The Power Workers' Union, CUPE Local 1000 v. Ontario Hydro, 1997 CanLII 15534

Ontario Labour Relations Board

[1997] OLRB REP. JANUARY/FEBRUARY 82

0164-95-R; 0186-95-R; 0187-95-R; 0251-95-R The Power Workers' Union, CUPE Local 1000 ("PWU"), Applicant v. Ontario Hydro, Responding Party v. The Electrical Power Systems Construction Association (EPSCA), The Electrical Contractors Association of Ontario (ECAG), International Brotherhood of Electrical Workers, Local 1788 (IBEW 1788), The IBEW Construction Council of Ontario (IBEW CCO), International Brotherhood of Electrical Workers, Local 1687 (IBEW 1687), Intervenors; Power Workers' Union, Canadian Union of Public Employees - C.L.C., Local 1000 ("PWU"), Applicant v. Ontario Hydro, Responding Party v. The IBEW Electrical Power Systems Construction Council of Ontario (IBEW EPSCCO), The Electrical Power Systems Construction Association (EPSCA), International Brotherhood of Electrical Workers, Local 1788 (IBEW 1788), Intervenors; Power Workers' Union, Canadian Union of Public Employees - C.L.C., Local 1000 ("PWU"), Applicant v. Ontario Hydro, Responding Party v. International Brotherhood of Electrical Workers, Local 1788 (IBEW 1788), The IBEW Electrical Power Systems Construction Council of Ontario (IBEW EPSCCO), The International Brotherhood of Electrical Workers, Local 1687 (IBEW 1687), The International Brotherhood of Electrical Workers, Local 105 (IBEW 105), The International Brotherhood of Electrical Workers, Local 353 (IBEW 353), The Electrical Power Systems Construction Association (EPSCA), Intervenors; International Brotherhood of Electrical Workers, Local 1687 (IBEW 1687), Applicant v. Ontario Hydro, Responding Party v. Power Workers' Union, CUPE Local 1000 ("PWU"), International Brotherhood of Electrical Workers, Local 1788 (IBEW 1788), The Electrical Power Systems Construction Association (EPSCA), The Electrical Contractors Association of Ontario (ECAO), Intervenors v. Group of Employees, Objectors

BEFORE: G. T Surdykowski, Vice-Chair.

APPEARANCES: Chris Paliare, Chris Dassios and John Monger on behalf of the PWU; Bob Wright and F. G. Hamilton on behalf of Ontario Hydro; No one appearing on behalf of the Group of Employees; Michael Church on behalf the Building and Construction Trades Department AFL-CIO, Canadian Office; The Ontario Allied Construction Trades Council; Graeme Aitken on behalf of the Provincial Building and Construction Trades Council of Ontario and its affiliates; Allan Minsky on behalf of the IBEW Electrical Power Systems Construction Council of Ontario (IBEW EPSCCO); The International Brotherhood of Electrical Workers, Local 105 (IBEW 105); The International Brotherhood of Electrical Workers, Local 353 (IBEW 353); The IBEW Construction Council of Ontario (IBEW CCO); The International Brotherhood of Electrical Workers, Local 1687 (IBEW 1687); Brian J. Mulroney on behalf of Electrical Power Systems Construction Association (EPSCA); Scott Thompson on behalf of the Electrical Contractors Association of Ontario (ECAO); David McKee on behalf of the International Brotherhood of Electrical Workers Local 1788 (IBEW 1788).

DECISION OF THE BOARD; February 27, 1997

I The Applications and the Issues

1. These are tour applications for certification. The three applications by the PWU were made under the "general" certification provisions of the Bill 40 Labour Relations Act, since repealed and replaced by the Labour Relations Act, 1995. They have not been brought under the construction industry provisions, notwithstanding that they clearly relate to what are indisputably construction industry craft bargaining units.

2. More specifically, Board File No. 0186-95-R is a displacement application in which the PWU seeks to displace the incumbent bargaining agent of the employees of Ontario Hydro who are covered by what is commonly referred to as the "Generation Projects Agreement" between the EPSCA and the IBEWEPSCCO (which is composed of IBEW Locals 105, 115, 120, 303, 353, 402, 530, 586, 773, 804, 894, 1687, 1739 and 1788). The scope clause in this collective agreement is lengthy, but essentially it covers journeymen and apprentice electricians (including foremen and subforemen), electrician welders, and communications electricians. In Board File No. 0187-95-R, the PWU seeks to displace IBEW Local 1788 as the bargaining agent of Ontario Hydro Employees covered by what is often referred to as the "Transmission Agreement" between Ontario Hydro and IBEW Local 1788. Again, the scope clause is lengthy, but in essence this collective agreement covers journeymen and apprentice electricians and linemen (including foremen and subforemen), communications electricians, electrician welders, various groundsmen classifications, and utility men. Notwithstanding that it has an earlier file number, Board File No. 0164-95-R is an application by the PWU "in response to" the IBEW Local 1687 application in Board File No. 025 l-95-R, and in the alternative to the PWU's other two applications.

3. Board File No. 025 l-95-R is an application under the construction industry provisions of the Act by IBEW Local 1687 for a standard (for the IBEW) bargaining unit of journeymen and apprentice linemen employed by Ontario Hydro.

4. As I indicated above, during the course of these proceedings, the Bill 40 Labour Relations Act under which the applications were brought was repealed by Bill 7 and replaced by the Labour Relations Act, 1995. Pursuant to section 3 of Bill 7's transitional provisions with respect to the Labour Relations Act, 1995, the applications are to be decided as if the current Act had been in force at all material times, except that sections 5,8,9 and 9.1 of the Bill 40 Act apply, and not sections 7, 8 and 10 of the current Act. The differences between the Bill 40 Act and the current Act are significant in terms of the process by which trade unions in this province are certified by the Board. However, in the circumstances of these applications, these differences do not affect the result or the thrust of the analysis which leads to that result (although there are some minor differences in the details or nuances of that analysis). Accordingly, in this decision, all section references will be to the provisions of the current Act, except that sections 5, 8, 9 and 9.1 of the Bill 40 Act will be referred to instead of sections 7, 8 and 10 of the current Act except where it is necessary to do otherwise.

5. The issue (albeit one which has two parts) at this point of these proceedings is whether the PWU, the applicant in three of the applications, has to be a "trade union" within the meaning of what is now section 126 (formerly section 119) of the Act, and if so, whether it is such a "trade union". Both generally and in this case, the definition of "trade union" in section 126 of the Act is considered to describe what is colloquially referred to as a "construction trade union". Accordingly, the issue upon which the parties have joined issue in this case is whether the PWU has to be, and if it does, is it a "construction trade union" within the meaning and for purposes of the Act?

6. If the answer of the first question is "yes" (i.e. it does have to be a section 126 or construction trade union), and the answer to the second question is "no" (i.e. it is not a construction trade union), then the PWU applications herein must be dismissed.

II Preliminary Matters

7. More than a year has passed since I heard the representations of the parties with respect to the following "preliminary" issues:

(a) whether the PWU must be a "trade union" within the meaning of section 126 of the Labour Relations Act in order to bring an application for certification in the construction industry, and more specifically the applications in Board File Nos. 01 86-95-R, 0187-95-Rand 0164-95-R herein;

(b) whether the PWU can apply for a province-wide bargaining unit, or whether its applications must be limited to the appropriate geographic area(s);

(c) whether the PWU can apply for a "craft" bargaining unit like the ones it has applied for in the three applications in which it is the applicant herein.

In that respect, I ruled (by decision dated October 16, 1995) that:

(a) the PWU must establish that it is a "trade union" within the meaning of section 126 (section 119 at the time) of the Labour Relations Act in order to bring an application for certification in the construction industry, and specifically the applications in Board File Nos. 0186-95-R, 0187-95-R and 0164-95-R;

(b) there is nothing which precludes the PWU from applying for a province-wide bargaining unit, but whether or not such a unit is appropriate in the PWU applications herein remains to be determined having regard to the relevant facts;

(c) the PWU can apply for a craft unit in the applications for certification herein but whether any of the craft units it has applied for are appropriate remains to be determined having regard to the relevant facts.

8. Subsequently, by correspondence dated December 7 and 19, 1995, the PWU sought reconsideration of my decision that it has to be a "trade union" within the meaning of section 126 of the Act in order to avail itself of the construction industry provisions of the Act or make its applications for certification herein. That request for reconsideration will be dealt with as part of this decision.

9. I then proceeded to hear the parties with respect to whether the PWU is a section 126 or "construction trade union" as I had concluded it must be in order to bring these applications. This required many days of hearing spaced over some nine months. But for the co-operation and good judgement of counsel, the hearing would have taken much longer. Nevertheless there were some 25 days of hearing, during which I heard viva voce evidence and received many hundreds of pages of documentary evidence. I also heard the oral representations of the parties, which were supplemented by written "outlines" or submissions. (The PWU's written submissions alone total 60 single-spaced pages). I also received the written submissions of the Ontario Allied Construction Trades Council, and the Provincial Building and Construction Trades Council of Ontario, which a differently constituted panel of the Board had given intervenor status for the limited purposes of submitted "amicus briefs" (see Board decision dated September 12, 1995).

10. After hearing the representations of the parties in that respect, I made the following evidentiary rulings at the beginning of the hearing (in a decision dated November 17, 1995):

(a) Although it will not be determinative, the PWU's constitution is relevant to my consideration of the issue.

(b) Board certificates obtained and collective agreements entered into by the PWU, and the manner in which they were obtained or have been applied are relevant to my considerations.

(c) It appears to be common ground between the parties that a trade union need not be involved exclusively with construction industry employers or have as members only persons who spent all their time doing construction work in order to be a "trade union" within the meaning of section 126 of the Act, and also that a trade union will not be such a "trade union" merely because it has some members who sometimes perform work which is or looks like construction work. Accordingly, it appears that the parties agree that there is a line which can be drawn between these two extreme positions such that the trade unions on one side of the line are construction trade unions, and the trade unions on the other side are not. They also disagree on which side of the line the PWU falls. Accordingly, it appears that the nature, amount and context of construction work done by members of a trade union will go some way towards determining which side of the line that particular trade union falls on. Consequently, "practice evidence" of what and how much construction work has been performed by PWU members, and the context in which such work was awarded and done, is relevant to my consideration of the status issue.

(d) With respect to relevant jurisdictional disputes which may have arisen with respect to the awarding of performance of construction work, I find it necessary only to hear when the dispute arose, who the parties to the dispute were, what the work in dispute was, who the work was awarded to initially, and the disposition of that dispute, whether by Board decision or otherwise, if any.

(e) With respect to the two Accords which have been put before me, the Inn on the Park Accord contains the following provision:

7.09 The parties may not grieve any difference arising Out of the Chestnut Park Accord or this IOP Accord and the resolution of any difference under these two documents may be resolved only using the dispute resolution procedure in the IOP Accord. This IOP Accord may only be raised as a defense or bar to a proceeding before any court, board, arbitrator or other tribunal.

In this case, the onus is on the PWU to establish that it has the right to bring an application for certification in the construction industry; that is, that it is a construction industry trade union. I am satisfied that the PWU should not be permitted to rely on this Accord in this proceeding. I note that the Chestnut Park Accord which has been filed before me does not contain a provision equivalent to Article 7.09 in the Inn on the Park Accord. However, the Accord which was presented to me at the hearing is dated November 15, 1994 and I believe that there is a subsequent version of or addendum to the Chestnut Park Accord. I direct the Power Workers' Union to either file a copy of that subsequent version of or addendum to the Chestnut Park Accord, or if one has already been filed to direct me to where in the materials it might be found (I note that I have not searched through the boxes of materials filed with the Board in this proceeding to see if a later or other version has been filed). In these circumstances I reserve my decision with respect to whether the PWU can rely on the Chestnut Park Accord.

(f) Evidence of the practice of the National or Parent CUPE entity is arguably relevant to my considerations. Practice evidence with respect to other CUPE locals is not.

(g) Practice evidence relating to areas outside of the Province of Ontario is not relevant to my considerations. Consequently practice evidence is to be limited to the Province of Ontario.

11. I also ruled (by decision dated November 22, 1995) that nothing in the aforesaid rulings precluded any party from taking the position, as Mr. Minsky did on behalf of his clients, that whether or not the PWU is a "construction trade union" is not a matter of work practice, trade agreements or jurisdictional disputes, but instead is a matter of representation of bargaining rights as demonstrated by certificates or collective agreements which pertain to the construction industry. Further, I ruled that the manner in which Ontario Hydro has or has been required to apply the Occupational Health and Safety Act is irrelevant to the construction trade union issue (for the reasons given in the November 22, 1995 decision).

