2347-00-R Brick and Allied Craft Union of Canada, Applicant v. Ontario Power Generation Inc., Responding Party v. Ontario Provincial Conference of the International Union of Bricklayers and Allied Craftworkers; International Union of Bricklayers and Allied Craftworkers; International Union of Bricklayers and Allied Craftsmen, Local 6; International Union of Bricklayers and Allied Craftsmen, Local 7; International Union of Bricklayers and Allied Craftsmen, Local 25, Intervenors.

BEFORE: David A. McKee, Vice-Chair.

DECISION OF THE BOARD; November 5, 2001

1. This is the final decision in this application for certification. The only issue remaining is the geographic scope of the bargaining unit. Except for that issue, the parties are agreed on the proper description of the bargaining unit.

2. Briefly put, the issue is this. This is a displacement application. The existing collective agreement is between the International Union of Bricklayers and Allied Craftworkers (“IUBAC”) and the Ontario Provincial Conference of the IUBAC (“OPC”) on the one hand and the Electrical Power Systems Construction Association (“EPSCA”) on behalf of, among others, Ontario Power Generation Inc. (“OPG”) on the other. The applicant, the Brick and Allied Craftworkers (“BACU”) seeks to displace the IUBAC and the OPC as bargaining agent for employees in the bargaining unit. These are essentially all bricklayers, stonemasons and plasterers, their respective apprentices, improvers and working foremen employed in the Province of Ontario. The BACU relies on the longstanding policy of the Board that in a displacement application, the applicant union takes the bargaining unit as it finds it, and may not add to or subtract from that unit. In this case, since the bargaining unit described in the collective agreement encompasses the Province of Ontario, the BACU asserts that the Province of Ontario should be the geographic scope of the bargaining unit described in the certificate. The OPG and the intervenors acknowledge that this is the general policy, but assert that this case is one of the very few exceptions to that policy. For various reasons, they submit that the bargaining unit should be confined to Board Area 3, the geographic Board Area in which employees were working on the day of application.

3. At one time, the intervenors raised an issue about whether only the four employees at work on the application date should be entitled to vote, or some broader voting constituency. This issue was not pursued in argument, or perhaps more exactly, was subsumed in the argument about why the geographic scope of the certificate should be limited to Board Area 3.

Facts

4. The relevant facts are not in dispute, and no evidence was called. Locals 6, 7 and 25 sought to rely on certain documents which they described as “business documents”. I did not admit those documents for various reasons. There was some controversy about the admissibility of the documents without a witness and about precisely what the documents purported to show. I concluded that the documents simply went to demonstrate that certain portions of the collective agreement were in fact followed in practice. I ruled that, absent an assertion that the collective agreement had been violated, I can only conclude that what ought to have been done was in fact done. Therefore, there was no need to deal with the problematic nature of the documents tendered. The facts on which the Board relies are those based on the evidence heard on previous days in this proceeding.

5. I have also relied, as all counsel did in their argument, on the Board’s knowledge of the construction industry in general, particularly in the electrical power systems sector, and certain historical facts about the dispute within the “Bricklayers Union” in Ontario, or between the BACU and the IUBAC. These latter facts have been the subject of extensive litigation and several Board decisions. For the purposes of this decision, the events are most easily found in Board File No. 1904-99-U, 2532-98-U, 2736-00-R and 2737-00-R (the “May 2, 2001 Decision”) and Board File No. 1904-99-U and 2784-98-R September 15, 2000 (“Kvaerner-Jaddco”). All three union parties to this application were parties to that litigation, and neither they nor counsel for OPG objected to references made by counsel to the facts taken from those decisions.

6. EPSCA is an employer association as defined in the Labour Relations Act, S.O. 1995 ch. 1 (“the Act”). It bargains a series of collective agreements on behalf of employers who perform construction work on property owned or utilized by OPG and a sister corporation, Hydro One Incorporated (“Hydro One”), dedicated to the production or transmission of electrical power. (The predominant party within EPSCA until recently was Ontario Hydro. Ontario Hydro has been divided into a number of operations; OPG and Hydro One are the two with which EPSCA is principally concerned.) EPSCA bargains with all of the building trades unions in Ontario. The first province-wide agreements were negotiated with other trades in the early 1970s. By 1980 all building trades unions had one or more collective agreements with EPSCA.

7. I heard no evidence about the origins of the EPSCA agreement with the Bricklayers. Historically, the desire for a province-wide agreement came from Ontario Hydro (which in the early 1970s was faced with a huge capital expansion program which would need to draw on the staffing resources of building trade unions within and indeed beyond the Province of Ontario) and international unions (which saw an opportunity to secure a large amount of work for their members). Resistance came from a few local unions, although these appear to have been confined to a small number of local unions in the mechanical trades. Whatever its origin, the value of a province-wide agreement lay in its provincial scope.

