Labourers' International Union of North America, Local 506 v. Gottcon Contractors Limited, 1990 CanLII 5724

[1990] OLRB Rep. January 25

2678-88-R Labourers' International Union of North America, Local 506, Applicant v. Gottcon Contractors Limited, Gottardo Properties Limited, Gottardo Contracting (1980) Inc., Gottardo Contracting Co. Limited, Gottardo Holdings Company Ltd., Gottardo Management Limited, and Gottardo Corporation, Respondents v. The Bricklayers, Masons Independent Union of Canada, Local 1, Intervener

BEFORE: Louisa M. Davie, Vice-Chair, and Board Members W. Gibson and J. Redshaw.

APPEARANCES: E. M. Mitchell and E. D. Ferreira for the applicant; Carl Peterson for the respondents; Susan Ursel and John Meiorin for the intervener.

DECISION OF THE BOARD; January 26, 1990

Facts

1. This is an application for certification. By oral decision of the Board on July 11, 1989 (decision reduced to writing July 18, 1989) we granted the applicant's request that, pursuant to section 1(4) of the Labour Relations Act ("the Act") the respondents be declared to be one single employer for purposes of the Act. At the same time, by reason of the exercise of our discretion under section 1(4), we dismissed a similar application (Board File No. 2857-88-R) brought by The Bricklayers, Masons Independent Union of Canada, Local 1 ("Bricklayers, Local 1"), the intervener in this application.

2. In our decision granting the section 1(4) application, we did not address the issue of the intervener's status to intervene in this application, nor did we address the issue as to the description of the appropriate bargaining unit. Those two issues are closely intertwined and will be dealt with in this decision.

3. The parties agreed that the evidence which we heard in respect of the section 1(4) applications could be considered and applied when we rendered our decision in this certification application in respect of the intervener's status and the bargaining unit description. In addition to that evidence, we heard a further three days of evidence from Mr. Aldo Gottardo, Mr. John Meiorin, and Mr. Salvatore Caivano. The evidence of those witnesses did not materially affect the findings of fact made in our earlier decision but merely supported, and to some extent elaborated upon the evidence which we heard when we dealt with the section 1(4) applications. We have considered this additional evidence, but find that the following findings of fact made in our earlier decision accurately summarize the evidence:

Gottardo Contracting (1980) Inc. and its predecessor companies is and was primarily a masonry contractor. Gottardo Contracting (1980) Inc. was incorporated on November 18, 1980. Gottardo Contracting (1980) Inc. (hereinafter referred to as Gottardo (1980) is the successor to Gottardo Contracting Co. Limited. Gottardo Contracting Co. Limited was a member of the Masonry Contractors Association of Toronto from 1961 until 1980 when Gottardo (1980) took over. Gottardo (1980) is bound to the collective agreements between the Masonry Contractors Association and the Bricklayers Independent Union, Local 1 covering journeymen and assistants (hereinafter referred to as the Bricklayers, Local 1 collective agreements).

Renato Gottardo started as a masonry contractor in the early 1950's. Renato Gottardo ran the business through Gottardo Contracting Co. Limited until his son, Aldo Gottardo, joined the business in 1978. Since 1978, Renato Gottardo and Aldo Gottardo have jointly run Gottardo Contracting Co. Limited and then the group of companies when they were established in the 1980's.

Beginning in 1978 Gottardo Contracting Co. Limited started to act as a general contractor in addition to performing masonry work. In addition to acting as a general contractor, the company would also perform excavation and concrete forming work. In 1980 Gottardo (1980) continued the same work previously performed by Gottardo Contracting Co. Limited. Gottardo Contracting Co. Limited became dormant and remains a shell.

From 1980 until 1985, Gottardo (1980) continued acting as a general contractor and masonry contractor. In addition, Gottardo (1980) would perform excavation and concrete forming foundation work.

In performing this work, Gottardo (1980) used journeymen bricklayers, bricklayers' assistants and general labourers. When help was required on the excavation work the company would use both bricklayers' assistants and general labourers to assist with the excavation, the building of the concrete forms and the back filling of the trenches. Conversely, when the bricklayers' assistants required help, the company would assign general labourers to perform bricklayers' assistants' work on the masonry portion of the job.

Beginning in 1980, Gottcon Contractors Limited (hereinafter referred to as "Gottcon") began to bid on jobs as a general contractor. From 1980 until 1985, Gottcon did not employ anyone directly and would subcontract out all the work. Gottcon sub-contracted approximately 90% of the masonry and general labouring work to Gottardo (1980) from 1980 to 1985.

In 1985, Gottardo (1980) transferred its general labourers to Gottcon. Beginning in 1985, Gottardo (1980) had ceased to act as a general contractor.

Prior to this transfer of general labourers to Gottcon, and while employed by Gottardo Contractors (1980) Inc., the Bricklayers, Local 1 collective agreements were applied to those persons subsequently transferred to Gottcon. While employed by Gottardo Contracting (1980) Inc. these persons were paid in accordance with the rates of pay established in the Bricklayers, Local 1 collective agreements and dues and health & welfare benefits were deducted and subsequently remitted to the union on their behalf. After the transfer of the general labourers to the Gottcon payroll, the Bricklayers, Local 1 collective agreements were no longer applied to those general labourers then employed by Gottcon in-so-far as, for example, they were not paid in accordance with the rates of pay set out in the Bricklayers, Local 1 collective agreement and neither dues nor health & welfare benefit deductions were made or remitted to the Bricklayers, Local 1 union on their behalf.

Gottcon, as a general contractor, continued to sub-contract out approximately 90% of the masonry work to Gottardo (1980). When Gottcon and Gottardo (1980) were on the same construction site the companies continued its previous practice of assisting each other with their respective crews. For example, general labourers employed by Gottcon would help bricklayers' assistants working for Gottardo (1980) when needed while bricklayers' assistants working for Gottardo (1980) would help the general labourers working for Gottcon in the excavation of the site, the construction of the concrete forms and the back filling of the trenches. The companies followed this practice on a daily basis when both Gottcon and Gottardo (1980) were on the same site. Given the fact that Gottardo (1980) derives most of its masonry work from Gottcon, the two companies are on the same site almost all the time.

After 1985, Gottardo (1980) continued to bid for both masonry and excavation work. If Gottardo (1980) was successful in tendering for both masonry and excavation work, Gottardo (1980) would perform the masonry work and Gottcon would perform the excavation and form work with its general labourers. When the bricklayers' assistants performed general labourers work, they are under the supervision of the Gottcon Superintendent. When the general labourers of Gottcon are helping the bricklayers' assistants of Gottardo (1980), they are under the supervision of the Gottardo (1980) Superintendent.

From the totality of the evidence we find that since 1985 Gottardo Contracting (1980) Inc. has employed and continues to employ "bricklayers" and 'bricklayers' assistants". Persons employed by Gottardo Contracting (1980) Inc. in these classifications are covered by the Bricklayers, Local 1 collective agreement. Since 1985 Gottardo (1980) Isic] has not employed directly any persons classified as "general labourers". Gottcon employs the "general labourers" and the Bricklayers, Local 1 collective agreement has not been applied to those persons. The bricklayers, bricklayers' assistants and general labourers of these two companies work side by side, as an integrated work force and are often used interchangeably to perform the work required. Where Gottcon's general labourers are used to assist the Gottardo Contracting (1980) Inc. bricklayers and/or bricklayers' assistants however, they continued to be paid by Gottcon in accordance with the individual rate of pay. Similarly, when Gottardo Contracting (1980) Inc. bricklayers' assistants are used to perform general labourer work they continued to be paid in accordance with the terms of the Bricklayers, Local 1 collective agreement, and dues and other deductions continue to be made and remitted on their behalf. In those cases, where the employees of these companies are interchanged, an internal accounting procedure is used to invoice the one company for the services provided by the employees of the other company i.e. Gottcon invoices Gottardo Contracting (1980) Inc., and Gottardo Contracting (1980) Inc. pays Gottcon for labour provided when Gottardo (1980) uses Gottcon general labourers while the reverse is also true.

