Policies for Construction
and Construction Related Employment
 Alta.L.R.B.R. DP-001
April 10, 1990
The Labour Relations Board is examining its policies
about construction and construction related bargaining
units. Our goal is to establish policies about appropriate
bargaining units and publish them in a revised Information
This "Report for Discussion" gives the Board's
preliminary ideas, designed to encourage industry
reaction. The Board would like to hear from any
interested party on any of the issues raised in
this report. The Board will consider submissions
before adopting firm policies.
Defining the Scope of this Review:
This discussion paper deals with bargaining units
appropriate for employees in the construction industry,
as defined in the Labour Relations Code. It also
deals with units appropriate for tradespersons when
employed other than in the construction industry.
This includes persons employed in service, maintenance,
plants, shops and similar forms of employment.
In this report for discussion, we will use the terms
construction and non-construction
work. What we mean by these terms is:
Construction: By this we
mean work that falls within the definition
of construction contained in section 1(g) of
the Labour Relations Code. This is work to
which the Code's registration system may apply.
Sometimes we refer to this as the "true
Non-construction: By this
we mean work done by tradespersons except when
they are doing construction work as defined
by the Labour Code. This non-construction work
includes tradespersons working in maintenance,
service and repair. It includes work done in
plants, manufacturing enterprises and similar
types of employment. Sometimes we refer to
this as "quasi-construction" to distinguish
this type of work from true construction.
We will also use the terms bargaining unit,
unit description and certificate.
What we mean by these terms is:
Certificate: A certificate
granted under the Labour Relations Code gives
the named trade union the right to act as exclusive
bargaining agent on behalf of a group of employees
of the employer. The certificate sets out the
name of the union, the name of the employer
and the bargaining unit to which the bargaining
Bargaining Unit and Unit Description:
A bargaining unit is a group of employees
of an employer. The unit description is the
words the Board uses to describe which of the
employees fall within the bargaining unit.
As a certificate will have only one unit description
and apply to only one bargaining unit, the certificate
and the unit are sometimes referred to interchangeably.
Why a review?
Several factors make this review timely. The Construction
Industry has recently embarked on bargaining under
a new Province-wide bargaining structure. This follows
a long period with few construction agreements.
In 1982, the Board introduced Information Bulletin
18-82. This bulletin tried to set out unit description
policies for plants and for the service, maintenance
and repair area of employment. It did not deal with
employment in true construction, which was covered
by the Act's registration provisions. Early in 1985,
the Board revoked bulletin 18-82 because some of
its policies proved unworkable. Since then, the
Board has proceeded on a case-by-case basis. Changing
times have made it hard to establish alternate policies.
The Labour Relations Code requires replacement certificates
for those issued under the Act. The Code gives the
Board the ability to standardize units to fit its
present bargaining unit policies. This task alone
requires a review of what these policies ought to
The Appropriate Bargaining Unit Question:
This paper is about appropriate bargaining units.
We must keep our attention focused on the statutory
provisions that govern this question. The Board
does not have unlimited discretion in establishing
unit descriptions. The Board must exercise its discretion
within the words and spirit of the Code.
The Code defines a unit as "any group of employees
of an employer" (Section 1(y)). Section 11(3)(l)
gives the Board the discretion to decide whether
"a group of employees is a unit appropriate
for collective bargaining".
A trade union's certification application must be
for a unit it thinks is appropriate for collective
bargaining. It must get the necessary 40% support
within that unit. The Board, before granting a certification
vote, must examine the proposed unit for appropriateness.
If the certification process is like an election,
the bargaining unit is like the constituency boundaries.
The Board must establish these boundaries. It must
decide whether "the unit applied for, or a
unit reasonably similar thereto, is an appropriate
unit for collective bargaining" (Section 32(1)(c)).
The Board's job is not to decide whether the unit
applied for is the best possible unit, only whether
it is appropriate.
The Code automatically excludes from a unit people
employed as managers or in confidential labour relations
jobs. It also excludes certain professional people.
The Board does not need to exclude these persons
when defining a bargaining unit. The Code excludes
The Code links appropriateness specifically to the
collective bargaining process. The Board must decide
whether the unit will be suitable for the collective
bargaining that will follow certification, if the
employees choose representation.
For construction bargaining, the legislation gives
the option of registration. Most employers in the
construction industry have taken up this option.
As a result, most construction bargaining follows
the pattern set out in the Code's registration provisions.
This fact has a strong impact on the Board's views
on appropriate construction units. The Board believes
it should not certify bargaining units where, because
of registration, the unit cannot be bargained for
in its entirety.
We have divided this paper into five parts:
vs. Non-Construction Work
Units within Construction
- Should the Board continue
to certify construction employees
on a trade-by-trade basis?
- Should we base bargaining
units on the separate sectors within
construction, or should they span
the various sectors?
- How should we word and describe
- Is the present list of trade
based bargaining units satisfactory
or are changes needed?
- Should we base our units on
job functions or job qualifications?
- Maintenance Contractors
- Labour Brokers
- Construction Fabricating Shops
- Commercial Fabricating Shops,
Service, Repair and Specialty Trade
of Certificates and Trade Union Constitutional
- Territorial Scope - Construction
- Territorial Scope - Non-Construction
- Joint Applications - Two or
more Trade Jurisdictions
- Joint Applications - Territorial
- Trade Union Constitutional
- Unit descriptions based on
extended craft jurisdictional claims
- Unit descriptions that include
construction and non-construction
work for a particular craft
- Unit descriptions referring
to field work or field employees
- Unit descriptions limited
to one sector
- Trades that only operate in
- Trades that operate in two
or more sectors
- Certificates that cover two
or more trade jurisdictions
- Certificates that cover all
- Certificates that cover less
than a current trade jurisdiction
- Shop Certificates
- Maintenance Certificates
- Managerial Exclusions
Should the Board continue its policy of not mixing
construction and non-construction employees in the
same certificate? The Board has kept them strictly
apart for almost 20 years. However, some certificates
and the unit descriptions they contain pre-date
that policy and cover construction and non-construction
employees within a particular craft.