8. The most recent collective agreement between the IUBAC and OPC on the one hand and EPSCA on the other hand includes the following recognition clause:

Article 1

RECOGNITION

1.1 EPSCA recognizes the Union as the exclusive bargaining agency for a bargaining unit as defined in Section 1.3 engaged in

(i) all construction industry work under the responsibility of Design and Construction Branchy/ENCON Services Branch (including Generation Projects Division and Transmission Systems Division),

(ii) all Major* construction industry work which is tendered/contracted for all other Divisions of Ontario Hydro and,

(iii) work performed by the Design and Construction Branch for any Operations branch of Ontario Hydro where it has been determined by that Operation branch that there does not exist internally the expertise or the current staff to perform the work.

This work shall be performed in the Province of Ontario on Ontario Hydro property for the bulk power system. The work encompasses:

• construction of new facilities

• additions to existing facilities

• modifications

• rehabilitation

• reconstruction of existing facilities

For the purpose of clarity, the bulk power system comprises generating stations, hydraulic works, heavy water facilities, transmission lines (voltage over 50 kV) and transmission stations, microwave and repeater stations save and except the building of commercial-type office facilities at urban locations remote from operating facilities.

1.2 The Union recognizes EPSCA as the exclusive bargaining agent for all of the employers covered by this Agreement, and in all matters pertaining to the administration of this Collective Agreement.

1.3 The term “Employee” shall include all employees of the Employers in the classifications as set out in Section 1.4 below.

• The definition of Major described in (ii) above and any issues arising out of the interpretation of Major shall be dealt with an attached Letter of Understanding.

1.4 The following is a list of classifications covered by this Agreement:

Working Foreman Stonemason Apprentice

Sub-Foreman Stonemason Improver

Bricklayer Journeyman Plasterer Journeyman

Bricklayer Apprentice Plasterer Apprentice

Bricklayer Improver Plasterer Improver

Stonemason Journeyman

9. OPG is not a major employer of bricklayers in the Province of Ontario. From time to time it requires the services of bricklayers, stonemasons and plasterers and employs members of the IUBAC to perform the work. Employment has always tended to be limited to a particular project and of relatively short duration. It would appear from counsel’s comments that this trend has been even more pronounced in the last two or three years.

10. When a construction project is due to commence, EPSCA gives notice of a mark-up meeting to all potentially affected trades and to the employer involved in performing the construction work to discuss work assignments. Members of the local union in whose geographic jurisdiction a project falls are usually present, with or without other officers from other levels of the union. The topics of discussion include work jurisdiction and assignment, supply of tradespeople, any variation of the hours of work and expected duration of the job. When tradespersons are required, Article 25.3 of the collective agreement provides as follows:

25.3 The employment of tradesmen, apprentices and improvers shall be carried out on the following basis and sequence:

(a) The Employer agrees to first hire members of the Local Union on projects within the territorial area of the Local Union. The Employer shall hire through the Local Union office 50% of all Bricklayers, Masons and Plasterers who are members of the union so long as the Local Union is able to supply members in sufficient numbers to take care of the needs of the Employer. This ratio shall be maintained at all times. It is agreed that the Employer may transfer members from one job to another within the territorial jurisdiction of the Local Union. It is agreed that all members must produce a referral slip signed by the Business Representative before being hired or starting work.

(b) This also applies to the out-of-town men coming to work within the jurisdiction of the Local Union and no other means of hiring will be allowed. All employees in the employ of the employer shall be members in good standing as long as they are employed by the employer. It is agreed that the Union will give preference to the Employers in the employment of its union members and the Employers agree to first hire and to employ Local Union members.

(c) Should the Employer’s requirements still not be complied with, he shall have the right to hire employees from other sources, providing such employees make application to become members of said Local Union prior to commencement of work.(emphasis added)

11. In the circumstances which give rise to this application, OPG required the services of four bricklayers at the Bruce-Nuclear Power Development in October 2000. That was the first time in many months that the OPG had required the services of bricklayers. It called Local 12 of the IUBAC, the local union with geographic jurisdiction in the area, and asked it to supply bricklayers for the job. It did so. In November 8, 2000 the BACU brought an application for certification with respect to this bargaining unit. It was brought as a displacement application. A representation vote was held and all four ballots cast were cast in favour of the BACU.

12. The union parties to the collective agreement require some explanation. The IUBAC is an international union, one of the original A.F. of L. unions, with its origins in the nineteenth century. The OPC is a provincial council created under the authority of the constitution of the IUBAC. As a provincial council, its members are all of the local unions in the IUBAC in Ontario. It was certified as a council of trade unions by the Board in 1995 (see T.S. Mason Contractors, unreported July 9, 1995, Board File No. 1913-84-R). It was not certified as a council of trade unions when it signed its first collective agreement with EPSCA, and has not become a certified council with respect to EPSCA after 1985.

13. Each local union has a discrete territorial jurisdiction covering a portion of the Province of Ontario. These territories do not overlap, nor does any one local have a territorial jurisdiction beyond its own base for the purposes of particular types of work, except in certain cases for tilesetters, who are not the subject of this application. All bricklayers are members of the IUBAC Local, and as a result, members of the IUBAC as well.

