International Brotherhood of Painters and Allied Trades v. Labourers International Union of North America, 1993 CanLII 7886

[1993] OLRB Rep. July 612

1775-92-M International Brotherhood of Painters and Allied Trades (the "Painters"), Applicant v. Labourers International Union of North America, Ontario Provincial District Council (the "Labourers") and International Association of Heat and Frost Insulators and Asbestos Workers (the "Insulators") and Metropolitan Toronto Demolition Contractors' Association (the "Contractors' Association"), Respondents

BEFORE: Louisa M. Davie, Vice-Chair, and Board Members D. A. MacDonald and J. Redshaw.

DECISION OF THE BOARD; July 9, 1993

I

Introduction

1. This is a referral to the Board by the Minister pursuant to section 141(4) of the Labour Relations Act ("the Act"). The questions posed by the Minister which have been referred to the Board essentially revolve around whether it is necessary and/or appropriate to amend the designa­tion orders of the International Brotherhood of Painters and Allied Trades (the "Painters"), and/or the Labourers International Union of North America, Ontario Provincial District Council (the "Labourers") and/or the International Association of Heat and Frost Insulators and Asbestos Workers (the "Insulators") by adding the words "and employees engaged in the removal of asbes­tos".

2. In considering this referral by the Minister the Board had before it the written material which had been filed by the Painters, Labourers and Insulators with the Minister. Decisions of the Board (differently constituted) dated October 19th, 1992 and December 8th, 1992 also directed all interested parties to whom notice had been given to file with the Board a written Notice of Inten­tion to Participate indicating inter alia the nature of the its interest in the proceeding, its position with respect to the matters referred to the Board by the Minister, and a concise statement of mate­rial facts and representations. On February 24th, 1993 a further decision of the Board (differently constituted) directed the parties to file a detailed reply to the representations which had been made by the other parties. The parties were notified of the consequences which might flow if a party failed to file representations and were advised that any written submissions should be complete as the Board might decide to answer the questions asked by the Minister on the basis of the materials and representations filed and without an oral hearing. None of the parties requested that the Board conduct an oral hearing. As a result of the extensive written submissions and materials which have been filed, the Board determined that it was not necessary to hold a hearing. We are able to report our decision on the questions referred by the Minister without hearing any viva voce testimony or the oral submissions of the parties.

3. The referral to the Board by the Minister is as follows:

IN THE MATTER OF A REFERENCE FROM THE MINISTER OF LABOUR TO THE ONTARIO LABOUR RELATIONS BOARD PURSUANT TO SECTION 141(4) OF THE ACT REGARDING A REQUEST BY A UNION FOR THE AMENDMENT OF AN EMPLOYEE BARGAINING AGENCY DESIGNATION ORDER

INTERNATIONAL BROTHERHOOD OF PAINTERS AND ALLIED TRADES (THE "PAINTERS")

-AND-

LABOURERS INTERNATIONAL UNION OF NORTH AMERICA, ONTARIO PRO VIN­CIAL DISTRICT COUNCIL

(THE "LABOURERS")

-AND-

INTERNATIONAL ASSOCIATION OF HEAT AND FROST INSULATORS AND ASBESTO5 WORKERS

(THE "INSULATORS")

-AND-

METROPOLITAN TORONTO DEMOLITION CONTRACTORS' ASSOCIATION (THE "CONTRACTORS' ASSOCIATION")

1. On March 29, 1978 the Minister of Labour pursuant to section 127(1)(a) of the Labour Relations Act R.S.O. 1970 designated the Painters and the Ontario Council of the Painters as the employee bargaining agency to represent in bargaining journey­men and apprentice painters, employees engaged in the laying of resilient tiles, ceramic tiles, hardwood tiles, sheet goods, linoleum or carpets or drywall tapers, plas­terers, or fireproofing applicators in the industrial commercial institutional sector of the construction industry.

2. On April 28, 1978 the Minister of Labour pursuant to section 127(1)(a) of the Labour Relations Act R.S.O. 1970 designated the Insulators and the Insulators Local 95 as the employee bargaining agency to represent in bargaining journeymen and apprentice insulators and asbestos workers in the industrial, commercial institutional sector of the construction industry.

3. On April 21, 1978 the Minister of Labour pursuant to section 127(1)(b) of the Labour Relations Act R.S.O. 1970 designated the Labourers and the Labourers Provincial District Council as the employee bargaining agency to represent in bargaining con­struction labourers, including masons or bricklayers, tenders, and all employees engaged in cement finishing, water proofing or restorational work in the industrial commercial and institutional sector of the construction industry. The aforesaid desig­nation order was amended by the Ministry of Labour on July 13, 1978, September 6, 1978 and September 30, 1983.