For the last three years, Alberta's labour legislation
has defined construction. The Code now reads:
1(g) "construction" includes construction,
alteration, decoration, restoration or demolition
of buildings, structures, roads, sewers, water
or gas mains, pipelines, dams, tunnels, bridges,
railways, canals or other works, but does not
(i) supplying, shipping or otherwise
transporting supplies and materials or
other products to or delivery at a construction
(ii) maintenance work;
Part 3 of the Labour Relations Code sets up special
provisions for construction bargaining. These registration
provisions, and the bargaining regime that follows
from registration, are unique to the construction
industry. The Code separates construction and non-construction
bargaining even more completely than did the Act.
Through the Construction Industry Transition Regulation,
most of the industry has opted for registration
bargaining. Therefore, for most construction employees,
a bargaining unit appropriate for collective bargaining
must be one that fits the registration bargaining
The Board has firmly adhered to its policy of separate
bargaining units for construction and non-construction
work for about 20 years. The Board has had no major
difficulties with its application and it has not
been the subject of any strong industry criticism.
This experience is persuasive evidence that the
policy ought to continue in generally the same form.
There have been disputes, particularly during certification
applications, about whether employees fall within
construction or not. Arguably, a policy that combined
construction and non-construction work might avoid
such disputes. Arguably also, the Board officer's
tasks would be easier. However, the Board suspects
alternate arguments would soon fill the void. Such
disputes are inevitable so long as certification
depends on whether the applicant union has a certain
percentage of support.
Before 1970 (and therefore before registration), the
Board granted unit descriptions covering tradespersons
whether in construction or not. Some of those old
certificates, for example "all carpenters",
still exist. These unit descriptions will not fit
this policy. They will need accommodation during
the replacement certificate process. However, no
policy will avoid the need to accommodate anomalies.
The Board believes this can be done with relative
ease (See Part 5, below).
Proposal: The Board should continue
its policy of certifying construction employees
separately from non-construction employees.
Given this preliminary conclusion, the next two parts
of this report will deal with construction units
and non-construction units separately. Again, by
this we mean the construction industry as defined
by the statute and then the other types of work
done by construction tradespersons.
Here, we will deal with policy questions related directly
to construction bargaining units. We will deal with
some related questions concerning territorial limits
and union constitutional provisions in Part 5. The
questions we will address here are:
- Should the Board continue to certify construction
employees on a trade by trade basis?
- Should we base bargaining units on the sectors
within construction, or should they span the
- How should we word and describe appropriate
- Are the present trade-based units satisfactory,
or do some need changes?
- Should we base construction units on job function
or trade qualifications?
a) Should the Board continue to certify construction
employees on a trade by trade basis?
Most construction employees who choose trade union
representation choose the building trade union appropriate
to their craft. There has been little organizing
by industrial unions in this area. Unionized construction
employees maintain strong allegiance to their craft
unions. Partly this is due to the hiring halls,
the health, welfare and pension benefits and social
facilities these unions offer.
The training construction employees receive parallels
the jurisdictional lines followed by the craft unions.
This reinforces trade based allegiances and creates
a strong community of interest amongst employees
in the various crafts.
Registration bargaining under the Labour Relations
Code also follows craft lines. Considering these
facts, the Board sees no reason to depart from its
long established policy of certifying construction
employees on craft lines.
Proposal: The Board should continue
to certify construction employees on a trade
by trade basis.
b) Should we base bargaining units on the
separate sectors within construction, or should
they span the various sectors?
The regulations divide the construction industry into
four sectors: General Construction, Pipeline, Roadbuilding
and Heavy Construction, and Specialty. The Lieutenant-Governor
in Council establishes these sectors.
The Board's policy in the past has been:
All standard construction bargaining units cover
all employees of an employer employed in construction
in a particular trade. These certificates encompass
employees in all four sectors set out in the
regulation. The Board does not grant construction
certificates limited to a particular sector.
Should this policy change? The Board's general approach
to construction units is that they should reflect
the registration scheme adopted by the industry.
This suggests bargaining units based on the separate
Many trades, by the nature of their work, only operate
in one sector. Others operate in two or more. Operating
Engineers, Teamsters and Labourers operate in General,
Pipeline and Roadbuilding. Plumbers and Pipefitters
operate in Pipeline and General.
For trades that operate in one sector the question
of sectorization is academic. For those that work
in more than one, there are factors that weigh for
and against sectorization.
A unit appropriate for bargaining
suggests a sector-based split. This is because bargaining
under registration must be sector-based.
Even for trades operating in two or more sectors,
most of the employers only operate in one of those
sectors. For them the issue is not often important.
However, under the Board's present policy, if a
roadbuilding contractor's employees chose certification,
the certificate would cover all sectors. If that
contractor later decided to diversify into pipeline
work, the certificate would bind that contractor
to the registration agreement for that trade in
the pipeline sector. A certificate limited to the
roadbuilding sector would not have this effect.
Certificates should grant bargaining rights for the
type of employees employed at the time of the certification
application. It is difficult to justify granting
bargaining rights for employees in all sectors as
a result of the wishes of employees employed in
only one of those sectors. This is particularly
so as employees often work primarily within one
sector. For example, pipeliners rarely go to work
in general construction. However, for Operating
Engineers it is not uncommon for employees to work
in two sectors.
In its favour, the Board's previous policy of cross-sector
certificates has not caused much difficulty. One
exception relates to the Plumbers and Pipefitters
trade in pipeline work. We deal with this issue
below in relation to the specific trades.
Most current certificates are not sector specific,
although some are. Switching to a sector specific
system will require accommodations when issuing
replacement certificates. We discuss this issue
in Part 5, below.
The Board wishes to hear from affected parties about
the impact sector-based bargaining units might have
on their operations.
