[1991] OLRB Rep. December 1430
1319-91-R; 1320-91-R United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local Union 463, Applicant v. Waylok Air Conditioning Limited, Respondent; United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local Union 599, Applicant v. Waylok Air Conditioning Limited, Respondent v. Group of Employees, Objectors
BEFORE: Louisa M. Davie, Vice-Chair, and Board Members J. Trim and C. A. Ballentine.
APPEARANCES: L. C. Arnold, Dennis Carter and Brian Christie for the applicant; Bruce W. Binning and Wayne Klager for the respondent; M. Belleau and B. Van Ekelenburg for the objectors.
DECISION OF THE BOARD; December 16, 1991
This is a request for reconsideration of the decision of the Board dated August 8, 1991 (now reported at [1991] OLRB Rep. Aug. 1016). In its decision the Board dismissed an application for certification brought by Local 463 of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada and a concurrent application for certification brought by Local 599 of the same international trade union. For ease of reference the international trade union will hereinafter be referred to as the "U.A." while the two applicant locals will be referred to as "Local 463" and "Local 599". In its decision the Board stated inter alia that membership evidence in Local 599 could not be used to support an application for certification brought by Local 463. Similarly membership evidence in Local 463 could not be used in support of the application by Local 599.
The Board further noted that in view of its decision with respect to that membership evidence it was not necessary to determine "the sufficiency or propriety" of certain other documents purported to be "evidence of membership" in U.A. Local 46.
Submissions of the Parties
- By letter dated August 16, 1991, counsel for the applicants requested reconsideration of that decision. It is helpful to set out verbatim the relevant written submissions made in support of this request for reconsideration:
The grounds upon which the Applicants seek review include that in reaching its Decision, the Board appears not to have applied the provisions of the Provincial Bargaining Sections of the Act, and, in particular, the provisions of Section 144. It is submitted that Section 144 provides the framework for all Applications for Certification in the Construction Industry.
Section 144 states, in part, as follows:
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.
The effect of subsections (1) and (2) is to permit an I.C.I. Sector Application for Certification to be brought by an Employee Bargaining Agency (EBA), which in these cases would be the Ontario Pipe Trades Council and the U.A. International (EBA's as designated by the Minister of Labour) or one or more (in this case two - Local 463 and Local 599) Affiliated Bargaining Agents (ABA's). Regardless of the identity of the Applicant, provided it is either an EBA or an ABA, these Certification Applications are deemed by subsection (1) to be brought on behalf of all ABA's, which are, in these cases, all of the U.A. Locals in Ontario referred to in the Employee Bargaining Agency Designation. These ABA's include Locals 46, 463, and 599, and the appropriate I. C. I. Bargaining Unit includes all employees who would be bound by the Provincial Agreement.
Thus all Plumbers, Steamfitters, and their respective apprentices (as described in the Designation) employed by the Respondent in the I.C.I. Sector throughout Ontario are included in the Bargaining Unit. As the I.C.I. portions of the Applications are made on behalf of all Ontario Locals which are ABA's described in the Designation, it would, we submit, necessarily follow that all Journeymen and Apprentice Plumbers and Steamfitters who are by the terminal date members of any such ABA and are employed by the Respondent in the I.C.I. Sector are to be included in the Bargaining Unit. For this reason membership evidence of those employees of the Respondent who are members of Locals of the U.A. other than the Applicant is relevant. Section 144(2) specifically provides for this in stating that, "... 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…..”
[emphasis added]
A number of other submissions were made by counsel. However, the panel has determined that those submissions are either erroneous in their reference to the applicable law, insufficient to warrant reconsideration or, no longer relevant in the circumstances of this case as described in paragraph 7 herein. We therefore do not propose to deal with those submissions.
Counsel for the respondent (hereinafter referred to as "Waylok" or "the employer") opposed the request for reconsideration by letter dated September 3, 1991.
The Board scheduled a hearing to hear the evidence and representations of the parties with respect to inter alia the issues raised in the letter from counsel for the applicant dated August 16, 1991 and the adequacy and sufficiency of purported membership evidence filed on behalf of a member of U.A. Local 46. That hearing took place on October 2, 1991.
