Carpenters and Allied Workers Local 27 United Brotherhood of Carpenters and Joiners of America v. Ideal Railings Limited, 1990 CanLII 5632

[1990] OLRB Rep. December 1284

1007-90-G Carpenters and Allied Workers Local 27 United Brotherhood of Car­penters and Joiners of America, Applicant v. Ideal Railings Limited, Respondent

BEFORE: N. B. Satterfield, Vice-Chair, and Board Members D. A. MacDonald and C. A. Ballen­tine.

APPEARANCES: N. L. Jesin, M. Pollock, D. Smith and C. Guerrero for the applicant; Richard J. Nixon, Ian Bacque, Jim Church and Miro Plavsic for the respondent.

DECISION OF N. B. SATTERFIELD, VICE-CHAIR, AND BOARD MEMBER C. A. BALLEN­TINE; December 20, 1990

1. The applicant has referred a grievance concerning the interpretation, . application, administration or alleged violation of a collective agreement to the Board for final and binding arbitration pursuant to section 124 of the Labour Relations Act.

2. The respondent filed a reply to the referral at the hearing scheduled for it. The reply questioned the Board's jurisdiction under section 124 of the Act to arbitrate the grievance on the grounds that "...the Respondent does not operate a business in the construction industry.", or in the alternative, "...if the respondent does operate a business in the construction industry, the Applicant was never certified to represent any employees of the Respondent working in the con­struction industry and the collective agreement between the Applicant and the Respondent does not cover any employees of the Respondent working in the construction industry.". At the hearing the respondent pursued its claim that the Board was without jurisdiction under section 124 of the Act to entertain the grievance and, in any event, even if the Board found that it had jurisdiction to entertain the grievance, it had the discretion to refuse to do so.

3. The facts are not in dispute. The respondent manufactures wood and metal railings and installs them primarily in houses and mostly while under construction. The applicant, which the Board will refer to also as the union, was certified on August 7, 1986 pursuant to subsection 7(3) of the Act in an application brought under subsection 5(1) of the general provisions of the Act. The certificate describes the bargaining unit of the respondent's employees in the following terms:

all employees of Ideal Railings Ltd. working at and out of Metropolitan Toronto, save and except foremen, persons above the rank of foreman, office, sales and clerical employees.

The collective agreement in effect at the time of the grievance describes the bargaining unit in identical terms. At the time of the hearing of this referral, there were approximately 25 employees engaged in the manufacture of railings and 8 or 9 engaged in installing them. The employees who install railings are classified under the collective agreement as installers and installers' helpers. The manufacturing employees only rarely do installation and installation employees only rarely do manufacturing. Similarly, manufacturing employees rarely transfer to installation or exercise seniority on lay-off to bump into installation work.

4. The grievor, Manuel Iglecias, works in manufacturing and does no on site installation work. The grievance alleges that he was suspended for eight days without just and sufficient cause. The form on which the grievance was filed with the respondent is titled "Industrial Grievance Form" and employs nomenclature typical of the industrial context; for example terms like shop, "plant" manager and "plant" superintendent. This is the first time that the union has referred a grievance under its collective agreement with the respondent for final and binding arbitration under section 124 of the Act. Previously, it has taken five grievances to arbitration under section 45, including one for Iglecias involving discipline. The collective agreement between the union and the respondent contains the kind of union security, seniority, vacations and holiday pay provisions which are typical of collective agreements in an industrial, non-construction context. Clause 2.02 provides that the employer will recognize the union at the new location should the employer's operations be transferred beyond the geographic scope of the bargaining unit described in the col­lective agreement. Prior to making the current collective agreement, the union filed a Request for Appointment of Conciliation Officer on the general form stipulated "not for use in the Construc­tion Industry". The application was made by its solicitors at the time, different than its solicitors for this application. Both firms have appeared frequently before the Board on behalf of the union.