4. On January 23, 1986 the Minister of Labour pursuant to section 139(1)(a) of the Labour Relations Act R.S.O. 1980 designated the Labourers and the Labourers Ontario Provincial District Council as the employee bargaining agency to represent in bargaining construction labourers engaged in the wrecking, demolition, dismantling or salvage of buildings and structures in the industrial, commercial and institutional sector of the construction industry of the province of Ontario.

5. On January 2, 1992 the Painters made application to the Minister of Labour to amend the employee bargaining agency designation order affecting the Painters by adding the words "and employees engaged in the removal of asbestos" following the words "fireproofing applicators" in the description of the bargaining unit covered by that designation order.

6. The Labourers Ontario Provincial District Council and the Insulators have advised the Minister that in their view the requested amendment is inappropriate and in the alternative have requested that if such an amendment is made to the designation order affecting the painters, that a similar amendment ought to be made to the desig­nation orders affecting the Labourers and the Insulators.

7. Now therefore having regard to the circumstances outlined above and the request of the Painters, the Minister of Labour considers it advisable to refer the following ques­tions to the Ontario Labour Relations Board pursuant to section 141(4) of the Labour Relations Act.

a) Is the proposed addition of the words "and employees engaged in the removal of asbestos" to the Painters' employee bargaining agency designa­tion necessary to permit that union to represent asbestos removers to the extent that the union otherwise has jurisdiction over asbestos removal work?

b) Notwithstanding the answer to a) above, is it appropriate to amend the Painters' employee bargaining agency designation by adding the words "and employees engaged in the removal of asbestos" to the description of employees covered by that designation?

c) If the answer to b) above is yes, is it also appropriate to add the words "and employees engaged in the removal of asbestos" to one or more of the desig­nation orders of the Labourers and its affiliates and the designation order of the Insulators and its affiliates?

The Position of the Painters' Union

4. In its submissions the Painters assert that it represents "throughout the Province of Ontario, as many as 600 employees of some 15 contractors which are engaged in asbestos removal work, often in conjunction with fire proofing application work, applied in substitution for the removed asbestos. It is estimated that this represents in excess of 70 per cent of the work of asbestoss removal in the Province of Ontario, with a similar percentage of the work being performed by members of the Painters' union across Canada".

5. The Painters' union argues that an amendment to the designation is appropriate to reflect the existing bargaining realities. It submits that since 1979 it has bargained with the employer bargaining agency designated to represent the employers of its members in an effort to reach an all sector collective agreement to cover (among others) asbestos removers. Asbestos removal has been referred to in the provincial collective agreement between the Painters' employee bargaining agency and employer bargaining agency since 1980. That agreement covers the industrial, commercial and institutional (ICI) sector. In 1987 the Board granted a certificate of accreditation to the Interior Systems Construction Association (a constituent of the Painters' employer bargaining agency). This certificate of accreditation is with respect to the residential sec­tor of the construction industry and refers specifically to asbestos removers.

6. It is further submitted by the Painters that their current designation which refers to "fireproofing applicators" includes asbestos removers but that for purposes of clarity and certainty an amendment to the designation to include an explicit reference to asbestos removers is prefera­ble. In this regard the Painters' assert that asbestos removal is a distinct and definable trade. In the alternative it is asserted that at the very least asbestos removal is a discrete facet of the construc­tion industry which has gained prominence as a specialized segment of the construction industry since 1979 when the health hazards associated with asbestos came to be known. It is argued that the development of a definable trade or a discrete segment of the construction industry, together with the existing bargaining rights of the Painters with respect to employees employed as asbestos

removers, warrants an amendment to the designation order particularly when there is no specific reference to "asbestos removers" in any of the current designations of any trade.

7. The Painters acknowledge that both the Insulators and the Labourers also represent persons engaged in asbestos removal. It states that the Insulators pursuant to their existing desig­nation order (which includes "asbestos workers") represents persons engaged primarily with the removal of asbestos from mechanical systems (as opposed to architectural structures). The Painters state that the Labourers on the other hand represent persons engaged in asbestos removal employed primarily by "wrecking contractors and related employers" notwithstanding the fact that the Labourers' designations do not refer specifically to asbestos removers. In recognition of these bargaining rights the Painters do not take the position that its designation order should contain the exclusive right to represent employees engaged in asbestos removal. It is content that a similar amendment be made to the designation orders of the Insulators and the Labourers.