Subsequent to the hearing, counsel for Local 463 wrote to the Board indicating that Local 463 had filed a new application for certification. Counsel noted:
As you are aware, we represent the Applicant in the above matter, and have today filed a new application for Certification on behalf of such Applicant.
Contemporaneously we are requesting on behalf of Plumbers Local 463 that their Application for Reconsideration of the Board's Decision of August 8, 1991 be withdrawn, and, in the result, that the said Application in Board File No. 1319-91-R be withdrawn.
We would ask you to note that the Application for Reconsideration and the Application for Certification of Plumbers Local 599 with respect to Waylok Air Conditioning Limited (Board File No. 1320-91-R) continue before the Board and remain unaffected by the withdrawal in Board File No. 1319-91-R.
Having regard to this correspondence the request for reconsideration in Board File No. 1319-91-R is hereby dismissed.
It is noted that the new application for certification filed by Local 463 does not relate to the ICI sector or Board area #18 (the Board area referred to in Board File No. 1320-91-R). Further fresh membership evidence was filed in a timely manner by Local 463 to support its new application. As a result of these events, it is unnecessary for this Board to address in this request for reconsideration the complex issues raised during the hearing of October 2, 1991 as they related to the contemporaneous filing of two applications for certification, each of which related in part to the industrial, commercial and institutional sector of the construction industry ("the ICI sector") and the use of the same membership evidence to support each of the applications.
A number of employees appeared at the hearing and made submissions to the Board. A timely petition objecting to Local 599's certification application was filed by employees. Mr. Van Ekelenburg, one of the employees spoke in a representative capacity for the objecting employees. Mr. Belleau the other employee desired to "speak for himself'. The substance of the submissions of these employees dealt with issues pertaining to the list of employees relevant to the application for certification and other issues relating to the "merits" of the application. In the result we have determined that it is not necessary to deal with those submissions.
The only issue raised in the request for reconsideration which needs to be addressed is that which relates to the membership evidence. That issue is two-fold. The first is the sufficiency or propriety of the proof of membership documents filed on behalf of a "member" of Local 46. The second is the use of membership evidence in one local by another local in applications pertaining to the ICI sector of the construction industry.
Decision on the Use of "Certificates" of Membership Evidence
- The membership evidence submitted consisted of the following documents:
UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPE FITTING INDUSTRY OF THE UNITED STATES AND CANADA, LOCAL 46 (UA LOCAL 46)
CERTIFICATE OF MEMBERSHIP
I, the undersigned, DONALD BRUCE HOGARTH, the Secretary-Treasurer of the above-described UA LOCAL 46, HEREBY CERTIFY that (name of person) was a Member in good standing of UA LOCAL 46 as of July 15, 1991, and is currently Member in good standing of such Union. He has been a Member of the said Union since April 14, 1967.
The said (name of person) paid dues to UA LOCAL 46 in the amount of $100.00 on May 29, 1991, which was, and will be, applied for dues in the amount of $20.00 per month, for each month, from and including the month of June, 1991, to and including the month of October, 1991.
DATED at Toronto this 22nd day of July, 1991.
("Donald B. Hogarth")
DONALD BRUCE HOGARTH -
Secretary-Treasurer UA LOCAL 46
UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPE FITTING INDUSTRY OF THE UNITED STATES AND CANADA, LOCAL 46 (UA LOCAL 46)
CERTIFICATE
I, DONALD BRUCE HOGARTH, hereby certify that the attached documents are true copies of documents taken from the records of UA Local 46 concerning (name of person), a Member in good standing of UA Local 46.
DATED at Toronto this 22nd day of July, 1991.
("Donald B. Hogarth")
DONALD BRUCE HOGARTH
Secretary-Treasurer of UA LOCAL 46
Attached to this latter document was the following:
DUPLICATE
APPLICATION FOR MEMBERSHIP
in the
UNITED ASSOCIATION OF
OF THE
PLUMBING AND PIPE FITTING INDUSTRY
of the United States and Canada
Trade Plumbing
Card Number
Social Security Number
Applicant
Address
City
State
Local Union Number 46
Recommended by
Report of Examining Board:
Favourable
Unfavourable
Date of Initiation 14 April 1967
(Day) (Month) (Year)
Applicant is aware of Section 141. Local Unions collecting part payment for initiation, and applicant fails to be heard from within three weeks, the local may declare the amount forfeited.
