Ontario Provincial Conference of the International Union of Bricklayers and Allied Craftsmen v. Dineen Construction Limited, 1996 CanLII 11123

[1996] OLRB Rep. July/August 610

2817-95-G; 2818-95-R Ontario Provincial Conference of the International Union of Bricklayers and Allied Craftsmen and the International Union of Bricklayers and Allied Craftsmen Local 2, Ontario, and Marble Tile & Terrazzo Union, Local 31, Applicants v. Dineen Construction Limited, Mitchell Construction Limited, Buttcon Limited, M.A. Butt Construction Limited, M.A. Butt Construction (1983) Limited, Responding Parties v. Terrazzo, Tile & Marble Guild of Ontario, Inc., Intervenor

BEFORE: D. L. Gee, Vice-Chair.

APPEARANCES: N. L. Jesin for the applicants, Jerry Coelho for the Ontario Provincial Conference of the International Union of Bricklayers and Allied Craftsmen and the International Union of Bricklay­ers and Allied Craftsmen Local 2; Ron Anthony for Marble Tile & Terrazzo Union, Local 31; Bruce Binning, Brian Foote and Michael Butt for Buttcon Limited; Bob Sanelli for the intervenor.

DECISION OF THE BOARD; August 6, 1996

1. Board File No. 2817-95-G is a referral of a grievance to arbitration pursuant to section 133 of the Labour Relations Act, 1995 (the "Act"). Board File No. 2818-95-R is an application under sections 1(4) and 69 of the Act.

2. Buttcon Limited ("Buttcon") was the only responding party to file a response or attend at the hearing of this matter. The intervenor did not file an intervention or participate in the hearing other than to inform the Board that the intervenor supports the applicants' position.

3. Buttcon disputes that it is under common control or direction with any of the remaining responding parties or that there has been a sale of a business by any of the responding parties to Butteon. In addition, there is a dispute as to the scope of the applicants' bargaining rights.

4. At the commencement of the hearing, the parties agreed to present the Board with evidence and argument on the scope of the applicants' bargaining rights, and obtain the Board's determination with respect thereto, prior to dealing with the merits of the applications. Accordingly, this decision is confined to dealing with this issue.

The Issue

5. It is not disputed that Dineen Construction Limited ("Dineen"), Mitchell Construction Limited ("Mitchell") and M.A. Butt Construction Limited ("Butt") are bound to the Provincial Agreement (the "Provincial Bricklayers Agreement") for bricklayers, stonemasons and plasterers be­tween the International Union of Bricklayers and Allied Craftsmen and the Ontario Provincial Confer­ence of the International Union of Bricklayers and Allied Craftsmen (the "OPC") and the Masonry Industry Employers Council of Ontario ("MIECO"). What is disputed is the applicants' assertion that, by virtue of being bound to the Provincial Bric klayers Agreement, Dineen, Mitchell and Butt are also bound to the Provincial Agreement for Marble, Tile, Terrazzo, Cement Masons, Resilient Floor Layers and their Helpers between the OPC and the Terrazzo, Tile & Marble Guild of Ontario Inc. (hereinafter the "Provincial Marble, Tile and Terrazzo Agreement"). The applicants argue in the alternative, based on the sub-contracting clause in the Provincial Bricklayers Agreement, that contractors bound to the Provincial Bricklayers Agreement are required to sub-contract all work encompassing the skills of members of the OPC, which includes the work of marble, tile, terrazzo, cement masons, resilient floor layers and their helpers, to a contractor who will assign the work to members of the OPC who possess the required skills. This would involve sub-contracting the work to a contractor who would perform the work under the terms of the Provincial Bricklayers Agreement or a contractor bound to the Provincial Marble, Tile and Terrazzo Agreement.

6. Dineen and Mitchell became bound to the Provincial Bricklayers Agreement through their membership in the General Contractors Section of the Toronto Construction Association ("GCS-TCA"). Hence, the determination of this issue will impact on not only Dineen and Mitchell but all members of the GCS-TCA. In fact, the Board's determination may very well impact on all contractors signatory to the Provincial Bricklayers Agreement.

