Millwright Local 1410 v. Alcan Aluminium Limited, 1997 CanLII 15565

Millwright Local 1410 v. Alcan Aluminium Limited

[1997] OLRB REP. MAY/JUNE 305

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

BEFORE: G. T Surdykowski, Vice-Chair.

APPEARANCES: A.M. Minsky for Ontario Pipe Trades Council, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 221; Denis Ellickson for Millwright District Council of Ontario and its Local 1410; Paul A. Boniferro for Chemicals; Marie Kelly for United Steelworkers of America, Local 7949 and Local 8754; Bob Wright for Cable, Rolled Products and Foil; James L. Shields for the International Association of Machinists and Aerospace Workers, Lodge 54.

DECISION OF THE BOARD; June 9, 1997

I

Introduction

1. By decision dated March 10, 1997, the Board held that "Alcan Aluminium Limited" is the responding employer in these applications for certification.

2. I wish to note that I should have distinguished between these two applications when I suggested in that earlier decision that certificates would inevitably issue in each of them (see paragraph 5 of the March 10, 1997 decision). That is the case in the Millwright application in Board File No. 2736-96-R. However, whether or not certificates will issue in the U.A.'s application in Board File No. 2743-96-R depends upon the disposition of the allegations made against the U.A., and specifically against U.A. Local 221, which are referenced in paragraph 54 of the March 10, 1997 decision.

3. A further hearing was convened on March 17. 1997. At that hearing, the issue of the identity of the applicant in each case was resolved and the Board heard the representations of the parties with respect to what can be broadly referred to as the "bargaining unit description" issue. I reserved my decision on that issue.

4. On March 18, 1997, I heard the representations of Mr. Boniferro and Mr. Minsky with respect to Mr. Minsky's motion that the allegations made against U.A. Local 221 in Board File No. 2743-96-R be dismissed without a hearing. I reserved on that issue as well.

II

Clarifying the Identity of the Applicants

5. Without objection from any other party, Millwrights Local 1410 was stipulated to be the applicant in Board File No. 2736-96-R, and U.A. Local 221 was stipulated to be the applicant in Board File No. 2743-96-R. The name of the applicant in each application is therefor amended accordingly.

III

Representation of the Responding Employer

6. I find it worth noting that notwithstanding the Board's determination that Alcan Aluminium Limited is the responding employer in these applications, and not "Alcan Chemicals, Division of Alcan Aluminium Limited", the same four divisions of Alcan Aluminium Limited as before, including Chemicals, appeared through counsel at the hearing on March 17, 1997. No one identified him or herself as specifically appearing on behalf of Alcan Aluminium Limited. U.A. Local 221, supported by Millwright Local 1410, objected to this. They submitted that since the only responding employer in each case is Alcan Aluminium Limited, that was the only employer entity which continued to have standing in the proceedings, and that none of the four divisions had any business being there any longer. The applicants also expressed their concern that Alcan Aluminium Limited should only have "one voice" in the remainder of the proceedings.

7. Mr. Boniferro confirmed that he continued to represent Chemicals. Mr. Wright confirmed that he continued to act for the other three Alcan divisions: Rolled Products, Foil and Cable. Neither of them said that they appeared on behalf of Alcan Aluminium Limited. However, Mr. Boniferro did say that the "voices of the divisions collectively is the voice of Alcan Aluminium Limited", that Alcan Aluminium Limited was represented by its four divisions, and that no one who is a party to the proceedings was unrepresented.

8. It seems to me that this development merely confirms the correctness of the Board's March 10, 1997 decision that Alcan Aluminium Limited is the proper responding employer. Despite the avowed separateness of Chemicals and the other three divisions from Alcan Aluminium Limited and each other, these divisions were united in their representation of Alcan Aluminium Limited and its interests. In fairness to Rolled Products, Cable and Foil, they could at least assert that they had their own interests to protect, and were in a position to assert Alcan Aluminium Limited's interests with respect to the bargaining unit description issue. On the other hand, it is difficult to see any separation between the interests of these three divisions and Alcan Aluminium Limited in that respect, which again suggests that they are not as separate, for labour relations purposes at least, as they suggest. Since there are no existing bargaining rights at either of Chemicals' locations in Ontario, its position in that respect was much more tenuous, and if it was truly a separate labour relations entity, it would be in no position to address the issue raised by the interventions of the Steelworkers and the Machinists. In any case, the proper employer party in both applications is Alcan Aluminium Limited (hereinafter "Alcan") and none of the Alcan divisions was entitled to participate in the continuation of these proceedings as such; that is, as the separate labour relations entities they continued to profess to be.

9. Generally, this would result in the only identified employer entity in the proceedings being Alcan. and while that single employer entity could have as many co-counsel as it wished, it could only speak with "one voice". On the other hand, an employer like Alcan can choose to be represented by or through whomever it wishes. If it chooses to be represented by or through one or more of its divisions, that is up to it, so long as this does not interfere with the conduct of the proceedings. In this particular instance, the conduct of counsel for the divisions was beyond reproach. They did not repeat each other, or seek to duplicate what the other did. The hearing in the first phase of these proceedings had proceeded expeditiously and had been completed within the time scheduled for it. There was nothing to suggest that counsel would not continue to act appropriately in that respect. Further, as a practical matter, the evidence which was likely to be called, or the submissions which would be made would not be altered by attempting to give effect to the applicant's objection to the continued presence of the divisions as such. If witnesses had been required (as they turned out not to be), the same ones would undoubtedly have been called, and the same representations would undoubtedly have been made, probably by the same two counsel, albeit speaking with "one voice". Indeed, the only likely real delay which was likely to be occasioned would have been that required by the (short) adjournment which would have been necessary to give Mr. Boniferro and Mr. Wright an opportunity to seek the appropriate instructions.

10. Accordingly, in the exercise of the Board's discretion as the master of its own procedure, and bringing to bear what I hoped was some common sense to the situation, I ruled that I would permit the four Alcan divisions, through their respective counsel, to speak for Alcan. However, I did caution counsel that if it began to appear that this was creating some difficulties in the proceedings, I would be prepared to re-visit the issue.

II. As it turned out, it was unnecessary to do so. The parties were able to reach agreement on all facts which they considered appropriate for the Board to have before it, and their submissions on the bargaining unit description issue were concise and to the point. Further, in U.A. Local 221's motion to dismiss the allegations against it, only Chemicals, again representing Alcan's interests, and U.A. Local 221 participated, and that motion was also dealt with expeditiously by counsel.

IV

The Bargaining Unit Description Issue

12. I turn first to what I have characterized as the '~bargaining unit description" issue, which includes the alternative position adopted by the Alcan divisions in the first phase of these proceedings and upon which I had reserved my decision (see paragraph 52 of the March 10,1997 decision herein).

(a) Facts

13. The facts before rne in that respect are those in evidence from the first phase, and the facts agreed to at the March 17, 1997 hearing as follows:

Alcan Foils

Majority of plumbing/steam fitting work construction (minor)

90% is performed by millwright mechanics

10% is contracted out

No qualified plumbers/steamfitters employed

4 millwright with certificates of qualification (industrial)

Majority of work - construction (minor)

1/2 being breakdown repair

1/2 continuous upgrade

Millwright work only contracted out during demand surges.

Bracebridee

Majority of plumbing/steam fitting work construction (minor)

90% performed by millwright mechanics

10% is contracted out, including to U.A. affiliated contractors

No qualified plumber/steamfitter employed

8 millwrights with certificates of qualification [6 industrial / 2 construction]

Less than 5% millwright work contracted out, only when special skills or tools required

Majority of millwright work - construction (minor)

Kingston

Majority of plumbing/steamfitting work construction (minor) 90% performed by employees

2 qualified plumber/steamfitters [I construction - who is currently on lay-off but within recall period - I industrial]

50% of plumbing/steamfitting work is performed by millwrights

26 millwrights with certificates of qualification

[all have industrial certificates - 12 have construction certificates]

Majority of work - construction (minor)

Parties agree that the use of the descriptor "minor" in relation to the construction work performed by the members of USWA and JAM is for the purposes of this hearing only and shall not be referred to or relied upon in any future proceedings by any of the parties herein. (sic)

14. The primary basis for the arguments of Alcan and the two intervening unions is that construction work is carried on in the various Alcan plants, and that to the extent that Alcan uses its own employees to do this construction work at its Bracebridge, Kingston or Toronto plants where the Steelworkers or Machinists have bargaining rights, the work is performed by employees which those unions represent under the respective collective agreements already in place at those plants.

15. There are four collective agreements in evidence. "Bracebridge Works, Alcan Cable Divi­sion of Alcan Aluminium Limited" and United Steelworkers of America, Local 7949 are parties to a collective agreement which includes the following provisions:

Article 2

APPLICATION

2.01 This Agreement shall apply to all the Company's employees whilst employed at Brace-bridge Works, save and except Team Coordinators, persons above the rank of Team Coordinator, laboratory personnel, office and sales staff.

2.02 Appendices of the Agreement are an integral part thereof, and the provisions of this Agreement and Appendices shall be read and construed together.

Appendix I - Wage Rates Appendix 1(a) - Job Classification & Pay Grade Appendix II - Overtime Fill Procedure for Weekend Work

Article 3

UNION RECOGNITION, SECURITY

3.01 The Company recognizes the Union as the sole and exclusive bargaining agent with respect to all matters covered by this Agreement for all employees of the Company whilst employed at Bracebridge Works as set forth in Section 2.01.

