[1997] OLRB REP. MARCH/APRIL 171

2736-96-R; 2743-96-R Millwright District Council of Ontario and its Local 1410, Applicant v. Alcan Aluminium Limited, Responding Party v. Alcan Chemicals, Division of Alcan Aluminium Limited ("Chemicals"); Alcan Rolled Products ("Rolled Products"); Alcan Cable ("Cable"); Alcan Foil Products ("Foil"); United Steelworkers of America, Local 7949 and Local 8754; International Association of Machinists and Aerospace Workers, Lodge 54, Intervenors; Ontario Pipe Trades Council, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 221, Applicant v. Alcan Aluminium Limited, Responding Party v. Alcan Chemicals, Division of Alcan Aluminium Limited ("Chemicals"); Alcan Rolled Products ("Rolled Products"); Alcan Cable ("Cable"); Alcan Foil Products ("Foil"); United Steelworkers of America, Local 7949 and Local 8754; International Association of Machinists and Aerospace Workers, Lodge 54, Intervenors

BEFORE: G. T Surctvkowski, Vice-Chair.

APPEARANCES: AM. Minsky; Peter Shklanka, Brian Christie and John Telford for Ontario Pipe Trades Council, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 221; Harold F Caley; Denis Ellickson and Wayne Vankoughnett for Millwright District Council of Ontario and its Local 1410; Paul A. Boniferro, Roy Meikie, John McCormack and Tom Sutton for Chemicals; Marie Kelly and Mohamed Baksh for United Steelworkers of America, Local 7949 and Local 8754; PG. Hamilton, David Kennedy and Bob Wright for Cable, Rolled Products and Foil; Phil Hunt and Tim Hyatt for the International Association of Machinists and Aerospace Workers, Lodge 54.

DECISION OF THE BOARD; March 10, 1997

I The Applications and the Issue

1. These are two applications for certification made under the construction industry provisions of the Labour Relations Act, 1995.

2. Board File No. 2736-96-R is an application by the "Millwrights" for what is in effect a standard industrial, commercial and institutional ("ICI") bargaining unit of journeymen and apprentice millwrights. I use the generic term "Millwrights" because it appears that there are in fact two trade union applicants. The Millwright District Council of Ontario is part of the employee bargaining agency designated to represent journeymen and apprentice millwrights who are represented by the affiliated bargaining agents identified in the designation issued by the Minister on January 30, 1978 for the ICI sector of the construction industry. The Council is also itself an affiliated bargaining agent. Local 1410 is both a constituent trade union of the Council and an affiliated bargaining agent. Accordingly, the Council and Local 1410 are separate trade union entities, each of which is entitled to bring an application for certification in the construction industry.

3. Although more than one trade union can make an application for certification with respect to the same bargaining unit of employees, it is not appropriate for more than one trade union to bring a single application. Each trade union must bring its own. Otherwise, it is not clear how bargaining rights (outside of the ICI sector at least) would be apportioned in a certificate in the event that a single application by multiple applicants is successful (see Centro Mechanical Inc., [1996] OLRB Rep. Sept./Oct. 762). This question may be spoken to in due course.

4. Board File No. 2743-96-R is an application by the "U.A." for the standard ICI bargaining unit of journeymen and apprentice plumbers and steamfitters. Again, I use the generic "U.A." because this application has also been brought by two separate U.A. trade union entities. The Ontario Pipe Trades Council (the "OPC") is both part of the designated employee bargaining agency designated to represent journeymen and apprentice plumbers and steamfitters represented by the affiliated bargaining agents described in the designation issued by the Minister in that respect, and is also one of the affiliated bargaining agents of that designated employee bargaining agency. Local 221 is both a constituent trade union of the OPC and an affiliated bargaining agent of the designated employee bargaining agency. Accordingly, this application is also brought by multiple applicants, which appears to be a problem. This may be spoken to in due course as well.

5. In both applications, representation votes have been ordered and held. In each case, more than fifty per cent of the ballots cast were marked in favour of the "applicant". Ordinarily, subject to resolving the issue of who the applicant in each case actually is, certificates would issue in each case.

6. However, there is a dispute between the parties regarding how the responding employer in each case should be identified, and potentially also a collateral issue regarding a bargaining unit description (which is not precisely the same as an issue, which is not the subject of this decision, raised in the interventions by the International Association of Machinists and Aerospace Workers, Lodge 54 (the "Machinists") and the United Steelworkers of America, Local 7949 and Local 8754 (the "Steelworkers").

7. In each application as filed, the responding employer has been identified as "Alcan Aluminum Limited". There is no dispute that the correct spelling of the company's name is "Alcan Aluminium Limited". That is not the issue.