The Facts

7. Mr. Brian Foote, the Director of Labour Relations for the GCA-TCA was called as a witness on behalf of Buttcon. Mr. Jerry Coelho, the President of the OPC, was called as a witness by the applicants. As indicated above, the intervenor did not call any evidence or make any submissions other than to indicate that the intervenor supports the applicants' position.

8. The GCS-TCA first signed an agreement with the Bricklayers, Stone Masons and Tilesetters Union, Local No. 2 Ontario in approximately the [950's. The Board was provided with a copy of an agreement dated July 21, 1969 between the GCS-TCA and All Masonry Contractors, Members of the Toronto Construction Association and the Bricklayers, Stone Masons and Tilesetters Union, Local No. 2 Ontario (Affiliated with the Bricklayers, Masons and Plasterers International Union of America) (hereinafter the "Local 2 Agreement"). The scope of the Local 2 Agreement was limited to a defined section of Board Area 8. The Local 2 Agreement contained the following sub-contracting clause:

9. TERMS OF AGREEMENT

(e) Any employer who is a party to this Agreement, desirous of sub-contracting masonry or brick­work, shall only sub-contract same to an employer who has a signed Agreement with the Union, adopting all of the relevant provisions of this Agreement.

9. The Local 2 Agreement was renewed by the parties with minor revisions by agreement dated May 20, 1971.

10. By Board decision dated February 6, 1975, the Terrazzo, Tile & Marble Guild of Ontario Inc. was accredited to represent employers of terrazzo, tile and marble workers and their helpers in the Province of Ontario and cement masons and resilient floor layers and their belpers in respectively defined geographic areas for whom the Ontario Provincial Conference of the Bricklayers, Masons and Plasterers' International Union of America held bargaining rights in the industrial, commercial and institutional, sewers, tunnels and watermains, roads and heavy engineering sectors. No members of the GCS-TCA are listed in the final Schedule "E" or "F" determined by the Board.

11. Effective May 24, 1976, a province-wide agreement was entered into between the OPC and MIECO. The sub-contracting clause of this agreement read as follows:

ARTICLE 1- RECOGNITION AND SUB-CONTRACTING

(c) Any employer who is party to this Agreement desirous of sub-contracting any work encom­passing the skills of Members of the Ontario Provincial Conference, shall only sub-contract same to a sub-contractor who has signed the Provincial Agreement with the Ontario Provincial Conference.

12. The agreement contains an Appendix "B" which sets out the territorial jurisdictions of the OPC. Amongst the territorial jurisdictions listed is one for "Local Union No. 2 - Toronto - Bricklayers and Masons" which is defined as roughly the Metropolitan Toronto area and one for "Local Union No. 31 - Toronto - Marble, Tile and Terrazzo" which is also roughly the Metropolitan Toronto area. As the names of each of the locals indicate, Local 2 has jurisdiction in the Metropolitan Toronto area for bricklayers and masons and Local 31 has jurisdiction in the Metropolitan Toronto area for marble, tile and terrazzo masons.

13. Appendix "G" to this agreement is an agreement dated May 24, 1976 between the GCS-TCA and Local 2 Bricklayers, Stonemasons and Tilesetters Union Represented by the Ontario Provincial Conference of the International Union of Bricklayers and Allied Craftsmen. This agreement provides as follows:

It is hereby agreed and declared by and between the Parties hereto that the following provisions constitute a Collective Agreement:

1. The terms and conditions of the attached Collective Agreement and Appendices between the Ontario Provincial Conference of the International Union of Bricklayers and Allied Craftsmen and the Masonry Industry Employers Council of Ontario, dated the 24th day of May, 1976, be adopted except as amended hereby.

2. The said terms and conditions shall be amended where necessary to apply only between the Parties hereto within the following area:

Area 8. Metropolitan Toronto, the Regional Municipality of York and the County of Peel, the Township of Esquesing and the Towns of Oakville and Milton in the County of Halton, save and except all territory lying west of the Sixteen Mile Creek in Oakville, from the shore of Lake Ontario to the Queen Elizabeth Highway, and all territory lying west of the Sixth Line, north from the Queen Elizabeth Highway) and the Township of Pickering in the County of Ontario.

3. The attached list of Employers constitutes the General Contractors Section of the Toronto Construction Association.

4. Any notice served on the Masonry Industry Employers Council of Ontario shall be deemed to have also been served on the Toronto Construction Association, General Contractors Section, as a participating Party to this Agreement.

