Labourers International Union of North America, Local 1081 v. Rockwall Concrete Forming (London) Limited, 1988 CanLII 3729

[1988] OLRB Rep. September 963

3202-86-M; 0723-88-G Labourers International Union of North America, Local 1081, Applicant v. Rockwall Concrete Forming (London) Limited, Respondent

BEFORE: R. 0. MacDowell, Alternate Chair, and Board Members M. Rozenberg and E. G. Theobald.

APPEARANCES: S. B. D. Wahl for the applicant; W. Thornton for the respondent; L. C. Arnold for Labourers' Local 1059.

DECISION OF THE BOARD; September 26, 1988

I

1. These are two applications under section 124 of the Labour Relations Act which were scheduled for hearing together. In each case, the applicant, "Local 1081", contends that the respondent "Rockwall" has failed to comply with the terms of a collective agreement by which it is bound. Local 1081 contends that Rockwall is obliged to apply the Labourers' provincial ICI agreement to certain construction projects in Cambridge, Ontario.

2. Rockwall replies that it is not bound by the ICI provincial agreement either in its "home base" of London, Ontario, or anywhere else in the province. Rockwall maintains that it has no bargaining relationship with Local 1081. Its only collective agreement is a so-called multi-sector "formwork agreement" with Labourers' Local 1059, and that applies only to the London area (i.e., Board Area #3). In Rockwall's submission, outside Board Area 3 or when engaged in other than formwork, all of its construction activities are "non-union".

II

3. The hearing in this matter was completed on July 18, 1988. The parties agreed that the Board should first address the "threshold issue" of whether Local 1081 had bargaining rights, and whether the provincial ICI agreement might apply to a construction l)roject in Cambridge. It was conceded that if Local 1081 did not have bargaining rights, or the provincial ICI agreement could not apply, there would be no contractual foundation for the present application. The parties further agreed to leave to a later date the characterization of the projects in question and, in particular, whether one or more of them should be regarded as "residential" rather than "ICI" construction.

III

4. Following the completion of the evidence, James McKinnon, an officer of Labourers' Local 1059, advised the Board that he wished to retain counsel and make submissions. Local 1059 had been represented by counsel early on in these proceedings and has continued to receive notice throughout; however, by letter dated March 16, 1987, the then solicitor for Local 1059 indicated that he was no longer acting on its behalf. Thereafter, Local 1059 was not represented, nor did it seek status as an intervener. It was not until the case was completed and the active parties moved to argument that Local 1059 requested the opportunity to address the legal issues raised in this case.

5. Rockwall had no objection to hearing representations from Local 1059. Nor did Local 1081. The Board therefore received those submissions. We make no finding with respect to Local 1059's right to intervene.

IV

6. The facts are not substantially in dispute.

7. In July 1984, Local 1059 sought certification as bargaining agent for the employees of Alwell Forming London Limited and Colony Investments London Limited. It is agreed that those entities are predecessors of what is now Rockwall, or, alternatively, that all three companies are one employer within the meaning of section 1(4) of the Act. At the time of the certification application they were engaged in both ICI and non-ICI construction activities.

8. The certification application was brought pursuant to section 144(1) of the Labour Relations Act. The union sought bargaining rights for two bargaining units: one encompassing all construction labourers in the employ of the companies in the ICI sector of the construction industry, and a second broader unit encompassing all construction labourers, carpenters, cement finishers, truck drivers, equipment operators and rodmen employed in all other sectors of the construction industry in Board Areas 1, 2, 3, 4, 5, 6, 21, 22 and 26. The employer challenged the union's proposed bargaining unit descriptions and suggested two other units which, it was said, were more consistent with the Board's practice.

9. The details of that dispute need not be canvassed here. It suffices to say that the employer acknowledged that, at the time the application was made, there were ongoing construction activities in both the ICI and other sectors of the construction industry, and that, pursuant to section 144, the appropriate bargaining units would encompass all construction labourers in the ICI sector, province-wide, and all construction labourers (and perhaps others) working in other sectors in one or more geographic areas in Ontario. Certification would establish both ICI and non-ICI bargaining rights, and in respect of the ICI sector, upon certification, as a matter of law, the employer would automatically "plug in" to the ICI provincial agreement.