Proposals: In future, construction
bargaining units should be sector specific.
c) How should we word and describe appropriate
During the 1950's and 60's, the Board granted certificates
modeled primarily on the various trade unions' claims
to jurisdiction. In the 70's and 80's, the Board
has used simpler unit descriptions which refer to
the trade name. An example of this newer type of
All employees when employed in construction as boilermakers,
boilermaker apprentices, boilermaker foremen and
These simplified descriptions presume parties are
familiar with the dividing line between trades,
and can assign employees without reference to complex
claims of jurisdiction. Largely this has worked
During certification applications, issues will arise
about the trade designation of particular employees.
However, this is inevitable no matter how complex
and comprehensive the unit description.
The Board's view is that it is sensible to continue
the use of these abridged descriptions. We believe
we can abridge the unit descriptions even further
by setting out a few simple presumptions in the
Information Bulletin. For example, do we need a
reference to apprentices, welders and foremen in
each unit description? We could accomplish this
by a brief sentence in the Bulletin saying:
Each construction unit description includes the foremen,
apprentices and welders related to that trade.
We already use a similar presumption about the union's
territorial jurisdiction (see Part 4 below).
We say foreman are included in a unit. More precisely,
we mean non-managerial people employed in foreman-like
positions. Managerial people are not employees and
are excluded automatically. There are a variety
of terms for foreman-like persons including lead
hands, supervisors, general foreman, etc. The rule
is, if they are non-managerial they are included
in their trade unit, no matter what particular title
The trade jurisdictions we set out presume that each
is exclusive of the other. A person is working in
one bargaining unit or another, not in both. The
same is true in respect of the four sectors. Therefore,
each bargaining unit description takes some of its
meaning from the other trade jurisdictions in existence.
If disputes arise, the Board has authority to make
a ruling. In doing so the Board applies its experience
to the actual work functions performed by the employee
in question. The Board may consider prevailing industry
practice, which may include the jurisdictional rules
between trades. However such rules do not bind the
Board. Local practice and other considerations may
prove important in making any necessary jurisdictional
rulings for the Board's purposes.
Proposal: The Board should adopt
simply worded trade and sector-based unit descriptions
for certificates, and provide explanatory notes
to those unit descriptions in the appropriate
d) Is the present list of trade-based bargaining
units satisfactory or are changes needed?
We have already expressed the view that appropriate
construction bargaining units are units that will
fit naturally into the registration bargaining system.
We also propose sector-based certificates for some
The unit descriptions set out in the present Information
Bulletin 11 generally achieve these policies. However,
there have been some changes in trade union organization,
apprenticeship categories or scope of registrations
that justify a second look.
We would see the following current unit descriptions,
with modified wording, as continuing to be appropriate
for the general construction sector.
General Construction Boilermakers
General Construction Camp Caterers
General Construction Carpenters
General Construction Cement Masons
General Construction Electricians
General Construction Floor Coverers
General Construction Elevator Constructors
General Construction Glassworkers
General Construction Insulators
General Construction Labourers
General Construction Millwrights
General Construction Operating Engineers
General Construction Painters
General Construction Plasterers
General Construction Plumbers and Pipefitters
General Construction Refrigeration Mechanics
General Construction Roofers
General Construction Sheet Metal Workers
General Construction Sprinkler Fitters
General Construction Teamsters
General Construction Tilesetters
In addition, we see the following units as appropriate
for General Construction:
General Construction Reinforcing Ironworkers
General Construction Structural Ironworkers
In the past, the Board has used one Ironworkers unit
description. However, industry has divided Ironworkers
into two classifications for many years. The Industry
has negotiated two collective agreements, and operated
under two registration certificates. The Board believes
it appropriate that the unit descriptions follow
General Construction Lathers and Interior
In the past, the Board has certified these trades
separately. However, the apprenticeship program
is now merged, as is registration bargaining. Employees
from either trade are frequently doing the same
type of work. The Board believes one unit description
would be appropriate.
General Construction Masonry Bricklayers
General Construction Refractory Bricklayers
For many years, the Refractory Employers have bargained
separately from the remainder of the Bricklayer's
trade, usually called Masonry work. The contractors
persuaded the Board that it was appropriate to grant
two separate registrations. There is little or no
overlap between the one group of employers and the
other. As a result, the Board believes separate
unit descriptions are appropriate.
General Construction Sheeters, Cladders and
The Board's information bulletin does not list sheeters,
cladders and deckers as a separate trade. However,
the Board has certified sheeters, cladders and deckers
bargaining units several times. A separate registration
and collective agreement cover the trade. The industry
treats this work as separate from the related trades
of sheet metal worker, roofer and labourer. However,
the Board wishes to hear from parties involved in
the roofing industry and related work about any
overlap between these trades.
For the pipeline sector, the Board would see the following
unit descriptions as appropriate:
Pipeline Construction Labourers
Pipeline Construction Operating Engineers
Pipeline Construction Teamsters
Pipeline employees usually represented by the Plumbers
and Pipefitters Union do different work to that
done by that Union's members in the general construction
sector. The terms plumber and pipefitter are inept
to describe this different type of work that, nonetheless,
falls within the U.A.'s jurisdiction. This includes
the work of stabbers, spacers, clampers etc. It
would also include welders. We proposed earlier
that related welders be deemed to fall within each
craft certificate. We believe it sensible to set
up a separate unit for these employees. However,
an appropriate descriptive word is hard to find.
We therefore propose:
Pipeline Construction Stabbers, Spacers and
For roadbuilding and heavy construction:
Roadbuilding and Heavy Construction Labourers
Roadbuilding and Heavy Construction Teamsters
Roadbuilding and Heavy Construction Operating
For speciality construction:
Specialty Construction Crane Rental Employees
Specialty Construction Non-Destructive
e) Should we base our units on job functions
or job qualifications?
The Alberta Labour Relations Board has based its bargaining
unit policies on the functions actually performed
by the employees in question, not their trade qualifications.
Periodically, parties ask the Board to vary this
policy but, to date, it has not done so. Normally
this request comes in the form of an application
for certification for a unit of "qualified
tradespersons" or "journeymen and indentured
Other Boards with similar legislation grant such certificates,
Alberta does not. Should we reconsider this policy?
