Labourers International Union of North America, Local 837 v. Peter Kiewit Sons Co. Ltd., 1991 CanLII 6141

Labourers International Union of North America, Local 837 v. Peter Kiewit Sons Co. Ltd.

[1991] OLRB Rep. July 881

1498-90-R; 1603-90-U Labourers International Union of North America, Local 837, Applicant v. Peter Kiewit Sons Co. Ltd., Respondent v. United Brotherhood of Carpenters and Joiners of America, Local 38, Intervener; United Brotherhood of Carpenters and Joiners of America, Local 38, Complainant v. Peter Kiewit Sons Co. Ltd., Labourers International Union of North America, Local 837 Ontario Provincial District Council, Labourers International Union of North America, Respondents

BEFORE: M. G. Mitchnick, Chair, and Board Members J. Lear and C. A. Ballentine.

APPEARANCES: S. B. D. Wahl and N. Schibetta for Labourers 837; D. J. Shields, Alex Drummond and Lee Shouldice for Peter Kiewit Sons Co. Ltd.; David McKee and Barry Walker for Carpenters Local 38.

DECISION OF THE BOARD; July 19, 1991

1The present proceedings involve two matters before the Board, one a section 89 complaint by the United Brotherhood of Carpenters and Joiners of America, Local 38 ("Carpenters"') alleging, in effect, that the respondent Peter Kiewit Sons Company of Canada Ltd. ("Kiewit") and the Labourers International Union of North America, Local 837 ("Labourers"') have conspired together to undermine the Carpenters' bargaining rights, and the other an application for certification brought by the Labourers' to displace those bargaining rights. In that certification application a Pre-hearing Vote has already been conducted, and the ballot box sealed. The allegations raised by the Carpenters' in the section 89 complaint also form the basis for an intervention filed by the Carpenters' in the application for certification, and the parties have now argued a motion brought before the Board by the Labourers', supported by the employer, that in neither case do the facts and material relied upon by the Carpenters' constitute a prima facie case.

2The Carpenters' have, for the purpose of the Board's consideration of the present motion, combined all of their relevant pleadings into the following Statement of facts upon which they rely (the reference to "Tabs" from the Carpenters' accompanying Book of Documents is deleted, and the underlining is the Board's):

STATEMENT OF FACTS

1. In Board file 2974-87-R, an Application for Certification dated February 3, 1988, the Labourers' International Union of North America, Ontario Provincial District Council ("the Labourers Union") made an Application for Certification for construction labourers pursuant to section 144 of the Labour Relations Act. The application also contained the request "for the purposes of clarity, the bargaining unit description above includes construction labourers, form builders, form setters and cement finishers".

2. Applications for Certification by Intervener were filed by the United Brotherhood of Carpenters and Joiners of America, Local 38 ("the Carpenters Union") and by the International Union of Operating Engineers, Local 793.

3. Kiewit filed a reply to the Application for Certification disputing the appropriateness of the Applicant's claim for inclusion of form builders and form setters in the bargaining unit.

4. The Board heard a preliminary issue with respect to the constitutional jurisdiction of the Board. The Board found that it had jurisdiction.

5. The Board then dealt with the issue of the appropriate bargaining unit. It stated:

Notwithstanding the fact that the applied for bargaining units are described in terms of different classifications or trades, there is a considerable degree of overlap between the two applications. The Labourers' Union claims that a number of individuals classified by the Respondent as "form setters" are in fact, construction labourers and thus come within its applied-for bargaining unit. The Carpenters Union however contends that these same individuals are carpenters and accordingly come within the bargaining unit it seeks to represent.

6. In the course of the application Kiewit filed schedules of employees. These employees were described either as labourers or form setters.

7. The work performed by the persons described as "form setters" included the building, rigging and fixing in place of forms to receive concrete, the construction of wooden steps, railings and platforms, walkways and scaffolds.

8. The issue was ultimately resolved by Minutes of Settlement executed by the parties.

All Parties agreed that the persons described as form setters were in fact carpenters and properly included in a unit of carpenters and carpenters' apprentices. The persons described as labourers were agreed to be labourers and properly included in a unit of construction labourers.

9. The Board issued a decision and certificates on the basis of this agreement.

10. By the date of the issuance of the certificates, Kiewit was not actively engaged in construction in Board Area 5.

11. In 1989 Kiewit bid on and secured a contract for the rehabilitation of another section of the Welland Canal. This project was essentially identical to the project undertaken in 1987-1988 during which the Application for Certification was filed.

12. Both of these projects were essentially formwork contracts. Portions of the Canal wall, the locks, and to a limited extent, the floor of the Canal, were blasted away, new re-bar driven into the side of the remaining concrete wall, concrete forms built, and concrete poured into them to replace that portion blasted away. Incidental to the formwork, was the construction of wooden steps, stairways, walkways, and scaffolds.

13. The Labourers' Union and Kiewit commenced negotiations for a collective agreement.

14. The facts with respect to bargaining between Kiewit and the Carpenters' Union are as follows:

(a) Negotiations for a collective agreement between the Carpenters' Union and Kiewit commenced on November 8, 1989 by a telephone call between Mr. Arthur Varty, Business Representative of the Carpenters Union, and Mr. Alex Drummond of Peter Kiewit.

(b) By letter dated November 8,1989, Mr. Varty sent Mr. Drummond proposals of the Carpenters' Union.

(c) On November 10, 1989, Mr. Varty contacted Mr. Drummond for his response to the proposals and, if necessary, to set up a meeting for further discussions. Mr. Drummond replied that Peter Kiewit was "going with the labourers" and would be hiring "form setters" from the Labourers' Union rather than carpenters from the Carpenters' Union. He further stated that he saw no need or purpose for further negotiations with the Carpenters' Union.

(d) Mr. Varty asked Mr. Drummond if the wage rate he had proposed was the basis of the objection to negotiations with the Carpenters' Union. Mr. Drummond replied that it was not, but he refused to identify any other bargaining issue.

15. On November 14, 1989, the Labourers' Union signed a collective agreement with Kiewit ("the Collective Agreement").

16. The Collective Agreement does not contain a specific work jurisdiction provision. It does however contain the following:

1.01 It is the intent and purpose of this Agreement to assure sound and mutually beneficial relationships between the parties hereto, to provide an orderly and peaceful means of resolving any misunderstanding or grievance without any work stoppage and to set forth herein the basis and full agreement between the parties covering rates of pay, wages, hours of work and other conditions of employment for all construction labourers employed on the St. Lawrence Seaway Authority projects, road building, parking lot construction, paving, sewer and watermain construction, tunnel work and heavy construction, including all work associated with concrete forming construction and other woodworking.