5. The respondent's claim in its reply that it did not operate a business in the construction industry is an allusion to the provision in subsection 124(1) of the Act that "...a party to a collec­tive agreement between an employer.. .and a trade union.. .may refer a grievance.. .to the Board for final and binding determination.". Section 124 is part of the construction industry provisions of the Act. Therefore the words "employer" and "trade union" in subsection 124(1) mean as defined in section 117, clauses (c) and (f) as follows:

(c) "employer" means a person who operates a business in the construction industry, and for purposes of an application for accreditation means an employer for whose employ­ees a trade union or council of trade unions affected by the application has bargaining rights in a particular geographic area and sector or areas or sectors or parts thereof;

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

By inference, if the respondent is not an employer as defined in clause (c) or the applicant is not a trade union as defined in clause (f), the Board has no jurisdiction to arbitrate a grievance referred under subsection 124(1) by either of them.

6. It is uncontested that the applicant is a trade union which satisfies that definition and the Board so finds. The respondent's claim that it was not an employer as defined in clause (c) was pursued only indirectly in final argument on the issue of the Board's jurisdiction under section 124. The claim was implicit in the respondent's argument that the applicant did not have any bargaining rights in the construction industry for any of the respondent's employees. In addition, in rebuttal of applicant counsel's argument, respondent counsel twice stated that the respondent is not an employer in the construction industry. Those statements were made without reference to any par­ticular authority and even though it was an agreed fact that the respondent installs wood and metal railings, which it manufactures, "primarily in houses and mostly while under construction". Lest there be any doubt whether, on the basis of that fact, the respondent is an employer within the meaning of clause (c) of section 117, the Board finds that Ideal Railings Limited is a person who operates a business in the construction industry and, therefore, is an employer for purposes of sub­section 124(1) of the Act. In making the finding that the respondent is an employer as defined in clause (c) of section 117, even though it may not be primarily or exclusively engaged in construc­tion and its construction activity might be limited to the installation of its own products, the Board relies on and adopts the reasoning of the Board in Tops Marina Motor Hotel, [1964] OLRB Rep. Jan. 583 and Kapuskasing Board of Education, [1972] OLRB Rep. June 587 and the numerous other Board decisions which have dealt with the definition of employer in section 117(c) referred to at paragraph 17 of The Kinsman Club of Leamington, [1983] OLRB Rep. Nov. 1850.

7. The fact that the respondent is an employer and the applicant is a trade union, each as contemplated by subsection 124(1) of the Act, and are bound to a collective agreement which applies to employees of the respondent who are employed in its construction activities is all that is required, according to applicant counsel, for the Board to have jurisdiction to arbitrate a grievance concerning the interpretation, application, administration or alleged violation of the agree­ment...". That is so, counsel submits, even though the grievance, as here, concerns one of the respondent's employees who was not engaged in its construction activities when the grievance arose. Counsel relies for that proposition on Babcock and Wilcox Canada Ltd., [1988] OLRB Rep. Dec. 1198 and Carroll Electric (1982) Limited, [1983] OLRB Rep. Aug. 1282.

8. Respondent counsel disagrees. He contends that the Board does not have jurisdiction under section 124 to arbitrate the grievance which has been referred to it because the applicant does not have bargaining rights in the construction industry for any of the respondent's employees and it is attempting to use this referral of a grievance under section 124 in order to obtain such bar­gaining rights. As the Board understands his argument, there are several reasons why the Board should conclude that the applicant lacks the bargaining rights which he says are requisite for the applicant to have access to section 124 of the Act and they are as follows.

