United Brotherhood of Carpenters and Joiners of America, Local 27 v. Shearwall Forming (East) Ltd., 1989 CanLII 2990

United Brotherhood of Carpenters and Joiners of America, Local 27 v. Shearwall Forming (East) Ltd.

[1989] OLRB Rep. December 1254

3168-88-R; 0173-89-R; 0241-89-U United Brotherhood of Carpenters and Joiners of America, Local 27, Applicant v. Shearwall Forming (East) Ltd., Respondent v. The Form Work Council of Ontario, Intervener; United Brotherhood of Carpenters & Joiners of America, Local Union 27, Applicant v. Automatic Structures Ltd., Respondent v. The Form Work Council of Ontario, Intervener; United Brotherhood of Carpenters and Joiners of America, Local 27, Complainant v. Automatic Structures Ltd., Respondent

BEFORE: G. T. Surdykowski, Vice-Chair, and Board Members J. Lear and S. Weslak.

APPEARANCES: David McKee, Luis Camara and Tony Bucci for the applicant; Carl Peterson and Nick Sisti for the respondent Automatic Structures Ltd; James G. Knight for the respondent Shearwall; A. M. Minsky and R. Lotito for the intervener.

DECISION OF G. T. SURDYKOWSKI, VICE-CHAIR, AND BOARD MEMBER S. WESLAK: December 6, 1989

1. By decisions dated May 3 and May 8, 1989 in Board File Nos. 3168-88-R and 0173-89-R respectively, the Board, differently constituted in part in each case, made certain findings and directed that the pre-hearing representation vote requested by the applicant in each case ("Local 27") be held. A hearing was then convened to hear the evidence and representations of the parties with respect to the matters in issue between them.

2. It bears repeating that each of the applications for certification herein are applications for certification within the meaning of section 119 of the Labour Relations Act and have been made pursuant to section 144(1) of the Act.

3. Board File No. 0241-89-U is a complaint under section 89 of the Act.

4. At this stage of the proceedings, the Board must determine the unit of employees that is appropriate for collective bargaining in each application. In each, the applicant seeks to be certified for what is, in effect, its standard construction industry bargaining unit of carpenters and carpenters' apprentices in the employ of the respondent in the industrial, commercial and institutional ("ICI") sector of the construction industry in the Province of Ontario and in all other sectors of the construction industry in the geographic area commonly referred to as Board Area 8 (save and except non-working foremen and persons above the rank of non-working foreman). In each application, the respondent and the intervener assert that the appropriate bargaining unit is that covered by a collective agreement between them and which covers "all employees of the respondent engaged in concrete forming construction in the Province of Ontario, including employees working on Federal, Provincial and Municipal projects". It is common ground that the carpenters and carpenters' apprentices employed by the respondent fall within that bargaining unit. At issue then, is the applicant's right to carve out its craft unit from the broader existing ones which are presently represented in bargaining by the intervener the Form Work Council of Ontario (the "Council").

5. The Council argues that the bargaining unit for each of these applications should reflect the composite crew of employees engaged in concrete forming construction as bargained for by the Council. The Council does not suggest that Local 27 can represent any employees other than carpenters and carpenters' apprentices in the ICI sector of the construction industry. However, it submits that the bargaining unit can and should be described in terms of carpenters and carpenters' apprentices in the ICI sector in the Province of Ontario and all employees of the respondent engaged in concrete forming construction in all sectors of the construction industry excluding the ICI sector in the Province of Ontario. The Council submits that these applications should be treated as displacement applications under section 6(1) rather than as craft applications under section 6(3) of the Act. The Council submits that the evidence before the Board establishes that concrete forming construction is a special, unique situation in which the Council and employers engaged in concrete forming construction have created a collective bargaining structure which is both efficient and recognizes the community of interest shared by employees, whether carpenters or labourers or others, engaged in it. The Council asserts that permitting Local 27 to carve out its craft would create (inter-union) jurisdictional problems where there are none and would have a destablizing effect on the industry.

6. The respondent Automatic Structures Ltd. ("Automatic") agrees with the submissions of the Council. It also emphasizes that there is no evidence whatsoever of any history of organizing by Local 27 with respect to the concrete form work industry in the residential sector of the construction industry. Automatic also argues that because bargaining rights are both granted and terminated in a displacement application, and it is not appropriate to terminate ICI bargaining rights where there are no employees in the ICI bargaining unit at the material times, the applicant can only properly bring a displacement application for certification (which these are) with respect to the non-ICI sectors pursuant to section 144(3) of the Act.

7. The respondent Shearwall Forming (East) Ltd. ("Shearwall") agrees with the submissions of the Council and Automatic. It stresses that there is no reasonable prospect that either it or Automatic will ever do any work in the ICI sector and that the only "real" bargaining unit is therefore one which does not relate to the ICI sector. Therefore, submits Shearwall, Local 27's applications should be treated as having been made pursuant to section 144(3) of the Act.