3.07 It is agreed and understood that work covered by this agreement shall be sublet only to those subcontractors who employ members of the Labourers' International Union of North America to perform such work.

14.01 When a work claim dispute arises between the Union which is the second party to this Agreement and any other unlon or organization which cannot be settled to the satisfaction of all parties concerned, work shall proceed without stoppage. The Union which is the party to this agreement shall forthwith file a complaint with the Ontario Labour Relations Board seeking a determination from the Board under section 91 of the Labour Relations Act. Pending the final resolution of the complaint by the Ontario Labour Relations Board, the Employer shall continue with the assignment of the work made prior to the dispute arising.

17. The Collective Agreement also contains the following classifications:

Labourers, including Helpers for Form Builders and Form Setters, Form Strippers (all types) including the complete stripping of materials to be reused (wood or otherwise).

Scaffold Erectors (all types) and Dismantlers.

Form Setters, Form Builders including but not limited to all types of Forms and Skilled labourers engaged in all types of woodwork and the construction of hoarding.

18. Counsel for the Carpenters' Union contacted counsel for Kiewit who agreed to commence negotiations on behalf of Kiewit. Correspondence between the two counsels is set out at Tabs 13 through 16.

19. Certain persons were refused employment by Kiewit in November and December 1989 on the grounds that they continued to be members of the Carpenters' Union (see Complaint 3059-84-U, para. 20 & 21).

20. When Peter Kiewit commenced its work in 1989, it hired all employees through the hiring hall of the Labourers' Union. Except for supervision staff it brought in no employees from outside the area.

21. On December 8,1989 representatives of the Carpenters' Union and of Kiewit, met and commenced negotiations for a collective agreement.

22. By letter dated December 13, 1989, counsel for the Carpenters' Union indicated the areas of agreement reached at that time.

23. The areas of disagreement were:

2.02 - union membership

6- hours of work and overtime

7 & 16 - travelling allowance

9.02 - foreman premiums

11.01 - jurisdictional disputes

15 - health, welfare and pension

17 - stewards and business representatives

18- pre-job mark-ups

19- work jurisdiction

Schedule A - wages

The respective positions of the two parties are set out in the draft structure of a collective agreement.

24. The positions of the parties were clarified by correspondence between counsel.

25. Pursuant to a "no-board" report issued January 19, 1990, on February 5, 1990, the Carpenters' Union set up a lawful picket line. Members of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America and of the International Union of Operating Engineers refused to cross the picket line. Such persons were ordered by the Labour Relations Board to cross the picket line.

26. On November 20, 1989, the Carpenters' Union filed a complaint under section 89 of the Act alleging violations of sections 3, 60, 66(a), 67 and 70. The Labourers' Union and Kiewit replied taking the position that this was a work jurisdiction rather than an unfair labour practice complaint.

27. The hearing into that complaint was adjourned sine die upon discovery that one of the proper parties to that complaint was missing. The parties agreed to bring the matter back on as a combined section 89 and section 91, which are the instant proceedings.

It is agreed that all of the documents referred to in the Carpenters' pleadings are before the Board for the purpose of this motion as well, and the Board has reviewed them in the course of arriving at its decision. Of particular note is the correspondence between counsel for Kiewit and counsel for the Carpenters on the matter of Kiewit's previously-announced decision to "go with the Labourers" in the new contract assigned to it for the Welland Canal. The material exchange began with a letter from Mr. McKee to Mr. Shields which is dated December 13, 1989 and which reads as follows:

December 13, 1989

Further to our meeting Friday December 8, 1989, I enclose herewith a copy of the draft document on which we were working. I have indicated those articles agreed upon and those where we have differing proposals.

As I advised you on Friday, the monetary proposals mirror the current ICI rates. In the 1988-1989 construction season it was our experience that all employers paid the ICI rates, be they employers bound to agreements with both Carpenters and Labourers Unions or just to the Labourers Union. Your position, obviously is that conditions are different this year and that your client is unwilling to pay these wage rates.

The Carpenters Union is of course prepared to look seriously at any monetary proposal; we recognize that this is a different year and are cognizant of the wage rates set out in your other collective agreement. However, in order to take a proposed collective agreement for ratification to the membership of Local 38 (and this agreement must be ratified) which contains significantly lower wage rates we must be able to advise the membership of what value the Agreement has for them.

As you know, it is our position that Mr. Drummond of Kiewit advised Mr. Varty of Local 38 that he saw no point in bargaining as Peter Kiewit and Sons did not plan to hire members of Local 38 but that the Company was "going" with formsetters from the Labourers Union to work on the canal. You have denied such a statement was made, but you did state in your letter of November 20, 1989 that

Mr. Varty inquired of representatives of the Company as to whether or not there would be carpenters' work on the St. Lawrence Seaway Project. Mr. Varty was informed there would not be any such work.

Given that this was basically a formwork project, the difference between the two versions of Mr. Drummond's statement is minimal.

Accordingly, we need to have answers to the two questions I put to you on Friday, and which your client declined to answer, namely:

1. If a satisfactory collective agreement is concluded, does Peter Kiewit & Sons Co. Ltd. plan to hire any carpenters who are members of Local 38 pursuant to that collective agreement?

2. If so, what work do you propose to assign to them?

We require answers to those two questions immediately.

One final matter requires comment. You referred to our proposed Article 19 ["Work Jurisdiction"] as a "demand for work". While we may in the end make such a demand, this proposal is simply that - a proposal for inclusion in a collective agreement. Until you answer the two questions put to you above, we really do not know our position.

I confirm I have arranged with Mr. Landon to meet January 12, 1990 at 400 University Avenue at 10:00 o'clock a.m.

Mr. Shields responded as follows:

January 10, 1990

I have now had an opportunity to obtain instructions from my client regarding the two questions raised in your correspondence dated December 13, 1989.

Although it is difficult to anticipate what work will be available when a collective agreement is reached by our clients, please be advised that, when a collective agreement is concluded, Peter Kiewit Sons Co. Ltd. will assign work to members of Local 38 pursuant to the collective agreement to perform any work that is properly within the jurisdiction of the Union and which has not already been properly assigned to the Labourers' Union pursuant to the Company's collective agreement with that trade union. I trust that you will appreciate that it is impossible to provide a more precise response to your question at this time based on the state of the negotiations between the parties. However, as you are aware, the Company is currently engaged in a construction project on the Welland Canal involving concrete formwork, which formwork has been assigned to members of the Labourers' Union pursuant to the Company's collective agreement with that Union. At the present time, the Company does not anticipate making any change in that work assignment.