9. First, the applicant acquired its bargaining rights in 1986 by successfully bringing an application for certification under the general provisions of the Act, not the construction industry provisions. The bargaining unit proposed in its application was not described in terms of any of the 32 geographic areas recognized by the Board as satisfying the requirements of subsection 119(1) of the Act, any construction trade or any sector of the construction industry as would be the case had the application been brought under section 144 of the Act, which the applicant, as an affiliated bar­gaining agent, was entitled to do. For all practical purposes, the unit proposed by the applicant was the one found by the Board to be appropriate for collective bargaining. Therefore, the description of the unit for which the applicant was certified displays none of the hallmarks of a bargaining unit description common to construction industry certificates, such as being limited to a construction trade and geographic area or referring to construction industry sectors. On the other hand, the bar­gaining unit described in the application for certification and ensuing certificate bears the hall­marks of an industrial application and certificate and none of the construction industry. In turn, clause 2.01 of the collective agreement parrots the unit described in the Board's certificate, there­fore, counsel submits, the parties did not bargain an expansion of the bargaining rights contained in the certificate. While counsel concedes that employees in the installer and installer's helper clas­sifications of the collective agreement do the railing installations in houses under construction, because the union was certified under the general provisions of the Act and not the construction industry provisions, he contends that the installation work which they perform is not construction industry work. Since the employees engaged in installation and the manufacturing employees, according to counsel, are not commonly associated in their work or bargaining, had the union been seeking construction industry bargaining rights for the employees who work in construction, it would have had to apply under section 144 for a unit of the installation employees. That, counsel argues, is the only way the applicant can get construction industry bargaining rights by certifica­tion. Furthermore, since the Board had certified the applicant under the general provisions of the Act and not the construction industry provisions, it must have concluded that installers and instal­lers' helpers were not performing construction industry work.

10. Second, the union's conduct prior to making this referral demonstrates its own recogni­tion that it lacked bargaining rights for the respondent's employees in the construction industry. In five prior grievances taken to arbitration, the union applied for arbitration under section 45 of the Act, not section 124, and one of the five grievances involved a discipline grievance for the grievor in this referral. In addition, when the union filed a request in February 1988 for a conciliation offi­cer in its negotiations with the employer, the application was made by the union's solicitors, expe­rienced in construction labour relations, on a form which specifically states it is not for use in the construction industry. Counsel submits that the inference to be drawn from the request made in that form is that the union's solicitors believed at the time that the parties and their collective bar­gaining relationship were not in the construction industry.

11. Third, the structure and content of the collective agreement and the form and content of the grievance which has been referred for arbitration reflect the industrial nature of the bargain­ing relationship. The collective agreement contains terms and conditions which for the most part typify those found in collective agreements in the industrial context, not the construction industry. It contains few if any terms and conditions common to construction industry agreements. The grievance form is titled "Industrial Grievance Form", it describes the grievor's department as "shop" and provides for the employer's replies to the grievance to be signed by the "plant" super­intendent and "plant" manager. Those features of the grievance form, counsel submits, betray the industrial character of the respondent's operations and the fact that the applicant's bargaining rights did not extend to the construction industry.

12. Counsel for the respondent argues further that section 124 was introduced into the Act in order to address the problem of job site work stoppages being used to remedy grievances because the arbitration mechanism at the time was not suited to the time constraints of the rela­tively brief employment relationship typical of the construction industry. Section 124 was intended to allow quick access to the Board as an arbitrator for the benefit of on-site construction industry employees, not shop employees. No one has ever held out section 124 to be for the benefit of shop employees, according to counsel. The grievance at issue involves the discipline of a shop employee who has never worked in construction for the respondent and section 124 was never meant to serve that type of grievance.

13. Finally, even were the Board to conclude that the applicant can bring a grievance for arbitration under section 124 of the Act, the applicant on five prior occasions has arbitrated griev­ances under section 45 of the Act, including a similar grievance for this grievor, and, for reasons of consistency, counsel contends that the Board should not allow a party to use section 45 one time and section 124 another. Moreover, it makes no industrial relations sense to make section 124 arbi­tration available because the respondent's employees are not exposed to the short-lived employ­ment relationship typical of the construction industry. This is particularly so with the grievor herein, counsel submits, because he is employed solely in manufacturing and not exposed to the mischief of delay and its impact on the short-lived aspect of on-site employment. Counsel reads subsection 124(2) of the Act as giving the Board the discretion to refuse to entertain grievances properly brought under subsection 124(1).

