Metropolitan Toronto Sewer and Watermain Contractors Association v. International Union of Operating Engineers, Local 793, 1989 CanLII 2991

[1989] OLRB Rep. December 1226

1533-88-R; 1534-88-R; 1535-88-R Metropolitan Toronto Sewer and Watermain Contractors Association, Applicant v. International Union of Operating Engi­neers, Local 793, Respondent v. Ontario Concrete and Drain Contractors Associ­ation, Intervener #1 v. Labourers International Union of North America, Local 183, Intervener #2 v. Teamsters' Local Union 230, Intervener #3 v. Metropolitan Toronto Road Builders Association, Intervener #4 v. Canadian Automatic Sprin­kler Association, Intervener #5 v. United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 46, Intervener #6 v. The Ontario Pipe Trades Council of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fit­ting Industry of the United States and Canada, Intervener #7 v. United Associa­tion of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 853, Intervener #8 v. Metropolitan Toronto Apartment Builders Association, Intervener #9 v. Toronto Construction Associa­tion, General Contractors Section, Intervener #10 v. Sarnia Construction Associ­ation, Intervener #11 v. Construction Association of Thunder Bay, Intervener #12 v. Sudbury Construction Association, Intervener #13 v. Electrical Power Sys­tems Construction Association, Intervener #14; Metropolitan Toronto Sewer and Watermain Contractors Association, Applicant v. Teamsters' Local Union 230 and a Council of Trade Unions acting as the representative and agent of Team­sters' Local Union 230 and Labourers' International Union of North America, Local Union 183, Respondents v. Ontario Concrete and Drain Contractors Asso­ciation, Intervener #1 v. Labourers International Union of North America, Local 183, Intervener #2 v. International Union of Operating Engineers, Local 793, Intervener #3 v. United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 46, Intervener #4 v. The Ontario Pipe Trades Council of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Intervener #5 v. United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 853, Intervener #6 v. Metropolitan Toronto Apartment Build­ers Association, Intervener #7 v. Toronto Construction Association, General Contractors Section, Intervener #8 v. Sarnia Construction Association, Inter­vener #9 v. Construction Association of Thunder Bay, Intervener #10 v. Sudbury Construction Association, Intervener #11 v. Electrical Power Systems Construc­tion Association, Intervener #12; Metropolitan Toronto Sewer and Watermain Contractors Association, Applicant v. Labourers' International Union of North America Local Union 183 and a Council of Trade Unions acting as the representa­tive and agent of Teamsters' Local Union 230 and Labourers' International Union of North America, Local Union 183, Respondents v. Ontario Concrete & Drain Contractors Association, Intervener #1 v. Ontario Precast Concrete Manufactur­ers' Association, Intervener #2 v. The Residential Low-Rise Forming Contractors Association of Metropolitan Toronto and Vicinity, Intervener #3 v. Teamsters Local Union 230, Intervener #4 v. International Union of Operating Engineers, Local 793, Intervener #5 v. The Heavy Construction Association of Toronto, Intervener #6 v. Metropolitan Toronto Road Builders Association, Intervener #7 v. United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 46, Intervener #8 v. The Ontario Pipe Trades Council of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Intervener #9 v. United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 853, Intervener #10 v. Canadian Automatic Sprinkler Association, Intervener #11 v. Metropolitan Toronto Apartment Builders Association, Intervener #12 v. Toronto Housing Labour Bureau, Intervener #13 v. Toronto Construction Asso­ciation, General Contractors Section, Intervener #14 v. Sarnia Construction Association, Intervener #15 v. Sudbury Construction Association, Intervener #16 v. Construction Association of Thunder Bay, Intervener #17 v. Electrical Power Systems Construction Association, Intervener #18.

BEFORE: N. B. Satterfield, Vice-Chair, and Board Members W. Gibson and H. Kobryn.

APPEARANCES: G. W. Adams, R. J. Charney, D. L. Gee and R. W.A. Cochran for the applicant; S. B. D. WahI, J. Steffanini, I. Raymond and R. Kennedy for Labourers International Union of North America, Local 183; Teamsters Local Union 230; and International Union of Operating Engineers, Local 793; 5. C. Bernardo, B. Binning, J. Liberman and R. Werry for the Toronto I-lousing Labour Bureau; Ontario Precast Concrete Manufacturers' Association; The Residential Low-Rise Forming Contractors Association of Metropolitan Toronto and Vicinity; The Heavy Construction Association of Toronto; Metropolitan Toronto Road Builders Association; Sarnia Construction Association; Construction Association of Thunder Bay; Sudbury Construction Asso­ciation; and the employers listed on Appendix "A" of this decision; Hercules E. Faga for Ontario Concrete and Drain Contractors Association; Donald B. Francis for Canadian Automatic Sprin­kler Association; Roy Filion, Carl Peterson and Karl Mallette for Metropolitan Toronto Apartment Builders Association; Laurence C. Arnold and Vince McNiel for the Ontario Pipe Trades Council of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Indus­try of the United States and Canada, Local 46; Lionel G. Clarke for United Association of Jour­neymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 853; H. A. Beresford for Ontario Hydro and Electrical Power Systems Contractors Association; Les Braun for Win. Groves Limited; Carl Peterson for Catalytic Maintenance Inc.; Union Gas Ltd.; Viewmark Homes Ltd.; Mastercraft Bridge & Engineering Construction (Ot­tawa) Limited; Vipond Automatic Sprinkler Company Limited; Gottardo Contracting (1980) Inc.; Landmark Contracting Ltd.; Conservatory Construction Company Limited; Stearns Catalytic Lim­ited; and Gottcon Contractors Ltd.; M. G. Horan for Frankfurt Investments Limited; and Land-ford Developments Limited; Ed Zacharczuk for Ross Hartrick (1978) Limited; S. A. Bernofsky for C & M Construction (Kingston) Ltd.; and Inducon Construction (Northern) Limited; Irv Kleiner for H. G. Susgin Construction Ltd.; Maureen F. Fitzgerald for Win. Parker Construction Limited; Richard J. Nixon and Chris Taylor for Paul Daoust Construction Limited; Fred Heerema for Giffin Sheet Metals Limited; Emidio Pavone for Emico Contracting Inc.; Robin B. Cumine for Steinberg Inc.; D. Fryzuk for Armbro Materials & Construction Ltd.

