by rea­son of which they are distinguishable from the other employees and commonly bargain sepa­rately and apart from other employees through a trade union that according to established trade union practice pertains to such skills or crafts shall be deemed by the Board to be a unit appro­priate for collective bargaining if the application is made by a trade union pertaining to such skills or craft, and the Board may include in such unit persons who according to established

trade union practice are commonly associated in their work and bargaining with such group, but the Board shall not be required to apply this subsection where the group of employees is included in a bargaining unit represented by another bargaining agent at the time the applica­tion is made.

(4) A bargaining unit consisting solely of professional engineers shall be deemed by the Board to be a unit of employees appropriate for collective bargaining, but, the Board may include profes­sional engineers in a bargaining unit with other employees if the Board is satisfied that a major­ity of such professional engineers wish to be included in such bargaining unit.

(5) A bargaining unit consisting solely of dependent contractors shall be deemed by the Board to be a unit of employees appropriate for collective bargaining but the Board may include dependent contractors in a bargaining unit with other employees if the Board is satisfied that a majority of such dependent contractors wish to be included in such bargaining unit.

119.-(1) Where a trade union applies for certification as bargaining agent of the employees of an employer, the Board shall determine the unit of employees that is appropriate for collective bar­gaining by reference to a geographic area and it shall not confine the unit to a particular project.

(2) In determining whether a trade union to which subsection (1) applies has met the require­ments of subsection 7(2), the Board need not have regard to any increase in the number of employees in the bargaining unit after the application was made.

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

(a) an employee bargaining agency; or

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

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

(2) If on the taking of a representation vote more than 50 per cent of the ballots cast are cast in favour of the trade unions on whose behalf the application is brought, or, if the Board is satis­fied that more than 55 per cent of the employees in the bargaining unit are members of the trade unions on whose behalf the application is brought, the Board shall certify the trade unions as the bargaining agent of the employees in the bargaining unit and in so doing shall issue a certificate confined to the industrial, commercial and institutional sector and issue another certificate in relation to all other sectors in the appropriate geographic area or areas.

(3) Notwithstanding subsection 119(1), a trade union represented by an employee bargaining agency may bring an application for certification in relation to a unit of employees employed in all sectors of a geographic area other than the industrial, commercial and institutional sector and the unit shall be deemed to be a unit of employees appropriate for collective bargaining.

(4) A voluntary recognition agreement in so far as it relates to the industrial, commercial and institutional sector of the construction industry shall be between an employer on the one hand and either,

(a) an employee bargaining agency;

(b) one or more affiliated bargaining agents represented by an employee bar­gaining agency; or

(c) a council of trade unions on behalf of one or more affiliated bargaining agents affiliated with the council of trade unions,

on the other hand, and shall be deemed to be on behalf of all the affiliated bargaining agents of the employee bargaining agency and the defined bargaining unit in the agreement shall include those employees who would be bound by a provincial agreement.

(5) Notwithstanding subsections (1) and (4), a trade union that is not represented by a desig­nated or certified employee bargaining agency may bring an application for certification or enter into a voluntary recognition agreement on its own behalf.

38. We also note that from 1970 to 1975 what is now section 6(3) of the Act had the follow­ing words added to it:

or where the group of employees is exercising a combination of technical skills or is required to perform the skills in whole or in part of more than one craft as part of a work crew or team, the other members of which are also required to perform in similar fashion.

39. In applications for certification which do not relate to the construction industry where there is an existing bargaining unit represented by a trade union, the Board's general practice is to view the existing bargaining unit as being prima facie appropriate for the application. Notwith­standing this strong presumption in favour of an existing bargaining unit, the Board will find another bargaining unit appropriate for an application if it is satisfied there are compelling reasons to do so (see, for example, Canadian Red Cross Society Blood Transfusion Service, [1978] OLRB Rep. May 408; Milltronics Ltd., [1980] OLRB Rep. Jan. 56; Ontario Hydro, [1980] OLRB Rep. June 882; W.M.L Waste Management of Canada Inc., [1981] OLRB Rep. March 409; Scarborough Public Utilities Commission, [1982] OLRB Rep. June 929; Bestview Holdings Ltd., [1983] OLRB Rep. Feb. 185). In addition, section 6(3) gives the Board discretion to carve out a craft unit from an existing industrial one. In determining how to exercise its discretion in such circumstances, the Board will consider the relevant circumstances, including the general nature of, and organizational practices in, the industry concerned, the history of collective bargaining in the industry and with the employer concerned, the organizational practices of the incumbent trade union, the community of interest between the craft employees in question and the rest of the existing bargaining unit employees, and the history of representation of the craft employees by the incumbent trade union. As a practical matter, the Board has generally refused to sever craft units from industrial units in circumstances where the parties do not agree that it is appropriate to do so and there is a history of proper representation of the craft group by the incumbent.