III The Section 126 Interpretation Issue:

Reasons and the PWU's Request for Reconsideration

(a) Introduction

12. The issue which is the subject of this decision is a status issue, not a bargaining unit issue. That is, the question is whether the PWU can bring its three applications at all. It should not be confused with the question of what bargaining unit is appropriate if the PWU is entitled to bring its application. In section 1(1) of the Act, "trade union" is defined as:

"trade union" means an organization of employees formed for purposes that include the regulation of relations between employees and employers and includes a provincial, national, or international trade union, a certified council of trade unions and a designated or certified employee bargaining agency.

Section 126 of the Act is the first section in the "construction industry" part of the Act. Among other things, section 126 contains a definition of "trade union" as well. It provides that:

126. In this section and in sections 127 to 168.

"trade union" means a trade union that according to established trade union practice pertains to the construction industry. ("syndicat")

[emphasis added]

13. The section 126 definition of "trade union" has been in the Act in this form for over 30 years. What has not always been the same are the introductory words of section 126 which now specify that this definition applies to all of the construction industry provisions of the Act. Until the Bill 40 Act came into effect on January 1, 1993, that was not the case. Prior to that, what is now section 126 specified that it applied to only some of the construction industry provisions, which included what is now section 128(1) of the Act but did not include the "province-wide bargaining" provisions, including what is now section 158, the latter being the provision under which all construction industry applications for certifications must be brought (or so the Board has held - see below).

14. The PWU submitted (and continues to do so in its request for reconsideration, in which the only thing that either was not or could not have been argued at the hearing relates to the passage of Bill 7 and the PWU's argument that the general provisions of the Act continue to apply to construction industry provisions even with the passage of Bill 7) that the Bill 40 amendment to what is now section 126 was not a substantive change, and that there is nothing in either of what is now section 158 or elsewhere in the Act which prohibits a non-section 126 trade union (i.e. a non-construction trade union) from applying and being certified for a bargaining unit of construction employees under the general provisions of the Act. Counsel argued that all certification applications, including applications in the construction industry are governed by the "general" provisions of the Act, and that neither section 158 nor the construction industry provisions as a whole form a "complete code" for construction applications. The PWU submits that to conclude otherwise, as the Board has, is contrary to the general democratic underpinnings of the Act, and the principle of freedom of choice with respect to trade union representation which is enshrined in sections 2 and 5 of the Act. The PWU asserts that applying such an interpretation to section 126 effectively creates a representational monopoly for existing construction trade unions by shutting the door to new unions which may wish to enter the industry, including by voluntary recognition since the section 126 definition of "trade union" applies equally to applications for certification and voluntary recognition agreements. In its request for reconsideration, the PWU argues that:

The violence done to the core purposes of democracy and flexibility by the October 16th decision is most glaringly apparent when one considers the result from the perspective of workers in the ICI sector of the construction industry. Such workers are severely circumscribed in their choice of representative as a result of the restrictions placed upon the designated trade unions. Employees must seek representation from the craft union that has been designated to represent their craft (and cannot be represented by another employee bargaining agency) or. according to the October 16th decision, from a union qualifying under section 158(4) (old section 146(5)) as a union that according to established trade union practice pertains to the construction industry. In practical terms, this will limit the representational choice to the designated employee bargaining agency or CLAC. Few other unions can meet the test set out in 158(4), and those that can, like the PWU, will rarely be able to justify the expense of proving that they are a "trade union that according to established trade union practice pertains to the construction industry" for a typical construction industry bargaining unit. Having to choose between the designated international craft union and the CLAC, with respect, provides workers with a very limited set of options that can in no way be characterized as meaningful "free-designation". It is also a completely inflexible approach. Workers in the construction industry should be able to choose, through the democratic process, one of a number of effective Canadian unions to represent them, as can all other workers, unless this right has been expressly and unequivocally removed by legislation. It is respectfully submitted that an interpretation of the statute should be rendered that maximizes the ability of workers within the construction industry to freely designate their representative union. Such an interpretation would be in keeping with the Board's long standing historical approach to this issue.

(I note that in making its "freedom of choice" argument, the PWU did not raise or refer to the Canadian Charter of Rights and Freedoms. In any case, the freedom of association/democratic freedoms/freedom of choice argument was rejected for ICI sector employees in Arlington Crane Service v. Ontario Ministry of Labour (1988) 1988 CanLII 4802 (ON HCJ), 56 D.L.R. (4th) 209 (Ontario High Court); and it seems to me that the analysis used therein is equally applicable in these proceedings.)

15. In argument on this issue, the PWU referred to the Board's decisions in Pickering Welding & Steel Supply, [1987] OLRB Rep. Apr. 595; Manacon Construction Ltd., [1983] OLRB Rep. July 1104; and Ben Bruinsma, [1964] OLRB Rep. Feb. 647.

16. Before turning to the merits of the PWU's position, I observe that in argument and at the hearing, counsel stated that the fundamental issue which has been raised is "whether the wishes of a substantial percentage of employees should be stopped by the Board." With respect, that is not the issue. It will generally be the case that questions of interpretation of legislation like the Labour Relations Act will have a policy component to them. The section 126 issue in this case has a policy component to it. However, it is nevertheless primarily a question of statutory interpretation.

(b) Rules of the Interpretation Game

17. The "modern" rule of statutory interpretation can be simply stated as follows:

One must determine the meaning of legislation in its total context, having regard to the purpose of the legislation, the consequences of the proposed interpretation(s), the presumptions and special rules of interpretation, and the admissible extrinsic aids including the relevant legislative history.

(This is my paraphrasing and not a quote, but see Sullivan, Ruth; Driedger on the Construction of Statutes, 3rd Edition, Toronto, Butterworths, 1995).

18. Trite though it may be, it bears observing that the interpretation of a legislative provision must be plausible, and consistent with the apparent legislative purpose.

19. The modern presumptions of statutory interpretation, which as their label suggests are no more than rebuttable assumptions which do not necessarily apply in every case, can be summarized as follows:

(1) The presumption of knowledge and competence. That is, the Legislature is presumed to know the existing statutory law and jurisprudence, and how courts and tribunals function.

(2) The presumption against tautology. That is, it is assumed that the Legislature avoids superfluous or meaningless words, and does not pointlessly repeat itself. Every word is presumed to be intended and advance the Legislature's purpose. This does not mean that the Legislature cannot repeat itself, it only means that repetition is not to be assumed (see Hill vs. William (Parklane) Ltd. [1949] A.C. S30 at 546 (House of Lords)). Pursuant to this presumption, interpretations which render portions of a statute meaningless, pointless or redundant are to be avoided. However, this presumption is easily rebutted by suggesting cogent reasons for the redundant or superfluous words; because for example, of an "abundance of caution" approach. Indeed, as McGlaughlin, I. pointed out (albeit in dissent) in Chrysler Canada Ltd. v. Canada (Competition Tribunal) 1992 CanLII 68 (SCC), [1992] 2 S.C.R. 394 (Supreme Court of Canada), the fact is that Legislatures often use superfluous words.

(3) The presumption of consistent expression. That is, that within the same statute, the same words have the same meaning and different words have different meanings. Statutes are not novels, and legislators are assumed to adopt a fixed pattern of expression.

(4) The presumption of implied exclusion. That is, to express one thing is to exclude another, and a failure to mention something indicates an attempt to exclude it. This presumption is rebuttable by alternative explanations, competing considerations, and drafting errors.

(5) The presumption of coherence. That is, internal conflict is to be avoided by presuming that the parts of a statute fit together to form a rational and internally consistent framework which accomplishes the intended goal.

20. It is appropriate that statutes like the Labour Relations Act, 1995, like all Labour Relations Acts before it, be given a broad and liberal construction consistent with its fundamental purposes: that employees who wish to do so be free to bargain collectively with their employer through the trade union of their choice. However, the Act, like all legislation, must be interpreted according to the words it uses. Remedial legislation like the Act allocates rights and obligations and imposes prohibitions, and within the scheme of the legislation each limits the others. To use emotion laden words such as "democracy", "freedom of choice", and "representational monopoly" does little to further the analysis required when a question of statutory interpretation is being considered. All freedoms, democratic or otherwise, have their limits.

(c) Legislative History and the Construction Industry

21. In its request for reconsideration, the PWU has suggested that the Board has historically interpreted the Act in a way which has maximized the ability of construction industry employees to choose whichever union they wish to represent them. That is true as far as it goes. In such representation proceedings the Board has approached the issue by asking what is prohibited rather than what is permitted. That is, if it is not prohibited, it is permitted. However, the history of the Act is rather different. Since the Board is always directed by the Act, this is probably more in response to labour relations developments in the field than to the Board's historical permissive approach. (For a still accurate general description of how the construction industry operates, and of labour relations in the construction industry see Paul Weiler's Reconcilable Differences (1980, The Carswell Company Limited) at pp. 181-195 (see also pp. 195-208 for the experience in British Columbia up to that time). And see also, Rose, Joseph B., Public Policy, Bargaining Structure and the Construction Industry (Butterworths, 1980); and Briecan Construction Limited, [1989] OLRB Rep. May 417). Nevertheless, the history of the Labour Relations Act in that respect is instructive.

22. Prior to 1943, there was nothing resembling the modern Act we are familiar with today. Under the Industrial Disputes investigation Act, (R.S.O. 1937, c. 203, originally enacted in 1907) industrial disputes within exclusive provincial jurisdiction were governed by the Federal Act, (R.S.C. 1927, c. 112). Indeed, trade unions were not recognized as legal entities in Ontario. On the contrary, they were considered to be unlawful combinations, and employees had no recognized legal right to bargain collectively with their employers.

23. In 1943, Ontario made one of the first attempts in Canada to construct a compulsory collective bargaining regime. The Collective Bargaining Act, 1943 is the legislative ancestor of the current Act. It abolished the common-law doctrines of conspiracy and restraint of trade as applied to trade unions. For the first time, trade unions were recognized as legal entities for collective bargaining purposes, and employees were given the right to join and participate in the lawful activities of trade unions. This legislation was administered by the short-lived Ontario Labour Court.

24. The Collective Bargaining Act was replaced by the Labour Relations Board Act, 1944, which, as the title suggests, created the Labour Relations Board to replace the Ontario Labour Court, although the Board itself was overshadowed by the Federal War Time Labour Relations Board. By virtue of the Labour Relations Board Act, 1947, the Board became independent of that federal tribunal. That legislation was in turn superseded by the Labour Relations Act, 1948 (which also repealed the industrial Disputes Investigation Act). This was very much transitional legislation which was put in place pending the passage of the Labour Relations Act, 1950 which was already being drafted. Although that legislation included some significant changes, the Board's major function was to deal with representation matters, specifically certification and termination proceedings. Outside of this, the Board's powers were limited and rather ineffectual.

25. In succeeding years, the rights of employees and trade unions, and the Board's powers and ability to deal effectively with labour relations matters, expanded incrementally. For example, under the Labour Relations Amendment Act, 1956 the Board acquired the power to deal with trade union successorship. The Labour Relations Amendment Act, 1960 made some important changes to the Board's role and authority by giving the Board the authority to order the reinstatement of employees with or without compensation, which orders were enforceable through the Supreme Court of Ontario, and certain other limited directory powers concerning jurisdictional disputes, and also powers with respect to applications for certification and pre-hearing representation votes. But the Board's primary function continued to be to deal with applications for certification. Up to this point no distinction was made in the Act between construction and non-construction labour relations.

26. Primarily in response to the "Goldenberg Report" in 1962, the Labour Relations Amendment Act, 1961-62 was passed, and for the first time, the Act included provisions which recognized that construction labour relations were "different". For the first time, a separate part of the Act was devoted to the construction industry. It consisted of only six sections but included a definition of "trade union" in exactly the same words as are found in section 126 today, provided for certification by geographic area rather than by project or location, contained notice to bargain and conciliation provisions, and included a provision relating to when a termination application could be brought.

27. Since then, the evolution of the Act has continued to include changes reflecting an ever increasing awareness of the differences between construction and non-construction labour relations, and the need to address the peculiar needs of the construction industry directly in the Act. Construction industry certification proceedings became more expedited. In 1962, provision was made for a construction division of the Board. In 1970, in an attempt to equalize bargaining power in the construction industry, the Act was amended to establish an accreditation system for employers organizations.

28. In response to the "Franks Report", the Act was amended in 1977 to provide for a comprehensive scheme of province-wide bargaining for the traditional building trades unions in the industrial, commercial and institutional ("ICI") sector of the construction industry. This scheme was designed to encompass the unions and employers which dominated labour relations in the ICI sector of the construction industry. Further amendments, which came into effect on May 1, 1980, extended ICI bargaining rights to the entire province, prohibited selective strikes and lock-outs, and established a ratification procedure for the provincial ICI agreements.

29. In the meantime, by 1975, the Board's general powers had also been expanded to include the power to hear and determine complaints that the Act had been violated, and which enabled the Board to structure comprehensive labour relations remedies in response to breaches of the Act.