8. In the result the Painters' alternative positions to the three questions referred by the Minister are contained in their March 17th, 1993 reply submissions as follows:

The Painters' position is:

1. THAT a Declaration by the Board that each of the 3 Designations, namely Painters, Labour­ers, and Insulators, covers Asbestos Removal, is acceptable. Thus in response to the question posed by the Minister in Paragraph 7 (a) of the October 19, 1992 Decision, the Amendment to the Designations would not then be essential in that by reason of its jurisdiction over Fireproof­ing (Asbestos) Application, the Painters have jurisdiction over its removal.

IN THE ALTERNATIVE

2. THAT to ensure clarity, to avoid disputes, and to reflect the Bargaining Reality, it would be desirable for each Designation to be amended to specifically include Asbestos Removal. Thus, with reference to questions 7 (b) and (c), posed by the Minister, the Amendment would be applicable to all 3 Designations.

IN THE ALTERNATIVE

3. IF the Board were to consider a recommendation to the Minister that: (a) The Painters' Des­ignation did not cover Asbestos Removal, but that (b) the Designation should not be amended to include Asbestos Removal; in those circumstances the Painters would wish to withdraw this Request for Amendment, for to do otherwise would place the established Bargaining Rights of the Painters in the I.C.I. Sector in jeopardy.

The Position of the Labourers' Union

9. The Labourers oppose the amendment to the designation order sought by the Painters. On behalf of the Labourers it is submitted that there is no distinct and definable trade of asbestos removal. It is further submitted that the prevailing patterns of collective bargaining relationships do not support either the recognition of a distinct trade of asbestos removal or the recognition of a separate segment of the construction industry known as asbestos removal or abatement.

10. The Labourers assert that its current designations for "construction labourers" covers persons engaged in asbestos removal. It further asserts that asbestos removal work "is generally accepted to be work performed by a construction labourer". The Labourers refer to its provincial collective agreement in the ICI sector, its provincial demolition agreement, and its collective agreement with the Electrical Power Systems Construction Association (through the Ontario Allied Construction Trades Council) and assert that each of these agreements cover persons employed as asbestos removers in all sectors of the construction industry.

11. The Labourers go further and take the position that

"the reference in the Painters' designation order to 'fireproofing applicators' does not provide statutory authority for that union to conclude a collective agreement in the ICI sector on behalf of persons performing asbestos removal, a completely different type of work. To the extent that the Painters' agreement purports to include therein persons performing work in the ICI sector that the Labourers have been designated to represent, in our submission that agreement is in contravention of the Act".

12. In opposition to the amendment the Labourers argue that the amendment would create "another overlapping classification or trade within the provincial bargaining scheme". It submits that such action would be inconsistent with the scheme of province-wide bargaining in the ICI sec­tor which sought to stabilize collective bargaining in that sector through the recognition of existing bargaining rights and patterns and the establishment of a province-wide bargaining regime with respect to those existing rights. It is the position of the Labourers that to create another classifica­tion within the scheme and thereby disturb the status quo would "generate major and fundamental instability".

13. In making these arguments the Labourers note that it also opposes the amendments sought by the Painters because it asserts the Painters have obtained bargaining rights for employ­ees engaged in asbestos removal by "under-bidding" the unions which have "traditionally per­formed the work" through the negotiation of "vastly inferior" collective agreements. The Labour­ers therefore take the position that "such competition for bargaining rights [should not] be rewarded by an amendment solidifying the 'gains' purportedly made ..." as that would create an "incentive" ... for actions that will not contribute to the stability of the province-wide bargaining scheme".

14. Finally, and in the alternative, the Labourers submit that if the Painters' designation order is amended as requested its designation orders should be similarly amended.

The Position of the Insulators' Union

15. The Insulators' union also opposes the amendment requested. As a mechanical trade the Insulators represent persons who perform asbestos removal with respect to mechanical installa­tions. Like the Labourers, the Insulators also take the position that asbestos removal is not a sepa­rate trade nor a distinct part of the construction industry. The Insulators also support the Labour­ers' assertions that the Painters have negotiated "vastly inferior" collective agreements and in this way obtained bargaining rights and extended its jurisdictional claims. The Insulators submit that as a result of such pressure it has been necessary to negotiate "special" terms or conditions of employment and other "accommodations" for employees engaged in asbestos removal with those employers whose employees are represented by the Insulators' union.

16. The Insulators' question why an amendment is being sought by the Painters. On their behalf it is submitted that no valid reason or rationale has been advanced by the Painters to sup­port the amendment. It is the Insulators' position that the Painters seek the amendment not neces­sarily to reflect its existing representational rights but rather to enhance its work jurisdiction claims (this point is disputed by the Painters.)

