Christian Labour Association of Canada v. Reitzel Heating & Sheet Metal Ltd., 1988 CanLII 3608

[1988] OLRB Rep. December 1310

0226-88-R Christian Labour Association of Canada, Applicant v. Reitzel Heating & Sheet Metal Ltd., Respondent, v. Sheet Metal Workers' International Associa­tion, Local 562, Intervener

BEFORE: Louisa M. Davie, Vice-Chair, and Board Members W. Gibson and C. A. Ballentine.

APPEARANCES: William R. Herridge, Peter Van Duyvenvoorde and Mayward Witvoet for the applicant; Robin B Cumine, John Bilawski and Louis Reitzel for the respondent; Bernard Fishbein and Cliff Coffin for the intervener.

DECISION OF THE BOARD; December 21, 1988

1. This is an application for certification made under the construction industry provisions of the Labour Relations Act ("the Act"). The applicant had requested that a pre-hearing represen­tation vote be taken. By decision of the Board (differently constituted) dated May 16, 1988 the Board appointed a Labour Relations Officer to, inter alia, confer with the parties as to the descrip­tion and composition of the bargaining unit, the description and composition of the voting constitu­ency, the list of employees as of the terminal date to be used for the purposes of any vote that may be directed by the Board and to report to the Board.

2. By subsequent decision of the Board (differently constituted) dated June 13,1988 the Board directed that a pre-hearing representation vote be taken of the employees in the following voting constituencies:

Voting Constituency #1

All journeymen sheet metal workers and registered sheet metal apprentices in the employ of the respondent in the industrial, commercial and institu­tional sector of the construction industry in the Province of Ontario, save and except non-working foremen and persons above the rank of non-work­ing foreman.

Voting Constituency #2

All journeymen sheet metal workers, sheet metal apprentices, pipefitters, journeymen air conditioning refrigeration mechanics, apprentice air condi­tioning refrigeration mechanics and labourers employed by the respondent in Board Area 6 (the Regional Municipality of Waterloo except that portion of the geographic Township of Beverly annexed by North Dumfries Township) save and except non-working foremen and persons above the rank of non-working foreman.

3. The vote was taken June 30, 1988. Voters in constituency #1 were asked to indicate whether they wished to be represented by the applicant Christian Labour Association of Canada ("CLAC") or the intervener Sheet Metal Workers' International Association, Local 562 ("Sheet Metal Workers") in their employment relations with the respondent, Reitzel Heating & Sheet Metal Ltd ("Reitzel"). Voters in constituency #2 were asked to indicate whether or not they wished to be represented by CLAC in their employment relations with Reitzel. The ballots in vot­ing constituency #1 were segregated from the ballots in voting constituency #2. In addition the Sheet Metal Workers challenged the right of Brad Reitzel and Bruce Currie to vote. Their ballots were also segregated. Both ballot boxes were sealed at the direction of the Board. The Board fur­ther directed that the matter be listed for hearing as soon as possible after the vote.

4. The reason for the two voting constituencies, and the reason why this matter was listed for hearing, was that in this application CLAC is seeking to displace the Sheet Metal Workers province-wide industrial, commercial, institutional ("ICI") craft bargaining unit. The Sheet Metal Workers submitted that because the CLAC is neither an employee bargaining agency ("E.B.A.") nor an affiliated bargaining agent ("A.B.A.") CLAC cannot be certified pursuant the section 144(1) of the Act, but can only be certified pursuant to section 144(5). The Sheet Metal Workers therefore submitted that the CLAC could only be certified for all trades at work on the application date in all sectors in Board area 6. The parties were agreed that Reitzel did not employ any per­sons outside of Board area 6 on the date of application.

5. The CLAC and Reitzel both submitted that in a displacement application of this nature, CLAC is entitled to be certified for a unit of employees consisting solely of:

all journeymen Sheet Metal Workers and registered sheet metal apprentices in the employ of the respondent in the industrial, commercial and institu­tional sector of the construction industry in the Province of Ontario save and except non working foremen and persons above the rank of non-working foreman.

6. The CLAC's entitlement to a pre-hearing vote could not be affected by the Board's ulti­mate resolution of the divergent submissions as outlined in paragraphs 4 and 5 herein. The matter came on for hearing and was heard on September 9, 1988. During the course of the hearing the Sheet Metal Workers withdrew their challenges regarding the eligibility of Brad Reitzel and Bruce Currie to vote.

7. The respective positions of the CLAC and the Sheet Metal Workers were succinctly summarized in letters sent by their counsel to the Board. In a letter dated June 16, 1988 counsel on behalf of the CLAC states:

CLAC'S position is that since this is a Displacement Application, and in accordance with the Board's well established jurisprudence, the appropriate bargaining unit is the unit held by the trade union which CLAC seeks to displace. CLAC further takes the position that since this is a Displacement Application, it is unnecessary for CLAC to apply for an "all employee unit", and that there is nothing in Section 144 of the Labour Relations Act that would in any way prevent the Board's normal principles with respect to displacement applications from applying.

8. In a letter dated June 13, 1986 counsel on behalf of the Sheet Metal Workers stated:

It is the Intervener's position that the bargaining unit sought by the Applicant is inappropriate. The Applicant is a trade union that is outside of the scheme of provincial bargaining and accord­ingly can apply in the construction industry only pursuant to Section 144(5) of the Act. Accord­ingly the Intervener is not entitled to a bargaining unit described only in terms of the industrial, commercial and institutional sector of the construction industry and not entitled to a bargaining unit that covers the Province of Ontario. Moreover the Applicant is not a craft union and not entitled t a craft bargaining unit. The Applicant purports to rely on the Board's policy with respect to displacement applications for certification to justify its claim for the sought-after bar­gaining unit. The Intervener submits that the Board's displacement policy can no longer stand in the face of Section 144 of the Act which is the mandatory section for all construction industry applications.

9. These respective positions were elaborated upon at the hearing at which time both counsel submitted some authority in support of their position. None of the cases were directly on point and it would appear that this is the first time this issue has been raised in this manner since the current provisions relating to province-wide collective bargaining in the ICI sector of the con­struction industry were enacted.

10. Counsel on behalf of the Sheet Metal Workers submitted that a trade union applying pursuant to subsection S cannot obtain a bargaining unit circumscribed by the parameters of sec­tion 144(1) i.e. a craft bargaining unit, confined to the ICI sector and provincial in scope. Counsel pointed to the longstanding practice of this Board in defining the usual or customary bargaining unit where the CLAC has applied for certification pursuant to section 144(5) as "all unrepresented trades" employed by the employer on the date of the making of the application confined to a spe­cific Board area and without reference to sector. Counsel submitted that this long standing practice was in conflict with an equally well-established, long standing practice of the Board that, in an application for certification by way of displacement of an incumbent trade union, the appropriate bargaining unit is he unit in the collective agreement. Counsel suggested however that, in the con­struction industry, the Board's policy regarding displacement applications has been gradually eroded by virtue of the Board's application of section 144(1) and section 144(3) and the confines contained therein. As a result, counsel submitted that in the present case, the Board's usual prac­tice of determining appropriate bargaining units under section 144(5) as all trades employed in a geographic area should prevail and take precedence over the Board's policy in respect of displace­ment applications.