DATED AT TORONTO, THIS 27TH DAY OF JULY, 1976.

SIGNED ON BEHALF OF THE SIGNED ON BEHALF OF LOCAL GENERAL CONTRACTORS 2 BRICKLAYERS, STONEMASONS SECTION OF THE TORONTO AND TILESETTERS UNION CONSTRUCTION ASSOCIATION REPRESENTED BY THE ONTARIO PROVINCIAL CONFERENCE OF THE INTERNATIONAL UNION OF BRICKLAYERS AND ALLIED CRAFTSMEN

14. The terminology of the sub-contracting provision contained in the province-wide agreement (set out above) was intended to permit contractors who were bound to the province-wide agreement to sub-contract work to contractors bound to the GCS-TCA agreement with Local 2.

15. On November 24, 1977, By-law No. 3 was enacted by the Ontario Masonry Contractors' Association. In anticipation of the introduction of province-wide bargaining in the industrial, commer­cial and institutional sector of the construction industry and the designation of employer bargaining agencies, By-law No. 3 establishes MIECO (referred to in the By-law as the "Council") as a committee to act as an employers' organization to negotiate, sign and administer collective agreements on behalf of employers. The By-law stipulates that MIECO shall represent:

…….all, full contractor and affiliate contractor members of the Ontario Masonry Contrac­tors' Association, any masonry industry employer which it is authorized to represent by law and any masonry industry employer who authorizes the Council to represent it for the purpose of negotiating collective agreements with the Ontario Provincial Conference of the International Union of Bricklayers and Allied Craftsmen covering bricklayers, stonemasons, and plasterers, their respective apprentices, improvers and working fore­men and with the Ontario Provincial Council, Labourers International Union of North America covering mason tenders.

16. The By-law directs MIECO to elect two steering committees to advise and guide the bargaining committees in negotiating and administering collective agreements. Twenty-five percent of the representation on the steering committees is to be general contractors represented by the Labour Relations Council of the Ontario General Contractors Association. The GCS-TCA is the affiliate of the Labour Relations Council appointed to the steering committee and accordingly has 25 percent of the votes on the steering committees.

17. Under the heading "Authorization-Bargaining Rights", the By-law provides as follows:

The Council may require that each full contractor member and each affiliate contractor member of the Ontario Masonry Contractors' Association authorize the Council to bargain collectively on its behalf as its sole and exclusive bargaining agent. The Council may accept from any employer who is not a member of the Ontario Masonry Contractors' Association, but whose employees are represented by either or both of the aforesaid Bricklayers or Labourers Unions an authorization that the Council may bargain collectively on its behalf as its sole and exclusive bargaining agent. There shall be no unjust discrimination against non-members with respect to membership or otherwise and all non-members shall be covered under the Council's collective agreements to the same extent and in the same manner as members.

MIECO is not authorized to represent employers who employ marble, tile and terrazzo workers and has in fact never done so. It has never participated in the negotiation of the Provincial Marble, Tile and Terrazzo Agreement.

18. In 1977, the Labour Relation Act was amended to provide for province-wide bargaining in the industrial, commer­cial and institutional sector of the construction industry (The Labour Relations Amendment Act, 1977, S.O. 1977, c31). What is now section 153 of the Act was introduced at that time.

Section 153 reads as follows:

153(1) The Minister may, upon such terms and conditions as the Minister considers appropriate,

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

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

19. By designation dated March 29, 1978 (amended April 12, 1978), the Minister designated the OPC as the employee bargaining agency to represent in bargaining:

…..all journeymen and apprentice marble, tile, terrazzo, cement masons, resilient floor layers and their helpers represented by the following affiliated bargaining agents:

1. The International Union of Bricklayers and Allied Craftsmen and The Ontario Provincial Conference of the International Union of Bricklayers and Allied Craftsmen; or

2. The following Local Unions: 1,2,3,4,5,6,7, 8, 9, 10, 11, 12, 12, 14, 16, 17, 20, 23, 25, 28, 29, 30, 31,33 and 36; or

3. any other Local of the International Union of Bricklayers and Allied Craftsmen which in the future may be chartered to represent journeymen and apprentice marble, tile, terrazzo, cement masons, resilient floor layers and their helpers.