14. Since at least 1995 there has been a fierce battle within the “Bricklayers Union”. The details of this dispute and twists and turns of the fight are found in a large number of decisions, including those cited above. The BACU is a trade union in its own right. In a sense, it is a rival of the IUBAC. It is equally consistent to characterize the BACU as a vehicle by which those in the union who favour independence seek to achieve their aim. The officers and members of the BACU are largely, if not entirely, the same as the officers and members of the IUBAC except in Windsor, Ottawa, and Thunder Bay (Locals 6, 7 and 25). The bulk of their efforts have been directed to transforming the Bricklayers Union from a component of the IUBAC into an independent union. This application represents one of the few occasions on which the BACU has sought to displace the IUBAC as a separate and distinct trade union using the certification process under the Act.

15. Those who favour independence are the officers of 11 of the 14 local unions in Ontario. They control the day-to-day affairs of their local unions, subject to the constitutional control of membership meetings and the election of officers. Three locals do not seek full independence from the IUBAC: Locals 6, 7 and 25. They have appeared regularly before the Board in support of the IUBAC and in opposition to the BACU or those seeking independence from their international. Needless to say, this creates certain friction within the provincial organization.

16. In the litigation leading to the May 2, 2001 decision, the Board heard detailed evidence about the structure and constitution of the BACU, and certain changes to that structure that have been made over time. This evidence was referred to by all three counsel for the unions to some degree in argument in this case. Originally, the BACU contemplated providing a charter for Locals 6, 7 and 25. Since these were not taken up, the BACU was prepared to have neighbouring locals take over the territorial jurisdiction of Locals 6, 7 and 25 if they continued to choose not to participate in the BACU. In 2000, the BACU changed its constitution. It was prepared to accept the continued existence of Locals 6, 7 and 25 and their territorial jurisdiction for the purposes of administering the provincial collective agreement in the industrial, commercial and institutional sector of the construction industry only. While counsel for the IUBAC objected to the Board considering those changes on the grounds that they were made after this application was filed, there is no basis for the objection. The changes were in respect of the ICI sector only. Nothing has changed with respect to the EPS sector, and in that respect the BACU has given the territorial jurisdiction of Locals 6, 7 and 25 to the neighbouring locals of the BACU unless and until those Locals seek affiliation with the BACU.

Displacement Applications: The General Policy

17. The argument of the BACU is straightforward. The Board’s rules about displacement applications are well known. The applicant takes the bargaining unit as it finds it. The reasons for this policy have been stated many times. In Bestview Holdings Limited, [1982] OLRB Rep. Jan. 185 the Board reviewed the development of this policy at length and stated:

18. A much more definitive view was expressed in Ontario Hydro [1980] OLRB Rep. June 882. There a union sought to carve out the employees at Hydro’s nuclear installations from a long-established province-wide bargaining unit. The Board expressed considerable doubt that the union would be able to establish the appropriateness of the unit which it sought.

“It is against this background then that we must determine whether the pre-hearing vote requested by the applicant should be directed. The first issue is whether the province-wide unit described in the CUPE Local 1000 is the only appropriate unit and in support of this proposition the respondent and intervener directed our attention to a number of decisions including: Roland Lefebre Limited [1966] OLRB Rep. May 140; Toronto Star Limited [1974] OLRB Rep. July 416; Harding Carpets Limited [1975] OLRB Rep. July 566 (where the applicant successfully intervened on the basis of the doctrine); The Wellesley Hospital [1976] OLRB Rep. Feb. 46; The Canadian Red Cross Society Blood Transfusion Service [1978] OLRB Rep. May 408. This principle is not to be lightly dismissed. Where parties have established the viability of a bargaining unit through actual bargaining and where the history of such bargaining has been relatively satisfactory, this Board ought not to encourage fragmentation. Moreover, in these cases, the Board is not dealing with employees who are unrepresented by a trade union. Thus, more concern can be given to the most viable unit from a collective bargaining viewpoint without the risk of impeding the initial organization of employees attempting to engage in bargaining. But the principle cannot be without its exceptions. Section 48 of the Act clearly envisages displacement applications which are less extensive than preexisting bargaining units. While there is a strong presumption in favour of the incumbent trade union’s bargaining unit, the Board is willing to entertain evidence and submissions on why the status quo ought not to be maintained. The incumbent trade union may clearly have failed to represent a distinct and cohesive group adequately, a problem that has sometimes reared its head in the relationship of skilled and unskilled employees. This problem of unsatisfactory representation may be combined with a capacity in the employer to tolerate somewhat greater fragmentation, particularly if the smaller unit sought can meet the principles of appropriateness generally applied to certification cases. In the case at hand, the applicant indicated its intent to adduce evidence on the distinctive nature of Hydro’s nuclear energy facilities; on the common training and conditions of employment of the affected employees; and on the manner in which they have been represented by CUPE Local 1000. The unit relied upon by the intervener and the employer is not one that the Board would normally grant and the intervener, itself, never had to organize all the affected employees. Against this background, we are not prepared to say at this time that the applicant will be unable to make out a case justifying the unit it has requested. On the other hand, the applicant’s chances for success based on its answers to the Board’s probing and against the background of all that we have reviewed above, cannot be characterized as substantial.”