11. In support of his position that the Board's displacement policy has been gradually eroded in the construction industry, counsel referred to two cases: Crown Electric, [19821 OLRB Rep. May 660 and Aero Block and Precast Ltd., [1984] OLRB Rep. Sept. 1166.

12. In Crown Electric the Board was considering an application by the International Broth­erhood of Electrical Workers Local 1687 (the IBEW), an A.B.A., to displace the CLAC by way of an application made pursuant to section 144(1) i.e. the ICI sector and one Board area. The bar­gaining unit described in the Collective Agreement was broader and did not contain a reference to the ICI sector. The CLAC and respondent employer in that case argued that, in light of the Board's long standing policy in displacement applications, the appropriate bargaining unit was the bargaining unit described in the Collective Agreement. The IBEW successfully argued that, as it was seeking to represent employees in the ICI sector of the construction industry, the unit which it sought had to conform to the requirements of section 144(1). Counsel submits that in that instance therefore the Board's policy regarding displacement applications was eroded by reason of the pro­visions of section 144(1). Similarly, he submits that Aeroblock and Precast Limited is another example where the Board held that the displacement policy of the Board could not survive in the face of section 144 of the Act. (See in particular paragraph 17 of that decision.)

13. Counsel submitted that, although those cases involved applications for certification brought by an A.B.A. pursuant to section 144(1), by analogy they apply to the case before us. Counsel referred to the rationale of the displacement policy of the Board i.e. a union seeking to displace an incumbent should accept what has proven to be a viable bargaining relationship and accept the confines of that relationship. He asks rhetorically: if that rationale does not survive applications made under section 144(1) and 144(3), why should it survive applications made under section 144(5)?

14. Finally, counsel developed a "fairness" argument to support his submissions that the CLAC must take an "all trades at work on the date of the application" unit. It was his submission that unions such as the Sheet Metal Workers i.e. those governed by the definition of an A.B.A., have had their organizing opportunities circumscribed by the parameters of section 144(1). For example, the Sheet Metal Workers could not seek to displace a Carpenters provincial ICI unit because they could not represent carpenters pursuant to their Sheet Metal Workers' provincial agreement. Similarly, Sheet Metal Workers could not have displaced all trades represented by the CLAC had the present roles been reversed and the CLAC been the incumbent bargaining agent for employees of Reitzel. It was argued that to permit the CLAC to, in effect pick and choose the bargaining units it wishes to represent, is to put it in a better, more advantageous position than tra­ditional craft unions in the construction industry. Moreover, such a benefit is given to the CLAC to the detriment of the employees who are themselves restricted in their choice as to which trade union can represent them pursuant to section 144(1).

15. In response to these submissions, counsel on behalf of the CLAC stated that as the pro­visions of section 144(1) of the Act are inapplicable, cases decided pursuant to that section are also inapplicable. Counsel stated that the effect of section 144(5) is that, for trade unions such as the CLAC the rest of section 144 does not exist. Counsel submitted that there were no legislative limi­tations or parameters set out in section 144(5) which would impact upon the Board's determination as to the appropriate bargaining unit. In section 144(5) applications, the appropriateness of the bargaining unit stands to be determined pursuant to section 6(1) of the Act. Counsel reiterated the Boards' general policy that pursuant to section 6(1) of the Act, in a displacement application the policy of the Board has been that the appropriate unit is the unit held by the incumbent trade union. Prior to the enactment of section 144 this policy was applicable to applications for certifica­tion in the construction industry made by non-craft unions.

16. In Duron Ontario Limited, [1976], OLRB Rep. Nov. 734 the Board stated at page 739:

13. From time to time the set of circumstances which are present in this application are pre­sented to the Board. The Board characterizes this application as a situation where an incumbent craft trade union represents members of a craft - cement masons and cement masons' appren­tices - and where some of them have indicated a preference to be represented by another trade union. In these situations, the Board has generally held that the appropriate bargaining unit is the unit in the collective agreement. The unit in the collective agreement is regarded as a dis­placement unit and is determined with reference to section 6(1) and not section 6(2) [now sec­tion 6(3) of the Act]. Reference is made to the J. H MMcLeod and Sons Limited case, OLRB Rep. Dec. 1969, p. 1100 and to the Canwall Contractors Limited case OLRB Rep. July 1975 p. 532. If the Board were to accept the argument that in a displacement situation the appropriate bargaining unit is to be determined with reference to section 6(2) [now section 6(3) of the Act];

this would mean, in many instances, that only an incumbent trade union would possess the nec­essary requirements to represent a given craft notwithstanding a wish by certain members of that craft .o have another trade union represent them in collective bargaining. In our view, under The Labour Relations Act no trade union possesses a monopoly with respect to repre­senting an~ bargaining unit of employees.

In this case counsel for the CLAC placed particular emphasis on the "democratic theme" of the decision, namely the right of employees to be represented by the trade union of their choice. To deny displacement applications in circumstances such as these, unless the trade union seeking to displace also sought to represent all other unrepresented trades, would have the effect of prohibit­ing competition amongst trade unions and promote trade union monopolies of the "crafts".

17. Counsel submitted that the advent of province-wide bargaining did not, and does not affect the application of the Board's policy on displacement applications in respect of those trade unions who fall within section 144(5) of the Act. Province-wide bargaining affected only those trade unions which must now conform to the statutory provisions of section 144(1) and section 144(3) when bringing an application for certification in the construction industry. In support coun­sel referred to the Board’s decision in Matterhorn Construction (Hamilton) Limited, [1981] OLRB Rep. Sept. 1276 where the Board stated at page 1278:

7. Since Local 183 is not a trade union represented by an employee bargaining agency in respect of employees engaged in concrete forming construction, it is not a union which has the option of deciding, when it is applying for certification in respect of employees engaged in concrete form­ing construction as referred to in the designation of the labourers employee bargaining agency, whether its application relates to the industrial, commercial and institutional sector of the con­struction industry and, therefore, comes under subsection 1 of section 131a or does not relate to that sector and comes under subsection 3. Therefore, the only avenue open to Local 183 when it is seeking bargaiing rights for employees engaged in concrete forming construction in subsec­tion 5 of section 131a of the Act. Accordingly, the Board determines that this application is made pursuant to subsection 5 of section 131a. It is patently clear that subsection 5 contains no reference to construction industry sectors. Thus it remains for the Board, in dealing with appli­cations for certification coming within that subsection, to determine whether bargaining rights will be granted with or without sectoral reference. In other words, it leaves the Board in the same position in respect of these applications as it was prior to the introduction of section 131a into the Act.

[Emphasis added]

18. Counsel submitted that Clarence H. Graham Construction Limited, supra also accepted that the policies set out in Duron Ontario, supra survived the advent of provincial bargaining for those unions not affected by sections 144(1) to 144(4):

………Subsection 5 deals with applications by "a trade union" that is not represented by a desig­nated or certified employee bargaining agency", that is trade unions not under the regime of province-wide bargaining. For such trade unions it is clear that they are not affected by subsec­tions 1 through 4 and clearly the Board policies set out in the Duron case continue to apply with respect to applications for certification by such trade unions.

(Paragraph 6, page 1199)

[Emphasis added]

19. One of those policies is the Board's policy on displacement applications. Although Crown Electric does indicate that where a trade union is required to bring its application under sec­tion 144(1) of the An it must meet the requirements of that section, it also emphasizes that if sec­tion 144(1) is inapplicable (as is the case here), "the Board's long standing policy that where an applicant seeks to displace an incumbent bargaining agent and where a Collective Agreement is in

force, the appropriate bargaining unit is a unit described in the collective agreement between the employer and the incumbent" continues to be applicable.