30. Since 1980, the Act has been amended many times: in 1983, 1984, 1986, 1990, 1991, 1993 (Bill 40), 1994 (Bill 80, which also relates to problems perceived to be unique to the construction industry), and in November 1995 (Bill 7).

(d) The Interpretation: The Effect of the section 126 definition of "trade union"

31. The first question in this case was whether only section 126 or "construction trade unions" are entitled to apply for certification for a bargaining unit of construction industry employees.

32. The provision of the Act in issue in this case is found in section 126, the first section of the Act under the title "Construction Industry". This section contains several definitions, which the opening words of section 126 specify apply when the defined words are used in section 127 to ]68, which are all of the construction industry provisions of the Act. (See, paragraph 12 above). The issue between the parties is whether this provision, which defines what a "construction trade" is, in conjunction with the other construction industry provisions of the Act, means that only trade unions which are such construction trade unions can make applications for certification in the construction industry.

33. I have concluded that it means precisely that, and upon further reflection I do not see what else it could mean.

34. I begin with the observation that it is not particularly helpful to use the word(s) being defined in a definition. Here, to define "trade union" the term is used twice in the definition itself. Nevertheless, the intended meaning is clear, although perhaps not obvious on first reading.

35. First, it is evident that the definition must mean something. Otherwise it wouldn't be there.

36. Second, since it provides a definition which applies to every provision in the construction industry part of the Act, it must be defining what a "trade union" is for purposes of those provisions; that is, it defines what a construction industry trade union is, and requires that wherever the term "trade union" appears in sections 127 to 128, the section 126 meaning of the term must be applied to it.

37. Third, it is different from the definition of "trade union" in section 1(1) of the Act (see paragraph 12, above). Accordingly, a section 126 "trade union" must be something other than (just) a section 1(1) "trade union".

38. Fourth, sections 127 and 152 of the Act provide that:

39. Where there is conflict between any provision in sections 128 to 144 and any provision in sections 7 to 63 and 68 to 125, the provisions in sections 128 to 144 prevail.

40. Where there is conflict between any provision in sections 153 to 167 and any provision in sections 7 to 63 and 68 to 144, the provisions in sections 153 to 167 prevail.

This suggests several things. It suggests that there is no conflict between the definition of trade union in section 126 and in the definition of trade union in section 1(1). It also suggests that in some circumstances there may be a conflict between the construction industry provisions and the other "general" provisions of the Act, and that in the event of any such conflict, the construction industry provisions and not the general provisions apply. Where there is no conflict, both apply. Accordingly, the general provisions of the Act apply to the construction industry, but only to the extent that they do not conflict with the construction industry provisions.

39. The general provisions of every modern Labour Relations Act prior to the current Act contained a comprehensive scheme which governed the way in which bargaining rights were obtained and lost. Although Bill 7 changed the basis of the certification scheme from a membership document based system to a vote based system, that remains the case under the current Act (and the mandatory vote provisions in the Bill 7 Act are neither applicable nor relevant in these proceedings in any event).

40. The general provisions of the Bill 40 Act which remain operative for the purpose of these applications (and indeed of the current Bill 7 Act), require that all applications for certification be made by a "trade union" as defined in section 1(1), specify when an application for certification can be made, deal with the determination of an appropriate bargaining unit, and specify the way in which a section 1(1) trade union can obtain a certificate from the Board.

41. One would not expect to see certification provisions in the construction industry part of the Act if it was intended that the general provisions apply equally and completely to the construction industry. But there are certification provisions in the construction industry part of the Act, which provisions clearly apply only to the construction industry. Section 128 provides, generally, that:

42. (1) Where a trade union applies for certification as bargaining agent of the employees of an employer, the Board shall determine the unit of employees that is appropriate for collective bargaining by reference to a geographic area and it shall not confine the unit to a particular project.

(2) In determining whether a trade union to which subsection (1) applies has met the requirements of subsection 8(2), the Board need not have regard to any increase in the number of employees in the bargaining unit after the application was made.

Then, section 158 provides that:

158.(l) An application for certification as bargaining agent which relates to the industrial, commercial and institutional sector of the construction industry referred to in the definition of "sector" in section 126 shall be brought by either,

(a) an employee bargaining agency; or

(b) one or more affiliated bargaining agents of the employee bargaining agency, on behalf of all affiliated bargaining agents of the employee bargaining agency and the unit of employees shall include all employees who would be bound by a provincial agreement together with all other employees in at least one appropriate geographic area unless bargaining rights for such geographic area have already been acquired under subsection (2) or by voluntary recognition.

(2) Despite subsection 128(1), a trade union represented by an employee bargaining agency may bring an application for certification in relation to a unit of employees employed in all sectors of a geographic area other than the industrial, commercial and institutional sector and the unit shall be deemed to be a unit of employees appropriate for collective bargaining.

(3) A voluntary recognition agreement in so far as it relates to the industrial, commercial and institutional sector of the construction industry shall be between an employer on the one hand and either,

(a) an employee bargaining agency;

(b) one or more affiliated bargaining agents represented by an employee bargaining agency; or

(c) a council of trade unions on behalf of one or more affiliated bargaining agents affiliated with the council of trade unions, on the other hand, and shall be deemed to be on behalf of all the affiliated bargaining agents of the employee bargaining agency and the defined bargaining unit in the agreement shall include those employees who would be bound by a provincial agreement.

(4) Despite subsections (I) and (3), a trade union that is not represented by a designated or certified employee bargaining agency may bring an application for certification or enter into a voluntary recognition agreement on its own behalf.

42. Section 158 is found in the "province-wide bargaining" part of the construction industry part of the Act. But it is quite clear that it applies to much more than the legislated province-wide bargaining structure established for the ICI sector of the construction industry. Subsection 158(1) relates to applications for certification which pertain to the ICI sector. Subsection 158(2) specifically deals with applications for certification which do not pertain to the ICI sector by trade unions which are represented by an employee bargaining agency (and are therefore part of the fabric of province-wide bargaining in the ICI sector). Subsection 158(3) relates to voluntary recognition agreements by trade unions which are part of the province-wide bargaining scheme. Subsection 158(4) relates to applications for certification by trade unions which are not affiliated bargaining agents of a designated employee bargaining agency (as defined in section 151(1) of the Act). Each of subsections 158(1), (2) and (4) speak in terms of the bringing of an application for certification by a "trade union". Pursuant to the introductory words of section 126, these must be "trade unions" as defined therein.

43. It has been suggested that the Board has concluded that section 158 is a "complete" or "exhaustive" code for construction industry applications for certification. With respect, this is not an entirely correct reading of the Board's jurisprudence, or of the Act. The proper reading of the Act, and the proposition for which the Board's jurisprudence on the question stands, is that section 158 applies to all construction industry applications for certification, and indeed that it occupies much of the field in that respect. But section 158 is not where one starts or where one stops.

44. One starts with section 5 of the Bill 40 Act (revised and replaced by section 7 of the current Act) which describes when an application for certification can be made. Once a timely application is made, one moves to section 6 (of the Bill 40 Act; which now exists in a modified form in section 9 of the current Act) which, among other things, gives the Board a broad general discretion to determine the appropriate bargaining unit. However, when an application for certification is captured by section 128, that provision operates to direct it to the construction part of the Act, including section 126. And, as the Board observed in Ellis-Don Limited, [1988] OLRB Rep. Dec. 1254 (application for reconsideration dismissed [1989] OLRB Rep. Mar. 234), when it comes to applications for certification in the construction industry, this discretion is limited and directed by (what is now) section 158, for as the Board pointed out the Ellis-Don Limited, supra, decision (at paragraphs 43 to 45):

45. Section [158] covers all applications for certification in the construction industry (see Clarence H. Graham Construction Ltd.. [1981] OLRB Rep. Sept. 1195; Ninco Construction Ltd.. [1982] OLRB Rep. Nov. l692; Manacon Construction Ltd., [1983] OLRB Rep. Mar. 407 and July 1104). Under the province-wide bargaining provisions of the Act, some construction industry trade unions are designated to represent certain specific trades or crafts in bargaining in the ICI sector of the construction industry. A trade union represented by a designated employee bargaining agency may, at its option, apply for certification under either section [158(1)] or [2], or enter into voluntary recognition agreements under section [158(3)]. Construction trade unions which are not represented by a designated employee bargaining agency, and are therefore not covered by sections [158(1)-(3)] of the Act, such as the Christian Labour Association of Canada, can apply for certification or enter into voluntary recognition agreements in the construction industry under section [158(4)].

46. The designation orders issued pursuant to section 153 of the Act describe the provincial units of employees contemplated by the province-wide collective bargaining scheme established by the Act for the ICI sector of the construction industry in terms of trades and designate, for each such bargaining unit, an employer and employee bargaining agency. In effect, such orders designate the trade(s) which "belongs" to each employee bargaining agency and its affiliated bargaining agents. Employee bargaining agencies, and their affiliated bargaining agents, can only represent, in the province-wide ICI collective bargaining scheme, those employees who are in a trade they have been designated to represent (see Ninco Construction Ltd., supra: Manacon Construction, supra; Superior Plumbing and Heating Ltd., [1986] OLRB Rep. Nov. 1589; D. E. Wittner Plumbing and Heating Limited, [1987] OLRB Rep. Oct. 1228). Consequently, in applications for certification under section [1581(l), the Board, although not necessarily bound to use the precise words of the designation order, cannot describe an ICI sector bargaining unit in a manner which is inconsistent with the relevant designation order. To accommodate this designation system, and recognizing that trade union representation in the construction industry has historically been along trade or craft lines, the Board's general practice, in applications under section 158, is to describe bargaining units in terms of the relevant trade and using the words of the relevant designation order.

47. Consequently, while section [158] does fetter the Board's discretion under section 6(1), it has preserved and codified the Board's historical willingness (see paragraph 40 and 41 above) to carve out a craft unit from an existing construction industry bargaining unit. Indeed, the Board has viewed such carve outs as being mandatory in section (1581(1) applications (see for example Crown Electric, [1982] OLRB Rep. May 660 Duron Ottawa Ltd.. supra; Bett Bruinsma and Sons Limited. [1984] OLRB Rep. Nov. 1542; Aero Block and Precast Ltd.. [1984] OLRB Rep. Sept. 1166). Even in circumstances where a (non-craft) incumbent trade union held bargaining rights for a broader bargaining unit, which included the applicant's trade, in other than the ICI sector, the Board found it appropriate to permit a trade union applying for certification under section [1581(1) to carve out its craft from the existing bargaining unit in the "appropriate geographic area" contemplated by that subsection (D. L. Stephens Contracting Niagara Limited. [1980] OLRB Rep. Oct. 1384). (And see, Shearnall Forming (East) Ltd., [1989] OLRB Rep. Dec. 1254; Reitzel Heating & Sheet Metal Ltd., [1988] OLRB Rep. Dec. 1310).

I observe that section 128 (formerly section 121) also directs the Board's discretion in that respect in construction industry applications.

45. Once the bargaining unit is determined, one then moves to section 8 (of the Bill 40 Act remember), which provides the parameters for the disposing of all applications for certification, except that in construction industry applications, sections 159 and 160 applies to applications made under section 158.

46. In other words, the construction industry provisions in sections 126 to 168 are superimposed over the general provisions of the Act, and supplant them to the extent that where the construction industry provisions speak to a matter the general provisions do not apply.

47. Indeed, with the proclamation of the Bill 40 Act and continuing under the current Act, after a determination under the general provisions of the Act of whether an application for certification is timely, the construction industry provisions do provide a "complete code" f'or applications for certification in the construction industry. The general provisions apply to such applications only to the extent that they are incorporated into the construction provisions. That is what sections 127 and 152 mean when read together they provide that sections 128 to 144 and 153 to 167 prevail over sections 7 to 63 and 68 to 125. Indeed, even within the construction provisions themselves, section 152 provides that sections 153 to 167 prevail over sections 126 to 144. The structure of sections 158, 159 and 160, and the way that these provisions refer back to the general provisions in subsections 8(3) to (9) and 10(2) (of the Bill 7 Act; sections 9 and 9.1 of the Bill 40 Act, which are the operative provisions in this case), suggests that if an application which relates to the construction industry is timely, one moves immediately to section 158. Where, as in this case, the section 1(1) trade union making the application (which all applicants for certification must be) is not an aff'iliated bargaining agent, the application can only be made under subsection 158(4). The opening words of this subsection ("Despite subsections (I) and (3) ...") do not take one back to the general provisions of the Act because they refer to a "trade union", which must be a section 126 "trade union" and not just a section 1(1) trade union, that is not represented by an employee bargaining agency; that is, one that is not an affiliated bargaining agent. Subsection 158(4) operates as an exception to the province-wide bargaining scheme and was intended to permit section 1(1) trade unions which were not part of the province-wide bargaining scheme, but which had established themselves as section 126 or construction trade unions to bring applications for certification or enter into voluntary recognition agreements in the construction industry. Not only is this not a way into the construction industry for non-section 126 trade unions, it occupies the field and supplants the

general certification provisions for applications in the construction industry by trade unions which are not participants in the province-wide bargaining scheme.