15. To these considerations, a final one may be added: the importance of certainty and predictability in the processing of representation applications. It is in the interests of all parties, including an applicant union, to know with some certainty the bargaining unit configuration which the Board will likely find to be appropriate. It is that group of employees which a raiding union must seek to organize, and within which it must establish majority support. The practical value of the rule that a raiding union must usually take the bargaining unit as it finds it, is that it clearly defines the relevant employee grouping for organizing purposes. If the Board were to readily depart from this approach, there would be no such certainty; and, the prospect that temporary minority dissatisfactions could be translated into fragmentation of an established unit, would simply encourage inter union rivalry and complicate the litigation where one union is seeking to displace another. Thus, there are real practical and administrative advantages to the rule that the existing bargaining structure should generally be preserved.

Even when the Board has departed from this policy it has acknowledged the prima facie appropriateness of the existing bargaining unit. In Reitzel Heating and Sheet Metal Ltd., [1988] OLRB Rep. Dec. 1310, the Board said:

27. We concur with the general proposition that in the exercise of the Board’s discretion, in a displacement application the policy of the Board has been that the appropriate bargaining unit is the unit held by the incumbent trade union. In the absence of some clear and compelling reasons why this long standing policy of the Board ought to be disregarded, we would not lightly set aside or interfere with this well established policy. We are of the view that such clear and compelling reasons do exist in the circumstances of this case where we are concerned with province-wide bargaining in the ICI sector of the construction industry. In our opinion, the Board’s general policy on displacement applications is not necessarily applicable in the ICI sector of the construction industry in light of the statutorily compelled scope of the incumbent’s unit.

28. Further, the Board strives for consistency in decision-making in the area of certification, particularly in bargaining unit descriptions in certification applications. Indeed, in this area, the need for clarity and certainty is stronger than in any other area of the Board’s jurisprudence. Uncertainty leads to further litigation, delay in processing applications, and a greater likelihood for other issues to arise or to be dealt with inappropriately. The adage “labour relations delayed is labour relations denied and defeated” (Journal Publishing Co. of Ottawa Ltd. [1977] 1ACWS 817) applies perhaps more strongly in certifications than in any other type of proceeding. The Board’s process should be one which seeks to minimize the opportunities for delay. While this application has been outstanding for a year, it reinforces the need to apply clear and well-established guidelines.

29. The BACU acknowledged that there were two exceptions to the Board’s general policy: namely craft carve-outs and the need to maintain the statutory regime which applies to the ICI sector of the construction industry.

30. In this case the applicant submitted that the circumstances of the workplace and this collective agreement reinforced the appropriateness of a province-wide bargaining unit. The EPS sector is characterized by provincial bargaining units. All collective agreements have provided for such bargaining units since 1980 or earlier. The longevity of this practice speaks to its success as a bargaining pattern in the sector. Since the pattern of provincial bargaining units has proved durable over time, the Board should be reluctant to disrupt that pattern.

31. The responding party and intervenors argued that the determination of the appropriate bargaining unit is a question for the Board to determine. While the Act provides certain important principles, the question of bargaining unit description is not, with a few exceptions (ICI certificates, dependent contractors, professional engineers, etc.) prescribed by the Act. That task is left for the Board to apply its own expertise to determine the appropriate unit in each application.

32. Notwithstanding that position, the responding parties and the intervenor did not dispute the general propositions put forward by the applicant. All counsel agreed that, except for the characterization of the ways in which the Board has departed from its general policy, Mr. Richmond’s statement of the law and the Board’s jurisprudence with respect to displacement applications was correct. They advanced several reasons why this case was unique and why this should be one of those rare occasions on which the Board should depart from its general policy. I propose to set out the parties’ arguments and my analysis of them together. In the end, none of them compels a particular result. They are all simply of greater or lesser weight in motivating the Board to depart from what would otherwise be the bargaining unit description one would normally expect in a displacement application.

Departures from the General Policy

23. The arguments of the responding party and intervenors all revolve around an attempt to portray the bargaining relationship as a single, province-wide relationship that was either a collection of separate bargaining rights fit together for the purposes of a single collective agreement, or a unified document that was sufficiently brittle that any attempt to change it could or should shatter it into its constituent parts. This thesis was argued both as a result of the application of specific provisions of the Act to the collective agreement, and as a reflection of the practical reality of the relationships created and governed by the collective agreement.

24. The most detailed analysis of the collective agreement from a statutory perspective was focused on an assertion that each local union retained individual bargaining rights, either because of the nature of the OPC as an uncertified council of trade unions, or as a result of the application of section 146 of the Act.