8. Although it was given the usual notices of these applications, Alcan Aluminium Limited has not filed a response or any other materials in either of these applications. Nor did it appear at the hearing. However, Alcan Chemicals, Division of Alcan Aluminium Limited ("Chemicals") has filed a response in which it alleges that that is the proper name of the responding employer in these applications. In addition, Alcan Rolled Products ("Rolled Products"), Alcan Cable ("Cable") and Alcan Foil Products ("Foil") have filed separate interventions essentially supporting Chemicals' position. That is, Rolled Products, Cable and Foil all assert that they and Chemicals are individual employers for labour relations purposes, separate from each other and from Alcan Aluminium Limited, that Chemicals and not Alcan Aluminium Limited is the proper responding party in both applications, and that they would be, but should not be, affected if Alcan Aluminium is named as the employer in the certificates which will issue in these matters.

9. The proposition put forward by Chemicals, Rolled Products, Cable and Foil is a simple one. They assert that they are each independent autonomous business units which are separately operated and controlled by their own management, that the divisions of Alcan Aluminium Limited have been recognized as separate employers for labour relations purposes, and that the same recognition should be extended to Chemicals in these applications.

II Argument

10. In that respect, Chemicals submits that the question before the Board in this case is: "who is the appropriate employer for labour relations purposes?" Counsel submits that this raises an issue concerning what he described as the collision between the construction and "industrial" (or general) provisions of the Act. Counsel argues that the evidence establishes that Chemicals is a distinct business which is separate and independent from all other divisions of Alcan Aluminium Limited, and that it is therefore the appropriate or proper employer for labour relations purposes, and, more specifically, for purposes of these applications for certification, because it is the actual employer of the employees who are the subject of the application.

11. Counsel for Rolled Products, Cable and Foil focuses on what he described as the conflict between the industrial and construction regimes in the Act. He submits that these applications are one manifestation of that conflict, which also includes jurisdictional disputes between construction and non-construction unions, and litigation about what is and is not construction work. Counsel points out that under the industrial provisions of the Act unions tend to be certified on the basis of an application of the principles described in Usarco Ltd., [1967] OLRB Rep. Sept. 526 for a bargaining unit of employees in the single municipality, and that when certified, an employer bargains "its own deal" with the trade union. Counsel submits that the construction industry provisions are designed to meet needs which are peculiar to that industry, and that the system of sectors, provincial bargaining in the ICI sector and area certification for other sectors, and the scheme of collective bargaining between employers and union organizations in the construction industry is not well suited to employers like the Alcan business units which operate primarily outside the construction industry. Counsel submits that on the evidence, the various divisions of Alcan Aluminium Limited before the Board in this case have a right to decide whether they will perform construction work and how they will do it. He argues that his clients should be able to continue to do so without any of the restrictions which would result from the certificates arising out of the decision by a separate division (i.e. Chemicals) to engage in the construction industry. Further, counsel argues that there is no demonstrable need to have the applicant's bargaining rights attach to any division other than Chemicals, while to include Cable, Rolled Products and Foil will create conflicts with the industrial unions which already hold bargaining rights at plants operated by these other three divisions. Counsel submits that the Board certifies identifiable business or labour relations units, and that in balancing the rights and interests in these applications and having regard to the substance rather than the form of the business organizations before the Board, it would not be appropriate to include any division other than Chemicals as the employer entity.

12. The applicants submit that the "employer" in these applications must be described in terms of the legal entity which is involved, and that it is not appropriate to restrict the identification of the employer to a division of the employer which has no independent legal status. Similarly, argue the applicants, the Board should not effect such a result indirectly by limiting the bargaining rights to Chemicals in the bargaining unit description, as the Alcan divisions proposed in the alternative. It is implicit in the applicant's submissions that they agree that there is a difference between construction and non-construction employers which results in different interests in labour relations concerns which the parties, both employer and trade union, have in each. As Mr. Minsky pointed out, for example, trade unions which represent construction employees separately and apart from non-construction employees are generally not as interested in an employer's product as non-construction trade unions which represent the employees who produce those products. The applicants submit that the fact that being certified under the construction industry provisions of the Act may affect the way that Alcan Aluminium Limited operates in the construction industry is irrelevant. Further, the applicants submit that the divisions of Alcan which are before the Board are not as separate or independent as they profess to be, and that the real ultimate control in that respect lies with Alcan Aluminium Limited. Finally, the applicants argue that an application for certification does not raise an issue of conflict between construction and non-construction industry provisions of the Act, but that even if it does, the Act provides that in the event of a conflict, the construction industry provisions prevail.