17. Unlike the Labourers, the Insulators accept that the Painters' current designation cov­ers the work of asbestos removal as the Painters have been designated to represent "fireproofing applicators". The Insulators acknowledge that this classification in the designation logically includes persons who remove fireproofing material including asbestos. In this regard the Insula­tors' position differs from that of the Labourers. The Insulators' submit that given the fact that the

Painters have represented asbestos removers for the past 12 to 15 years, and in view of the fact the designation of "fireproofing applicators" can and does include persons who remove fireproofing material, it is "simply too late to argue that it is now unlawful for [the Painters] to perform the work" or to assert that the collective agreement of the Painters is in contravention of the Act inso­far as it purports to cover the work of asbestos removal. In this regard the Insulators note that to its knowledge, prior to the filing of the Painters' request to the Minister the Labourers' had not taken the position that representation of persons performing the work of asbestos removal by the Painters' union was unlawful and beyond the scope of the Painters' designation order.

18. The Insulators therefore argue that an amendment to the Painters' designation order is not necessary. The persons who perform the work of asbestos removal are already properly described by the designation of all three trade unions. Each of the three trade unions do in fact represent such employees and have acquired bargaining rights for such employees.

19. Finally, and as an alternative the Insulators also request that if the Painters' designation order is amended, its own designation order should be amended in a similar fashion in recognition of its representational rights and existing work jurisdiction claims.

II

Decision

Background

20. In our determination of the issues raised by this reference from the Minister there are a number of matters and certain undisputed facts which must be considered. These include:

(a) the nature and purpose of the province-wide bargaining provisions of the Act;

(b) the purpose of the designation orders;

(c) the difference between representational rights and claims to jurisdic­tion;

(d) the fact that the work of asbestos removal has increased significantly since the original designations were first established in 1978; and

(e) the fact that each of these three unions currently represent persons engaged in asbestos removal.

21. We therefore commence with some general observations concerning the nature and purpose of the province-wide bargaining provisions and the designation orders.

22. The legislative purpose of the province-wide bargaining provisions of the Act (which were first added to the Act by the Labour Relations Amendments Act, [1977] S.O. c. 31 ("Bill 22")) was "first to recognize existing bargaining rights and patterns in the ICI sector and then to structure around them a province-wide bargaining regime, the objective of which was to stabilize the collective bargaining process in this significant sector of the construction industry." (See Manacon Construction Limited, [1983] OLRB Rep. March 407 at para. 30).

23. In Lumber and Sawmill Workers Union, Local 2693, [1987] OLRB Rep. Dec. 1556 the Board referred to the province-wide bargaining scheme- in the following manner:

24. Provincial bargaining in the ICI sector is structured essentially on a multi-employer single trade basis. There are, however, a number of departures from the principle of single-trade bar­gaining. These exceptions reflect the fact that at the time provincial bargaining was introduced, certain construction trade unions represented ICI employees outside of their "normal" trade or classification. For example, the Labourers Union represented units of plasterers as well as units of employees engaged in restoration and waterproofing work, often referred to as "steeple­jacks", both of which groups had traditionally been represented by the Operative Plasterers and Cement Masons International Association of the United States and Canada. Because of this, the designation for the labourers employee bargaining agency covers not only labourers, but the other two classifications as well. Similarly, in recognition of the fact that the International Union of Bricklayers and Allied Craftsmen has traditionally represented plasterers in certain parts of the province, the bricklayers employee bargaining agency designation refers to plaster­ers as well as to bricklayers and stonemasons.

(emphasis added)

24. Generally however the thrust of the current designations is to encourage single trade bargaining by the designated employer and employee bargaining agencies (EBA's). As a result of this emphasis on single trade bargaining the designations upon which the scheme of province-wide bargaining is founded are generally based on a "craft" rather than a task or work function basis. In its decisions the Board also strives to promote the concept of single trade bargaining by the desig­nated EBA's. Thus, in the ICI sector, the Board dismisses applications for certification by building trades "across craft lines". That is to say, union's bound by the scheme of province-wide bargain­ing cannot represent classifications of employees not referred to in their designation orders (see Manacon Construction Limited, supra, application for reconsideration dismissed, [1983] OLRB Rep. July 1104).