DECISION OF THE BOARD; December 19, 1989

1. The Board issued a decision dated November 3, 1989 in which certificates of accredita­tion issued to the applicant in each of these applications. The reasons for the decision were to be issued later. The certificates were issued even though the Board had not finally determined whether Elirpa Construction & Materials Ltd. and Ontario Paving Company Limited in File No. 1533-88-R and Ontario Paving Company Limited in File No. 1535-88-R were employers who, dur­ing the year preceding the making of the relevant application, employed employees for whom the trade union respondent to that application held the requisite bargaining rights. If they were such employers, they would be among those employers to whom the double majority test of subsection 127(2) of the Labour Relations Act must be applied to determine whether the Board can accredit an employers' organization as the exclusive bargaining agent of all employers in the unit of employers. This decision sets out the Board's reasons for concluding that it had jurisdiction in those two applications to accredit the applicant and that it should exercise its jurisdiction. The decision also sets out the Board's detailed findings under subsection 127(1) and (2) of the Act for all three applications.

2. The accreditation provisions of the Act are to employers and employers' organizations what the certification provisions are to employees and trade unions. Just as a trade union which demonstrates the level of support required by subsections 7(2) or 7(3) amongst the employees in a bargaining unit of employees found by the Board to be appropriate for collective bargaining pur­poses pursuant to subsection 6(1) of the Act becomes the exclusive bargaining agent for all employees in the defined unit, an employers' organization which demonstrates that it represents sufficient employers in a unit of employers found by the Board to be appropriate for collective bar­gaining pursuant to section 126 to satisfy the subsection 127(2) double majority test, becomes the exclusive bargaining agent of all employers in the unit.

3. In an application for certification made under section 5 of the Act, the Board found it had jurisdiction to issue a final certificate to the applicant, and should do so, even though there was an unresolved question of whether any of five persons were employees who would be included in the unit: Robin Hood Multifoods Inc., [1985] OLRB Rep. July 1159. The Board had been able to define a unit of employees which was appropriate for collective bargaining as required by subsec­tion 6(1) of the Act. The definition (or composition) of the unit would not have been affected by any possible answer to the outstanding question. The Board had been able also to determine that more than fifty-five per cent of the employees in the defined unit would have been members of the applicant at the time for determining that question whether or not any, some or all of the five per­sons in question were among those employed in the unit.

4. The Board came to the conclusion that it had jurisdiction to issue a final certificate after a thoughtful and concise analysis of sections 6 and 7 of the Act. It dealt also with subsections 1(3)(b) and 106(2) which were relevant to the outstanding issue. After its analysis the Board stat­ed:

5. We are satisfied that where, as here, the description of the appropriate bargaining unit has been settled and the Board can say with certainty that more than 55 per cent of the employees in that unit on the application date were members of the applicant at the relevant time, the Board does have the jurisdiction to grant the applicant a final certificate, notwithstanding the existence of questions which could be dealt with in an application under subsection 106(2). Although the parties to this application agreed to attempt settlement of those questions before asking the Board to answer them, their agreement played no part in our conclusion on the jurisdictional question. The Board would have jurisdiction to grant a final certificate in these circumstances even if there were no such agreement.

6. There was no suggestion in this case that the bargaining unit description would be affected by a determination of the employee status of the disputed individuals. We need not deal here with the question whether and to what extent the Board must or ought to continue to resolve questions of the application of subsection 1(3)(b) in the fine tuning of a bargaining unit descrip­tion when those questions do not otherwise affect the result.

The principle that the issuing of a certificate in an application for certification should not be delayed while the Board resolves issues which would not in any event affect the final disposition of the application is, by analogy, equally applicable to delaying the issuing of an accreditation certifi­cate until every employer on Final Schedule "E" is determined where, in any event, the resolution of the remaining list issues cannot affect the applicant's entitlement to an accreditation certificate.

5. That the analogy fits may be seen by examining the legal analysis of sections 6 and 7 of the Act at paragraphs 7, 8 and 9 in Robin Hood, supra, and applying it to sections 126 and 127 of the Act:

6. Section 6 of the Act speaks to the appropriate bargaining unit. Subsection (1) provides:

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

The bargaining unit is an abstraction, a generic description of an employee group, the composi­tion of which is defined in terms of the inclusion or exclusion of employees according to the nature of the work each performs. The bargaining unit is defined without reference to the iden­tity of any particular employee. Bargaining rights are not restricted to persons employed at the time those rights are acquired; at any given time bargaining rights will extend to all persons then employed at jobs which fall within the scope of the bargaining unit description.

8. A question of bargaining unit composition is concerned with identifying the sorts of employ­ees who will be included in or excluded from the unit, and not with determining which persons are employees of the included sort at a given time. The latter question is addressed by section 7 of the Act:

7.-(1) Upon an application for certification, the Board shall ascertain the number of employees in the bargaining unit at the time the application was made and the num­ber of employees in the unit who were members of the trade union at such time as is determined under clause 103(2)(j).

(2) If the Board is satisfied that not less than 45 per cent and not more than 55 per cent of the employees in the bargaining unit are members of the trade union, the Board shall, and if the Board is satisfied that more than 55 per cent of such employees are members of the trade union, the Board may direct that a representation vote be taken.

(3) If on the taking of a representation vote more than 50 per cent of the ballots cast are cast in favour of the trade union, and in other cases, if the Board is satisfied that more than 55 per cent of the employees in the bargaining unit are members of the trade union, the Board shall certify the trade union as the bargaining agent of the employees in the bargaining unit.

Read literally and in isolation from the balance of the section, subsection (1) might be interpreted to require that the Board determine the precise number of persons in the unit on the application date and the precise number of those persons who were members of the applicant at the relevant time. However, the purpose of the directions in subsection (1) is made clear by sub­sections (2) and (3): the object is to determine only whether the number of members among bargaining unit employees exceeds one or other of the relevant percentages. From that perspec­tive, it is apparent that a literal interpretation of subsection (1) could require the Board to deter­mine questions of fact which are of no consequence to the outcome of the application, as where the only outstanding question is whether the number of members among twenty bargaining unit employees was ten or eleven at the relevant time. It should not be supposed that the Legislature intended that the final disposition of certification applications be delayed by litigation of issues whose resolution could in no event affect that disposition in any way. In our view, the obligation imposed on the Board by subsection 7(1) is discharged when the Board can say with certainty either that the percentage of members among bargaining unit employees is more than 55 per cent or that it is not less than 45 per cent and not more than 55 per cent. But for the provisions of subsection 6(2), however, the Board cannot resolve the questions posed by section 7 without first settling on a description of the appropriate bargaining unit.

9. Subsection 6(2) of the Act provides:

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

It is important to note that this provision appears in section 6, which deals in the abstract with identification of the sort of employees who will be included in a bargaining unit, rather than in section 7, which deals with the identity and numbers of persons employed in a unit at a particu­lar time. Subsection 6(2) is an exception to the requirement of subsection 6(1) that the definition of the appropriate bargaining unit be fully settled before an applicant can be given the right to act as exclusive bargaining agent for any employees of the respondent. A "dispute as to the composition of the bargaining unit", as those words are used in subsection 6(2), is a dispute over bargaining unit definition or description, a dispute over the sorts of employees who will fall within the bargaining unit, not a dispute over whether any particular individual is an employee of the requisite sort, nor a dispute whether a particular individual is an employee at all.