14. Respondent counsel cited M. G. Burke Investments Ltd., [1978] OLRB Rep. April 348 and London Sandblasting & Painting Limited, [1982] OLRB Rep. Sept. 1322 for the proposition that the Board's jurisdiction under section 124 of the Act was restricted to the construction indus­try and that it lacked jurisdiction to act as an arbitrator on matters arising outside of that industry. To the extent that Carroll Electric, supra, and Babcock and Wilcox Canada Ltd., supra, might be read as holding that the Board in particular circumstances has jurisdiction under section 124 of the Act to arbitrate disputes involving work outside of the construction industry, they are to be distin­guished on their facts. In any event, counsel argues, the Board's reasoning for taking jurisdiction under section 124 in the latter two cases supports his argument that the Board should not do so for this grievance, a grievance not associated in any of its circumstances with the construction industry. Counsel finds that support in the fact that, according to him, the Board's reasoning focused on par­ticular circumstances of concern to the Board and it was persuaded by those concerns to take juris­diction. Those concerns are not present in this case.

15. Section 124 provides as follows:

124.-(l) Notwithstanding the grievance and arbitration provisions in a collective agreement or deemed to be included in a collective agreement under section 44, a party to a collective agree­ment between an employer or employers' organization and a trade union or council of trade unions may refer a grievance concerning the interpretation, application, administration or alleged violation of the agreement, including any question as to whether a matter is arbitrable, to the Board for final and binding determination.

(2) A referral under subsection (1) may be made in writing in the prescribed form by a party at any time after delivery of the written grievance to the other party, and the Board shall appoint a date for and hold a hearing within fourteen days after receipt of the referral and may appoint a labour relations officer to confer with the parties and endeavour to effect a settlement before the hearing.

(3) Upon a referral under subsection (1), the Board has exclusive jurisdiction to hear and deter­mine the difference or allegation raised in the grievance referred to it, including any question as to whether the matter is arbitrable, and the provisions of subsections 44(6), (8), (9), (10), (11) and (12) apply with necessary modifications to the Board and to the enforcement of the decision of the Board.

(4) The expense of proceedings under this section, in the amount fixed by the regulations, shall be jointly paid by the parties to the Board for payment into the Consolidated Revenue Fund.

16. Applicant counsel relies on Carroll Electric and Babcock and Wilcox, supra, in support of his claim that the Board has jurisdiction under section 124 to arbitrate the grievance referred herein. He relies primarily on Babcock and Wilcox and characterizes the decision as an open invi­tation to refer this grievance for arbitration by the Board under section 124 of the Act instead of under the terms of the collective agreement and section 45 of the Act.

17. M. G. Burke, supra, involved wage claims for construction work and non-construction work and a dispute whether the collective agreement under which the grievances had been filed covered both types of work. After noting that section 112a [now section 124] of the Act "...is not of general application but is restricted only to the construction industry.", the Board concluded that it lacked jurisdiction to "...act as an arbitration board with respect to matters arising outside the scope of the construction industry.".

18. London Sandblasting, supra, was a reference from the Minister under section 107 of the Act of a question whether the Minister had authority under section 44 to appoint a nominee to an arbitration board. The decision is of little assistance in this case because it was unnecessary for the Board to rule on the extent of its jurisdiction under section 124 in order to answer the question referred to it under section 107.

19. In Carroll Electric, supra, the union had applied under section 124 to have the Board arbitrate grievances about work most but not all of which pertained to the construction industry. A different panel of the Board had found previously that the respondent employer was the successor employer under a section 63 sale of a business and was bound to the collective agreement which the union was alleging applied to all of the work about which the grievances had been filed. At the hearing, the respondent contended that the Board had "...no jurisdiction under section 124 of the Act to consider those portions of the grievances which pertain to matters outside the construction industry.". The Board ruled orally that:

.as master of its own procedure, [it] should, as a matter of labour relations policy, hear all of these grievances together in order to deal with the matters in dispute between the parties in a single proceeding. In reaching that decision, we have considered the obvious interrelatedness of the subject matter of the grievances.