I will provide you with a schedule dealing with the Company's response to your material relating to the current state of bargaining between the parties under separate cover.

Mr. McKee further wrote:

January 12, 1990

Further to your letter of January 10, 1990 and our meeting of January 12, 1990, I am writing to confirm the Employer's position in this matter. You have advised as follows:

1. Peter Kiewit Sons Co. Ltd. proposal in response to our proposed Article 19 is that no work jurisdiction clause be included in the agreement at any point, but that otherwise the structure of the collective agreement (apart from its contents) is acceptable.

2. Your letter of January 10, 1990 means essentially that the employer believes that it has "properly assigned" all the work it proposes to do on this project to members of Labourers Local 837 and that it has no intention of hiring any members of Carpenters Local 38.

3. If the Union were to accept all the proposals on the remaining outstanding issues in the collective agreement, and sign the collective agreement, the employer would not hire a single member of Local 38 to perform any work on the current project in the canal.

4. You agreed that, while you could not make definite commitments with respect to future projects, it is a reasonable assumption that, with or without a collective agreement, no member of Local 38 will be hired for any future similar project.

I will assume the above fairly reflects the Employer's position unless you advise otherwise. Thank you.

To which Mr. Shields responded:

January 23, 1990

This letter is in response to your letter to me of January 12, 1990. I respond to the points raised in your letter seriatim:

1. The Company proposes that no specific work jurisdiction clause should be included in the collective agreement. I confirm that the contents of the enclosure provided to me with your letter of December 13, 1989 accurately sets out the position of the parties.

2. This statement accurately describes the position of the Company on the Welland Canal Project. The Company is unable to determine whether or not work will be assigned to members of the Carpenters' Union, Local 38, on any future project.

3. In response to this paragraph, the Company states that it has properly assigned all work on the Welland Canal Project. On this basis, the Company takes the position that there is no work on the Canal properly assignable to members of the Carpenters' Union. As such, and on this basis, no work would be assigned to members of the Carpenters' Union as such work has already been properly assigned.

4. As you indicate, the Company cannot make commitments with respect to future projects. As such, the Company is unable to determine whether or not members of the Carpenters' Union will be hired for any future project within the geographic scope of any collective agreement between the parties. However, as you are aware, the Company has assigned form work on the Welland Canal Project to members of the Labourers' Union pursuant to the Company's collective agreement with that Trade Union. It is anticipated that, all things being equal, the Company will make similar assignments on similar projects in that area in the future.

Furthermore, I note that the parties remain significantly apart, both on the question of monetary issues and on the issue of jurisdiction. On this basis, the position of the Company with respect to issues number 3 and 4 are, to a very large degree, somewhat speculative.

The respondent Kiewit argues that what it is the Carpenters are complaining about is simply a decision made by it to assign particular work in a certain way, and more specifically, the assignment of that work to the Labourers' rather than the Carpenters'. The Labourers' concur, and add that all that they were doing at the bargaining table was attempting pursuant to their own self-interest to negotiate language into the "Classifications" section of their collective agreement that would enhance their jurisdictional claim to certain work. Both parties argue that the Board has consistently held that these are matters to be dealt with by way of the jurisdictional-dispute machinery provided by the Act, and not by way of an "unfair labour practice" complaint.

3We agree. The case of Ontario Hydro, [1985] OLRB Rep. Feb. 307, in particular, we note raises a number of parallels with the instant complaint. The complaint that was before the Board in that prior case is set out in the Board's decision as follows:

1. The complainant has complained that all employees in the bargaining unit represented by the complainant at Pickering Generation Station (the "station") and all employees in the complainant's bargaining unit who have been declared surplus by Ontario Hydro have been dealt with contrary to the provisions of sections 48, 49, 64, 66, 67 and 70 of the Labour Relations Act and has requested certain relief. The complaint arises in connection with the work of retubing nuclear reactor units at the station and other work respecting the nuclear plant at that station. It is the position of the complainant that on or about October 2, 1984, Ontario Hydro informed the chief stewards of the complainant that effective October 4, 1984, the work referred to earlier would be performed at the station under the terms and conditions of Maintenance Assist Agreements between the Electrical Power Systems Construction Association ("EPSCA") of which Ontario Hydro is the dominant member and several construction trade unions.

2. It is the position of the complainant that prior to October 4, 1984, all maintenance work on nuclear generating units had been performed by members of the complainant in accordance with the terms and conditions of the collective agreement between the complainant and Ontario Hydro. The complainant alleges that at all material times it had sixty-seven surplus employees, all of whom were capable of performing some of the work involved in the retubing of nuclear reactors at the station and other maintenance work respecting the nuclear plant.

The Board went on to dispose of the matter in the following terms:

7 The Board has considered the complaint, the exhibits filed in evidence by the parties and the opening statement by counsel for the complainant. It appears to the Board that the agreements which are referred to as collective agreements and to which the respondent trade unions are parties are neither intended to be binding on members of the complainant nor are the respondent trade unions attempting to represent employees in the bargaining unit represented by the complainant. In our opinion the complainant and the respondent trade unions are confronting each other over a perceived overlap in work jurisdiction and not with respect to bargaining rights. The Board has previously considered complaints under what is now section 89 of the Act with respect to section 67 (formerly section 59). In Metropolitan Toronto Apartment Builders Association, [1978] OLRB Rep. Nov. 1022, the Board stated at page 1034:

Nor can it be said that the subcontracting clause interferes with another union's bargaining rights contrary to sections 56 [now section 64] and 59 [now section 67] of the Act. In the Board's view, there is no exact equation between bargaining rights and work jurisdiction, as the complainant attempted to make out. While the Board recognizes that, without a supporting work jurisdiction, bargaining rights in the construction industry may wither, the two concepts are not congruent. Under the Labour Relations Act, bargaining rights acquired either through the certification process or by voluntary recognition only entitle a union to be recognized as the exclusive bargaining agent for a particular group of employees. The bargaining rights conferred by law do not give a union any particular work jurisdiction, and any claim to a work jurisdiction must be asserted and established in the bargaining process through such means as a sub-contracting provision. Sections 57 [now section 64] and 59 [now section 67] of the Act are intended to protect bargaining rights only and these sections cannot be interpreted as providing protection to a work jurisdiction. Conflicting claims to particular work receive much different legislative treatment, being subject to the procedure established in section 81 [now section 91] of the Act for the resolution of jurisdictional disputes.