8. The Council and Automatic submit that the Board's decisions in Ellis-Don Limited, [1988] OLRB Rep. Dec. 1254 and [1989] OLRB Rep. March 234 are wrong. In that respect, they rely on some of the dicta in Reitzel Heating & Sheet Metal Ltd. [1988] OLRB Rep. Dec. 1310. In the alternative, the Council and Automatic submit that the Ellis-Don Limited decisions, supra, are distinguishable from the applications before the Board in this proceeding. Shearwall also argues that the decisions in Ellis-Don Limited, supra, are wrong. It submits the logic of the Labour Relations Act is that in a displacement application for certification the applicant must accept the existing bargaining unit insofar as that is possible. It submits that where there is a conflict between this displacement policy (that is, that a trade union must take a bargaining unit as it finds it) and any other factors, the displacement policy should prevail. In the alternative, Shearwall submits that even if the decisions in Ellis-Don Limited, supra, are right, the Board should reach a different result on the facts in this proceeding.

9. Local 27 argues that the Ellis-Don Limited decisions, supra, are correct and that Reitzel Heating & Sheet Metal Ltd., supra, is not inconsistent with it. It relies upon the decisions in Ellis-Don Limited, supra, and submits that there is no difference of substance between the material elements in these applications and those found by the Board in Ellis-Don Limited, supra. Local 27 submits that it is entitled to bring these applications pursuant to section 144(1) and points out that the very argument made by the Council with respect to the appropriate bargaining unit in these proceedings was considered and rejected by the Board in Aero Block and Precast Ltd., [1984] OLRB Rep. Sept. 1166.

10. In paragraphs 39 to 57 of Ellis-Don Limited, [1988] OLRB Rep. Dec. 1254, the Board explained that:

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

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

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

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

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

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

43. Section 144 covers all applications for certification in the construction industry (see Clarence H. Graham Construction Ltd., [1981] OLRB Rep. Sept. 1195; Ninco Construction Ltd., [1982] OLRB Rep. Nov. 1692; Manacon Construction Ltd., [1983] OLRB Rep. Mar. 407 and July 1104). Under the province-wide bargaining provisions of the Act, some construction industry trade unions are designated to represent certain specific trade or crafts in bargaining in the ICI sector of the construction industry. A trade union represented by a designated employee bargaining agency may, at its option, apply for certification under either section 144(1) or (3), or enter into voluntary recognition agreements under section 144(4). Construction trade unions which are not represented by a designated employee bargaining agency, and are therefore not covered by sections 144(1)-(4) of the Act, such as the Christian Labour Association of Canada, can apply for certification or enter into voluntary recognition agreements in the construction industry under section 144(5).

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

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

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

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

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

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

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

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

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

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

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

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

51. One of the Board's fundamental concerns when it deals with an application for certification is that the parties begin their relationship with a bargaining unit structure conducive to ongoing collective bargaining. In that respect, fragmentation, which can, especially in the construction industry, lead to jurisdictional disputes, picketing problems, and strike oriented layoffs, is to be avoided for both labour relations and "efficiency of production" reasons.

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

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

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

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

[emphasis added]

In this case, the Council, Automatic, and Shearwall submit that the Board in that first Ellis-Don Limited decision erred in its interpretation of the jurisprudence (and particularly of Duron Ottawa Ltd., [1983] OLRB Rep. Oct. 1639) by failing to follow what they assert has been the Board's long-standing displacement policy in construction industry applications for certification. That is substantially the same as one of the arguments made in support of the request for reconsideration of the Board's decision in Ellis-Don Limited, [1988] OLRB Rep. Dec. 1254. The Board disposed of that argument in Ellis-Don Limited, [1989] OLRB Rep. March 234 as follows:

22. In Duron Ontario Limited, [1976] OLRB Rep. Nov. 734 (which was decided prior to the enactment of the construction industry province-wide bargaining provisions, including section 144, of the Act), the Board observed that its approach to applications for certification relating to the construction industry was to determine bargaining units pursuant to section 6(2) of the Act where a trade union which satisfies the conditions of section 6(2) requests a (its) craft bargaining unit. Otherwise, the bargaining unit was determined under section 6(1). Consequently, when a non-craft trade union applied to represent employees in a existing bargaining unit, the Board determined the appropriate bargaining unit under section 6(1), and, as a matter of policy, generally found that appropriate unit to be the existing one. Duron Ontario Limited, supra, did not suggest that a trade union which satisfies the conditions of section 6(2), as Local 27 clearly does, and applies to represent a (its) craft unit of employees, could not carve out such a bargaining unit from a broader existing one. It was only to the extent, if it does so at all, that Duron Ottawa Ltd., [1983] OLRB Rep. Oct. 1639 suggests otherwise that the Board found it (in paragraph 41 of the Decision) to be inconsistent with the earlier authorities and Board practice. We note that Duron Ottawa Ltd., supra; Crown Electric, [1982] OLRB Rep. May 660, and Aero Block and Precast Ltd., [1984] OLRB Rep. Sept. 1166 all involved, as the Board points out in paragraph 45 of the Decision, applications under section 144(1) of the Act in which a craft carve out from an existing bargaining unit was found to be appropriate. We find ourselves constrained to observe that the passage from Crown Electric, supra, quoted in the request for reconsideration by Local 183 and the FWCO, has been taken out of context by them. Viewed in context, that passage forms part of the Board's recitation of the positions taken by the parties in that case. It was the respondent employer and the incumbent trade union who were asserting, unsuccessfully in the result, that that was the Board's long-standing policy. Except to the limited extent specified in the Decision with respect to Duron Ottawa Ltd., supra, the Board did not reject the analysis or conclusions reached in Duron Ottawa Ltd., supra, Crown Electric, supra, or Aero Block and Precast Ltd., supra. On the contrary, it extended and applied them to the issues before it and concluded that it was appropriate to permit a craft carve out in Board File No. 3291-88-R (the only one in which it remained an issue).

(Note: What is now section 6(3) was section 6(2) at the time of the Duron Ontario Limited, [1976] OLRB Rep. Nov. 734 decision. The reference to section 6(2) in paragraph 22 of the Ellis-Don Limited, [1989] OLRB Rep. March 234 decision obviously should have been to what is now section 6(3)).

11. After the first Ellis-Don Limited decision issued but before the second (which disposed of the request for reconsideration), the Board's decision in Reitzel , supra, issued. In paragraphs 9, 27 and 28 of that decision, the Board commented that:

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 Act 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. 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.

21. 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., [1986] 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 by-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 if 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.

[emphasis added]

There is no reference in Reitzel to the first Ellis-Don decision. Nor is there any reference to Reitzel in the second Ellis-Don decision.

12. We agree with the Board's analysis of the jurisprudence in the Ellis-Don decisions, supra. While section 6(1) of the Act gives the Board a broad general discretion to determine the "unit of employees that is appropriate for collective bargaining" in applications for certification relating to the construction industry, that discretion is limited and directed by sections 6(3), 119, 139 and 144 of the Act (see Wraymar Construction and Rental Sales Ltd., [1989] OLRB Rep. June 682). It is evident, as the Board has long recognized, that the nature of the construction industry is different from the nature of "other industries". That is underlined by the extensive provisions in the Act which apply only to the construction industry. Consequently, decisions which do not relate to the construction industry are of little assistance on this issue.

13. Indeed, it is not entirely clear, given the wording of section 6(3), that the Board can treat a displacement application for certification by a craft trade union as being made under section 6(1) rather than under section 6(3) of the Act. Regardless of that however, it is well settled that a trade union which is an affiliated bargaining agent of a designated employee bargaining agency, and which is therefore subject to the provisions of sections 144(1) through (4) of the Act has a right to select whether it will make an application for certification under section 144(1) or under section 144(3). The fact that an employer is not, or is not likely in the future to have employees engaged in the ICI or any other sector of the construction industry, does not affect such a trade union's right to choose how it will apply (see, for example, Colonist Homes Ltd., [1980] OLRB Rep. Dec. 1729; Watcon Inc., [1981] OLRB Rep. Nov. 1697; Dagmar Construction Limited, [1987] OLRB Rep. Apr. 480). Nor does the fact that a displacement application, if successful, will have the effect of terminating an incumbent trade union's bargaining rights affect this right to choose. There is nothing in either the provisions or the logic of the Act which requires an applicant which is an affiliated bargaining agent to take an existing bargaining unit as it finds it. Indeed, where the existing bargaining unit includes employees in the ICI sector who perform the work of a craft which the employee bargaining agency of which the applicant is an affiliated bargaining agent has not been designated to represent, the applicant cannot (as the Council recognizes in its submissions) take the bargaining unit as it finds it. Both the provisions and the logic of the Act make a craft carve out mandatory in such circumstances. Were it otherwise, an affiliated bargaining agent could not obtain bargaining rights for its own craft in circumstances in which employees engaged in that craft and employees engaged in other crafts are in one bargaining unit represented by an incumbent trade union which is not an affiliated bargaining agent, like the Christian Labour Association of Canada ("CLAC"), for example. There is nothing in the Act or its logic which mandates such a result and the Board has never found it appropriate to approach applications for certification in a manner which would prevent an affiliated bargaining agent from seeking bargaining rights for employees in a craft or trade which its employee bargaining agency has been designated to represent in the ICI sector.