In this decision Gottardo Contracting (1980) Inc. and Gottcon Contractors Limited will be referred to as "Gottardo" and "Gottcon" respectively.

4. During the course of the evidence which we heard after we rendered our decision on July 11, 1989, we admitted and have therefore considered the evidence of membership filed by Bricklayers, Local 1. That evidence was tendered after counsel for the Labourers' International Union of North America, Local 506, ("Labourers") raised for the first time, the issue as to the intervener's status to intervene in this application for certification. That membership evidence corresponds to certain names on the list of employees which the respondent employer has filed. That finding is sufficient to dispose of applicant counsel's submissions that the intervener has no status to intervene. The membership evidence establishes that, irrespective of the Bricklayers, Local 1 position that it is the bargaining agent for employees affected by the application, and that those persons are covered by the collective agreement which the Bricklayers, Local 1 has with Gottardo, (a submission which we will address herein), Bricklayers, Local 1 represents some employees who may be affected by the application. On that basis alone, the Bricklayers, Local 1 has status to intervene.

5. Counsel for the Labourers concedes that, in this application, the Labourers cannot acquire any bargaining rights for those bricklayers' tenders, (alternatively referred to as bricklayers' assistants or masons' tenders) employed by Gottardo who are represented by Bricklayers, Local 1 and covered by the collective agreement between Bricklayers, Local 1 and Gottardo.

Counsel states that the applicant does not want to acquire, or interfere with those bargaining rights. For that reason, in this application the Labourers seek a bargaining unit described in the following terms:

all construction labourers in the employ of the respondent in the industrial, commercial and institutional sector of the construction industry, in the Province of Ontario, save and except non-working foremen and persons above the rank of non-working foreman, and those masons' or bricklayers' tenders in bargaining units for which any trade union held bargaining rights as of January 27, 1989, and all construction labourers in the employ of the respondent in all other sectors 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 the Towns of Ajax and Pickering in the Regional Municipality of Durham, excluding the industrial, commercial and institutional sector, save and except non-working foremen and persons above the rank of non-working foreman and those masons' or bricklayers' tenders in bargaining units for which any trade union held bargaining rights as of January 27, 1989.

6. Counsel argues that this description protects the bargaining rights held by Bricklayers, Local 1, while at the same time allowing those who are currently unrepresented to be represented by the trade union of their choice. Counsel emphasizes however that in the event Gottardo commences to employ construction labourers other than bricklayers' assistants, (the Labourers' position being that only bricklayers' assistants are covered by the collective agreement which Bricklayers, Local 1 has with Gottardo) those construction labourers would fall within the applicant's bargaining unit and be covered by the Labourers' collective agreement.

7. The respondent and the intervener submit that the applicant cannot be certified for the bargaining unit it seeks. It was argued that, by reason of the statutory provisions relating to the scheme of province-wide bargaining, the Labourers must be certified for its "standard" bargaining unit which, in this case consists of all construction labourers including bricklayers' assistants or "masons' or bricklayers' tenders" (to use the language found in the employee bargaining agency designation). In the circumstances of this case that "standard" bargaining unit is not available because of the existing bargaining rights of Bricklayers, Local 1. Counsel argued that the bargaining unit applied for in this application was an attempt by the Labourers to "carve out" part of its trade. Such a "carve out" is prohibited by the statutory language and scheme of province-wide bargaining, and in the alternative ought not to be permitted in any event because it does not make sound labour relations sense or further future harmonious labour relations. It was submitted that this application was untimely and the Labourers must await the "open period" of the Bricklayers, Local 1 collective agreement, and seek during that period to displace the Bricklayers, Local 1 bargaining rights, while at the same time acquiring those bargaining rights for the employees currently unrepresented.

8. This application therefore raises two distinct but inter-related issues or questions. First, does the collective agreement between Bricklayers, Local 1 and Gottardo ("the Bricklayers' agreement") cover some or all of the trades covered by the designation order which pertains to this applicant, and therefore potentially employees affected by this application? Second, can, and in the alternative should, the Board in this application certify the Labourers, for the bargaining unit which it seeks?

9. First, it is apparent from the Bricklayers' collective agreement itself, and indeed it was

not disputed that, at the very least, that agreement covers bricklayers' assistants. Although there is

a dispute amongst the parties as to the scope of that collective, it is not disputed that some of the

employees potentially affected by this application are covered by the Bricklayers' agreement. This

application has not been brought during the "open period" of that collective agreement. It is agreed that the Labourers cannot seek to be certified for persons covered by that collective agreement. It is therefore necessary to answer the second question and determine whether the Board can grant to the Labourers in this application a bargaining unit which excludes a part of the trade (bricklayers' assistants) which the Labourers are designated to represent by reason of the Ministers' designation order made pursuant to section 139 of the Act.

10. Before turning to the submissions of the parties, it is useful to set out the provisions of the Labour Relations Act to which reference will be made.

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

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

(b) "bargaining", except when used in reference to an affiliated bargaining agent, means province-wide, multi-employer bargaining in the industrial, commercial and institutional sector of the construction industry referred to in clause 117(e);

(c) "employee bargaining agency" means an organization of affiliated bargaining agents that are subordinate or directly related to the same provincial, national or international trade union, and that may include the parent or related provincial, national or international trade union, formed for purposes that include the representation of affiliated bargaining agents in bargaining and which may be a single provincial, national or international trade union;

(d) "employer bargaining agency" means an employers' organization or group of employers' organizations formed for purposes that include the representation of employers in bargaining;

(e) "provincial agreement" means an agreement in writing covering the whole of the Province of Ontario between a designated or accredited employer bargaining agency that represents employers, on the one hand, and a designated or certified employee bargaining agency that represents affiliated bargaining agents, on the other hand, containing provisions representing terms or conditions of employment or the rights, privileges or duties of the employer bargaining agency, the employers represented by the employer bargaining agency and for whose employees the affiliated bargaining agents hold bargaining rights, the affiliated bargaining agents represented by the employee bargaining agency, or the employees represented by the affiliated bargaining agents and employed in the industrial, commercial and institutional sector of the construction industry referred to in clause 117(3).

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

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

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

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

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

144.-(1) An application for certification as bargaining agent which relates to the industrial, commercial and institutional sector of the construction industry referred to in clause 117(e) shall be brought by either,

(a) an employee bargaining agency; or

(b) one or more affiliated bargaining agents of the employee bargaining agency,

on behalf of all affiliated bargaining agents of the employee bargaining agency and the unit of employees shall include all employees who would be bound by a provincial agreement together with all other employees in at least one appropriate geographic area unless bargaining rights for such geographic area have already been acquired under subsection (3) or by voluntary recognition.

(2) If on the taking of a representation vote more than 50 per cent of the ballots cast are cast in favour of the trade unions on whose behalf the application is brought, or, if the Board is satisfied that more than 55 per cent of the employees in the bargaining unit are members of the trade unions on whose behalf the application is brought, the Board shall certify the trade unions as the bargaining agent of the employees in the bargaining unit and in so doing shall issue a certificate confined to the industrial, commercial and institutional sector and issue another certificate in relation to all other sectors in the appropriate geographic area or areas.

(3) Notwithstanding subsection 119(1), a trade union represented by an employee bargaining agency may bring an application for certification in relation to a unit of employees employed in all sectors of a geographic area other than the industrial, commercial and institutional sector and the unit shall be deemed to be a unit of employees appropriate for collective bargaining.