The Board dismissed the complaints with respect to the sections referred to in the quotation and several other sections of the Act.

8. In Toronto Star Newspapers Limited, [1979] OLRB Rep. May 451, the Board also considered whether work jurisdiction and bargaining rights are synonymous and the relative place 6f jurisdictional disputes and stated at page 456:

While the Board recognizes that bargaining units are often defined in terms of certain job classifications or work categories, these descriptions do not mean that the bargaining agent has an absolute right to the work being performed by the group of employees falling within such job classifications. The reference to work categories in the bargaining unit descriptions, although serving to identify the employees falling within the bargaining unit, does not by itself create an unqualified entitlement to that work. The fact is that some other bargaining agent may also have bargaining rights for other employees of that same employer that are defined in terms of different work categories, and some of the work performed by the employees falling within these work categories may overlap to some degree that of the other group of employees. Job categories are not watertight and, in fact, there may be considerable leakage between categories, giving rise to competing claims for work from bargaining agents. This sort of problem, as a general rule, is not treated as one involving representation rights of the competing bargaining agents but as a dispute over work jurisdiction. The Act contemplates that such competing claims to work are to be resolved through the jurisdictional dispute procedures set out in section 81 [now section 91].

and again at page 457:

The Board is convinced that this complaint is nothing more than a latent jurisdictional dispute. It is clear to us that the complainant, by framing its argument in terms of a derogation of bargaining rights~ is attempting to assert an absolute claim to the work in question. If the Board were to grant the remedy requested by the complainant, it would have the effect of preventing the respondent union from making any claim to the work in question. Even if Local 35-P has the better claim to the work in question, and we make no finding in this regard, such a claim should be asserted through the jurisdictional dispute provisions under section 81 of the Act, and not by means of an unfair labour practice complaint.

The Board dismissed the complaint under section 79 [now section 89] with respect to offences alleged under, inter alia, sections 56 [now section 64] and 59 [now 67].

That line of cases was recently considered and affirmed by the Board in International Union of Operating Engineers, Local 793, an unreported decision in Board Files 3097-89-U and 3163-89-U, issued November 8, 1990 [now reported at [1991] OLRB Rep. Feb. 199], and raised with the present parties at the hearing.

4The Carpenters' acknowledge that line of cases, but argue that the difference here is one of degree. More particularly, they go on, the present case involves work that this very employer on the preceding project assigned to a composite crew of labourers and carpenters, and now the employer is saying that it has made a decision not to assign work of that nature to the Carpenters' Union at all. In the Board's view, however, that distinction is not a material one. The manner in which the Board handles a complaint like the one before it ought not to depend on whether the employer may have reserved some nominal amount of work for the complaining Union. Nor would that argument appear helpful in distinguishing, for example, the Ontario Hydro decision, just referred to, if one analyses the Board's decision from the point of view of the broad category of "work in dispute". The key point as the Board continues to see it is that at root in the complaint is the employer's assignment of work, and if the employer has indeed changed its own practice with respect to the manner in which it chooses to get certain work done, that obviously is a factor that the dispossessed Union is able to rely upon in any jurisdictional claim to be determined by the Board. But beyond that, an employer "preference" of one union over another is exactly what jurisdictional-dispute proceedings tend to be all about, and there is nothing unusual in an employer putting forward considerations of economy, efficiency, or any other grounds of such nature, for however far such factors on a given set of facts may ultimately take the employer. Similarly, the Board has never suggested that a trade union commits an unfair labour practice by seeking the inclusion of terms in its own collective agreement designed to enhance its position from a "jurisdictional" point of view, and that is hardly something new to the construction industry, as the Carpenters' well know. Indeed, this Board has yet to decide on a current basis what weight it would be inclined to give such "boot-strapping" in any subsequent jurisdictional dispute with an entity not a party to the agreement, in the face of other pre-existing factors, and it is not obvious therefore that the effect of such a mode of conduct on the competing trade union's claim to any work would rank beyond the range of minimal to zero.

5On the other hand, positions taken by an employer in the bargaining between itself and the complaining Union may well be considered by the Board to fall within its scope of review under section 15 of the Act, which enshrines the duty to bargain in good faith. Certainly the Board would have concern over the refusal of an employer in Kiewit's position to bargain towards a collective agreement at all - for example, on the grounds that it at the time employed no employees which fell within the scope of the union's bargaining rights, and did not foresee a change in that. But on the pleaded facts and documents, that is not, at least by the time counsel were involved, what happened here, and the Carpenters' Union brought no complaint under section 15 of the Act alleging that it did. Beyond that stark example, however, the Board as a practical matter has also recognized, particularly in dealing with "craft" unions, the area of overlap between work jurisdiction and the future of a union's bargaining unit, and the Board has responded to its role under section 15 of the Act to prevent an employer from pressing to impasse a demand which would be tantamount to asking a union to "shoot itself in the foot" with respect to its chances subsequently of being able to successfully mount or defend any jurisdictional claim to the work.

6That is what the "second" Toronto Star Newspapers Limited case, relied upon by the Carpenters' and reported at [1979] OLRB Rep. August 811, decides - and that is all that that case decides. In that case, the Board had already dismissed a previous "unfair labour practice" complaint on the grounds quoted above. Referring to that earlier decision the Board noted:

5. In dismissing the earlier complaint the Board characterized it as a "latent jurisdictional dispute." While recognizing that the Star's proposal might eliminate the demarcation line between the two unions and result in a different work assignment under the new collective agreement, the Board refused to equate the potential reassignment of work with a diminution of the union's bargaining rights or recognition and stated that the claim for the work in question "should be asserted through the jurisdictional dispute provisions under section 81 of the Act and not by means of an unfair labour practice complaint."...

About the second complaint the Board then stated:

14. Turning to the merits. Other than in respect of the reference to 1 Yonge Street in the Star's proposal this panel has no reason to characterize the complaint before it any differently than did the panel which disposed of the earlier complaint. This panel, as with the previous panel, is of the view that the bargaining unit description defines the complainant's bargaining rights in terms of those employees of the Star who perform certain work as members of the photoengravers' craft. The complainant has the exclusive right to represent all those who do the work as members of the craft. For the reasons found at paragraphs 11 and 12 of the Board's earlier decision, however, the complainant photoengravers do not have an absolute claim to the work nor is the work description frozen for all time absent their agreement to alter it. Whereas the previous panel was faced with an attempt by the Star to bargain for a discretion to assign the work, this panel is faced with an attempt by the Star to negotiate an immediate change to the work description. Although it is now possible to determine how many members of the photoengravers may

lose their jobs as a result of the proposed amendment to the work description, the result is not to transform this into a recognition matter.