20. Finally, in response to the position of counsel for the Sheet Metal Workers that the CLAC could not be certified for a province-wide bargaining unit but could only be certified on a geographic i.e. Board area basis, counsel for the CLAC submitted the decision of the Board in Ben Bruinsma and Sons Limited, [1984] OLRB Rep. Nov. 1542. In that case, the CLAC had been cer­tified for a limited geographic area, but by voluntary recognition had expanded the geographic scope of the bargaining unit to all of Ontario. At page 1545 the Board stated that:

Further, there is nothing in the Act which prevents a trade union that has been certified by the Board with respect to a limited geographic area from entering into a voluntary agreement with the employer to expand the geographic scope of the unit.

The Board went on to state at page 1548:

Having regard to all of the foregoing, we are satisfied that CLAC currently represents an "all employee" bargaining unit of the respondent's employees across the province of Ontario. In these circumstances, and given both the provisions of section 144(1) of the Act, as well as the Board's general policy in displacement situations of retaining the existing geographic scope of the bargaining unit, we are satisfied that the appropriate bargaining unit with respect to both applications before us is a unit which encompasses the entire Province of Ontario, including the counties of Essex and Kent.

21. Counsel on behalf of the intervener Reitzel supported the position of counsel for the CLAC. He argued that the two important matters to be balanced in this instance were (a) this par­ticular employer's interest in ensuring that employees were represented by the trade union of their choice and (b) the interest of employers in the construction industry in ensuring that the fabric of provincial bargaining be maintained. It was his position that those two objectives could be met by permitting the CLAC to displace the Sheet Metal Workers in the ICI sector of the construction industry in the Province of Ontario.

22. In reply counsel for the Sheet Metal Workers submitted that the ratio of Matterhorn Construction (Hamilton) Limited was simply that, in the area of concrete forming, it was unneces­sary for the applicant Local 183 of the Labourers' International Union of North America, (LIUNA) to bring its application for certification in conformity with the bargaining unit descriptions specified in section 144(1) and 144(3) because LIUNA Local 183 was not a trade union represented by an E.B.A. in respect of employees engaged in concrete forming construction. It was submitted that the quote from that decision referred to in paragraph 19 herein had to be read in context of the fact situation. It was submitted that the decision therefore did not stand for the proposition that the Board's policies which predated the enactment of the provincial wide bargaining provisions of the Act survived the enactment of section 144.

23. In response to the "democratic principle" espoused by counsel for the CLAC and referred to in Duron Ontario Limited, counsel submitted that the democratic principle had itself been affected by the enactment of section 144. In light of section 144 and the Board's jurispru­dence regarding the application of section 144 it was impossible for employees to cross craft lines and to be represented by another craft union in the ICI sector of the construction industry in the province of Ontario. It was further submitted that, in circumstances such as these, employees do in fact have a choice as to which union they wish to have represent them. If employees want to be in a craft unit they will have to be represented by a craft union, if they don't want to be in a craft unit they can choose to be represented by a non-craft union which must also represent all other trades at work on the date of application. It was further submitted that if the CLAC was successful in its position before this Board, certain employees would in effect become a "craft unit" without being represented by a craft union. Similarly, the CLAC would in effect obtain a provincial ICI bargain­ing unit without any of the encumbrances or obligations imposed upon those craft unions which are A.B.A.'s of the E.B.A. (or the E.B.A. itself).

24. Finally, counsel reiterated that it was a matter of the Board's discretion to determine the appropriateness of the bargaining unit where the application was made under section 144(5). It was his position however that in light of the "evolution" of the Board's jurisprudence after the enactment of section 144, the Board's policy regarding displacement applications could not and should nor survive in circumstances such as these. Counsel submitted that, in the exercise of our discretion we ought not to let the CLAC obtain "through the back door" a bargaining unit it would not otherwise be en titled to if this were a fresh application for certification rather than an applica­tion to displace in existing unit.

25. Having thus set out the various submissions of the parties we can now turn to our analy­sis and decision in this matter. The issue before us revolves solely around a matter traditionally viewed as a matter involving the discretion of the Board, namely to determine "the unit of employ­ees appropriate for collective bargaining". The relevant provisions of the Act are found in sections 6(1), 117(f), 119(1) and 144 of the Act. These state:

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.

117.-(f) "trade union" means a trade union that according to established trade union practice pertains to the construction industry.

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 r4erence to a geographic area and it shall not confine the unit to a particular project.

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 mole 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 a tent of the employees in the bargaining unit and in so doing shall issue a certificate confined to he 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.

26. There is no dispute that the CLAC is a trade union within the meaning of section 117(f) of the Act. It is not however what is commonly referred to as a "craft union" and, as it is neither an E.B.A nor an A.B.A., it is not a union to which sections 144(1) and 144(3) of the Act apply. As section 144(3) is not applicable, the opening words of that section, namely "notwithstanding sub­section 119(1)..." are also not applicable. In resolving the issues regarding the appropriate bargain­ing unit therefore, we must consider subsection 144(5) and section 119 of the Act. In an application for certification made pursuant to subsection 144(5) of the Act, the appropriateness of the bargain­ing unit stands to be determined pursuant to subsection 6(1) of the Act. In our view, in light of the fact that this is an application in the construction industry, the provisions of subsection 119(1) sup­plement those set out in subsection 6(1).

27. We concur with the general proposition that in the exercise of the Board's discretion, in a displacement application the policy of the Board has been that the appropriate bargaining unit is the unit held by the incumbent trade union. In the absence of some clear and compelling reasons why this long standing policy of the Board ought to be disregarded, we would not lightly set aside or interfere with this well established policy. We are of the view that such clear and compelling rea­sons do exist in the circumstances of this case where we are concerned with province-wide bargain­ing in the ICI sector of the construction industry. In our opinion, the Board's general policy on dis­placement applications is not necessarily applicable in the ICI sector of the construction industry in light of the statutorily compelled scope of the incumbent's unit.

28. In an application for certification by way of displacement, the Board has stated that the established bargaining structure is prima facie appropriate - particularly in those instances where there has been a long, well established collective bargaining relationship. It is difficult to envisage any better evidence of the "appropriateness" of a bargaining unit than the situation where the par­ties to a collective agreement have developed both the bargaining unit and the bargaining structure which have proven viable over a period of time. In the present circumstances however, because the incumbent is an A.B.A., when it organizes employees in the ICI sector of the construction indus­try, the scope of its bargaining unit and its rights to represent employees in the ICI sector, and its bargaining structure with Reitzel have been predetermined by the legislature. In the ICI sector, A.B.A.'s are prevented from organizing certain employees, because of the limitations found in their provincial designations. (See Ninco Construction Ltd., [1982] OLRB Rep. Nov. 1692; Manacon Construction Ltd. [1983] OLRB Rep. March 407 and July 1104, Superior Plumbing and Heating Ltd., [19861 OLRB Rep. Nov. 1589; D. E. Witmer Plumbing and Heating Ltd., [1987] OLRB Rep. Oct. 1228.) Once organized by an E.B.A., employees are automatically plugged into the provincial agreement. Pursuant to the mandatory provisions of the Act, that collective agree­ment is a two-year agreement which expires bi-annually on the 30th day of April. We are of the view that where the legislation has, in essence, statutorily determined both the bargaining unit and the bargaining structure, the Board's policy that the incumbents' bargaining unit is prima facie appropriate, based as it is on the "history" of the collective bargaining relationship between the parties, need not necessarily prevail. The underlying assumption or rationale for the Board's dis­placement policy - the collective bargaining history of the parties, the implicit right of the parties to alter, extend or otherwise modify the bargaining unit to suit their needs - is not valid in instances where the incumbent is an A.B.A. or an E.B.A. and the raiding union is seeking to displace the incumbent's province-wide bargaining rights in the ICI sector.