13. The Machinists and Steelworkers chose not to participate in this phase of the proceeding.

III The Board's Jurisprudence

14. In the course of argument, counsel referred to various Board decisions in support of their respective submissions. I find it unnecessary to review this jurisprudence in detail. Suffice to say that it is apparent from the jurisprudence that the Board's general preference and practice is to require that a legal entity, often a corporation, be identified as the employer party in an application for certification, and to effect any appropriate delineations of bargaining rights in the bargaining unit description. The following passage in Beatrice Foods (Ontario) Limited, [1982] OLRB Rep. June 815 is representative of this approach and the reasons for it:

15. Having considered the respondent's request, the Board is of the view that it would not be appropriate to amend the style of cause in the manner requested by the respondent. While a corporation may be subdivided into a number of divisions for operations, marketing and other purposes, the creation of such internal divisions does not change the fact that the legal entity which is the employer remains the corporation itself, which must have "Limited", "Incorporated". "Corporation", "Ltd.", "Inc." or "Corp." as the last word in its name (see Business Corporations Act. R.S.O. 1980, c. 54.s. 8, and Canada Corporations Act, R.S.C. 1970, c. C-32, s. 25). To forestall various difficulties that might otherwise arise with respect to such matters as enforcement of Board decisions and orders, it is preferable (although it has not, to date, been the Board's unvarying practice) to include only the corporate name of an (incorporated) employer in the style of cause of an application or complaint. If, as in the present case, it is appropriate to restrict the applicant's bargaining rights to employees who work in a particular division that has been established by their corporate employer, this can be accomplished by referring to that division in the description of the bargaining unit, as was done in the aforementioned decision dated May 31, 1982 in which the unit was described as "all employees of the respondent in its Model Dairy Division at Sault Ste. Marie

…….(emphasis added)."

15. While this issue seems to arise more often in non-construction than in construction cases, the Board takes the same general approach in applications for certification in the construction industry. However, this general practice is just that and has not been followed in every case. The cases demonstrate that the Board has not required that the name of every employer party to an application for certification identify a legal entity.

16. In subsection 1(4) ("related employer") and section 69 ("successor employer" or "sale of business") proceedings, which are also in the nature of representation proceedings, the Board has concluded that the application of these preservation of bargaining rights provisions is not necessarily limited to entities which are separate legal entities (Metroland Printing, Publishing & Distributing, [1991] OLRB Rep. Sept. 1069), essentially on the theory that the bargaining rights attached to a definable commercial activity rather than to a particular legal vehicle (Ethyl Canada Inc., [1982] OLRB Rep. July 998). Although I am unaware of any certification decision which specifically says so, it is readily apparent that the same approach is appropriately and has in fact been applied in certification proceedings. The Board has concluded that whether or not something which is not otherwise a legal entity is nevertheless appropriately treated as a separate employer and therefore an employer "entity" for purposes of the Labour Relations Act, is a question of fact, in which the focus of the inquiry is whether it has a separate labour relations identity (see, for example, Radio Shack, [1979] OLRB Rep. July 689, a non-construction case; and George Hamers Limited, [1981] OLRB Rep. Oct. 1382, a construction case).

17. This is why the Board can accept the agreement of the parties that the employer's name identifies something which is not necessarily a legal entity. Although the Board has not always accepted such an agreement of the parties (see, for example, Thomson Newspapers Company Limited, (unreported, Board File No. 2139-91-R, October 18, 1991), the Board has often done so. Examples of applications by U.A. entities where the Board has (apparently) accepted as an "employer" something which appears on its face not to be a legal entity include the following:

Board File No. 4210-95-R - "TTI Industrial, Division of 1154592 Ontario Inc.".

Board File No. 3208-92-R - "KMT Technical Services, a division of 839197 Ontario Limited".

Board File No. 2210-87-R – “Bieler Plumbing & Heating Ltd., Apollo Mechanical Contractors Division".

Board File No. 0962-86-R - "Ford Mechanical (Division of Ford Plumbing and Heating Company Limited)".

Board File No. 2735-83-R - "Mark V Enterprises Eastern Division".

Board File No. 41 18-73-R - "Warnock Hersey International Limited - Professional Services Division".

Board File No. 3537-72-R - "Beaver Engineering Limited Wholesale Division".

Board File No. 3045-72-R - "Comfort-Guard Service Division of St. Catharines Fuels Division of the Canadian Fuel Marketers Group Limited".

18. Consequently, it is possible for the Board to name as the employer for purposes of an application for certification (i.e. for labour relations purposes) something which is not otherwise have a legal identity. (I note that for most purposes outside of the Labour Relations Act, 1995 or other labour relations legislation, trade unions do not have a legal identity either.) In that respect, the enforcement concern mentioned in Beatrice Foods, supra, and adverted to in argument by Mr. Ellickson can be answered by observing that ultimately a legal entity will always have responsibility for the liabilities or obligations of its non-legal entity components which are found by the Board to constitute a separate employer for purposes of the Act. There is no suggestion that the experience has been otherwise. (And again I note that trade unions, which have no legal identity outside of labour relations legislation unless they have incorporated, have nevertheless been able to enforce decisions of this Board and of Board's of Arbitration in the Courts.)