15. A union holding the bargaining rights for a craft unit of employees, as distinguished from an all employee unit, represents only the employees working within that craft. Regardless of whether the work of the craft is expressly set out in the collective agreement, the bargaining rights of the union representing a craft unit of employees are circumscribed by its established work jurisdiction. Consequently, any alteration in work assignment affects the scope of its representation rights. It follows that the Board is given the authority under section 81, the section of the Act dealing with work jurisdiction disputes, to alter the bargaining unit determined in a Board certificate or defined in a collective agreement as it considers proper for there is an inherent recognition element to many work jurisdiction disputes. This is not to say, however, that there is an equation between work jurisdiction and recognition even where members of one union lose their jobs as a a result of a change in a work assignment. If the matter involves an assignment of work between competing unions and not an attempt to deal with other than the bargaining agent recognized for the employees in the craft unit, then it is essentially a work jurisdiction dispute and must be treated as such.

And then, of particular significance to the argument advanced in the present case:

16. The complainant photoengravers rely on the possible loss of 4 jobs and argue that if the matter is not one of recognition and if they are not permitted to rely on section 59 [now 67] of the Act and the other sections of the Act which maintain a trade union's exclusive bargaining rights, another union or the employer could wipe out the existence of a craft unit under the guise of a change in work assignment. The position of the photoengravers ignores the existence of section 81 of the Act. The employer cannot unilaterally wipe out the existence of a craft by reassigning the work of the craft, and neither can the other trade union by requiring the work to be reassigned. These actions can found a section 81 complaint and a full hearing on the merits. If in the end result there is a loss of jobs they will have been lost as a result of a work assignment supported on its merits and not as a result of disregarding the bargaining rights of one of the trade unions.

[emphasis added]

With respect to the complaint against the competing union, over changes it had managed to achieve to its collective agreement, the Board further ruled:

26. Without passing comment on the merits of the sterotypers' claim to the work in question, we are satisfied that the sterotypers did not violate the Act in seeking and achieving tentative agreement with the Star in respect of its claim to this work. The Board does not view the prior agreements as necessarily settling the competing claims for all time as is suggested by the photoengraves. The Board has found that the issue before it is not one which can be primarily characterized as recognition and accordingly, the Board hereby dismisses the complaint against the Printing and Graphic Communications Union No. N-i. The agreement between the Star and the sterotypers in respect of this work does not compromise the photoengravers' claim to the work under section 81 within the meaning of paragraph 16 of the Board's earlier decision. The tentative agreement stands and if ratified a collective agreement will exist with work jurisdiction which overlaps with that found in the photoengravers' agreement. Section 81 of the Act is designed to deal with such conflicting work jurisdictions and the Board has broad powers to direct what action shall be taken including the power to alter bargaining unit descriptions.

7On the section 15 aspect of the complaint, however, the Board in this second decision

noted as well from the earlier decision:

5…….

In dismissing the complaint on the basis set out above the Board was careful to point out in the final paragraph of its decision .that its conclusion did not mean that the Star and the sterotypers could use the negotiation process to weaken the photoengravers claim to the work in question. The Board stated unequivocally at paragraph 16 that:

"Local 35-P (photoengravers) is entitled under section 81 of the Act to have its claim to the work in question dealt with on its merits. Accordingly, any attempt to circumvent the jurisdictional dispute procedures of the Act by either the Star or Local 1 in their bargaining would be inconsistent with the Act and would amount to a breach of the duty to bargain in good faith."

Focusing then on the bargaining between the employer and the complainant Union, the Board went on to conclude as follows:

18. The fact situation before this Board is substantially different than that upon which the Board dismissed the earlier section 14 [now 15] complaint. Since the issuance of the Board's earlier decision the Star has amended its position so that it no longer seeks a discretion in respect of work assignment but rather is attempting to alter the work description in the collective agreement. All other matters have been tentatively settled so that work jurisdiction remains as the only matter in dispute and the Minister has issued a "no board" report so that the parties are currently in a legal strike/lockout position. In addition the Star has negotiated a tentative settlement with the sterotypers which includes a work description which overlaps with that found in the expired photoengravers' collective agreement. It is against these critical facts that this panel must decide if either or both of the respondents have violated section 14 of the Act.

19. Both respondents rely in large measure on the legality of the work assignment agreements previously negotiated by the parties and argue that if such agreements are legal within the framework of the Act it cannot be illegal to bargain for them. This argument is sound in so far as it goes. The respondents, however, ignore the fact that the negotiations between the Star and the photoengravers have reached an impasse over this very issue and that a strike or lockout is now imminent. Clearly there is nothing unlawful about attempting to work out an agreement between interested parties and indeed, such agreements are contemplated under the Act and the parties are to be encouraged in this regard. In this round, however, in contrast to the last round of negotiations, the Star and the photoengravers have not been able to reach a voluntary agreement. It is clear that if the work description is to be altered it will be as a result of economic leverage. The Board must assess the bargaining between the parties in light of this fact and in light of the provisions of section 81 of the Act.

20. In view of the express provisions in section 81, respecting the resolution of jurisdictional disputes, are the parties free to resort to economic conflict to settle these matters, and can a party be bargaining in good faith if it presses the issue to an impasse and precipitates a strike? The answer must be no. It is inconceivable that the Act would contemplate resort to strike or lockout in support of a work assignment objective which could properly be made the subject matter of a section 81 complaint upon the actual assignment of the work. If such were the case the strike/lockout would be a tenuous and perhaps fruitless exercise in that the Board, on any subsequent application under the section, would be required to assess the merits and could decide the matter independently of the results achieved by use of what might have been a prolonged and costly economic struggle. The work assignment agreement thus achieved, in contrast to the other terms of settlement, would be subject to review and possible alteration by the Board. Under the section the Board may make its determination notwithstanding the work assignment provisions of any collective agreement and, in appropriate circumstances, can even "rewrite" those provisions. In a general sense then it can be seen that bargaining issues relating to work jurisdiction which could be made the subject of a section 81 application do not easily fit within the process of free collective bargaining and enforceability as established under the Act. More specifically, the broad interim powers given the Board under section 81(8) to deal with work jurisdiction complaints where a strike is imminent underscores the qualitative difference between work jurisdiction and the usual subject matters giving rise to strike or lockout. If a strike is imminent because of a bargaining demand for a work assignment involving work being done by another union it can be met with a section 81(8) complaint and in response the Board may issue an interim order which removes the work jurisdiction issue from the realm of bipartite economic struggle and paves the way for a hearing on the merits involving all interested parties. On its face then section 81 qualifies the union's right to strike and prevents the development of a situation in which the assignment of work will be determined by the relative economic strength of either of the competing unions or the employer.