Local Secretary must fill in this (the Front) side of application and the Applicant the other (or Reverse) side.
PRINT all answers.
Dues begin from date of initiation.
THIS HALF OF CARD TO BE RETAINED BY
LOCAL UNION FOR THEIR RECORDS
Duplicate
PERSONAL DATA
Name
(Print)
Residence
City
State
Date of Birth Age
(Month) (Day) (Year)
Citizen:
Yes
No
Papers filed
Beneficiary:
Relationship
Have you previously requested membership in the United Association?
Yes
No
Have you ever been a member of the United Association?
Yes _________ No _________ Where _________ When ______________
(Local) (Month) (Year)
Reason for leaving the United Association
Date of Initiation 14 April 1967
EXPERIENCE
Trade Plumbing
Special Skill Apprentice
Experience: Years 5 1 Months
Apprenticeship: Years 4 1 Months
Serving now: 5TH 4TH Completed
Affidavit from employers in trade
Employers:
(1)
(2)
(3)
(4)
I agree that any false statement herein made is just cause for cancellation of my membership.
Yes X No ________
I agree without reservation to abide by all laws, rules and discipline of the United Association and its local unions, that are now in force and may hereafter be enacted.
Signature
ALL writing to be done in ink.
THIS CARD TO BE RETAINED BY LOCAL UNION
FOR THEIR RECORDS.
The appropriate spaces on this latter document were filled in.
Section 103(2)(j) empowers the Board "to determine the form in which" evidence of membership in a trade union "shall be presented to the Board on an application for certification……..and to refuse to accept any evidence of membership ... that is not presented in the form ... so determined." Rule 73(1) of the Rules of Procedure requires that evidence of membership be "in writing, signed by the employee."
Given the craft structure of the construction industry the Board has accepted from craft unions within the construction industry evidence of membership other than the usual application for membership and receipt (a combination application card and receipt for the statutorily required payment in respect of initiation fees or monthly dues). In the construction industry the Board has long accepted and relied upon "proof of membership" in a trade union as opposed to "applications for membership". The Board has required that such a "proof of membership" document or certificates of membership be signed by the member, indicate that the person in question is a member in good standing of the applicant, and also indicate that monthly dues in the appropriate amount have been paid for at least one month within the six month period immediately preceding the terminal date of the application. In addition, such proof of membership document must contain a certification by an officer of the applicant union that the person signing the document is in fact a member in good standing.
The documentary evidence filed by the applicant in this instance is neither an "application for membership" nor "proof of membership". Rather it is a combination of both submitted together as constituting "membership evidence".
On its own the document entitled "Application for Membership" could not be relied upon to support this application. Dated in 1967 the application falls well beyond the one year time frame after which the Board views membership evidence as being "stale". In addition there is no indication on the face of the application that at least one dollar was paid on account of initiation fees or monthly dues. Indeed there is some doubt that the language in the document itself is sufficient to qualify as an "application". Save for the words "application for membership" on the front side of the document (the side which must be filled out by the local secretary), there is little to indicate the signator has applied for membership. The reverse side of the document which is filled out by the signator refers only to personal data.
Similarly, neither the document entitled "Certificate of Membership" nor the document entitled "Certificate" on their own are sufficient to support an application for certification. Neither document is signed by the employee as required by Rule 73(1) of the Rules of Procedure.
The UA and its various locals have on numerous occasions used a document which proclaims proof of membership in the usual form which is signed by the employee/member. It was candidly acknowledged that in this instance the applicant was unable to submit such proof of membership in the usual form as the "member", the signator to the 1967 application would not sign such a document thereby indicating that he was a member in good standing.
The Board raised with the parties its concerns about the form of this evidence including the date of the original application and the use of the photocopy of a document. Counsel for the applicant submitted that although the original application was made nearly 25 years ago, the Board can be satisfied having regard to the remainder of the documentary evidence that the employee was a member in good standing of the union at the relevant time. With respect to the use of photocopied material, counsel indicated that the applicant was reviewing its files to determine if the original document containing an original signature was available. In the absence of that original he advised that the applicant may call viva voce evidence to "verify" the signature.