19. Accordingly, in these applications it is appropriate to consider whether the proper responding employer is Alcan Aluminium Limited or Chemicals.

IV The Facts and Decision

20. In order to focus attention on what is in dispute, I begin by reviewing what is not in dispute. It is not suggested that Alcan Aluminium Limited or Chemicals are not "employers" within the meaning of section 126 of the Act, or that the applicants are not trade unions within the meaning of section 126. That is, it is conceded that for purposes of the Act, Alcan Aluminium Limited and Chemicals are employers in the construction industry and that these applications are properly brought under the construction industry provisions of the Act. Since the applicants are affiliated bargaining agents of designated employee bargaining agencies and have chosen to bring their applications in relations to the ICI sector, it cannot be disputed that these applications have been brought under section 158(1) of the Act (as indeed the Board has already determined in its earlier decisions in which the votes taken in the applications were directed). It is common ground that the work being performed by the bargaining unit employees at the time the applications were filed was ICI sector work, and that all of the bargaining unit employees were employed at the Brockville job site. Accordingly, there can be no dispute concerning the geographic scope of the bargaining unit. That is, the bargaining unit must be described in province-wide terms for the ICI sector and Board Area #30 is the appropriate geographic area for all other sectors of the construction industry.

21. Accordingly, the issue in dispute is whether Alcan Aluminium Limited and Chemicals are separate employers for purposes of the Act, and if so, whether Chemicals or Alcan Aluminium Limited is the employer of the bargaining unit employees in these applications. The question is not "what is the proper name of the employer?". The real question is the one posed by counsel for Chemicals; namely, "who is the employer?"

22. Since the Alcan entities which have joined in these applications all assert that Chemicals is the proper responding employer, and not Alcan Aluminium Limited, the choice in that respect is between Chemicals and Alcan Aluminium Limited, which can fairly be described as Chemicals' parent. And since it is a question of fact whether Chemicals is a separate employer for labour relations purposes and whether it is the employer of the employees who are the subject of these applications, it is the evidence which describes Alcan Aluminium Limited and Chemicals, and the relationship between them, which is the most important. It does not necessarily follow that if one or even all of Rolled Products, Cable or Foil are properly considered as being separate employers (and on the evidence it is not at all clear that Rolled Products and Foil are separate from each other at least), that Chemicals also is (or vice-versa). Accordingly, the evidence concerning Rolled Products, Cable and Foil is helpful only insofar as it helps describe the overall Alcan picture against which the facts specifically applicable to these applications can be assessed.

23. The Board heard from three witnesses. Chemicals called two of them. John McCormack testified that he is the president of "Alcan Chemicals, a Division of Alcan Aluminium Corporation" and general manager of "Alcan Chemicals North America". Mr. McCormack is "president" of Alcan Chemicals in the United States, not of Alcan Aluminium Corporation. This position is equivalent to his position as general manager of Alcan Chemicals in Canada. Derek Prichett is the production manager for Chemicals at its Brockville Plant. Rolled Products, Cable and Foil called David Kennedy as a witness. Mr. Kennedy is a senior counsel of Alcan Aluminium Limited. As such, he is responsible for providing legal services to the Alcan group of business units. All three of these witnesses testified in a thoughtful and straightforward manner, although as counsel for the applicants pointed out, they did so with what appeared to be a keen awareness of the issue in dispute.

24. The dispute between the parties does not concern the facts, but rather what conclusions the Board should arrive at on the basis of facts which are relatively straightforward, at least as far as the evidence goes.

25. Alcan Aluminium Limited is a large multi-national corporation. In 1996 its world-wide sales total approximately 8.2 billion dollars. It operates business "units" in some thirty countries. In the manner which has become typical of large multi-national corporations, a large number of incorporated and unincorporated entities shelter under the Alcan Umbrella. The evidence before the Board includes what was referred to as a "10k" report filed with Securities and Exchange Commission in the United States. This document lists some 160 "subsidiaries of Alcan [Aluminium Limited], as of March 1, 1996" which meet what Mr. Kennedy called the "materiality test" for inclusion on the list. It appears that all but perhaps two of the approximately 160 entities listed on this document are incorporated (one is specifically identified as being unincorporated and one is noted as being "a company with unlimited liability"). It appears that the Alcan "family" has other incorporated and unincorporated entities within it as well, including the four unincorporated business units which have come forward in these applications and none of which are listed in the document tiled with the United States Securities and Exchange Commission.

26. On the evidence, it is clear that Alcan Aluminium Limited owns and completely controls most of its corporate subsidiaries, and all of the unincorporated subsidiary entities, the latter including Chemicals. Alcan has structured its internal organization into separate business units for three major reasons:

(1) in order to better monitor the profitability of its activities;

(2) because of competition or anti-trust law concerns; and

(3) because of the complexities of operating across international boundaries.