48. In the result, the legislation treats construction industry applications for certification differently. The legislation recognizes that construction industry labour relations are different from other labour relations, and directs the Board to take heed of these differences when dealing with applications for certification.

49. In Pickering Welding, supra, a trade union within the meaning of section 1(1) which it was conceded was not also a section 126 "trade union" made an application for certification with respect to construction employees of a construction industry employer. The Board rejected the employer's argument that the applicant was not entitled to bring an application for certification with respect to the construction industry because it was not a section 126 or construction trade union as follows:

50. Despite the ingenuity and initial attractiveness of counsel's argument, we do not accept counsel's interpretation of the Act. While section 144(1) of the Act stipulates the identity of an applicant that seeks certification in relation to the industrial, commercial and institutional sector of the construction industry, section 144(5) states:

(5) Notwithstanding subsections (I) and (4). a trade union that is not represented by a designated or certified employee bargaining agency may bring an application for certification or enter into a voluntary recognition agreement on its own behalf.

17. The term "trade union" in section 144(5) is not defined by section 117(f) since section 117 opens with the words "In this section and in sections 118 to 136".

18. Additionally, the term "trade union" is not defined in section 137, the definition section relating to province-wide bargaining. Therefore we are left only with the definition of trade union in section 1(1 )(p) of the Act. As we found in paragraph 3 above, the applicant is trade union as defined by that section.

19. Counsel argues that the failure to amend section 117 to include the province-wide bargaining provisions within its ambit was a mere oversight of the Legislature since the province-wide provisions were added to the Act after sections 117 to 136 were part of the Act.

20. The scheme of provincial bargaining in the construction industry contemplates a broadly based bargaining structure in respect of employers whose employees are represented by trade unions that are affiliated bargaining agents of employee bargaining agencies. That scheme is supported by provisions such as section 146 that prohibit collective agreements or other arrangements affecting employees represented by affiliated bargaining agents except for a provincial agreement. Nevertheless. section 144(5) expressly provides that employees may be represented by trade unions other than affiliated bargaining agents and those unions and the employees they represent fall outside the scheme of province-wide bargaining to the extent of the bargaining rights held by those trade unions.

21. The applicant is not a trade union within the meaning of section 117(f). Therefore, it cannot take the benefit of the construction industry provisions of the Act, and in particular, section 119. The number of employees in the bargaining unit and the description of the appropriate bargaining unit must be determined by the Board without regard to section 119, since the applicant is not a trade union as contemplated by section 119.

22. Section 119 does not stipulate that only trade unions within the meaning of section 117(f) may apply to represent employees of employers in the construction industry. Section 119 becomes applicable, as the opening words of that section make clear, only where a trade union within the meaning of section 117(f) applies for certification. Unlike section 144, section 119 does not provide a separate vehicle for obtaining certification in respect of construction industry employers and employees. Indeed, section 119(2). which provides:

In determining whether a trade union to which subsection (I) applies has met the requirements of subsection 7(2), the Board need not have regard to any increase in the number of employees in the bargaining unit after the application was made

expressly contemplates that an applicant for certification must still satisfy the requirements of section 7. Certification must still be sought pursuant to sections 5. 6. and 7. The addition of section 144 to the Act does not change the interpretation of section 119 because the definition of trade union used in that section is not applicable to the term "trade union" in section 144(5).

23. Nevertheless, the applicant is a trade union within the meaning of the Act and it is not an affiliated bargaining agent as that term is defined by section 137(1 )(a). Nothing in section 144 or in any other section of the Labour Relation.s Act prohibits the applicant from seeking certification of construction industry employees of a construction industry employer. Since the applicant is nor an affiliated bargaining agent, if it is certified it would not be precluded by section 146 from negotiating and concluding a collective agreement with respondent in respect of the industrial, commercial and institutional sector of the construction industry because the employees it would be representing would not be represented by an affiliated bargaining agent. The applicant is not an affiliated bargaining agent. Therefore the limitation on the (employees' right to select a bargaining agent of their own) choice that is discussed in cases such as Clarence H. Grahatn Construction Litnited. [1981] OLRB Rep. Sept. 1195; Diversified Sheet Metal Limited, [1981] OLRB Rep. Nov. 1575; Ninco Construction Limited, [1982] OLRB Rep. Nov. 1692 and Manacon Construction, [1983] OLRB Rep. March 407; application for reconsideration dismissed, [19831 OLRB Rep. July 1104; is simply not applicable here.

24. Neither the applicant nor any of the employees for whom it will hold bargaining rights if certified will be part of the scheme of province-wide bargaining described in the Act. Any collective bargaining in which the applicant engages that might affect employees it represents who are in the construction industry and work in the industrial, commercial and institutional sector would not be subject to section 146 of the Act. Therefore, we are satisfied that the applicant may bring this application for certification under the general provision of the Act, pursuant to sections 5, 6 and 7.

25. In Pickering Welding, supra, the Board concluded that the applicant could be certified to represent construction industry employees because the definition of a construction trade union in what is now section 126 did not apply to prohibit it from doing so; that is, because the section 126 definition of "trade union" did not then apply to what is now section 158. It was this specific conclusion which led the Board to go on to conclude that an all employee unit, so described, was the appropriate one. That is, the Board described the bargaining unit in the manner in which non-craft non-construction bargaining units are generally described, and not in the manner in which construction units were or are typically described (see the subsequent decision in Pickering Welding & Steel Supply, [1987] OLRB Rep. June 923). In that respect, Pickering Welding, supra, was neither a groundbreaking decision, nor a particularly remarkable one. It had already been established that a non-construction trade union could apply to be certified for a bargaining unit of construction employees under the general provisions of the Act (see, for example, Fielding Construction Co., [1970] OLRB Rep. Jan. 1205; Rexdale Heating Ltd., [1974] OLRB Rep. Mar. 115; AN. Shaw Restoration Ltd., [1981] OLRB Rep. Mar. 241; and the Canadian Construction Workers Union cases cited at paragraph 97 below).

26. It is readily apparent that the Board reverted to the general certification provisions when a section 1(1) trade union which did not meet the requirements of the what is now section 126 definition made an application for certification in the construction industry. However, it is not clear why the Board found it appropriate to do so after what is now section 158 was put into the Act. I respectfully suggest that the Pickering Welding, supra, analysis more logically led to the conclusion that any section 1(1) trade union could bring an application for certification in the construction industry under subsection 158(4), something which was both consistent with the scheme of the Act and the Board's jurisprudence prior to the Bill 40 Act. Such a determination would have left all construction industry applications under what is now section 158 but would have maintained a separation between section 126 or construction and non-section 126 or non-construction trade unions since only construction trade unions could have taken the benefit of provisions, such as what is now section 128, to which section 126 applied. The result in Pickering Welding, supra, would have been the same.

27. Perhaps counsel for the employer in the first Pickering Welding, supra, was right when he made the legislative oversight argument described in paragraph 19 of that decision (quoted in paragraph 47 herein). In applying the presumption of knowledge and competence, it appears that the change in the Bill 40 Act to the opening words of what is now section 126 was in response to cases like the two Pickering Welding, supra, decisions, and was intended to underline the Legislature's intention that only construction trade unions be able to obtain bargaining rights for construction employees of construction employers. In any case, the amendment to the opening words of section 126 has made the Pickering Welding, supra, analysis unsustainable. The Board is constrained to acknowledge and give effect to this difference.

28. The presumption against tautology requires that the Board not assume that when it enacted the definition of "trade union" in section 126 the Legislature engaged in an exercise which is merely repetitive or otherwise meaningless. The definition of trade union in section 1(1) is different from the definition of trade union in section 126. To accept the PWU's argument that any trade union; that is, as defined in section 1(1), satisfies the section 126 definition as well would be to give section 126 an interpretation which would make it completely meaningless or redundant. Not only does the presumption against tautology require that such interpretations be avoided, it is readily apparent that in the scheme of the Act only certain section 1(1) trade unions; that is, only trade unions which "according to established trade union practice pertaining to the construction industry" are captured by the section 126 definition.

29. In this case, the presumption of consistent expression cannot apply. Indeed, it would seem that this will invariably be the case when the term being defined is also used in the definition. In this case, not only does the defined term "trade union" in section 1(1) mean something different from the defined term "trade union" in section 126, the first "trade union" in the definition in section 126 does not mean the same thing as the second "trade union" in that definition.

30. Finally, in applying the presumption of coherence, it appears that the Act contemplates a separation between non-construction labour relations and labour relations in the construction industry, and that this separation, is accomplished by limiting access to the construction industry provisions of the Act to construction trade unions (and employers).

31. In the result, I am satisfied that the following paraphrasing of the definition of "trade union" in section 126 demonstrates the interpretation which must be given to it:

"trade union" means a section 1(1) trade union that according to established practice in the construction industry pertains to that industry.

That is, a union which does not fall within the section 126 definition cannot bring an application for certification in the construction industry.

57. Does this circumscribe the freedom of choice which construction industry employees have under the Act? Yes it does. It limits the choice of trade unions available to construction employees who are employed by a construction industry employer, and who wish to be in a construction bargaining unit represented by a trade union for purposes of dealing with their employer in employment related matters. If that is the case, they can only choose as between section 1(1) unions which also satisfy the section 126 definition; that is, section 1(1) unions which are also section 126 or construction trade unions. The question is not whether this is somehow wrong in some broad or philosophical sense. A philosophical debate has its place at the legislative stage, and may have a place at an interpretive stage

where there are two or more equally plausible interpretations of the legislation available. The mere fact that a provision of the Act restricts the freedom of choice which is expressed in sections 2 or 5 of the Act does not mean it is open to the Board to in effect amend the legislation by ignoring the restrictive provision. As I have already indicated, all freedoms are restricted, often in the very legislation which grants them.

58. The striking thing about the evolution of the Labour Relations Act in this province is that the fundamental purposes of the legislation have remained the same throughout, and that changes to the legislation have been made primarily to further those fundamental purposes; namely:

(a) to ensure the right of employees to freely choose whether or not to join a trade union, and if they choose to do so, to bargain collectively with their employer through that trade union; and

(b) to facilitate the orderly and expeditious resolution of workplace disputes.

This has been accomplished by structuring a legislative scheme which establishes the means by which bargaining rights are obtained or lost, primarily on the basis of some expression of the wishes of employees; by providing a structure for collective bargaining; by requiring that workplace disputes during the currency of a collective agreement be resolved through a grievance arbitration process without recourse to economic sanctions; and by attaching a duty of fair representation to representation rights (for trade unions, trade union organizations, and employers' organizations). The Act creates rights and obligations, and provides for a system of checks and balances for the competing rights of employees, trade unions and employers. Generally, these rights are mutually exclusive such that the rights of one end where the rights of another begin, or the exercise of the rights of one is checked by the existence of the obligation to or the right of another.

59. Further, and most importantly for purposes of these applications, the separation between construction and non-construction labour relations has evolved along with the Act so that today, a significant part of the Act is devoted exclusively to the construction industry. Even in areas covered by the general provisions, the construction industry part of the Act has provisions which supplement or supplant them. This is so for the certification process (already described above), the bar which applies when the Board dismisses an application for certification (compare subsection 10(3) to subsection 160(3)), the structure given to collective bargaining, including notice to bargain and conciliation provisions (section 129 to 131, and 161 to 163), unlawful strikes and lock-outs (sections 144 and 164), the ratification of strikes and collective agreements (the mandatory provisions of sections 44 and 79(3) and (4) do not apply to the construction industry), termination provisions (section 132), accreditation, and access to the Board for the arbitration of grievances under construction collective agreements (section 133) on an expedited basis (something which is not available outside of the construction industry).

60. In the result, the Act began with a representation scheme which did not distinguish between construction and non-construction. Then construction industry provisions were introduced and the separation of non-construction from construction began. The succession of amendments to the Act has progressively increased this separation. At the same time, the ability of construction employees to "freely" choose a trade union has been progressively restricted. When there was no restriction, construction employees could choose from any trade union which demonstrated an interest to represent them. The fact is that few non-construction unions did. Later, construction employees who wanted to have the benefits of the construction industry provisions of the Act, including for example the grievance arbitration provisions in what is now section 133, had their choice restricted to construction trade unions; that is, trade unions which had demonstrated an interest and established a presence in the construction industry. With the introduction of provincial bargaining, the choice construction employees had was restricted even more, so that construction employees who wish to have the benefit of the province-wide collective bargaining scheme for the ICI sector of the construction industry can only choose between trade unions which are affiliated bargaining agents of a designated employee bargaining agency. And, because of the craft or trade nature of both the construction industry and the traditional "building trades" unions which are active in the construction industry, this "choice" generally comes down to only one, or sometimes two trade unions. Even if construction employees are prepared to consider less traditional building trade unions, their choices are still quite limited (to unions like, for example, the CLAC, the Canadian Construction, Building Maintenance and General Workers Union (NCCL), and a very few others which have established themselves in the field).