14. Although the Board has previously expressed some doubts as to the ability of the Minister of Labour to declare or deem something which is an affiliated bargaining agent to not be one (see Rockwall Concrete Forming (London) Limited, [1988] OLRB Rep. Sept. 963), it is clear, as the Board recognized in Ellis-Don Limited, [1988] OLRB Rep. Dec. 1254 (at paragraph 36), that neither the Council nor any of its constituent trade unions are a designated employee bargaining agency or an affiliated bargaining agent of one with respect to employees engaged in concrete forming construction (see also Matterhorn Construction (Hamilton) Limited, [1981] OLRB Rep. Sept. 1276 at paragraphs 6 and 7). Concrete form work has not been exempted or excepted from the province-wide ICI collective bargaining scheme in a general way. Rather, there is a limited exception or exemption which has been made for some concrete forming construction collective bargaining relationships to the extent, and only to the extent, that such specific relationships have been so exempted. The agreements relied upon by the Council and the respondents in these proceedings are section 144(5) type of collective agreements in the sense that they apply to section 144(5) type bargaining units. Sections 144(1) through (4) do not apply to these units and, in that sense, the Council is in no different position that other construction trade unions, like the CLAC, which are neither employee bargaining agencies nor affiliated bargaining agents of one.

15. We were referred to no cases, and we are aware of none, in which a construction industry craft trade union has not been permitted to carve out its craft from a broader existing bargaining unit, whether represented by an employee bargaining agency or an affiliated bargaining agent of one or otherwise. On the contrary, the Board's jurisprudence is replete with examples of applications for certification in which a construction industry trade union has been permitted or even required to so carve out its craft (see, for example, Kent Tile and Marble Co. Ltd., 61 CLLC ¶16,204; Ellwood Robinson Limited, [1967] OLRB Rep. June 261; Pre Con Murray Limited, [1967] OLRB Rep. Oct. 684; J. D. Coad Construction Company Limited, [1969] OLRB Rep. Sept. 755; Nadeco Limited, [1970] OLRB Rep. Apr. 41; Canwall Contractors Limited, [1975] OLRB Rep. July 532; Crown Electric, [1982] OLRB Rep. May 660; Ben Bruinsma & Sons Limited, [1984] OLRB Rep. Nov. 1542; Aero Block and Precast Ltd., supra; D. L. Stephens Contracting Niagara Limited, [1980] OLRB Rep. Oct. 1384). Even in Duron Ottawa Ltd., supra, which the respondents and the Council submit the Board misinterpreted in the Ellis-Don decisions in which they submits stands for the proposition that the Board's general practice, in effect, is to not allow craft carve outs in the construction industry, the Board observed, at paragraph 4:

. . .that the bargaining unit sought by the applicant, namely, a bargaining unit of cement masons correctly describes, in generic terms, the employees who would be bound by its provincial agreement. Further, to require the applicant to take construction labourers would in fact require the applicant to assume bargaining rights for employees who would not be bound by its provincial agreement. As the Board noted in the Clarence H. Graham Construction Company Limited case, this would lead to the mischief of establishing bargaining rights for trade unions bound by provincial bargaining with respect to employees who would be outside the realm of provincial bargaining. As the Board noted in paragraph 11 of the Clarence H. Graham Construction Company Limited case:

"It should be noted that section 131a(1) [now section 144(1)] says 'shall include all employees who would be bound by a provincial agreement'. Normally this would imply that the Board has the power to include employees other than those covered by the provincial agreement. In the present case, however, this becomes a matter of including in a provincial bargaining unit or series of bargaining units employees covered by the regime of provincial bargaining, together with employees outside the provincial bargaining regime. Clearly, subsection 3 and subsection 5 of section 131a [now section 144] deal with matters relating to employees outside the regime of provincial bargaining and we propose to limit the appropriate unit in this case to only those covered by the regime of provincial bargaining. In so doing we are of the view that this is consistent with the provisions of the Act relating to the provincial bargaining. To certify the applicant in the present case for employees in the industrial, commercial and institutional sector in the construction industry, but outside the scheme of provincial bargaining, would create representation rights for trade unions within that scheme for employees outside the regime of provincial bargaining. Such representation would clearly be disruptive of the overall scheme contemplated in sections 125 [now section 137] to 136 [now section 151]."

We, therefore, are of the view that the appropriate bargaining unit is, as found in our previous decision, described in terms of all cement masons and cement masons' apprentices.

The Board went on in that case to allow the applicant to carve out its craft from a broader existing bargaining unit.