29. In our opinion, the enactment of section 144 has both explicitly and implicitly restricted and fettered the Board's discretion to determine the appropriate bargaining unit when dealing with applications for certification in the ICI sector of the construction industry. The explicit fetters are found in the statutory language contained in subsection 1 to subsection 4 of section 144 and the manner in which those sections have been interpreted and consistently applied by this Board. The implicit fetters are found in both the statutory language, and the labour relations environment in which that language was originally enacted and subsequently amended, and the problems which the legislation sought to address. The legislative intent regarding province-wide bargaining in the ICI sector expressed and encompassed in the Act has led us to conclude that, where there are con­flicts or inconsistencies between the Board's usual policies or practices and the scheme of construc­tion industry certification and province-wide bargaining in the ICI sector, the latter should prevail. Before examining the scheme of application for certification in the ICI sector of the construction industry, we turn briefly to provide some historical background and labour relations context to those provisions. Both these aspects have had a considerable impact upon the policy considerations we have addressed and consequently upon the exercise of our discretion in determining the appro­priate bargaining unit.

30. Prior to the advent of province-wide bargaining, the Board certified trade unions in the construction industry only on a Board area basis. This was so whether the union was a "craft union" to which section 6(2) (now section 6(3)) applied, or a non craft union applying pursuant to section 6(1). Prior the enactment of province-wide bargaining there was also no express legislative prohibition which prevented craft unions from organizing employees who were not members of their craft. Prior to the advent of province-wide bargaining there were several hundred different bargaining structures between the various craft unions in the construction industry and the employ­ers whose employees were represented by these craft unions. The report of the Industrial Inquiry Commission Into Bargaining Patterns In The Construction Industry, May [1976] (the Franks Report) identified various problems which related directly to this multitude of bargaining struc­tures and the substantial variation in the bargaining patterns from trade to trade. Chief amongst these problems was the intra-trade and intra-regional bargaining rivalries (colloquially referred to as whip sawing and leap frogging respectively). The Franks Report identified the problem in the following terms:

In the Background Paper a tentative formulation of the problem was set Out to assist those mak­ing representations to the Commission. The problem was stated as follows:

'The problem we are confronted with is how the structure of collective bargaining in the construction industry can be changed so that those who affect bargaining and are affected by it actually do the bargaining".

This is not to say that bargaining in the construction industry is not representative, but rather that it is affected, i.e. influenced, by other bargaining situations and each bargaining situation affects other situations.

The most common example of this situation occurs in those trades where bargaining takes place with a number of locals across the province. In any particular locality bargaining in that locality is often unable to respond to local conditions because of pressures from other localities. Thus, the size of a settlement in a neighboring locality may be a more important pressure at the bar­gaining table than the fact that there is little construction activity in the locality where bargain­ing is taking place. The proper response in such a situation might be to stimulate construction activity by reducing construction costs. Thus, we are faced with a conundrum. Although the bar­gaining appears to be local, it has actually been determined by bargaining elsewhere.

Further, although a particular locality may think that during its collective bargaining it is only dealing with its own problems, there is frequently no way that it can prevent its bargaining from affecting bargaining in other localities. These effects on neighboring areas are not in them­selves wrong. Indeed, no one ever bargains in isolation from other and it would be impossible to try to bargain in a vacuum. The problem arises when the present bargaining structures prevent those involved in collective bargaining from responding to the problems they are faced with in making a good collective agreement.

31. In addition, the Franks Report identified the problems of the "upsetting project" and "the need to maintain flexibility in the system". "Flexibility" and the separate bargaining struc­tures which had developed in the interest of flexibility, resulted in further fragmentation of the trades or in the development of new "sectors". Those solutions however ran "the risk of creating parallel collective agreements to cover the same work" and increased the number of bargaining sit­uations.

32. Legislated province wide bargaining pursuant to the Labour Relations Act was designed to systematically reduce the number of bargaining situations in the construction industry. It was designed to reduce and rationalize the number of bargaining patterns and alleviate and address these three principle problems that had plagued the industry and which had caused numerous work stoppages, and bitter conflict and competition between and amongst unions and employers.

33. Legislated province wide bargaining consolidated bargaining structures in the construc­tion industry and raised the locus of negotiations to the provincial level. However, only the "craft" unions were directly affected by the concept of province-wide bargaining as the several hundred bargaining situations of these unions were reduced and rationalized to the present 26 designated province-wide structures. Independent "non-craft" unions such as the CLAC, which also orga­nized in the construction industry were not directly affected by province-wide bargaining. Their status and existing bargaining structures were explicitly maintained through the enactment of the provision currently found in section 144(5). The CLAC, which was neither an affiliated bargaining agent nor an employee bargaining agency derived neither the benefits of the province-wide bar­gaining nor was it required to comply with the obligations, duties and responsibilities imposed upon the A.B.A.'s or E.B.A's subject to the province-wide bargaining scheme.

34. Notwithstanding counsel's submissions upon the issue, we consider it inappropriate to enter into the "fairness" debate, or the debate as to whether an A.B.A. (sometimes also referred to as a craft union) or a non-A.B.A., non-craft union has the greater advantage as a result of the statutory provisions of section 144. Undoubtedly many different views can be expressed upon those matters. Our role, however, is to apply the language found in the Act in a manner consistent with the purpose of the Act and the legislative intent as expressed in section 144. We do note however the apparent quid-pro-quo of the statutory scheme. In the ICI sector, the E.B.A's and the A.B.A.'s were statutorily granted a province-wide bargaining unit (something which the Board would not normally have granted them but for the legislative scheme) and were granted the right to apply on behalf of all A.B.A.'s of the E.B.A (again something which the Board would not usually have granted but for the legislative scheme). In exchange the E.B.A's or A.B.A.'s are restricted in organizing or representing employees who are not members or who do not "belong" to their craft or who do not fall within their designation. The CLAC is not subject to this quid-pro-quo. The CLAC was not statutorily granted the right to represent a province-wide bargaining unit, but nei­ther is it prohibited from organizing or representing specific employees.

35. In our view, experience has shown that the current provisions relating to province-wide bargaining in the ICI sector of the construction industry have significantly alleviated the problems identified in the Franks Report. Although there are both proponents and detractors of the current system, it is our view that these provisions have indeed furthered harmonious relations between employers and employees and their trade unions. A primary policy consideration in the exercise of our discretion therefore has been to avoid results which are, or can be, harmful or detrimental to province-wide bargaining in the ICI sector. For this reason we have concluded that the present scheme of certifying trade unions in the construction industry which this Board has developed (in a manner consistent with the statute and the legislative intent as found in the statute) must prevail. Thus, where there is conflict between the Board's usual or normal application of section 144 to cer­tification applications in the construction industry and the displacement policy, wherever possible, the former will take precedence.