61. The PWU submits that if the Board follows this course it will"... effectively create a representational monopoly for existing unions that have established rights by removing the mechanism by which new unions enter the industry. Given the democratic underpinnings of the Act, this cannot be the result of a correct interpretation of the legislation." (Quote from December 7, 1995 letter from counsel).

62. It would be more correct to call it a representational oligopoly, but the PWU's hypothesis is clear. It is also probably correct, at least insofar as it suggests that the result is a representational oligopoly in the construction industry. But that is the natural consequence of the development of the industry and the evolution of the Act. It is not the result of the Board's decision in this case, or of some policy, practice or desire of the Board.

63. General democratic principles are not some sort of trump card which can be played to override the legislation. Nor is representational oligopoly or even monopoly unknown outside of the Labour Relations Act. Until recently in Ontario, public sector employees have had little or no choice about even whether they would be represented by a trade union much less which union that would be. In the case of teachers, the School Board's and Teachers' Collective Bargaining Act (often referred to many who deal with it as "Bill 100") establishes a representational structure which is mandatory and monopolistic. Not only do Bill 100 teachers (i.e. teachers other than occasional teachers) continue to have no choice of which trade union will represent them, they do not even have the freedom to choose whether they will be represented by a trade union. Under the Labour Relations Act today, there is only limited truth to the Board's observation in Duron Ontario Limited, [1976] OLRB Rep. Nov. 734 (at paragraph 13) to the effect that no trade union possesses a monopoly on the representation of any bargaining unit of employees, at least insofar as the construction industry is concerned. In that respect, I observe that that decision was made prior to the legislation of province-wide bargaining in the ICI sector. Hence, there was no equivalent to the present section 158, and accordingly the Board determined the appropriate bargaining unit under section 6(1), but having regard to section 128 (and in any case the real issue in that case was whether a craft union could be certified for other than its craft - which an affiliated bargaining agent would be prohibited from doing in the ICI sector today).

64. But does this mean that the representational choice of construction employees is limited to construction trade unions? Perhaps not entirely, at least for construction employees who are not concerned about access to the specialized construction provisions in the Act. The Board has long considered any employer which uses its own employees to perform construction work to be an "employer" within the meaning of section 126 of the Act; that is, an employer in the construction industry for purposes of an application for certification, even if construction work is not the primary or even a significant part of the employer's business (see, for example, Ridsdale Steel Fabricators Inc., [1987] OLRB Rep. Apr. 60], and the various School Boards cases). Accordingly, the Board has considered it appropriate to consider an application for certification for construction employees of such employers to be made under section 158; that is, under the construction industry provisions of the Act. Prior to the Bill 40 amendment such applications for certification were allowed to be made under the general or construction provisions of the Act (but see my observations in paragraph 51, above). If they were made by a non-construction trade union (as they rarely were), they were considered under the general provisions (as per Pickering Welding, supra). If they were made by a construction trade union, (as they generally were), they were considered under the construction provisions of the Act.

65. In applications under the construction provisions, the bargaining unit has always been made up exclusively of construction employees. Non-construction employees have not been allowed in them. That has not been the case in non-construction applications. For example, it is well-known that many large manufacturing employers employ persons who spend all or a majority of their time performing work which can fairly be considered to be construction work. (For example, automobile manufacturers employ individuals, including electricians, who perform work which is the kind of repair work which would be considered to be construction work, or, less commonly, even new construction). Generally, such unrepresented employees are not excluded from the usual "all employee" bargaining unit under a non-construction or general application. There is nothing in the Bill 40 Act or the current Act which precludes this. Accordingly, construction employees can be represented by a non-construction trade union, although as a practical matter they are generally so outnumbered in a non-construction unit that whether or not they are will turn out to be more the result of choices made by their fellow (nonconstruction) employees than their own choice (unless they find themselves in the kind of "swing vote" scenario where as a group they are of like mind and a non-construction group is equally divided on the issue of being represented by an applicant non-construction trade union).

66. For all of these reasons, I am fully satisfied that in order to bring its application for certification herein the PWU must establish that it is a trade union within the meaning of section 126 of the Act; that is, a construction trade union. I see no reason to reconsider my original ruling in that respect. The PWU's request for reconsideration is therefor dismissed.

IV Section 126 Applied

(a) Background and Post-Hearing Developments

67. Notwithstanding the "official" position taken by IBEW Local 1788 in these proceedings (at least until after the hearing concluded - see below), the PWU applications herein are very much a friendly raid by the PWU of IBEW Local 1788, considered to be the IBEW "Hydro Local". The IBEW Local 1788 position at the hearing was put forward by persons put in place by the parent International Union to replace the executive and officers who the International had in effect deposed. Subsequently, in a local union election held pursuant to a settlement of some of the litigation concerning the recent internal IBEW troubles, a new slate of officers was elected for IBEW Local 1788. This new executive has apparently discharged its former counsel because, by letter dated September 30, 1996, a newly retained counsel wrote to the Board and purported to revoke "all legal positions taken on its behalf that would delay the counting of the ballots", and urging the Board to bring these proceedings to a conclusion by counting the ballots cast in the representation votes and "respecting" the results thereof. In subsequent correspondence, Mr. Minsky indicates his clients' objection to this, and submits that the positions taken by the IBEW Local ]788 at the hearing are binding on the new executive, and that they cannot be revoked. Not surprisingly, the PWU has written in support of the position of the new IBEW Local 1788 executive and counsel. The International has responded by placing the IBEW Local 1788 "under supervision" or in trusteeship. Although this supervision or trusteeship appears to have been exercised only to a limited extent so far, this puts IBEW Local 1788 in essentially the same or potentially the same position (it appears) it was in prior to the recent local union elections. All of this is the subject of a further complaint to the Board.)

68. I see no reason why a party cannot change its position in a matter at any time prior to a decision being made. Not only is this a fairly common occurrence, it is desirable because it can narrow the issues which require determination, and on occasion can even lead to a settlement during or even after a hearing. However, I need not determine whether that is so in these proceedings, or whether there is some cogent reason why the IBEW Local 1788 cannot change its position in this case. The fact is that IBEW Local 1788 has not been the only party standing in the PWU's way in these applications. All of the other parties, including the responding employer, have been as well. Consequently, the issues remain the same. So does the evidence; and I will not ignore the arguments. Further, the Board has already ruled that the PWU has to be a section 126 trade union in order to be able to bring its applications herein. Consequently, even if all parties agreed, it is not at all clear that the Board could or would dispense with determining the issue, just as the Board cannot, or at least will not, dispense with the determination of whether or not a new entity which applies for certification is a "trade union" within the meaning of section 1(1) of the Act even if all parties agree that it is.

69. Accordingly, none of this changes anything, although it does serve to underline that the raid is friendly insofar as IBEW Local 1788 is concerned (although unfriendly as far as the other parties, particularly the IBEW International, are concerned).

70. I also note that the Board has recently received some 200 letters from individuals who purport to be members of IBEW Local 1788 and "one of 242 people on the voters' list" for the votes which were held in these applications, in which these individuals express the view that "we as workers should have the right to choose the union to be our bargaining agent", and "urging" that the ballots be counted "without delay". It is readily apparent that someone on the PWU's side of this litigation has orchestrated this letter writing campaign in an attempt to influence the Board. All of the letters are in a prepared form which the individual has dated and signed, and all but a very few have been sent to the Board in an envelope bearing a printed address label. All of the letters are addressed to the Chair. Of course, the Chair is not seized with this matter, I am. Accordingly, the decision in these applications must be, and will be, made by me, not by the Chair or anyone else.

7 I. I will give both the unidentified orchestrator(s) and the individual letter writers the benefit of the doubt and assume that they did not intend to have the Chair try to influence my decision in these matters. Further, I understand the frustration that the employees must be feeling, their desire and that of the parties for a decision, and that any avoidable delay is very undesirable. However, speed is not the only objective. This has been a lengthy proceeding which has raised complex issues of great significance not only to the employees and parties involved, but also to the construction industry as a whole. Like every matter which comes before the Board, these applications deserve a decision which is made after the Board has given due consideration to the evidence and representations of the parties. Surely, none of them would have it any other way. This takes longer in some cases than in others. Unfortunately for all concerned, this is one of those "longer" times.

72. In any event, the letter campaign is quite irrelevant to the Board's consideration of the issues of whether, first, the PWU must be a section 126 trade union in order to bring its applications herein, or second, if so, whether it is such a trade union. That is, whether or not the PWU is entitled to represent the employees who are the subject of its applications is not a matter of their wishes in that respect. It may be that the PWU wishes to represent the employees and that the employees wish the PWU to represent them, but the question is whether or not the PWU can do so. That is what this whole case is really about.

73. In any case, this is, as I have already observed, very much a friendly raid. The PWU's applications have almost certainly been prompted by recent developments in the electrical power systems sector involving the various parties herein. In no particular order, (assuming that an order can be discerned), there has been a continuous evolution in the structure and operations of Ontario Hydro, there has been serious internal in-fighting within the IBEW in which the IBEW Local 1788, with some support from IBEW Local 353, has been pitted against the International, the IBEW - EPSCCO and the other IBEW Local Unions, and there has been a jurisdictional struggle between the PWU on one hand and the building trades unions, and particularly the IBEW (and even more particularly IBEW Local Union 1788), on the other.

74. It seems that changes at Ontario Hydro have become a feature of the electrical power systems sector, and are almost as inevitable as death and taxes. These changes, together with the downturn in both Ontario Hydro's operations, and in the construction industry in general, have almost certainly contributed to the IBEW's internal problems, and to the jurisdictional struggle between the PWU and the building trades unions, particularly the IBEW.

75. In the recent IBEW Bill 80 case International Brotherhood of Electrical Workers, [1996] OLRB Rep. Feb. 70), IBEW Local 1788 complained that the International, its parent, had violated sections 147 and 149 of the Act by altering its jurisdiction without just cause or notice, and therefore improperly interfered with its autonomy. The change in jurisdiction in issue was in the electrical power systems sector, and specifically under the so-called Generation Projects Agreement and the Transmission Agreement. After a lengthy hearing, the Board dismissed the IBEW Local 1788's complaint. The Board held that the flaws in the process adopted by the International were not fatal, and that the International had just cause to alter the IBEW Local 1788's jurisdiction in the manner it did. Subsequently, and to state that there was a connection with the Bill 80 case is to state the obvious, there was further litigation internal to the IBEW, and specifically, regarding a trusteeship imposed by the International on IBEW Local 1788 and the concomitant removal from office of the executive and officers of the Local who were at the forefront of the Bill 80 complaint against the International. Eventually, this lead to an agreement pursuant to which the recent IBEW Local 1788 elections referred to above were held, a slate of candidates sympathetic to the ousted former officers and executive of the Local (at least some of whom have since become employed by the PWU and have been directly involved in the PWU's applications herein) was elected and purported to change the position that the International's installed trustees took in these proceedings, and finally to what is at least further International supervision (and probably a re-imposition of the trusteeship).

76. At the same time, serious work jurisdiction problems had arisen at Ontario Hydro, primarily between the PWU and the various building trade unions who held bargaining rights with respect to Ontario Hydro, but particularly with IBEW Local 1788 - the IBEW "Hydro Local" (at least So far). This resulted in some 200 jurisdictional dispute complaints being filed with the Board, including one, which in the (unfortunate) vernacular popular at the time was referred to as the "mother of all JD's". Ultimately, these led to what are known as "the Chestnut Park Accord (generation projects)" and "the Inn on the Park Accord (lines, stations, switchyards and telecommunications)". (Although I ruled that the PWU could not rely on the Inn on the Park Accord in this proceeding, it is an inextricable part of the background, and is relevant as such.)

77. Both the PWU and the building trades unions perceived that their respective work jurisdictions at Ontario Hydro were being eroded, and that what each was losing the other was getting. Accordingly, both sides fought to protect their jurisdictional "turf'. Initially, the essence of the line which was drawn in that respect had maintenance work on the PWU side and construction work on the building trades union's side. Of course, this was a rather broad and blurry line, both because it can be difficult to draw a sharp line between maintenance work and construction work, and because in their more candid moments the PWU conceded, as it had to and as it seeks to trade on in these proceedings, that its members performed construction work, and the building trades unions (perhaps more reluctantly) conceded that their members performed non-construction (i.e. maintenance work). Even then, however, to the extent that any of the work in issue was construction, the PWU claimed it as part of its work jurisdiction. Similarly, the building trades unions claimed as much work as possible for their members.