There is no "millwright" or "plumber/pipefitter" job classification in this collective agreement, but as is apparent from the agreed facts as aforesaid, there are 8 bargaining unit employees classified as “mechanics" who are qualified as millwrights and who perform construction plumbing/steamfitting and millwright work under the collective agreement.

16. "Alcan Rolled Products Company, Kingston Works" and United Steelworkers of America, Local Union 343 are parties to a collective agreement which contains the following recognition clause:

SECTION II- RECOGNITION

2.01 The Company recognizes the Union as certified by order of the Ontario Labour Relations Board, dated the 4th day of April 1945, as the sole collective bargaining agent for all the Company's employees of the Kingston Works, save and except Security Officers, employees of the Maintenance Departments, the Machine Shop, Instrumentation. Boiler and Compressor Room and Heating Departments or those engaged in a confidential capacity.

That Steelworkers' Local has not intervened in this proceeding and there is nothing which suggests that millwrights or plumber/steamfitter work is performed under what appears to be a "production" collec­tive agreement.

17. However, Alcan Rolled Products Company, Kingston Works is also bound by a collective agreement with International Association of Machinists and Aerospace Workers Lodge 54 which contains the following recognition clause:

SECTION II

RECOGNITION

2.01 The Company recognizes the Union as certified by Order of the Ontario Labour Relations Board, dated the 4th day of April, 1945. as the sole collective bargaining agent for all the Company's employees at its Kingston Works save and except production workers, office staff, supervisory staff, including Foremen, Security Officers and factory clerks.

This is in effect a "maintenance" agreement. It contains both "plumber" and "pipefitter" classifications, and although it has no "millwright" classification as such, there are 26 individuals who are qualified millwrights, and there is construction plumbing/pipefitting, and construction millwright work per­formed at the Kingston Plant under this collective agreement.

18. "Alcan Foil Products, Division of Alcan Aluminium Limited" and United Steelworkers of America, Local 8754 are parties to a collective agreement which provides that:

Article 2

RECOGNITION

2.01 The Company recognizes the Union as the sole and exclusive bargaining agent for all of its employees at its premises in the Municipality of Metropolitan Toronto save and except supervisors, persons above those ranks, office and sales staff and students employed during the school vacation periods.

2.03 The words "employee" and "employees" where used in this Agreement shall mean only those persons employed by the Company as members of the aforesaid bargaining unit.

This collective agreement contains no "plumber" or "pipefitter" classification, and there are no employ­ees in the bargaining unit who are qualified as plumbers or steamfitters. It does however contain an "industrial millwright mechanical" classification, and there are four bargaining unit employees who possess industrial knowledge certificates of qualification, and who perform construction work as indicated in the agreed facts.

(b) Argument

19. Counsel for Alcan reiterated Alcan's position that the bargaining units in both applications should be restricted to its Chemicals division, Although Alcan made some brief further submissions in that respect, for the most part the employer (quite rightly) relied Ofl counsels' submissions in phase I of the proceeding in that respect.

20. Alcan also supported the intervening trade unions' proposition that at the very least, the bargaining unit descriptions should contain the sort of "save and except" provisions which would make it clear that any bargaining rights gained by the applicants herein did not affect the existing bargaining rights at the Kingston, Bracebridge or Toronto plants, Alcan relied upon the Board's decision in Corporation of the City of St. Thomas, [1993] OLRB Rep. May 408 and sought to distinguish the decisions in Corporation of the City of Etobicoke, [1983] OLRB Rep. Nov. 1825; Runnyrnede Development Corporation Limited, [1987] OLRB Rep. Oct. 1305; Ellis-Don Limited, [1988] OLRB Rep. Dec. 1254 (application for reconsideration dismissed [1989] OLRB Rep. Mar. 234); and Semple-Gooder Roofing Ltd., [1983] OLRB Rep. Nov. 1908.

21. The Steelworkers and Machinists referred to the Board's decisions in The Georgian Building Corporation. [1981] OLRB Rep. Mar. 275; Gottcon Contractors Limited, [1990] OLRB Rep. Jan. 25; Pickering Welding & Steel Supply, [1987] OLRB Rep. April 595; and also to the Corporation of the City of St. Thomas, supra. Counsel argued that the Board has always been prepared to ensure that existing bargaining rights are not affected by an application for certification, and that the fact that the issue in this case concerns the interplay between non-construction and construction bargaining units rather than only one type or the other should make no difference in that respect. Counsel submitted that the Semple-Gooder Roofing, supra, reasoning was not applicable in these circumstances, and that it is necessary to in effect "carve-out" the existing Steelworkers and Machinists' bargaining rights from the applicant's bargaining unit. Counsel conceded that doing so would not eliminate the possibility of jurisdictional disputes arising, but submitted that it would send a labour relations message to the parties in that respect, and accordingly, counsel submitted that it would be appropriate to include the words save and except employees in bargaining units for which any trade union held bargaining rights as of November 28, 1996", or in the alternative to limit the applicant's bargaining rights to Alcan's Chemicals division.

22. The applicants submitted that there is no basis for limiting the bargaining units herein to the Alcan's Chemicals division. Counsel submitted that the intervening trade unions hold no bargaining rights for construction employees, and referred the Board to Ecodyne Limited, [1979] OLRB Rep. July 629 in support of their proposition that the mere fact that a collective agreement has been applied to work or employees does not establish bargaining rights in that respect. Counsel relied upon the Corporation of the City of Etobicoke, supra, decision and submitted that the Corporation of the City of St. Thomas, supra, decision, which makes no reference to the earlier Corporation of the City of Etobicoke, supra decision, is wrongly decided. The applicants pointed to the Runnymede Development Corporation Limited, supra, decision and argued that the issue is one of bargaining rights, not of who does the work, and that the intervening trade unions have no bargaining rights for the trades or crafts which the bargaining units in these applications are made up of, and that neither they nor Alcan have suggested any cogent reason to describe the bargaining units herein in any other than the usual way; that is, without restricting the bargaining units to Alcan's Chemicals division, or using the "save and except" language suggested.

(c) Decision

23. The Labour Relations Act, 1995 is the cornerstone of labour relations legislation in Ontario. It is through this Act, and through other specialized labour relations legislation (such as the Colleges Collective Bargaining Act and the School Boards and Teachers Collective Bargaining Act, for example) that trade unions are recognized as vehicles through which employees can bargain collectively with employers. The current Act has its roots in the Collective Bargaining Act, 1943, which abolished the common-law doctrines of conspiracy and restraint of trade insofar as these applied to trade unions, which recognized trade unions as legal entities for collective bargaining purposes, and which gave employees the right to join trade unions and bargain through them with employers. The Act has changed a great deal over the course of its 54 year history. However, the fundamental purposes of the Act have remained constant throughout, and the evolution of the Act has been marked by efforts to further these 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 a trade union;

(b) to facilitate collective bargaining, and the orderly, expeditious and peaceful resolution of workplace disputes.

24. Today, the Act provides a sophisticated legislative scheme which establishes the means by which collective bargaining rights are gained or lost, primarily on the basis of some expression of employee wishes, by providing a framework for collective bargaining and requiring that workplace disputes during the term 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 both trade unions and employers' organizations). The Act creates a web of rights, duties and obligations, and provides a system of checks and balances for the competing and sometimes conflicting rights of employees, trade unions and employers. As a general matter, these rights are mutually exclusive such that the rights of one of employees, trade unions and employers end where the rights of one of the others begin. To put it another way, the exercise of rights under the Act by one is checked or balanced by the existence of an obligation or right of another.

25. This remains the case under the current Act, and while employers have rights under the Act, the purpose of the Act has been to provide a more equitable balance of power and labour relations between employers and their employees. This has been accomplished by giving rights to employees and trade unions which they do not have under the common law and have not otherwise enjoyed, which rights operate to check and limit the rights employers have enjoyed outside of labour relations legislation and specifically the Act. Under the Act, the focus has always been on the rights of employees and trade unions, primarily as against employers. The keystone of this focus has always been bargaining rights.

26. Accordingly, the Act operates to preserve and protect established bargaining rights against erosion by employers, or incursion by other trade unions. Concomitantly, the Board's jurisprudence demonstrates a well-established practice of recognizing and preserving existing bargaining rights. In the result, the Act has (always) been interpreted and applied with a view to promoting labour relations peace and stability.

27. This is readily apparent from the Board's approach to applications for certification with respect to employees in workplaces or where bargaining rights have already been established (as demonstrated in decisions like Gottcon Contractors, supra, and The Georgian Building Corporation, supra). Where an employer already has one or more trade union collective bargaining partners, the established bargaining rights operate to prohibit or limit a subsequent application for certification with respect to employees to whom those bargaining rights apply. The Act provides that during certain limited periods a trade union can make an application for certification for employees who are already represented by another trade union. Such displacement applications are prohibited outside of these "open periods" established under the Act.

28. Even where a trade union makes an application for certification with respect to employees who are unrepresented, it is sometimes necessary to make it clear that the bargaining unit applied for does not include employees who are already represented by a (usually another) trade union, particularly where the application is made outside of an open period. This is generally accomplished by including some "save and except" language, like that suggested by the intervening trade unions in these applica­tions, in the bargaining unit description. It is not generally accomplished by limiting the bargaining unit to a part or "division" of the employer. The latter has a different purpose altogether; namely, to identify the employer entity which is the subject of particular bargaining rights - and not to describe the employees to whom the bargaining rights attach, which as the label suggests, is the function of the bargaining unit description.