We set out some of the factors and a tentative proposal
below. However, we are anxious to hear the experience
and views of affected parties on this issue.
Some parties argue the Manpower Development Act, particularly
for proficiency trades, prohibits non-certified
employees working at the various trades. For example,
electricians must be journeymen or apprentices.
Uncertified or unregistered persons functioning
on a job as electricians are illegal under Alberta
law. The Board should not, therefore, countenance
their inclusion as employees for the purposes of
collective bargaining. The arguments for "qualified
persons" certificates is stronger for proficiency
trades than for the qualification trades.
Others argue that it is the job of the Manpower Development
Act authorities, not the Board, to police the qualifications
of tradespersons working in Alberta. The Board's
job is to decide whether units are appropriate for
collective bargaining. There are clearly some cases
where non-qualified persons do work contrary to
the Manpower Development Act. Those persons are
still employees. If they are not in the craft unit
related to that work, where do they fall? Should
the Board exclude them from collective bargaining
If we exclude these people from collective bargaining,
how are their rates determined? Would excluding
unqualified employees from the collective agreement
encourage, rather than discourage, such employment?
Some argue that a functional rather than a qualification
approach penalizes trade unions. The argument is
that unions are unable to take into membership persons
without proper trade qualifications. The argument
goes further. Some say employers deliberately hire
non-qualified persons because they know that they
are not, and cannot be, trade union members. The
argument concerning trade union constitutional restrictions
applies only to some craft unions, not to all.
The Board has seen some cases of deliberate hiring
of non-qualified persons, motivated, in the Board's
view, by a desire to avoid unionization. However,
these cases are rare. The Board doubts they are
common enough to justify a departure from the functional
approach in favour of the qualification approach
which leaves unqualified persons unrepresented.
The more common situation is for people with out-of-province
qualifications to work in Alberta while they delay
over getting an Alberta ticket. Also, the Board
frequently sees employees trained in one craft performing
duties attached to a related craft. This latter
practice is particularly prevalent with employers
who encourage multi-skilled or composite crews,
or cross crafting.
The Board wishes to hear the views of affected parties
on this topic. In particular, the Board would be
interested in hearing whether, and the degree to
which the factors noted above, affect the parties
in their day-to-day activities.
Proposal: The Board continue its
policy of certifying units of employees functioning
within a trade jurisdiction and not move to
units consisting of persons qualified to work
at a particular craft.
Tradespeople work in many jobs that fall outside the
Labour Relations Code's definition of the construction
industry. The diversity of these work situations,
and the employers who employ them, make it undesirable
to adopt bargaining unit policies as firm as those
in place for the construction industry. In some
areas of non-construction employment, the Board
believes relatively firm policies are desirable.
In other areas, the Board can only describe the
factors that will influence its judgment. The Board
must leave the appropriate bargaining unit question
for each particular case as a matter of judgment
to be decided after examining the circumstances
of the particular employer and employees.
The Board's views are set out in reference to the
most common types of employment situations.
The Board favours plant type units for manufacturing
plants, petrochemical plants, tar sands plants,
power plants, mines and similar undertakings. Normally,
the unit would be described as:
All employees [at the plant] except office,
clerical, security and quality control personnel.
This policy places operating and maintenance personnel
in the same bargaining unit. In plant units, the
Board's view is that separate maintenance trade
units disrupt orderly collective bargaining. Usually,
the tradespersons are largely integrated with the
operations employees. They share a strong community
of interest with the operations group, rather than
just with other craft employees.
The Board normally excludes office and clerical employees
from such units. However, the Board may include
them if the applicant trade union can show majority
support within the office and clerical group. This
is to avoid the capture of such staff into a unit
by the (usually much larger) industrial work force.
However, this may not apply to power plants etc.,
or in the hospital or municipal sectors.
b) Maintenance Contractors
Alberta industry relies heavily on the services of
maintenance contractors. These contractors supply
labour and expertise to maintain and repair industrial
plants. They may perform ongoing maintenance work
at a plant, major maintenance work during a periodic
shutdown, or both.
Frequently, contractors who are signatory to the General
Presidents' Agreement carry out these contracts.
When this is so, the employers have usually structured
their operations to coincide with the various trade
union hiring halls, relying, in their activities,
on the traditional craft lines of the building trade
In such circumstances, the Board has granted, and
thinks it sensible to continue to grant, craft-based
Even when contractors operating outside the General
Presidents' Agreement provide similar maintenance
services, the Board usually finds craft-based certificates,
rather than all-employee units, appropriate for
collective bargaining. This is because it is usual
industry practice for the plant owners to requisition
employees on the basis of craft designations. This
tends to be true whether or not the employer uses
the union hiring hall. The pool of employees from
whom these workers are taken overlaps the pool of
regular construction employees. Often, the type
of work performed requires trade qualifications
to comply with the Manpower Development Act.
This policy applies to maintenance contractors, not
all maintenance work performed by any contractor.
Many service and repair contractors perform maintenance
work but are not in any way analogous to the contractors
whose specific business is engaging in long-term
or turn-around industrial plant maintenance. It
is to this latter type of employer only that this
c) Labour Brokers
The use of labour brokers varies widely within the
industry. In assessing an application for certification
the Board would examine the way in which the broker's
clients usually requisition and deploy employees.
In some cases labour brokers describe their employees
in other than the traditional trade terms. Sometimes
they classify employees by level rather than craft.
The Board's policy is to consider employees by actual
job function rather than just by employer designation.
Usually the Board will apply the same appropriateness
considerations that would be used for the type of
work the employees are supplied to perform. However,
the types of broker arrangements are so diverse
that the Board cannot express any policy in the
non-construction area. The bargaining units for
construction would apply equally to labour brokers
where they are the true employers.
d) Construction Fabricating Shops
In the past, there has been discussion about whether
or not certain types of fabricating shop fall within
the statutory definition of construction. The Board
decided the question in U.A. Local 496 v. Stearns-Roger
Limited (1982) 82-012 (McBain Q.C. Chairman).