The Board's analysis of section 124 and its principal reasons for that ruling appear as follows at paragraph 16 of its decision on the merits of the grievance:

Under that provision only "a party to a collective agreement between an employer or employ­ers' organization and a trade union or council of trade unions" may refer a grievance to the Board for final and binding determination. By virtue of section 117, for the purposes of section 124 'employer' means a person who operates a business in the construction industry" (as defined in section l(1)(f) of the Act) and "'trade union' means a trade union that according to established trade union practice pertains to the construction industry." It is common ground between the parties that the applicant is a "trade union" within the meaning of section 117(f). The parties are also in agreement that the respondent "operates a business in the construction industry", although counsel for the respondent contends that the respondent also operates a business outside the construction industry. However, as noted by counsel for the respondent, the section 117(c) definition of employer is not limited to persons who operate a business exclusively in the construction industry. Moreover, all of the grievors in the present case are "employees" within the meaning of section 117(b) of the Act since all of them who are not engaged exclusively in on-site work are commonly associated in their work or bargaining with on-site employees. It is true, as submitted on behalf of the respondent, that the applicant could have referred its grievances to arbitration under the arbitration clause contained in the collective agreement (Article 20). However, that would have meant that these grievances, which primarily relate to construction work, would have been subjected to arbitration procedures of a type which have generally been recognized to be ill-suited to the needs of the construction industry (see, for example, The Lummus Company Canada Limited, [1976] OLRB Rep. Jan. 980). It is also true that the applicant could have availed itself of the expedited arbitration procedure pro­vided by section 45 of the Act. However, since the majority of the work to which the present grievances relate is clearly within the construction industry, and since the grievances have unfair labour practice overtones, arising as they do from the respondent's continuing refusal to recog­nize the binding effect of the collective agreement upon it despite the Board's aforementioned declaration [of a sale of a business under section 63 of the Act] it was not at all unreasonable for the applicant to refer these grievances to the Board under section 124 rather than requesting the Minister to refer them to a single arbitrator pursuant to section 45 of the Act. Moreover, it is also not without significance that the respondent made no objection to the Board's jurisdiction under section 124 until the time limit set forth in section 45(2) of the Act had expired. (Article 20.02 of the collective agreement stipulates a fourteen day time limit for referring a grievance to arbitration).

[emphasis in original]

After which the Board concluded at paragraph 17 that it had "...jurisdiction to hear all aspects of these grievances under section 124 of the Act.".

20. Two different panels of the Board dealt with the section 124 referral in Babcock and Wilcox, supra. The decision is that of the second panel, the one which arbitrated the merits of the referred grievance. Counsel for Babcock and Wilcox had argued before the first panel that:

.section 124 is only available to employees engaged in construction work (which by statute includes "repair"), and to the extent that the activities underlying a particular grievance are not "construction", any alleged contravention of a collective agreement must be pursued through the grievance arbitration procedure in that agreement. The respondent asserted that the exped­ited process prescribed by section 124 is not available, because section 124 applies only to the construction industry. If the employees are engaged in a mixture of construction and non-con­struction activities, that portion of their duties labelled "construction" can be pursued under section 124, but that portion classified as non-construction must follow the "private route" man­dated by section 44.

[emphasis in original]

The response of that panel to counsel's argument is described in the following terms by the merits panel at paragraph 5 of its decision:

5. The earlier panel of the Board held that, at the very least, it had jurisdiction to deal with those activities which, arguably, fell within the ambit of the construction industry; however, the Board also suggested, without finding, that if the parties to a section 124 application met a literal reading of the statutory definition of "union" and "employer" found in section 117, the Board would have jurisdiction to consider the grievance even though some of the work in question might not be characterized as construction work. The Board suggested that so long as the applicant is a "trade union" within the meaning of section 117(f), and the employer operates a business in the construction industry under section 117(c) (albeit not necessarily exclusively so) either party may resort to the expedited arbitration procedure contemplated by section 124.

[emphasis added]

The second panel did make that finding and concluded that section 124 of the Act should be "...available to any union or employer that meets the section 117 requirements - whether or not the work in question, or some of it, is properly regarded as 'construction work'."