Consideration was given to creating a separate corporate structure for Chemicals, but that option was discarded because of tax and other legal considerations.

27. The Alcan business units before the Board consist of both unincorporated and incorporated structures. They exist as discrete slices of activity which operate through different corporations or parts of corporations, or individuals associated with them.

28. The attempt to create a separation between the business units, and between them and Alcan Aluminium Limited, has been made in response to the economic and legal exigencies which are faced by a multi-national corporation which has business interests throughout the world. The separation between them was not attempted for labour relations reasons, although it may have an effect on employment and labour relations matters. The question is just that, that is, whether there has been a separation created which in this Province has the effect of creating separate employers for labour relations purposes.

29. Turning to the specific question before the Board, Chemicals produces various activated aluminum products. This activity is quite different from the mining, smelting or metal fabrication activities carried out by other business units. Although there is some affinity between Chemicals and the mining activities, there is little in common between it and the smelting and fabricating activities. Chemicals operates two plants in Ontario. There is a small plant which has five employees in Ottawa. The second is the Brockville plant, which has some 40 "permanent" employees and is significantly larger. The Brockville plant was the pilot plant for Chemicals. Since it began operating, it has expanded several times. The employees who have expressed their desire to be represented by the applicants in these applications were engaged in the construction of the most recent expansion of the Brockville plant.

30. Dr. Roy Meikle is referred to as the "business manager" of "Activated Aluminas, Brockville". In effect, he is the plant manager of Chemicals Brockville plant. Dr. Meikle reports to Mr. McCormack who is located in Cleveland, Ohio and who wears several Alcan hats. What it comes down to, however, is that Mr. McCormack is in effect the general manager of Chemicals in North America. Mr. McCormack reports through Thomas Dingwall, the managing director of Alcan Chemicals Limited (Division of British Alcan Aluminium PLC) and director of British Alcan Aluminium PLC in England, to Emery LeBlanc, executive vice-president for Raw Materials and Chemicals for Alcan Aluminium Limited, in Montreal. Mr. LeBlanc in turn reports to Jacques Bougie, the president and chief executive officer of Alcan Aluminium Limited, also in Montreal, who is in turn responsible to the Board of Directors of Alcan Aluminium.

31. The way that this structure operates in practice does not demonstrate the kind of labour relations independence or separateness of Chemicals from Alcan Aluminium Limited which is asserted by the Alcan business units before the Board in these applications, or which would cause the Board to consider Chemicals to be a separate employer for purposes of the Act.

32. Although a separation can be discerned between Chemicals and the other business units before the Board, there is fl() obvious separation between Chemicals and Alcan Aluminium Limited. It is true that the day-to-day affairs and operations of Chemicals are managed locally, beginning at the plant level. But this is neither surprising nor unusual. Most large corporations operate this way, and the larger they get the more levels of "local" management there usually are. But equally often, as is the case here, there is very real control exerted at higher corporate levels, particularly, and most significantly in this case, in matters related to capital expenditures and labour relations.

33. Chemicals' asserts that the labour relations and human resources functions in that division are localized at the plant level. But even Chemicals did not suggest that its Ottawa plant should not be encompassed by these applications. Nor does the evidence support the assertions of Chemicals and the other business units in that respect.

34. The evidence indicates that Chemicals is considered to be a division of both Alcan Aluminium Corporation, an American limited company in the United States which is wholly owned by Alcan Aluminium Limited, and of Alcan Aluminium Limited itself, that is, the "parent" company which filed the "10k" report referred to above, and which describes itself (in its 1995 annual report) as "... the parent company of an international group involved in all aspects of the aluminum industry. Through subsidiaries and related companies around the world, the activities of the Alcan Group include bauxite mining, alumina refining, power generation, aluminum smelting, manufacturing and recycling. Approximately 39,000 people are directly employed by the Company, with thousands more employed in related companies ..." That is, Alcan Aluminium Limited draws no distinction between employees depending on which division they work in. Further, Chemicals represents one aspect or activity of Alcan Aluminium Limited. Chemicals is not listed in either of the "10k report" or in the list of "principal subsidiaries, related companies or divisions" found on the inside back cover of Alcan Aluminium Limited 1995 annual report. Although Chemicals may be subject to review as a separate profit centre within Alcan Aluminium Limited, it is not reported as such in its annual report.

35. Nor is Chemicals promoted as an entity separate from or independent of Alcan Aluminium Limited. Not only does it trade on the word Alcan and the Alcan symbol, both of which are registered trade marks which Alcan Aluminium Limited correctly points out in its 1995 annual report "are synonymous with aluminum the world over", Alcan Aluminium Limited is prominently featured in Chemicals promotional materials (Exhibit #3).