In that case, the Board distinguished between construction
fabricating shops and commercial fabricating shops.
Those distinctions remain important today.
The Board described four types of fabricating shop.
- An on-site shop set-up, by a construction contractor
or subcontractor engaged in building the project,
to build modules for incorporation into the
- A shop set up off-site, by a construction contractor
or subcontractor engaged in building the project,
to build modules for transportation to the
site for incorporation into the project.
- A shop set up off-site, by an employer other
than the contractor or subcontractors engaged
in building the project, to build modules for
the owner, contractor, or subcontractor, for
transportation to the site and incorporation
into the project.
- A permanent shop that, as part of its business
manufactures modules for incorporation into
construction projects. This shop usually has
a number of customers, probably manufactures
certain "catalogue items", and has
a permanent location and work force. It may
be producing construction modules for different
projects at one time, or in sequence.
The Board found the first three types of shop to be
a part of the construction industry. Therefore,
any relevant registration collective agreements
applied to them. The Board's bargaining unit policy
for construction employees would also apply. In
the next section, when the we refer to Commercial
Fabricating Shops, we mean the last type of shop
described above, not the first three.
e) Commercial Fabricating Shops, Service,
Repair and Specialty Trade Contractors
These categories cover a wide variety of employers
all employing tradespersons. However, in each case
the challenge is the same. The employees often express
a strong preference for representation by their
craft union. However, a proliferation of craft units
within the employer's operations can cause disputes
about work assignments, an onerous series of negotiations
and perhaps serial strikes or lockouts as each trade,
in turn, bargains with the employer. The challenge
for the Board is to find an appropriate balance
between the representational wishes of the employees
and the legitimate interests of the employer.
The circumstances of employers vary. Many employers,
who act as construction subcontractors within a
specialty trade, employ a construction work force
and so are accustomed to bargaining exclusively
on craft lines. These employers often use the same,
or a similar, group of employees to do service or
repair work. For these employers one or more craft
units are often convenient and appropriate.
Other employers will employ one or two dominant trades
in their operations but also employ several helpers,
drivers and like persons to work in the operation.
While the craft employees may prefer straight craft-based
representation, this leaves the helpers etc. without
representation. This, in turn, may lead to disputes
about who should do a particular piece of work.
An example might be a manufacturer of specialty refrigeration
products employing delivery persons, sheet metal
workers and refrigeration mechanics. In such cases,
the Board would consider granting two bargaining
units, one (usually the largest) a craft unit, and
the other a "wrap-around" or "tag-end"
unit consisting of all the remaining employees including
the second craft.
Yet other employers are very close to manufacturing
operations where the employees, while including
tradespersons, are largely integrated into one production
work force. In such cases, the community of interest
of employees would favour an all-employee unit rather
than separate trade representation.
It is in this broad area that the Board is unable
to set out any firm policy capable of automatic
application in any given case. The Board must determine
each application on its own merits. In doing so,
the Board considers the positions taken by the parties,
the size and structure of the work force, and the
bargaining and representation history.
Notwithstanding this, the Board can give the following
guidelines about what it might find appropriate
in such circumstances:
- In situations where the employer's work force
involves only employees affiliated with a particular
craft, the Board would grant a craft non-construction
unit. This situation would often arise for
a subcontractor who did both construction work
and service and repair work within the same
- In situations where the employer had an integrated
work force where tradespersons from several
crafts worked along-side production employees,
in a plant or manufacturing type situation,
the Board would normally only grant an all
employee unit for that employer.
- In situations where the employer operates a
shop with employees from more than one craft,
and possibly non-craft employees, the Board
would consider applications for either:
- an all-employee unit except office
and clerical, construction, security
and quality control,
- a craft unit excluding construction,
- an all-employee unit except office
and clerical, construction, security,
quality control and a specified craft
(a "wrap-around" or "tag-end"
In deciding whether one of these units was
appropriate, the Board would consider
the size and structure of the employer's
work force. It would also consider any
prior bargaining history, certifications
and agreements, as well as the wishes
of the employees in the crafts represented
within the work force.
Before granting either (b) or (c) above,
the Board would want to be satisfied there
was little likelihood of jurisdictional
problems between the two trades, either
because of the nature of the work, or
the existence of some firm dispute-resolving
agreement between the two unions. The
Board would have to be satisfied that
the proposed unit was a viable one in
terms of the size and continuity of that
trade's work force. Lastly, the Board
would need to be satisfied that the interests
of the employees in having two bargaining
agents within the enterprise were not
outweighed by other relevant considerations.
- Where the employer has clerical employees the
Board would always exclude them from a straight
craft unit. The Board would normally exclude
them from an all employee or a "tag-end"
unit, unless the Board was satisfied the clerical
employees wanted inclusion. This is to prevent
their being swept in as a result of the superior
numbers of the blue-collar employees.
- Where the employees work in a shop, the Board
might limit the certificate to employees working
"in or out of the shop". If the same
employer was also a maintenance contractor,
this would distinguish the shop, service and
repair employees from those engaged in the
maintenance contracting aspect of the business.
Again, this refers to a maintenance contracting
business, not all maintenance work, some of
which falls into what we are calling service
and repair work performed by persons working
in or out of the shop.
Several issues arise that relate to the territorial
scope of certificates and trade union constitutional
capacity. These considerations are "other matters"
not specifically set out as issues into which the
Board must inquire. If the Board has authority to
grant or deny certificates in several of these circumstances,
it must be on one of two grounds. It must be because
the resultant bargaining unit is inappropriate or
because, exercising its judgment, the Board thinks
certification in that circumstance unadvisable.
This latter authority can only come from section
37 of the Labour Relations Code, which reads:
37 When the Board is satisfied with respect
to the matters referred to in section 32(1)
and satisfied, after considering any other
relevant matter, that the trade union should
be certified, the Board shall grant a certificate
to the applicant trade union naming the employer
and describing the unit in respect of which
the trade union is certified as bargaining
In several of the cases referred to below, the question
arises whether the Board can, and then should, follow
a possible policy using this residual power in section
a) Territorial Scope - Construction Certificates
Information Bulletin #11 sets out the Board's policy
on the territorial scope of construction certificates.