(4) A voluntary recognition agreement in so far as it relates to the industrial, commercial and institutional sector of the construction industry shall be between an employer on the one hand and either,

(a) an employee bargaining agency;

(b) one or more affiliated bargaining agents represented by an employee bargaining agency; or

(c) a council of trade unions on behalf of one or more affiliated bargaining agents affiliated with the council of trade unions,

on the other hand, and shall be deemed to be on behalf of all the affiliated bargaining agents of the employee bargaining agency and the defined bargaining unit in the agreement shall include those employees who would be bound by a provincial agreement.

(5) Notwithstanding subsections (1) and (4), a trade union that is not represented by a designated or certified employee bargaining agency may bring an application for certification or enter into a voluntary recognition agreement on its own behalf.

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

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

(3) Every provincial agreement shall provide for the expiry of the agreement on the 30th day of April calculated biennially from the 30th day of April, 1978.

For ease of reference the acronyms A.B.A., E.B.A. and Er.B.A. will be used for the terms affiliated bargaining agent, employee bargaining agency and employer bargaining agency respectively.

11. The relevant provision of the Minister's designation is as follows:

Pursuant to clause a of subsection 1 of section 127 of the Labour Relations Act, R.S.O. 1970, c. 232, as amended, I hereby designate the Labourers International Union of North America and the Labourers International Union of North America, Ontario Provincial District Council as the employee bargaining agency to represent in bargaining all construction labourers, including masons or bricklayers' tenders, and all employees engaged in cement finishing, waterproofing or restoration work...

Submissions of the Parties

12. Counsel for the respondent and the intervener made similar submissions. Most of their submissions dealt with the appropriateness of the bargaining unit description as it relates to the industrial, commercial and institutional (ICI) sector. Both counsel focused on the overall scheme of province-wide bargaining, stating that this scheme requires that, in circumstances such as these, where the applicant applies pursuant to section 144(1) of the Act, the Board must describe the bargaining unit in terms which are consistent with the designation order and the province-wide ICI collective agreement of the applicant trade union. Counsel pointed to the language found in section 144(1) which states that "the unit of employees ... shall include all employees who would be bound by a provincial agreement" [emphasis added]. Counsel submitted that this language clearly indicates that, in respect of the ICI sector of the construction industry, the Board cannot grant the bargaining unit sought in this application because, that bargaining unit excludes persons~ namely masons' or bricklayers' tenders employed by Gottardo, who would be bound by the Labourers provincial collective agreement. There is no dispute that the Labourers' provincial ICI collective agreement covers bricklayers' tenders.

13. Counsel also submitted that the mandatory language of section 139 and section 144(1) dictates that the Board cannot describe an ICI sector bargaining unit in a manner which is inconsistent with the relevant designation order. The relevant designation order in this instance makes specific reference to bricklayers' tenders. It was asserted that although the Board need not use the precise words of the designation order, the Board must by reason of section 139 and section 144 include in its description of the bargaining unit all employees covered by that designation order. Counsel argued that in this case, in view of the existing bargaining right of the Bricklayers, Local 1, the Board could not include all such employees in the bargaining unit description.

14. In support of these submissions, counsel pointed to the absence of the words "unless bargaining rights for such geographic area have already been acquired ..." in respect of the description of the ICI sector bargaining unit. Counsel submitted that although those words were contained in section 144(1) in respect of all other employees employed in all other sectors in the construction industry, (thereby potentially permitting an E.B.A. or A.B.A. to be certified for something "less" than its "standard" bargaining unit in those sectors of the construction industry other than the ICI sector) the absence of such words from that portion of the section which deals with the description of the ICI bargaining unit was significant. In effect, it was argued that, had the Legislature so intended, it could have drafted similar language to permit an E.B.A. or A.B.A. to acquire all available ICI bargaining rights excluding only that portion of those bargaining rights which had already been acquired. That the Legislature was capable of doing so is evidenced by the language found in the latter part of section 144(1). That the Legislature chose not to do so is therefore significant.

15. Counsel argued that this position was reinforced by an examination of section 144(4) and the Board's jurisprudence regarding that section. It was submitted that section 144(4) indicates that a voluntary recognition agreement which relates to the ICI sector of the construction industry which is not province-wide and/or which does not cover all employees "who would be bound by a provincial agreement" is null and void (Rockwall Concrete Forming (London) Ltd., [1988] OLRB Rep. Sept. 963). Counsel emphasized that the language of section 144(4) was, in all material respects, identical to the language of section 144(1) relating to certification in the ICI sector of the construction industry. Counsel argues that if a voluntary recognition agreement must be consistent with the Minister's designation order and include all employees who would be bound by the provincial collective agreement, the same reasoning must apply when the Board grants the "recognition" or certifies an E.B.A. or A.B.A. in the ICI sector.

16. Counsel stated that the reason why an E.B.A. or an A.B.A. could not, in the ICI sector, be certified for a unit which does not include all employees covered by its provincial collective agreement and/or which does not include all employees covered by the Minister's designation is simply to preserve the integrity of the scheme of province-wide bargaining in the ICI sector. Counsel argued that to permit the bifurcation of a trade, or a carve out of part of a trade, as suggested by the Labourers in this application would emasculate the province-wide bargaining scheme.

17. Counsel submitted that the scheme of province-wide bargaining had, in the past, dictated certain results which may have appeared anomalous or inconsistent with other provisions of the Act, or the democratic and majoritarian principles which underlie the certification procedures of the Act including the right to be represented by the trade union of one's choice. Thus, for example an E.B.A. or A.B.A. cannot, in the ICI sector, organize or seek to represent more than the unit of employees whom it is designated to represent. The Board has concluded that to hold otherwise would be disruptive of the scheme of province-wide bargaining (see for example Clarence H. Graham Construction Limited, [1981] OLRB Rep. Sept. 1195.) This policy has affected the ability of employees to choose which trade union can represent them, as it is impossible for employees to cross craft lines and be represented by another craft union (A.B.A. or E.B.A.) in the ICI sector of the construction industry.

18. Conversely, it was argued that to permit an A.B.A. or E.B.A. to organize or seek to represent less than the unit of employees whom it is designated to represent is equally disruptive of the scheme of province-wide bargaining, would create undue fragmentation, and recreate the proliferation of bargaining units which the statutory scheme and the Board's own jurisprudence has sought to avoid. In this regard, counsel pointed to those many cases of the Board in which the Board has stated that all the employees covered by the Minister's designation order and who would be bound by the provincial collective agreement must be included in the bargaining unit for certification purposes, and that the Board will not bifurcate a trade (see for example, Dufresne Piling Co. (1967) Ltd., [1984] OLRB Rep. July 924, Lay-All Drywall Ltd., [1988] OLRB Rep. March 308, Wraymar Construction and Rental Sales Ltd., [1989] OLRB Rep. June 682, Kraft Construction Company (1978) Ltd., [1989] OLRB Rep. Feb. 169, Manacon Construction Limited, [1983] OLRB Rep. March 407, Aero Block and Precast Ltd., [1984] OLRB Rep. Sept. 1166, and E. K. T. Industries Inc., unreported decision of the Board, File No. 1856-83-R released March 27,1987).

19. Counsel further submitted that to permit the Labourers in this application to carve out a part of its designated trade was also contrary to section 146(2) of the Act which mandates that an E.B.A. shall make only one provincial agreement for each provincial unit that it represents. It was argued that if the Labourers are successful in obtaining certificates for the bargaining unit it seeks, there would in effect be two provincial agreements. One would be the current provincial collective agreement which applies to all construction labourers including masons and bricklayers' tenders. The other provincial collective agreement would be a separate collective agreement applicable to only a fragment of that designated unit namely, construction labourers, save and except masons' and bricklayers' tenders employed by Gottardo. Counsel submitted that the entire structure of unified province-wide bargaining would be undermined if the E.B.A.'s and their A.B.A.'s could in effect make separate collective agreements in respect of only a portion of the employers' workforce which it is designated to represent. It was argued that such a separate and distinct collective agreement for this employer would have the effect of permitting the Labourers and Gottardo to make a bargain in which Labourers have agreed not to claim a portion of the Work which they would normally acquire. That, it was argued, gave this masonry contractor an unfair advantage or a benefit that other masonry contractors did not have.