78. It seems fair to observe that the breadth of the legislative definition of "construction industry" in section 1(1) of the Act has contributed significantly to the problem of drawing a clear distinction between construction work on one hand and maintenance or non-construction work on the other, a problem which has bedevilled the industry and the Board for many years; and more specifically to the jurisdictional struggle between the PWU and the building trades unions at Ontario Hydro.

79. It appears that the PWU was not doing well in its jurisdictional struggle with the building trades unions, at least not in the proceedings before the Board which had become the primary battlefront (see, for example, Ontario Hydro, [1993] OLRB Rep. Nov. 1167) (the "LAN" case) and Ontario Hydro, [1994] OLRB Rep. Oct. 1404 (the "Hawkesbury" case)). Although the Board's decisions in that respect did not explicitly rule in favour of the building trades unions on the basis that the work in dispute was construction work, it appears that the PWU perceived, probably correctly, that the Board considered that where all other factors were more or less equal, construction work should be done by the building trades unions and not by the PWU.

80. Accordingly, the PWU became receptive to the notion of a non-litigation resolution which would preserve as much as possible of what it considered to be the historical distribution of work at Ontario Hydro, such that its members would continue to do the work they had historically done.

81. For their own reasons, the building trades unions were also interested in a non-litigation option. The construction unions undoubtedly also took from the proceedings before the Board that the maintenance work their members had historically performed at Ontario Hydro was in jeopardy. And perhaps they did not share the PWU's perception of where a litigation solution would lead to.

82. The third part of the puzzle was Ontario Hydro itself, which I suspect was interested in maintaining the operational flexibility it perceived the jurisdictional status quo gave it and which the Board proceedings were interfering with, and more generally in stability and labour relations peace.

83. It was against that background that the Chestnut Park and Inn on the Park Accords were negotiated. But as these proceedings demonstrate, these Accords did not end the dispute.

84. IBEW Local 1788 had been at the forefront of both the jurisdictional dispute litigation and the negotiation of the two Accords, but that Local was unhappy with how it was being treated by the IBEW International and the other IBEW Locals. In substance, the disgruntled then officers and executive (who appeared to enjoy the support of many of the Local's members) felt that IBEW Local 1788's reward for holding the line against the PWU was a gutting of its jurisdiction to the benefit of the other IBEW Locals. Consequently, when the PWU looked for a means by which to gain a jurisdictional advantage, it found the officers and executive of IBEW Local 1788 ready, willing and apparently able to assist it.

85. Accordingly, the decision was made to try to bring the members of the IBEW Local 1788 under the PWU umbrella. The PWU perceived this to be a way to further protect and perhaps expand its work jurisdiction at Ontario Hydro. The (former) officers and executive of the IBEW Local 1788, saw it as an opportunity to escape the IBEW and maintain what they considered to be the Local's work jurisdiction, and the jobs which went with it, under a friendlier umbrella.

86. Accordingly, with the active assistance of the then IBEW Local 1788 officers, executives and certain members, the PWU proceeded to woo both the members of IBEW Local 1788 and existing PWU members. It sought to assure them that a "merger" between the PWU and IBEW Local 1788 was to their mutual benefit. (Earlier, the PWU and IBEW Local 1788 had explored the possibility of an actual merger, which was opposed by the IBEW International, but they quickly abandoned this option in favour of the "raid" option.) In that respect, the PWU printed materials extolling the virtues of "raiding" (the PWU's word) IBEW Local 1788. The PWU offered its members six reasons for voting (in a membership referendum on the issue) in favour of raiding IBEW Local 1788):

(1) Because Ontario Hydro could no longer play the PWU and IBEW Local 1788 off against each other.

(2) Because the international IBEW wouldn't like it "because in partnership with Local 1788 — for the first time we will be certified legally in Ontario as a construction union” [emphasis added]; which would mean more work/jobs for the PWU.

(3) Because "... the Ontario Labour Relations Board has decided that PWU members have been doing a lot of "construction" which "under our agreements, PWU members aren't allowed to do ... only Local 1788 members are", but that if the PWU and IBEW Local 1788 joined forces, PWU members could (and would) do construction work. [emphasis added]

(4) Because "together were stronger politically".

(5) To keep Canadian workers money in Canada.

(6) For job security.

87. The PWU's materials assert that this would not mean "one big common agreement", but rather that there would be separate negotiations and separate collective agreements, and that the established work jurisdiction would prevail. (I note that there was a faction within the PWU which was opposed to a merger with or raid of IBEW Local 1788, but is not necessary to delve into that for purposes of this decision.)

88. In another document intended to persuade PWU members of the benefits of bringing IBEW Local 1788 into the fold, counsel for the PWU wrote that:

The legal effect of the proposed raid of the IBEW is similar to that of the recent raids on the IBEW utility locals. That is, the Power Workers' Union would be obtaining new bargaining rights that it did not have before. The most significant difference between the raids on the utilities and the proposed raid is that the proposed raid will give the PWU work jurisdiction its the construction sector that is explicitly set Out in the relevant Collective Agreements. With that should come recognition of the PWU as a construction Union, which will allots' the PWU to use the construction section of the Ontario Labour Relations Act

[emphasis added]

Interestingly, counsel also wrote that:

A: The Ontario Labour Relations Board has held that construction work is in the provincial legislative sphere. The combination provisions in the Ontario Labour Relations Act (Section 7) do not apply to construction bargaining units and it is therefore extremely unlikely that anyone could force a combination of bargaining units. Thus, the bargaining rights could be combined only if the PWU wants them combined and if 1-lydro agrees. If the membership of the PWU doesn't want the bargaining units to be combined, they won't be.

A successful raid will give us work jurisdiction its the construction sector.

[emphasis added]

89. In a document dated March 16, 1995, John Murphy, President of the PWU, wrote that one result of a successful raid of IBEW Local 1788 would be that "the PWU would be recognized as a 'construction union .. which would have direct and indirect benefits to the then current PWU members. The common theme in the PWU's electioneering materials is clear: a successful raid would give the PWU two things it did not think it had; namely, status as a construction trade union, and a protected and increased construction work jurisdiction.

90. Accordingly, it appears that in or about early 1995, either as the two Accords were being negotiated and the Accords were entered into, or immediately thereafter, the PWU negotiated and entered into an agreement dated April 10, 1995 with the (by then removed) officers and executive of IBEW Local 1788 (i.e. Messrs. Sprackett, Mulhall, MacLean, (Ms.) Mitchell, Strong, Gilroy, Wabb, Ives, Bartlett and Tuck - who entered into and executed the agreement "on their own behalf and on behalf of all the members of Construction Workers for a Democratic Union") which was labelled as an agreement "To Safeguard the Rights of Construction Workers Including Electrical Workers Upon Membership in the Power Workers Union".

91. This agreement included the following provisions:

PURPOSE

1. The purpose of this agreement is to establish a legally enforceable agreement to ensure that those construction workers who wish to join the Union are provided with certain assurances, guarantees, and safeguards to ensure their proper and appropriate treatment as members of the Union and to provide for structures within the Union which will best serve the interests of construction workers within the Union.

OBLIGATIONS OF CWDU

2. The members of the CWDU and the CWDU itself agree to support and to work for the certification of the Union in any application for certification in respect of construction workers during the term of this agreement.

MEMBERSHIP

3. Any person who was a member in good standing of Local 1788 on March 1, 1995 (including those persons holding valid Withdrawal Cards on that date) shall be entitled to membership in the Union upon application. Such membership shall not require the payment of any initiation fees or other assessments to the Union, except as required by the Canada Labour Code.

4. All such members shall have all rights and privileges of membership in the Union which, without limiting the generality of the foregoing, shall include the right to be eligible for election to Union office, to vote in Union elections in accordance with the requirements of the Constitution of the Union ("the Constitution"), and to have access to the Union's strike fund in the event of a lawful strike or lockout.

CREATION OF CONSTRUCTION COUNCIL

9. The Union agrees to amend its Constitution to establish a Council of Construction Workers which shall be known as the Power Workers' Construction Council (hereinafter refereed to as the "Council"). The members of the Council shall include all persons who were members in good standing of Local 1788 on March 1, 1995 (including persons holding valid Withdrawal Cards on that date), who have applied for membership in the Union, and such other workers who apply for and are accepted in membership in the Union and the Council in accordance with the requirements of the Constitution of the Union and the Operating Rules of the Council.

Work of the Council - Hiring Hall

10. There shall be a Construction Council hiring hall in which all members of the Council shall participate and which shall exclusively provide workers to do the following work of the Council:

(a) all work within the jurisdiction of Local 1788 as of February 22, 1995;

(b) all work within the jurisdiction of Local 1788 as described in the Chestnut Park Accord dated November 15, 1994 and the Joint Implementation Addendum dated January 30, 1995 and all work awarded to Local 1788 thereunder;

(c) all work within the jurisdiction of Local 1788 under the Inn on the Park Accord dated February 24, 1995, and all the work awarded to Local l788 thereunder;

(d) such other work as agreed upon between the Council and the Union.

13. As a transitional measure, individuals named by the CWDU shall fill all executive positions on an interim basis, immediately upon certification of a Unit for which Local 1788 previously held bargaining rights, elections shall be held to fill all executive positions. Such elections shall be governed to the extent possible by the procedures for local elections contained in the By-Laws of Local 1788, as of May 1, 1992. Subsequent to the election of the Executive and no later than three months form their election, the Executive shall circulate Operating Rules to the membership for approval at membership meetings by a majority of votes cast. A majority of the interim Executive and elected Executive may pass interim Operating Rules pending the ratification of the Operating Rules by the membership. Operating Rules, whether interim or permanent, shall not conflict with the Constitution, Policies and By-Laws of the Union and shall be subject to approval by the Executive Committee of the Union for purposes of ensuring compliance of the Operating Rules with the Constitution, Policies and By-Laws of the Union.

DUTIES AND AUTHORITY OF THE COUNCIL

16. The Council shall have authority in respect of all matters affecting collective bargaining related to members of the Council. Without limiting the generality of the foregoing, such powers shall include holding bargaining policy meetings, establishing bargaining committees, receiving and considering proposals from its membership, tabling proposals, giving notice to bargain, applying for conciliation, holding strike and ratification votes, authorizing and giving notice of strike, entering into and ratifying collective agreements, making applications for certification, and taking any related legal proceedings at the Labour Relations Boards or elsewhere. The Council may in accordance with its Operating Rules vest any of its powers in the Executive of the Council or on such committees or officers as it deems appropriate.

17. The Council shall have authority in respect of the administration of collective agreements respecting members of the council. Without limiting the generality of the foregoing, such powers shall include operating hiring halls, establishing grievance committees, initiating grievances, processing and settling grievances, referring grievances to arbitration and the conduct of such grievances, and any related legal proceedings whether at Labour Relations Boards or elsewhere. The Council may in accordance with its Operating Rules vest any of its powers in the Executive of the Council or such committees or officers as it deems appropriate.

18. The Council shall have authority in respect of the operation of the Union's hiring halls, the apprenticeship systems and training programs for members of the Council, welfare, pension and other benefit plans administered by the Council, and the operation of all health and safety activities, employment equity activities, pay equity activities, and joint Union management committees concerning members of the Council or officers as it deems appropriate.

19. The Council shall be entitled to affiliate with such other construction organizations as is deemed appropriate.

20. The Union shall not seek to amalgamate, combine, or consolidate any bargaining unit composed of Council members, whether by application to the Labour Relations Board or otherwise, without the consent of the majority of the members of the Council. The Union shall oppose any attempt at consolidation made by an employer unless the majority of the members of the Council voting in accordance with the Operating Rules direct otherwise.

21. The Council may establish geographic units to facilitate membership participation and such other units as may be appropriate.

22. The Council shall be entitled to send a reasonable number of delegates to national conventions of the Union and to provincial or other conventions of the Union or other affiliated bodies, in accordance with the rules for determination of delegate entitlement of the particular body in question and past practice of the Union.

23. The Council shall be entitled to participate fully as a party at all meetings, including arbitration, involving the Union arising out of the Chestnut Park Accord of November IS, 1994 and the Joint Implementation Addendum dated January 30, 1995 and the Inn on the Park Accord dated February 24, 1995, ("the Accords") in the same manner as Local 1788 would be entitled to, as if the Council were a successor to Local 1788. In any event, the Council will be entitled to a seat on the Steering Committee established pursuant to the Accords in the same manner as Local 1788 would.