The OPC as a Council of trade unions

25. Counsel argued that the OPC in this context is not a certified council of trade unions. It certainly is in other circumstances, including the EPS sector (see the second certificate issued in T.S. Masonry, supra). But it has never sought to become certified as a bargaining agent in its own name in this collective bargaining relationship. As an uncertified council of trade unions, it does not hold bargaining rights in its own name, but merely as agent for the constituent members of the council: The Board of Education for the City of Toronto, [1982] OLRB Rep. Mar. 496; Metropolitan Toronto Apartment Builders Association, [1994] OLRB Rep. Nov. 1568, and International Union of Operating Engineers, Local 793, [1979] OLRB Rep. Aug. 789. Therefore, while it is true that there is a single collective agreement, it was argued that in reality, it is an agreement with 14 local unions, each of which has separate bargaining rights and each of which represents a different group of employees (or potential employees in its respective hiring hall). The intervenors argued that the analysis in Reitzel Heating and Sheet Metal Limited, [1988] OLRB Rep. Dec. 1310 (about which more will be said later) is entirely applicable here, even outside the provisions of the Act dealing with the ICI sector of the construction industry. They argued that there are a number of similarities between their situation and an ICI sector displacement application. Even in the ICI sector, local unions hold bargaining rights: they are vested in the EBA by statute only for the purposes of negotiating a provincial collective agreement (see the May 2, 2001 Decision). Here the OPC is a voluntary council of trade unions, while in the ICI sector, the EBA is a compulsory agent, but the effect is the same: it serves only as an agent for the parties which hold the bargaining rights. Counsel argued that in part, the decision in Reitzel was based on the recognition of the rights of affiliated bargaining agents other than those in whose area employees were working on the date of the displacement application. They referred to paragraph 60 of the decision which provides:

26. Notwithstanding these factors however, we have determined that in the present circumstances, the CLAC’s acquisition of bargaining rights, ought to be restricted on a Board area basis. In our opinion there are differences between employees terminating the rights of an E.B.A. or A.B.A. pursuant to section 57 and section 123, and a trade union terminating those bargaining rights by way of displacement application pursuant to section 144(5). Amongst those differences are the fact that section 137(2) of the Act deems an employer to have recognized all of the A.B.A.’s of an E.B.A. Thus, terminating the bargaining rights of only one A.B.A. would be meaningless as section 137(2) would deem the employer’s recognition of all other A.B.A.’s to include, once again that A.B.A. for which bargaining rights have been terminated. Similarly, although it may not be desirable to create a situation whereby employees are represented by one bargaining agent in one Board area and another bargaining agent outside that Board area, that is a result which is not uncommon and which may occur in any event by reason of the time in which ICI province-wide bargaining rights are acquired by an E.B.A. or A.B.A. That result flows from the statutory provisions of the Act and in particular from the concluding words of section 137(2) which indicate that the employer employed is deemed to have recognised all of the A.B.A.’s to represent employees of the employer employed in the ICI sector in their respective geographic jurisdiction “… except those employees for whom a trade union other than one of the affiliated bargaining agents holds bargaining rights”. In this instance, in the event the CLAC is successful in its application to displace sheet Metal Workers in the ICI sector in Board Area 6 only, that provision protects the bargaining rights of the designated affiliated bargaining agents representing Sheet Metal Workers or registered sheet metal apprentices in areas other than Board area 6.

27. While that reasoning is sound as far as it goes, that portion of Reitzel is not exactly authority for the proposition asserted by counsel.

28. Further, Reitzel is based very explicitly on the effect that section 158 (as it now is) has in undermining the rationale for the Board’s policy that the incumbent unit is prima facie appropriate. At paragraph 28 the Board said:

29. In an application for certification by way of displacement, the Board has stated that the established bargaining structure is prima facie appropriate – particularly in those instances where there has been a long, well established collective bargaining relationship. It is difficult to envisage any better evidence of the “appropriateness” of a bargaining unit than the situation where the parties to a collective agreement have developed both the bargaining unit and the bargaining structure which have proven viable over a period of time. In the present circumstances however, because the incumbent is an A.B.A., when it organizes employees in the ICI sector of the construction industry, the scope of its bargaining unit and its rights to represent employees in the ICI sector, and its bargaining structure with Reitzel have been predetermined by the legislature. In the ICI sector, A.B.A.’s are prevented from organizing certain employees, because of the limitations found in their provincial designations. (See Ninco Construction Ltd., [1982] OLRB Rep. Nov. 1692; Manacon Construction Ltd. [1983] OLRB Rep. March 407 and July 1104, Superior Plumbing and Heating Ltd., [1986] OLRB Rep. Nov. 1589; D. E. Witmer Plumbing and Heating Ltd., [1987] OLRB Rep. Oct. 1228.) Once organized by an E.B.A., employees are automatically plugged into the provincial agreement. Pursuant to the mandatory provisions of the Act, that collective agreement is a two-year agreement which expires bi-annually on the 30th day of April. We are of the view that where the legislation has, in essence, statutorily determined both the bargaining unit and the bargaining structure, the Board’s policy that the incumbents’ bargaining unit is prima facie appropriate, based as it is on the “history” of the collective bargaining relationship between the parties, need not necessarily prevail. The underlying assumption or rationale for the Board’s displacement policy – the collective bargaining history of the parties, the implicit right of the parties to alter, extend or otherwise modify the bargaining unit to suit their needs – is not valid in instances where the incumbent is an A.B.A. or an E.B.A. and the raiding union is seeking to displace the incumbent’s province-wide bargaining rights in the ICI sector.