6. Section 126 and the relevant parts of section 127 provide as follows:

126.-(1) Upon an application for accreditation, the Board shall determine the unit of employers that is appropriate for collective bargaining in a particular geographic area and sector, but the Board need not confine the unit to one geographic area or sector but may, if it considers it advis­able, combine areas or sectors or both or parts thereof.

(2) The unit of employers shall comprise all employers as defined in clause 117(c) in the geo­graphic area and sector determined by the Board to be appropriate.

127. -(1) Upon an application for accreditation, the Board shall ascertain,

(a) the number of employers in the unit of employers on the date of the mak­ing of the application who have within one year prior to such date had employees in their employ for whom the trade union or council of trade unions has bargaining rights in the geographic area and sector determined by the Board to be appropriate;

(b) the number of employers in clause (a) represented by the employers' orga­nization on the date of the making of the application; and

(c) the number of employees of employers in clause (a) on the payroll of each such employer for the weekly payroll period immediately preceding the date of the application or if, in the opinion of the Board, such payroll period is unsatisfactory for any one or more of the employers in clause (a), such other weekly payroll period for any one or more of the said employers as the Board considers advisable.

(2) If the Board is satisfied,

(a) that a majority of the employers in clause (1)(a) is represented by the employers' organization; and

(b) that such majority of employers employed a majority of the employees in clause (1)(c),

the Board, subject to subsection (3), shall accredit the employers' organization as the bargaining agent of the employers in the unit of employers and for such other employers for whose employ­ees the trade union or council of trade unions may, after the date of the making of the applica­tion, obtain bargaining rights through certification or voluntary recognition in the appropriate geographic area and sector.

7. The Board has defined the unit of employers which is appropriate for collective bargain­ing in each of the instant applications, pursuant to section 126 of the Act. They are described at paragraph 4 of the decision which issued November 3, 1989. The parties agreed and the Board was satisfied that those descriptions would not be affected by the resolution of the list issue about the two employers.

8. The Board's interpretation of subsections 7(1), (2) and (3) of the Act in Robin Hood, supra, recognizes that the Legislature requires the Board to engage in a sequence of arithmetic cal­culations in order to acquire jurisdiction to certify a trade union, but does not require the Board to engage in calculations the resolution of which would not affect, in any event, the Board's acquisi­tion of jurisdiction. That was the practical result of the conclusion in Robin Hood that the Board had jurisdiction to certify the applicant once the Board had satisfied itself that, whether or not any, some or all of the five persons in question were among those employed in the unit, the result would not alter the trade union's entitlement to certification. While the double majority test which the Legislature adopted for the accreditation provisions of the Act creates obvious differences in the wording of subsection 127(1) and (2) compared with subsections 7(1), (2) and (3), they share a common purpose; that is, to set the tests by which the Board can decide whether a party seeking exclusive bargaining rights under the Act should acquire those rights. The differences in the word­ing of the subsections and the tests which they define, in the Board's view, are not differences which would prevent it from adopting the Board's legal analysis at paragraph 8 of Robin Hood, supra, and applying it to the interpretation of subsections 127(1) and (2) and the determination of the merits of the applications in Files No. 1533-88-R and 1535-88-R.

9. The Board was unable to ascertain in each of those applications the precise number of employers and employees required by clauses (a), (b) and (c) of subsection 127(1). It was able to ascertain, however, that the applicant would satisfy the double majority test of subsection 127(2) of the Act, whether or not either, neither or any one of Elirpa or Ontario Paving was on Final Sched­ule "E" for File No. 1533-88-R and whether or not Ontario Paving was on Final Schedule "E" for File No. 1535-88-R. Therefore, without resolving those issues, the Board was able to say with cer­tainty that the applicant represented a majority of the employers in the relevant unit of employers on the date of making of the application, who within one year prior to that date had in their employ employees for whom the respondent trade union had the requisite bargaining rights, and who employed a majority of such employees in the payroll period prescribed by clause (c) of sub­section 127(1). Accordingly, for the same reasons as given in Robin Hood, supra, the Board was satisfied that it had discharged its obligations under subsections 127(1) and (2) of the Act. The Board had previously found in an oral decision given August 9,1989, that the applicant had met the requirements of subsection 127(3) of the Act that it was a properly constituted employers' organization and that each of the employers whom it represents had vested it with the proper authority to discharge its bargaining obligations.

10. The Board found support also from the decision in National Capital Roadbuilders Association, [1988] OLRB Rep. Oct. 1041 for concluding in the instant applications that it had jurisdiction to accredit the applicant. In the National Capital decision, while the Board recognized that, as at the date of making of an application for accreditation, the unit of employers would con­sist of all employers for whose employees the respondent trade union had bargaining rights in the sector and geographic area by which the unit is described, it concluded that it had to identify with certainty only the individual employers whom the Board was required to "count" under subsection 127(1) of the Act for the purpose of calculating the double majority prescribed by subsection 127(2). They were the employers for whose employees the respondent trade union had bargaining rights in the relevant sector and geographic area who had employed such represented employees in the sector and geographic area within the year prior to the application date. The issue for the Board had been whether it must identify conclusively the individual employers who would not be counted under subsection 127(1) before it could acquire jurisdiction to accredit the applicant. It had been the Board's custom in applications for accreditation to identify those employers before settling the count. They were listed on a schedule referred to as Final Schedule "F" and, if a certifi­cate of accreditation was issued, they were named in the accreditation order and in the certificate.

11. After discussing some of the consequences of a successful application for accreditation, reviewing in considerable detail the obligations placed by the Act and the Board's Rules of Proce­dure on the Board and all parties to an application for accreditation (see paragraphs 8 through 13), and interpreting subsections 127(1) and (2) of the Act in that context, the Board concluded at paragraph 23 "...that the Legislature did not intend the Board to decide conclusively who are the individual '...employers in the unit of employers...' before accrediting the applicant except insofar as it is necessary to do so in the process of the Board acquiring jurisdiction to accredit the appli­cant.". At paragraphs 24 through 26, the Board, by analogy, adopted the reasoning in Robin Hood, supra, and concluded that it need not conclusively identify each individual employer who would be in the unit of employers in order to acquire jurisdiction to accredit the applicant and that it should not delay the issuing of an accreditation certificate while it made that identification.