25. Again in Lumber and Sawmill Workers Union, Local 2693, supra, the Board expressed this concept as follows:

26. Section 146(2) prohibits an affiliated bargaining agent from entering into a collective agree­ment that is not a provincial agreement. The wording of this section has led the Board to con­clude that a local of a building trades union which meets the definition of an affiliated bargain­ing agent cannot enter into a valid collective agreement for a trade or classification not referred to in the relevant employee bargaining agency designation. Following from this conclusion, the Board has on a number of occasions dismissed applications for certification by building trades unions "across craft lines". Accordingly, bargaining rights for an unrepresented unit of employ­ees in the ICI sector can only be obtained by the building trades union designated to represent the trade or classification involved, (i.e., bricklayers can only be represented by the Bricklayers Union), or by a non-building trades union outside the scheme of provincial bargaining.

27. We find it also appropriate to note that there is a distinct difference between the repre­sentational rights which flow from the certification (or voluntary recognition) of a trade union within the parameters of the province-wide scheme of bargaining and the designation orders, and the work jurisdiction claims of a trade union (see, for example, the comments of the Board In The Matter Of Certain Designations And Certain Employee And Employer Bargaining Agencies [1980] OLRB Rep. Apr. 497; Superior Plumbing and Heating Company Limited, [1986] OLRB Rep. Nov. 1589). We agree with the submissions of the Insulators that the work jurisdiction claims and the, representational rights of a particular trade union are not co-extensive and should not be treated as synonymous. Moreover, we note that the Act contains detailed provisions designed to resolve issues arising out of competing jurisdictional, work claims (see section 93 of the Act). It is our view that it is inappropriate to resolve or attempt to resolve competing work jurisdiction claims in the context of these proceedings in the face of these specific legislative provisions.

28. With respect to the difference between representational rights and work jurisdiction claims we note that the designation orders summarize a trade or a craft in a very general way without particularizing the jurisdictional claims of that trade or craft. To take an example unrelated to this matter, the United Association of Journeymen and Apprentices of the Plumbing and Pipefit­ting Industry of the United States and Canada and the International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers (amongst others) both exert work jurisdiction claims over welding and welders. The designation orders of the Minister which relate to these two craft unions, and the certificates as bargaining agents granted by the Board to these two unions, do not however refer explicitly to welders. Rather, in claiming welding work each of these two craft unions rely upon assertions that the performance of the skill or work in question is part of their designated craft. It is important to keep this distinction between representational rights and claims to work jurisdiction in mind especially when addressing the issues as to whether asbestos removers are a trade or craft, or whether asbestos removal is a discrete segment of the construction industry.

29. There does not appear to be any significant dispute amongst the parties that prior to the early 1980's there did not exist a separate classification of employee who was engaged solely or pri­marily in the removal of asbestos. The health hazards associated with asbestos use had not been fully identified and as a result asbestos removal did not comprise a significant portion of any con­struction industry contractors' work. With an increased recognition of the health hazards of asbes­tos the number of projects involving asbestos removal has proliferated. In the result the equipment and training required in the removal of asbestos has become more developed since the early 1980's.

30. With this background in mind we turn then to deal specifically with the issues raised by the Minister's referral to the Board.

Asbestos Removal as a Separate Trade

30. First we note that contrary to the Painters' assertions, the material before us falls short of establishing "asbestos removers" as a craft or trade, or "asbestos removal" as a distinct part of the construction industry. Although it is true that certain characteristics of the work of asbestos removal may have become more readily identifiable over the years, the fact remains that asbestos removal is a specific type of work, which, on the material before us, falls within the work jurisdic­tion claimed by each of the three trade unions. Similarly, although the work of asbestos removal may require certain specific skills, the existence of the various separate collective bargaining regimes referred to by each of the three unions negate any suggestion that a distinct trade or craft of asbestos removal exists.

31. We also do not consider it appropriate to characterize asbestos removal as a discrete segment of the construction industry. It is apparent that the work of asbestos removal can occur as part of a large construction project or as a separate, distinct contract, with respect to mechanical structures or architectural structures, as part of a project to repair existing structures or as new and discrete undertaking, etc. In the circumstances, asbestos removal cannot be considered a discrete, separate segment of the construction industry any more than curb forming can be considered a dis­crete segment of the roads sector of the construction industry.

32. The fact that asbestos removal is neither a trade nor a discrete part of the construction industry is important when one remembers the purpose of the designation orders and the scheme of province-wide bargaining. If the purpose of the designations is to broadly describe crafts so as to recognize and encourage province-wide single trade bargaining within the ICI sector, it appears to be counter-intuitive to add to such designations a separate specific type of work which may be part of that craft, but which standing alone does not constitute a craft. This is especially true when, as here, there are at least three trade unions each of which asserts that the work function or task is part of its already designated craft or trade. To add specific work functions or tasks to a "craft based" designation system could cause confusion and a blurring of the distinction between repre­sentational rights and work jurisdiction claims.