This policy applies only to true construction bargaining
Each construction certification is limited to
the territorial jurisdiction of the applicant
trade union. This limitation is presumed in
each certificate without being spelled out
in the bargaining unit description. This is
true even though registration bargaining is
province-wide. The Board may vary this policy
in the event of a joint application by two
or more trade unions.
The rationale behind this policy was primarily that
the Labour Relations Act registration system set
up a scheme of bargaining centred around the trade
union local. However, there was a secondary aspect
to the policy. The hiring hall system, and the union
shop provisions that are customary in unionized
construction, link the employer's supply of labour
directly to the trade union local. This meant that
an employer's operations within the trade union
local's territory would be related to that local
The Labour Relations Code registration scheme now
mandates province-wide registration bargaining.
However, it does not eliminate the significance
of locals or change the reality that the local's
hiring hall services employers within that local's
Section 174(2) of the Code clearly contemplates that,
within the province-wide registration scheme, employers
are only bound to the extent of voluntary recognition
or certification for a particular local. Thus a
contractor with operations in Edmonton and Calgary
may be certified in one City and not in the other.
As a result, the registration agreement may bind
the employer for one half of the Province but not
for the other.
Virtually all the current certificates are based on
the trade union's territorial jurisdiction. There
is no equitable way to change this through the replacement
certificate process, even if such change were desirable.
Proposal: Construction bargaining
units should continue to be implicitly limited
to the trade union local's territorial jurisdiction
unless the certificate expressly states otherwise.
b) Territorial Scope - Non-Construction Certificates
The presumption, for non-construction certificates,
is that the certificate covers all the employees
of the employer within the Province unless the certificate
The Board will often grant a bargaining unit limited
to a particular plant, shop, area or region. However,
the Board only does this after looking at the employer's
operations to see whether such a limitation is appropriate
in the circumstances.
Some employers deliberately structure their operations
in a way that matches the trade union's operations,
usually by drawing employees from the Union's hiring
hall. In such cases, the Board may accept the trade
union's territorial jurisdiction as an appropriate
limitation on the scope of the certificate. However,
where there is no such limit to the employer's operation,
and the employer operates regularly throughout the
Province, the Board will include the employees of
that employer wherever they work. An example might
be a road repair contractor who works throughout
the province with a mobile crew.
In the past, the Board has issued certificates with
implicitly limited scope. Sometimes this was done
by a geographical reference after the employer's
name. As part of the replacement process, and in
new certificates, the Board intends to put such
limitations expressly in the unit description. When
it is necessary to limit a unit description to the
area of a trade union's territorial jurisdiction,
the Board may adopt a zone number system to avoid
repetition of long geographical descriptions.
It may be desirable (as in construction) to imply
a limit based on the trade union's territory for
some types of non-construction certificates. Maintenance
craft certificates are the most obvious example.
The Board would appreciate submissions on this question.
In the non-construction area, trade unions (or more
likely locals of one trade union) with less than
Province-wide jurisdiction can jointly apply to
the Board with those other trade unions whose territory
extends to the other areas where the employer has
employees. The question of whether this applies
in true construction is considered below.
c) Joint Applications - Two or more Trade
The Labour Relations Code allows two or more trade
unions to jointly apply for certification. The specific
34(1) Two or more trade unions that together
claim to have been selected by at least 40%
of the employees in a unit that the trade unions
consider appropriate for collective bargaining
may join in an application for certification
as a bargaining agent.
(2) When 2 or more trade unions join in an
application in accordance with subsection (1),
this Division applies to the trade unions in
respect of the joint application and to all
matters arising from the joint application
as if the application had been made by one
The question arises whether two building trade unions
can apply jointly for a bargaining unit that combines
their two crafts into one unit. We will consider
this first in the context of construction units
and then in the context of non-construction units.
In construction, the Board views units other than
those listed above in Part 2 of this paper as almost
invariably inappropriate. The Board believes this
to be the case no matter who the applicant, whether
a craft or industrial union, or two craft or industrial
unions applying jointly. The fact of a joint application
by two crafts, Millwrights and Boilermakers for
example, would not persuade the Board to grant a
"General Construction Millwrights and Boilermakers"
Outside of true construction, the Board's view is
basically the same. Generally, the identity of the
applicant union, or of joint applicants, does not
affect the Board's view of what is appropriate as
a bargaining unit. However, as we said in Part 3,
a factor the Board would weigh, in a request for
more than one unit in shop-type employment situations,
is the chance of jurisdictional or work assignment
disputes between two crafts.
This means the Board might well grant a unit to two
joint applicants that it would not grant to a single
applicant trade union if the fact of the joint application
provided evidence that the two trades could work
together in administering one collective agreement.
A joint application could accommodate, in the process,
the wishes of the craft employees for craft union
representation. In this circumstance, the Board
might view a joint application between two trades
as a preferable solution rather than two applications,
one for a craft unit and another for a "wrap-around"
or "tag-end" unit consisting of all the
The Board questions whether, under section 37 it can,
or should, add any preconditions to a joint application.
Joint applications raise issues about which union
administers the collective agreement for which employee.
It raises concerns over contract administration
and the duty of fair representation. A possibility
is for the Board to require some form of joint administration
agreement before granting a certificate to joint
applicants. The Board seeks industry comment before
setting out a proposal on this topic.
d) Joint Applications - Territorial Scope
The Board's policy is that the unit description for
a construction craft unit is implicitly limited
to the trade union's territorial jurisdiction. In
a number of trades, the trade union jurisdiction
is province-wide. However, in other cases the particular
craft union may have two or more locals which, together,
cover the Province.
The Labour Relations Code Registration scheme combines
these locals into an entity called a "group
of trade unions" for the purposes of registration
The question arises, can two or more such locals combine,
in an application under s. 34, for a unit description
that covers the whole Province? If they can, when
can this be done? The present Information Bulletin
11 implies that the Board may grant such an application.