21. In this case it is the Star which is attempting to force acceptance of an arrangement other than the status quo as embodied in the previous collective agreement and in so doing is requiring the photoengravers to possibly prejudice their position in any subsequent section 81 proceedings. Indeed, the Star maintains in its representations that if an agreement is achieved through the use of free collective bargaining a potential jurisdictional dispute will be effectively disposed of. In its earlier decision the Board stated that neither the Star nor Local 1 (sterotypers) could use the negotiation process to weaken the photoengravers' claim to the work in question. The Star, however, has ignored the caution contained in the Board's earlier decision and has misused the bargaining process by pursuing its demand to a bargaining impasse. The photoengravers have refused to voluntarily alter the existing agreement and accordingly, the Board hereby finds, in the face of a bargaining impasse, that the refusal of the Star to withdraw its demand without prejudice to whatever position it might take in any subsequent section 81 complaint, constitutes a violation of the duty contained in section 14 [now section 15] of the Act.

[emphasis added]

8In the present case, once again, there has been no complaint of bad-faith bargaining brought before the Board under section 15 of the Act. Perhaps even more to the point, given that the Carpenters' were in a "first-contract" situation, there was no application filed under section 40a of the Act either. Instead, as the respondents fairly observe, the Carpenters' Union chose to "take the matter to the street", and test the ability of the employer to function without its members by calling a "strike" (it of course had no members employed by Kiewit at the time). Counsel advised the Board that when this whole matter was before another panel under a different complaint on September 6, 1990, the Vice-Chair of that panel, upon hearing the Carpenters' lament, in fact inquired of the Carpenters' whether any application had been filed with the Board under section 40a. If that question caused the Carpenters' to re-assess their position in any way, they moved too late: the next day the Labourers' filed their application for certification, seeking to displace the Carpenters' union as bargaining agent in the latter's unit of "all carpenters and carpenters' apprentices" employed by this employer.

9And that brings us to the second branch of the Labourers' motion. The Carpenters' by way of intervention in the application for certification submit essentially, as in the section 89 complaint, that Kiewit and the Labourers' have conspired to place the Carpenters' in the position they now find themselves. In particular, with respect to the attempt by the Labourers' to now take over the bargaining rights for "carpenters and carpenters' apprentices" of the employer Kiewit, the Carpenters take the position that the persons at work on the date of the application were "labourers" already covered by the Labourers' collective agreement, and not "carpenters" at all. In that regard the parties have placed before the Board the following "Agreed Statement of Facts":

AGREED STATEMENT OF FACTS

1. Peter Kiewit Sons Co. Ltd. ("Kiewit") is a company engaged in heavy engineering sector construction work in the Province of Ontario.

2. In August, 1990, Kiewit began work on a dock to serve the "Maid of the Mist" ferry in Niagara Falls. The entire scope of the project consisted of the building of various temporary wood structure access ways (stairs and walkways), a temporary wooden dock and the permanent reinforced concrete dock consisting of panel formwork, setting of reinforcing steel and the pouring, placing and finishing of concrete. Work commenced from on and after August 23, 1990 with the construction of the wood structure access ways (stairs and walkways) and temporary wooden dock.

3. Kiewit site superintendent John Neal assembled a crew to commence work on the temporary wooden access ways and temporary dock. The procedure adopted was that John Neal contacted employees directly and offered to hire them to perform work required on the project. Certain individuals who presented themselves for work at the project also received offers of employment. From the commencement of the project to and including the date of application, September 7,1990, employees were engaged in the construction of the temporary wood structure access way from the base of the elevator shaft to the temporary dock cove, approximately 200 ft. long and 10 ft. wide inclusive of wooden stairways, landings and handrails. This walkway is designed to hold 600 people at a time. Without limiting the generality of the foregoing, the following list of employees were present at work on the day of application, September 7, 1990, and performed the listed work on that date:

Work Performed on Date of Application Date Date of Name Commencement September 7, 1990 Termination

James Coffin Aug. 23/90 Working foreman Dec. 22/90 walkway construc- tion supervision, hoe ram concrete demolition Michael Popovich Aug. 23/90 hoe ram concrete Dec. 22/90

demolition Fran McKey Aug. 27/90 working in mill Dec. 22/90 yard at mitre saw bench Renzo Garofalo Aug. 27/90 building wood Jan. 2/91 stairs and landing Michael Camache Aug. 27/90 building wood Jan. 11/91 stairs and landing Wayne Hildebrand Sept. 4/90 mill yard unload Dec. 14/90 and stockpile lumber

Walter Lato Sept. 4/90 mill yard unload Jan. 5/91 and stockpile lumber

Popovich and McKey were hired and employed by Kiewit pursuant to the Labourers collective agreement on the 1989-90 Welland Canal job between November 29, 1989 to May 4, 1990 and December 15, 1989 to April 27, 1990 respectively.

4. Kiewit applied the provisions of the Collective Agreement to the employment of the above-listed personnel before, on and after the date of application including the payment of wages, remittance of benefits to trust funds and the direction and forwarding of union dues to Labourers, Local 837.

5. Attached hereto are engineered drawings and photographs of the Maid of the Mist Steamboat Co. Ltd., temporary walkway construction project and of the wood stairs and landing (photographs taken later).

6. After the date of application, Kiewit employed the following listed members of Labourers, Local 837 in addition to those referred to above to perform the work on the permanent concrete dock construction.

Name

Michael Boutellier

Cohn Devine

Joe Digianni

Vittorio Dorazzio

Calvin French

Tim Furey

Kerry Lambert

Serge Loisel

Terry Mitchelitis

Ronald Perry

Bill Popovich

Agostino Sposato

Brydon Terry

Joseph Yorke

Date of

Commencement

October 15, 1990

September ii, 1990

December 10, 1990

December 10, 1990

November 5,1990

September 13, 1990

December 10, 1990

December 10,1990

December 10, 1990

September 23, 1990

November 5, 1990

November 2,1990

November 12, 1990

September 13, 1990

Date of

Termination

December 22, 1990

January 6, 1991

January 4, 1991

January 4, 1991

December 19, 1990

January 5,1991

January 2, 1991

December 21,1990

January 5,1991

January 6, 1991

December 22, 1991

January 4, 1991

December 22, 1990

December 22, 1990

These employees were hired through the Labourers, Local 837 hiring hall in response to requests for work referrals by Kiewit.