40. Historically, the Board has taken a different approach to craft severance in applications for certification in the construction industry. The Board has long recognized that the nature of the employment relationship in the construction industry is different from that in other industries (see for example, J. A. Willes, The Craft Bargaining Unit, Industrial Relations Centre, Queen's Uni­versity, 1970, generally and specifically at p. 30; George W. Adams, Q.C., Canadian Labour Law, (Canada Law Book Inc., Aurora, 1985) at pp. 863-893). The nature of the employment relation­ship in the construction industry has been partly responsible for the development of crafts or trades, and for the development of trade unions along trade or craft lines. Indeed, there are many employers in the construction industry which arrange their affairs in this manner as well; that is, they employ persons in one or more in specific trades to do the work of the trade to which they "belong" as required in the employer's business. Parenthetically, we observe that the term "craft" generally refers to a particular type of skilled or semi-skilled work (e.g. carpentry). The term "trade" is generally used to refer to an occupation or vocation (e.g. carpenter). For labour relation purposes, these terms have come to be used virtually interchangeably and, for our purposes, we consider them to be synonymous.

41. As a result of the nature of, and history of trade union organization in, the construction industry, the Board has generally attached great weight to trade considerations and, in the absence of any existing bargaining unit, certification in the construction industry has traditionally been on the basis of trade. Even where a non-craft trade union makes an application for certification in the construction industry (and there is no existing unit), the Board's practice is to describe the bargain­ing unit in terms of the trades at work on the date of application (see Duron Ontario Limited, [1976] OLRB Rep. Nov. 734; A. N. Shaw Restoration Ltd., [1981] OLRB Rep. Mar. 241). Indeed, the Labour Relations Act recognizes craft interests both generally (section 6(3) and 91), and specif­ically in the construction industry in the province-wide bargaining scheme (sections 137 to 151) which is largely premised on the primacy organization by trade. Prior to provincial bargaining and the subsequent enactment of section 144, the Board's approach to applications for certification in the construction industry was to determine the bargaining unit pursuant to section 6(3) where the applicant was a craft trade union, and section 6(1) where the applicant was a non-craft trade union. In displacement applications, however, the appropriate bargaining unit was always determined under section 6(1) which allowed non-craft trade unions to displace craft unions as bargaining agents for craft bargaining units. We note that in Duron Ottawa Ltd., [1983] OLRB Rep. Oct. 1639 the Board commented that:

42. In ordering the vote for such a bargaining unit, the Board has departed from a long estab­lished policy of this Board in displacement situations. That policy is perhaps best enunciated in the case of Duron Ontario Limited, [1976] OLRB Rep. Nov. 737 where, simply put, even in cases involving the construction industry and notwithstanding the Board's recognition of the craft structure of the construction industry, the Board in displacement cases has always deter­mined the bargaining unit as a displacement unit under section 6(1) of the Act, and the incum­bent was required in such displacement applications to take all the employees in the existing bargaining unit.

To the extent that this comment suggests that it had been the Board's practice, before the advent of provincial bargaining, to not allow a craft construction union to carve out its trade from an exist­ing unit, it is inconsistent with the authorities, including the Duron Ontario Limited decision to which it refers (see, for example, Kent Tile & Marble Co. Ltd., 61 CLLC ¶16,204; Ellwood Robin­son Limited, [1967] OLRB June 261; Pre-Con Murray Limited, [1967] OLRB Rep. Oct. 684; J. D. Coad Construction Company Limited, [1969] OLRB Sept. 755; Nadeco Limited, [1970] OLRB Rep. April 41; Canwall Contractors Ltd., [1975] OLRB Rep. July 532; Duron Ontario Limited, sup ra).

42. The Board's general discretion, under section 6(1) of the Act, to determine what bar­gaining unit is appropriate in applications for certification in the construction industry, already somewhat limited by section 6(3) which deems craft units to be appropriate, was further limited by the enactment, in May 1980, of section 144.