29. The Board has a discretion in dealing with bargaining unit description issues, whether these issues relate to questions of geographic scope or other matters. This is appropriate because it permits the Board, as an expert labour relations tribunal, some latitude in structuring appropriate bargaining units. However, the Board's discretion is directed by the Act, and the degree of discretion which the Board has is not the same in every case. It is axiomatic that the discretion which the Board has in a particular case depends upon the direction which the Act provides.

30. For instance, the Act has long provided that: "upon an application or certification, the Board shall determine the unit of employees that is appropriate for collective bargaining ..." The Board has always considered that trade unions are generally able to make their own assessment of the bargaining unit which is appropriate for their collective bargaining purposes. Accordingly, in order to give trade unions the appropriate leeway in selecting their bargaining units, the Board has treated the legislative direction to determine "the appropriate bargaining unit" to be a direction to determine a bargaining unit which is an appropriate one in the particular application, rather than to try to determine the most appropriate bargaining unit. In this respect then, the Board exercises a very broad discretion indeed.

31. When it comes to "craft" units (section 9(3)), units of professional engineers (section 9(4)), or units consisting solely of dependent contractors (section 9(5)), the Board is given some more specific direction in terms of the employee composition of bargaining units, but still retains a broad discretion with respect to geographic scope.

32. In that latter respect, sometimes the Board will restrict a bargaining unit to a particular location, particularly in the retail industry. But that is not the Board's general practice. Seventeen years ago, in York Steel Construction Limited, [1980] OLRB Rep. Feb. 293, the Board described its practice regarding the geographic scope of bargaining units as follows:

33. The Board in Wix Corp. Ltd.. [1975] OLRB Rep. Aug. 637 canvassed in some detail the Board's practice with respect to defining geographic limitations in the appropriate bargaining unit. Apart from the construction and perhaps certain service industries, the Board's policy, where the employer has employees at only one location within a municipal area, is to describe the bargaining unit in terms of the municipality itself (Perimeter Industries Limited, [1973] OLRB Rep. March 174). On occasion the Board will expand its definition of the bargaining unit to encompass an area greater than a single municipality (see The Board of Health of the York-Oshawa District Health Unit, [1969] OLRB Rep. Feb. 1178; The Adams Furniture Company Limited, [1975] OLRB Rep. June 491; and note as well the Board's normal unit of "the Municipality of Metropolitan Toronto"), but is reluctant to do so in the absence of compelling reasons ( Wittich's Bread Limited, [1969] OLRB Rep. Jan. 1019; Del Zotto, [1972] OLRB Rep. June 637 and Canada Safeway' Limited, [1972] OLRB Rep. Mar. 262). The primary reason for this policy of municipality-wide bargaining units is the Board's concern for stability of bargaining rights; i.e., the union's bargaining rights will not be affected by a subsequent move of the employer's operation to some other location within the same municipality. On the other hand, actual accretions to the employer's operations within the municipality, such as a second or third plant, will automatically be covered by the union's certificate. To this latter extent, the right of self-determination of a bargaining agent by the employees at these new locations is compromised, in favour of the over-riding concern for stability of bargaining rights.

[emphasis added]

33. In York Steel, supra, the Board noted that things were different in the construction industry. Indeed, the construction industry has always been "different". In my March 10, 1997 decision herein, and also in Ontario Hydro, [1997] OLRB Rep. Jan./Feb. 82, I observed that the differences between construction and non-construction labour relations have been legislatively recognized in the Act since 1962 when the Labour Relations Act, 1961-62 was passed. In that respect, at paragraphs 26 to 28 of the Ontario Hydro, supra, decision, I wrote that:

34. 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.

35. 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.

36. 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 I. 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.

(See also the comments of the Divisional Court in that respect in Re International Union of Operating Engineers and Traugott Construction, 1984 CanLII 2011 (ON HCJ), 6 D.L.R. (4th) 122).

34. As I observed in the March 10, 1997 decision (at paragraph 50) herein, one result of all this is that we have in this province a certification scheme for the construction industry which is both separate and quite different from the one established for non-construction industries. The differences appear both in the manner in which applications for certification are dealt with, and more specifically in how bargaining units are described.

35. While there are exceptions, particularly when it comes to craft or "craft-like" units, non-construction bargaining units are generally described in terms of "all employees save and except" perhaps certain kinds of employees, and persons at or above the first level of management (which is redundant for purposes of Board proceedings since persons who are "management" are not "employees" for purposes of the Act but is included in order to give greater clarity to bargaining unit descriptions by identifying the first managerial level).

36. On the other hand, construction bargaining units are described in terms of specific trades or crafts (except in the case of construction operating engineers where the bargaining unit is described in terms of the construction work they engage in, and which work defines the trade) and include "working foremen". Typically, construction collective agreements cover specific employees defined by the trade they work at and assert a trade work jurisdiction for these employees. An important difference (for these applications) is immediately apparent: construction bargaining units are specifically restricted to construction employees, but non-construction bargaining units are not. Although none come immedi­ately to mind, there may be some "non-construction" collective agreements which specifically exclude construction work or employees. But the vast majority do not, and I am unaware of any Board determined bargaining units which specifically do so. Indeed, this is an issue which the Board is typically not asked to address. Nor is it apparent that parties to a non-construction application for certification consider whether the employer has employees who regularly or periodically perform construction work to the extent that on the Board's test they are construction employees, either normally or from time to time. Accordingly, whether "all employees" means precisely that; that is, all employees regardless of the work they perform and subject only to the express exclusions; or whether a non­construction bargaining unit presumptively excludes any construction employees of an employer, is not an issue which has been directly addressed by the Board. (Nor is it raised as an issue in this case).

37. Another difference is the one suggested in the York Steel, supra, decision; that is, in the geographic scope of bargaining units. As a general matter, the geographic scope of non-construction bargaining units is narrower than that of a construction industry bargaining unit. Again, there are exceptions (occasional teacher and security guard units come to mind), but the largest geographic area covered by a non-construction bargaining unit is generally a municipal area; that is, a local political division. It can be much smaller, hut if it is it tends to be restricted to a particular municipal location or address (as in the case of retail or service industry employers which have more than one location within an otherwise appropriate municipal area in circumstances where it is not appropriate, either because the parties agree or otherwise, to include all ot' these in the bargaining unit). In contrast, construction industry bargaining units cover much larger geographic areas. Indeed, where a construction trade union (that is a "trade union" within the meaning of section 126 of the Act) makes an application for certification in the construction industry (i.e. an application for certification within the meaning of sections 128 and 158), section 128 of the Act directs that the Board "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" [emphasis added]. Further, the Act has created a provincial bargaining structure for the industrial, commercial and institutional sector of the construction industry such that a construction trade union which is an affiliated bargaining agent of a designated employee bargaining agency (as defined in the Act) is entitled to a province-wide bargaining unit in the industrial, commercial and institutional ("ICI") sector. Indeed, such a trade union has no choice in that respect. If it wishes to obtain ICI bargaining rights, it must apply for a province-wide bargaining unit. Even for construction trade unions which are not affiliated bargaining agents, or in applications for certification (or voluntary recognition agreements) which do not apply to the ICI sector, the geographic scope of a construction bargaining unit is defined in terms of the 32 geographic areas which have been established by the Board in that respect (or if the job site is in one of the so-called "white areas" in terms of the geographic township the site is in and the 8 geographic townships surrounding it). There is a great deal of variation in the size of these "Board areas", but all of them are significantly larger than the typical non-construction bargaining unit geographic area. Some Board areas are quite large, and all of them include more than one or parts of more than one municipal or other political unit. Indeed, these Board areas were established having regard primarily to patterns of collective bargaining and local geographic jurisdictions, without more than a very general regard to municipal or other political boundaries.

38. Until recently, none of this presented any significant problems, partly because of the historical separation between construction industry and non-construction trade unions in terms of the employees they seek to represent and the work these employees perform, partly because of the amount of construction work performed under non-construction collective agreements has tended not to be significant in the overall scheme of things (the Ontario Hydro situation may be the most obvious exception to this), and partly because until recently the overall employment picture in the construction industry has been good. Nevertheless, the line between non-construction and construction bargaining rights is neither narrow nor clear, and the two regimes have co-existed somewhat uneasily.

39. With this in mind, I turn first to the assertion by Alcan (also made in the alternative by the Steelworkers and Machinists) that the bargaining units in these applications should be described in terms of the Chemicals' division rather than in terms of Alcan. In that respect, the question is this: is it appropriate to restrict the bargaining rights which are the subject of these applications to construction employees who work in or at a plant of the particular division where the construction work in which the employees who are the subject of these applications were engaged at the time the applications were made, along with a smaller physically separated plant in the same division in which no construction work was being carried on at the time'?

40. Prima facie, it is not appropriate to do so. Prima facie it is appropriate to describe a bargaining unit in terms of the employer party as such and not in terms of some part of the employer.

41. Nor is the Board satisfied that there is any cogent reason to describe the bargaining unit in terms of a part of Alcan, namely its Chemicals division, in these applications.

42. As I pointed out in paragraph 53 of the March 10, 1997 decision herein, construction industry bargaining units, unlike non-construction bargaining units, generally neither depend upon nor retlect an employer's internal structure, and as a general matter the Board has not found it appropriate to limit a construction bargaining unit description to a "division" of an employer except on agreement of the parties, or where the division is either in fact the only division of the employer, and therefor reflects the actual name of the employer, or is the only part or division of the employer which performs construction work as a separate entity.