16. We are also satisfied that the Board's decision in Reitzel is neither inconsistent with the Board's decisions in Ellis-Don Limited nor applicable to the applications before us. Paragraphs 27 and 28 of the Reitzel decision must be read in the context of the Board's comments in paragraph 19 therein and in the context of the circumstances with which the Board was faced in that case; that is a non-craft construction industry trade union which is neither an employee bargaining agency nor an affiliated bargaining agent of one was applying to displace a craft construction industry trade union which is an affiliated bargaining agent of an employee bargaining agency. The applicant in Reitzel (the CLAC) had to make its application under section 144(5). It could not apply under either sections 144(1) or (3). When viewed in context, it is evident that the Board's reference to its "general policy on displacement applications" in paragraphs 27 and 28 of Reitzel was made with respect to the policy apposite to the application before it; that is, one made by a non-craft trade union to which sections 144(1) through (4) of the Act do not apply. In these proceedings, the applications are by a craft trade union which is an affiliated bargaining agent and which has applied, as it is entitled to do, under section 144(1). The Board's decision in Reitzel contemplates that craft carve out in the norm in such circumstances. We observe also that, in the result, the Board in Reitzel required the CLAC to seek to, in effect carve out part of an existing (province-wide) bargaining unit. Accordingly, even in Reitzel the existing bargaining unit was not found to be the appropriate one for the application. In balancing the various considerations, the Board sought to preserve the craft structure by not requiring the CLAC to seek certification for all trades at work on the date of application (and in doing so rejected the incumbent trade union's submissions to that effect).

17. We are satisfied that the Board in Ellis-Don Limited, supra was correct when it concluded that it is the Board's general practice to permit a craft construction trade union to apply and be certified for a bargaining unit of employees engaged in its craft whether or not such employees are in an existing bargaining unit of employees represented by another trade union at the time of the (timely) application.

18. That is not necessarily the end of the matter, however. The Board has fashioned a number of policies (or practices or "rules of thumb") in dealing with certification proceedings. No such policy can be any more than a general guideline. As such, it functions as much as a guideline for the labour relations community as it is a tool used by the Board. However, by the very nature of such policies, there will be limits of exceptions to them. No policy can either conflict with a legislation or be written in stone. Blind adherence to a policy laid down in advance is tantamount to a denial of jurisdiction (and is reviewable by the courts as such: see, Re Testa and Workers' Compensation Board of British Columbia, 1989 CanLII 2727 (BC CA), [1989] 58 D.L.R. (4th) 676 (B.C.C.A.) at pages 685 to 687). The Board must ensure that its practices and policies are both responsive to the real world of labour relations and that they are applied in appropriate circumstances.

19. On the other hand, policies or practices which have evolved over and stood the test of time should not be abandoned without some clear and compelling reason(s) to do so. To approach them indifferently would make them something other than policies and would create undesirable uncertainty in the community. It could also lead to protracted unnecessary litigation.

20. In short, there is a balance to be struck. While the Board cannot fetter its discretion in advance of a case before it, there is a value to consistency in the approach taken by the Board to the issues with which it regularly deals in applications for certification. While the Board must always be willing to examine its policies and their applicability to the cases before it, the Board should not abandon tried and true policies unless there is a cogent reason to do so.

21. Can the economy and the efficiency of an employer's operation be determinative of the appropriate bargaining unit? We think not. We observe that in many situations in which there is no existing bargaining unit (that is, no collective bargaining relationship) a respondent employer to an application for certification by a craft trade union may prefer a bargaining unit which is broader than the craft(s) represented by the applicant. In the construction industry, the Board finds, virtually without exception, the craft bargaining unit to be appropriate anyway. Similarly, as we have already noted, even in a displacement application in which an applicant craft trade union seeks to carve its standard craft bargaining unit of employees in the construction industry out of the broader existing one, the Board generally permits it to do so.

22. Can the possibility of labour relations problems dictate how a bargaining unit is to be structured? Again, we think not. To be sure, the Board should (and does) strive to avoid labour relations problems. However, that goal cannot become an absolute end in itself. Jurisdictional disputes, certain strike/picketing problems, strike induced lay-offs and other labour relations problems are an unfortunate but natural consequence of a craft based industry, which the construction industry in Ontario is. It is no answer, and in our view contrary to the structure of the construction industry provisions of the Act, to preclude a craft trade union from representing those employees engaged in its craft who are already represented by some other, non-craft, union. The race does not always go to the swiftest.

23. Though they are not determinative, neither are factors such as the economy and the efficiency of an employer's business or the possible labour relations consequences irrelevant to the Board's considerations in determining the appropriate bargaining unit in applications for certification like the two before the Board in these proceedings.

24. A substantial amount of the evidence before the Board in this case is in the form of an agreed statement of fact. The Board also heard the viva voce testimony of Alexander Delulius, Chairman of the Ontario Form Work Association.