20. Along similar lines it was asserted that to grant the Labourers the unit which it seeks at this time would lead to untenable results in the event the Labourers made a timely application to displace Bricklayers, Local 1. If the Labourers were successful at that time, it would have two collective agreements covering work in the ICI sector with the same employer. It was further submitted that the Labourers must therefore wait until the "open period" of the Bricklayers, Local 1 collective agreement, and at that time apply for a "global unit" of all the construction labourers of the employer which the Labourers are designated to represent, including masons' or bricklayers' tenders.

21. Counsel asserted that the issue in this case is not about the right of representation, but merely the appropriateness of this particular bargaining unit. Counsel argues that these currently unrepresented employees can still be represented by any other non-A.B.A. trade union, or, for that matter, by this trade union had the Labourers not chosen to seek a common employer declaration for a group of the Gottardo family of companies which includes Gottardo (1980), the entity which employs the employees represented by Bricklayers, Local 1. In this regard, counsel argued that the Labourers chose to frame a section 1(4) application to include Gottardo (1980) thereby dictating who the respondent employer is for purposes of its certification application. Having successfully sought an expansive description of who is the "employer", the Labourers must accept the consequences of that description. Those consequences include the fact that the Labourers cannot apply for a bargaining unit which comprises only part of its designated trade of employees or part of the employees of the employer. Those consequences also include the fact that any application in respect of the employees employed by Gottardo (1980) is untimely because of the existing bargaining rights of Bricklayers, Local 1. It was submitted that to hold otherwise would be to have granted the Labourers its section 1(4) declaration on the one hand, and then permit them to "give away" the declaration on the other hand by excluding from the bargaining unit description those employees employed by Gottardo. Put colloquially, the substance of the argument was that the Labourers had made their own bed and must now lie in it.

22. It was also argued that the failure to certify the Labourers for the bargaining unit it seeks in this application did not preclude the unrepresented employees from being represented by the trade union of their choice (in this case the Labourers), but merely postponed it for a short period of time. The existing collective agreement between Gottardo and Bricklayers, Local 1 expires May 31, 1990. The Labourers could, during the open period of the Bricklayers, Local 1 collective agreement, apply to displace Bricklayers, Local 1 while at the same time seeking to be certified for its "standard" bargaining unit of employees of this respondent employer.

23. Both counsel addressed the effect, if any, of section 137(2) of the Act. That provision lends some support to the argument that the Legislature recognized that there could be some situations in which a unit, other than a "standard" province-wide unit could be created in respect of the employees of the employer employed in the ICI sector. Section 137(2) extends local bargaining rights province-wide by operation of law. Where an A.B.A. has acquired bargaining rights in any geographic area in Ontario, an employer is deemed to have recognized its sister locals (or all other A.B.A.'s represented by the E.B.A.) throughout Ontario in respect of the employees of the employer employed in the ICI sector. The concluding words of section 137(2) however, state that such deemed recognition does not include "those employees for whom a trade union other than one of the affiliated bargaining agents holds bargaining rights." Thus, in the ICI sector it is possible that, because of pre-existing bargaining rights, an E.B.A. and its A.B.A.'s cannot in fact, acquire bargaining rights on a province-wide basis.

24. Counsel submitted that section 137(2) deals merely with "geography". Section 137(2) is an "exception" which permits the artificial extension of bargaining rights for an A.B.A. into other geographic areas. It does not go so far as to support the proposition that a bargaining unit can be carved up into classifications in either one geographic area or throughout the province. Counsel also submitted the deemed recognition in section 137(2) can only come into effect once an A.B.A. has obtained bargaining rights. In the circumstances of this case, the A.B.A. cannot obtain bargaining rights for the unit which it seeks because of the statutory prohibition of section 144(1). It was submitted that consideration of section 137(2) therefore was largely irrelevant.

25. Counsel further argued that if we do not accept that the statutory language prohibits the Board from granting a bargaining unit in the terms sought in this application, pursuant to our general discretion to determine the appropriate bargaining unit we should nevertheless determine that the bargaining unit which the Labourers seek is not appropriate. In support of this submission, counsel referred to the principles of undue fragmentation, placing particular emphasis on the fact that the Board has not, in any previous instance permitted a trade union to bifurcate its trade and be certified for a "part" or a "sub-species" of that trade. Indeed, the Board's usual practice is to the contrary, namely, to certify applicants to whom sections 144(1) to 144(4) do not apply with reference to all trades on the job on the date of the making of the application. In support, counsel cited Winter & Son, [1967] OLRB Rep. Feb. 889, Duron Ontario Limited, [1976] OLRB Rep. Nov. 734, C. T. Windows, [1983] OLRB Rep. May 627, Ninco, [1982] OLRB Rep. Nov. 1692, A. N. Shaw Restoration Ltd., [1981] OLRB Rep. March 241, Kraft Construction, supra. Each of these decisions in one manner or another articulate the concern that, in the construction industry~ where fragmentation of an employer's workforce along craft and/or trade lines is already firmly entrenched, it is particularly desirable to avoid further fragmentation.

26. Counsel for the respondent stated that the evidence in this case clearly establishes that the workforce of the respondent, the bricklayers and bricklayers' tenders employed by Gottardo and the general labourers employed by Gottcon, work side by side as an integrated workforce and are often used interchangeably to perform the work required. The evidence discloses that on a regular basis, the work performed by a bricklayer's tender is also performed by a general labourer and vice-versa. The semantics used to identify or classify the employees of these two companies appear to be irrelevant. On the evidence there is no work that is exclusive to the bricklayers' tenders employed by Gottardo or is work which is not done by the labourers employed by Gottcon. Regardless of whether these persons are called bricklayers' tenders or construction labourers, each classification regularly and routinely performs the work of the other, or, to put it more accurately, each group performs the same type of work. In these circumstances, it is submitted, it would be a recipe for a jurisdictional dispute to grant the labourers a certificate for the bargaining unit which it seeks. It was argued that it was prima facie inappropriate to certify another trade union for the same work for the same employer when some of the employees of the employer performing that work were already represented by another trade union. It was asserted that this was not a case of "overlapping jurisdiction" but rather a case of "synonymous jurisdiction". Counsel asserted that if the Labourers were certified for this particular unit, it would be impossible to determine which employees were covered by the existing collective agreement between the Bricklayers, Local 1 and Gottardo, and which employees were covered by the Labourers Provincial Agreement.

27. In addition to raising the spectre of numerous future jurisdictional disputes, counsel also referred to the likelihood of various sub-contracting grievances as both the Labourers and Bricklayers, Local 1 sought to ensure that the work of their members was not subcontracted to another "Gottardo" company not in contractual relations with that union. As a corollary to those arguments, counsel made several submissions which essentially focused on aspects relating to the economy and the efficiency of the respondent's operations and its continued viability in the event the Labourers were successful in being certified for its proposed bargaining unit in this application.

Decision

28. In our view the issues raised in this application are not explicitly dealt with in section 144. Similarly, we find that neither the scheme of province-wide bargaining or the designation orders made by the Minister under section 139 explicitly prohibit the Board from finding as appropriate the bargaining unit sought by the Labourers in these circumstances.

29. Pursuant to section 139, the Minister designates who the designated agents are, and assigns to those designated agents the trades which they can represent in province-wide collective bargaining in the ICI sector. In this case, the description of that "provincial unit" refers to a unit of A.B.A.'s who represent "construction labourers including masons or bricklayers' tenders, and all employees engaged in cement finishing, waterproofing or restoration work." Pursuant to section 146(1), the E.B.A. can make only one provincial agreement for that "provincial unit".