12. The practical result of that conclusion is the same as in Robin Hood. That is, the Legis­lature requires the Board to engage in a sequence of arithmetic calculations in order to acquire jurisdiction to accredit an employers' organization, but does not require the Board to engage in calculations the resolution of which would not affect, in any event, the Board's acquisition of juris­diction under subsection 127(2) of the Act. In the Board's view, that principle had application to the issue herein even though Elirpa and Ontario Paving were employers who would affect the count of employers under subsection 127(1) of the Act. By the time the status of Elirpa and Ontario Paving was the only issue remaining which would affect the count of employers under clauses (a) and (b) of subsection 127(1) and the count of employees whom they employed during the payroll period prescribed in clause (c), none of the possible resolutions of the issue could affect the fact that the applicant had satisfied the double majority test of subsection 127(2) and was enti­tled to be accredited, as the Board has noted above at paragraph 9. Therefore, the final calcula­tions respecting Elirpa and Ontario Paving were unnecessary to the Board's acquisition of jurisdic­tion under subsection 127(2). That made them calculations which the Board was not required by the Legislature to make.

13. These are the reasons why, in the November 3rd decision, the Board found it had juris­diction to accredit the applicant in the two applications with outstanding list issues and, there being no other impediment to issuing accreditation certificates, that it should issue those certificates.

14. It is implicit in the Board's finding that it had jurisdiction to issue the certificates in those circumstances, that to proceed now and decide whether Ontario Paving Company Limited should be on Final Schedule "E" of File No. 1535-88-R and whether it and Elirpa Construction & Materials Ltd. should be on Final Schedule "E" of File No. 1533-88-R would be to decide an issue that need not be decided for the final disposition of the two applications. As the Board stated in paragraph 7 of its November 3rd decision, however, those employers, the applicant and respon­dents agreed that the Board should make a final determination of those issues. Having regard to the process adopted by the Board to determine the lists of employers in the three applications and because the two employers and two respondent trade unions wanted the determination made, the Board was disposed to proceed by the agreement of the parties. To that end, the Board served notice that it would receive the parties' evidence and representations on the issue at hearings scheduled previously for November 17th and December 15th. The parties resolved the issue at the hearings. They agreed that Elirpa should be included on Final Schedule "E" for File No. 1533-89-R and that Ontario Paving should not be included on that schedule or Final Schedule "E" for File No. 1535-88-R. Having regard to their agreement, the Board finds that Elirpa Construction & Materials Ltd. is to be included on Final Schedule "E" for File No. 1533-88-R and Ontario Paving Company Limited is not to be included on that schedule or on Final Schedule "E" for Board File No. 1535-88-R.

15. The Board has included Dawn Enterprises Ltd. on the Final Schedule "E" for File No. 1533-88-R. Dawn was represented by counsel at the hearing held on October 30, 1989, for the pur­pose of settling that schedule. Its name had been placed on the list of employers proposed by the applicant and the respondent trade union. In keeping with an earlier undertaking by the Board, that list had been served on the other parties together with the Board's notice of the hearing. When counsel queried at the hearing why Dawn was on the list, the Board produced to him the employer return which Dawn had filed. The return acknowledged that the respondent trade union was entitled to bargain for Dawn's employees in the sector and geographic area and that Dawn had employed such employees during the year preceding the making of the application. At that point, the question was withdrawn. Therefore, the Board declared Dawn Enterprises Ltd. to be an employer to be listed on Final Schedule "E" for File No. 1533-88-R.

16. Having regard to those findings, to the process adopted by the Board for dealing with lists of employers (described at paragraph 6 of the November 3rd decision) and on the basis of the employer returns, the evidence before the Board, the representations of the parties and the agree­ment of the applicant and respondents, the Board finds that the following employers listed on Final Schedule "E" set out below for each application to be those employers who had employees in the year immediately preceding the making of the application. There are a few instances where the result has been to list two employers as a single employer on Final Schedule "E". In doing so, that is not to say that they are to be treated as a single employer for other purposes of the Act.

File No. 1533-88-R

332573 Ontario Limited, c.o.b. as Coiner Construction 659928 Ontario Limited 0/a VJR Contractors 717401 Ontario Limited, cob. as Stancon Advice Contracting Limited Alcan-Colony Contracting Co. Limited P. Aldo & Sons Construction Ltd./Blue Rose Construction Ltd. Alsi Contracting Ltd. Argo Sewer & Watermain Ltd. Armagh Contractors Ltd. Armbro Materials & Construction Ltd. The Atlas Corporation Joe Baldesarra Construction Ltd. Bandiera & Associates Inc. Bar-Bro Construction Limited Bot Construction (Canada) Ltd./Clarkson Construction Limited Bradler Mechanical Limited Calder Hill Contracting Limited Canadrain Services Inc. Casimiri Brothers Contracting Ltd. C.D.C. Contracting A Division of Patron Contracting Limited Centreline Contracting Company Limited Chemello Contractors Clearway Construction Inc. Cliffside Utility Contractors Ltd. Cobra Drain & Developments Corp. Colosimo Contracting Limited Colvu Contracting Limited Con-Drain Company (1983) Limited Co-X-Co Construction Limited Craftwood Construction Company Limited Cucci Construction Limited D. I. Construction Co. Inc./Conro Leasing Limited Daly Construction Ltd. D'Andrea Contracting Company Ltd. Dawn Enterprises Ltd. Dibco Underground Limited Dimarco Plumbing & Heating Co. Ltd. D'Orazio Drain & Watermain Co. Limited Draggon Contracting Ltd. Drainex Construction Ltd. Dranco Group Inc. Dufferin Construction Company, a division of St. Lawrence Cement Inc. Earth Boring Co. Limited Elirpa Construction & Materials Ltd. Elmford Construction Company Limited En-San Contractors Ltd. Environmental Technical Services Inc. Erosion Control Gabions Ltd. F.C.M. Construction Limited Fernview Construction Limited Fer-Pal Construction Ltd. The Foundation Company of Canada Ful-Con Constructors Inc. GEAR. Contracting Inc. G. L. Trenching Ltd. Goldmar Contracting Ltd./ Lacione Contracting Company Ltd. Harguy Construction (1968) Ltd. Hi-Road Earthmoving Inc. Hollingworth Construction Co. Hulst Town Contracting Ltd. Johnston Rock Boring Tunnel systems Ltd. Keeway Construction Co. Ltd./Keeway Holdings Limited King Cross Contracting Limited Kleen-Way Construction Limited KVC Construction Ltd. Lamco Construction Limited Lednier Construction Co. Ltd. Limironi Inc. Lisanti Projects Limited L.J.S. Construction Limited Lou Leclair Contracting Limited Lucy Construction Ltd. G. Macera Contracting Limited Jimmy Mack & Son Construction Ltd. JNO. Maguire Contracting Company Limited Maiella Contracting Sewers & Watermain Limited Mando Contracting Limited Marbel Construction Ltd. Marcott Tunnelling Inc. Mardave Construction Limited/Crisam Inc. Marlborough Construction Ltd. Matthews Contracting Inc. Midview Construction & Drain Ltd. C & M McNally Engineering Inc. S. McNally & Sons, Limited Niran Construction Limited Nor-Scott Construction Limited Oren Plumbing Inc. Pachino Construction Co. Ltd. Pelar Construction Ltd/York Excavating & Grading Co. Peran Tunnelling Ltd. Pilen Construction of Canada Limited Pisa Construction Company Limited Pit-On Construction Company Limited Pitts Engineering Construction, a division of Banister Continental Ltd. Poce Construction Limited Power Contracting Inc. Queen City Landscaping Ltd. Rabito Sewer and Watermain Contractors Limited Raken Contracting Limited Ron Robinson Limited George Robson Construction (Weston) Limited G.B. Romano Sons (Toronto) Limited Roseway Construction Limited Ross Drain Construction Co. Ltd. Rymall Construction Inc. Salvador Excavating Limited/Eclipse Excavating & Sales Ltd. Sam and Mark Construction Co. Ltd. The Smario Group/Mar-Tacc Ltd. Sansone Construction Company Limited E.R.P. Savini Construction Co. Ltd. Lou Savini Limited S.C.A.I. Construction Ltd. Sebco Contracting Ltd. Serrentino Equipment Ltd. Silvio Construction Co. Ltd. Sonterlan Construction Corp. Soren Construction Ltd. Starnino Construction Co. Ltd. Suppa Construction Limited Tacc Construction Co. Ltd. Targa Limited Temar Construction Ltd. Teston Pipelines Limited Thrurock Construction Ltd. Topsite Contracting Limited/Badner Engineering Limited Tri-D Concrete & Drain Ltd. UCL - Underground Construction Limited A. Valente Construction Co. Ltd. Valentine Underground Services Ltd. VISP Construction Co. Ltd. Warden Construction Co. Limited Wardet Limited Wasero Construction Limited Westwood Drain Co. Limited George Wimpey Canada Limited York Construction & Drain Contractors Limited Zentil Plumbing & Heating Co.