In our view, this is not a case in which the applicant is relying merely upon a photocopy of an original document. The Board has in certain instances accepted and relied upon photocopied evidence of employee wishes. Holt McDermott Mines, [1990] OLRB Rep. Mar. 267; Yonge-Eglinton Centre, [1986] OLRB Rep. Jan. 185; Buyers-Bush, [1982] OLRB Rep. Oct. 1413; Woodworker and Domtar Woodlands, [1975] OLRB Rep. Aug. 631 and Norfolk County Board of Education, [1974] OLRB Rep. Mar. 182. The circumstances in these cases were unique and the Board continues to be concerned about accepting photocopied membership evidence for the various reasons enunciated in those decisions.
The issue is not whether the Board can or should rely upon photocopy evidence. Regardless of whether the applicant had appended to its certificate the original 1962 document or a photocopy thereof our decision would remain the same. In our view the issue is whether the Board can rely upon the totality of a number of diverse documents when the individual documents standing alone would not suffice. In the circumstances of this case, we think not.
We are of the view that the Board's longstanding practice which requires that a proof of membership document or a certificate of membership be signed by the member and indicate that the person in question is a member in good standing and has paid the appropriate monthly dues is proper and should be preserved. We therefore place no reliance on the "certificate" of membership filed in this particular instance. The form in which the "evidence of membership" is presented is not acceptable and is in our view not evidence of membership at all.
Decision on the Use of Membership Evidence of Another Local
For ease of reference we will occasionally use the term local union in place of the statutory term affiliated bargaining agent (ABA) as generally it is the local unions or the "sister" locals of the trade union which are the designated ABA's.
Counsel did not refer to any cases, and the Board is not aware of any cases within its own reported jurisprudence which address the issue as to whether evidence of membership in one local can be used to support an application for certification which pertains to the ICI sector brought by another local of the same union. Normally, if the membership evidence of more than one local of the trade union is to be used to support an application for certification in the ICI sector, the application is brought by the designated employee bargaining agency (EBA) pursuant to section 144(1)(a) of the Labour Relations Act ("the Act"). Indeed, as counsel acknowledged in this case, if the certification application had been brought by the U. A. International and the Ontario Pipe Trades Council of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada ("the Pipe Trades Council"), the designated EBA, this issue with respect to the membership evidence would not have arisen.
In addition to the submissions contained in his letter dated August 16, 1991 which focus on the statutory language of section 144 and the scheme of province-wide bargaining in the ICI sector, counsel asserted that Local 599 should be able to rely upon the evidence of membership in Local 463 and Local 46 in its applications for reasons of "common sense". He argued that the employees who are members of Local 463 or Local 46 were in the province-wide bargaining unit in the ICI sector and would be bound by the provincial agreement applicable to the ICI sector. Their membership evidence should therefore "count". Moreover, it would be "ridiculous" to insist that a trade union seeking to organize employees in the ICI sector should be required to approach persons who are already members of one local of the trade union and ask such employees to become members of another local of the same trade union. To require an employee to expose her/himself to potential split loyalties to two locals was not necessary especially when viewed in the statutory context of the province-wide bargaining which occurs on behalf of all locals in the ICI sector.
Counsel for Waylok submitted that although there was no case directly on point the Board's recent decision in Freure Construction Limited, [1991] OLRB Rep. Mar. 309 was analogous and dealt in principle with the issue raised here. Freure Construction Limited, supra, involved applications for certification brought by the Labourers' International Union of North America, Local 1081 ("Labourers") and the United Brotherhood of Carpenters and Joiners of America, Local 785 ("Carpenters"). Each applicant sought to be certified to represent employees in the ICI sector and in all other sectors in Board area #8 (the Labourers' application) or in Board area #22 (the Carpenters' application). It was not disputed that "the respondent employed no construction labourers in Board area #8 and no carpenters in Board area #22 on the date of making of [the] applications; nor is it disputed that all of the employees who might be affected by [the] applications were working in Board area #6 on the date of making of the applications [sic].".