(which Conference and Unions are hereinafter collectively referred to as "the Unions"), in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario, and without limiting the generality of the foregoing, to represent in bargaining as aforesaid all employees bound by or parties to:

(a) certificates of the Ontario Labour Relations Board granted to the Unions or any of them;

(b) voluntary recognition agreements with the Unions or any of them;

(c) collective agreements to which the Unions or any of them have been or are party to or bound by, covering the industrial, commercial and institutional sector of the construction industry in the Province of Ontario.

20. On the same date, the Minister designated the OPC as the employee bargaining agency to represent in bargaining:

…….all journeymen and apprentice bricklayers, stonemasons and plasterers and improvers represented by the following affiliated bargaining agents:

1. The International Union of Bricklayers and Allied Craftsmen and the Ontario Provincial Conference of the International Union of Bricklayers and Allied Craftsmen; or

2. The following Local Unions: 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 16, 17, 20, 23, 25, 28, 29, 30, 31, 33 and 36; or

3. Any other Local of the International Union of Bricklayers and Allied Crafts­men which in the future may be chartered to represent journeymen bricklayers, stonemasons and plasterers and their respective apprentices and improvers.

(which Conference and Unions are hereinafter collectively referred to as "the Unions"), in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario, and without limiting the generality of the foregoing, to represent in bargaining as aforesaid all employees bound by or parties to:

(a) certificates of the Ontario Labour Relations Board granted to the Unions or any of them;

(b) voluntary recognition agreements with the Unions or any of them;

(c) collective agreements to which the Unions or any of them have been or are party to or bound by, covering the industrial, commercial and institutional sector of the construction industry in the Province of Ontario.

21. The Minister designated the Terrazzo, Tile & Marble Guild of Ontario, Inc. as the employer bargaining agency for the tile and terrazzo workers and the MIECO as the employer bargaining agency for bricklayers.

22. Following the introduction of province-wide bargaining, the OPC and MIECO have negoti­ated province-wide agreements for bricklayers, stonemasons and plasterers. As indicated above, the GCS-TCA has a 25 percent vote in a steering committee established by MIECO to advise and guide the bargaining committees in negotiating and administering collective agreements. Accordingly, the GCS­TCA has been actively involved in the negotiation of the Provincial Bricklayers Agreement from 1978 to present.

23. Similarly, following the introduction of province-wide bargaining, the OPC has negotiated a province-wide agreement with the Terrazzo, Tile & Marble Guild of Ontario, Inc. for marble, tile, terrazzo, cement masons, resilient floor layers and their helpers. The GCS-TCA has no input or involvement in the negotiation of the Provincial Marble, Tile and Terrazzo Agreement.

24. The Provincial Bricklayers Agreement, effective July 28, 1995 to April 30, 1998, contains the following provisions regarding recognition and sub-contracting:

ARTICLE 1

Recognition and Sub-Contracting

(a) The Employer recognizes the Union as the exclusive bargaining agent for Bricklayers, Stonemasons and Plasterers, their respective Apprentices, Improvers and Working fore­men in his employ in the Province of Ontario, in areas described in Appendix "B" hereto.

(c) Any Employer who is a party to this Agreement desirous of contracting or sub-con­tracting any work encompassing the skills of members of the Ontario Provincial Confer­ence shall only sub-contract same to a contractor or sub-contractor who is bound by the Provincial Agreement with the Ontario Provincial Conference.

Appendix "B" to the Provincial Bricklayers Agreement sets out the territorial jurisdictions of the OPC. It lists, amongst numerous others, "Local 2 - Toronto" and "Local Union No. 31A -Toronto Marble, Tile and Terrazzo". Appendix "B" is not generally negotiated by the parties to the agreement. MIECO generally has no interest in how the territorial jurisdictions of the OPC are defined and makes no objection to the increase or decrease in the number of locals listed in the appendix.

25. The Provincial Marble, Tile and Terrazzo Agreement contains the following provisions regarding recognition and sub-contracting:

ARTICLE I

RECOGNITION AND SUB-CONTRACTING

(a) The Employer recognizes the Union as the exclusive bargaining agent for Marble, Tile & Terrazzo, Cement Masons and Resilient Floor Layers and their Helpers, their respective Apprentices, Improvers and Working Foremen in his employ in the Province of Ontario working in the areas described in Appendix B hereto.