10. Local 1059's certification application did not proceed to a hearing. James McKinnon, an official of Local 1059, met with the principal of Alwell/Colony (now Rockwall) while the certification was pending, in order to explore the possibility of a settlement. Mr. McKinnon testified that the company's business is confined exclusively to concrete forming - for the most part in the residential sector, but also in the ICI sector from time to time - and as noted, the result of a successful certification application would have been to bind the employer to the provincial ICI agreement for all of its ICI construction activities. The employer did not welcome that result, so Mr. McKinnon suggested an alternative. He told the employer that it could sign a London area local "forming agreement" which would apply to all of its concrete forming work in whatever sector such work might be done, but would neither extend beyond London nor bind the employer to the ICI agreement in London or elsewhere. The employer willingly embraced that alternative.

11 On October 22, 1984 the union and AlwelL'Colony (now Rockwall) entered into the following voluntary recognition agreement:

1. The Employer hereby acknowledges that the Union is entitled to and does represent all its construction employees engaged on concrete forming construction in the Ontario Labour Relations Board Area #3 (Counties of Middlesex, Bruce, Elgin, Oxford, Perth, and Huron) save and except non-working foremen and persons above the rank of non-working foremen, office and clerical staff.

2. The Employer hereby recognizes the Union as the exclusive bargaining agent for all its employees engaged on concrete forming construction in Ontario Labour Relations Board Area #3 (Counties of Middlesex, Bruce, Elgin, Oxford, Perth, and Huron) save and except non-working foremen and persons above the rank of non-working foremen, office and clerical staff.

The certification application, and a related unfair labour practice complaint were both withdrawn.

12. Following the execution of that voluntary recognition agreement, the parties engaged in collective bargaining and entered into a 1985-86 "formwork agreement" of the kind proposed by Mr. McKinnon. It contains the following clauses:

GENERAL PURPOSE

The general purpose of this Agreement is to establish mutually satisfactory relations between the Employer and its employees, to provide a means for the prompt and equitable disposition of grievances, and to establish and maintain satisfactory working conditions, hours of work and wages for all employees who are subject to its provisions engaged in Concrete Forming and Finishing construction.

ARTICLE 1- RECOGNITION

The Employer recognizes the Union as the sole collective bargaining agency for all its construction employees engaged on all construction projects within the Counties of Middlesex, Bruce, Elgin, Oxford, Perth, and Huron, save and except non-working foremen and persons above the rank of non-working foreman, office and clerical staff and engineering staff.

Subsequent collective agreements were framed this way:

1986-87

GENERAL PURPOSE

The general purpose of this Agreement is to establish mutually satisfactory relations between the Employer and its employees, to provide a means for the prompt and equitable disposition of grievances, and to establish and maintain satisfactory working conditions, hours of work and wages for all employees who are subject to its provisions engaged in concrete forming and finishing construction.

ARTICLE 1- RECOGNITION

The Employer recognizes the Union as the sole collective bargaining agency for all its construction employees engaged on all construction projects within the Counties of Middlesex, Bruce, Elgin, Oxford, Perth, and Huron, save and except non-working foremen arid persons above the rank of non-working foremen, office and clerical staff and engineering staff.

1987-88

GENERAL PURPOSE

The general purpose of this Agreement is to establish mutually satisfactory relations between the Employer and its employees engaged in concrete forming and finishing construction, to provide a means for the prompt and equitable disposition of grievances, and to establish and maintain satisfactory working conditions, hours of work and wages for all employees who are subject to its provisions engaged in concrete forming and finishing construction.

ARTICLE 1- RECOGNITION

The Employer recognizes the Union as the sole collective bargaining agency for all its construction employees engaged in concrete forming and finishing construction on all construction projects within the Counties of Middlesex, Bruce, Elgin, Oxford, Perth, and Huron, save and except non-working foremen and persons above the rank of non-working foremen, office and clerical staff and engineering staff.

GENERAL PURPOSE

The general purpose of this Agreement is to establish mutually satisfactory relations between the Employer and its employees engaged in concrete forming and finishing construction, to provide a means for the prompt and equitable disposition of grievances, and to establish and maintam satisfactory working conditions, hours of work and wages for all employees who are subject to its provisions engaged in concrete forming and finishing construction.