36. The Board has interpreted section 144 as an exhaustive code applicable to all applications for certification in the construction industry brought before the Board. (see Clarence H. Gra­ham Construction Limited, [1981] OLRB Rep. Sept. 1195 at paragraphs 6 and 8). Pursuant to that exhaustive code, a trade union which is an A.B.A. of a designated E.B.A. must bring its applica­tions for certification under subsection 1 of section 144 if it relates to the ICI sector, or subsection 3 if it does not. A trade union which is not represented by a designated E.B.A. may bring an appli­cation under subsection 5 without reference to sector. In this latter instance the bargaining unit is normally defined as (1) all trades at work on the date of application, in (2) all sectors of the con­struction industry and (3) in a geographic area described by reference to a Board area.

37. Although generally the bargaining unit normally found to be appropriate for the appli­cant when it applies pursuant to section 144(5) is all trades at work in all sectors in a Board area, we are mindful of :he fact that this is not a "fresh" application for certification but rather is an application for certification by way of displacement in which the CLAC is seeking to obtain bar­gaining rights held by an incumbent trade union. The issue to be determined therefore is whether CLAC's "usual" or "normal" bargaining unit can "fit" within this displacement application with­out doing violence to the scheme of province-wide bargaining in the ICI sector. Put differently, if CLAC cannot obtain a craft bargaining unit, confined to the ICI sector and provincial in scope if it applied for certification at first instance, can it obtain such a unit when it applies for certification by way of displacement? We are of the view that CLAC cannot by way of displacement obtain bar­gaining rights for a bargaining unit circumscribed by such parameters. We are also of the view however, that an application for certification by way of displacement is something quite different from a "fresh" application for certification and that different considerations do and should apply. For the reasons set out below we have concluded that in the circumstances of this case the CLAC can only obtain bargaining rights for a bargaining unit consisting of sheet metal workers and regis­tered sheet metal apprentices employed in the ICI sector of the construction industry in Board Area 6.

A. In a displacement application can the CLAC obtain bargaining rights for a unit of employees, less than a unit of all trades at work on the application date?

38. The CLAC is not an A.B.A. or a "craft" union and is not normally certified to repre­sent only members of a "craft" where there are other trades at work on the application date. Although there are no provisions in the Act, and in particular there are no prohibitions contained in section 144(5) which prohibit the CLAC from representing a unit of employees described in "craft" like terms, in keeping with the spirit and intent of province-wide bargaining (which is statu­torily imposed upon only the A.B.A.'s or E.B.A's) and in recognition of the fact that, in-so-far as the CLAC was concerned province-wide bargaining merely preserved the status quo, in applica­tions for certification brought by the CLAC, the Board has traditionally described the CLAC's bargaining unit as an "all employee" type unit with specific reference to the unrepresented trades at work on the date of application. We would not have departed from that policy, notwithstanding the fact that this is an application for certification by way of displacement, but for the fact that requiring the CLAC to take an "all trades at work on the application date" would result in a num­ber of inconsistent and anomalous results.

39. First, we are of the view, and it has long been the policy approach of the Board that an incumbent trade union should not be deprived of the bargaining rights it has acquired unless a vote is conducted among the employees whom it represents, and a majority of those employees have expressed their wish that they no longer wish to be represented by the incumbent. For this reason the Board has not, in the past, permitted a raiding union to "enlarge" the bargaining unit and dis­place an incumbent solely on the strength of its support in the "enlarged" or "add-on" portion of the unit.

40. The policy and rationale of the Board in this regard was followed and succinctly summa­rized by the Board in Toronto East General and Orthopaedic Hospital Inc. [1981] OLRB Rep. Feb. 225.

9. Where there is a request for a pre-hearing representation vote on a displacement application, the Board's standard practice is to require the applicant to accept as a voting constituency the bargaining unit represented by the incumbent union. (See, for example, Ethyl Canada Inc. [1979] OLRB Rep. Oct. 985; The Wellesley Hospital [1976] OLRB Rep. Feb. 45; Roland Lefeb­vre Lathing Limited [1966] OLRB Rep. May 140.) If the applicant seeks to enlarge the bargain­ing unit the Board will establish two voting constituencies, the incumbent unit as one and the add-one segment as the other. To be entitled to a vote in each, the applicant must demonstrate membership support of 35 per cent in each voting constituency. (5ee Ethyl Canada Inc., supra).

10. After a pre-hearing representation vote has been taken the Board determines the appropri­ate bargaining unit. Normally the bargaining unit found to be appropriate in a displacement sit­uation is the incumbent's bargaining unit. The Board may amend the unit, however, in the event the applicant wins to [sic] vote, or votes if more than one voting constituency has been estab­lished. (See Roland Lefebvre Lathing Limited, supra.) In Wellesley Hospital, supra, however, the Board refused the company's request to carve Out of the incumbent's unit a group of employees. The Board expressed the view that when an applicant wins a displacement vote it is at least entitled to the same unit as was represented by the incumbent union.

11. In a displacement application, however, the Board's general practice is to view the estab­lished bargaining structure as prima facie appropriate, particularly where the parties have them­selves incorporated it into a collective agreement. In Milltronics Limited [1980] OLRB Rep. Jan. 56 the Board refused to accede to the employer's submission that a unit larger than the existing unit was appropriate. At p. 58 the Board said,

Usually ... a "raiding union" must "take" what the incumbent union has.

(See also Electrohome Limited. [1967] OLRB Rep. Dec. 854).

14. In considering a displacement application for certification the Board has to be sensitive to the existence of an established bargaining relationship. The Board's practice of requiring the applicant to "'take' what the incumbent has" emanates from the belief that the employees in an existing bargaining unit should alone decide, as a separate group, whether they want to change bargaining agents. In Toronto Star Limited, [1974] OLRB Rep. July 416 the vice-chairman, in his dissent on another point, explained the rationale supporting the Board's general practice. At p. 417 he said,

The reason for holding as appropriate the bargaining unit described in the scope clause of a collective agreement in a displacement application is because of the contin­ued viability of the community of interests of employees affected by the application. It would be contrary to the efficacy of a past history of viable collective bargaining to upset the integrity of that bargaining unit without first soliciting the views of the employees affected.

15. In Barnet-McQueen Co. Ltd., 59 CLLC ¶18,139 the Board was asked by the displacing union to find that a unit larger than the incumbent's unit was appropriate. The Board refused the request explaining that if it were to find a larger unit appropriate it would be possible for a union to displace another solely through its strength in the add-on portion of the unit and despite the views of the employees in the original or incumbent's unit. In Barnett-Mc Queen the Board dismissed the application because the applicant did not have sufficient membership sup­port in the existing unit for a representation vote.

16. The instant case presents the Board with the reverse of the situation in Barnet-Mc Queen. The applicant union has in excess of 55 per cent membership support among the employees in the incumbent’s bargaining unit. In the other segment of the enlarged bargaining unit for which it applies it does not have sufficient membership strength for a representation vote. If both the technical paramedical and professional paramedical segments were considered together as one bargaining unit, however, the applicant would have more than 45 per cent membership support.