25. Upon considering the evidence presented and the representations made to the Board in these proceedings, we find no substantial difference between them and the facts found and the arguments rejected by the Board in the decisions in Ellis-Don Limited, supra with respect to the carve out question. In addition to what is set out in the passages from the Ellis-Don decisions set out above, the evidence reveals that there are some 3,000 employees presently covered by a "Form Work Style Agreement", 2,000 of whom are employed by employers who are members of the Ontario Form Work Association. Forming contractors bound by a Form Work Style Agreement have performed virtually all of the concrete forming construction work in the high-rise portion of the residential sector of the construction industry in Metropolitan Toronto and vicinity (effectively Board Area 8). They have done so using members of the Labourers International Union of North America (several locals of which are constituent trade unions of the council) to perform all aspects of concrete forming construction which are relevant to our considerations (that is, the role played by members of Local 793 of the International Union of Operating Engineers is not relevant) without regard to the traditional craft distinctions between the labourers and, for example, carpenters, ironworkers, and cement masons. It is evident that the construction labourers so employed have performed the functions of such other crafts in this context. Under the Form Work Style Agreements, these "construction labourers" are divided into five "Groups". Group 1 consists of Form Builder - Setters. It is common ground in these proceedings that these Form Builder - Setters are, in effect, the carpenters or carpenters' apprentices with respect to which the applications herein have been made.

26. As in Ellis-Don Limited, supra, the assertion made to the Board in this case is that the members of a concrete forming construction crew exercises skills of more than one craft and are interchangeable each with the other. It is said that this creates a situation which is flexible, efficient and economic. Just as they may be an ICI "mind set" this appears to be the concrete forming construction mind set. Although it is not wholly inaccurate, it is not, upon close scrutiny, entirely accurate either. The evidence reveals that an "average" concrete forming construction crew consist of some 30 employees as follows:

(a) 5 employees in Group 1 - Form Builder - Setters (i.e., the carpenters);

(b) 7 employees in Group 2 - Reinforced Concrete Workers;

(c) 16 employees in Group 3 - Form Helpers (i.e., the labourers);

(d) 1 employee in Group 4 - Working Foreman;

(e) 1 employee in Group 5 - layout man.

Mr. Delulius testified that the exigencies of the real life form work job are such that certain delays (and time is money) would be inevitable if a form work contractor was unable to have employees in one group do the work of employees in another group as the need arose. However, he admitted that ideally each group of workers would specialize in certain tasks according to the group in which they are classified. He also admitted, and indeed it is self-evident, that Group 3 employees, taken as a whole, and who are the lowest paid and probably the least skilled employees in a form work crew, cannot perform all of the functions of a Group 1 employee, or an employee in any other group. It is clear that there is greater flexibility from Group ito Group 3 than vice versa, for example. Indeed, Mr. Delulius admitted that a more skilled Group 3 worker can sometimes do some Group 1 work if he is adept at it, which suggest that there is very little flexibility from Group 3 to Group 1. The mere existence of different groups or classifications of employees, and rates of pay therefore, suggest that they are not all the same and that they do not exercise so similar a combination of skills as to be entirely interchangeable. In that respect, we find the comments in paragraphs 54 and 55 of Ellis-Don Limited, [1988] OLRB Rep. Dec. 1254, supra, (set out above) to which emphasis has been added to be equally apposite to the applications before us.

27. Mr. Delulius also testified that if Local 27 is permitted to carve out its craft from the existing bargaining units herein, the pricing (and therefor presumably the cost) associated with operating a concrete form work construction crew would increase by approximately 30%. It is not clear to us why that would necessarily be so. According to Mr. Delulius, the number of Group 1 employees would likely have to increase from five to 10. But the number of Group 3 employees would likely decrease from 16 to 12 or 13. Mr. Delulius assumed that the Group 1 employees (i.e., the carpenters) would be paid at ICI rates and that these rates would be higher than the rates paid under the Form Work Style Agreements. There is no evidence before us which suggests either that the ICI wage rates paid to carpenters or their apprentices are in fact higher than those paid to either Group 1 or Group 3 employees under the Form Work Style Agreements or of the extent of any such difference. Even if we accept those unsubstantiated assumptions, it is evident that Mr. Delulius also assumed that the difference in costs that he estimated would be equivalent to the difference between the costs of an ICI job and a non-ICI job. In doing so, he included the difference in the cost of materials as well as the difference in labour costs (only 70% of the total differential is labour costs, leaving the differential for our purposes at approximately 21%, if we use Mr. Delulius' estimate). Mr. Delulius also agreed that the labour cost differential would be lower if some carpenters apprentices were used instead of carpenters. In making his estimate, Mr. Delulius also included the earlier applicability of overtime premium rates for carpenters on ICI jobs compared to jobs in a residential sector (in Board Area 8). It is far from obvious that Local 27 would, if successful in these applications, be able to negotiate (for sectors other than the ICI) wage rates for carpenters and carpenters' apprentices employed by the respondents which are significantly higher than those already being paid to them. Even if it was, a judicious use of carpenters apprentices could substantially reduce the cost differential. In our view, Mr. Delulius overstated what is likely to be the real difference in economy and efficiency which might result from permitting the carpenters carve out requested herein. Also, and significantly in our view, Mr. Delulius admitted that any such difference was a bargaining issue rather than an unavoidable result.

28. It may be that is is more economic or efficient for employers to operate with crews in which the employees are not divided on the basis of craft. However, any differences and the manner in which the respondents can operate and any resulting changes in the economy or efficiency in their operation are more likely to be in degree than in kind and, as Mr. Delulius admitted, are the sort of things which can be dealt with in collective bargaining.