43. That is not the case in these applications. As I found in my March 10, 1997 decision, construction work of any significance may be proposed and supervised on a day-to-day basis at the plant or division level, but it is subject to approval and financing at a higher corporate level. That is, construction activities within Alcan are centrally controlled. Further, it is patently obvious that Alcan does not have a construction "division", and that construction activities are not limited to a particular division. Nor is the fact that construction work may be performed regularly (although not necessarily continuously or daily) in the various Alcan plants, including in the Chemicals' division plants, either under a non-construction collective agreement or otherwise, a reason to limit the bargaining unit to a part of Alcan. To the extent that such work is performed under an existing collective agreement, in these applications it is a matter which is relevant, if it is relevant at all, to the issue of what if anything is necessary to recognize and preserve the existing bargaining rights as exercised under those collective agreements, and potentially to a jurisdictional dispute complaint if one arises. It is not a matter which pertains to the question of "who is the employer" or how the employer is to be identified for collective bargaining purposes. Indeed, to limit the bargaining unit description to the Chemicals' division would go much further than could possibly be necessary to protect any existing collective bargaining interests because the limitation would apply to exclude present or future Alcan operations outside of Chemicals at which no other trade union holds relevant bargaining rights.

44. Finally, although acceding to Alcan's request would not confine the bargaining unit to a particular project, something which is prohibited by section 128(1) of the Act, it would come close to doing so and would have a similar effect. For this reason alone, it would therefore be inappropriate to limit the bargaining units herein to Alcan's Chemicals division.

45. I now turn to the assertion that some appropriate "save and except" language ought to be included in a bargaining unit in order to recognize and preserve the existing bargaining rights of the Steelworkers and Machinists as aforesaid.

46. In Ecodyne Limited, supra, the Board was presented with a situation where contractors bound by local area agreements applied those agreements to their employees when they worked on Ontario Hydro jobs notwithstanding that those employees were not covered by the scope clause of the local agreements. The Board held that the mere fact that the terms of a collective agreement were applied to certain work and employees does not mean that the union party to the collective agreement therefore holds bargaining rights for the employees involved. The Board in that case went on to observe that:

……it is not at all uncommon in the construction industry for employers not formally bound to a collective agreement to nevertheless employ union members under the same terms and conditions as set forth in a collective agreement without any intention of thereby conferring bargaining rights on the union. Similarly, trade unions in such circumstances sometimes refrain from applying to the Board to be certified as the legal bargaining agent of the employees involved notwithstanding the fact that the employees are union members.

With respect, the Board's observation and conclusion in Ecodyne Limited, supra, is as true today as it was in 1979 - as far as it goes. Sometimes, the effect of an agreement between an employer and a trade union to apply a collective agreement to work or employees which would otherwise not be covered by the collective agreement does have the effect of extending the trade union's bargaining rights to such work or employees. Whether it does or doesn't do so depends upon the mutual intent of the parties.

47. Indeed, that appears to be the basis for the Board's decisions in The Corporation of the City of Etobicoke, supra, and Corporation of the City of St. Thomas, supra. At the very least, these decisions can be reconciled on this basis. However, these decisions and the issue bear further examination.

48. The Corporation of the Cit of Etobicoke, supra, was an application for certification in the construction industry by the International Union of Bricklayers and Allied Craftsmen, Local 2 ("Brick 2") for its standard bricklayers and stonemasons bargaining unit under what is now section 158(1) of the Act. The employer asserted that an existing collective agreement it had with a non-construction union, The Borough of Etobicoke Civic Employees Local Union No. 185, was a bar to the application on the basis that that collective agreement covered bricklayers performing construction work. However, the incumbent trade union ("Local 1 85") agreed with Brick 2 that it did not, and that the existing collective agreement was therefore not a bar to the application. The Board concluded that the collective agreement was unambiguous and did not cover construction work performed by bricklayers. The significant point is that whether or not the employer had employed bricklayers to perform construction work and had applied the terms of the existing collective agreement with Local 185 to them, it and Local 185 had not agreed that the collective agreement and the union's bargaining rights extended to such employees; that is, the employer and Local 185 did not mutually intend that bargaining rights be extended in such a manner.

49. In Corporation of the City of St. Thomas, supra, on the other hand, the International Union of Bricklayers and Allied Craftsmen, Local S and the Labourers' International Union of North America, Local 1059 each applied for their standard craft bargaining units under what is now section 158(1) of the Act. They were faced with the response from the employer and an intervention by the Canadian Union of Public Employees, a non-construction union, that the applications were barred by a collective agreement between the employer and CUFF, Local 35 (“Local 35") which covered the bargaining units and therefore the employees with respect to which the applications were brought. The decision in that case, which does not refer to the earlier Corporation of the City of Etobicoke, supra, decision, reveals that the Board heard extrinsic evidence on the issue and concluded that:

50. The Board is satisfied that the collective agreement applies to the groups of employees whom the applicants seek to represent. The recognition clause covers all employees of the City in its 'outside" departments. The only specific exclusions are foremen and those above the rank of foremen, and employees covered under the agreement of Local 841 (which is the CUPE "inside" local). The wording of the recognition clause is not always determinative of the issue, but in this case, the evidence is consistent with the terms of the agreement in establishing that it was meant to apply to all outside workers, including those engaged in construction work. Crossing guards, who are arguably "outside" workers, are apparently covered by a part-time collective agreement with Local 841. but are in any event employed by the engineering section of the City's operations, and not by the departments listed in the Local 35 agreement. We do not view this as significant in determining the intent of the Local 35 agreement.

51. It is also not significant to us that there are no specific wages in the agreement for bricklayers or construction labourers. Until 1992, the City relied on employees with a variety of skills to perform its construction work, rather than employees who were highly specialized. The lack of classifications for specific construction trades does not lead to the conclusion that in the event the City decided to create such classifications. CUPE would not he entitled to represent these employ­ees. In fact, in 1992, the City decided to hire two bricklayers as part of the job creation programs. We are satisfied that the City looked to CUPE to consent to the special arrangements and that CUPE agreed. The evidence of these discussions is consistent with an understanding that CUPE represents all outside workers hired by the City. It does not support the conclusion that CUPE has bargaining rights for employees with general skills who sometimes work in construction. but not for employees hired for specialized construction skills, if the City hired them. It also does not support the conclusion that CUPE intended to abandon bargaining rights for bricklayers, labourers, casual labourers, or construction employees hired under job creation programs.

In other words, although the existing collective agreement did not on its face clearly cover the employees whom the applicants in those two applications sought to represent, the Board was satisfied that the collective agreement had been applied to such employees, and that the employer and Local 35 mutually intended that the collective agreement extend to them, and that CUPE therefore already held bargaining rights for them.

50. The Board in Corporation of the City of St. Thomas, supra, went on to comment that:

51. Our findings are consistent with those in the cases submitted by counsel for the applicants. For instance, Runnymede Development Corporation Limited. supra. involved bargaining units de­scribed in terms of specific construction trades. There, the Board found that the "mere fact that members of one trade union, pursuant to the terms of a collective agreement, perform work that members of another trade union perform as well (for other employers), does not mean that that collective agreement covers that other trade." That case did not involve a collective agreement which on its face applies to "all employees". The present case is also distinguishable from E K T Industries Inc., supra, in which the Board found that despite an "all employee" recognition clause, the union in question represented and only claimed to represent construction labourers.

52. In Runnymede Development Corporation, supra, Carpenters Local 27 applied for its stan­dard section 158(1) (section 144(1) at the time) bargaining unit of carpenters and carpenters' appren­tices. Labourers' Local 1 83 intervened, asserting that the employees who were the subject of the application were covered by a collective agreement between it and the Metropolitan Toronto Apartment Builders' Association (the "MTABA Agreement"), by which the responding employer was bound pursuant to a "cross-over" provision in a collective agreement between Labourers' Local 183 and the Toronto Housing Labour Bureau (the "Housing Bureau Agreement"). The Board concluded that although the employer was not a member of the MTABA and was not a party to the MTABA Agreement as such, it was bound to apply the terms and conditions of the MTABA Agreement as though it was a part of the Housing Bureau Agreement by which the employer was directly bound. The Board went on to find that:

53. In Article 1 of the Housing Bureau Agreement. the employers who are bound by that agreement recognize the intervener as the bargaining agent of their "Construction Employees". However, that very broad term is restrictively defined in terms of the nature of work performed. Pursuant to Article 1.01(a). "Construction Employees" are those "(whose Classifications fall into a category listed in Schedule 'A" attached hereto) engaged in the on site construction of all type of low rise housing only and their natural amenities ...". Article 6.01 of Schedule "A" goes on to define ~'Construction Employees" as being those who perform any or all of a series of listed work or job functions, all of which are, particularly in the industrial, commercial and institutional sector of the construction industry, commonly associated with construction labourers.. In addition, unlike the Residential Housing Carpentry Agreement, to which the intervener is also a party and which is a collective agreement referred to in Article l.03(a)(iii), the Housing Bureau Agreement makes no reference to carpenters or carpenters' apprentices and contains only one wage rate which applies to all of the work performed under it. In our view, the provision in Article 6.1 of Schedule "A" that the job functions listed "shall in no way be limited [thereto], which is intended as a general description only ..." at best means no more than that other work or functions similar in nature to those listed are also covered by the agreement. Consequently, the intervener is not, in our view, the bargaining agent for all "Construction Employees" of employers bound by the Housing Bureau Agreement but only for those employees of such employers in the listed and analogous classifica­tions.