(c) Any Employer who is party to this Agreement desirous of sub-contracting any work encompassing the skills and members of the Ontario Provincial Conference and only after the Employer has first requested the Local Union to supply members in order to perform the work itself and members of the Local Union are not available as requested, shall only then sub-contract same to a Sub-Contractor who has signed the Provincial Agreement with the Ontario Provincial Conference.

Appendix "B" to the Provincial Marble, Tile and Terrazzo Agreement is a list of the territorial jurisdictions of the OPC. Amongst the locals listed are "Local Union No. 2 - Toronto Bricklayers and Masons" and "Local Union No. 31 -Toronto Marble, Tile and Terrazzo and Helpers".

26. Each of the Provincial Bricklayers Agreement and the Provincial Marble, Tile and Terrazzo Agreement contain an appendix concerning trade jurisdiction. The description of each trade's jurisdic­tion is lengthy and quite detailed. The two appendices are quite different and overlap in very few respects.

27. Each agreement also contains a list of employers that are bound to the agreement. The list of employers contained in the Provincial Marble, Tile and Terrazzo Agreement does not include any members of the GCS-TCA. Most of the members of the GCS-TCA appear in the list of employers contained in the Provincial Bricklayers Agreement.

28. The Board was provided with a copy of Harbridge & Cross Limited, [1989] OLRB Rep. April 391; OLRB Rep. July 824 (judicial review application dismissed); [1989] OLRB Rep. Oct. 1093 (motion for leave to appeal dismissed). Notwithstanding that the applicant in that case is named as the Ontario Council of the International Brotherhood of Painters and Allied Trades, the matter was carried by the Building Trades Council of which Local 31 of the OPC is a member. The decision sets out a statement of facts which was agreed to between the parties. The statement of facts lists the collective agreements to which, at the times material to the proceedings, the Toronto Building Trades Council was a party with the Toronto Construction Association. It is indicated that the Toronto Construction Association had a bargaining relationship with the International Union of Bricklayers and Allied Craftsmen, Local 2. There is no mention of a bargaining relationship with the International Association of Bricklayers and Allied Craftsmen, Local 31.

29. There are a number of examples where a local of a union is named in more than one designation order. For example, Locals 700, 721, 736, 759, 765 and 786 of the International Association of Bridge, Structural and Ornamental Iron Workers and the Iron Workers District Council of Ontario are named in the employee bargaining agency designation for both the International Association of Bridge, Structural and Ornamental Iron Workers and the Iron Workers District Council of Ontario with respect to ironworkers as well as the employee bargaining agency designation for the International Association of Bridge, Structural and Ornamental Iron Workers and the Iron Workers District Council of Ontario with respect to rodmen. The Ontario General Contractors Association is part of the employer bargaining agency designation with respect to rodmen but not with respect to iron workers. Locals 183 and 506, amongst others, of the Labourers' International Union of North America are listed in the employee bargaining designations for construction labourers, labourers pre-cast, and labourers demoli­tion.

30. Local 2 and Local 31 are both affiliates of the OPC. Local 2 has jurisdiction in the Toronto area for bricklayers, stonemasons and plasterers. Local 31 has jurisdiction in the Toronto area primarily for the marble and tile field. Toronto is the only area in which jurisdiction over bricklaying and marble and tile is split between two locals. In all other areas, one local of the OPC has jurisdiction for both.

31. Outside of Toronto, the local assigned to the particular territory would be responsible for enforcing both the Provincial Bricklayers Agreement and the Provincial Marble, Tile and Terrazzo Agreement. Mr. Coelho testified as to how Local 7 operates in the Ottawa area. In the Ottawa area, if a contractor bound to the Provincial Bricklayers Agreement sub-contracts tile work, Local 7 would insist that the work be sub-contracted to a contractor who would employ members of that Local 7 to do the work based on the sub-contracting clause in the Provincial Bricklayers Agreement. A contractor could do the work under the Provincial Bricklayers Agreement or under the Provincial Marble, Tile and Terrazzo Agreement provided members of Local 7 were used to perform the work.