Counsel for Waylok referred to paragraph 12 and 15 of the Freure Construction Limited, supra, decision which state:
Section 144 in its present form was introduced into the Act by Statutes of Ontario 1980 Chapter 31 (Bill 73) which became effective May 1, 1980. It was the companion to subsection 137(2) which was introduced into the Act by Statutes of Ontario 1979 Chapter 113 (Bill 204) which also became effective May 1, 1980. Subsection 137(2) extended bargaining rights in the ICI sector held by an affiliated bargaining agent prior to May 1, 1980 in one or more Board geographic areas to all other affiliated bargaining agents of the employee bargaining agency designated to represent those affiliated bargaining agents. Subsection 144(1) assured that all bargaining rights in the ICI sector acquired after May 1, 1980 by an affiliated bargaining agent of a designated employee bargaining agency would be acquired province-wide on behalf of the applicant affiliated bargaining agent and on behalf of all other affiliated bargaining agents of the designated employee bargaining agency. Subsections 144(1) and (2) work together to achieve this result. Subsection 144(1) mandates a single appropriate bargaining unit. Once an applicant demonstrates adequate membership support in that unit, subsection 144(2) has the somewhat curious effect of creating two bargaining units, one confined to the ICI sector and one for all other sectors in the geographic area which the Board found to be appropriate.
In the view of this panel of the Board, that objective has been pursued by preserving as much of the practice which existed prior to May 1, 1980 as is consistent with a reasonable construction of section 144, and subsection 144(1) in particular.
With reference to these paragraphs, counsel for Waylok argued that prior to May 1, 1980 a local of a trade union applying for certification could only support its application with membership evidence which related to that local. Section 144(1) of the Act did not change that requirement. Rather, section 144(1) merely mandates a single appropriate bargaining unit so that where an employer has employees engaged in the ICI sector in a local area and outside, the local union must have sufficient membership support within that bargaining unit in order to be certified. That membership support however has to be within the local union bringing the application.
Counsel submitted that the local trade union only acts "on behalf of' the other ABA's once it has successfully established numerically sufficient support within the single bargaining unit mandated by section 144(1) with membership evidence within the local making the application.
Paraphrased, the agency like principle underlying the scheme of province-wide bargaining in the ICI sector does not come into play until a local union has, on the basis of membership evidence relating to that local, established its entitlement to certification of the bargaining unit. Section 144(1) was neither designed nor intended to change the rules with respect to evidence of membership as they existed prior to 1980. Section 144 was intended and drafted merely to accommodate those employees engaged in ICI construction outside a local area who would, as a result of section 144 and the scheme of province-wide bargaining be swept into the bargaining unit.
Counsel asserted that the interpretation he submitted as correct was consistent with the Board's practice as it existed prior to 1980, a practice which he argues was intended to be preserved through the combination of sections 144(1) and 144(2). Moreover, such interpretation was equally consistent with the use of the plural "trade unions" in section 144(2). Section 144(2) envisages a successful application under section 144(1). It is only where an applicant is successful Tri establishing membership support within the single bargaining unit that section 144(2) grants certificates to all the other ABA's for bargaining rights in the ICI sector, together with a certificate to the local union applying for those bargaining rights it has acquired with respect to the sectors of the construction industry other than the ICI sector.
Finally, counsel noted that the Legislature had provided a simple solution for an applicant trade union in section 144(1)(a) by specifying that an application for certification can be brought by the designated EBA. That was not done in this instance. The Board ought not to depart from its well-established, consistently applied jurisprudence that membership in one local of a trade union is not evidence of membership in another local (jurisprudence which counsel for the applicant also accepts as correct although not applicable to applications for certification which relate to the ICI sector) when that option is statutorily available to trade unions. In these circumstances and in the absence of clear and compelling policy reasons, the Board should not lightly depart from its existing practices.
We are of the view that evidence of membership in one local cannot support an application for certification brought by another local. The statutory language is somewhat ambiguous and can easily be interpreted to support the position of either party. In our view however there are a number of policy reasons why the interpretation of the statute urged upon us by counsel for the respondent is to be preferred.
We agree that the scheme of province-wide bargaining in the ICI sector introduced in 1978 does not, and was not intended to alter the Board's long-standing and well-established practice that the Local Union applying for certification must show that more than fifty-five per cent of
the employees in the bargaining unit were its members.
The scheme of province-wide bargaining becomes effective after the applicant local union has established its entitlement to certification. Until an applicant can show sufficient support within the bargaining unit, the bargaining rights that are thereafter granted by statute to all of the other local unions and the EBA are inchoate and undetermined.