29. It may also be that fragmentation of crews on a craft basis can lead to jurisdictional disputes, picketing problems, strike oriented lay-offs, and perhaps other labour relations problems. The Board recognized that in its decisions in Ellis-Don Limited, supra, and we recognize it here. Notwithstanding that, and as the Board also observed in Ellis-Don, the construction has shown such a great tolerance for fragmentation that fragmentation tends to be the rule rather than the exception in it.

30. In addition, the rights of employees to determine for themselves which, if any, trade union will represent them is fundamental to the Act. While no trade union has a monopoly on the right to represent any employees engaged in a construction industry, the Act does tend to create an oligolopic representation structure by precluding some trade unions from representing some such employees. More specifically, trade unions which are a designated employee bargaining agency or an affiliated bargaining agent of one can only represent in bargaining in the ICI sector of the construction industry those employees engaged in a craft or trade which such an employee bargaining agency has been designated to represent. However, just as this does not mean that trade unions which are not an employee bargaining agency (or an affiliated bargaining agent or one) cannot represent such employees as well, neither does it preclude unions who are, and who are therefore governed by sections 144(1) through (4) of the Act, from displacing another trade union with respect to employees who they have been specifically designated to represent. Similarly, there are some overlapping designation orders. As Duron Ottawa Ltd., supra, illustrates, a trade union designated to represent a craft which another trade union is also designated to represent can carve out that craft from a broader base bargaining unit represented by that other trade union. This again illustrates that the race does not irrevocably go to the swiftest.

31. In the result, we are satisfied that Local 27 has properly brought the applications for certification herein pursuant to section 144(1) of the Act. Further, we agree with the Board's reasoning in Aero Block and Precast Ltd., supra, and are not persuaded that we should depart from the direction taken therein in these proceedings. We are satisfied that the Board's general policies of allowing a craft to carve out in the construction industry and of having the description of the non-ICI part of the bargaining unit mirror the ICI part of the description in an application under section 144(1) of the Act are applicable to these applications.

32. Accordingly, having regard to everything before the Board and pursuant to section 144(1) of the Labour Relations Act, the Board finds that all carpenters and carpenters' apprentices in the employ of the respondent in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario and all carpenters and carpenters' apprentices in the employ of the respondent in all other sectors in the Municipality of Metropolitan Toronto, the Regional Municipalities of Peel and York, the Towns of Oakville and Halton Hills and that of the Town of Milton within the geographic Township of Esquesing and Trafalgar, and the Towns of Ajax and Pickering in the Regional Municipality of Durham, save and except non-working foremen and persons above the rank of non-working foreman, constitute a unit of employees of the respondent appropriate for collective bargaining in both Board File No. 3168-88-R and Board File No. 0173-89-R.

33. The Registrar is directed to schedule these matters for hearing for the purpose of hearing the evidence and representations of the parties with respect to all matters remaining in issue in any of them.

DECISION OF BOARD MEMBER J. LEAR; December 6, 1989

1. I dissent.

2. This is a situation in which there is no "right" decision, only one which is "better" than its alternative. The "better" decision has to be determined not by reference to legal authorities, which exist on both sides of the argument, but rather by a studied analysis of the benefits and the detriments which would accrue to each of the opposing groups and, more importantly, to the members they represent.

3. While the decision sets out, fairly and honestly, the arguments for allowing and for not allowing the applicant's claim, I believe that its main thrust, as written, is to demonstrate that a "carve-out" of a unit of employees is permitted by the Act and by Board practice. This conclusion is then used to justify the decision that the applicant should be permitted to carve-out Carpenters and Carpenter Apprentices from the present bargaining unit covered by the Form Work Council Agreement.

4. In my opinion, the decision should concentrate on examining the broader issues of what will be achieved by allowing such a carve-out, and what will be lost as a result.

5. There must be a good deal of sympathy for the applicant's right to represent members f its own craft and, as pointed out in paragraph 30 of the majority decision:

.the rights of employees to determine for themselves which, if any, trade union will represent them is fundamental to the Act.

This is the sole, though vital, point in favour of allowing the carve-out.

6. Against this, though paragraph 50, Ellis-Don Limited, (1988) OLRB Rep. Dec. 1254 states:

Local 27 has no history of organizing at all comparable to that of Local 183 and the Form Work Council within the residential sector in Board Area 8.

During the hearing, counsel for the respondent Automatic Structures Ltd. referred to the total lack of evidence of any organizational activity on the part of the Carpenters' union in the residential sector.