32. There are separate trade schools for individuals who wish to become bricklayers or stonema­sons than for individuals who wish to become tile and terrazzo workers. When an individual wishes to become a member of Local 7, the individual completes an application. Part of the application requires the individual to indicate his/her area of training. When Local 7 gets a request from a contractor for help, the local sends out someone with the appropriate training.

Submissions

33. The applicants submit that, because Local 2 is listed in the employee bargaining agency designation for both the bricklayers and the tile and terrazzo workers, that all employers whose employees are represented by Local 2 are bound to both the Provincial Bricklayers Agreement and the Provincial Marble, Tile and Terrazzo Agreement. At the time of the designations, the GCS-TCA represented employers whose employees were represented by Local 2. Thus, the applicants submit that the members of the GCS-TCA are bound to both agreements. The applicants argue that, if such was not the intended result of listing Local 2 in both designations, there would have been no reason for doing so.

34. In support of their position, the applicants rely on the wording of the employee bargaining agency designation relating to tile and terrazzo workers. The applicants point to the fact that, following the words "without limiting the generality of the foregoing", the latter part of the designation designates the OPC as the employee bargaining agency to represent in bargaining:

……all employees bound by or parties to:

(a) certificates of the Ontario Labour Relations Board granted to the Unions or any of them;

(b) voluntary recognition agreements with the Unions or any of them;

(c) collective agreements to which the Unions or any of them have been or are party to or bound by, covering the industrial, commercial and institutional sector of the construction industry in the Province of Ontario.

Members of the GCS-TCA are bound to collective agreements to which "the Unions" (defined earlier in the designation as including Local 2) are a party and accordingly, the applicants submit that the OPC is designated as the employee bargaining agency to represent their tile and terrazzo employees in bargaining.

35. The applicants acknowledge that the result of their argument would be the creation of bargaining rights. Prior to the designation order, no union had the right to represent the tile and terrazzo employees of members of the GCS-TCA. The effect of accepting the applicants' position would be to grant such rights to Local 2. The applicants submit that section 153(1) of the Act granted the Minister the power to act on such terms as she considered appropriate. If the Minister wanted to ensure that all employers for whom the OPC holds bargaining rights were covered by the designation, one way of doing it would be to include everyone in both designations. In this manner, the Minister would ensure that all employers were covered and at the same time preserve the two separate agreements that existed for each trade.

36. The applicants point to the reference to both Local 2 and Local 31 in the appendices to both the Provincial Bricklayers Agreement and the Provincial Marble, Tile and Terrazzo Agreement as being consistent with the designations and evidence that the parties have agreed that an employer whose employees are represented by either of the two locals is bound to both of the provincial agreements.

37. In the alternative, the applicants argue that the sub-contracting clause in the Provincial Bricklayers Agreement requires contractors to sub-contract work that encompasses the skills of tile and terrazzo workers to members of the OPC. The applicants are not concerned with whether the contractor to whom the work is sub-contracted performs the work under the Provincial Bricklayers Agreement or the Provincial Marble, Tile and Terrazzo Agreement. The applicants want the work performed by members of the OPC.

38. Buttcon disputes that the effect of the employee bargaining agency designation for tile and terrazzo workers is to bind all employers who employ employees covered by a collective agreement with Local 2 to the Provincial Marble, Tile and Terrazzo Agreement. In Buttcon's submission, the bricklayers and tile and terrazzo workers comprise two completely separate trades covered by two completely separate agreements.

39. Buttcon points to the fact that the recognition provision of the Provincial Bricklayers Agreement and the employee bargaining agency designation for bricklayers is limited to "bricklayers, stonemasons and plasterers and improvers". Likewise, the recognition provision for the Provincial Marble, Tile and Terrazzo Agreement and the employee bargaining agency designation for tile and terrazzo workers is limited to "marble, tile, terrazzo, cement masons, resilient floor layers and their helpers". Each agreement contains a lengthy and detailed trade jurisdiction appendix. The trade jurisdictions of the two trades overlap in only very minor respects. The agreements and the designations highlight that they are each concerned with separate trades. The fact that individuals wishing to become bricklayers attend separate trade schools from individuals wishing to become tile and terrazzo workers, further highlights the disparity between the trades.