It says: "The Board may vary this rule in the
event of a joint application by two or more trade
The scope of any particular construction certificate
depends more on the constitutional makeup of the
parent trade union than on any policy of the Board.
Operating Engineer certificates are province-wide,
not because the Board believes this to be the sensible
territory, but because the Operating Engineers are
structured as one province-wide local.
The Board questions whether it has the ability to
prevent two sister locals from applying for one
province-wide certificate, even if there was a policy
reason for so doing. While section 37 may allow
such a policy, the specific wording of section 34
may prevent it. The Board no longer has any explicit
responsibility to assess the proper bargaining agent
status of trade union applicants.
However, despite this concern, there remains an important
question best illustrated by example. Assume two
locals for one craft union exist in the province,
one covering the north, the other the south. They
apply jointly for a certificate that is province-wide.
The application must be supported by 40% of the
employees in the proposed unit. Four possibilities
- Each local has 40% support of the employees
in its own territory.
- The two locals have combined support of 40%
in the two territories, but one has more than
40% in its territory, while the other has some,
but less than 40%, support.
- The employees, by a petition signed by over
40%, have selected both locals as their bargaining
- Only one of the locals has employees in its
territory and has 40% support within that group,
the other local has none.
Should the Board grant the requested certification
on any one of these bases? Looked at another way,
we can ask, does the Board have the power to refuse
the joint application in (b) or (d), and if so,
on what grounds? To decide this question, the Board
would have to assess the meaning in section 34 of
the words "together claim to have been selected..."
The Board would also have to decide whether it can
use any overriding discretion in s. 37 to justify
any policy restricting joint applicants in light
of section 34.
While these issues are important, the Board does not
see the question as one of an appropriate unit.
Bargaining in most trades is, by operation of registration,
province-wide. It is therefore difficult to characterize
the proposed unit as inappropriate. However, the
questions posed above as to whether situations (a)
(b) (c) or (d) give rise to an entitlement to be
certified will no doubt arise for decision.
A policy discussion paper of this nature is an inappropriate
place for that decision. The Board is interested
in the parties' submissions on those questions.
However, the Board will probably leave any decision
to a Board ruling in an appropriate case.
e) Trade Union Constitutional Capacity
In the past, the Board had a policy restricting which
trade unions could apply for certification for particular
craft units. Information Bulletin 11-82 set out
this policy, and its rationale:
For a registration certificate to affect an employer
the trade union named in the registration
certificate must have established the right
of collective bargaining with the employer
in the trade jurisdiction and territory set
out in the registration certificate. If the
Board were to certify another building trade
union other than the carpenter's union for
a carpenter's unit then the registration for
carpenters would have no effect on the employer.
If this Board were to grant certification as
a result of a joint application for certification
by two or more trade unions in this industry
again the provisions of the Act respecting
registration would not apply as the trade union
named in the applicable registration would
not be the same as the trade union (the two
or more trade unions) that established the
right of collective bargaining through certification
of the employer.
Accordingly, in order to preserve the stability
achieved the Board will only issue certifications
in the construction industry for the standard
bargaining units and will only grant such units
to a trade union that normally represents that
particular trade. In other words, the Board
will not certify a carpenter's union for a
unit other than one of their standard units.
The Board adopted this policy in the days when it
had the authority and duty to inquire whether a
trade union applicant was a proper trade union to
make the application. This authorized the Board
to assess the Union's constitutional suitability
to represent the unit in question.
That authority has long since left our labour legislation.
All that remains is the reference to "any other
relevant matter" in section 37. The Labour
Relations Code simply requires the Board to be satisfied
the applicant is a trade union. Should we use section
37 to decline certification on the basis that the
applicant union normally represents a different
A related question is whether the Board has the authority
to inquire into whether a trade union's constitution
lets it accept into membership all persons within
the unit applied for. Again, the only authority,
or indication of legislative intention within the
Labour Relations Code, is in section 37.
We note that trade unions can now apply without any
membership support at all through use of the petition.
Employees may not wish such representation, but
the Code appears to leave that choice to the employees.
They exercise this choice through their choosing
to sign a petition, through the mandatory representation
vote, or through the periodic option to seek revocation.
It is possible that certifying different unions for
construction craft units will affect registration.
However, the Board has the power to reconsider and
modify registration certificates and include additional
trade unions within the various "groups of
trade unions". The Board believes the likelihood
of any substantial cross-craft organizing is low.
The Board favours a policy that leaves it to the affected
employees to decide which trade union they wish
to represent them. We see little justification for
allowing, on the one hand, an industrial union to
represent employees, and on the other hand, denying
that option to a different craft union. We believe
employees are best able to exercise that choice
and there is insufficient need for Board protection
to justify overruling the choice made by, initially
at least, 40% of the employees involved. The choice
is ultimately subject to the approval of the majority
through the representation vote and the periodic
option to decertify.
Proposal: The Board should not restrict
applications for certification for craft employees
either to the particular craft that has the
constitutional jurisdiction to represent those
employees or the craft unions named in the
existing registration certificate.
The Board has to issue replacement certificates for
all those certificates previously in existence.
Section 205 of the Code sets out this obligation
and reads in part:
205(4) On the coming into force of this section,
the Board shall issue a certificate to replace
each certificate subsisting under the Labour
(5) In issuing replacement certificates under
subsection (4) the Board may amend the bargaining
unit descriptions contained in the original
certificate in order to
(a) clarify the geographic scope of
the unit description where that scope
is referred to in the certificate but
not in the unit description,
(b) delete words excluding persons who
are in any event excluded by the operation
of this Act, or
(c) give consistency to the wording
of bargaining unit descriptions without
altering the substantive description of
(6) In issuing replacement certificates under
subsection (3), the Board may, with the consent
of the parties, amend the name of the trade
union or the employer to reflect the current
names of the parties where, in the opinion
of the Board, it is appropriate to do so.