54. Except for bargaining units of or including operating engineers, it is the long-standing practice of the Board to describe bargaining units in the construction industry in terms of trades or crafts (for our purposes these terms are synonymous) rather than in terms of the work performed. This practice recognizes that trade union representation in the construction industry has traditionally been along trade lines and attempts to avoid interfering with established trade union work jurisdic­tions (see Robertson- Yates Corporation Limited, [1979] OLRB Rep. April 344; Semple-Goader Roofing Ltd.. [1983] OLRB Rep. Nov. 1908). Unfortunately, the work jurisdictions of trades do overlap. In addition, as we have already noted, collective agreements in the construction industry often identify the employees in the bargaining unit to which they apply in terms of the work they perform. As a general rule, there is no necessary congruence between the bargaining rights held by a trade union and its work jurisdiction. Consequently, a construction industry trade union does not necessarily have a general absolute right to a particular kind of work, even though that work may be performed by employees whom it represents (which in the construction industry usually means its members) pursuant to the terms of one or more collective agreements. The fact is that, in the construction industry, more than one trade union may have bargaining rights for employees who, though described in terms of different job categories, perform some of the same work. These overlaps give rise to competing claims for work between trade unions; that is, jurisdictional disputes (see for example Toronto Star Newspaper Limited, [1979] OLRB Rep. May 451). An application for certification is not the appropriate forum for settling such disputes or for determining the jurisdictional limits of trade unions (Industrial Lighting and Contracting Limited. [1979] OLRB Rep. Oct. 985. Further, because the Board's practice in the construction industry is to describe bargaining units in terms of trade rather than work performed, the mere fact that members of one trade union, pursuant to the terms of a collective agreement, perform work that members of another trade union perform as well (for other employers), does not mean that that collective agreement covers that other trade (see The Frid Construction Company Limited, [1975] OLRB Rep. March 146: Graff Diamond Products (Board File No. 2817-86-R) decision dated June 29. 1987, unre­ported).

55. Some of the work covered by the Housing Bureau Agreement is work which can be, and is. performed by either construction labourers, or by carpenters or carpenters apprentices: that is, it is work over which both trades asset jurisdiction. In other words, some of the work covered by the Housing Bureau Agreement can be done by either members of the United Brotherhood of Carpenters and Joiners of America, (the "Carpenters") or by members of the Labourers' International Union of North America (the "Labourers"). It is both "labourers work" and "carpenters work". In such circumstances, the work being performed cannot be determinative of the trade of the person performing it; that is, it is not work belonging to the Labourers just because a labourer is doing it, nor is it work belonging to the Carpenters just because a carpenter or carpenter's apprentice is doing it. An employee is not a construction labourer merely because s/he is doing work that a construction labourer sometimes does if carpenters also perform that work as part of their trade. Consequently, the fact that members of the intervener sometimes perform work (for the respondent) that carpenters also do does not mean that the intervener represents all carpenters employed by the respondent.

In the result, the Board went on to conclude that notwithstanding that carpentry work was being performed by employees for whom Labourers' Local 183 held bargaining rights, Local 183 did not hold bargaining rights for the carpenters for whom Local 27 sought to be certified, a conclusion which is consistent with the Ecodyne, supra, analysis.

52. Accordingly, the ratio of the Corporation of the City of St. Thomas, supra, decision must be that notwithstanding that there were no "bricklayer" or "construction labourer" classifications in the existing collective agreement (although there were "casual labour" and "student labourer" classifica­tions in it), the employer and CUPE Local 35 in that case mutually intended that their collective agreement applied to and they did in fact apply it to bricklayers and construction labourers, the employees in issue in the applications by Brick Local 5 and Labourers' Local 1059 in that case.

53. I have already observed that it is not uncommon for construction employees to he included in bargaining units under non-construction collective agreements, and for construction work to be performed under non-construction collective agreements. It is also true that non-construction work is performed by construction employees under construction collective agreements, but to a lesser extent.

(I note that in determining who is or is not a "construction employee", the test which the Board has consistently employed since 1987 is the one outlined in Gilvesy Enterprises Inc., [1987] OLRB Rep. Feb. 220 and E & E Seegmiller Limited, [1987] OLRB Rep. Jan. 41: any employee who spends a majority of his/her time performing construction work on a particular day is a "construction employee" on that day for purposes of proceedings under the Act.)

54. Whether or not they would be construction employees on the Board's test, it is clear that employees covered under the Steelworkers or Machinists' collective agreements with Foil, Cable or Rolled Products, as the case may be, sometimes perform construction work which in the construction industry is performed by plumbers, steamfitters (pipefitters) or millwrights under those collective agreements. It is apparent that the amount of construction work performed under these collective agreements, and the time spent performing construction work by employees in those bargaining units varies. However, it is also apparent that construction work in either trade is not performed on a daily basis, or at least not enough of it to make the employees who perform it into construction employees (on a daily basis) according to the Board's test. In these applications for example, there were no employees under any of the Steelworkers or Machinists' collective agreements in issue who on the Board's test would be employees in either of the construction bargaining units applied for.

55. Further, a close examination of the agreed facts is revealing. At the Foil plant, the collective agreement contains no plumber or steamfitter classifications and Alcan has employed no qualified plumbers or steamfitters under the Steelworkers' collective agreement. The majority of the plumbing and steamfitting work performed at this plant is characterized by the parties as being "minor" construc­tion work, and 90 per cent of it is performed by "millwright mechanics" (none of whom have construction certificates of qualification of any sort). Four millwrights with industrial certificates of qualification at that plant spend a majority of their time either doing breakdown repairs or engaged in continuous upgrade work.

56. In the result, at Foil, none of the plumbing or steamfitting work being performed under the Steelworkers (Local 8754) collective agreement has been performed by plumbers or steamfitters but millwright' work is being performed under that collective agreement, albeit not by individuals who are millwrights (albeit not construction millwrights). Further, in counsel's January 29, 1997, letter to the Board in these applications, in which the Steelworkers' request intervenor status and set out the basis for that request, it is asserted that:

At both locations [a reference to both the Foils' plant and the Cable plant], the USWA represents employees who perform functions commonly performed by millwrights, although at Bracebridge [the Cable plant], the employees occupy the classification of Tool and Die Mechanic. Similarly, some employees within the USWA bargaining units occasionally perform duties related to plumb­ing. In the past, employees in these trades and covered by the USWA collective agreements have performed "construction" work. [emphasis added]

57. On the basis of the materials before the Board, the Steelworkers represents employees who perform work which falls within the plumbing or steamfitting trades at the Foil plant in Toronto, but does not represent plumbers or steamfitters there. However, the Steelworkers does represent employees who are qualified as millwrights and who perform construction work which falls within the millwright trade. Accordingly, the Steelworkers at the Foil plant in Toronto do not represent employees in the trades of plumber or steamfitter, but they do represent employees in the trade of millwright.

58. At the Cable plant in Bracebridge, the situation is even clearer. The Steelworkers (Local 7949) represents millwright mechanics who perform plumbing and steamfitting work, but it does not represent plumbers or steamfitters. On the other hand, the Steelworkers clearly represents millwrights who perform construction work.

59. At Rolled Products plant in Kingston, the Machinists (Lodge 54) represents qualified "plumber/steamfitters" (sic). The fact that 50 per cent of the plumbing and steamfitting work at the facility is performed by persons who are not journeymen or apprentice plumbers or steamfitters is irrelevant to the Board's considerations. Under its collective agreement with Rolled Products, the Machinists represent construction plumbers and steamfitters. Similarly. although they are not called millwrights", qualified millwrights are employed and perform construction millwright work under this collective agreement.

60. It is therefor apparent that Alcan and the Steelworkers have mutually intended that the collective agreements between them cover millwrights employed at the Foil plant in Toronto and at the Cable plant in Bracebridge. Similarly, it is apparent that Alcan and the Millwrights have mutually intended that the collective agreement between them covers plumbers, steamfitters (which are the same as pipefitters for purposes of the Act: see, D.E. Wittner Plumbing and Heating Limited, [1987] OLRB Rep. Oct. 1228), and millwrights at the Rolled Products Plant in Kingston.

61. In the result, the Board is satisfied that some "save and except" exclusionary language is appropriate, but only to the extent necessary to protect the Steelworkers and Machinists existing bargaining rights.

62. In that respect, in an application for certification the Board does not concern itself with issues of work jurisdiction. Applications for certification are about the representation of employees; that is, they are about whether employees do or do not wish to be represented by a trade union which is entitled to bring the application in their employment relations with their employer. Undoubtedly, the acquisition of bargaining rights can have work jurisdiction implications for the employees, for the employer, and for any other trade union which holds bargaining rights for other employees of the employer, but these do not relate to any issue which it is necessary or appropriate for the Board to determine in an employee representation proceeding. On the contrary, work jurisdiction issues are appropriately dealt with under the jurisdictional dispute provisions of section 99 of the Act, and the process which has been specifically designed to deal with such issues (Semple-Gooder Roofing, supra; Industrial Lighting and Contracting Limited, [1979] OLRB Rep. Oct. 985). This is why the Board describes both construction and non-construction bargaining units in terms of the employees in them rather than the terms of the work performed (except in the anomalous case of construction operating engineers).

63. In this case, the intervenor trade unions concede that there is nothing which the Board can do which will entirely eliminate the potential for work jurisdiction friction between them and the applicants, but suggest that the "save and except" language they have suggested is necessary both to preserve their respective existing bargaining rights and to send a labour relations message regarding jurisdictional disputes which may develop.