(See also Crowne Electric, [1982] OLRB Rep. May 660 and Aero Block and Precast Ltd., [1984] OLRB Rep. Sept. 1166.) No such basis exists for distinguishing the history of this collective agreement. It is a voluntarily created structure that arose out of many years of successive local and not so local agreements, and the complementary motivation of both Ontario Hydro (as owner and as constructor) and of certain, and ultimately all, of the building trades unions in Ontario.

28. In addition, the argument ignores the existence of the IUBAC as a party. Subject to what is said below about section 146, one cannot ignore the presence of the IUBAC as one of the two joint union parties to the collective agreement. The IUBAC is not an agent for anyone. It is not divided geographically (except perhaps for internal administrative purposes and even those divisions do not always correspond to provincial boundaries). The bargaining rights it holds are province-wide, and not divided by local union territories or by Board areas.

29. It is true, as the intervenors point out, that the direct day-to-day relationship under this collective agreement is between each local union and OPG in the sense that neither the IUBAC nor the OPC maintains a hiring hall or refers members to employment. That is simply a matter of the internal organization of the trade union party. The IUBAC is a party possessed of certain bargaining rights in respect of the same employees or potential employees referred from each local hiring hall. The existence of the IUBAC’s bargaining rights is not dependent on who picks up the phone when a call for bricklayers comes from OPG to the union party to the agreement.

Section 146

30. To be fair, the bulk of the “statutory” argument of the responding party and intervenors was an analysis of section 146. That section provides:

31. (1) This section applies with respect to employees in a bargaining unit in the construction industry other than in the industrial, commercial and institutional sector referred to in the definition of "sector" in section 126.

(2) If a parent trade union is the bargaining agent for employees described in subsection (1), each of its local trade unions is deemed to be bargaining agent, together with the parent trade union, for employees in the bargaining unit within the jurisdiction of the local trade union.

(3) If a parent trade union is a party to a collective agreement that applies to employees described in subsection (1), the local trade union is deemed to be a party, together with the parent trade union, to the collective agreement with respect to the jurisdiction of the local trade union.

(4) The Minister may, upon such conditions as the Minister considers appropriate, require a parent trade union and its local trade unions to form a council of trade unions for the purpose of conducting bargaining and concluding a collective agreement,

(a) if an affected local trade union, parent trade union or employer requests the Minister to do so; and

(b) if the Minister considers that doing so is necessary to resolve a disagreement between a parent trade union and a local trade union concerning conducting bargaining or concluding a collective agreement.

(5) The Minister may make rules governing the formation or operation of the council of trade unions, including the ratification of collective agreements, if the parent trade union and the local trade unions do not make their own rules within 60 days after the Minister's decision under subsection (4).

(6) The parent trade union and the local trade unions shall comply with rules made by the Minister.

The applicant argued that section 146 does not apply because the IUBAC was not the only party to the collective agreement. Section 146 does not require that an international union be the sole party; it is equally applicable in circumstances such as this. Although subsections 2 and 3 may somewhat duplicate the contractual relationship created by the structure of this collective agreement, the sections clearly apply. Subsections 4 and 5 would certainly have altered the pre-1994 relationship between the IUBAC and the local unions making up the OPC. Had the occasion of a dispute over the manner in which the collective agreement was to be administered arisen between a local union and the IUBAC, there is no doubt that the OPC would have taken advantage of those subsections.

31. Counsel argued that section 146 creates a statutory provision which must alter the Board’s general policy with respect to displacement applications, just as much as the ICI provisions do. Indeed, section 126.1(3), para. 2 provides that section 146 prevails over all other sections of the Act, including sections 151-168. Hence, just as surely as sections 151-168 “erode” the Board’s policy with respect to displacement applications, so does section 146 erode that same policy.

32. In general terms, that is so. However, counsel goes too far in asserting that section 146 creates 14 separate collective agreements under one cover. Section 146 does not eliminate the IUBAC as a bargaining party; it simply ensures that local unions are also parties to the collective agreement with bargaining rights. Subsection 1 refers to employees “in a bargaining unit in the construction industry” other than the ICI sector. Where the parent union is the bargaining agent for such a unit, each of the local unions is deemed to be a bargaining agent, together with the parent union, for employees in the bargaining unit within the jurisdiction of the local union. That is, subsection (2) does not divest the parent union of its bargaining rights. It merely deems the local union to be a bargaining agent (and by virtue of subsection (3), a party to the collective agreement) within its jurisdiction. In the event that this relationship is problematic, the Minister may require the creation of a council and set the rules by which the council will operate. None of this affects the fact that the parent union holds bargaining rights for “the bargaining unit”; it simply makes the local union a bargaining agent for “employees in the bargaining unit”. The lack of an article before the word “employees” suggests that the local union becomes bargaining agent only for those employees in the bargaining unit who fall within its jurisdiction. That is, it is the bargaining agent for a portion of the bargaining unit. Only the IUBAC (and of course the OPC) under this collective agreement is the bargaining agent for the whole bargaining unit.