ESTABLISHMENT OF PWU CONSTRUCTION CO-ORDINATOR

31. The Union shall establish an additional position which shall be designated "PWU Construction Co-ordinator", who shall be elected by the membership of the Council. The PWU Construction Coordinator shall exercise his or her duties consistent with the Constitution and By-Laws of the Union and the Operating Rules of the Council. The duties of the PWU Construction Co-ordinator shall include the co-ordination of Council activities with other activities of the Union, directing organizing efforts in the construction industry, lobbying and legislative activities in respect of matters affecting Council members and such other duties and as may be assigned by the Operating Rules. The PWU Construction Co-ordinator shall be entitled to attend meetings of the Executive Board as an Observer and make reports to the Executive Board of the Union with respect to matters relating to the Construction Council and shall be entitled to membership on the Council of Stewards with all the rights and privileges of a Chief Steward. He or she shall participate in Executive Committee meetings as an ex officio member with voice and vote in matters relating to the Council.

OBLIGATIONS OF THE UNION

32. The Union shall enact the attached amendments, set Out as Appendix A hereto, to its Constitution to give effect to the provisions of this Agreement and failure to do so shall constitute a breach of this Agreement.

33. The Union shall enact no constitutional amendment uniquely affecting the Construction Council or its membership without approval of the Council as determined under its Operating Rules

34. In accordance with this agreement, the PWU amended its constitution to include, for the first tune, a separate construction "division", referred to as the "Power Workers Union Construction Council".

V Is the PWU a Section 126 Trade Union?

93. Against this background, including the PWU's own description of itself and what it hoped to achieve through its applications herein, I turn to the question of whether the PWU is a trade union within the meaning of section 126 of the Act, as I have already concluded it must be in order to bring those three applications. Clearly, the PWU is a "trade union" within the meaning of section 1(1) of the Act. Consequently, the question comes to this: is the PWU a trade union which "according to established trade union practice pertains to the construction industry"?

94. Notwithstanding that the definition of "trade union" now in section 126 of the Act has been in the legislation since 1962, there is little jurisprudence on it, and what there is does not offer much in the way of analysis or assistance.

95. In Ben Bruinsma, [1964] OLRB Rep. Feb. 647, the Board satisfied itself that the Chatham Construction Workers' Association, Local 53, affiliated with the CLAC "pertains" to the construction industry in a general way on the basis of its constitution (the specific provisions of which are not reproduced in the decision), but went on to consider the meaning of the phrase "according to established trade union practice", and concluded that the presence of that phrase in the definition of "trade union" must mean that something more than appropriate constitutional provisions are required. The Board concluded that in order to give meaning to the phrase it is appropriate to look for a history of collective bargaining in the construction industry. In that respect, the Board said (as the PWU points out) that:

“…..practice ... has to be established by ascertaining the collective bargaining history of the union, both local and parent. If the practice as ascertained by an examination of the union's collective agreements is to bargain for workers in the construction industry, then the union has satisfied the requirement

96. In Cornelius Vander Stelt, [1964] OLRB Rep. May 87, the Board found that the CLAC was a section 126 "trade union" on the basis of a constitution which envisaged organizing employees in the construction industry, and four collective agreements (three of which have been entered into by Locals constituted under the CLAC constitution), and, apparently, another construction industry application for certification.

97. It has been said, perhaps rightly, that this suggests a rather low threshold for entry into the section 126 "club". However, the experience of the Canadian Union of Construction Workers suggests otherwise. In a series of cases in 1969 and 1970, the Board rejected that union's bid for recognition as a construction trade union. The Board held that an appropriate constitution was not enough, and that a trade union had to demonstrate a history of collective bargaining, or certification as a construction trade union by the Board, which of course couldn't occur except through inadvertence without a demonstrated collective bargaining history (see Manor Carpenters, [1969] OLRB Rep. Jan. 1026; Zachary De Vuono Limited, [1969] OLRB Rep. July 493; Sterling Tile Company, [1970] OLRB Rep. Feb. 1346; B. Moscone Tile Company, [1970] OLRB Rep. Apr. 44; Perfect Tile Co., [1970] OLRB Rep. Apr. 47; Polmar Tile Company, [1970] OLRB Rep. Apr. 50; Speedy Tile & Carpet Contractors, [1970] OLRB. Rep. Apr. 52; E. Del Medico Limited, [1970] OLRB Rep. June 383).

98. The Board concluded that the Canadian Union of Construction Workers was not a section 126 trade union and that the applications were therefore not applications within the meaning of what is now section 128, because it had no construction industry collective bargaining history. However, it is not at all apparent that the Board attached any particular significance to the distinction it drew between construction and non-construction applications, since it went on to consider the applications under the "general" (or non-construction) provisions of the Act of the day, but described the bargaining units which the Board considered to be appropriate in construction terms; namely, by specific trade(s) in a construction geographic area. Further, in at least one application (Polmar Tile, supra), the Board also used the construction date of application test rather than the non-construction test to determine the trade union's right to be certified. It appears that the Board was led to this incongruous result because of a concern that the usual "all employee" type of non-construction bargaining unit would lead to jurisdictional disputes. In other words, notwithstanding that the Board found the Canadian Union of Construction Workers was not a construction trade union as defined in the Act, it treated it as one for all practical purposes. However, it did so because of concerns which the Board has long since decided are not relevant to its considerations in applications for certification (see, for example, Semple-Gooder Roofing Ltd., [1983] OLRB Rep. Nov. 1908).

99. Further, it appears that these pre-Bill 40 Act cases are among the precursors of Pickering Welding, supra, in the sense that they permitted non-construction trade unions to be certified to represent construction employees under the general provisions, something which cannot happen today for the reasons given above.

100. What is interesting, is that none of these decisions, or in any other Board decision of which I am aware, did the Board consider anything other than the trade union's constitution and whether it (or its parent union) had any collective bargaining history in the construction industry. More specifically, the Board did not consider whether a trade union could establish construction trade union status on the basis either that the trade union counted among its members employees who had regularly performed a substantial amount of construction work, or on the basis that it had a collective bargaining history with an employer or employers who are construction employers within the meaning of section 126. The first proposition has been the fundamental basis for the PWU's assertion that if it has to be it is in fact a construction trade union. The second, is a proposition which it appears the PWU raises for the first time in its reply submissions.

101. I will deal with the PWU's first and main proposition first. Both prior to and while preparing this decision, I carefully reviewed the enormous amount of evidence the parties presented concerning the work which PWU members have done and continue to do at Ontario Hydro. In the context of these applications, it would be a truly daunting task to try to determine what work PWU members have performed can properly be considered to be construction work, or to try to distinguish between construction work and maintenance work, a question which has long bedevilled the Board, and an issue which arises because of the separation between construction and non-construction collective bargaining under the Act, as opposed to what the Board is well aware happens in practice (and is partly the result of a definition of "construction industry" which is less than helpful, and an imperfect match between the legislative scheme and real life). (In this case, the differences between the parties with respect to what is construction and what is not construction work range from the ridiculous to the sublime. To select but two examples of the former, it was suggested that if a burned-out light bulb is replaced by one of a higher wattage or which is rated as having a longer useful length, the replacement of the bulb is construction work, but if a bulb is replaced by an identical or a "lesser" bulb, it is maintenance work; or when insulation or cladding is removed to permit routine inspection of a pipe or valve, the activity is construction work if new insulation or cladding is put onto the pipe or valve after the inspection, but it is maintenance work if the same insulation or cladding is replaced.).

102. Fortunately, I find it neither necessary not' appropriate to attempt such an exercise, or even to review the mountain of evidence which is before the Board in that respect. For purposes of this decision, I accept the PWU's assertion that its members include Ontario Hydro employees who have regularly performed a substantial amount of construction work. I do not accept the PWU's argument (which in fairness it did not seriously pursue) that any of its collective agreements with the various public utilities or hydro electric commissions in Ontario support its assertion that it is a section 126 trade union. At best, these collective agreements are very much like the PWU's agreement with Ontario Hydro, and add nothing to the analysis or to the result in these applications.

103. On any objective view of the evidence, it is clear that Ontario Hydro is, and always has been, both an operating company and a construction company. It not only generates and distributes electrical power, it also constructs various kinds of generating plants, and also the electrical transmission and distribution system. It is also clear that through its several incarnations, the PWU has represented Ontario Hydro employees who have performed construction work. Many PWU bargaining unit employees of Ontario Hydro have not performed any construction work. Some have performed some construction work. Some have spent the majority or even substantially all of their time performing construction work, sometimes side by side with or in composite crews with members of the building trades unions, particularly the IBEW Local 1788, doing the same or substantially the same work. In the transmission system, PWU members have done virtually all of the construction of under 50 Ky transmission lines. Indeed, IBEW Local 1788's Transmission Agreement has come to exclude under 50 Ky transmission line construction work. PWU members have also performed a significant amount of over 50 Ky transmission line construction. They have performed construction work in or on transmission stations, and in the apparently never ending construction activities in generation plants, particularly the nuclear power generating facilities, after these began to operate. The details of all this are not important. Suffice it to say that Ontario Hydro employees in the bargaining unit represented by the PWU or its antecedents have regularly and continuously performed a substantial amount of construction work, albeit in amounts which have fluctuated over the years.

104. The PWU asserts that this is sufficient for it to meet the "according to established trade union practice pertains to the construction industry" requirement in section 126. That is, that because of the construction work which its members have done over the years, it is a construction trade union, and as such, is entitled to bring its three applications herein. With respect, I do not agree.

105. Whether one uses the Oxford English dictionary or everyday usage as a reference, "pertains" in this context means: the habitual doing or caring on of something; usual, customary; a habitual way of doing things. Similarly, "pertains to" means: to belong or be connected to. I am not satisfied that the PWU's practice of representing employees of Ontario Hydro accords with the established trade union practice in the construction industry. More importantly, the PWU cannot demonstrate the requisite practice of representing employees in the construction industry which would bring it within the section 126 definition.

106. I reject the notion that "pertains to" must or should be given a broad interpretation. The PWU had to assert that proposition for purposes of its argument. However, the analysis I have already engaged in above suggests the contrary. That is, that the entire definition, and specifically the words "pertains to" should be given a restrictive interpretation in order to accomplish the separation in the Act between construction and non-construction. The very meaning of "pertains to" suggests a more restrictive definition which would limit the class of trade unions which will satisfy the definition; that is, which are construction trade unions.

107. Further, a restrictive approach is also consistent with a not dissimilar provision: that is, the craft unit provision in what is now section 9(3) of the Act which provides that:

108. (3) Any group of employees who exercise technical skills or who are members of a craft by reason of which they are distinguishable from the other employees and commonly bargain separately and apart from other employees through a trade union that according to established trade union practice pertains to such skills or crafts shall be deemed by the Board to be a unit appropriate for collective bargaining if the application is made by a trade union pertaining to the skills or craft, and the Board may include in the unit persons who according to established trade union practice are commonly associated in their work and bargaining with the group, but the Board shall not be required to apply this subsection where the group of employees is included in a bargaining unit represented by another bargaining agent at the time the application is made.

[emphasis added]

108. The Board has given this venerable provision (which has been in the Act in substantially the same form since 1950) a restrictive definition. The current provision is the same today as it was in 1960, and the essential operative words have been substantially the same throughout its history. A trade union which seeks the benefit of section 9(3) has always been required to establish three things:

(1) that the employees it seeks to represent exercise technical skills or are members of a craft and are thereby distinguishable from other employees;

(2) that these employees continuously bargain separately through a trade union that according to established trade practice pertains to such skills or craft; and

(3) that it (the applicant trade union) pertains to such skills or craft.

109. In interpreting this provision (section 6(2) of the Act in effect at the time), the Board in Firestone Tire & Rubber Company of Canada Limited, [1963] OLRB Rep. Feb. 491 concluded that maintenance mechanics did not constitute a craft unit because "the several craft unions that have applied for certification for such units have rarely succeeded in showing that according to established trade union practice they commonly bargain for their respective classifications in the maintenance department separately and apart from other employees." [emphasis added]. But the Board went on to say that even if the applicant had been able to satisfy this requirement, it did not satisfy the third requirement because:

……..In so far as the third condition is concerned, counsel for the applicant contended that the International Union of Operating Engineers and its locals pertain to the skill or craft of maintenance electricians. In this connection he told us that he was relying on the dictionary meaning of the word "pertaining", which speaks in terms of "belonging to" or being "associated with", that the electricians were closely associated with the stationary and hoisting engineers and that, by virtue of such association, they were included in a number of bargaining units for which the International Union of Operating Engineers or its locals were the bargaining agents. If the word "pertaining" were given such broad meaning, it would follow that any trade union, which could show that it included electricians in its membership and that electricians were included in bargaining units for which it bargained, would be able to claim craft rights under the provisions of subsection 2 of section 6. If this interpretation of the subsection were adopted, industrial unions, almost without exception would be able to fragmentize every industrial or commercial undertaking in which craftsmen were employed and to organize and be certified for one craft at a time. Such an approach to subsection 2 of section 6 would be so foreign to the history and practices of collective bargaining in this Province during the last two decades that it would require the clearest language in the subsection to convince us that that is what the Legislature intended. In our opinion, the word "pertaining" must be given a more restricted meaning. The meaning which commends itself to us appears in the Shorter Oxford Dictionary and it is "to be appropriate to". That indeed is the principle that has been followed by the Board since the present Act came into effect in interpreting and applying this subsection.