File No. 1534-88-R

332573 Ontario Limited, c.o.b. as Coiner Construction Curbside Construction Division of 694904 Ontario Inc. 717401 Ontario Limited, c.o.b. as Stancon Advice Contracting Limited Alcan-Colony Contracting Co. Limited Alsi Contracting Ltd. Argo Sewer & Watermain Ltd. Armbro Materials & Construction Ltd. Bandiera & Associates Inc. Bar-Bro Construction Limited Bradler Mechanical Limited Calder Hill Contracting Limited Clearway Construction Inc. Cliffside Utility Contractors Ltd. Colvu Contracting Limited Con-Drain Company (1983) Limited Co-X-Co Construction Limited Craftwood Construction Company Limited Cucci Construction Limited DI. Construction Co. Inc./Conro Leasing Limited Daly Construction Ltd. D'Andrea Contracting Company Ltd. Dawn Enterprises Ltd. Dibco Underground Limited D'Orazio Drain & Watermain Co. Limited Draggon Contracting Ltd. Drainex Construction Ltd. Dranco Group Inc. Dufferin Construction Company, a division of St. Lawrence Cement Inc. Earth Boring Co. Limited Elmford Construction Company Limited En-San Contractors Ltd. Fernview Construction Limited The Foundation Company of Canada Ful-Con Constructors Inc. Harguy Construction (1968) Ltd. Hollingworth Construction Co. Keeway Construction Co. Ltd./Keeway Holdings Limited King Cross Contracting Limited Kleen-Way Construction Limited K.V.C. Construction Ltd. Lamco Construction Limited Lisanti Projects Limited L.J.S. Construction Limited Lou Leclair Contracting Limited G. Macera Contracting Limited JNO. Maguire Contracting Company Limited Mando Contracting Limited Marcott Tunnelling Inc. Marlborough Construction Ltd. C & M McNally Engineering Inc. S. McNally & Sons, Limited Nor-Scott Construction Limited Pachino Construction Co. Ltd. Pelar Construction Ltd./York Excavating & Grading Co. Peran Tunnelling Ltd. Pilen Construction of Canada Limited Pisa Construction Company Limited Pitts Engineering Construction, a division of Banister Continental Ltd. Poce Construction Limited Power Contracting Inc. Rabito Sewer and Watermain Contractors Limited Riviera Sewer Forming Ltd. George Robson Construction (Weston) Limited G. C. Romano Sons (Toronto) Limited Roseway Construction Limited Rymall Construction Inc. Salvador Excavating Limited/Eclipse Excavating & Sales Ltd. Sansone Construction Company Limited E.R.P. Savini Construction Co. Ltd. Lou Savini Limited Sebco Contracting Ltd. Suppa Construction Limited Tacc Construction Co. Ltd. Teston Pipelines Limited Thrurock Construction Ltd. Topsite Contracting Limited/Badner Engineering Limited Valentine Underground Services Ltd. Warden Construction Co. Limited Wardet Limited Wasero Construction Limited Westwood Drain Co. Limited George Wimpey Canada Limited