21. The panel's reasons for "...concluding that section 124 is broadly available to construc­tion industry employers and unions,..." are given at paragraphs 6 and 7 of its decision:

22. In our view, the interpretation of section 124 suggested by the earlier panel is the correct one. It also makes the most "industrial relations sense". It is often very difficult to distinguish "re­pair" which is specifically mentioned in the definition of construction industry (see section 1(1)(f) and "maintenance" which is not - although the practice in the construction industry is to accord them separate legal treatment even when the employees or required skills may be the same. Indeed, one set of functions will often be done in close cooperation or conjunction with the other, by the same tradesman, employing the same craft skills, tools and equipment. It would make for much mischief and procedural uncertainty if a simple problem such as the non­payment of overtime had to be settled in two different forums at once, with the potential for conflicting interpretations of the collective agreement or contradictory notions about what is construction work and what is not. Furthermore, since the Ontario Labour Relations Board is responsible for interpreting and applying the special statutory framework applicable to the con­struction industry and, at the same time, is the designated arbitrator for collective agreements in that industry, it is both sensible and hardly surprising that section 124 is drafted broadly enough to encompass any grievance arising out of any collective agreement between a construction industry trade union and a construction industry employer. And it is the Board which has the exclusive jurisdiction to interpret and apply the complex statutory provisions which generally underlie construction industry collective agreements.

23. Does this literal application of section 124 to employers or trade unions which meet the literal terms of section 117 "open the floodgates" to claims that could not reasonably have been within the contemplation of the Legislature? Does it lead to anomalous results? We do not think so. Since unions which meet the test of section 117(f) are almost invariably craft unions confined to their historic craft units, it is most unlikely that they will have collective agreements entirely unrelated to their construction industry base. For example, it is unlikely that the Boilermakers' Union would find itself representing the clerical employees of a construction industry employer. But even if it did, what would be the result: access to an arbitration process which is far faster and cheaper than that contemplated by most "industrial" collective agreements, with the added advantage of a Board-appointed Labour Relations Officer to assist the parties to resolve their differences without recourse to litigation. Thus, the interpretation suggested by the earlier panel of the Board is not only attractive from the perspective of labour relations policy, but also pro­vides aggrieved parties (employers or trade unions) with an expeditious and relatively inexpen­sive method for resolving their disputes. When weighed against the respondent's suggestion of bifurcated proceedings and potentially competing forums, we prefer an interpretation which makes section 124 available to any union or employer that meets the section 117 requirements -whether or not the work in question, or some of it, is properly regarded as "construction work". (See, generally: Carroll Electric, (1982) Limited, [1983] OLRB Rep. Aug. 1282.)

24. Respondent counsel, as noted above at paragraph 14, seeks to distinguish Carroll Electric and Babcock and Wilcox, supra, on their respective facts and argued as well that this panel of the Board, in any event, should not arbitrate this grievance because none of the problems and potential for mischief which concerned the Board in those cases was present here. Counsel points out that, in Carroll Electric, the grievances and work at issue involved primarily the construction industry, there were strong overtones of unfair labour practices and the respondent had not raised its claim that the Board lacked jurisdiction to arbitrate the grievance under section 124 of the Act until the union was time-barred from applying for arbitration under section 45 of the Act. With respect to Babcock and Wilcox, counsel claims that the Board panel which decided the merits of the case were dealing with a question of whether the grievance was about construction industry work, or maintenance work and, therefore, not work in the construction industry. In addition, he points out that the examples of the potential for confusion that might arise if the Board interpreted section 124 as permitting or requiring the bifurcation of arbitration proceedings discussed at para­graphs 6 and 7 are not present here. According to counsel, the Board also failed to weigh the expedited arbitration provisions and the pre-arbitration settlement facilities available under section 45 of the Act when it expounded the advantages of making arbitration available under section 124. Furthermore, counsel claims that the Board's analysis of section 124 is obiter dicta because the first panel had decided that the Board had jurisdiction under that section to deal with the grievance. Finally, in both Carroll Electric and Babcock and Wilcox, the employers were employers in the construction industry, the trade unions held bargaining rights for the employers' construction industry employees and the parties to the grievances were bound to construction industry collective agreements which arguably covered the work underlying the grievances. The respondent, counsel contends, is not an employer in the construction industry. Therefore, to the extent that either of those decisions are read to say that section 124 has application even where the work underlying the grievance is non-construction, the Board's reasoning would not apply to the instant grievance.