ARTICLE 1- RECOGNITION

The Employer recognizes the Union as the sole collective bargaining agency for all its construction employees engaged in concrete forming and finishing construction on all residential construction projects within the Counties of Middlesex, Bruce, Elgin, Oxford, Perth, and Huron, save and except non-working foremen and persons above the rank of non-working foremen, office and clerical staff and engineering staff.

[emphasis added]

When the general purpose and recognition clauses are read together, it is apparent that until 1988-89, the arrangement with Rockwall was along the lines that Mr. McKinnon had proposed: an agreement confined to formwork and limited geographically to Board Area 3, but unrestricted with respect to the sector in which the formwork was done. On its face the agreement would apply to formwork in the ICI sector.

13. It should also be noted that until the current (1988-89) agreement, Article 1 of the various Rockwall "forming agreements" obliged Rockwall to apply the relevant local roads agreement, sewer and watermain agreement, and utilities agreement if it did work in those sectors. It is clear therefore that, by reference at least, the agreements with Rockwall were intended to be multi-sector agreements. It was not until after the filing of these grievances that Rockwall and Local 1059 sought to restrict the scope of the agreement to residential construction.

14. Prior to the present grievances, the above-mentioned local "form work" collective agreements were in fact applied to the company's work in all sectors in the London area, including ICI projects. The company did not apply the provincial ICI agreement and Local 1059 made no complaint. The problem arose only when the company became engaged in a project in Cambridge, within the geographic jurisdiction of Local 1081. Rockwall insisted on using a crew of members from Local 1059, and denied any obligation to apply the ICI agreement to the work in question. Local 1081 contended that Rockwall was required to use its members, and apply the terms of the provincial ICI collective agreement.

V

15. Before turning to the particulars of this case, it may be useful to briefly describe the statutory framework within which the parties' rights must be determined. The provisions of the Labour Relations Act to which reference will be made are as follows:

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

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

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

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

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

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

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

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.

(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.

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

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

We should also set out the way in which the Minister has framed the Labourers' employee bargaining agency designation:

EMPLOYEE BARGAINING AGENCY DESIGNATION

The designation of The Labourers' International Union of North America and The Labourers' International Union of North America, Ontario Provincial District Council dated April 21, 1978, amended July 13, 1978 and December 6, 1978, is further amended by excluding from this designation the bargaining relationship between the Metropolitan Toronto House Wreckers Association and The Labourers' International Union of North America, and The Labourers International Union of North America, Ontario Provincial District Council so that the designation reads as follows:

Pursuant to clause a of subsection 1 of section 139 of The Labour Relations Act, R.S.O. 1970, c. 228, as amended, I hereby designate The Labourers' International Union of North America and The Labourers' International Union of North America, Ontario Provincial District Council as the employee bargaining agency to represent in bargaining all construction labourers, including masons' or bricklayers' tenders, plasterers and plasterers' apprentices and all employees engaged in cement finishing, waterproofing or restoration work, represented by the following affiliated bargaining agents:

1. The Labourers' International Union of North America; or

2. The Labourers' International Union of North America, Ontario Provincial District Council; or

3. The following Local Unions: 183, 247, 491, 493, 506, 527, 597, 607, 625, 749, 837,

1036, 1059, 1081 and 1089; or

4. Any other Local of The Labourers' International Union of North America which, in the future, may be chartered to represent construction labourers, including masons or bricklayers' tenders, plasterers and plasterers' apprentices, and employees engaged in cement finishing, waterproofing or restoration work;

(which Council and Unions are hereinafter collectively referred to as "the Unions"), in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario, and without limiting the generality of the foregoing, to represent in bargaining as aforesaid all employees bound by or parties to:

(a) certificates of the Ontario Labour Relations Board granted to the Unions or any of them;

(b) voluntary recognition agreements with the Unions or any of them;

(c) collective agreements to which the Unions or any of them have been or are party to or bound by, covering the industrial, commercial and institutional sector of the construction industry in the Province of Ontario.