We agree that in certain circumstances the scheme of province-wide bargaining can impact upon the manner in which bargaining rights are initially acquired. For example, a designated EBA can obtain bargaining rights pursuant to section 144(1)(a) even though employees are not, technically speaking, "members" of the EBA. By statute the EBA is "an organization of affiliated bargaining agents.". Although section l(l)(p) includes a certified EBA within the definition of "trade union", usually the EBA does not itself have employee members. The EBA has as its "members" the local unions who in turn have employees as members. Yet section 144(1)(a) permits the EBA to make the application for certification. This provision accommodates the fact that the EBA is the representative body of the local unions and is the entity which plays an important and vital role in the scheme of province-wide bargaining in the ICI sector.
Where the EBA makes the application for certification it can rely upon membership evidence within all of the local unions whom it represents. Although the EBA itself has no employee members, it can rely upon the evidence of the employee members of the various locals whom it represents in province-wide bargaining to acquire bargaining rights. To this extent the statutory scheme of province-wide bargaining is recognized in the initial acquisition of bargaining rights by an applicant.
Our decision in this case would have been much different if the EBA had made the application for certification. In that instance all of the proper membership evidence of both Local 463 and Local 599 could have been relied upon. Counsel for the applicant acknowledged that the Pipe Trades Council did not/could not make the application in this instance because of reasons internal to that EBA organization. In our view the Board's long-standing, well-established and accepted practice that one local's membership evidence can't be used to support another local's certification application should not be ousted merely for reasons peculiar to a particular EBA.
The EBA is the organization of affiliated bargaining agents or the central umbrella for an organization of the local trade unions in the ICI sector. It is the central representative body fundamental to province-wide bargaining in the ICI sector. In section 144(1) the Legislature has specifically provided that this representative agent can make an application for certification. Although they play an important role, the local unions are not the representative agent in the scheme of province-wide bargaining. The EBA is. Given these facts a local trade union which does not make use of the central entity designated to represent the local unions cannot rely upon the membership evidence of another entity (i.e. another local union) not designated to represent the local unions in province-wide bargaining to acquire the bargaining rights. In section 144(1) the Legislature has already provided the simple solution for applicants who want to rely upon membership evidence of more than one local.
In our view the use of the plural "trade unions" in section 144(2) is not determinative of this issue. The use of the plural is equally consistent with the fact that, pursuant to section 144(1)(b) "one or more" ABA's can make the application. The plural usage in section 144(2) merely accommodates the fact that on occasion more than one ABA may apply to be certified. In that instance the membership evidence of both ABA's is relevant. In addition the use of the plural trade unions is necessary to ensure that in the ICI sector the certificate granted refers to the bargaining rights of all the local unions.
We are also of the view that the use of the plural trade unions is not determinative because, if that were the case both logic and the grammar of section 144(2) would dictate that the "all other sectors" certificate issued to the successful applicant for a particular geographic area should also be issued to all other ABA's "on whose behalf' the application is brought. This is not a result contemplated or intended by the Legislature when province-wide bargaining in the ICI sector was first introduced. Province-wide bargaining and the representation of Locals by the EBA is limited to the ICI sector. It is the local union which continues to be responsible for the acquisition and administration of the "all other sectors" bargaining rights in the particular geographic region over which that local union has jurisdiction.
A result in which the local union applicant acquires both ICI bargaining rights and the all other sectors bargaining rights "on behalf of all affiliated bargaining agents of the employee bargaining agency" could lead to inter-union rivalries and have significant repercussions on the provisions of many existing collective agreements including for example provisions relating to "travel cards".
Finally we fear that to permit one local to rely upon the membership evidence of another local where that membership evidence relates to persons employed in the ICI sector could potentially unduly lengthen certification proceedings in the construction industry. In our view such a rule is more likely to lead to the litigation of disputes as to whether persons outside a particular geographic area for whom membership evidence had been submitted were employed in the ICI sector (in which case their cards would count) or in some other sector (in which case the card would not). A single rule or the clearly drawn line that all membership evidence must relate to the applicant local union avoids this potentially harmful result.
In view of all these considerations and having particular regard to the fact that the statute already provides that the EBA can apply (and then rely upon evidence of each of the local unions whom it represents) thereby avoiding these potentially harmful consequences, we are of the view that this request for reconsideration ought to be dismissed. The decision of the Board dated August 8th, 1991 is correct and is hereby confirmed.