17. Can the applicant union in a displacement application for certification sweep in a group of previously unrepresented employees solely on the strength of its membership support in the incumbent's unit and in the face of minimal support in the add-on group?

After referring to several cases the Board concluded:

22. ... In the Board's opinion it would be unfair, inappropriate and counter to sound labour relations to suddenly place the professional paramedical group of employees in a bargaining unit with the technical paramedical employees, thereby opening the door to their being represented by the applicant union, without giving them an opportunity to decide, as a separate group, if they want union representation.

23. For the reasons canvassed above the bargaining unit found appropriate by the Board in this case does not include the employees not covered by the incumbent unit. The Board will not sweep in this group of employees without regard to their wishes. The Board, therefore, will treat the add-on segment or the portion of the unit applied for by the applicant which does not correspond to the incumbent bargaining unit as, virtually, the object of a separate application for certification.

[Emphasis added]

The Board ultimately concluded that as less than 45% of the employees in the "add-on" unit were members of the trade union on the terminal date, the application in respect of those employees was dismissed.

41. We concur with the view that an incumbent trade union should not be deprived of the

bargaining rights it has acquired unless a vote is conducted among the employees whom it repre­sents and a majority of those employees have expressed their view that they no longer wish to be represented by the incumbent. It is for this reason that the Board has always ordered a representa­tion vote before terminating the bargaining rights of any trade union. We also concur with the view implicit in the dissent of the Vice-Chair in Toronto Star Limited, [1974] OLRB Rep. July 416 that the community of interest of employees already represented by an incumbent union is separate and distinct from the community of interest of employees unrepresented by any trade union. In a dis­placement application these two factors (i.e. a trade union should only be deprived of its bargain­ing rights by a majority vote conducted amongst employees it represents, and a separate commu­nity of interest of employees represented by an incumbent trade union) militate against finding as appropriate, a unit which is greater than the one found in the existing collective agreement between Reitzel and the Sheet Metal Workers. We are of the view that an "all trades at work on the application date" unit is not appropriate in this case.

42. In a displacement application, where a pre-hearing representation vote is requested, once the Board has determined the appropriate bargaining unit pursuant to section 9(4), the Board conducts a representation vote amongst the employees in the bargaining unit it has found appropri­ate. The vote is held pursuant to section 7(2) and 7(3) of the Act. If we were to accept the inter­vener's submissions that in a displacement application the CLAC is required to represent a broader "all trades at work" bargaining unit, we are immediately faced with the problem of what choice should be on the ballot in any vote conducted. In a displacement application the choice provided to employees represented by the incumbent is whether they wish to be represented by the incumbent trade union or by the raiding trade union (in this case the choice being either Sheet Metal Workers or the CLAC). In a displacement application employees are not provided with the "non union" option. Employees who wish to terminate the bargaining rights of an incumbent without choosing a new union to represent them must do so pursuant to the provision of section 57 of the Act. On the other hand, employees not currently represented by the incumbent do not have the option of choosing the incumbent. In any ballots cast by such employees the vote option would be whether such employees wish to be represented by the raiding union (the CLAC) or not. We note parenthi­cally that in any event the Minister's designation order pertaining to the Sheet Metal Workers, and the manner in which this Board has interpreted and applied the designation orders in the context of applications for certification in the construction industry, restrict the Sheet Metal Workers from representing employees other than sheet metal workers and registered sheet metal apprentices in the ICI sector in the construction industry. Thus, even if the Board were prepared to deviate from its normal or usual voting policies, in this instance employees of Reitzel other than sheet metal workers or registered sheet metal apprentices could not, in any event, be given the option of choosing the Sheet Metal Workers as their bargaining agent.

43. In determining whether a broader or enlarged bargaining unit such as the one urged upon us by the intervener is appropriate, we have considered and rejected the notion that the vote held in the bargaining unit determined to be appropriate by the Board could be counted sequen­tially. If counted sequentially, the votes of the Sheet Metal Workers currently represented by the intervener (i.e. voting constituency #1) could be counted first and only if a majority voted in favour of the raiding union (i.e. the CLAC) would the ballots cast by those in voting constituency #2 be counted. Although counting the votes sequentially would address the two concerns raised by the Board in Toronto East General and Orthopaedic Hospital Inc., supra, we have determined that such an option is untenable. As a matter of principle, employees not currently represented by an incumbent should not be disenfranchised from voting as members of a bargaining unit found appropriate by the Board by a minority of that bargaining unit. Their right to have the ballots they cast counted should not be dependent on how other employees vote.

44. Moreovcr, we have serious reservations that the Board has the jurisdiction to conduct or count such a vote in this manner. In our view the statutory language of section 7(2) and section 7(3) indicates that the Board direct that a representation vote be taken of the employees of the bargaining unit. Tie majoritarian principle applied to such a vote ensures that if a majority of all employees in that bargaining unit desire to be represented by a trade union the Board shall certify the trade union. Tie language of section 7(3) is mandatory. If the majority of employees in the bargaining unit (which, if we were accept counsel's submissions would consist of all trades at work on the application date) voted in favour of a particular choice, the legislation dictates the results which must flow from such a result. The problem can best be illustrated by applying possible results to the facts at hand.

45. In this case, on the application date, Reitzel employed four sheet metal workers or reg­istered sheet metal apprentices in the ICI sector (represented by the intervener) and seven other employees employed as pipe fitters, journeymen air conditioning refrigeration mechanics, appren­tice air conditioning refrigeration mechanics and labourers. If, upon the taking of a representation vote, the CLAC had the support of the majority of the employees in this larger bargaining unit of eleven, section 7(3~ dictates that the CLAC must be certified as a bargaining agent of the employ­ees in the bargaining unit. This would be so regardless of the fact that this majority support may be achieved only because the CLAC had the support of six or seven of the currently unrepresented other trade employees, while none of the sheet metal workers or registered sheet metal apprentices voted in favour of :he CLAC or desired to change their bargaining agent. Such a result would be contrary to the Board's long standing policy that a trade union should only be deprived of its bar­gaining rights by a majority vote conducted amongst the employees it represent. The other possible result is equally untenable. In this case, if the CLAC must obtain majority support of the enlarged unit consisting of "all trades at work" it could lead to the anomalous situation in which the four sheet metal workers would be unable to change their bargaining agent because the seven unrepre­sented employees do not wish to be represented by any bargaining agent. The four sheet metal workers would then continue to be represented by a bargaining agent whom they no longer desire. The "fate" of these four sheet metal workers would then effectively be determined by the numeri­cal superiority of the seven employees whom, in this case, the CLAC has not sought to represent.

46. We not t. also that, if we were to determine that on a displacement application the CLAC could not ta ~e the existing unit but must acquire bargaining rights for an enlarged unit con­sisting of all trades at work on the application date, then logically the reverse should also be true. If the CLAC must take an enlarged bargaining unit on a displacement application, it follows that where the CLAC applies for certification it can also seek certification for an enlarged unit, includ­ing employees already represented by a craft union if its application for certification in respect of these latter employees is otherwise timely pursuant to subsections 5(2),(3) ,(4),(5) or (6). Thus, if the CLAC sought to be certified for a bargaining unit consisting of all trades at work, it would logi­cally flow that by sheer numerical strength in that constituency, the CLAC might be able to "sweep in" the employees represented by the A.B.A. or craft union. Applied to the facts at hand for example, if the CLAC had applied to be certified for all trades at work which were not already represented by a union during the "open period" of the sheet metal workers ICI collective agree­ment, and had sought to include those sheet metal workers in the bargaining unit, the natural and logical consequence of counsel's argument is that, if the CLAC were able to show that more than 55% of the employees in the bargaining unit were members of the CLAC, the Board could certify the CLAC for the enlarged unit. Again, even if a vote were conducted and the CLAC had the sup­port of a majority of the employees in this larger unit it would be certified for the larger unit (re­gardless of the fact that the majority support may be achieved only because, it had the support of all seven otherwise unrepresented trade employees and none of the four "craft" employees desired to change their bargaining agent). Such results would be equally anomalous as the possible results which could flow from the counting of the ballots cast in the "all trades at work" bargaining unit which the intervener has proposed as appropriate.