For purposes of clarity, it should be noted that notwithstanding the f&t that locals set out in paragraph 3 above are affiliated bargaining agents within the meaning of clause a of section 137, certain of them have or may acquire bargaining rights, or are, or may become bound by, certain collective agreements affecting all sectors of the construction industry covering all employees engaged in concrete forming construction, namely the agreement between Locals 183 and 1081, and the Ontario Form Work Association and between Local 493 and Romm Construction Company Limited, whereby they represent employees who do not commonly bargain separately and apart from other employees. Therefore, with respect to bargaining on behalf of employees of members of the Ontario Form Work Association and Romm Construction Company Limited, and such other employers for whom any of the local unions have or may acquire bargaining rights for all employees engaged in concrete forming construction, such locals are not affiliated bargaining agents within the meaning of clause a of section 137, nor are they included in or covered by this designation under subsection 1 of section 139, nor are they or the said collective agreements and bargaining thereunder affected by section 133 of The Labour Relations Act.

Pursuant to subsection 2 of section 139 of The Labour Relations Act, I hereby exclude from this designation the bargaining relationship between the Formwork Council of Ontario and the Ontario Form Work Association.

Pursuant to subsection 2 of section 139 of The Labour Relations Act, I hereby exclude from this designation the bargaining relationship between the Metropolitan Toronto House Wreckers Association and The Labourers' International Union of North America and The Labourers' International Union of North America, Ontario Provincial District Council.

September 30, 1983

[emphasis added]

16. For ease of exposition, we will occasionally use the term "local union" in place of the statutory term "affiliated bargaining agent".

VI

17. Prior to 1978, collective bargaining in the construction industry was largely a patchwork quilt of local collective agreements between individual employers or employer associations and geographically-based local trade unions. There was some consolidation and extended area bargaining as a result of accreditation, the formation of employer associations or the creation of councils of trade unions, but, by and large, the picture was one of considerable fragmentation. In 1977, an industrial enquiry commission probing the industrial relations problems of the construction industry, proposed a radical change in bargaining structure: province-wide bargaining by trade. It was suggested that extended area bargaining on this model would moderate some of the instability which had plagued construction industry collective bargaining in previous years. The Legislature accepted those proposals.

18. Between 1978 and 1980 the Legislature substantially amended the construction industry provisions of the Labour Relations Act to introduce province-wide bargaining, by trade, in the industrial, commercial and institutional sectors (ICI) of the construction industry, through designated employer and employee bargaining agencies (essentially designated provincial employer associations and designated province-wide councils of unions). The designations were made by the Minister of Labour, in consultation with the parties involved, pursuant to section 139 of the Act. In each trade, ICI bargaining must now take place on a provincial basis for two-year collective agreements with common expiry dates. Local ICI bargaining is no longer permitted (see section 146) and any local agreement or arrangement pertaining to the ICI sector is deemed to be null and void.

19. This shift in the locus of collective bargaining was accompanied by changes in the way in which local unions (affiliated bargaining agents) acquire and hold bargaining rights. Pursuant to section 144 of the Act, an application for certification which relates to the ICI sector must now be brought by a local union not only on its own behalf, but also on behalf of all of its sister locals throughout Ontario, and must encompass all employees who would be bound by a provincial collective agreement. Similarly, a voluntary recognition agreement, insofar as it relates to the ICI sector of the construction industry, not only binds the local union signatory, but is deemed to be made on behalf of all other sister locals throughout Ontario. Finally, as a result of section 137(2) of the Act, wherever a local union has established a foothold in any geographic area in Ontario, an employer will be deemed to have recognized its sister locals throughout Ontario. Section 137(2) was part of the package of amendments introduced in 1980 and was necessary to further consolidate and rationalize the bargaining structure which, in some instances, was still fragmented and uneven in its application. Section 137(2) extends local bargaining rights province-wide by operation of law and therefore obliges an employer with ICI bargaining rights in one area of the province to apply the ICI provincial agreement wherever it does ICI work in Ontario.

20. In summary, the general thrust of the legislation is quite simple: in the ICI sector of the construction industry the norm is to be provincial bargaining through designated provincial bargaining agencies, a provincial collective agreement, and no local bargaining, collective agreement "or other arrangement" inconsistent with the foregoing.