30. Pursuant to section 139, the Minister describes the "provincial units" which underlie the scheme of province-wide bargaining in the ICI sector. Pursuant to sections 6, 119 and 144, the Board describes the unit "appropriate for collective bargaining". In making that determination, the Board is limited by the collective bargaining scheme enunciated in the Act in respect of the ICI sector and the Minister's designations. Thus, for example if collective bargaining in the ICI sector can only take place between an E.B.A. which is designated to represent carpenters or carpenters' apprentices and its Er.B.A. counterpart, it is not "appropriate" to include in the bargaining unit employees on whose behalf the E.B.A. cannot bargain in the ICI sector such as electricians, or bricklayers and their assistants. (see Clarence H. Graham Construction Ltd., supra). Indeed the Board has found that it is statutorily prohibited from doing that. (See Superior Plumbing & Heating Company Ltd., [1986] OLRB Rep. Nov. 1589.) It would indeed be a strange result if, in the face of the statutory scheme of provincial bargaining the Board found as "appropriate for collective bargaining" a unit of employees which included employees whom an applicant A.B.A. or E.B.A. was precluded from representing in collective bargaining by reason of the ministerial designation made pursuant to section 139. It is for that reason that the description of the bargaining unit which the Board finds appropriate, typically coincides with the designation orders made pursuant to section 139. Similarly, for those reasons the Board has consistently held that while section 6(1) of the Act gives the Board discretion in determining the unit of employees that is appropriate for collective bargaining, in the construction industry that discretion is limited by section 6(3) and section 144 of the Act. (See Kraft Construction, supra, Reitzel Heating and Sheet Metal Limited, [1988] OLRB Rep. Dec. 1310, Ellis-Don Limited, [1988] OLRB Rep. Dec. 1254, Lay-All Drywall Ltd., supra, Superior Plumbing & Heating Company Ltd., supra.

31. The Board in Clarence H. Graham Construction Ltd., supra, put the matter as follows:

32. Having regard to the foregoing, it is clear that section 131a (now 144(1)) deals with both applications for certification by trade unions under the province-wide bargaining provisions of the Act, and also those trade unions not under the province-wide bargaining provisions of the Act. It deals with all possible applications for certification in the construction industry. It would follow, therefore, that whether the Board makes a finding of an appropriate unit under section 6(1) or section 6(2) of the Act, that such a finding must be made within the confines of section 131a [144], thus the Board cannot as the applicant suggests find an appropriate unit under section 131a(1) [144] and a separate appropriate unit under section 6(1) outside the purview of section 131a [144]. The Board must first deal with section 131a [144] and apply section 6 in relation to section 131a [144]. This requirement is clearly set out in section 126 [now 138] which reads as follows:

"126. Where there is a conflict between any provision in sections 127 to 136 and any provision in section 5 to 49 and 54 to 124, the provisions in sections 127 to 136 prevail".

32. We agree that we must resolve the issue as to the appropriate bargaining unit after consideration of, and application of sections 6, 119 and 144. We further concur that if there is a conflict between these provisions, section 144 will prevail. In our view however, section 144 must be given a purposive interpretation consistent with both the scheme of province-wide bargaining in the ICI sector and the other provisions of the Act. Where possible, the various provisions of the Act must be read in a manner which attempts to avoid conflicts between sections.

33. In our view, the issues raised in this application are not explicitly dealt with in section

144(1). We therefore must have recourse to the Board's general and discretionary power to describe the unit "appropriate for collective bargaining". We do not accept counsel's submissions concerning the Board's limited role in defining the appropriate bargaining unit in applications made pursuant to section 144(1). Acceptance of counsels' interpretation means that the Board has no authority to determine the appropriate bargaining unit in cases where the application is made under section 144(1). The Board has not in the past limited its jurisdiction in such a manner so as to merely ensure the applicant conforms with the provisions of section 144(1). In fact, and as the above noted quote from Clarence H. Graham Construction Ltd. indicates, the Board has taken a contrary view by stating that applications for certification in the construction industry must be dealt with having regard to both the provisions of section 144 and section 6. The Board's discretionary jurisdiction under section 6 must be exercised in the context of section 144, and the scheme of province-wide bargaining, but where, as here, section 144(1) does not explicitly cover the issue, the Board may exercise its discretionary authority under section 6.

34. Section 144 does not contain clear and specific language which prohibits the Board from granting a bargaining unit which excludes part of the trade which the appropriate A.B.A.'s and E. B. A. have been designated to represent in circumstances such as these. We agree that section 144 contains mandatory language. As already noted we are also of the view that our discretion and authority to describe the unit "appropriate for collective bargaining" must be read within the context of section 144 and any other provisions of the Act, which do not conflict with section 144 or the scheme of province-wide bargaining. We also agree that fragmentation is to be avoided especially in the construction industry where representation of employees according to craft has already resulted in fragmentation of an employer's workforce. We are of the view that section 144 is mandatory insofar as it directs E.B.A.'s and A.B.A.'s which employees they must apply for when they seek to be certified in the ICI sector. Section 144 is mandatory insofar as it does not permit an E.B.A. or A.B.A. to "pick and choose" for which part of their designated trade they will seek to be certified. A section 144(1) applicant must take all employees of its designated trade available to it. Similarly, section 144 is mandatory insofar as it directs the Board that the Board also cannot pick and choose which part of a designated trade it can find to be an appropriate bargaining unit. The reason why section 144 is "mandatory" in this sense and does not allow either the applicant or the Board to pick and choose who will/will not be included in a bargaining unit stems from the designation orders and the scheme of province-wide bargaining in the ICI sector. Except for certain cases of overlapping trade jurisdictions caused by the designation orders themselves, if the designated E.B.A. and its A.B.A.'s do not represent the employees whom they are designated to represent in the ICI sector, no other A.B.A. can represent those employees. To permit applicants to pick and choose who they will represent therefore, might prevent certain employees from being represented at all, and certainly denies them the option of being represented by a "craft" union or A.B.A.

35. "Mandatory" in the sense of not permitting either the Board or a section 144(1) applicant to "pick and choose" from available or possible options however, is quite different and distinct from what can be "mandatory" where there are no such possible options. In this case, the Labourers do not, at this time, have the option of choosing to represent employees currently represented by Bricklayers, Local 1. They do not have the alternative to "pick and choose" because they cannot "choose" some of the employees due to the existing bargaining rights of Bricklayers, Local 1. They can only "pick" what is available and must take all those available. The Board can only grant the Labourers bargaining rights for such available employees and similarly must describe the bargaining unit in such a way as to include all those available.

36. We are of the view that the interpretation which the respondent and intervener seek to place on the application of section 144 to the circumstances before us is contrary to the scheme of province-wide bargaining. Such an interpretation would effectively deprive those unrepresented employees employed by Gottcon of their right to be represented by the very A.B.A. (and E.B.A.) which the Minister has designated to represent their trade. In addition, we find the interpretation which counsel for the respondent and intervener urge upon us to be inconsistent with section 137(2). We find that section 137(2) supports our view that, in these circumstances and because the issues raised in this application are not specifically dealt with in section 144 (thereby necessitating recourse to the Board's general jurisdiction under section 6) it is appropriate to describe the bargaining unit in the manner sought by the Labourers in this application. Notwithstanding counsels' argument to the contrary, we find that section 137(2) supports the view that the legislature has recognized that, in certain situations, the scheme of province-wide bargaining is not, and cannot be, a monolithic super structure that encompasses or applies to all situations.