64. The Board is satisfied that it is necessary to include something in the bargaining unit description to preserve the Steelworkers and Machinists existing bargaining rights. However, while the Board would have accepted the broad language which the Steelworkers and Machinists suggest if it had been presented as an agreement of the parties, the Board is satisfied that it is both necessary and appropriate to be more specific in that respect having regard to the evidence before the Board.

65. In the result, the Board finds it appropriate to reconsider the bargaining unit determinations in paragraphs of the December 3, 1996 decision in Board File No. 2736-96-R, and in paragraph 8 of the December 3, 1996 decision in Board File No. 2743-96-R by revoking those paragraphs and substituting the following therefor:

(a) In Board File No. 2736-96-R:

5. The Board finds, pursuant to section 158(l) of the Act, that all millwrights and millwright apprentices in the employ of Alcan Aluminium Limited in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario, and all millwrights and millwright apprentices in all other sectors of the construction industry in the geographic Townships of Elizabethtown, Augusta and Ed­wardsburg and all lands south thereof in the United Counties of Leeds and Grenville. save and except millwrights and millwright apprentices employed under the USWA. Local 8754 collective agreement at the Alcan Foil Products Plant in the Municipality of Metropolitan Toronto, millwrights and millwright apprentices employed under the USWA, Local 7949 collective agreement at the Alcan Cable plant in Bracebridge, and millwrights and millwright apprentices employed under the International Association of Machinists and Aerospace Workers Lodge 54 collective agreement at the Alcan Rolled Products Company plant in Kingston, and save and except non-working foremen and persons above the rank of non-working foreman, constitute a unit of employees appro­priate for collective bargaining.

(b) In Board File No. 2743-96-R:

8. The Board finds, pursuant to section I 58(1) of the Act, that all plumbers, plumbers' apprentices, steamfitters and steamfitters' apprentices in the employ of Alcan Aluminium in the industrial, commercial and institutional of the construction industry in the Province of Ontario, and all plumbers, plumbers' apprentices, steamfitters and steamfitters' ap­prentices in the employ of Alcan Aluminium Limited in all other sectors of the construc­tion industry in the geographic Townships of Elizabethtown, Augusta and Edwardsburg and all lands south thereof in the United Counties of Leeds and Grenville, save and except plumbers, plumbers' apprentices. steamfitters and steamfitters' apprentices em­ployed under the International Association of Machinists and Aerospace Workers Lodge 54 collective agreement at Alcan Rolled Products Company plant in Kingston, and save and except non-working foremen and persons above the rank of non-working foreman, constitute a unit of employees appropriate for collective bargaining.

9. In neither application is either the validity of the order directing the representation vote, or the representation vote itself affected by this determination.

V

Motion to Dismiss Alcan's Allegations

67. I turn now to consider the U.A.'s motion to dismiss Alcan's allegations that it has acted improperly. Essentially, this is in the nature of a "no prima facie case" motion.

68. In a letter from counsel dated December 5, 1996, Alcan alleges that:

It is the Responding Party's submission that the Application for Certification by the Applicant ought to be dismissed as a result of the Applicant's conduct in seeking access to the employer's premises for the purposes of obtaining bargaining rights. The Responding Party submits that the Applicant's misrepresentation to the employer with respect to their intentions is such that they ought to be estopped from applying for certification for bargaining rights for this employer.

The employer hired pipefitters through the Kingston local of the union. In October the employer's Construction Manager. Mr. Paul Glaser started hiring people through the business manager of the

Applicant, Mr. John Telford. Within a week of the first hires starting work the employer was advised by subcontractors that there was talk that an Application for Certification was being sought by the Applicant. The employer had a meeting with Mr. Telford, the Business Manager for the Applicant, to discuss the matter and obtain his assurance that the rumour was untrue. The employer's representatives met with Mr. Telford on October 22, 1996 for the sole purpose of getting this assurance. The meeting was attended by Mr. Glaser, Mr. Telford, and Mr. Derek Prichett. Produc­tion Manager for the employer and Mr. Roy Meikle, Plant Manager for the employer. At that meeting, the employer was assured by Mr. Telford that his interest was only to seek employment of his members and that as long as Mr. Glaser continued to hire union members only, through him, there would be no Application for Certification by the union at the site. The parties shook hands on that agreement and relied upon it.

Given that the union and the employer had agreed on the conditions of employment for these employees, specifically that the union not be seeking certification for this particular employer, the Board should dismiss the Application for Certification for those employees by the same union, since the union will have gained an unfair advantage and the employer will have been prejudiced by the Application and the breach of the Agreement. As such the employer asks that the Application for Certification by the Applicant be dismissed as a result of the Applicant's conduct.

69. The U.A. responded by letter from counsel dated December 6, 1996, in which it makes "comments' consisting of both factual assertions and representations. I find it unnecessary to set any of these out.

70, Alcan urged the Board to hear the evidence of its allegations and then determine the issue on its merits. The issue identified by Alcan in that respect is the conduct of the U.A. Counsel argued that if the Board declines to even entertain Alcan's allegations, it will be "sending a message" that unions can do whatever they wish without fear of consequences or even review by the Board. Counsel referred to sections 2 and 5 of the Act, and submitted that the U.A., through its representative, Telford, had made a representation upon which Alcan relied to its detriment and that it should at least be in effect estopped from bringing its application for certification here. In that respect, counsel sought to distinguish between the employees who supported the application and the U,A, on the basis that the estoppel it asserted applied only to the trade union, Further, Alcan did not suggest the effect of the U.A,'s alleged conduct should be to disenfranchise any of the bargaining unit employees; that is, to disentitle them from casting a ballot in the representation vote,

71, Assuming as I must that all of Alcan's allegations in this respect are true and provable, lam satisfied that Alcan has not made out a prima facie case for the relief it seeks, namely dismissal of the U.A.'s application for certification, Nor is there anything in the allegations which suggest any cogent reason to inquire further into them,

72. It seems that the doctrine of estoppel is sometimes discussed or applied without regard to the distinctions within the general doctrine, For example, there is a difference between estoppel in pais (by conduct or representation) on one hand, and promissory estoppel on the other. The essential elements of any estoppel are the same: that is, an unambiguous representation made with the intention that it will be acted upon, upon which the party which received the representation relies and acts upon to its detriment. In estoppel in pais, however, the representation must be of some existing fact, while, as its label suggests, promissory estoppel requires a representation that a party will do or refrain from doing something in the future. Although it is not obvious that estoppel in pais could not apply in appropriate circumstances, it is the doctrine of promissory estoppel which is most often been applied in labour relations matters (see, for example, CN/CP Telecommunications and Canadian Telecommunications Union, 1981 CanLII 4518 (ON LA), 4 L.A,C. (3d) 205 (Beatty); application for judicial review dismissed by the Divisional Court in (1981)1981 CanLII 2953 (ON HCJDC), 34 OR, (2d) 385).

73, It is the doctrine of promissory estoppel which Alcan seeks to invoke in this case. The problem is that the necessary precondition which underlies all estoppels does not exist. All estoppels assume the existence of a legal relationship between the parties to the alleged estoppel. An estoppel is born of a legal relationship and not vice-versa, In this case, there was no legal relationship between Alcan and the U,A. at any material time, and more specifically at the time the alleged representation that the U.A. would not apply for certification was made,

74, Accordingly, the doctrine of estoppel has no application in these circumstances.

75, Even if the relationship between Alcan and the U.A, was one which could give rise to an estoppel, the doctrine does not apply in the circumstances.

76. There can be no estoppel, or waiver, of a public right or statutory requirement. In that respect, it is both trite and an over generalization to say that the Labour Relations Act, 1995 is remedial legislation which is an instrument of public policy designed to protect or advance the public interest, Indeed, there are a few public statutes which do not involve the protection or advancement of the public interest. This does not mean that equitable doctrines such as estoppel or waiver do not apply to any part of the Labour Relations Act, 1995. It is well-established, for example, that the unlawful strike and unlawful lock-out provisions cannot be contracted out of and are therefore not subject to estoppel or waiver (which are after all doctrines which apply to both "contractual" relations), On the other hand, section 56 of the Act provides an example of a provision in which can be affected by an equitable doctrine. It is well-established that notwithstanding that section 56 provides that a collective agreement is binding on the employer, trade union and employees in the bargaining unit defined in the collective agreement, a party may be estopped from enforcing a right or obligation under the collective agreement in appropriate circumstances.

77. Accordingly, the question which must be addressed is the one posited in Ontario Hydro, [1990] OLRB Rep. Mar. 305: do Alcan's allegations raise an issue concerning an application of the Act which involve the protection or advancement of a public interest'? Section 2 of the Labour Relations Act, 1995 specifies its purposes as follows:

78. The following are the purposes of the Act:

79. To facilitate collective bargaining between employers and trade unions that are the freely-designated representatives of the employees.

80. To recognize the importance of workplace parties adapting to change.

81. To promote flexibility, productivity and employee involvement in the work­place.

82. To encourage communication between employers and employees in the work­place.

83. To recognize the importance of economic growth as the foundation for mutu­ally beneficial relations amongst employers, employees and trade unions.

84. To encourage co-operative participation of employers and trade unions in resolving workplace issues

85. To promote the expeditious resolution of workplace disputes.

Further, section 5 provides, as the Act has long provided, that:

5. Every person is free to join a trade union of the person's own choice and to participate in its lawful activities.

6. It is therefore apparent that employees' access to trade unions and collective bargaining is a matter of public interest which is protected in advance by the Act. Accordingly, employees cannot waive or be estopped from exercising their rights under the Act.