33. Section 146 does not eliminate the fact that there is a province-wide bargaining for which the IUBAC is the bargaining agent. However, it does reinforce the nature of the bargaining rights of each local union. As the applicant argued, where the local unions are bargaining agents who create a council or an uncertified council of trade unions, it is less important where the bargaining rights came from, but what they do with them in terms of fashioning a collective agreement. Here the bargaining unit is province-wide, the rights of the local union tend to be found within the general framework and are manifested in the right to supply employees, file grievances, etc. However, section 146, separate and apart from any contractual rights, creates an independent set of bargaining rights for the local union and makes it a party to the collective agreement “with respect to the jurisdiction of the local trade union”, which in this case is a local area, rather than province-wide. That is, each local union has separate bargaining rights and separate contractual rights under the collective agreement within its own jurisdiction and no further.

34. I do not read section 146 as creating bargaining rights which, once brought into existence by the statute, subsist forever. The word “deemed” clearly denotes a situation which would not exist but for the application of section 146. The section applies only when “the parent union is the bargaining agent” (or party to the collective agreement). This is a statutory condition precedent. When the parent union ceases to be the bargaining agent, as in a displacement application, the rights of local unions created by section 146 disappear.

Severing the bargaining unit

35. Counsel for OPG added a further argument to this debate. Since the OPC is a voluntary council of trade unions, the constituent members may decide at any time to leave the council: see International Union of Operating Engineers, Local 793, supra. Section 57(3) and (4) provide the process. Since there is nothing requiring a province-wide agreement, one or two local unions have at least the statutory right to opt out of the council.

36. OPG asserts that this application can be characterized as a kind of opting out. Local unions have a right to do so, but should not be able to take along with them the other local unions who choose not to opt out. That is, they should not be making this decision on behalf of others.

37. Counsel’s reference to section 154 was more by way of an analogy to the practical reality than it was an assertion of statutory provisions which should be applied directly. The practical issues created by this application are not insubstantial. It is also perfectly proper to look at the practical consequences of determining a bargaining unit description. After all, the determination of what constitutes a “viable” or “appropriate” bargaining unit is an application of the Board’s expertise to the existing situation in a particular workplace and a prediction of what effect a particular bargaining unit configuration will have on the future functioning of that environment. The practical reality of this collective bargaining relationship appears to be that the day-to-day functioning of the union is carried on by the local union. The OPC appears to be active only at negotiation time, and the IUBAC even less.

38. The collective agreement provides for hiring by means of referrals from the local union with jurisdiction over the area in which the project is being constructed. Article 25.3, quoted above, requires the employer to call the local union to supply tradespersons. If that local cannot do so, the employer is then free to hire anyone it chooses, so long as those persons become members of the union. In other words, there is no obligation to contact neighboring locals, or the OPC, or the IU. The employer can go directly “to the street”.

39. There are likely few times that any employer “went to the street” for bricklayers. If a local union had no one in the hiring hall, it would likely contact neighboring locals (or at least those with whom it enjoyed good relations) for members. Ontario Hydro or its contractors could count on a relatively inexhaustible supply of tradespersons for its capital expansion projects. The obligation of EPSCA to hold a mark-up meeting requires it only to contact the union, which in practice meant both the IUBAC and the relevant local union. However, since the supply of tradespersons is a crucial part of every mark-up, it is unlikely that the local union would ever be entirely absent from the process.

40. OPG asserts that the possibility of fragmenting the structure was always present. Nothing compelled any union to continue to bargain on a province-wide basis. The prospect of substantial changes to the EPSCA collective agreements has undoubtedly crossed the minds of a few persons in OPG in recent years. However, this is the first time that any party has sought to change the nature of the collective agreement.

41. In one sense, the BACU is a device used by those within the Bricklayers Union in the Province of Ontario to seek independence. They are opposed in this effort by Locals 6, 7 and 25. The BACU has insisted that it will accept these Locals as constituent Locals of the BACU, but if they choose not to join, will attempt to eliminate their presence outside the ICI sector. This does raise a potential for conflict on projects in those three areas. One local union will be asked to supply tradespersons to locations outside their usual geographic area. If bricklayers working for a contractor are on the same site, they will no doubt see members of the neighbouring local as interlopers who are “poaching” jobs that rightfully “belong” to their local. The employer runs the risk of being battleground for what is, in practical terms, a fight within the same group of craftspersons.