37. We do not agree that section 137(2) deals only with the "geographic" jurisdiction of the non-A.B.A.'s, but in any event can see no reason why a distinction should be drawn between the "geographic" jurisdiction of non-A.B.A.'s with existing bargaining rights and the "trade" jurisdiction of non-A.B.A.'s with existing bargaining rights. If an A.B.A. is precluded from obtaining bargaining rights for employees in the ICI sector because a non-A.B.A. already holds bargaining rights in the "respective geographic jurisdiction" of the A.B.A., then surely a similar rationale applies where a non-A.B.A. holds bargaining rights in respect of a part of the "trade" jurisdiction of the A.B.A. In our view, if any non-A.B.A. holds bargaining rights in respect of any employees employed in the ICI sector, (absent a timely displacement application) the A.B.A. cannot acquire bargaining rights in respect of those employees either by virtue of section 144(1), or the deemed recognition of the A.B.A. by reason of section 137(2). The E.B.A. can however acquire bargaining rights for employees not represented by the non-A.B.A. with existing bargaining rights.

38. To accept counsels' assertion that section 144(1) prohibits the granting of a bargaining unit which excludes bricklayers' tenders in the circumstances of this case is also inconsistent with the principles which underlie the Act and certain policies which the Board has enunciated in furtherance of those principles. In this regard we wish to address specifically those arguments of counsel set out in paragraphs 21 and 22 herein.

39. First, we note that we do not agree that the issues raised in this application are not about the right of representation, but merely the appropriateness of this particular bargaining unit. All determinations as to the appropriateness of the bargaining unit inevitably impact upon the rights of employees to choose to be represented by a particular trade union.

40. In our view, the fact that the currently unrepresented employees could be represented by some other trade union (other than the applicant A.B.A.) which is not subject to the restrictions found in section 144(1) does not meet or answer the argument that the interpretation of section 144 which counsel for the respondent and the intervener urge upon this Board denies the unrepresented employees the right to be represented by the trade union of their choice. In the construction industry, the rights of employees to choose their bargaining agents are already somewhat restricted. For example, if employees want to be in a "craft" unit and represented by a "craft" union (an A.B.A.) they have a restricted right as to which "craft" union they may choose. For example, these employees could not choose to be represented by the International Brotherhood of Electrical Workers, the craft union designated to represent journeymen and apprentice electricians. In this application, these employees have indicated that they wish to be represented by a "craft" union (an A.B.A.). We can see no reason, and can find none enunciated in the statute as to why the rights of these employees to choose their bargaining agent should be further restricted by depriving the employees of the opportunity to be represented by the very A.B.A. (and E.B.A.) whom the Minister has specifically designated to represent persons employed in their trade. Further limiting the already restricted choice of these employees to trade unions who are not A.B.A. 's or E.B.A.'s, or bargaining agents who do not fall within the parameters of the scheme of province-wide bargaining in the ICI sector enunciated in the Act would not be in furtherance of the scheme of province-wide bargaining.

41. Similarly, we do not accept that the fact that the Labourers have chosen to include Gottardo as a respondent in this, and its section 1(4) application should adversely impact upon the bargaining unit description in the manner suggested by counsel. In this instance, the Labourers properly sought the section 1(4) declaration granted to them in an effort to protect against the possibility of the future erosion of their bargaining unit if work was transferred from one entity for which it holds bargaining rights to another entity for which it does not hold bargaining rights. We do not agree that either the Labourers or those currently unrepresented employees for whom it now seeks to obtain bargaining rights should be penalized because they have sought, at the front-end, to properly define the bargaining relationship and not enter into a relationship which has a substantial possibility for the erosion of the bargaining unit. In choosing to include Gottardo in its section 1(4) application, the Labourers merely exercised a statutory right to define the employer of the employees whom they seek to represent, in a manner which lends itself to the preservation of the integrity of the bargaining unit, and in a manner which ensures that there will be direct dealings between the bargaining agent and the entity which is the "true" employer of the employees. We can see no reason, (and again can find none enunciated in the statute), why the Labourers should, in effect, be disadvantaged because it chose not to take the risk of defining the respondent in a limited manner. This is especially so when it is recognized that there is a specific statutory provision which was enacted for the very reason of eliminating, or at the very least minimizing that risk.

42. Finally, we turn to the argument which focuses on the timeliness of the application, and in which it is submitted that the rights of the unrepresented employees are not denied, but merely "delayed" or "postponed" for a brief period. First, we observe that we can find no rationale explanation why currently unrepresented employees should have their right to be represented by the trade union of their choice delayed or postponed by reason of the fact that a portion of the employers' workforce is already represented by another trade union. Although the Act specifically limits to certain specified time periods the right of employees already represented by a trade union to choose another trade union, there are no similar restrictions or prohibitions placed upon the times when unrepresented employees may choose to become represented by any trade union. (Subject only to sections 103(2)(i) or 103(3)).

43. Moreover, if we were to adopt counsel's submissions that the Board has no jurisdiction to define the appropriate bargaining unit in the manner sought by the Labourers in this application, then we don't have such jurisdiction at any time. Yet, if we were to accept that the Labourers must apply for, and the Board can only grant, the Labourers its "standard" bargaining unit, it would lead, in our view to certain absurd and untenable results. To find that an A.B.A. cannot obtain bargaining rights for the unrepresented "part" or "sub-set" of the trade it is designated to represent because another trade union already holds bargaining rights for another "part" or "sub-set" of the trade would be disruptive of the scheme of province-wide bargaining in the ICI sector. The designation orders made by the Minister pursuant to section 139 of the Act are not watertight compartments. There are instances of an overlap in the designation orders themselves. Acceptance of counsel's submissions would mean that an A.B.A. which has been statutorily designated to represent a trade could never represent that trade if, for example, an employer voluntarily recognized another trade union. The same would be true if another A.B.A. whose designation order overlaps with the applicant A.B.A.'s designation order had already acquired bargaining rights for that part of the trade which it was also designated to represent. The race would always go to the swiftest. Voluntary recognition by an employer in respect of some "part" of the trade, or representation by another A.B.A. in respect of that overlapping part of the trade which it is also designated to represent would oust the right of an applicant A.B.A. to be certified on behalf of the remainder portion of the trade which was unrepresented and which it is statutorily designated to represent. That could potentially leave the unrepresented segment of the trade unrepresented ad infinitum.

44. This then leads to counsel's arguments outlined in paragraph 20 that the Labourers must wait for the "open period" of the Bricklayers agreement and then apply for its standard bargaining unit of all construction labourers.

45. If we were to accept such a proposition, it could have a significant adverse impact upon the existing bargaining rights of Bricklayers, Local 1. We say this because we are of the view that counsel's submissions that the Labourers can only apply for a bargaining unit which includes all construction labourers (including the bricklayers' tenders represented by Bricklayers, Local 1) during the open period is inconsistent with the Board's long standing policy that a trade union should not be deprived of the bargaining rights it has acquired unless a vote is conducted among the employees whom it represents and a majority of those employees have expressed their view that they no longer wish to be represented by the incumbent trade union.

46. As the Board noted in Reitzel Heating & Sheet Metal Ltd., supra:

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

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

49. Where there is a request for a pre-hearing representation vote on a displacement application, the Board's standard practice is to require the applicant to accept as a voting constituency the bargaining unit represented by the incumbent union. (See, for example, Ethyl Canada Inc. [1979] OLRB Rep. Oct. 985; The Wellesley Hospital [19761 OLRB Rep. Feb. 45; Roland Lefebvre Lathing Limited [1966] OLRB Rep. May 140.) If the applicant seeks to enlarge the bargaining unit the Board will establish two voting constituencies, the incumbent unit as one and the add-one segment as the other. To be entitled to a vote in each, the applicant must demonstrate membership support of 35 per cent in each voting constituency. (See Ethyl Canada Inc., supra).