47. Finally, we are of the view that granting the CLAC a unit described in "craft" like terms when it applies for certification by way of displacement is not inconsistent with the scheme of province wide bargaining. In fact, there are no provisions in the Act which prohibit the CLAC from representing a unit of employees described in "craft" like terms. Such a result is not impossi­ble on a "fresh" application. In Duron Ontario Limited, supra the matter was put as follows:

12. Trade unions such as the Christian Labour Association of Canada, the Christian Trade Unions of Canada, the National Council of Canadian Labour and the Lumber, Sawmill Workers Unions are not craft trade unions and do not satisfy the provisions of section 6(2) [now section 6(3)]. The appropriate bargaining units for such trade unions are determined pursuant to section 6(1). In the event that such trade unions apply for certification in situations where an employer has only employees of a particular craft or classification at work on the date of filing, then such trade union is usually granted certification with respect to such particular craft or classification pursuant to section 6(1), for example, "carpenters and carpenters' apprentices" or "electricians and electricians' apprentices". Such bargaining units resemble in description similar craft units which in appropriate situations are determined pursuant to section 6(2). [now section 6(3)]. This resemblance, however, is fortuitous and results from an employer having only one craft or clas­sification at work on the date of filing.

B. In a displacement application can the CLAC obtain bargaining rights for only the ICI sector of the construction Industry?

48. The CLAC is neither an E.B.A nor an A.B.A.. Therefore, it is not normally granted bargaining rights limited to only the ICI sector. The Board's usual practice is to grant the CLAC bargaining rights for a particular Board area without reference to sector. There are no provisions in the Act which prohibit the CLAC from acquiring bargaining rights in respect of persons employed in the ICI sector of the construction industry. Indeed, that the CLAC can obtain bar­gaining rights for employees employed in the ICI sector is well established. The Board normally grants certificates to the CLAC without reference to sector and in so doing includes employees employed in the ICI sector of the construction industry.

49. We have determined that to grant the CLAC bargaining rights limited to the ICI sector where it applies for certification by way of displacement is consistent with the Board's application of its displacement policy and is neither harmful nor inconsistent with the concept of province-wide bargaining. In our opinion, an analysis similar to the analysis made in paragraphs 42 to 46 is equally applicable to the determination as to whether the CLAC must seek bargaining rights for all sectors or whether it can acquire rights for only the ICI sector.

50. In the present case, the Sheet Metal Workers have been granted two separate certifi­cates - one confined to the ICI sector while the other certificate relates to all other sectors in Board Area 6. The CLAC has sought to displace the Sheet Metal Workers only in respect of its ICI bar­gaining rights. It would therefore follow that only the sheet metal workers or registered sheet metal apprentices employed in the ICI sector should determine whether the incumbent sheet metal workers retain or lose the bargaining rights they have acquired. In this instance, if Reitzel had employed seven other sheet metal workers or registered sheet metal apprentices (as opposed to the pipe fitters, labourers, etc. referred to in voting constituency #2), but those sheet metal workers had been employed in the residential sector of the construction industry, it would be equally anom­alous if, by sheer numerical strength, those seven residential sheet metal workers or registered sheet metal apprentices were able to determine whether or not the sheet metal workers or regis­tered sheet metal apprentices employed in the ICI sector would or would not continue to be repre­sented by the incumbent trade union.

51. We have made the determination that the CLAC can obtain bargaining rights limited to the ICI sector with some hesitation. Our concern is that such a limitation may involve the Board in being required to make sectoral determinations where the CLAC has applied to displace the bar­gaining rights held by an incumbent A.B.A. or E.B.A. Such sectoral determinations can and inevi­tably do prolong the certification process in the construction industry. This very problem was iden­tified by the Report Concerning Representations By The Toronto - Central Ontario Building in Construction Trades Council on Bill 204, an act to amend the Labour Relations Act (The Adams Report). The problem subsequently led to the amendments to the province-wide bargaining provi­sions and in particular the enactment of section 144(2) which enables the Board to grant two certif­icates to an applicant A.B.A. or E.B.A on behalf of all A.B.A.'s without embarking upon a secto­ral determination. Notwithstanding this problem we have determined that, when balancing these competing considerations, it is more desirable that in a displacement application employees be able to freely choose which trade union, if any, they wish to have represent them. For these reasons we have determined that the CLAC can, in a displacement application, acquire bargaining rights lim­ited to the ICI sector. The natural result is that the Sheet Metal Workers retain their current bar­gaining rights to represent all sheet metal workers and sheet metal apprentices in all sectors of the construction industry excluding the ICI sector in Board Area 6. The CLAC has not sought in its application to acquire those bargaining rights.

C. In a displacement application, can the CLAC obtain bargaining rights for the province of Ontario?

52. We have answered this question in the negative. As the CLAC is neither an A.B.A. nor an E.B.A it cannot obtain province-wide bargaining rights by way of an application for certifica­tion notwithstanding that such application is a displacement application. In our view to grant the CLAC a province-wide bargaining unit is both inconsistent with the provisions of the Act and is harmful to the fabric of province-wide bargaining as it could lead to a recreation of the types of problems identified by the Franks Report.

53. Prior to the advent of province-wide bargaining the Board would not grant province-wide bargaining rights to any trade union. Normally, Certificates were generally restricted to a specified Board are a. The introduction of province-wide bargaining statutorily changed the Board's approach to certifications in the ICI sector of the construction industry, but did so for A.B.A.'s and E.B.A's only. The CLAC merely maintained its status-quo and continues to be certi­fied on a Board area basis.

54. Although there are no clear restrictions in section 144(5) which prohibit the CLAC from obtaining province-wide bargaining rights, in our view such a result would be inconsistent with the scheme of province-wide bargaining. As has already been indicated we are of the view that the scheme of province-wide bargaining was a result of a certain quid-pro-quo. Although the E.B.A's and the A.B.A.'s were statutorily granted the right or benefit to represent employees and negotiate on a province-wide basis, the "price" paid for this right was the very checks and balances found in the province-wide provisions of the Act. The effect of the designation orders issued pursu­ant to section 139(1) of the Act, designates the trades which "belong" to each E.B.A and A.B.A. so that E.B.A's and A.B.A.'s can only represent those employees who are in the trade they have been designated to represent. A two-year province-wide agreement is mandatory. Section 146(2) specifies that there can only be one such province-wide collective agreement. A strike by an E.B.A must include all A.B.A. 's. A lock-out by an employer bargaining agency must be taken by all employers represented by the employer bargaining agency. Both parties to the province-wide agreement are statutorily regulated in respect of ratification and voting procedures. The CLAC is not subject to any of these checks and balances. It has not paid the "price" to obtain province-wide bargaining rights. Moreover, the possibility of reintroducing intra-trade and intra-regional bargain­ing rivalries if the CLAC were granted province-wide bargaining rights, notwithstanding that it is not subject to the same checks and balances as the E.B.A's or A.B.A.'s, militates against finding a province-wide unit appropriate.