33. Crafts and trades come and go, are modified and disappear as the construction industry changes and develops. Changes in construction materials and construction methods have caused a certain amount of fluctuation and flexibility in determining the parameters of any crafts' work functions or skills. That flexibility is and has been advantageous to the constituent members of the construction industry (employers and trade unions alike) as well as the Board. For example, that flexibility initially helps to avoid converting applications for certification into jurisdictional dis­putes. After certification or voluntary recognition it is that same flexibility upon which the parties will rely to assert or defend grievances and jurisdictional disputes by arguing that a specific type of work is or is not part of the craft, or the work jurisdiction of the trade, and is or is not covered by the collective agreement. To add to the existing structure of designations based on craft a specific work function or specific task would in our view diminish this existing flexibility.

34. Moreover, as construction technology and methods change and evolve, and as construc­tion work opportunities change as a result of these variations, the designated employee bargaining agencies and affiliated bargaining agents could seek to have the current designations varied, modi­fied, revoked and re-designated to reflect that a particular type of work is or should be part of that union's designated craft. Applications to the Minister for changes to the designation order of this sort do not only reduce the flexibility inherent in the current broadly defined craft based designa­tion system, but may also undermine the certainty and stability of that system as unions would inevitably attempt to ensure that they are not "left out" when specific tasks or types of work are designated.

35. In some ways, the issues currently before the Board epitomize these problems. In this application the Painters assert that the work of asbestos removal is already part of their designated craft (pursuant to the fire-proofing applicator designation). Yet the Painters are not content to rely upon that assertion but seek to specifically add the work of asbestos removal to "reflect the exist­ing bargaining realities", "to avoid confusion", and to avoid "jeopardizing the substantial existing bargaining rights of the painters ...". The Painters' application has prompted inter alia the Labour­ers to dispute that asbestos removal is already part of the Painters' designation and to challenge the bargaining rights of the Painters (see below). It has also led both the Labourers and the Insulators to argue that the work they perform also includes asbestos removal and should be similarly reflected in amended designation orders relating to their craft.

36. The Board can readily foresee various applications to amend the designations by differ­ent designated bargaining agencies as trade unions seek to enhance or codify their claims to certain types of work, or seek to entrench or buttress their rights to represent certain types of employees. The resulting controversy which would undoubtedly be caused amongst the construction trade unions would do nothing to further harmonious labour relations in this industry and could harm the effectiveness of the existing scheme of province-wide bargaining in the ICI sector.

Existing Bargaining Rights and the Status Quo

37. The current designations already contain certain exceptions to the single trade or craft bargaining scheme. However, the addition of the words "and employees engaged in the removal of asbestos" to any of the designations would not fall within the rationale which led to those initial exceptions. Generally, those instances where the designations currently refer to a particular classi­fication or a particular trade (or part of a trade) which one would not normally consider to be part of that designated EBA's trade or craft, arose as a result of a trade union's pre-existing practice of representing that particular classification or particular trade (or part of a trade).

38. The addition of "and employees engaged in the removal of asbestos" would not be a recognition of any pre-existing practice of representing employees engaged in that work. The work of asbestos removal and the de facto establishment of a separate classification of asbestos remover has taken place primarily after the initial designation orders. Although the purpose of the original, initial designation orders was to preserve the status quo in respect of existing bargaining rights, the addition of a new classification of work to these existing designations would not be a preservation of that status quo. Indeed, such an addition could be seen as a change to the status quo.

39. Any change to that status quo carries with it a number of potential problems. The cur­rent exceptions in the designation orders which arose as the result of a recognition of pre-existing bargaining rights have not, to date, resulted in any serious disruption to the scheme of province-wide bargaining. As noted in Lumber and Sawmill Workers Union, Local 2693, supra, at para­graph 28:

As noted above, there do exist a number of employee classifications and trades of which more than one employee bargaining agency has been designed. To date this situation has not resulted in any serious disruption to the scheme of provincial bargaining. This appears to be due to sev­eral factors, including the relatively small total number of employees in certain classifications, and, in other situations, the limited number of employees negotiated for by one of the bargain­ing agencies. Perhaps of greater importance, however, is a general acceptance of the status quo on the part of the unions involved. Unlike these other situations, if the carpenters and labourers unions are provided with an opportunity to become more active rivals than they are already, there is a real possibility they will avail themselves of the opportunity. ...