File No. 1535-88-R

332573 Ontario Limited, c.o.b. as Coiner Construction 659928 Ontario Ltd. o.a. V.J.R. Contracting 717401 Ontario Limited, c.o.b. as Stancon Aberdeen Highlands Construction Ltd. Advice Contracting Limited Alcan-Colony Contracting Co. Limited Alsi Contracting Ltd. Argo Sewer & Watermain Ltd. Armagh Contracting Ltd. Armbro Materials & Construction Ltd. The Atlas Corporation Joe Baldessara Construction Bandiera & Associates Inc. Bar-Bro Construction Limited G. Bellisario Carpenters Bot Construction (Canada) Ltd./ Clarkson Construction Limited Bradler Mechanical Ltd. Calder Hill Contracting Limited Canadrain Services Inc. Casimiri Bros. Contractors Ltd. C.D.C. Contracting A Division of Patron Contracting Limited Clearway Construction Inc. Cliffside Utility Contractors Ltd. Clipper Construction Ltd./Coreydale Contracting Co. Colavita Construction Co. Ltd. Colosimo Contracting Limited Colvu Contracting Limited Con-Drain Company (1983) Limited Co-X-Co Construction Limited Craftwood Construction Company Limited Cucci Construction Limited D. I. Construction Co. Inc./Conro Leasing Limited Daly Construction Ltd. D'Andrea Contracting Company Ltd. Dawn Enterprises Ltd. Dibco Underground Limited D'Orazio Drain & Watermain Co. Limited Draggon Contracting Ltd. Drainex Construction Ltd. Dranco Group Inc. Dufferin Construction Company, a division of St. Lawrence Cement Inc. Duntri Construction Earth Boring Co. Limited Elmford Construction Company Limited En-San Contractors Ltd. F.C.M. Construction Limited Fernview Construction Limited The Foundation Company of Canada Ful-Con Constructors Inc. Gem Contracting (Darwin Jones) G. L. Trenching Ltd. Goldmar Contracting Ltd./ Lancione Contracting Company Ltd. Grammi Construction Co. Ltd. Harguy Construction (1968) Ltd. Hollingworth Construction Co. Keeway Construction Co. Ltd./Keeway Holdings Limited King Cross Contracting Limited Kleen-Way Construction Limited K.V.C. Construction Ltd. Lamco Construction Limited Lisanti Projects Limited L.J.S. Construction Limited Lou Leclair Contracting Limited G. Macera Contracting Limited Jimmy Mack & Son Construction Ltd. JNO. Maguire Contracting Company Limited McLeod Engineering Inc. Maiella Contracting Sewers & Watermain Limited Mando Contracting Limited Marbel Construction Ltd. Marcott Tunnelling Inc. Mardave Construction Ltd./Crisam Inc. Marlborough Construction Ltd. C & M McNally Engineering Inc. S. McNally & Sons, Limited Memme Excavating Co. Ltd. Niran Construction Limited Nor-Scott Construction Limited Pachino Construction Co. Ltd. Pelar Construction Ltd./York Excavating & Grading Co. Peran Tunnelling Ltd. Pilen Construction of Canada Limited Pisa Construction Company Limited Pit-On Construction Company Limited Pitts Engineering Construction, a division of Banister Continental Ltd. Poce Construction Limited Power Contracting Inc. Rabito Sewer and Watermain Contractors Limited Raken Contracting Limited D. W. Rankin Limited George Robson Construction (Weston) Limited Rockville Construction Ltd. Roma Excavating & Grading Ltd. G. C. Romano Sons (Toronto) Limited Roseway Construction Limited Ross Drain Construction Co. Ltd. Rymall Construction Inc. Salvador Excavating Limited/Eclipse Excavating & Sales Ltd. Sam and Mark Construction Ltd. The Samario Group/Mar-Tacc Ltd. Sansone Construction Company Limited Sebco Contracting Ltd. Silvio Construction Co. Ltd. Stella Sewer and Watermain Forming E.R.P. Savini Construction Co. Ltd. Lou Savini Limited Subgrade Construction Co. Inc. Suppa Construction Limited Tacc Construction Co. Ltd. Targa Limited Teston Pipelines Limited Thrurock Construction Ltd. Topsite Contracting Limited/Badner Engineering Limited UCL - Underground Construction Limited A. Valente Construction Co. Ltd. Valentine Underground Services Ltd. Visp Construction Co. Warden Construction Co. Limited Wardet Limited Wasero Construction Limited Westwood Drain Co. Limited George Wimpey Canada Limited

17. While the Board was able to satisfy itself in each application that the applicant had satisfied the double majority requirements of subsections 127(1) and (2) of the Act in spite of the outstanding issue of the two employers, the Board did not set out in its November 3rd decision its detailed findings under those subsections because it had agreed to make final determinations respecting the two employers. Since those issues have been finally determined, the Board will set out those findings now. On the basis of the evidence before it, the representations of the parties and the agreement of the applicant and the respondents, the Board makes the following findings in each application with respect to the double majority requirements of subsection 127(1) and (2) of the Act.

File No. 1533-88-R

The 138 employers listed on Final Schedule "E" for this application are those employers who had employees in the year immediately preceding September 26, 1988, the date of the making of the application, and 138 is the number of employers to be ascertained by the Board under sub­section 127(1)(a) of the Labour Relations Act. The Board further finds that, on the date of mak­ing of the application, the applicant represented 74 of the 138 employers on Final Schedule "E" and 74 is the number of employers to be ascertained by the Board under subsection 127(l)(b) of the Labour Relations Act. Accordingly, the Board is satisfied that the majority of the employers in the unit of employers described at paragraph 4 of the decision which issued November 7, 1989 is represented by the applicant. The Board finds further that there were 920 employees affected by this application employed during the payroll period immediately preceding September 26, 1988 by the 138 employers on Final Schedule "E" and 920 is the number of employees to be ascertained by the Board under subsection 127(1)(c) of the Labour Relations Act. The Board further finds that the 74 employers represented by the applicant employed 677 of the 920 employees. Therefore, the Board is satisfied that the majority of the employers in the unit of employers represented by the applicant employed a majority of the employees affected by this application ascertained in accordance with the provisions of subsection 127(1)(c) of the Labour Relations Act.

File No. 1534-88-R

The 83 employers listed on Final Schedule "E" for this application are those employers who had employees in the year immediately preceding September 26, 1988, the date of the making of the application, and 83 is the number of employers to be ascertained by the Board under subsection 127(1)(a) of the Labour Relations Act. The Board further finds that, on the date of making of the application, the applicant represented 74 of the 83 employers on Final Schedule "E" and 74 is the number of employers to be ascertained by the Board under subsection 127(1)(b) of the Labour Relations Act. Accordingly, the Board is satisfied that the majority of the employers in the unit of employers described at paragraph 4 of the decision which issued November 7, 1989 is represented by the applicant. The Board finds further that there were 55 employees affected by this application employed during the payroll period immediately preceding September 26, 1988 by the 83 employers on Final Schedule "E" and 55 is the number of employees to be ascertained by the Board under subsection 127(1)(c) of the Labour Relations Act. The Board further finds that the 74 employers represented by the applicant employed 43 of the 55 employees. There­fore, the Board is satisfied that the majority of the employers in the unit of employers repre­sented by the applicant employed a majority of the employees affected by this application ascer­tamed in accordance with the provisions of subsection 127(1)(c) of the Labour Relations Act.