55. In determining that the CLAC cannot acquire a province-wide bargaining unit we are faced with balancing the competing interest of the parties and the apparently conflicting policies of the Board. There are some troublesome consequences of our determination in this regard. Chief amongst those is that it creates an apparently different approach for terminating the bargaining rights for an incumbent trade union depending on whether the application to terminate the bar­gaining fights is made by an employee in the bargaining unit pursuant to section 57 and section 123, or whether the application is made by a raiding trade union which seeks to displace the incum­bent pursuant to section 144(5).

56. An application for declaration terminating the bargaining rights of the trade union may be made by any of the employees "in the bargaining unit defined in the collective agreement". Applications under section 57 and section 123 involve a claim "for declaration that the trade union no longer represents the employees in the bargaining unit". In applications made pursuant to sec­tion 57 which relate to the ICI sector, the Board has previously determined that the "bargaining unit" consists of all employees of the employer employed in the ICI sector of the construction industry in the Province of Ontario. In so doing the Board has rejected the notion that bargaining rights could be terminated for a fragment of what the Act statutorily requires to be treated as a sin­gle bargaining unit. Thus, in Jan Peters Limited, [1980] OLRB Rep. May 714 at paragraph 4 the Board stated:

The effect of this provision [now section 137 (2)] is to extend by operation of law recognition of the respondent trade union from the counties of Waterloo and Wellington to the whole of the Province of Ontario, that is, to geographic jurisdiction of Local 793, but only for bargaining rights in the industrial, commercial and institutional sector of the construction industry. Since the bargaining unit in the provincial agreement affecting the employer in this case~ has been modified by operation of law, we are of the view that the correct bargaining unit for termination purposes in this application is the bargaining unit as amended by section 125(2). [now section 137(2)]. To suggest otherwise would lead to an untenable position. On May 1st, the bargaining rights of the respondent became province-wide for the industrial, commercial and institutional sector of the construction industry. If this Board were to terminate bargaining right for the counties of Waterloo and Wellington, the bargaining right would continue to exist for the remainder of the province and then the new subsection 2 of section 125 [now section 137(2)] would deem those bargaining rights to extend recognition back into the counties of Waterloo and Wellington. Clearly such a result would be to render this application meaningless.

That application as originally framed involved only the termination of the bargaining rights of the craft union in the ICI sector in a bargaining unit limited to employees working within "the regional Municipality of Waterloo and occasionally in the Cities of Guelph, Stratford and Woodstock." By reason of its application of section 125(2) [now section 137(2)] of the Act, the Board acknowledged that it was "changing the scope of this application to include the whole of the province" and went on to direct the vote consistent with that broader "scope". (see also Clarence H. Graham Con­struction Limited, [1982] OLRB Rep. Aug. 1147.)

57. In view of these authorities it is somewhat inconsistent to find that the CLAC can only displace a provincial ICI unit on a Board area basis, while employees in a provincial ICI bargaining unit cannot terminate those provincial ICI bargaining rights on a Board area basis but must obtain the support of not less than 45% of the employees of the employer employed in the ICI sector of the construction industry throughout the Province of Ontario.

58. Similarly in the present case, if the CLAC were to successfully displace the Sheet Metal Workers in Board area 6 only, the bargaining rights of the Sheet Metal Workers in the ICI sector of the constructions industry outside of Board area 6 would be preserved. Employees of Reitzel employed in the ICI sector of the construction industry would thus find themselves represented by one bargaining agent and working pursuant to one collective agreement in Board area 6, while they were represented by another bargaining agent and working pursuant to another collective agreement (the provincial agreement) outside Board area 6.

59. Finally, the natural result which flows from our determination is that, in those instances where an employer employs persons in the ICI sector in more than one Board area on the date of application, the trade union seeking to displace another, need organize only a portion of the employer's workforce. It is precisely that type of undue fragmentation which the displacement pol­icy of the Board seeks to avoid.

60. Notwithstanding these factors however, we have determined that in the present circum­stances, the CLAC's acquisition of bargaining rights, ought to be restricted on a Board area basis. In our opinion there are differences between employees terminating the rights of an E.B.A or A.B.A. pursuant to section 57 and section 123, and a trade union terminating those bargaining rights by way of displacement application pursuant to section 144(5). Amongst those differences are the fact that section 137(2) of the Act deems an employer to have recognized all of the A.B.A.'s of an E.B.A. Thus, terminating the bargaining rights of only one A.B.A. would be meaningless as section 137(2) would deem the employer's recognition of all other A.B.A.'s to include, once again that A.B.A. for which bargaining rights have been terminated. Similarly, although it may not be desirable to create a situation whereby employees are represented by one bargaining agent in one Board area and another bargaining agent outside that Board area, that is a result which is not uncommon and which may occur in any event by reason of the time in which ICI province-wide bargaining rights are acquired by an E.B.A or A.B.A.. That result flows from the statutory provisions. If the Act and in particular from the concluding words of section 137(2) which indicate that the employer is deemed to have recognised all of the A.B.A.'s to represent employ­ees of the employer employed in the ICI sector in their respective geographic jurisdiction except those employees for whom a trade union other than one of the affiliated bargaining agents holds bargaining rights". In this instance, in the event the CLAC is successful in its application to displace Sheet Metal Workers in the ICI sector in Board Area 6 only, that provision protects the bargaining rights of the designated affiliated bargaining agents representing Sheet Metal Workers or registered sheet metal apprentices in areas other than Board area 6.

61. Finally, in determining the appropriate bargaining unit, the Board is inevitably faced with balancing competing interest and various policy objectives. In doing so, it is not unusual for some violence to be done to some interest or some policy objective. This is particularly true in this instance where the Board is faced not only with balancing the usual interest of the parties appear­ing before it, but where the Board is also subject to the statutory fetters and parameters imposed upon its discretionary authority by the legislature in the area of province-wide bargaining in the ICI sector of the construction industry. On balance we are of the view that to permit the CLAC to acquire only bargaining rights for sheet metal workers employed in the ICI sector in Board area 6, does the least amount of violence to any Board policy and is consistent with the provisions of the Labour Relations Act and in particular those provisions relating to province-wide bargaining in the ICI sector.

62. In the result therefore we find that, in this displacement application, the appropriate bargaining unit is a bargaining unit consisting of all journeymen sheet metal workers and registered sheet metal apprentices in the employ of the respondent in the industrial, commercial and institu­tional sector of the construction industry in Board Area 6 (the Regional Municipality of Waterloo except that portion of the geographic township of Beverley annexed by North Dumfries Township) save and except non working foremen and persons above the rank of non working foreman. The parties have agreed that Reitzel did not employ any persons outside Board Area 6 on the date of application. The only sheet metal workers employed by the respondent in the ICI sector of the construction industry where those at work in Board Area 6, and where employees who were eligi­ble to vote in voting constituency #1. We therefore direct that only the ballots cast by employees in voting constituency #1 be counted.