DATED at Toronto this 17th day of May, 1991.

LABOURERS INTERNATIONAL PETER KIEWIT

UNION OF NORTH AMERICA, SONS CO. LTD.

LOCAL 837

UNITED BROTHERHOOD OF

CARPENTERS AND JOINERS OF

AMERICA, LOCAL 38

Along with those agreed facts, however, the Carpenters' reserved the right to rely as well on all of the facts pleaded by it in support of its section 89 complaint, as set out above.

10Looking at the description of the work being performed on the date of application as set out in the Agreed Statement of Facts, the Carpenters' did not find it in their interest to take the position before the Board that, for example, Mr. McKey ("working in mill yard at mitre saw bench") or Messrs. Garofalo and Camache ("building wood stairs and landing" - for which the agreed statement also included the engineered set of drawings) were not performing traditional "carpenters"' work. Here, counsel for the Carpenters' union submits, however, when one looks at the classifications and broad references to "all types of woodwork" which Kiewit and the Labourers' have incorporated into the Labourers' collective agreement, at the acknowledgment by Kiewit in its Reply that in the present job "work was assigned by Peter Kiewit in accordance with the terms of the company's collective agreement with the Labourers' International Union of North America", and to the fact in paragraph 4 of the Agreed Statement that:

4. Kiewit applied the provisions of the Collective Agreement to the employment of the above-listed personnel before, on and after the date of application including the payment of wages, remittance of benefits to trust funds and the direction and forwarding of union dues to Labourers, Local 837.

the Board must conclude that these are in fact individuals covered by the Labourers' collective agreement, and, consequently, "construction labourers", not "carpenters and carpenters' apprentices".

11The Board, on all of the facts agreed to be placed before us, does not agree with that conclusion. As the Board stated the problem in Runnymede Development Corporation Limited, [1988] OLRB Rep. Sept. 976, at paragraph 11:

How does one determine whether an employee who is working in one trade or another in circumstances where the two trade jurisdictions overlap, as do those of construction labourer and carpenter? It is no easy matter to do so particularly when the work being performed comes within the overlap. However, the determination must be made and can only be made by considering the evidence as a whole and bringing to bear the Board's own expertise.

The parties have referred the Board to a number of cases to assist it in this regard: see for example, George Asmussen Limited, [1970] OLRB Rep. Oct. 783; Industrial Lighting and Contracting Limited, [1979] OLRB Rep. 985; Semple-Gooder Roofing Ltd., [1983] OLRB Rep. 1908; H & D Construction, [1987] OLRB Rep. Dec. 1495; Ellis-Don Limited, [1988] OLRB Rep. Dec. 1254; Shearwall Forming, [1989] OLRB Rep. Dec. 1259; Gisar Ltd., [1985], OLRB Rep. April 528 and Bradsil Limited, an unreported decision in Board File No. 3307-87-R released December 4, 1990. However, the case the Board has found the most apposite, in determining the narrow issue coming before it here, is another decision of the Board in Runnymede Development Corporation Limited, also referred to us by the parties and reported at [1987] OLRB Rep. Oct. 1305. There, the Carpenters' were bringing an application for certification and it was the position of the Labourers' that "carpenters and carpenters' apprentices" were already covered by the M.T.A.B.A. and Toronto Housing Labour Bureau collective agreements for "construction employees", as further set out in those agreements. In agreeing with the Carpenters' Union that they were not, the Board stated:

22. Except for bargaining units of or including operating engineers, it is the long-standing practice of the Board to describe bargaining units in the construction industry in terms of trades or crafts (for our purposes these terms are synonymous) rather than in terms of the work performed. This practice recognizes that trade union representation in the construction industry has traditionally been along trade lines and attempts to avoid interfering with established trade union work jurisdictions (see Robertson-Yates Corporation Limited, [1979] OLRB Rep. Apr. 344; Semple-Gooder Roofing Ltd., [1983] OLRB Rep. Nov. 1908). Unfortunately, the work jurisdictions of trades do overlap. In addition, as we have already noted, collective agreements in the construction industry often identify the employees in the bargaining unit to which they apply in terms of the work they perform. As a general rule, there is no necessary congruence between the bargaining rights held by a trade union and its work jurisdiction. Consequently, a construction industry trade union does not necessarily have a general absolute right to a particular kind of work, even though that work may be performed by employees whom it represents (which in the construction industry usually means its members) pursuant to the terms of one or more collective agreements. The fact is that, in the construction industry, more than one trade union may have bargaining rights for employees who, though described in terms of different job categories, perform some of the same work. These overlaps give rise to competing claims for work between trade unions; that is, jurisdictional disputes (see for example Toronto Star Newspaper Limited, [1979] OLRB May 451). An application for certification is not the appropriate forum for settling such disputes or for determining the jurisdictional limits of trade unions (Industrial Lighting and Contracting Limited, [1979] OLRB Rep. Oct. 985). Further, because the Board's practice in the construction industry is to describe bargaining units in terms of trade rather than work performed, the mere fact that members of one trade union, pursuant to the terms of a collective agreement, perform work that members of another trade union perform as well (for other employers), does not mean that that collective agreement covers that other trade (see The Frid Construction Company Limited, [1975] OLRB Rep. March 146; Graff Diamond Products (Board File No. 2817-86-R) decision dated June 29, 1987, unreported).

23. Some of the work covered by the Housing Bureau Agreement is work which can be, and is, performed by either construction labourers, or by carpenters or carpenters' apprentices; that is, it is work over which both trades assert jurisdiction. In other words, some of the work covered by the Housing Bureau Agreement can be done by either members of the United Brotherhood of Carpenters and Joiners of America, (the "Carpenters") or by members of the Labourers International Union of North America (the "Labourers"). It is both "labourers work" and "carpenters work". In such circumstances, the work being performed cannot be determinative of the trade of the person performing it; that is, it is not work belonging to the Labourers just because a labourer is doing it, nor is it work belonging to the Carpenters just because a carpenter or carpenter's apprentice is doing it. An employee is not a construction labourer merely because s/he is doing work that a construction labourer sometimes does if carpenters also perform that work as part of their trade. Consequently, the fact that members of the intervener sometimes perform work (for the respondent) that carpenters also do does not mean that the intervener represents all carpenters employed by the respondent.