36. Nor does the structure of Chemicals indicate any obvious separation from Alcan Aluminium Limited. Indeed, it is apparent that Chemicals' autonomy, both at the plant level and generally, is limited to day-to-day production matters and minor capital expenditures. The only evidence regarding limits on capital expenditures comes from Mr. Kennedy. He said that plant level limits are low. Since he testified that the next level up from the plant level has a limit of $200,000.00, it is reasonable to infer that the limit for plant manager like Dr. Meikle is very low indeed. In the case of Chemicals, it is Mr. Dingwall who exercises the $200,000.00 limit authority, even though one would expect that it would be the responsibility of Mr. McCormack who appears to be at the same corporate level as Mr. Bland, who exercises that authority as "president" of Cable. Mr. LeBlanc, the Alcan Aluminium Limited executive vice-president responsible for Chemicals, is at the same corporate level as Brian Sturgell who is executive vice-president responsible for "Fabricated Products North America" and therefore for Rolled Products, Cable and Foil. (Mr. Sturgell is also president of Alcan Aluminum Corporation in the United States). Presumably, Mr. LeBlanc has the same capital expenditure limit of two million dollars as Mr. Sturgell. There is nothing to suggest that he has some other limit. Although there is no evidence of what it is, Mr. Bougie has an even higher limit, and the final and presumably (theoretically) unlimited authority lies with Alcan Aluminium Limited board of directors. This structure reflects the central control which Alcan Aluminium Limited exercises in financial matters.

37. Although labour relations are said to be localized at the plant level, this is also subject to an up the ladder" type of control. In that respect, Alcan Aluminium Limited's 1995 annual report identifies a Personnel Committee which ~~has the responsibility for reviewing all personnel policy and employee relations matters ...". Further, in collective bargaining matters, the plant manager and local human resources personnel prepare a "mandate" for collective bargaining which is subject to a ~~two up approval. Since no trade union currently holds bargaining rights for employees there, there is no direct evidence of how this would work in the case of either Chemicals generally or the Brockville plant specifically, but it is reasonable to infer that it would work in much the same way as it does with Cable's Bracebridge plant. There, a proposal is prepared at the plant level. It then goes to Mr. Bland for a general manager type of approval, and then to Mr. Sturgell for approval at the executive vice-president (of Alcan Aluminium Limited) level. Accordingly, collective bargaining is subject to approval and control exercised at the Alcan Aluminium Limited executive vice-president level. That is, by Alcan Aluminium Limited.

38. Further, although labour relations and human resources are said to be localized, it is apparent that the localization referred to is at the plant level. Whether or not the case is the same for the other three Alcan business units before the Board, the evidence does not suggest that Chemicals as a division has its own labour relations or human resources department separate from Alcan Aluminium Limited or the influences of Alcan Aluminium Limited.

39. Occupational Health and Safety is also a local responsibility, as it must be, but it is subject to what Mr. McCormack described as "central directives" which were not more specifically located.

40. When it comes to construction matters, there is even less separation between Chemicals and Alcan Aluminium Limited. In this case, there is little direct evidence before the Board regarding the construction project at the Chemicals' plant in Brockville which is the subject of these applications. However, there is some documentary evidence which reveals some information, and there is evidence of the general practice which is followed when construction projects are undertaken by an Alcan entity, and which it is reasonable to infer was followed in this instance.

41. Exhibit #5 is a Notice of Project under the Occupational Health and Safety Act, which was filed with the Ministry of Labour with respect to the project. It reveals that the project was the extension of the Brockville production facility and warehouse involving buildings or structures three to six stories high, and that it was expected to take six months to complete. Although the "total cost of project" box on Exhibit #5 has been left blank, the evidence establishes that the capital cost of the project required approval at the Alcan Aluminium Limited board of directors level; that is, at the highest level of the Alcan structure. It is also apparent that the financing of the project was provided by Alcan Aluminium Limited. That is, the decision to proceed with the project was made by Alcan Aluminium Limited and it could not have been carried out by other than Alcan Aluminium.

42. There is no direct evidence of who initiated or proposed the project which was ultimately approved by Alcan Aluminium Limited board of directors. However, Mr. Prichett's signature appears on the Notice of Project filed with the Ministry of Labour (i.e. Exhibit #5). On the basis of this and the evidence about how the Brockville plant operates, and how capital cost expenditures are generally initiated, it is reasonable to infer that Dr. Meikle or Mr. Prichett either prepared or supervised the preparation of the proposal. However, it is quite clear that whether or not to proceed with the project was not their decision.