40. Buttcon points out that, pursuant to By-law No. 3 of the Ontario Masonry Contractors' Association, MIECO is only authorized to negotiate collective agreements with the Bricklayers covering bricklayers, stonemasons, and plasterers, their respective apprentices, improvers and working foremen and with the Labourers covering mason tenders. MIECO is not authorized to negotiate collective agreements pertaining to tile and terrazzo workers.

41. Buttcon submits that the fact that the GCS-TCA forms no part of the designated employer bargaining agency with respect to tile and terrazzo workers is the result of the fact that, prior to 1978, the GCS-TCA was not bound to an agreement covering tile and terrazzo workers. Had such been the case, they would have been given a role to play in the tile and terrazzo workers' designated employer bargaining agency as they were in the bricklayers' employer bargaining agency. The Board's accredita­tion decision concerning the Terrazzo, Tile & Marble Guild of Ontario, Inc. lists no general contractors on either Schedule "E" or "F". In the Harbridge & Cross, supra, decision, the Building Trades Council, of which Local 31 is a member, agreed that the GCS-TCA was only bound to the Provincial Bricklayers Agreement.

42. Buttcon further points out that mixed locals (locals listed in more than one designation) are not uncommon. Local 721 of the International Association of Bridge, Structural and Ornamental Iron Workers and the Iron Workers District Council of Ontario is listed in the employee designation for both the rodmen and iron workers. The GCS-TCA is bound to the province-wide agreement for rodmen but not to the province-wide agreement for iron workers.

43. Buttcon disputes that the designation orders can create bargaining rights. In Buttcon's submission, either the employee bargaining agency or one of the affiliated bargaining agents must hold bargaining rights for employees within the trade covered by the designation by virtue of a certification, voluntary recognition or collective agreement before the employee bargaining agency has the right to represent those employees.

44. With respect to the applicants' alternative argument, Buttcon submits that article 1(c) of the sub-contracting clause must be read with article 1(a). The reference to "the Provincial Agreement" in article 1(c) is a reference to the Provincial Bricklayers Agreement. In Buttcon's submission, it would be ludicrous to interpret the sub-contracting clause to require contractors to sub-contract work under a totally different collective agreement which they have no right to participate in negotiating. It would mean that the parties to the other agreement could decide to, for example, include carpentry work within its terms and the parties to the agreement containing the sub-contracting clause would be bound as a result.

Decision

i) Designation

45. The applicants' rely on the employee bargaining agency designation of the OPC with respect to tile and terrazzo workers to assert bargaining rights with respect to the marble, tile, terrazzo, cement masons, resilient floor layers and their helpers employed by the responding parties.

46. The designation names the OPC as the designated employee bargaining agency to represent "all journeymen and apprentice marble, tile, terrazzo, cement masons, resilient floor layers and their helpers" represented by the OPC, specified locals of the OPC and any other local of the OPC subsequently chartered to represent "all journeymen and apprentice marble, tile, terrazzo, cement masons, resilient floor layers and their helpers" working in the ICI sector of the construction industry. The designation then indicates that "without limiting the generality of the foregoing", the OPC is designated to represent "in bargaining as aforesaid all employees bound by or parties to" certificates granted to the unions, voluntary recognition agreements with the unions, or collective agreements with the unions covering the ICI sector. In my view, the phrase "as aforesaid" indicates that the OPC is designated to represent in bargaining those employees as described in the initial portion of the designation for whom the unions have acquired bargaining rights in one of the three ways specified in the latter portion of the designation. I do not accept that the portion of the designation following "without limiting the generality of the foregoing" has the effect of completely overriding the initial portion of the designation which defines the trade the OPC is designated to represent and granting the OPC the right to represent employees represented by any of its locals regardless of trade. Thus, I am not persuaded that the language of the designation bears the interpretation urged upon me by the applicants.

47. The applicants' interpretation of the designation would mean that bargaining rights could be created by way of designation. The Act, in very specific terms, sets out how bargaining rights can be acquired. Nowhere is it specified that the Minister has, or had, the power to create bargaining rights by way of designation. Hence, I do not accept the proposition that bargaining rights can be created by designation.