(emphasis added)

40. Similarly, it is our view that if the designations of any or all of the Painters, Insulators or Labourers were to be amended by the addition of the words "and employees engaged in the removal of asbestos" to their designations there is a greater opportunity to either develop or con­tinue rivalries which may flow from assertions about representational rights and duties as a result of the designations. Thus, the trade union whose designation includes these words will be in a posi­tion to assert that only it can represent employees engaged in the removal of asbestos in the ICI sector. In light of the undisputed fact that at present each of the three trade unions asserts that it has bargaining rights and represents employees engaged in the removal of asbestos, to provide only one of such trade unions with the added "clout" that it has been designated to represent such employees by the Minister could cause the very disruption within the construction industry and to the scheme of province-wide bargaining which Bill 22 was designed to eliminate.

41. As has already been noted a change to the status quo applicable to any one of these three trade unions could be perceived as a precedent and an invitation to other trade unions to make similar amendment requests to the Minister. Prior to 1978 the trend was to consolidate bar­gaining situations. Bill 22 contributed to that trend by balancing and reconciling a number of com­peting interests. The resulting consolidation and rationalization of bargaining rights and collective bargaining structures through the system of ministerial designation and province-wide bargaining in the ICI sector was and remains a compromise, not only between employers and trade unions but also amongst the construction trade unions. To intervene in that compromise on the basis of events and circumstances which have occurred primarily since 1978 might cause other trade unions to argue that the compromises of 1978 should be re-evaluated or re-examined as a result of the events of the past 15 years.

42. There are certain additional considerations which apply if each of the three designations were to be amended to include "and employees engaged in the removal of asbestos". These con­siderations were referred to in Lumber and Sawmill Workers Union Local 2693 at paragraph 27:

Another consideration is the instability that can result when rival trade unions represent the same employee classification or trade. Competition between unions can seriously impact on the collective bargaining process. Depending on the state of the economy and employment levels, competing unions may seek to attract employee support by outdoing each other in the negotia­tion of wages and benefits. Alternatively, one union may seek to negotiate lower wage rates and benefits than the other so as to enable the employers with which is has bargaining relationships to be more competitive. Conduct of this sort is of particular concern in the ICI sector, given that provincial bargaining was introduced so as to bring greater stability to this sector of the con­struction industry.

43. In The Matter Of Certain Designations And Certain Employee and Employer Bargaining Agencies supra the Board in dealing with the somewhat analogous situation of separate designa­tions where two trade unions had merged addressed similar concerns when it referred to the sub­missions of one of the parties and stated at paragraph 23:

The OGCA raised the spectre of jurisdictional disputes if two sets of designations were created and argued that the positive effects of the affiliation would be in large part nullified. The possi­bility of restraint of trade was referred to as arising if two sets of designations were crated and it was argued that all employers which performed the work in question should be competing on the same labour cost basis. The OGCA predicted that separate collective agreements would inevitably lead to one group of employers securing more favourable conditions than another group. The OGCA stressed that to create two sets of designations would be a dangerous prece­dent and would invite similar requests from other groups within the bargaining framework of the United Brotherhood, the Labourers' International union of North America and other com­prehensive designations.

44. We agree with these observations. A review of all of the material filed by each of the three unions indicates these potential problems are neither hypothetical nor academic. On the basis of the material before us the intra-trade rivalry and whip sawing already exists. Both the Lab­ourers and the Insulators have submitted that they have negotiated special provisions in their col­lective agreements as a direct response to the actions of the Painters. For example the Labourers submit that:

Until the 1990-92 round of collective bargaining, the Labourers' collective agreements did not distinguish asbestos removal from other demolition work or provide special terms and condi­tions of employment for persons engaged in asbestos removal.

The appearance in the Labourers' collective agreement of special terms for asbestos removal in the demolition industry is not a recognition of the distinctiveness of a segment of the industry; but rather a necessary response to the lower wage packages for the work negotiated by the Painters' union in the 1980's.

45. Although both the Labourers and the Insulators take the position that the Painters have acquired rights with respect to asbestos removers through "under-bidding", in times of economic boom the potential for leap-frogging is equally great and equally disruptive of the scheme of prov­ince-wide bargaining. This increased potential for intra-trade rivalries if each of the designations of the unions was amended is in our view a significant reason why the amendments should not be granted.

The Concerns of Overlapping Classifications

46. If each of the three designations were to be amended there would be an obvious and specific overlap in the employee classifications covered by the designation orders. Generally it is an overlap in the ministerial designations (or as is more usual an overlap in employee classifications in collective agreements as a result of competing claims with respect to work jurisdiction) which give rise to jurisdictional disputes and other conflicts within the construction industry. If one accepts that the overlap already exists because either by implication or interpretation, the current designa­tions of the Painters, Insulators and Labourers already cover "asbestos removers" the amendment request and the resulting overlap is less problematic. Then the addition of the words "and employ­ees engaged in the removal of asbestos" would be largely superfluous. However, if the current des­ignations do not give rise to this overlap it makes no labour relations sense to create the overlap and increase the potential for jurisdictional disputes and other conflicts by an amendment to all three designations.