21. Certain bargaining relationships involving concrete formwork constitute a limited exception to the provincial ICI regulatory scheme. Pursuant to section 139(2), the Ministry of Labour has explicitly excluded from the Labourers' employee designation, the collective bargaining relationship between the Form Work Council of Ontario and the Ontario Form Work Association. That agreement is a provincial collective agreement with a council of unions including, primarily, Local 793 of the International Union of Operating Engineers, and Labourers' Local 183, but potentially extending, as well, through its appendices, to Labourers' Locals 247, 493, 527, 597, 837, 1036, 1059 and 1081 in their respective geographic jurisdictions. According to Mr. McKinnon, it was this agreement which served as a model for the London local formwork arrangement, but, he said, he was reluctant to "plug in" to the provincial Form Work Council agreement because Local 1059 might then lose some of its autonomy. Mr. McKinnon said that, as a matter of principle, Local 1059 has always asserted the right to make its own local bargain in respect of formwork in whatever sector such work might be done including the ICI sector. Concrete formwork, he maintained, was a recognized exception to the ICI bargaining scheme.

22. Local 1059's formwork agreement does clearly purport to apply (inter alia) to ICI construction. The voluntary recognition agreement, signed in the shadow of a multi-sector certification application, recognizes Local 1059 as the bargaining agent for all employees engaged in concrete construction in Board Area 3 without reference to sector. So do succeeding collective agreements. The company was engaged in ICI construction at the time the voluntary recognition agreement was entered into. There is really no doubt that this Local formwork agreement was intended to apply to ICI construction work, and was, in fact, applied to ICI construction work when the company was engaged in those activities. It was not until the most recent collective agreement (1988-89) that Rockwall and Local 1059 have sought to restrict the application of the Local arrangement to residential construction; and Mr. McKinnon testified that these contractual changes were a response, in part, to the present proceedings. However, this in itself merely reinforces the conclusion that the prior agreements did, and were intended to, relate to ICI construction as well. Is this local London formwork agreement inconsistent with the statute insofar as Rockwall purports to apply it to ICI projects? And does it nevertheless create ICI bargaining rights province-wide?

VII

23. Local 1081 argues that, pursuant to sections 144(4) and 137(2) of the Act, the initial voluntary recognition agreement with Local 1059, and the subsequent collective agreements, were intended to and did relate to ICI construction, and therefore would create ICI bargaining rights for Local 1081 as well, and also for all other Labourers' locals throughout Ontario. Local 1081 argues that one cannot create ICI bargaining rights then purport to limit them in ways which are not permitted by the statute. Once ICI bargaining rights are acknowledged, it is the provincial ICI agreement that must be applied. Local 1081 argues that, insofar as the London formwork agreement pertains to the ICI sector, it is inconsistent with section 146(2) of the Act, the terms of the Ministerial designation, and the potential exemptions from the provincial scheme contemplated by section 139(2). Local 1081 asserts that Rockwall is therefore bound by the provincial ICI agreement whatever its impressions may have been about the validity or extent of its purported local arrangement with Labourers' Local 1059.

24. Rockwall contends that its local formwork agreement does. not fall within the ambit of section 146(2) of the Act because of the way in which the Minister has framed the designation and its stipulated exemptions. In Rockwall's submission, the Minister has decreed that, in certain circumstances, an affiliated bargaining agent (which Local 1059 clearly is under section 137, and must be if it is to exercise other ICI bargaining rights) will be deemed not to be an affiliated bargaining agent for the purposes of provincial bargaining; moreover, the Minister, Rockwall says, has specifically adverted to that possibility in the clarity note appearing in the designation. Counsel points out that the words of the designation suggest that affiliated bargaining agents, such as Local 1059, "have or may acquire bargaining rights, or are, or may become bound by, certain collective agreements affecting all sectors of the construction industry covering all employees engaged in concrete forming...". The situation is not frozen as at the time the designation was made. Counsel asserts that, in the Minister's words:

With respect to bargaining on behalf of ... such other employers for whom any of the local unions have or may acquire bargaining rights for all employees engaged in concrete forming construction, such locals are not affiliated bargaining agents within the meaning of clause a of section 137, nor are they included in or covered by this designation under section 139 nor are they or the said collective agreements and bargaining thereunder affected by section 133 of the Labour Relations Act.