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

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

15. In Barnet-Mc Queen Co. Ltd., 59 CLLC 26 18,139 the Board was asked by the displacing union to find that a unit larger than the incumbent's unit was appropriate. The Board refused the request explaining that if it were to find a larger unit appropriate it would be possible for a union to displace another solely through its strength in the add-on portion of the unit and despite the views of the employees in the original or incumbent's unit.

We note parenthetically that it is for this reason that the Board has always ordered a representation vote before terminating the bargaining rights of any trade union.

47. In this case, if the Labourers were to apply during the open period for a unit of all construction labourers including those employees employed by Gottardo and currently represented by Bricklayers, Local 1, and filed with the Board membership evidence on behalf of at least fifty-five percent of the employees of that unit, the Bricklayers, Local 1 could lose the bargaining rights it has notwithstanding the fact that a vote was not conducted, or for that matter notwithstanding that a majority of its members did not become members of the Labourers or support the Labourers' application to be certified (the fifty-five percent support level having perhaps been achieved through the numerical strength of the unrepresented employees on their own, or in combination with a minority of employees represented by Bricklayers, Local 1).

48. If the Board were to conduct a vote, the vote must be a vote of employees in the bargaining unit. According to the submissions of counsel for the respondent and intervener that bargaining unit must be a "global" unit and must include all construction labourers of the respondent, including those currently represented by Bricklayers, Local 1. If, on the taking of that representation vote, the Labourers had the support of the majority of the employees in this all encompassing construction labourers bargaining unit, section 7(3) and 144(2) dictates that the Labourers must be certified as bargaining agent. This will be so regardless of the fact that the majority support may have been achieved only because the Labourers had the support of the currently unrepresented employees and perhaps, notwithstanding the fact that the Labourers did not have any support, or only minimal support, among the employees currently represented by Bricklayers, Local 1. That result would be contrary to the Board's long standing policy that a trade union should only be deprived of its bargaining rights by a majority vote conducted amongst the employees it represents.

49. The Board could perhaps conduct two votes. The first, amongst employees currently represented by the Bricklayers, Local 1 and a second amongst the currently unrepresented construction labourers. The Board could perhaps count the votes sequentially. Only if a majority of the employees currently represented by Bricklayers, Local 1 voted in favour of the Labourers would the balance cast by the employees currently unrepresented be counted. As is noted by the Board in Reitzel Heating & Sheet Metal Ltd., supra, however, there is some doubt that the Board has the jurisdiction to conduct or count such a vote in such a manner. (See paragraph 44 of the decision). In addition, and again as noted in Reitzel Heating & Sheet Metal Ltd., supra, as a matter of principle, employees not currently represented by the Bricklayers, Local 1 should not be disenfranchised by reason of the result of the vote by the employees who are represented by Bricklayers, Local 1. Their right to have the ballots they cast counted should not be dependent on how other employees vote.

50. More significantly however, if the Board is without jurisdiction to describe a bargaining unit in terms which exclude "part" of the Labourers' designated trade because that part is already represented by another trade union, then neither the timing of the Labourers' application or the conduct and/or sequential counting of two votes would give the Board that jurisdiction. Thus, if a majority of the employees currently represented by Bricklayers, Local 1 voted against the Labourers, preferring instead to be represented by Bricklayers, Local 1, the Board would not terminate the bargaining rights of Bricklayers, Local 1. In that instance, acceptance of counsel's submissions would therefore mean that the currently unrepresented employees could never choose to have the Labourers as their bargaining agent because, according to counsel, as long as Bricklayers, Local 1 represents some part of the construction labourers of the respondent so that the Labourers cannot take all of their designated trade, they cannot be certified for something less. If in the present situation the different parts of the trade were represented by two or more different trade unions (if for example, employees engaged in cement finishing were represented by another trade union while the bricklayers' tenders were represented by Bricklayers, Local 1) and were covered by collective agreements which contained different open periods, each of the problems outlined in the above scenarios would be exacerbated.

51. We wish also to address counsel's arguments in respect of both section 146 and the phrase "the unit of employees shall include all employees who would be bound by a provincial agreement" as found in section 144(1).

52. Employees can only be in one bargaining unit at a time, and there can only be one exclusive bargaining agent in respect of that bargaining unit. Employees may be in different bargaining units and may move back and forth between bargaining units at different times, but that employee cannot be in two different units at the same time. (See Laurent Lamoureux Company Ltd., [1985] OLRB Rep. Nov. 1618 at paragraph 15, Wraymar Construction & Rental Sales Ltd., [1989] OLRB Rep. June 682, Harnden & King Construction Ltd., [1987] OLRB Rep. Dec. 1510). In both the construction and non-construction settings (and regardless of the specific provisions relating to provincial bargaining of one provincial agreement in the ICI sector), the Act specifies that there can only be one collective agreement with respect to the employees in the bargaining unit defined in the collective agreement (section 49). It follows therefore that an employee in the bargaining unit to which a collective agreement applies can only be covered by that collective agreement, and can only be represented by one trade union in respect of the work covered by that collective agreement. (That does not mean that there can't be two collective agreements covering the same work. The number of jurisdictional disputes which have been filed with this Board unfortunately attest to the fact that it is not uncommon in the construction industry for collective agreements to have overlapping work jurisdiction clauses). An employee who is already represented by an exclusive bargaining agent (in this case Bricklayers, Local 1), and who is already covered by an existing collective agreement (the Bricklayers Local 1 collective agreement with Gottardo) for work which is also covered by another agreement (in this case the provincial agreement) cannot, at the same time, be represented by another trade union (the Labourers) and cannot at the same time, be covered by that other agreement in respect of that work. Those employees would therefore not be bound by the provincial agreement and therefore cannot be included in "the unit of employees who would be bound by a provincial agreement."

53. We do not agree that the granting of a bargaining unit description in the terms sought would create two provincial agreements contrary to section 146. In our view, there will still only be one provincial collective agreement "affecting employees represented by affiliated bargaining agents". That provincial collective agreement would obviously not apply to those employees not represented by the affiliated bargaining agent applicant in this case. That fact however, does not change the matter that there is still only one collective agreement applicable to all employees represented by the Labourers. By reason of statute, upon certification, this respondent will be bound to the provincial collective agreement negotiated between the Er.B.A. and the Labourers in respect of the employees for whom the Labourers hold bargaining rights.

54. Finally, we note that this is not a case of first impression. The Board has, on other occasions, either upon agreement of the parties (although without analysis) or after hearing the submissions of the parties, described the bargaining unit in the ICI sector in such a manner as to "save and except" employees already represented by another trade union (see for example the decisions of the Board in the Corporation of the City of Toronto, Board File 1 172-85-R released September 9, 1985 and Board File 1679-87-R released December 23, 1987.)

55. In Georgian Building Corporation, [1981] OLRB Rep. March 275, the Board dealt with an argument substantially similar to the one made in this case. In that instance, Local 183 of the Labourers International Union of North America (Local 183) was found to have existing bargaining rights for employees of the respondent employer in the residential sector of the construction industry in Board area 8 only. Local 183 did not have bargaining rights for the ICI sector or any other sector except the residential sector. At paragraphs 21 and 22 of that decision, the Board outlined the respective positions of the parties:

56. Counsel for the respondent argued that since Local 183 has bargaining rights for some of the construction labourers of the respondent in Board Area #8 pursuant to subsisting collective agreements, Local 506 cannot apply under section 131a(1) [now section 144] for a unit which includes all employees who would be bound by a provincial agreement together with all other employees in Board #8. He further argued that neither of the exceptions specified in that subsection ("unless such bargaining rights for such geographic area have already been acquired under subsection 3 or by voluntary recognition") was applicable in the instance case. Accordingly, he submitted that no certificate could be issued to be applicant in the present case. It was his position that a province-wide certificate in respect of the respondent's employees in the industrial, commercial and institutional sector could only be obtained through a section 131a(1) [144] application pertaining to an "appropriate geographic area" in which no bargaining rights had previously been obtained by any trade union in respect of any of the respondent's employees in any of the other sectors in that geographic area (unless bargaining rights had been obtained for all employees in all other sectors in that area by voluntary recognition or by certificate issued under section 131a(3) [144(3)]. In the alternative, he submitted that the Board should issue a certificate only in respect of the respondent's employees in the industrial, commercial and institutional sector (province-wide).