The Board has recognized also and observed for example, in Ecodyne Limited, [1979] OLRB Rep. July 629:

28. The evidence establishes that when contractors bound by the local Thunder Bay area collective agreements worked on Hydro projects, they applied the terms of the agreements to their employees notwithstanding the fact that these employees were not included within the scope clause of the agreements. The mere fact that the terms of a collective agreement are applied to certain work and to certain employees does not, however, mean that the union party to the collective agreement has actual bargaining rights for the employees involved. See: Bechtel Canada Limited, Board File No. 0745-75-R, an unreported decision dated September 3, 1975. In this regard it might be noted that it is not at all uncommon in the construction industry for employers not formally bound to a collective agreement to nevertheless employ union members under the same terms and conditions as set forth in a collective agreement without any intention of thereby conferring bargaining rights on the union. Similarly, trade unions in such circumstances sometimes refrain from applying to the Board to be certified as the legal bargaining agent of the employees involved notwithstanding the fact that the employees are union members.

12In the present case, of course, there can be no issue over whether the "Labourers"' collective agreement covered "carpenters" as well as "labourers". That would be illegal in light of the Carpenters' outstanding bargaining rights, and neither the Labourers' nor Kiewit assert that. Rather it is the Carpenters' Union who is making the assertion that the persons at work on the date of the application are covered by the Labourers' collective agreement, in order to cause the Board to characterize those persons as "labourers", and not as "carpenters", and thus to find that the number of persons employed by Kiewit in the applied-for unit was, as of the date of the application, zero. In further support of that the Carpenters' point to the fact that some of those very same individuals were employed under this same Labourers' agreement on the Canal job to perform what it says was essentially the same work as it asserts is involved in the present Maid-of-the-Mist job. The right of the employer to have done that is, of course, exactly the dispute raised by the Carpenters' in the present set of files. What is not in dispute is the fact that, as the Carpenters' themselves have set out, essentially the same work was also involved in the first Canal job, and on that job it was ultimately agreed by all parties, at the insistence of the Carpenters', that the individuals employed by Kiewit and doing this work in the classification of "form-setter" were really "carpenters". And it was on the basis of that tripartite agreement that the Carpenters obtained the bargaining rights that are the subject matter of the present application. Subsequent to obtaining those bargaining rights, as the Carpenters' pleadings also tell us, the employer took the position that it felt it could accomplish its work, including work previously recognized by the parties as traditional "carpentry" work, without using members of the Carpenters' Union. As indicated above, the strategic route chosen by the Carpenters' to test that assertion by the employer was to call a "strike" and withhold its members' services. The Carpenters' Union maintained that tactical position even beyond the point where their bargaining rights were protected by the Act (see section 61(3)), and including a point at which the employer was ready to hire a crew to commence work on a new project, the Maid-of-the-Mist dock. That the employer in the result ended up using available members of the Labourers' Union to perform some of what even the Carpenters' Union finds it expedient to agree is clearly the work of their traditional craft, is not surprising in the circumstances. Nor, given the fact that such persons would have to be hired on the basis of some terms and conditions, is it surprising that the employer at that stage would use its existing collective agreement with the Labourers' Union as the basis for such hiring.

13The Board does not find the case of Bradsil, supra, relied upon by the Carpenters', helpful on the facts now before it. In Bradsil the Carpenters' and the Labourers' were both applying for a unit of "carpenters and carpenters' apprentices". The employer had placed on the list a large number of employees whom the Carpenters' said were really "labourers". The Report of the Board's Labour Relations Officer on the testimony of these putative "carpenters" contained a number of illuminating statements such as:

“…..carpenter would come and do the base and then we fill it up with cement……”

and

"I would use a saw when I needed to or I'd go and ask the carpenters to saw the wood for me…..”

Further, the Report showed that a large part of what these individuals actually did was clearly "labourers"' work ("cleaning up, helping other trades, looking after the propane tanks and heaters" - not surprisingly, since the individuals in dispute in their testimony described themselves as "labourers" hired to perform assorted types of "labourers"' work. The Board came to the conclusion that these individuals added to the list by the employer and the Labourers' were in fact "labourers", and not part of the unit.

14The nature of the work being performed in the present case, by contrast, is more akin in its level of skills to that disclosed in the Officer's Report in Gisar, supra, in which the Board came to the opposite conclusion. Having regard to the Carpenters' own acknowledgment that at least three of the employees at work on the date of the application here were performing work which undoubtedly would fall within the traditional craft of a "carpenter", together with what it is the Agreed Statement of Facts shows these employees were actually doing on the date of the application (a stage at which any "formwork" on the project had not even begun yet), the Board finds that at the very least there were three persons employed as "carpenters" on the date of the instant application.

15It follows from that conclusion that there is no reason to inquire further into the matters pleaded by the Carpenters' with respect to the certification application, since even accepting all of those pleaded statements to be true, together with the agreed upon Statement of Facts, the Board finds that the applicant would have the requisite percentage of membership support in the unit applied for to entitle it to a pre-hearing vote.

16The Registrar is accordingly directed to arrange for the ballot box to be unsealed and the ballots counted.

17For the same reasons given, the section 89 complaint filed by the Carpenters' is hereby dismissed.

CONCURRING OPINION OF BOARD MEMBER C. A. BALLENTINE; July 19, 1991

1. I concur with the decision. However, it is unfortunate that the Carpenters' chose prematurely to use the picket line process when they had other provisions of the Act available to them.

2. The picket line should have been the last resort, especially when the Carpenters' had no members employed on the Welland Canal project. Although the Engineers and Teamsters respected the Carpenters' legal picket line, they were ordered back to work by the Board, emanating from Peter Kiewit's complaint under section 135 of the Act as they were not in a legal strike position.

3. If the position taken by Kiewit in bargaining was really as the Carpenters' assert that it was, it is beyond me why the Carpenters' did not choose the routes available to them from this Board under sections 15 or 40a of the Labour Relations Act.

CONCURRING OPINION OF BOARD MEMBER J. LEAR; July 19, 1991

1. I concur with the decision. There is no indication of any unfair labour practice in the material presented. The employer simply had confidence that the construction activities called for fell within the range of skills of workers who could be supplied by the Labourers' union. Added to this were supporting factors of economy and efficiency. Whether or not the employer's decision was in error (given the clouded and undefined areas of overlap in work of this nature) was an issue best determined by the jurisdictional disputes machinery available to the Carpenters'.

2. In electing to take the alternative and, though lawful, somewhat uncompromising route of a picket line, the Carpenters' effectively limited both their own options and those of the employer.

3. Furthermore, the direction taken by the Carpenters' created the circumstances whereby the Labourers' certification application could be filed.

4. It is unfortunate that the Carpenters' chose to ignore well-established processes available to them under the Labour Relations Act.