7. Whether trade unions' access to employees and collective bargaining is equally a matter of public interest which is protected and advanced by the Act such that the doctrine of estoppel does not apply to trade unions which apply for certification is perhaps more open to debate. However, I am satisfied that that is the case. First, that is the very reason why trade unions exist. Indeed, without trade unions there can be no "labour relations" under the Labour Relations Act, 1995. Second, this conclusion is consistent with the purposes and scheme of the Act. Collective bargaining cannot be facilitated or even exist without trade unions. One of the workplace "parties" under the Act must be a trade union. Except in a limited circumstances, employee involvement in the workplace under the Act must be through their trade union. Communications between employers and employees do not exclude, or give employers the right to seek to exclude, trade unions. Trade unions are specifically recognized as partners in economic growth, and as the employer's partners in resolving workplace issues in dispute.

8. Accordingly, I am satisfied that a representation of the sort alleged by Alcan herein cannot operate to estop a trade union from making an application for certification.

9. Even if the doctrine of estoppel could operate to estop a trade union from making an application for certification, I am satisfied that no estoppel has been made out in this case.

10. Alcan's allegations come down to this:

(a) Alcan hired members of the U.A. through the U.A.

(b) After at least some of these employees have started to work, talk of an application for certification by the U.A. was brought to Alcan's attention,

(c) Alcan arranged a meeting with representatives of the U.A. at which it sought and received assurances that the U.A. would not bring an applica­tion for certification.

(d) The U.A. has reneged on its agreement and gained an unfair advantage to the prejudice of Alcan.

83, There is no suggestion that Alcan's decision to hire members through the U.A. was anything other than a freely made decision. That is, Alcan freely made a conscious decision to hire members of the U,A. through the union, Alcan must have known, or must be taken to have known, that trade unions are in the business of organizing employees, and obtaining bargaining rights for employees by either certifying or obtaining voluntary recognition agreements with employers to that end. Indeed, that is the reason trade unions exist. That is what they do.

84, It was not until after the first U.A, members were hired that Alcan grew concerned about a possible application for certification, and sought some reassurance from the U.A. in that respect. Assuming that that is not in itself contrary to the Act (which I respectfully suggest is far from clear -see section 70), the U,A.'s response is hardly surprising, While there are various approaches which trade unions adopt in this respect, for most trade unions secrecy in organizing campaigns is the order of the day. History suggests that unions are justified in being secretive in their organizing campaigns. There are many fair and progressive employers in this province. Unfortunately, and while I do not suggest that Alcan is one of these, there are also employers which are neither, and, more importantly, there are employers which are either unaware of or knowingly disregard the rights of employees and trade unions under the Act, Anyone who thinks otherwise is out of touch with reality. Even a cursory review of the Board's jurisprudence since 1956 will reveal numerous examples of improper, sometimes egregious, conduct by employers against employees who the employer discovered or even suspected had the temerity to exercise or seek to exercise their rights under the Labour Relations Act of the day. Indeed, some employers display an almost allergic reaction to the mere suggestion that their employees may seek to be represented by a trade union. Consequently, it is not at all surprising that when asked by an employer a trade union would opt to deny that it intended to apply for certification, in order to protect the employees, even though that is precisely what trade unions do.

85. Further, one might well ask what Alcan would have done if it had not received the assurance which it sought. Would the employer have terminated the employment of the U,A. members it had already hired or refused to hire any other U.A. members, because they were members of the U.A. or because it feared an application for certification'? A law- abiding employer would not do any such thing, because such conduct would be a clear violation of at least sections 72 and 76, and probably of section 70 of the Act. An employer need not be happy about the prospect of having to bargaining with a trade union as the representative of its employees. Indeed, it is entitled to be unhappy about it. But no employer is entitled to interfere with the rights of employees to join, or to decline to join, a trade union, or with the right of employees to support a trade union's application to be certified as their collective bargaining agent. While there are some limits on this freedom, none of them have anything to do with employers or employers' rights, and it remains the most fundamental right under the Act. There is nothing which is more invidious, or which will be more swiftly and sharply denounced, than an interference with this right by conduct which affects the employment of employees who seek to exercise it.

86. In these circumstances, there was no representation by the U.A. upon which Alcan was entitled to rely.

87. It is also difficult to see how the U.A. gained any "unfair" advantage as alleged by Alcan. Indeed, I see none.

88. Nor do I perceive any prejudice, in the estoppel or any other legal sense of the term, which Alcan has suffered. Does the fact that its employees and the U.A. have chosen to exercise their rights under the Labour Relations Act, 1995, constitute a prejudice to Alcan'? I think not; any more than an exercise by Alcan of its legal rights could constitute a prejudice to its employees or the U.A. Alcan will undoubtedly be affected if the U.A.'s application for certification is successful. It will no longer have the same freedom to choose who will do some of the construction work as it has to date, and it will no longer be entitled to deal directly with some of its construction employees. To the extent that this constitutes a "prejudice", and I respectfully suggest that it does not, it is a "prejudice" which is created by the Act, not by any representation or conduct by the U.A.

89. In conjunction with its estoppel argument, Alcan made several other assertions. It asserted that the U.A. has violated the Act, that it would be contrary to public policy and the public interest for the Board to decline to inquire further into its allegations, both generally and because doing so would send the message that trade unions can do whatever they wish without fear that their conduct might be scrutinized by the Board or have negative consequences, and rhetorically asks whether in the circum­stances the Board can be confident that the representation vote which has been held truly reflects the wishes of the employees, apparently a reference to employees other than those in the bargaining unit at the time the application was made. Finally, counsel seemed to suggest that if Alcan was not allowed to proceed with its allegations it might bring a separate application under section 11(2) of the Act, With respect, there is no merit to any of this,

90. When Alcan alleges that the U.A. has violated the Act, it does not point to any unfair labour practice provisions in the Act, Instead, it points to section 2, the purpose provision, subsection 11(2), a provision which specifies when the Board may dismiss an application for certification whether or not a representation vote has been taken, and if there has been one taken regardless of the results of that vote, and section 64, which provides that:

91. (1) If a trade union has obtained a certificate by fraud, the Board may at any time declare that the trade union no longer represents the employees in the bargaining unit and, upon the making of such a declaration, the trade union is not entitled to claim any rights or privileges flowing from certification and, if it has made a collective agreement binding upon the employees in the bargaining unit, the collective agreement is void.

(2) Subsection 8(9) does not apply with respect to an application for a declaration under subsection (1).

(3) If an applicant has obtained a declaration under section 63 by fraud, the Board may at any time rescind the declaration. If the declaration is rescinded, the trade union is restored as the bargaining agent for the employees in the bargaining unit and any collective agreement that, but for the declaration, would have applied with respect to the employees becomes binding as if the declaration had not been made.

(4) Subsection 63(13) does not apply with respect to an application for the recission under subsection (3) of a declaration.

91. Section 2 is neither an unfair labour practice provision, nor a provision which can be breached as such. It is a provision which guides and assists the Board in administering and interpreting the Act. Subsection 11(2) is not a provision which can be breached either. It is a procedural vehicle, much like sections 7, 8, 49, 63, 66, 96, 99 and others, which permits an interested person, including of course an employer, to make allegations that a trade union, counsel of trade unions or person acting on their behalf has contravened the Act in a manner such that a representation vote in an application for certification should not be held or given effect to and the application should be dismissed. Neither of these provisions can either be "violated" in the sense alleged, or in and of themselves otherwise form the basis for dismissing an application for certification. For example, the Board cannot, and would not, dismiss an application f'or certification on the basis that if the trade union succeeds it will result in reduced flexibility or reduced employee involvement in the workplace, or will discourage direct communications between employers and employees in the workplace (both of which are a natural consequence of unionization).

92. Nor did the kind of representation which Alcan alleges the U.A. made in this case constitutes a fraud", either generally or within the meaning of section 64 of the Act. In its ordinary meaning, "fraud" is the use of a false representation to gain an unjust advantage, or making a false representation for the purpose of inducing another to act upon it and thereby part with something of value or surrender a legal right (which I observe gives it an estoppel-like quality). What thing of value or legal right did Alcan surrender as a result of the assurance it alleges it received from the U.A.'? It has suggested none, and, for the reasons given from my conclusions with respect to Alcan's estoppel argument, I see none.

93. Further, on its face, section 64 applies after a certificate has been granted. Although it was not argued, I have considered whether Alcan's allegations make out the kind of fraud which the Board has been concerned about prior to issuing a certificate. Historically, this kind of fraud has consisted of the filing by a trade union of false or misleading membership evidence or materials in support thereof (and has generally been referred to as "fraud on the Board"), or of a trade union making representations to employees which raises a doubt regarding whether the membership evidence filed by the trade union represents a true expression of the wishes of the employees. Alcan's allegations do not raise an issue of fraud on the Board. Assuming that there is still room for the '~misrepresentation to employees" kind of fraud under the current Act (which has replaced the primarily card based representation scheme which extsted previously under which the remedy generally given for such fraud was a representation vote, with a vote based representation scheme where there is a "vote in every case"), there is no suggestion of any fraud on the employees in this case.

94. Nor is there any reason to think that declining to inquire further into Alcan's allegations will signal to trade unions that they can do whatever they wish without fear of any consequences. The fact is that there is nothing in Alcan's allegations which merits further inquiry, and the Board's jurisprudence, old and new, demonstrates the Board's willingness to inquire into and deal appropriately with trade union misconduct with respect to an application for certification (see, for example, Gruyich Services Inc., [1986] OLRB Rep. Aug. 1092; Can-eng Metal Treating Ltd., [1988] OLRB Rep. May 444; Centro-Mechanical Inc., [1996] OLRB Rep. Sept./Oct. 762 (a case involving the same U.A. Local 221 in which an application for certification was dismissed under section 11(2) because of the trade union's misconduct); The Masonry Contractors Ontario. Greater Ontario Area, [19961 OLRB Rep. Nov./Dec. 951).