47. This leads us to the significant difference as between the positions of the Painters and the Labourers.

48. The Painters have submitted:

…..that "asbestos removal" is included in the phrase in the Painters designation "fireproofing applicators", but seek, either by confirmation of this from the Board, or by designation amend­ment as requested, to ensure that ICI bargaining rights may be exercised without challenge arising out of any alleged short comings in the designation.

49. The Labourers however have taken the position that the reference to "fireproofing applicators" does not include asbestos removal and therefore (in accordance with the statutory scheme) the Painters' can't presently represent employees engaged in asbestos removal (see para­graph 11 herein). That response in turn caused the Painters to note that the Labourers' designation also does not refer specifically to either fireproofing or asbestos removal. The Painters however do not go so far as to challenge the right of the Labourers to represent employees engaged in asbestos removal.

50. On the basis of the material filed by the parties and the circumstances which preceded the Painters' request to the Minister (such as the new 1990-92 collective agreement provisions negotiated by the Labourers with respect to asbestos workers) it may be inferred that this dispute is at least one of the underlying reasons for the Painters' application. Certainly it is the position of the Painters that they seek merely to preserve the status quo with respect to ICI bargaining rights which that union has acquired and exercised over the past 15 plus years without challenge by either the Labourers or the Insulators. The Painters note that:

The amendment is requested so as to avoid challenges in enforcement of collective agreements, in organizing or otherwise, that the designation does not specifically refer to asbestos removal, and therefore does not include asbestos removal.

51. We are not persuaded however that this is a compelling rationale to support an amend­ment to any or all of the designations of these three trade unions when balanced against the poten­tial adverse effects of such amendments.

52. If the Painters already represent asbestos removal by reason of their designation with respect to "fireproof applicators" there is no need to amend the designation. Although such an amendment would be specific and certain, it would also be largely redundant.

53. If the current designation of the Painters does not permit that union to represent asbes­tos removers, it should not be amended (at least not in isolation) when it is admitted that both the Labourers and the Insulators have also acquired and exercised bargaining rights for employees engaged in asbestos removal. The amendment of all three designations on the other hand would create the very overlap in bargaining structures and the problems associated with such an overlap which the concept of single trade bargaining in the ICI sector sought to overcome.

III

54. In the result, pursuant to section 141(4) of the Act the Board will report its decision to the Minister in response to the three questions posed as follows:

(a) No. The proposed addition of the words "and employees engaged in the removal of asbestos" is not necessary to permit the Painters' union to represent asbestos removers to the extent that the union otherwise has jurisdiction over asbestos removal work." The Paint­ers' union already asserts jurisdiction over asbestos removal work by reason of its designation with respect to fireproof applicators. In any proceeding to acquire rights to represent asbestos removers the Painters need not be specifically or explicitly designated to represent asbestos removers. It can assert that such work (although not expressly designated) is part of the trade or craft for which it has been specifically designated.

The Minister has not asked the Board to deal with the question whether asbestos removal is part of the trade or craft for which the Painters have been specifically designated. In its submissions the Painters have requested confirmation or a declaration from the Board that its designation (as well as the designation of the Labour­ers and the Insulators) is broad enough to include asbestos removal. In this regard we note that although the answer to the first question posed by the Minister does not necessarily require the Board to decide whether certain work is part of the Painters' designated trade, the unchallenged evidence before us suggests that, by reason of its designation with respect to fireproofing applicators, the Paint­ers have represented asbestos removers as part of the trade for which it has been specifically designated with the apparent accep­tance of both the Labourers and the Insulators.

(b) No. It is not appropriate to amend the Painters' employee bargaining agency designation by adding the words "and employees engaged in the removal of asbestos" to the description of employees covered by that designation. We are of this view primarily because it is undis­puted that the Labourers and the Insulators also represent employ­ees engaged in the removal of asbestos. Moreover, there are no good reasons which compel such an amendment, (and a number of policy considerations which point to the opposite conclusion.)

(c) Although we have answered the question in (b) above in the nega­tive, we note that in the event the Minister should determine that the words "and employees engaged in the removal of asbestos" should be added to the designation of the Painters, it is our view that the designation orders of the Labourers and the Insulators should be amended in a similar manner so that the current bargaining rights of these unions are also similarly recognized.