57. Counsel for the applicant contended that the Board should not construe section 131a [144] of the Act in a manner which could preclude some of the employees of an employer in a Board area from ever being represented by a trade union through a certification application. He noted that if the respondent's interpretation of section 131a [144] were accepted, the Board could not certify where an employer employs persons in the industrial, commercial and institutional sector and in other sectors in a Board area and a trade union holds bargaining rights in some but not all other sectors. Thus, (he submitted) the employees in the remaining sectors would "remain forever unrepresented" (unless the employer granted voluntary recognition with respect to them). He submitted that the bargaining rights currently held by Local 183 (in respect of employees of the respondent in Board Area#8) under existing collective agreements should be treated as either having been acquired by voluntary recognition (since the recognition clause in a collective agreement supersedes any certificate issued by the Board) or should be "deemed" to have been acquired under section 131a(3) [144(3)] since it is the provision under which Local 183 would have obtained bargaining rights if that subsection had been in force at the time Local 183 was certified in respect of them.

58. After referring to both provisions of the Interpretation Act and the preamble to the Act, the Board concluded:

Having regard to those legislative provisions, the Board cannot accept the construction of section 131a [144] advocated by counsel for the respondent. Harmonious relations between employers and employees would not be furthered, nor would the practice and procedure of collective bargaining be encouraged by that construction which would preclude certification in respect of some employees who would not otherwise be beyond the purview of the certification procedures under the Act. Such an interpretation might well result in resurgence of recognition strikes, the elimination of which is one of the purposes of the certification procedures of the Act. The Board has a well-known and long standing practice of preserving existing bargaining rights by excluding from bargaining units employees covered by subsisting collective agreements. In the absence of a clear and specific legislative direction to the contrary, the Board is of the view that it is appropriate, having regard to the preamble and the general scheme of the Act, to maintain that practice which promotes industrial peace and stability by recognizing and preserving existing bargaining rights.

57. The Board ultimately granted two certificates to the applicant in respect of all construction labourers in the employ of the respondent employer in both the ICI sector and in all other sectors of Board Area 8 and excluded from each of those certificates "persons covered by subsisting collective agreements, certificates of the Labour Relations Board or written voluntary recognition agreements."

58. For all of these reason, and in light of the fact that section 144 does not contain clear and specific language which prohibit us from doing so, we have determined that the Board can describe the appropriate bargaining unit in an manner which excludes a "part" of the trade which the Labourers are designated to represent where, as here, that "part" of the trade is already represented by another trade union.

59. The final issue to be resolved therefore is whether, in these circumstances, the Board should grant such a bargaining unit.

60. In respect of counsel's submissions that the proposed unit unduly fragments the employer's workforce we merely note that such fragmentation has already occurred. At least since 1985, the respondent has taken, what it has sought to characterize as its homogeneous, fully integrated, totally interdependent workforce and fragmented it into two groups of employees. The first group consists of those employees to whom the respondent applies to the Bricklayers, Local 1 collective agreement and on whose behalf it deducts and subsequently remits dues and other fees to the Bricklayers, Local 1. The second group of employees consists of those to whom the respondent has never applied the Bricklayers, Local 1 collective agreement. Indeed, the respondent's fragmentation has extended so far that it has developed an internal accounting procedure which it uses to account for the services provided to the various companies in the Gottardo group of companies by each of these two groups of employees. The existing fragmentation has apparently not caused the respondents any concern or undue hardship in the administration of its labour relations in the past four years. Under these circumstances, we find it inappropriate to place undue emphasis on the fragmentation of the respondent's workforce. Undoubtedly, if the Labourers are at some point certified for this second group, the respondent may have to make certain adjustments to its methods of operation. That however, is not unusual. There are many instances in which, once an employer is bound to recognize a trade union after certification of a previously unrepresented group of employees, the employer has to make adjustments to its methods of operation or otherwise adapt to the fact that its employees are represented and subject to a collective agreement. (See Shearwall Forming (East) Ltd., Board File 3168-88-R decision released December 6, 1989 and Ridsdale Steel Fabricators Inc., [1987] OLRB Rep. April 601 for similar observations in another setting).

61. With regard to the issues of the economy, efficiency and the likelihood of numerous jurisdictional disputes, we are of the view that although those matters should be considered by the Board in determining whether a bargaining unit is appropriate, the Board should not be unduly affected by the respondent's arguments in this case. Certainly, some of the respondent's assertions as to what will happen in the future if the Labourers are certified for the unit it seeks are speculative. In exercising our discretion to determine the appropriate bargaining unit we must weigh and balance the competing interests of the parties before us. The economy and efficiency of an employer's operation can be no more determinative of the appropriate bargaining unit, than can a trade union's desire to be certified for what it wants because that configuration may ensure that it is successful in the application, or may give it greater bargaining strength or make it less difficult for the union to organize. As the Board noted in the Hospital for Sick Children, [1985] OLRB Rep. Feb. 266 at page 271:

The structures and policies that promote a maximization of the employer's business interests are not those that will necessarily describe a viable bargaining unit, or the only viable bargaining unit - particularly since those interests may include a desire to avoid collective bargaining altogether, or limit its effectiveness. The employer's administrative structures are relevant in determining the bargaining unit, but they are not necessarily to be taken as the conclusive blue print in deciding what is appropriate. Nor is it a matter of simply giving an applicant union what is wants. It is, as we have noted, a matter of balancing competing considerations

(See also Westdale Painting & Decorating, [1989] OLRB Rep. Sept. 984 and Shearwall Forming (East) Ltd. supra.)

62. After consideration of all of the submissions, we have determined that it is appropriate to describe the bargaining unit in the manner sought by the Labourers. We therefore find that:

all construction labourers in the employ of the respondent in the industrial, commercial and institutional sector of the construction industry, in the Province of Ontario, save and except non-working foremen and persons above the rank of non-working foreman, and those masons or bricklayers' tenders in bargaining units for which any trade union held bargaining rights as of January 27, 1989, and all construction labourers in the employ of the respondent in all other sectors 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 the Towns of Ajax and Pickering in the Regional Municipality of Durham, excluding the industrial, commercial and institutional sector, save and except non-working foremen and persons above the rank of non-working foreman and those masons' or bricklayers' tenders in bargaining unit for which any trade union held bargaining rights as of January 27, 1989

constitute a unit of employees of the respondent appropriate for collective bargaining.

63. We have not addressed, and find it unnecessary to address at this stage of these proceedings the submissions of the parties as to which employees fall outside the scope of the bargaining unit by reason of the "save and except" provision in the bargaining unit description. Resolution of that issue may ultimately involve an examination of the bricklayers' agreement to determine which employees and/or what work is covered by that collective agreement. In the present context however that matter does not need to be addressed in this decision. Indeed, it may be that such issue need not be determined at all in the context of these proceedings if the parties find that they are in agreement in respect of the list of employees in the bargaining unit.

64. This decision does not however dispose of this application. The list of employees in the bargaining unit (which we have now determined appropriate) on the date of application must still be settled, and we must still determine how many of those employees were members of the applicant union at the relevant time.

65. The Registrar is therefore directed to schedule this matter for hearing to hear the evidence and representations of the parties with respect to all remaining matters arising out of and incidental to this application.