Rockwall argues that this is precisely what has happened here: Rockwall has entered into a multi-sector, all employee concrete forming agreement restricted in its scope to the London area. Insofar as that collective agreement is concerned, Local 1059 is exempted from the designation and cannot be regarded as an affiliated bargaining agent. Section 146(2) can have no application, and there can be no vicarious extension of bargaining rights under either section 137(2) or 144(4) for the benefit of Local 1081, the applicant in these proceedings because, once again, for the purposes of concrete forming, Local 1059 is not an affiliated bargaining agent. Local 1081 has no "vicarious bargaining rights" and Rockwall's collective agreement, being exempted from the provincial scheme, has no application beyond the London area - even in the ICI sector. These applications must therefore be dismissed.

VIII

25. There are a number of difficulties with these propositions. First, it is not obvious how the Minister, in the exercise of his/her power of "designation and description", can declare that something which is clearly an affiliated bargaining agent as a matter of statutory definition, and is so recognized in the designation itself, is not an affiliated bargaining agent in some circumstances or for certain purposes not recognized by the statute, - especially when section 139(2) quite specifically deals with the limited circumstances in which bargaining relationships may be excluded from the designation and therefore the provincial ICI regulatory scheme. It is not at all clear how an affiliated bargaining agent meeting the definition of section 137(1)(a) can cease to be an affiliated bargaining agent for some purposes by Ministerial decree; moreover, if the Minister's authority to "designate" and "describe" extended that far, section 139(2) of the Act would be entirely unnecessary. The Minister could simply "describe" the designated bargaining agency and the ambit of its authority, so as to exclude any local or other arrangement which the Minister considered appropriate - even if that arrangement applied to the ICI sector. We doubt that that was what was intended by the Legislature or that the Legislature intended that exemptions from the designation might be made (and therefore exemptions from the provincial bargaining scheme would be created) other than in accordance with section 139(2) of the Act.

26. Rockwall's local formwork agreement clearly does not meet the requirements of section 139(2). Rockwall is not an employer bargaining agency (see the definition of that term in section 137(1)(d)). Rockwall does not bargain with a council of trade unions. Rockwall's purported agreement is not province-wide. Indeed, even a close reading of the terms of the designation does not unequivocally support Rockwall's proposed interpretation, because the reference to multi-sector forming agreements, which might, by itself, suggest any number of them, is followed by the word "namely" indicating that the Minister had only two specific collective agreements in mind. We accept Local 1081's position that, despite some ambiguity in the language, what the Minister was exempting was the Form Work Council agreement and any other Labourers' local which might choose to opt into that agreement. Finally, it should be noted that in the penultimate paragraphs of the designation, where the Minister is expressly exercising the authority granted to him under section 139(2) of the Act, it is only the bargaining relationship between the Form Work Council and the Ontario Form Work Association which is excluded from the designation. Therefore, even if the Minister could exclude these other local arrangements from the provincial bargaining scheme (and, for reasons already mentioned, we doubt that such exclusion could be authorized other than under section 139(2),) the terms of the designation do not establish such Ministerial intention. When read as a whole, we think that, insofar as formwork is concerned, the Minister intended only to exempt from the provincial scheme, ICI formwork which was subject to a pre-existing, provincial form-work agreement, conforming to the requirements of section 139(2). Rockwall's agreement does not.

27. For the foregoing reasons, the Board concludes that the so-called "formwork agreement" between Rockwall and Local 1059, insofar as it purports to apply to the ICI sector of the construction industry is a collective agreement or arrangement other than a "provincial agreement" and, pursuant to section 146(2) is therefore "null and void". Since the collective agreements are null and void insofar as they pertain to the ICI sector, none of their provisions, including the recognition clause, can be relied upon by Local 1059, Local 1081, or any other Labourers' local (affiliated bargaining agent) in Ontario to create ICI bargaining rights. We do not think that Local 1081 can argue, on the one hand, that the collective agreement between Rockwall and Local 1059 is "null and void" because it is contrary to the ICI scheme, but at the same time assert that its recognition clause survives so as to provide a valid legal foundation for ICI bargaining rights for Local 1081 or other sister Labourers' locals throughout Ontario. If the agreement is null and void, that is the end of the matter.