43. Section 144 covers all applications for certification in the construction industry (see Clarence H. Graham Construction Ltd., [1981] OLRB Rep. Sept. 1195; Ninco Construction Ltd., [1982] OLRB Rep. Nov. 1692; Manacon Construction Ltd., [1983] OLRB Rep. Mar. 407 and July 1104). Under the province-wide bargaining provisions of the Act, some construction industry trade unions are designated to represent certain specific trade or crafts in bargaining in the ICI sector of the construction industry. A trade union represented by a designated employee bargaining agency may, at its option, apply for certification under either section 144(1) or (3), or enter into voluntary recognition agreements under section 144(4). Construction trade unions which are not represented by a designated employee bargaining agency, and are therefore not covered by sections 144(1)-(4)

of the Act, such as the Christian Labour Association of Canada, can apply for certification or enter into voluntary recognition agreements in the construction industry under section 144(5).

44. The designation orders issued pursuant to section 139(1) of the Act describe the provin­cial units of employees contemplated by the province-wide collective bargaining scheme estab­lished by the Act for the ICI sector of the construction industry in terms of trades and designate, for each such bargaining unit, an employer and employee bargaining agency. In effect, such orders designate the trade(s) which "belongs" to each employee bargaining agency and its affiliated bar­gaining agents. Employee bargaining agencies, and their affiliated bargaining agents, can only rep­resent, in the province-wide ICI collective bargaining scheme, those employees who are in a trade they have been designated to represent (see Ninco Construction Ltd., supra; Manacon Construction, supra; Superior Plumbing and Heating Ltd., [1986] OLRB Rep. Nov. 1589; D. E. Witmer Plumbing and Heating Limited, [1987] OLRB Rep. Oct. 1228). Consequently, in applica­tions for certification under section 144(1), the Board, although not necessarily bound to use the precise words of the designation order, cannot describe an ICI sector bargaining unit in a manner which is inconsistent with the relevant designation order. To accommodate this designation system, and recognizing that trade union representation in the construction industry has historically been along trade or craft lines, the Board's general practice, in applications under section 144(1), is to describe bargaining units in terms of the relevant trade and using the words of the relevant desig­nation order.

45. Consequently, while section 144 does fetter the Board's discretion under section 6(1), it has preserved and codified the Board's historical willingness (see paragraph 40 and 41 above) to carve out a craft unit from an existing construction industry bargaining unit. Indeed, the Board has viewed such carve outs as being mandatory in section 144(1) applications (see for example Crown Electric, [1982] OLRB Rep. May 660 Duron Ottawa Ltd., supra; Ben Bruinsma and Sons Limited; [1984] OLRB Rep. Nov. 1542; Aero Block and Precast Ltd., [1984] OLRB Rep. Sept. 1166). Even in circumstances where a (non-craft) incumbent trade union held bargaining rights for a broader bargaining unit, which included the applicant's trade, in other than the ICI sector, the Board found it appropriate to permit a trade union applying for certification under section 144(1) to carve out its craft from the existing bargaining unit in the "appropriate geographic area" contemplated by that subsection (D. L. Stephens Contracting Niagara Limited, [1980] OLRB Rep. Oct. 1384).

46. It is evident that the Board has a well-established general practice of permitting a craft construction trade union to apply and be certified for a bargaining unit of employees engaged in its craft, whether or not such employees are in an existing bargaining unit represented by another trade union at the time of the application. This craft unit carve out practice in the construction industry contrasts with the practice in non-construction industry matters where the Board, in appli­cations where a trade union seeks to displace an incumbent bargaining agent, generally finds the appropriate bargaining unit to be one described in the same terms as the existing unit.

47. Finally, while we are unaware of any case in which the Board has been faced with a carve out issue in an application for certification under section 144(3), we observe that in circum­stances where none of the construction employees of a respondent employer are represented, the Board's practice is to permit the applicant in such applications to apply for a bargaining unit described in terms of its trade or craft even if there were unrepresented employees in other trades or crafts at work for the respondent employer on the date of application. It is only where the appli­cant trade union seeks, in such an application, as it can, to represent employees in other than its usual or designated trade, that the Board has required it to apply for a bargaining unit described in terms of all unrepresented trades at work on the date of application.

48. In this case, Ellis-Don, Local 183, and the Form Work Council urge the Board to depart from what we have found to be the Board's general practice in the construction industry. Of course, no practice or policy can be more than a general guideline. The very nature of practices and policies is such that there must be limits and exceptions to them. Further, no policy or practice is, or should be, written in stone. To the extent that the Act allows it to be, the Board, and its practices and policies, must be responsive to developments in the real world of labour relations. The Board should be sensitive to such changes so that its policies and practices can evolve to accommodate them rather than requiring the labour relations community to adapt to the Board.