(7) Notwithstanding subsection (4), the Board
is not required to issue a replacement certificate
where it has reason to believe that the employer
or the trade union has ceased to exist or has
not been in business for a substantial period
(8) Where the Board does not issue replacement
certificates for the reasons specified in subsection
(7), the certificate under the Labour Relations
Act shall be deemed to be revoked.
(9) Notwithstanding subsection (8), any party
to a certificate that is deemed to be revoked
under that subsection may apply for the issuance
of a replacement certificate at any time within
90 days from the date he learns of the decision
not to issue a replacement certificate, and
on receipt of that application, the Board may
inquire into the matter and, if in the opinion
of the Board it is appropriate to do so, issue
a replacement certificate.
The Construction Industry Transition Regulation adds
some additional powers in section 8(1), which reads:
8(1) Where a certificate granted under the
Labour Relations Act applies to construction
and non-construction employees, or encompasses
within its scope more than one appropriate
bargaining unit, the Board, when issuing replacement
certificates pursuant to section 205(4) of
the Code, may issue one or more certificates,
each representing an appropriate bargaining
unit, which cumulatively have the same scope
as the certificate granted under the Labour
(2) The powers of the Board in subsection
(1) are in addition to those contained in section
205(5) of the Code.
Information Bulletin T-2 discusses the Board's general
process for carrying out this task.
The results of this bargaining unit review process
will guide the Board in carrying out its responsibility
to issue replacement certificates. We will now set
out how we currently propose to deal with replacement
certificates for construction and quasi-construction
employees. We will cover the main types of outstanding
unit descriptions. Inevitably there will be anomalies
that we will deal with on a case-by-case basis.
a) Unit descriptions based on extended craft
Many early unit descriptions consist of an extended
claim to jurisdiction for a particular craft. There
are often many variants within the same craft, however,
all usually define the work done by the particular
craft. Nothing turns on the particular historical
anomalies. Where the craft is one for which the
Board intends to adopt a standard unit description,
the Board will convert the unit description to the
new description for that craft.
b) Unit descriptions that include construction
and non-construction work for a particular craft.
The Board proposes to split all such certificates
into construction and non-construction certificates.
Rather than define whether the non-construction
is maintenance, shop etc, the Board proposes wording
the certificate as simply non-construction. For
"All millwrights" will become:
"General Construction Millwrights"
The Board recognizes that, in the past, some employers,
certified for all employees in a craft, may have
in fact only employed construction employees. The
Board believes Regulation 8(1) requires two certificates.
However, the employer in this situation may be in
a position, if it wished, to apply to revoke the
non-construction portion of its certificate. The
bases on which it could do so are set out in section
50 of the Labour Relations Code.
The Board also recognizes that, for some employers,
a maintenance and a shop certificate might be more
appropriate. If this fits the true bargaining situation,
the board would exercise its discretion under Section
43 of the Code and modify the non-construction replacement
c) Unit descriptions referring to field work
or field employees.
The Board views the old "field employee"
or "field work" designation as the equivalent
to the present construction designation. It would
therefore issue only a construction certificate
for field employees, and a non-construction certificate
where the unit description excluded field employees.
d) Unit descriptions limited to one sector.
The Board will replace current certificates limited
to a sector with one limited to that same sector.
e) Trades that only operate in one sector.
For those trades that only operate in the general
construction sector, the Board will issue the construction
certificate limited to the general construction
f) Trades that operate in two or more sectors.
For those trades that operate in two or more sectors,
the Board, during the replacement certificate process,
will try to find out if the employer has operated
in only one sector. If the employer and union agree
that the employer has only operated in the one sector,
the Board will issue the replacement construction
certificate for that sector alone.
If the parties disagree, the Board may conduct such
investigation or inquiry as is necessary to determine
the matter. Alternately, the Board may issue a construction
replacement certificate for each sector in which
the employer may have operated with that craft.
The Board would then leave it to the employer to
apply to revoke any certificate where it was eligible
to do so under section 50.
The Board expects in most cases this issue will be
relatively clear. In cases of ambiguity, issuing
the certificates will result in the matter coming
forward as an application for revocation, with a
hearing if necessary.
g) Certificates that cover two or more trade
If the Board adopts the policies set out above, it
will have to split up some certificates. For example,
Bricklayer certificates may become Masonry Bricklayer,
Refractory Bricklayer or both. Similarly, Ironworker
certificates may become Structural Ironworker, Reinforcing
Ironworker, or both. The Board would consult the
parties and try to determine which certificate is
appropriate to the employer's operation. If a dispute
cannot be resolved by a summary board determination,
the Board may issue both certificates and leave
it to the employer to apply for revocation if appropriate.
h) Certificates that cover all construction
There are very few "all-employee" certificates
that cover construction. The Board doubts that there
are any left for employers that still exist. If
there are, the Board will deal with them on a case-by-case
i) Certificates that cover less than a current
With the recommendation to combine, for example, Lathers
and Interior Systems Mechanics, the Board must decide
how to issue replacement certificates. The merger
of the crafts is, in part, a recognition that the
same employees are, in essence, doing the same type
of work. Therefore, it seems appropriate to issue
the new joint craft certificate to replace either
of the former individual craft certificates.
j) Shop Certificates
The Board proposes to replace shop certificates with
equivalent certificates. Usually the Board will
express the shop unit to consist of employees "operating
in or out of" the specified shop. The Board
will assess the various inclusions and exclusions
on a case-by-case basis.
k) Maintenance Certificates
Where certificates cover maintenance employees for
a particular trade, the Board will replace that
certificate with a similar maintenance certificate.
The Board will deal with maintenance certificates
that cover "all maintenance employees",
or employees in more than one trade jurisdiction,
on a case-by-case basis.
l) Managerial Exclusions.
The Code automatically excludes persons employed in
a managerial capacity. It also automatically excludes
persons employed in a confidential capacity in matters
related to labour relations. Replacement certificates
will not include limitations clearly designed only
to achieve that same purpose. For example, a certificate
reading "All employees excluding those employed
in a managerial capacity or a confidential capacity
in relation to labour relations" will be replaced
by one reading "All employees". The persons
covered would remain unchanged.