7. Several attempts in the mid-1960's by a council of unions, including the Carpenters' union, to organize in the residential forming field were short-lived and unsuccessful. It was left to Local 183 to develop the enterprise which evolved 20 years ago into the present Form Work Council, an all-trades bargaining unit. It is fair to say the Council has enjoyed success and is acknowledged in the residential concrete forming sector as the prime organizational force. There appears to be no question that all members, including Carpenters and Carpenter apprentices, have been properly represented by the Form Work Council.

8. Given this background of previous non-involvement by Local 27, and a long history of successful control and quite harmonious relationship, one has to wonder what will be gained by approving a carve-out? Local 27 will be able to represent its members directly in the residential concrete forming area. Will those members benefit as a result? Perhaps, or perhaps not. Will the carve-out result in more rigid lines being drawn between trades in the residential concrete forming field, destroying the traditional interchangeability and inter-dependence among crew members, and creating more trade disputes? Almost certainly. The potential threat is there, reinforced by the statement of counsel to Local 27 during the hearing that the Carpenters would claim scaffolding, now the work of form helpers.

9. There is no doubt of the interchangeability of and inter-dependence among members of the concrete forming crew although, as pointed out in paragraph 26 of the majority decision, there is not a complete interchangeability, for a Group 3 employee (the least skilled):

cannot perform all of the functions of a Group 1 employee, or an employee in any other group. (emphasis added).

This apparently negative statement is, in fact, a very positive testimony to the value of a composite crew - it means that a Group 3 employee can nonetheless perform some of the functions of a Group 1 employee. Surely this is an argument for maintaining, not destroying, the present system? It proves that totally unskilled workers who have the native ability to develop further skills, but never had an opportunity to do so, are able to improve their experience and their earning power as members of a forming crew. This is a very real consideration which should be given weight in the decision. The construction industry is replete with examples of individuals with limited training who have risen to positions of seniority and authority.

10. The decision points out (notably paragraph 10, quoting paragraphs 39 and 40 of Ellis-Don Limited) that the Board's attitude to carve-out of craft units in construction is different from its approach to industrial units i.e. the Board will normally sever a craft unit in construction, but not in the industrial area. While this establishes a practice for construction, it does not necessarily set out an inflexible position. There are obviously good reasons for the two different approaches.

11. The typical industrial unit is in a permanent location and brings together at one time a relatively constant mixture of people of different skills and/or trades working together under the same roof (figuratively speaking) and usually forming part of a progressive and complementary process.

12. By contrast, the typical construction site is temporary, relatively short-term in operation and brings together at different times a constantly changing mixture of people of different skills and/or trades, often working in isolation from each other in different and unconnected areas of a widespread work site and, though part of a final complementary process, likely to have moved on when the next part of the process they took part in has begun. Specialist craftsmen, e.g. electricians, plumbers, in one work week may work on 3 or 4 different job sites and under sub-contract to as many prime contractors, particularly in residential housing. The still "casual" nature of construction is reflected in the high labour turnover experienced in the industry.

13. A concrete forming crew is by nature and composition more like an industrial unit than a typical construction unit. Members of the crew are inter-dependent, grow to understand each other's methods of working, and often try to stick together as a team, while the good employer attempts to keep them that way too, often transferring them as a group to a new site. This factor also deserves to be given weight in the decision.

14. The old adage "If it ain't broke, don't fix it", does not suit every situation, like most sayings of its kind. In considering this application, however, it seems to be most singularly appropriate. When the present system works so well, there is absolutely no value in abandoning it in favour of a system much less efficient and economic and one which may well create a great deal of labour strife.

15. The preamble to the Labour Relations Act states:

it is in the public interest of the Province of Ontario to further harmonious relations between employers and employees...

The majority decision states in paragraph 10, (quoting from the Ellis Don decision):

48. . . .the Board and its practices and policies, must be responsive to developments in the real world of labour relations. The Board should be sensitive to such changes so that its policies and practices can evolve to accommodate them rather than requiring the labour relations community to adapt to the Board. (emphasis added)

50.... Form Work and Form Work style agreements have, on the evidence before the Board, adapted to the needs of and changes in the construction and as such have worked to the benefit of both employers and employees covered by them (emphasis added)

Also, in the majority decision are these statements:

19... .policies or practices which have evolved over and stood the test of time should not be abandoned without some clear and compelling reason(s) to do so. (emphasis added)

20. . . .the Board should not abandon tried and true practices and policies unless there is a cogent reason to do so. (emphasis added)

16. I believe the considerations given to permitting Local 27 to carve out its craft have been allowed to overshadow the real point at issue, which is one where a long-established, successful and quite harmonious relationship in residential concrete forming stands to be sacrificed, creating the potential for trade disputes and disruption of work, in order that Local 27 may represent its members in this sector, which it has chosen to ignore for many years.

17. In my opinion, the reasons for allowing the applications are not in themselves of sufficient weight to risk the possible consequences. Therefore, I would reject the application of Local ~7 to carve out Carpenters and Carpenter Apprentices and would allow Local 183 to continue to cover these employees through the Form Work Council Agreement.