42. OPG argued for a minimization of the fragmentation which would occur by the issuing of a certificate. OPG will now employ, in at least some part of the Province, members of a different union from bricklayers employed by contractors. Although this is not likely to present the same problem as employing members of a non-A.F. of L. union, it is the beginning of fragmentation. This may well be a problem in the territorial areas of Locals 6, 7 and 25. OPG does not suggest that a certificate limited to Board Area 3 is the ideal bargaining unit description. It asserts that the Board should avoid fragmentation. Where that fragmentation is unavoidable it should be limited as much as possible. Since in its submission a province wide bargaining unit description is not appropriate, the Board should then revert to the next most commonly used description, i.e. a single Board Area.

43. These arguments raise serious issues, but in the end do not overcome the basic legal nature of the collective bargaining relationship. They do not deal adequately with the fact of the IUBAC. Given the joint nature of bargaining rights, it is not at all apparent how a local union could, as a matter of law, have resigned from the council and negotiated a separate collective agreement. Leaving aside the constitutional control of the IUBAC, there is nothing in the statute that would permit a local union to require the IUBAC to split up its own bargaining rights and to join it in negotiating a separate collective agreement.

44. Further, this argument ignores the legal reality of the two unions involved. However one chooses to characterize the BACU on a practical level, the BACU is a trade union with a separate legal personality from the OPC and its constituent locals. In the May 2nd decision, the Board said at paragraph 146:

The BACU, much as its membership overlaps with the IUBAC, is not a part of the IUBAC. It is a rival trade union which seeks to displace the IU and drive it from the province. Outside the ICI sector, it is quite prepared to engage in organizational rivalry with Locals 6, 7 and 25. What the BACU really seeks is to displace the IUBAC as bargaining agent. That is done by “raiding” the bargaining rights held by the IUBAC and its locals, not by trying to seize control of the structures through which those bargaining rights are exercised.

In this case, the BACU has done just that. It seeks to displace the IUBAC and the OPC. It has provided the Board with evidence of membership in the BACU. It does not seek to carry with it any of the rights or assets of the OPC. It is prepared to start afresh with OPG.

45. The Board is not insensitive to the problems that may be created by issuing a certificate to the BACU which covers the geographic jurisdictions of Locals 6, 7, and 29, while contractors on various sites are bound through EPSCA to employ members of those locals to work side by side on the same site. On the other hand, since the certification of the Labourers Provincial District Council as bargaining agent for a unit formerly represented by International Brotherhood of Electrical Workers, Local 1788 (Ontario Hydro, [1988] OLRD 4561, December 23, 1998) a similar but not identical situation has obtained on many bargaining sites all over the Province with respect to electricians.

46. Superficially, it would appear that a province-wide bargaining unit would be in the OPG’s interest, since it would have the greatest chance of obtaining in bargaining what it needs in terms of mobility and supply of tradespersons than it would from a bargaining agent restricted to one Board area. Its real concern is, in its view, the BACU has no viable presence in Windsor, Ottawa and Thunder Bay (the areas of Locals 6, 7 and 25). OPG would be unable to call for bricklayers from the local union in that area. The concern about the ability to supply tradespersons was raised by the responding party in Ontario Hydro, supra, and rejected there (see paragraphs 27 to 30). The ability of a trade union to supply the staffing requirements of an employer may create pressures in bargaining, but cannot interfere with an employee’s right to choose a bargaining agent.

Decision

47. In the end, the basic rationale which underlies the Board’s policy with respect to the appropriate bargaining unit in a displacement application is applicable to the facts of this case: the importance of ensuring that decisions about the future of a bargaining unit are made only by members of that bargaining unit; the presumed viability of voluntarily created bargaining structures; and the need for certainty and predictability in representation matters. While the results may not sit comfortably for some of the parties to this application, none of the considerations urged on the Board in this case undermine the application of these principles in this case.

48. Having regard to the agreement of the parties in respect of all other bargaining unit description issues, the Board finds that the following is the appropriate bargaining unit in this application:

All bricklayers, stonemasons and plasterers, their respective apprentices, improvers and working foremen in the employ of Ontario Power Generation Inc. engaged in all construction industry work performed in the Province of Ontario on Ontario Power Generation property for the bulk power system, save and except the building of commercial-type office facilities at urban locations remote from operating facilities.

For the purposes of clarity, the bulk power system comprises generating stations, hydraulic works, heavy water facilities, transmission lines (voltages over 50 kV), transmission stations and microwave and repeater stations.

49. On the taking of the representation vote directed by the Board, more than fifty per cent of the ballots cast by employees in the bargaining unit were cast in favour of the applicant.

50. A certificate will issue to the applicant.

51. The Registrar will destroy the ballots cast in the representation vote taken in this matter following the expiration of 30 days from the date of this decision unless a statement requesting that the ballots should not be destroyed is received by the Board from one of the parties before the expiration of such 30-day period.

52. The responding party is directed to post copies of this decision immediately, adjacent to the “Notice of Vote and of Meeting” posted previously. These copies must remain posted for a period of 30 days.

“David A. McKee”

for the Board