49. Locals 183 and the Form Work Council have a long history of organizing and represent­ing employees involved in concrete forming work both generally and particularly in the residential sector of the construction industry in Board Area 8. We have already referred to the history of the Form Work Agreement (see, paragraph 31 above). The Board summarized this history at para­graphs 8-11 and 18, which formed part of a partial agreed statement of fact submitted to the Board in these proceedings, of West York Construction Ltd., supra:

50. Historically, wooden forms built to take a concrete pour were disassembled after a pour and then re-built for the next pour. In the 1960's, however, there was a great increase in the con­struction of concrete high-rise apartment buildings in the Toronto area. Because of the repeti­tive nature of the buildings and the fairly short spans between vertical walls, residential concrete forming forms developed a procedure by which they could re-use the same forms. The forms were moved intact from one location on a building to another by way of crane. The movement of the forms by a crane became referred to as "flying" the forms, and the forms themselves became known as "flying forms". The use of flying forms greatly increased the speed of con­struction and also lowered the costs associated with the construction of high-rise apartment buildings. Because of the nature of most ICI projects, generally they have not been amenable to the use of flying forms. However, as a result of certain technological advances, there is now a growing use of flying forms in ICI sector concrete forming.

51. Initially, in the Toronto area concrete forming work on high-rise apartment buildings was performed on a non-union basis. The non-union employees who performed the work tended to work as a single "gang" or "crew", and while an individual employee might be particularly pro­ficient in one aspect of the work, when not engaged in his specialty he would on other aspects of the work as well.

52. In the mid-1960's there were a number of attempts to organize employees in the residential concrete forming field. One of these attempts involved the formation of a council of unions known as the Council of Concrete Forming Trades Unions comprised of locals of the Carpen­ters, Cement Masons, Ironworkers and Labourers Unions, as well as Local 793 of the Interna­tional Union of Operating Engineers. The Operating Engineers Union is a trade union that rep­resents operators and its involvement in the Council reflects the fact that flying forms are actually "flown" by a crane. The Council of Concrete Forming Trades Unions proved to have no lasting organizing success. A more lasting organizing effort, however, was undertaken by Local 183. Local 183's approach involved taking into membership all employees engaged in con­crete forming except the crane operators. In 1977 an association of concrete forming companies known as the Ontario Form Work Association entered into a collective agreement with Local 183 covering "all construction employees" employed by its member companies with the excep­tion of crane operators represented by Local 793 of the Operating Engineers Union. Local 183 and Operating Engineers Local 793 subsequently entered into a council of unions known as the Form Work Council of Ontario. In 1979 this council entered into a collective agreement with the Ontario Form Work Association covering "all construction employees" of the forming compa­nies belonging to the Association. Under this agreement, the crane operators were required to be members of Operating Engineers Local 793, while all other employees belonged to Local 183. Renewal agreements between the same two parties were entered into in 1981 and 1983. Although these agreements did not purport to limit their applicability to any one sector, the forming contractors belonging to the Ontario Form Work Association have generally performed the majority of their work in the residential sector. Further, we gather that the great majority of firms engaged in high-rise residential concrete forming in the Toronto area are either bound by this agreement, or by separate but similar agreements....

53. For their part, the major apartment builders in the Toronto area have grouped themselves into an association known as the Metropolitan Toronto Apartment Builders Association (the "MTABA"). In May of 1970 the MTABA entered into a collective agreement with Local 183. On November 28, 1975 the then current agreement between Local 183 and the MTABA was amended so as to require that members of the MTABA "not ... sublet concrete forming to sub­contractors other than those who are in contractual relationship with the union". It appears that this clause has been included in all subsequent agreements between the same parties....

54. The evidence indicates that since the early 1970's most high-rise apartment construction in the Toronto area has been performed pursuant to the terms of the MTABA-Building Trades Council and MTABA-Local 183 agreements. Pursuant to the MTABA-Local 183 agreement, apartment developers have sublet the concrete forming work to contractors employing Local 183 members. Pursuant to the terms of the agreement between the Ontario Form Work Associ­ation and the Form Work Council of Ontario, these contractors have employed members of Local 793 of the Operating Engineers Union to operate the cranes and members of Local 183 to do all of the remaining work, including building the forms, setting the reinforcing rods and pour­ing and finishing the concrete. Many members of Local 183 are in fact specialized in one aspect of the work, but when an employee's special skills are not required, he may perform other types of work, including assisting other members working at their specialties. On low-rise apartment buildings, flying forms may not be used. In these cases, members of Local 183 build the forms and then disassemble them after each pour. As already indicated, the contrast to the procedures utilized in the residential sector, most unionized ICI concrete forming is performed pursuant to the terms of the provincial agreements of the various trades, with members of the carpenters union building and repairing the forms.