File No. 1535-88-R

The 122 employers listed on Final Schedule "E" for this application are those employers who had employees in the year immediately preceding September 26, 1988, the date of the making of the application, and 122 is the number of employers to be ascertained by the Board under sub­section 127(1)(a) of the Labour Relations Act. The Board further finds that, on the date of the making of the application, the applicant represented 74 of the 122 employers on Final Schedule "E" and 74 is the number of employers to be ascertained by the Board under subsection 127(1)(b) of the Labour Relations Act. Accordingly, the Board is satisfied that the majority of the employers in the unit of employers described at paragraph 4 of the decision which issued November 7, 1989 is represented by the applicant. The Board finds further that there were 1,290 employees affected by this application employed during the payroll period immediately preced­ing September 26, 1988 by the employers on Final Schedule "E" above and 1,290 is the number of employees to be ascertained by the Board under subsection 127(1)(c) of the Labour Relations Act. The Board further finds that the 74 employers represented by the applicant employed 1,058 of the 1,290 employees. Therefore, the Board is satisfied that the majority of the employers in the unit of employers represented by the applicant employed a majority of the employees affected by this application ascertained in accordance with the provisions of subsection 127(1)(c) of the Labour Relations Act.

18. At the hearing on November 17th, applicant counsel expressed concern about a poten­tial ambiguity in the wording of each accreditation order issued to it. The potential ambiguity arises out of the reference at the end of the order to its binding effect on any employer for whose employees the respondent trade union obtains the requisite bargaining rights after the date of mak­ing of the application. The potential ambiguity carries through to the certificates which were issued to the applicant. In addition, counsel for the International Union of Operating Engineers, Local 793 identified an error in the wording of clause (i) of Part "B" of the description of the unit of employers for File No. 1533-88-R at paragraph 4 of the November 3rd decision. The error was car­ried through the accreditation order at paragraph 9 and the certificate of accreditation issued to the applicant. The Board served notice on those parties who had been participating in the proceedings at the time of the November 3rd decision that the Board would deal with both matters at a hearing on December 15, 1989. The Board's notice contained proposed amendments to the accreditation orders and certificates and invited the parties' submissions thereon. The parties who appeared at the hearing on December 15th endorsed the amendments proposed by the Board.

19. Accordingly, the Board will reconsider and vary as follows the decision which issued November 3, 1989. At paragraph 4 of the decision, the description of the unit of employers in File No. 1533-88-R found to be appropriate for collective bargaining is amended by replacing the word­ing at clause (i) of Part "B" by the following:

(i) Schedule "A" to the Operating Engineers Provincial Agreement being the schedule between the Crane Rental Association of Ontario and the Ottawa Crane Rental Association and the International Union of Operating Engineers, Local 793.

Paragraph 9 of the decision is deleted and replaced with the following:

9. Therefore, the following certificates will issue:

File No. 1533-88-R

A certificate of accreditation will issue to the Metropolitan Toronto Sewer and Watermain Con­tractors Association for all employers of employees engaged in the operation of cranes, shovels, bulldozers and similar equipment and those primarily engaged in the repair and maintenance of same, for whom the International Union of Operating Engineers, Local 793 has bargaining rights as at September 26, 1988 and, in accordance with the provisions of subsection 127(2) of the Labour Relations Act, for such other employers for whose employees the International Union of Operating Engineers, Local 793 may, after September 26, 1988, obtain bargaining rights through certification or voluntary recognition in the sector and geographic area hereinaf­ter described, performing all sewer and/or watermain work including drainage in the sewers and watermains sector of the construction industry in the Municipality of Metropolitan Toronto, the Regional Municipalities of Peel and York, the Towns of Oakville and Halton Hills and that por­tion of the Town of Milton within the geographic Townships of Esquesing and Trafalgar, the Towns of Ajax and Pickering in the Regional Municipality of Durham, and Simcoe County, save and except:

A. all such work on private property, inclusive of public housing or Crown corporations, both inside and outside any buildings or structures, regardless of the end use of the private property, save such work on private property:

(i) ultimately assumed as an easement, right-of-way or road allowance, by fed­eral, provincial or municipal government or any other governmental authority having jurisdiction, or

(ii) outside of buildings or structures on all private property sites greater than three (3) hectares in size other than residential end use private property sites, or

(iii) on an easement, right-of-way, private roadway or road allowance on resi­dential end use private property sites greater than three (3) hectares in size;

or

B. notwithstanding the generality of the foregoing, the aforementioned bargaining unit description is subject to the following exclusions from the bargaining unit of employ­ers performing work under the following collective agreements or schedules in accor­dance with past or existing practices as at the date hereof:

(i) Schedule "A" to the Operating Engineers Provincial Agreement being the schedule between the Crane Rental Association of Ontario and the Ottawa Crane Rental Association and the International Union of Operating Engi­neers, Local 793;

(ii) Schedule "B" to the Operating Engineers Provincial Agreement being the schedule between the Ontario Association of Foundation Specialists and the International Union of Operating Engineers, Local 793;

(iii) Schedule "C" to the Operating Engineers Provincial Agreement being the schedule between the Ontario Erectors Association and the International Union of Operating Engineers, Local 793;

(iv) Schedule "D" to the Operating Engineers Provincial Agreement being the schedule between the Toronto and District Excavators Association and the International Union of Operating Engineers, Local 793;

(v) The International Union of Operating Engineers, Local 793 and the Metro­politan Toronto Road Builders Association;

(vi) The Operating Engineers, Local 793 and the Utility Contractors Associa­tion of Ontario;

(vii) The Ontario Allied Construction Trades Council and the Electrical Power Systems Construction Association;

(viii) The Operating Engineers Mainline Pipeline Agreement for Canada between Pipe Line Contractors Association of Canada and International Union of Operating Engineers; and

(ix) The Operating Engineers Distribution Pipeline Agreement for Canada between Pipe Line Contractors Association of Canada and International Union of Operating Engineers.

For the purpose of clarity, the Board declares that the unit of employers has been described to reflect work performed by employers of employees for whom the International Union of Oper­ating Engineers, Local 793 has bargaining rights and shall not be construed as defining or limit­ing any sector in the construction industry.

File No. 1534-88-R

A certificate of accreditation will issue to the Metropolitan Toronto Sewer and Watermain Con­tractors Association for all employers of truck drivers, for whom the Teamsters' Local Union 230 has bargaining rights as at September 26, 1988 and, in accordance with the provisions of subsection 127(2) of the Labour Relations Act, for such other employers for whose employees Teamsters' Local Union 230 may, after September 26, 1988, obtain bargaining rights through certification or voluntary recognition in the sector and geographic area hereinafter described, performing all sewer and/or watermain work including drainage in the sewers and watermains sector of the construction industry in the Municipality of Metropolitan Toronto, the Regional Municipalities of Peel and York, the Towns of Oakville and Halton Hills and that portion of the Town of Milton within the geographic Townships of Esquesing and Trafalgar, the Towns of Ajax and Pickering in the Regional Municipality of Durham, and Simcoe County, save and except:

A. all such work on private property, inclusive of public housing or Crown corporations, both inside and outside any buildings or structures, regardless of the end use of the private property, save such work on private property:

(i) ultimately assumed as an easement, right-of-way or road allowance, by fed­eral, provincial or municipal government or any other governmental authority having jurisdiction, or

(ii) outside of buildings or structures on all private property sites greater than three (3) hectares in size other than residential end use private property sites, or

(iii) on an easement, right-of-way, private roadway or road allowance on resi­dential end use private property sites greater than three (3) hectares in size; or

B. notwithstanding the generality of the foregoing, the aforementioned bargaining unit description is subject to the following exclusions from the bargaining unit of employ­ers performing work under the following collective agreements in accordance with past or existing practices as at the date hereof:

(i) Teamsters' Local Union 230 and various hauler employers;

(ii) Labourers International Union of North America, Local 183 and Team­sters' Local Union 230 and the Metropolitan Toronto Road Builders Asso­ciation;

(iii) The Ontario Allied Construction Trades Council and The Electrical Power Systems Construction Association;

(iv) The Toronto and District Excavators Association and Teamsters' Local Union 230;

(v) The Teamsters Mainline Pipeline Agreement for Canada between Pipe Line Contractors Association of Canada and the International Brotherhood of Teamsters; and

(vi) The Teamsters Distribution Pipeline Agreement for Canada between Pipe Line Contractors Association of Canada and the International Brotherhood of Teamsters.

For the purpose of clarity, the Board declares that the unit of employers has been described to reflect work performed by employers of employees for whom Teamsters' Local Union 230 has bargaining rights and shall not be construed as defining or limiting any sector in the construction industry.

File No. 1535-88-R

A certificate of accreditation will issue to the Metropolitan Toronto Sewer and Watermain Con­tractors Association for all employers of construction labourers for whom the Labourers' Inter­national Union of North America, Local 183 has bargaining rights as at September 26, 1988 and, in accordance with the provisions of subsection 127(2) of the Labour Relations Act, for such other employers for whose employees the Labourers International Union of North America, Local 183 may, after September 26, 1988, obtain bargaining rights through certification or vol­untary recognition in the sector and geographic area hereinafter described, performing all sewer and/or watermain work including drainage in the sewers and watermains sector of the construc­tion industry in the Municipality of Metropolitan Toronto, the Regional Municipalities of Peel and York, the Towns of Oakville and Halton Hills and that portion of the Town of Milton within the geographic Townships of Esquesing and Trafalgar, the Towns of Ajax and Pickering in the Regional Municipality of Durham, and Simcoe County, save and except:

A. all such work on private property, inclusive of public housing or Crown corporations, both inside and outside any buildings or structures, regardless of the end use of the private property, save such work on private property:

(i) ultimately assumed as an easement, right-of-way or road allowance, by fed­eral, provincial or municipal government or any other governmental authority having jurisdiction, or

(ii) outside of buildings or structures on all private property sites greater than three (3) hectares in size other than residential end use private property sites, or

(iii) on an easement, right-of-way, private roadway or road allowance on resi­dential end use private property sites greater than three (3) hectares in size:

or

B. notwithstanding the generality of the foregoing, the aforementioned bargaining unit description is subject to the following exclusions from the bargaining unit of employ­ers performing work under the following collective agreements in accordance with past or existing practices as at the date hereof:

(i) Labourers' Ontario Provincial District Council and Utility Contractors Association of Ontario;

(ii) Labourers' Ontario Provincial District Council and Ontario Precast Manu­facturers Association;

(iii) Labourers' International Union of North America, Local 183 and Heavy Construction Association of Toronto;

(iv) Labourers' International Union of North America, Local 183 and Team­sters' Local Union 230 and Metropolitan Toronto Road Builders' Associa­tion;

(v) Ontario Allied Construction Trades Council and Electrical Power Systems Construction Association;

(vi) Labourers Mainline Pipeline Agreement for Canada between Pipe Line

Contractors Association of Canada and Labourers International Union of

North America; and

(vii) Labourers Distribution Pipeline Agreement for Canada between Pipe Line Contractors Association of Canada and Labourers International Union of

North America.

For the purpose of clarity, the Board declares that the unit of employers has been described to reflect work performed by employers of employees for whom the Labourers International Union of North America, Local 183 has bargaining rights and shall not be construed as defining or limiting any sector in the construction industry.

20. As a consequence of the Board varying the accreditation orders issued November 3, 1989, it will be necessary to vary the certificates of accreditation. Each certificate of accreditation issued to the applicant and the copy issued to the respondent trade unions have been returned to the Board. Therefore, the Registrar is directed to replace the surrendered certificates with certifi­cates dated November 3, 1989 pursuant to the accreditation order set out above in amended para­graph 9 of the November 3rd decision.

21. There remains only for the Board to issue its reasons for finding in an earlier decision that it need not and should not conclusively identify for each application each individual employer for whose employees the respondent trade union had bargaining rights in the sector and geographic area by which the unit of employers is described as at September 26, 1988, the date of the making of the application, but who had not employed such employees within one year prior to that date.

APPENDIX "A"

KPM Kindustries Ltd. c.o.b. King Paving & Materials Company Robert S. Gordon Construction (1985) Limited Warren Bitulithic Limited Ontario Paving Company Limited Ferpac Paving Inc. Towland (London) 1970 Ltd. Seal-Top Paving & Construction Ltd. McKay Excavating Limited Franki Canada Limited Prime Asphalt Paving Company Sentinel Paving & Construction Ltd. Aveiro Construction Limited Fiberglas Canada Inc. Dow Chemical Canada Inc. Armbro Materials & Construction Ltd. Bot Construction Limited Clarkson Construction Company Ltd. Con-Eng Contractors Limited Elirpa Construction & Materials Limited Toronto Zenith Contracting (1982) Limited Crestile Inc. 590308 Ontario Inc. c.o.b. Advance Excavating Bennett Paving & Materials Ltd. St. Marys Cement Corp. c.o.b. Canada Building Materials Inscan-Dewar (a Joint Venture) Fermar Paving Limited Ron Robinson Limited Prime Paving Limited Industrial Concrete Forming Division of Tru-Wall Group Limited A.S. Rule (1975) Limited (TCA file) Law Crushed Stone, Division of Hard Rock Paving Co. Ltd. Folco Construction Equipment Ltd. Karvon Construction Limited Dewar Insulations Inc. Delibrook Homes Havendale Homes Greenspoon Brothers Limited Intrusion Prepakt Limited Rideau Valley Contractors Ltd. W.A. Stephenson Construction (International) Limited Tornat Construction Inc. Condiversal Limited Wycliffe Management Services Inc. Underground Services (1983) Limited Gratff Diamond Products Limited Pigott Construction Limited Huron Construction