43. On Exhibit #5, both the "constructor" and the "owner of project" are identified as "Alcan Aluminum Isici Limited". Under section 1(1) of the Occupational Health and Safety Act, "constructor", "employer", and "owner" are defined as follows:

"constructor" means a person who undertakes a project for an owner and includes an owner who undertakes all or part of a project by himself or by more than one employer;

"employer" means a person who employs one or more workers or contracts for the services of one or more workers and includes a contractor or subcontractor who performs work or supplies services and a contractor or subcontractor who undertakes with an owner, constructor, contractor or subcontractor to perform work or supply services;

"owner" includes a trustee, receiver, mortgagee in possession, tenant, lessee, or occupier of any lands or premises used or to be used as a workplace, and a person who acts for or on behalf of an owner as an agent or delegate.

Mr. Prichett signed Exhibit #5, but he gave no evidence as to why Alcan Aluminum Limited (which I take to be a reference to Alcan Aluminium) Limited was identified on it as the constructor and owner. More specifically, neither Mr. Prichett nor anyone else suggested why Alcan Aluminium Limited was so identified if the construction work was being undertaken by Chemicals as a separate entity.

44. There is no direct evidence of who ran or supervised the construction project, or of who hired the construction employees who performed the work, but on Exhibit #5, Dr. Meikle is identified as the "supervisor in charge of project". Accordingly, it appears that these functions were performed by or under the supervision of Dr. Meikle.

45. In any case, it is clear that construction tradesmen, the employees who the applicants will obtain bargaining rights for in these applications, were hired to perform the construction work. It is also apparent that these construction employees were treated differently from Chemicals' regular or production employees at its Brockville plant. In that respect, there is one payroll system for these production employees, who are referred to as "full-time" or "permanent" employees, and another for "temporary" employees, which is what the construction employees who performed the work, and who are the employees in the bargaining unit in these applications, are considered to be.

46. Regular employees are paid a monthly salary with a mid-month advance, resulting in biweekly direct deposits into the employees' bank accounts, by Chemicals through Alcan Smelters and Chemicals Limited, a wholly-owned subsidiary of Alcan Aluminium Limited which provides a payroll service to Chemicals, although notwithstanding its name appears not to be a part of the division which is Chemicals. In addition to deductions for Income Tax, Unemployment Insurance and Canada Pension Plan, permanent employees have deductions made with respect to various benefits which they apparently received. In contrast, the "temporary" construction employees appear to have been paid a wage rate of $26.00 per hour plus 4 per cent vacation pay directly on a weekly basis. The only deductions made from their gross wages were from Income Tax, Canada Pension Plan and Unemployment Insurance. There is nothing to suggest that they received any benefits in addition to their wages. The construction employees were paid by cheques issued by Alcan Aluminium Limited, and the records of employment issued to them upon the termination of their employment identify Alcan Aluminium Limited as their employer. It appears that at least one plumber or pipefitter "foreman" was hired to supervise that trade. There is nothing to suggest that that was not also the case for the Millwrights.

47. In other words, this construction project was carried out in much the same way as many construction projects which owners carry out themselves. In this case, Alcan Aluminium Limited approved and financed the project. It was the owner and the constructor. I am also satisfied that whatever may be the case for the regular employees at Chemicals Brockville plant, the construction employees hired to perform the construction work there were employees of Alcan Aluminium Limited as well. It may be that the day-to-day overall supervision of their work was by Dr. Meikle or his delegate, but even if Chemicals is properly considered to be the employer of Dr. Meikle and the other permanent employees at the Brockville plant, I assume, in the absence of any evidence, to the contrary,

that this overall supervision would have been the usual overall very general supervision carried out by an owner/constructor. The fact is that construction tradesmen like millwrights, and plumbers and pipefitters require little actual direct supervision, and what they do require in that respect is generally provided by their own trade foreman. There is nothing in the evidence which suggests that it was otherwise in this case. Indeed, it seems unlikely that Dr. Meikle would be able to provide the sort of trade direction or supervision which would be required in that respect. In addition, these construction tradesmen were hired to perform construction work for and were paid by Alcan Aluminium Limited.

48. In argument, it was suggested that if the Board concluded that Chemicals is not the proper employer party, that one of the other corporations, such as Alcan Chemicals Limited (Division of British Alcan Aluminium PLC) in Great Britain or perhaps Alcan Aluminum Corporation in the United States, which are "between" Chemicals and Alcan Aluminium Limited in the Alcan structure, should be. How, wonders counsel, did the applicants manage to leap over them to get to Alcan Aluminium Limited? It is not at all clear that Chemicals reports or is responsible to the British company as opposed to an individual who happens to be the British company's managing director. But even if it does, the evidence does not suggest that the British company has anything to do with labour relations matters, and specifically construction labour relations matters involving Chemicals. The same is true for the American company, which is in any event a wholly-owned subsidiary of Alcan Aluminium Limited. It appears that Chemicals' division relationship with the American company has to do with cross border trading matters, and has nothing to do with labour relations matters. In the result, I find that the responding employer to each of these applications is properly identified as "Alcan Aluminium Limited".