55. Local 27 has been active in organizing carpenters and carpenters' apprentices involved in form work in the ICI sector but it has no history of organizing at all comparable to that of Local 183 and the Form Work Council within the residential sector in Board Area 8. Further, the build­ing, erecting, and setting of forms have not been recognized as being a separate trade or trades. In the ICI sector of the construction industry, trade union organization and representation has been primarily on a trade basis. However, the union organization and representation of such employees in the residential sector of the construction industry in Board Area 8, has been largely on a multi-craft or composite crew basis rather than by trade as such. For over thirty years, the Board has rec­ognized that concrete forming construction in the residential sector of the construction industry is generally performed by employees working as a crew and with each member of the crew exercising the skills of more than one craft and being interchangeable with other members of the crew (see, for example, Peniche Construction Forming, supra). As a result, it appears that carpenters and car­penters' apprentices employed doing concrete form work have some community of interest with other form workers. In that respect, Form Work and Form Work style agreements to which the Form Work Council and Local 183 are bound have, on the evidence before the Board, adapted to the needs of and changes in the construction industry and, as such, have worked to the benefit of both employers and employees covered by them. In that respect, that there was no suggestion that carpenters or carpenters' apprentices have not been properly represented under the Ellis-Don Form Work style or any other form work style agreement to which Local 183 or the Form Work Council are party, and Ellis-Don argued that permitting the carve out requested by Local 27 would generally reduce the efficiencies of its "production" and supported Local 183's and the Form Work Council's submission that such a carve out would destabilize and generally put the high rise resi­dential construction industry back twenty years.

56. One of the Board's fundamental concerns when it deals with an application for certifica­tion is that the parties begin their relationship with a bargaining unit structure conducive to ongo­ing collective bargaining. In that respect, fragmentation, which can, especially in the construction

industry, lead to jurisdictional disputes, picketing problems, and strike oriented lay-offs, is to be avoided for both labour relations and "efficiency of production" reasons.

52. Also, while the demarcations between trade jurisdictions in the construction industry have never been completely clear, these demarcations have, in recent years, become even more blurred, and concomitantly the areas of overlap between trade jurisdictions have grown. This is due in part to changes in the construction industry itself. For example, it is no longer fair to say, if ever it was, that construction labourers are, as a general rule, unskilled and unsophisticated work­ers. Another reason for this development is the aggressive approach taken by the Labourers' Inter­national Union of North America to expanding its trade jurisdiction in circumstances where the very nature of its trade means there is a potential for, if not an actual, overlap between it and virtu­ally every other trade in the construction industry. Perhaps the most obvious struggle in that respect has been the one between the Labourers' International Union of North America and the United Brotherhood of Carpenters and Joiners of America in the residential sector of the construc­tion industry in Board Area 8.

53. Consequently, there are a number of factors which weigh against permitting Local 27 to carve out these carpenters and carpenters' apprentices employed by Ellis-Don who are covered by the Ellis-Don Form Work style agreement.

54. On the other hand, the concrete forming construction work relationship between Ellis-Don and the Form Work Council is both relatively short and different in nature from the concrete forming construction bargaining relationships excluded from the general designation order for the Labourers' International Union of North America and the Labourers' International Union of North America, Ontario Provincial District Council (see para. 36 above). The Ellis-Don Form Work style agreement is limited in its application to concrete forming construction in the residen­tial sector in Board Area 8 and the County of Simcoe. Further, while concrete forming construc­tion is generally performed by employees working as a composite crew, the classification schemes in the Form Work and Form Work Style agreements suggest that members of such a crew do not exercise so similar a combination of skills to be entirely interchangeable. The evidence establishes that many concrete formworkers specialize in an aspect of concrete forming work. Although this specialization may not be precisely along craft lines, it does tend to follow them. It is not the fact that they are formworkers that makes it difficult to determine what craft any given employee is engaged in. It is the blurring of the craft lines themselves which does this. In any case, the fact that employees work in a composite crew does not mean that carpenters cannot be distinguished from labourers, even when the work being done by the employee(s) in question falls within the overlap between the two trade jurisdictions.