28. There remains the question of the status of the voluntary recognition agreement between Rockwall and Local 1059 dated October 22, 1984. Does this voluntary recognition agreement provide an independent foundation for Labourers' bargaining rights in Board Area 3, which all Labourers' local unions in Ontario can now rely upon under section 144(4) to assert ICI bargaining rights for all construction labourers in their respective geographic jurisdictions? Local 1081 asserts that if a voluntary recognition agreement purports to or is intended to confer bargaining rights in respect of any labourers performing any labourers' functions in the ICI sector, in any Board area in Ontario, then, by operation of law, the employer is deemed to have recognized the local unions as bargaining agent(s) for all construction labourers employed in all capacities throughout the Province. That, it is said, is the effect of sections 137(2) and 144(4) of the Act.

29. We do not agree.

IX

30. To illustrate the intended effect of section 144(4), it is useful to compare it with section 144(1) since, in many respects, the language of the sections is identical, as is their intent - namely, to ensure that whether the origin of ICI bargaining rights is by certification or by voluntary recognition, those rights will be provincial in scope, and held by all local unions across Ontario in their respective geographic jurisdictions. A certification application must be brought by an employee bargaining agency or, more commonly, by a particular local union on its own behalf, and also on behalf of other Ontario locals. As we have already noted, the statutorily prescribed bargaining unit must include all those employees who would be bound by the relevant provincial collective agreement, and the result is to create provincial bargaining rights held by particular locals, but exercised for bargaining purposes by the designated employee bargaining agency.

31. Section 144(1) is a parallel provision. A voluntary recognition agreement, insofar as it relates to the ICI sector is deemed, by statute, to be made on behalf of other local unions in Ontario, and the defined bargaining unit must include those employees who would be bound by a provincial collective agreement. The effect in both cases is that whether the origin of the bargaining rights is by certification or voluntary recognition, the provincial bargaining scheme is preserved; each local obtains ICI bargaining rights for its own geographic area, and the applicable collective agreement is the provincial agreement because the voluntary recognition arrangement must encompass all those employees who would be bound by it.

32. But what if it does not? What if the voluntary recognition agreement, on its face, does not extend to all employees who would be covered by a provincial collective agreement, but only some of them; and what if the subsequent collective agreements likewise purport to apply only to a "slice" of the ICI sector. Is that still a valid voluntary recognition agreement within the meaning of section 144(4), creating rights for all construction labourers - despite its clearly intended limitation; or do we simply say that the parties, by attempting to construct a voluntary recognition agreement, relating to the ICI sector, which does not encompass all employees who would be bound by a provincial collective agreement, have tried to establish a legal arrangement which is not permitted by the statute. That is certainly what Rockwall and Local 1059 have tried to do here because the company did not welcome the possibility of a provincial collective agreement applying to all of its construction labourers, and Local 1059 proposed what it believed to be an alternative.

33. It is arguable that a voluntary recognition arrangement does not survive the consummation of a collective agreement which must, by law, (see section 41 of the Act) contain its own recognition clause which supercedes anything else that has gone before, and in this case replaced and covered all of the employees embraced by the prior voluntary recognition arrangement. (See also section 49 which provides that there can be only one collective agreement at any given time.) More fundamentally, though, this voluntary recognition arrangement, for the reasons outlined, was structured in a way that did not comply with the requirements of section 144(4) of the Act. It did not "include those employees who would be bound by a provincial collective agreement" and was never intended to so. Do we deem it to be in compliance with section 144(4), thereby establishing bargaining rights which were never intended, or do we simply say, as in the case of the collective agreements flowing from it, that it too is of no force and effect. We are inclined to embrace the latter result as being more consistent with the statutory scheme. We find that the 1984 voluntary recognition arrangement, if it survives the subsequent collective agreements, is ineffective insofar as the ICI sector is concerned because it does not comply with the requirements of section 144(4). That being so, it does not provide an independent basis for Local 1081's bargaining rights or present claim.

34. For the purpose of clarity, we wish to emphasize that nothing in this decision affects Local 1059's bargaining rights, or any consequent collective agreement(s), to the extent that they exist or are exercised or applied outside the ICI sector. Those agreements are both valid and binding in accordance with their terms.

35. For the foregoing reasons, these two grievances are dismissed.