110. Although the PWU does seek to displace IBEW Local 1788 as the collective bargaining representative of craft bargaining units, it does so on the basis of a displacement application or "raid", and not because it seeks to be recognized as a craft union either under section 9(3) or otherwise. But the PWU does seek status as a section 126 trade union, namely, as a union which "according to established trade union practice pertains to the construction industry". This is why the section 9(3) jurisprudence is instructive.

111. Having determined that "pertains" should be given a restrictive meaning in section 9(3) of the Act, the Board went on in subsequent cases to conclude that in order to establish that it pertains to a particular set of skills or craft, a trade union had to establish, as the Firestone, supra, decision suggested, that it had a history or practice of representing employees who exercise such skills or craft in separate bargaining units, and not as part of an all employee or other broader bargaining unit. The key thing is the separation (see, for example, Dupont of Canada Limited, [1965] OLRB Rep. Jan. 538; Automatic Fuels Ltd., [1966] OLRB Rep. Apr. 22; Orangeroof Canada Ltd., [1974] OLRB Rep. Nov. 761; PreCon Murray Limited, [1969] OLRB Rep. Jan. 1003, which stands out as a lonely anomaly in the jurisprudence when it suggests that an appropriate constitutional provision is sufficient in that respect).

112. I respectfully agree, and I think this analysis is applicable to the issue in these proceedings. I have concluded that it is appropriate to give section 126 a similarly restrictive interpretation, not only because the structure of the Act generally and the words used (particularly the word "pertains") in section 126 suggest that this is appropriate, but also because the "established trade union practice" in the construction industry is one of bargaining units which consist exclusively or at least primarily of construction employees. Indeed, where the building trades unions are involved (other than the Labourers or Carpenters unions outside of the ICI sector), construction bargaining units generally consist of employees of a single craf't or trade. But even where that is not the case, and even where the trade union is other than one of the building trades unions, bargaining units in the construction industry consist entirely, or virtually entirely, of construction employees. Accordingly, in order to establish that it is a section 126 or construction industry trade union, the PWU must establish a history of representing construction employees separate and apart from other employees.

113. The PWU has not established this. On the contrary, there is no evidence that the PWU has ever represented construction employees separate and apart from other employees. Indeed, it is apparent from its own campaign literature in support of its friendly raid of IBEW Local 1788 herein that the PWU thought that that is what these applications would give it; that is, a separate construction industry bargaining unit - although even then not one which would include any of the PWU members who have historically performed construction work. On the contrary, the PWU's documents display its intention to keep the construction employees it has historically represented as part of the much larger Ontario) Hydro bargaining unit separate and apart from the construction employees who are the object of its affections in these applications.

114. The fact that the PWU has represented employees who have performed construction work, however continuously and regularly they have done so, as part of a much larger bargaining unit does not assist the PWU. However large or significant the amount of construction work PWU members have performed as employees of Ontario Hydro in absolute terms, neither the amount of work nor the number of PWU members who have performed it is large in relative terms. That is, the work of PWU bargaining unit employees has never been primarily or even mostly construction work, and the number of construction employees within the PWU Ontario Hydro bargaining unit has never approached even 50 per cent.

115. Of the two points, the latter is of greater significance in these applications. The evidence reveals that what is now the PWU traces its roots at Ontario Hydro back to an employees' association established in or about 1947. Subsequently, this organization became the Ontario Hydro Employees' Union, Local 1000 of the NUPSE, CUPE Local 1000, and finally (in 1993) the PWU. Taking the PWU's evidence at its highest, it has represented an ever decreasing cadre of actual construction employees to whom a separate part of its collective agreement with Ontario Hydro was devoted (although even then not everyone covered by the "construction division" or "construction trades" section of this collective agreement actually spent the majority of their time performing construction work). In 1952, for example, there were approximately 9,000 bargaining unit employees represented by what is now the PWU. Of these, some 900 were in the construction division, of whom some 800 were actual construction employees. In 1952, construction employees represented by the PWU were in effect "red circled" within the PWU bargaining unit. The building trades unions established a presence at Ontario Hydro, and PWU construction employees were given the option of joining a building trades union or remaining within the PWU bargaining unit. Subsequently, the number of construction tradesmen as such steadily declined, although the number of "technical" employees covered by the PWU collective agreement, more than a few of whom appear to be single or multi-trade construction employees increased. Although the evidence in this respect is rather vague (which may in itself suggest something about the PWU's approach), the number of construction tradesmen so called in the PWU bargaining unit continued to decline and eventually (in 1990) the "construction trades" section disappeared from the PWU's collective agreement with Hydro (although there continues to be a "construction weekly-salary" part in it). The "technical" classifications, which include many of the PWU's bargaining unit employees who perform construction work, have continued to exist, with the actual number of employees in these classifications fluctuating along with the rest of. although not necessarily in proportion to, Ontario Hydro's overall PWU's work force. On the evidence, there are any-where from 2,700 to 4,000 "construction" employees, in a PWU bargaining unit of approximately 12,000 employees.

116. Ultimately, what it all comes down to is this this. For approximately 60 years, the organization which is now called the PWU has represented an all employee bargaining unit of employees of Ontario Hydro. Although this bargaining unit has always included a significant number of employees who have performed construction work, the bargaining unit has always been primarily a non-construction bargaining unit. The PWU bargaining unit is much closer to the non-construction end of the work spectrum at Ontario Hydro than it is to the construction end. The evolution of the PWU reflects operational developments at Ontario Hydro, and the development of parallel but not mutually exclusive work forces: namely, the primarily maintenance/non-construction work force represented by the PWU on one hand, and the primarily construction work force represented by the building trades unions on the other. This is reflected in the jurisdictional dispute litigation, and the two Accords entered into in an effort to resolve the jurisdictional struggle between the PWU and the building trades unions, and even in the PWU's own campaign literature in the referendum it conducted before bringing its applications herein.

117. What does a construction trade union look like? A construction trade union does not have to restrict itself to representing one or a few trades. Most non-building trades construction unions do not, and not even all building trades unions do so outside of the ICI sector. A construction trade union does not have to operate a hiring hall, although the vast majority do. A construction trade union doesn't have to operate an out-of-work list (i.e. a list of unemployed members who can be referred to employers who are obliged to hire unemployed members before they can hire "off the street") but there are few (if any) which don't (even Teamsters Local 91 in Ottawa which does not operate a hiring hall as such keeps an out-of-work list). A construction trade union does not have to operate health, welfare, pension or other benefits plans, either jointly with employers or alone, or operate a training or apprenticeship program, but most do. A construction trade union does not have to have or aspire to bargaining rights with more than one employer, but again, most do. Although a union does not have to have any of these characteristics in order to be a construction trade union, the fact is that every construction trade union of which the Board is aware (both on the materials before the Board in this case, and as the expert tribunal in the field) has at least some of them. That is, these characteristics indicate the practices which have become established in the construction industry. The fewer of these characteristics that a trade union has, the less likely that it is construction trade union. The PWU has none of them.

118. The PWU has made an attempt to take on some of the characteristics of a construction trade union by entering into the agreement cited at paragraph 91, above, and by amending its constitution to include a "Power Workers' Union Construction Council". These envisage a separation between the existing PWU bargaining unit at Ontario Hydro and the bargaining units it seeks to represent in its applications herein, and a hiring hall for the latter. However, the PWU's "Construction Council" is an empty vessel, and in these applications the PWU relies on its existing primarily non-construction bargaining unit in support of its assertion that it is a section 126 or construction trade union.

119. Further, the PWU has always looked and acted like a non-construction trade union. It has always represented an all employee bargaining unit, albeit a large (both in number and geographic area) and diverse one. The PWU has always conducted itself as though it is governed by the "general" provisions of the Act, not the construction provisions, both generally and in matters relating to collective bargaining with Ontario Hydro (or other employers). For example, the PWU has never applied for certification under the construction industry provisions of the Act, it has sought conciliation as a non-construction trade union, it has never tried to refer a grievance to the Board under (what is now) section 133 of the Act (an expedited arbitration provision available only to construction trade unions), in its jurisdictional litigation it has conducted itself like a non-construction trade union, and in its dealings with Ontario Hydro (in matters of hiring, for example) it has not conducted itself anything like a construction trade union.

120. But most importantly, the one thing that a trade union absolutely must do in order to be a construction trade union, is represent at least one bargaining unit of construction employees; that is, a bargaining unit composed at least primarily of construction employees separate and apart from other employees. This the PWU has never done.

121. In the result, I reject the PWU's first and main proposition. I also reject its second proposition, and I do so for similar reasons.

122. The PWU argues that it is appropriate to incorporate the definition of "construction industry" into section 126 50 that the latter reads:

"trade union" means a trade union that according to established trade union practice pertains to the businesses that are engaged in constructing, altering, decorating, repairing or demolishing buildings, structures, roads, sewers, water or gas mains, pipelines, tunnels, bridges, canals or other works at the site.

That is; a trade union which has collective bargaining dealings with a construction industry employer who satisfies the section 126 definition of "trade union".

123. The PWU points out that the Board has interpreted the section 126 definition of employer as meaning that any employer which operates any part of its business in the construction industry is a construction industry employer for purposes of the Act. As the Board put it in Briecan Construction Limited, supra: "... if an employer employs workers performing construction work then he is an employer in the construction industry for purposes of the construction industry provisions of the Act." (See also Risdale Steel Fabricators Ltd., supra,).

124. What the PWU suggests with respect to incorporating the definition of "construction industry" into the section 126 definition of "trade union" is probably correct. However, the conclusion it draws from the resulting paraphrasing of the definition ignores the "established trade union practice" component of the definition. That is, the PWU cannot establish that the way that it "pertains to" or deals with construction industry employees accords with the established trade union practice in that respect. It displays none of the practices which are characteristic of section 126 trade unions; and, most importantly, it has never represented a separate primarily construction bargaining unit.

125. I also note that the section 126 definition of "employer" does not mirror the section 126 definition of "trade union". It specifically does not contain a phrase analogous to "according to established trade union practice pertains to the construction industry". Further, although it may raise a question about the Board's approach to who is an employer in the construction industry, it surely cannot be that any trade union which has a collective bargaining relationship with any employer which has any part of its business in the construction industry is a section 126 trade union. If that were so, there are many trade unions which might be surprised to learn that they are construction trade unions. For example, many School Board's have been found to be employers in the construction industry. If the PWU's position was sustained, it would mean that the Ontario Secondary School Teachers' Federation, and all the other teachers' unions, would satisfy the section 126 definition. So would the Locals of the Ontario Public Service Employees Union which represent occasional teachers at some School Boards, and the various CUPE Locals which represent maintenance or other staff at various School Boards. In short, it would render the distinction which the Act clearly draws between the construction and non-construction trade unions virtually meaningless. I therefore reject that proposition as well.

126. Indeed, although in these proceedings, the PWU asserted it is a construction trade union for the purposes of the Act, it is apparent that prior to these proceedings it had a different and more accurate assessment of its status; namely, that it was not a construction trade union. The PWU incorrectly thought that it could become a construction trade union by raiding IBEW Local 1788, apparently overlooking the fact that it had to already be a construction trade union before it could successfully conduct such a raid.

VI Conclusion (The PWU is not a Construction Trade Union) and Disposition

127. In conclusion, I am satisfied that the PWU is not a trade union within the meaning of section 126 of the Labour Relations Act, 1995. The PWU is therefore not entitled to bring any of the its three applications for certification herein, and the applications in Board File Nos. 0164-95-R, 0186-95-R and 0187-95-R are therefore dismissed.

128. The Registrar is directed to destroy the ballots cast in the votes conducted in the PWU's applications herein 30 days after the date of this decision, unless within that 30 day period someone who has the status to do so files a fully particularized request that the ballots not be destroyed and the Board is satisfied that the request makes out a cogent prima facie case for not destroying the ballots.

129. The parties to the application of Board File No. 0251-95-R are directed to file written representations setting out their positions with respect to how that application should proceed. Any party which fails to do so within 21 days of the date hereof, will not be entitled to any further opportunity to address the Board in that respect, and the Board may proceed with that application without any further notice to it.

VII Cautionary Note

130. Nothing in this decision should be taken to suggest that the PWU is not entitled to represent the employees in its Ontario Hydro bargaining unit who perform construction work (see paragraphs 64 and 65, above). Nor should anything in this decision be taken to suggest that the PWU does not have a sustainable claim to the construction work its members have historically performed for Ontario Hydro. If necessary, the merits of any such claim are appropriately dealt with in a jurisdictional dispute complaint.