55. We also observe that fragmentation of bargaining units has always been (and is) the rule rather than the exception in the construction industry, largely as a result of the very nature of that industry. This is reflected in the way in which both construction employers and construction trade unions have generally structured their affairs, and in the nature of the employment relationship in the construction industry (see para. 40 above). That has not prevented the construction industry from prospering in either the ICI or other sectors In some sectors (for example, ICI, pipeline and electrical power systems) composite crews of employees from different trades have been used to decrease the inefficiencies that result from such fragmentation. One result, perhaps, is that the lines between crafts have become more blurred. However, the fundamental nature of the construc­tion industry; that is, its craft orientation and basis, has not been significantly altered.

56. In addition, the right of self-determination, which is one of the fundamental bases of the Labour Relations Act, favours permitting craft carve outs in a craft oriented industry. In that respect, we note that precluding craft carve outs could severely limit the opportunity for tradesmen to opt for representation by their craft union in circumstances where some other trade union had previously obtained bargaining rights which included that craft. We have also already indicated (in paragraph 41, above) the extent to which the Labour Relations Act itself recognizes the craft nature of the construction industry. In that regard, we note that section 6(3) deems craft units to be appropriate. Although the Board is not required to apply section 6(3) where the craft employees are included in an existing bargaining unit, the insertion and subsequent deletion of the provisions referred to in paragraph 38 above suggests that the fact that an existing bargaining unit consists of employees exercising a combination of skills of more them one craft as part of one crew is not a factor which should weigh against carving out employees in one of the crafts into a separate bar­gaining unit. Indeed, in the ICI sector of the construction industry, craft carve outs are mandatory for applications for certification to which sections 144(1) of the Act applied. Similarly, by virtue of the definitions in sections 137(1), section 144(3), under which the application with respect to Ellis-Don has been brought, deems a craft unit of the kind Local 27 seeks to be appropriate for collec­tive bargaining. That is so whether or not the craft employees in question happens to be in a bar­gaining unit represented by another trade union at the time the application (so long as it is timely) is made.

57. In the result, the nature of and history of organization in the construction industry and the right of self-determination favour permitting Local 27 to carve out the carpenters and carpen­ters' apprentices now represented by the Form Work Council under the Ellis-Don Form Work style agreement. The structure of the Labour Relations Act, and particularly the provisions relating to the construction industry, does so as well.

58. In the result, we find that the MTABA has no status to participate in any of these three applications. We further find that Local 183 has no status to participate in the applications in Board File Nos. 3457-86-R and 0250-87-R at all, and no status in the application in Board File No.

3291-86-R except as a constituent trade union of The Form Work Council of Ontario. The Form Work Council of Ontario does have status to participate in Board File No. 3291-86-R.

59. In Board File No. 3291-86-R, the Board finds that all carpenters and carpenters' apprentices in the employ of the respondent (Ellis-Don) in all sectors of the construction industry, except the industrial, commercial and institutional sector, 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 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.

60. The Registrar is directed to schedule Board File No. 3291-86-R for hearing for the pur­pose of hearing the evidence and representations of the parties with respect to all matters remain­ing issues including, but not limited to:

(a) who is the proper respondent and Local 27's request for relief under section 1(4) of the Act;

(b) the list of employees in the bargaining unit;

(c) the pre-hearing vote which was requested and held.

61. In Board File No. 3457-86-R, the Board finds that, having regard to our conclusions as aforesaid, all carpenters and carpenters' apprentices employed by the respondent (Milne & Nic­ holls Ltd.) in all sectors of the construction industry, except the industrial, commercial and institu­tional sector, 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, 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.

62. It appears that the Board could dispose of the application in Board File No. 3457-86-R on the basis of the material already before it and the Board will do so unless a party can suggest a cogent reason, m writing, for the Board not to do so within 14 days of the date hereof.

63. In Board File No. 0250-87-R, the Board finds that, having regard to our conclusions as aforesaid, all carpenters and carpenters' apprentices employed by the respondent (Mollenhauer Limited) in all sectors of the construction industry, except the industrial, commercial and institu­tional sector, 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, 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.

64. The Registrar is directed to schedule Board File No. 0250-87-R for hearing for the pur­pose of hearing the evidence and representations of the parties with respect to all remaining mat­ters arising out of and incidental to the application. Board File No. 0484-87-U is a section 89 com­plaint related to the application in Board File No. 0250-87-R and should be scheduled to be heard with it.