25. Obviously, the Board has disagreed with counsel that the respondent is not an employer in the construction industry. The Board found at paragraph 6 that it was an employer as defined by clause (c) of section 117 of the Act. It is clear that the parties bargained a collective agreement after the applicant was certified which adopted the same generic unit description which the Board had found to be appropriate for purposes of collective bargaining. Even if the Board's unit included the respondent's installation employees (and there is no evidence before the Board either way), there is no merit in respondent counsel's argument that the Board must have concluded that they were not in construction in order for the Board to certify the applicant under the general pro­visions of the Act. There is nothing in evidence before the Board which would justify that conclusion. What is more significant is the fact that the parties have included within the bargaining unit adopted in the collective agreement employees classified as installer and installer's helper who do the respondent's construction industry work; that is, they are employed by the respondent under the terms and conditions of the collective agreement to install its railings in houses under construc­tion. Thus, whether or not they were included in the bargaining unit by which the Board defined the applicant's bargaining rights at the time of its certification, the parties have agreed that the applicant's bargaining rights include the employees who do its construction work. Therefore, the respondent is not distinguished in that respect from the employers in Carroll Electric and Babcock and Wilcox, supra, and it is clear that the applicant and respondent are parties which satisfy the definition of an employer and a trade union in the construction industry in section 117. They are also parties to a collective agreement which includes bargaining rights for the employer's employ­ees in the construction industry.

26. In spite of the fact that this application and the decisions in Carroll Electric and Babcock and Wilcox, supra, may be distinguishable one from the other on their other facts, their important common denominator is the fact that each application involved an employer as defined in subsection 117(c) and a trade union as defined in subsection 117(f). The Board in Babcock and Wilcox makes it clear that those conditions are the only ones which have to be satisfied by an employer and trade union in order for one of them to refer a grievance under section 124(1) of the Act. The other conditions discussed by the Board at paragraph 6 are for the purpose of explaining the labour relations policy reasons for interpreting section 124 to be available to parties which sat­isfy those conditions. This panel of the Board does not understand the Board in that decision to be saying that the potential for that sort of mischief (to use respondent counsel's term) must be present before construction industry employers and trade unions can access section 124. Obvi­ously, every grievance brought under subsection 124(1) by parties which meet its requisite condi­tions is not going to present the potential for the sort of mischief referred to by the Babcock and Wilcox panel in explaining the policy reasons for making section 124 of the Act "...broadly avail­able to construction industry employers and unions,...". The absence of potential mischief should not be reason, however, to bar such parties from access to the advantages of arbitration under sec­tion 124, if that is the forum which they elect, just because the work underlying the grievance is not or might not be work in the construction industry. Insofar as the "floodgates" argument discussed at paragraph 7 of Babcock and Wilcox, supra, is concerned, whether or not this grievance is involved directly with the respondent's construction activities, it confirms the Board's prediction that unions which "...meet the test of section 117(f)..." are unlikely to have "...collective agree­ments entirely unrelated to their historic craft units,...". The collective agreement under which this grievance arises deals with the installation of railings in houses under construction. It cannot rea­sonably be said that work is unrelated to the applicant's construction industry base.

27. For all of these reasons, the Board adopts the reading given to subsection 124(1) by the Board in Babcock and Wilcox, supra, and finds that the Board has jurisdiction under section 124 to determine the referral of the grievance in this application. With respect to respondent counsel's argument that the Board has the discretion to refuse to entertain a referral of a grievance properly brought under section 124, even if the Board does have the discretion, it would not exercise it to refuse to entertain this grievance'. It may not be a typical construction industry grievance, but the Board, having agreed for the reasons just given with the union's conclusion that arbitration of the grievance under section 124 of the Act was available to it, the Board sees no grounds in the circum­stances before it which would warrant denying the union the opportunity to have the Board arbi­trate the grievance.

28. The Registrar is directed to list this referral for continuation of hearing.

DECISION OF BOARD MEMBER D. A. MACDONALD; December 20, 1990

1. I do not agree with the conclusion of the majority in the instant case.

2. The grievor in this application is a shop employee, who never works outside the shop. That is he was never involved in installation work on construction sites.

3. Surely the Legislature did not contemplate the application of section 124 of the Act, to other than the construction industry, and to employees engaged in that industry.

4. I would agree with the respondent to this application, that the Board does not have jurisdiction to hear this grievance, and I would have dismissed the application.