48. Accordingly, it is my determination that the OPC designation for tile and terrazzo workers limits the OPC's representation rights under such designation to the representation of journeymen and apprentice marble, tile, terrazzo, cement masons, resilient floor layers and their helpers for whom the OPC, one of the specified locals, or a subsequently chartered local, has acquired bargaining rights.

ii) Sub-Contracting Clause

49. The applicants first submission is that the sub-contracting clause requires an employer

bound to the Provincial Bricklayers Agreement to sub-contract, not only work covered by the agreement, but any work encompassing the skills of members of the OPC, including tile and terrazzo work, to an employer bound to the Provincial Marble, Tile and Terrazzo Agreement. For the reasons set out below, I am not persuaded that the sub-contracting clause bears such an interpretation.

50. As indicated above, the sub-contracting clause appears within article I of the Provincial Bricklayers Agreement which provides in part as follows:

ARTICLE I

Recognition and Sub-Contracting

(a) The Employer recognizes the Union as the exclusive bargaining agent for Bricklayers, Stonema­sons and Plasterers, their respective Apprentices, Improvers and Working foremen in his employ in the Province of Ontario, in areas described in Appendix "B" hereto.

(c) Any Employer who is party to this Agreement desirous of contracting or sub-contracting any work encompassing the skills of members of the Ontario Provincial Conference shall only contract or sub-contract same to a contractor or sub-contractor who is bound by the Provincial Agreement with the Ontario Provincial Conference.

51. Article 1(c) requires an employer bound to the Provincial Bricklayers Agreement to sub­contract work to a contractor bound to "the Provincial Agreement with the Ontario Provincial Confer­ence". I do not accept that "the Provincial Agreement with the Ontario Provincial Conference” is a reference to both the Provincial Bricklayers Agreement and the Provincial Marble, Tile and Terrazzo Agreement depending upon the type of work being sub-contracted. The reference is to "the Provincial Agreement" in the singular. It is thus a reference to only one agreement. The clause appears within the Provincial Bricklayers Agreement which is entitled "Provincial Agreement for Ontario Bricklayers, Stonemasons and Plasterers". Accordingly, it is my determination that the reference to "the Provincial Agreement" in article 1(c) is a reference to the Provincial Bricklayers Agreement. As a result, I do not accept that the clause requires contractors bound to the Provincial Bricklayers Agreement to sub­contract work covered by the Provincial Marble, Tile and Terrazzo Agreement to a contractor bound by such agreement.

52. The applicants argue in the alternative that the words "any work encompassing the skills of members of the [OPCJ" require contractors bound to the Provincial Bricklayers Agreement to sub­contract, not only bricklaying work, but also tile and terrazzo work, to a contractor bound to the Provincial Bricklayers Agreement. In my view, the words "any work encompassing the skills of members of the [OPCI", when considered within the context of the Provincial Bricklayers Agreement, are a reference to the work of those employees covered by the terms of the agreement and do not include the work of tile and terrazzo employees.

53. The sub-contracting clause appears within article 1 of the agreement entitled "Recognition and Sub-Contracting". Article 1(a) establishes that the employer has recognized the union as the bargaining agent for "Bricklayers, Stonemasons and Plasterers, their respective Apprentices, Improvers and Working foremen". The union is not recognized as the bargaining agent for tile and terrazzo workers.

54. Given that the scope of the union's bargaining rights are clearly defined in the agreement as limited to representing bricklayers, it is my determination that it would take much clearer language than "any work encompassing the skills of the members of the [OPC]" to place a restriction on the employer's right to sub-contract work which is not covered by the collective agreement. In my view, these words do no more than limit the employer's right to sub-contract work which would otherwise be covered by the terms of the agreement. The agreement does not apply to tile and terrazzo work, and accordingly the employer's right to sub-contract such work is not restricted by the sub-contracting clause.

55. For the foregoing reasons, it is my determination that the responding parties are not bound to the Provincial Marble, Tile and Terrazzo Agreement, nor are they required by article I of the Provincial Bricklayers Agreement to sub-contract tile and terrazzo work to a contractor bound to either the Provincial Bricklayers Agreement or the Provincial Marble, Tile and Terrazzo Agreement.

56. The applicant is directed to advise the Registrar, no later than August 30, 1996, as to what issues remain outstanding and whether these matters are to be relisted for hearing.

57. I am not seized.