49. I am not sure that “collision" is the right word, but the issue raised in these proceedings does demonstrate some of the differences between the construction industry and non-construction industries, and how that translates into differences between construction and non-construction labour relations. Whether or not these differences result in a "collision" may be a matter of debate, but it is certainly fair to say that the interface between construction and non-construction is not always smooth. The construction industry is different, and the differences between construction and non-construction labour relations have been recognized in the Acts since 1962 when the Labour Relations Amendment Act, 1961-62 was passed in response to "Goldenberg Report". Since then, the evolution of the Act has been marked by changes which reflect an increasing awareness of the differences between and requirements of construction and non-construction labour relations. This awareness has been reflected in a succession of amendments of the Act which have progressively increased the separation between construction and non-construction labour relations such that today we have a Labour Relations Act which provides for a construction industry division of the Board, and includes a separate part of the Act which is devoted exclusively to the construction industry.

50. The result is that, beginning with applications for certification, the Act treats the construction industry differently. These differences have a direct impact on how applications for certification are dealt with, and more specifically, on bargaining unit issues. The effect of this is that when an application for certification within the meaning of section 128 of the Act is made (i.e. an application by a “trade union" with respect to employees of a "employer", as defined in section 126), the Board's discretion in bargaining unit determination is both limited and directed by the construction industry provisions of the Act. (See Ellis-Don Limited, [1988] OLRB Rep. Dec. 1254, particularly paragraphs 43-45; application for reconsideration dismissed [1989] OLRB Rep. Mar. 234). In that respect, the Act (and the Board) makes certain assumptions regarding the composition of construction industry bargaining units such that traditional notions of community of interest like those described in Usarco Ltd., supra, generally do not apply. (Indeed, it is not all apparent that community of interest considerations continue to have the same significance even for non-construction purposes since Hospital for Sick Children, [1985] OLRB Rep. Feb. 266). Certainly, whether or not construction employees who are the subject of a construction industry application for certification (i.e. an application for certification within the meaning of section 128 made under section 158) share a community of interest with non-construction employees of an employer is irrelevant to the Board's considerations.

51. It is undoubtedly true that being certified under the construction industry provisions of the Act will affect the way in which an employer carries on its business, whether or not other trade unions have bargaining rights for other of its employees, and whether or not construction is the main or even a significant part of the employer's business. These effects on the employer may well be felt in the employer's non-construction activities as well. For example, issues concerning work jurisdiction may arise either as between different construction crafts or trades, or between construction employees and non-construction employees. However, the Board has long taken the view that jurisdictional dispute considerations are not relevant in applications for certification (see, for example, Semple-Gooder Roofing Ltd., [1983] OLRB Rep. Nov. 1908). In any event, that is the way things are under the Act. When an employer ventures into the construction industry it becomes subject to the same "rules" as everyone else who is active in the construction industry, whether or not its "business in the construction industry" is the main or even an important part of its overall business. The rules of the game cannot depend on who or what the employer player is, so long as it is "employer" within the meaning of section 126.

52. I turn now to the alternative proposition of the Alcan business unit; that is, that if the Board concludes, as I have, that Alcan Aluminium Limited is the proper employer party to these proceedings, that the bargaining unit should nevertheless be restricted to the Chemicals' division. Although this question may not be entirely congruent with the issue in which the Machinists and Steelworkers assert an interest, it does appear to overlap with it. Accordingly, I do not find it appropriate to deal with that issue at this time. It is more appropriately dealt with in the next phase of this proceeding.

53. However, I do think it appropriate to make the following observations. The Board has generally not found it appropriate to limit a construction industry bargaining unit in the manner proposed by the Alcan business units except on agreement of the parties, or perhaps where the "division" to which bargaining rights are restricted is either in fact the only division of the employer, or is the only part or division of the employer which conducts all of the employer's business in the construction industry as a separate entity. Further, unlike non-construction units, construction industry bargaining units generally do not depend or reflect an employer's structure. Finally, there is nothing in the Act or otherwise which precludes non-construction industry trade unions from representing construction employees within a broader primarily non-construction bargaining unit, or which preludes construction employees in such a bargaining unit or non-construction employees from performing construction work. In this respect, the attention of the parties is directed to the Board's recent decision (issued after the hearings in this phase of these applications concluded) in Ontario Hydro, Board File Nos. 0164-95-R, 0186-95-R, 0187-95-R and 025 l-95-R; decision dated February 27, 1997.

54. The hearings in these applications will continue on March 17th and 18th, and on June 18, 1997. The hearings will take place in the Boardroom, 6th Floor, 400 University Avenue, Toronto, Ontario, beginning at 9:30 a.m. each day. The purpose of the hearing is to deal with:

(1) the appropriate name of the applicants;

(2) the bargaining unit description issue;

(3) the allegations made against the U.A.; and

(4) any other matters arising out of or incidental to these applications.