95. Alcan has suggested no reason to doubt that the result of the representation vote taken in the U.A.'s application in Board File No. 2743-96-R represents the true wishes of the employees. Further, as recently reviewed and described in Ken Anderson Electric Inc., [1996] OLRB Rep. Sept/Oct. 846 (especially at paragraphs 17 to 35) the only employees who are entitled to cast ballots in a representation vote in an application for certification in the construction industry are the employees at work in the bargaining unit at the time the application is filed; that is, on the date the application is made.

96. Finally, there is nothing to prevent Alcan from filing an application under section 11(2) of the Act. Whether or not the Board will inquire into it is another matter, however. To the extent that Alcan may make the same allegations as it has herein, there will be no more merit to them then than now merely because they are raised through a different vehicle. To the extent that Alcan may wish to make new or additional allegations, it would do well to consider the Board's decision in Elitrex Plumbing Ltd., (Board File Nos. 2358-96-R and 2695-96-U, January 31, 1997, unreported). In that case, U.A. Local 46 alleged that the representation vote taken in its application for certification in that case "did not likely reflect the true wishes of the employees ..." and requested that it be certified under section 11 of the Act. The "particulars" upon which the union sought to rely on that respect included allegations contained in a letter dated 24 days after the last day for making representations and 35 days after the vote was held. The Board dismissed the union's complaint because its "additional particulars" were untimely, and its timely allegations did not make out a prima facie case for section 11 relief as follows:

97. The Board has always considered it appropriate to deal with applications for certification as expeditiously as possible. The maxim "labour relations delayed are labour relations defeated and denied" is particularly applicable to the vast majority of such applications. The current Act contemplates a particularly speedy process. Wherever possible, representation votes, now manda­tory in every application for certification, are to be held within five days after the day on which the application for certification is filed with the Board. The Board has constructed a process which has resulted in most votes being held within this five day period, and which enables the Board to announce the results of the vote and make a final determination of an application for certification within a short time after the vote is held. The certification process requires that a party which wishes to challenge the voting process or to assert that the result of a vote does not likely reflect the true wishes of the employees in the bargaining unit, do so in a timely manner within the time fixed therefore, or as soon as practicable thereafter if it cannot meet those time limits. A party which seeks to challenge the results of a vote, after the time established for making representations in that respect has expired bears the onus providing an explanation for its delay sufficient to satisfy the Board that that party exercised reasonable diligence in making the allegations and that it is appropriate to consider the allegations on their merits.

98. In this case, the application for certification was made on November 6, 1996. In its November 13, 1996 decision, the Board ordered that the mandatory representation vote be held on November 15, 1996 (which was the sixth day, excluding Saturdays, Sundays and holidays, after the day on which the application was filed). In that decision, the Board also ordered that anyone who wished to make representations concerning any issue relating to the application for certification file a fully particularized statement of representations in that respect within seven days (again excluding Saturdays, Sundays and holidays in which the Board is closed) of the date on which the vote was taken; that is by November 26. 1996.

99. The vote was held as directed on November 15, 1996. As we have already pointed Out, the parties signed the standard certification regarding the conduct of the vote. Also on that same day, the usual Form T-40. Notice regarding the vote, which once again reminded everyone that anyone who had any representations to make with respect to anything arising Out of the application for certification was required to make those representations by November 26, 1996, and specifying that no one would be allowed to present evidence or make representations about anything which had not been filed "promptly in the way required by the Board's Rules of Procedure" except with leave of the Board, was provided to the parties, and was also to be posted by the employer.

100. On November 26, 1996, the applicant filed representations concerning the conduct of the vote in the form of the section 96 complaint herein. In these representations, the applicant essentially alleged that the employer had given the employees in the bargaining unit what it described as an "intimidating" letter (notwithstanding that the applicant apparently had not seen a copy of this letter) and that an individual whom it alleges owned shares in the employer and is "part of management" made improper comments to a bargaining unit employee, and that as a result the vote did not likely reflect the true wishes of the employees.

101. The current Act provides, as the Act has long provided, that an employer is free to express its views so long as it does not use "coercion, intimidation, threats, promises or undue influence." The letter complained of was produced by the employer as part of its response.

102. This is an application for certification in the construction industry, and what (allegedly) occurred must be viewed in that context, and not in the context of some non-existent labour relations laboratory in which employees can be shielded from all influences. The Act does not require employers to want trade unions in their workplaces. It does not even require that they remain neutral about such possibility. In this case, we were satisfied that there was nothing in either the letter or in the alleged comments which cross the line which separates an acceptable expression of the employer's views from "coercion, intimidation, threats, promises or undue influence" which is prohibited by the Act. That is, the applicant's allegations in the section 96 complaint did not make out a prima facie case for doubting the reliability of the November 15, 1996 representation vote or the relief sought by the applicant in that respect.

103. Further, we did not consider it appropriate to give the applicant leave to rely on the allegations in its December 20, 1996 letter. The applicant offered no real explanation for its failure to file those allegations, all of which relate to the time period between the certification application date and the vote date, in a timely way. The applicant's "explanation" was that it didn't make the allegations earlier because it didn't know about them. It is not apparent that the applicant made any enquires or other investigation in that respect, either among what it considered to be its supporters in the bargaining unit or otherwise. In short, the applicant gave no cogent reason for failing to make the allegations earlier, and we were satisfied that there was no basis upon which the Board could properly exercise its discretion to extend the time limits in that respect and thereby permit the applicant to rely on its untimely allegations.

104. In conclusion, the Board is satisfied that there is no cogent reason to inquire into Alcan's allegations, and that the U.A.'s motion should be allowed. Alcan's allegations are therefore dismissed,

VI

The Result

98. In the result, having regard to the Board's determinations as aforesaid, and the results of the representation votes taken; namely, that in each of these applications more than 50 per cent of the ballots cast by employees in the bargaining unit were cast in favour of the applicant trade union, and having regard to the provisions of section 160(1) of the Act:

(a) Board File No. 2736-96-R

(i) a certificate will issue to the applicant affiliated bargaining agent on its own behalf and on behalf of all other affiliated bargaining agents of the Millwright District Council of Ontario of the United Brotherhood of Carpenters and Joiners of America and the United Brotherhood of Carpenters and Joiners of America in respect of all millwrights and millwrights' apprentices in the employ of Alcan Aluminum Limited in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario, save and except millwrights and millwrights' apprentices employed under the United Steelworkers of America, Local 8754 collective agreement at the Alcan Foil Products Plant in the Municipality of Metropolitan Toronto, millwrights and millwrights' apprentices employed under the United Steelworkers of America, Local 7949 collective agreement at the Alcan Cable Plant in Bracebridge, and millwrights and millwrights' apprentices employed under the International Association of Machinists and Aerospace Work­ers Lodge 54 collective agreement at the Alcan Rolled Products Com­pany Plant in Kingston, save and except non-working foremen and persons above the rank of non-working foreman;

(ii) further, and also pursuant to section 160(1) of the Act, a certificate will issue to the applicant in respect of all millwrights and millwrights' apprentices in all other sectors of the construction industry; that is, excluding the industrial, commercial and institutional sector, in the geographic Townships of Elizabethtown, Augusta and Edwardsburg and all lands south thereof in the United Counties of Leeds and Grenville, save and except non-working foremen and persons above the rank of non-working foreman;

(iii) the Registrar is directed to destroy the ballots cast in the representa­tion vote taken in this application following the expiration of 30 days from the date hereof, unless a fully particularized statement requesting that the ballots not be destroyed is received by the Board from one of the parties before that 30-day period expires.

(b) Board File No. 2743-96-R

(i) a certificate will issue to the applicant affiliated bargaining agent on its own behalf and on behalf of all other affiliated bargaining agents of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, and the Ontario Pipe Trades Council of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada in respect of all plumbers, plumbers' apprentices, steamfitters and steamfitters' apprentices in the employ of Alcan Alu­minum Limited in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario, save and except plumbers, plumbers' apprentices, steamfitters and steamfitters' appren­tices employed under the International Association of Machinists and Aerospace Workers Lodge 54 collective agreement at Alcan Rolled Products Company Plant in Kingston, save and except non-working foremen and persons above the rank of non-working foreman;

(ii) further, and also pursuant to section 160(1) of the Act, a certificate will issue to the applicant in respect of all plumbers, plumbers' appren­tices, steamfitters and steamfitters' apprentices in the employ of Alcan Aluminum Limited in all other sectors of the construction industry; that is, excluding the industrial, commercial and institutional sector, in the geographic Townships of Elizabethtown, Augusta and Edwardsburg and all lands south thereof in the United Counties of Leeds and Grenville, save and except non-working foremen and persons above the rank of non-working foreman;

(iii) the Registrar is directed to destroy the ballots cast in the representa­tion vote taken in this application following the expiration of 30 days from the date hereof, unless a fully particularized statement requesting that the ballots not be destroyed is received by the Board within that 30-day period.

99. Alcan Aluminum Limited is directed to post copies of this decision immediately, adjacent to the "Notice to Employees of Application and of Vote" posted previously. This decision must remain posted for a period of 30 days.