J. Slaughter

In an application for certification by the Operating Engineers, the Ontario Labour Relations Board determined the composition of the bargaining unit for the purposes of the count.

Applying the Gilvesey test, the Board examined the duties performed by several disputed individuals on the application date.

The Board found that certain mechanics and dependent contractors who spent a majority of their time performing bargaining unit work on the application date were included in the unit, while others who primarily performed labourers' work or worked outside the geographic area were excluded.

Having resolved the list of employees, the Board found the union had the requisite membership support and issued certificates for the industrial, commercial and institutional sector and all other sectors in the relevant geographic area.

The applicant union sought certification for various groups of employees of the respondent construction contractor.

The Board resolved challenges to the bargaining unit descriptions and employee lists.

The Board found that the Asphalt Plant Foreman did not exercise managerial functions and was an employee within the bargaining unit.

The Board also determined that three challenged drivers belonged to a different bargaining unit based on where they reported to work.

The Board concluded that more than fifty-five percent of the employees in the bargaining unit were members of the applicant.

The Board heard a request for reconsideration of an oral ruling regarding notice to laid-off employees, which was dismissed as the issue had already been considered.

The Board also addressed a dispute over a Labour Relations Officer's report where the respondent sought to challenge an agreed exclusion after previously confirming the report's accuracy.

The Board ruled that parties cannot make submissions contrary to their written representations filed in response to the report, and struck the disputed employee from the list.

The parties agreed to submit written arguments on the remaining issues.

The applicant union brought a preliminary motion regarding the filings made by the respondent in a series of certification applications.

The applicant argued that an agreement on the parties' respective positions had been reached before the Labour Relations Officer.

The Ontario Labour Relations Board dismissed the motion, finding that no such agreement was reached and that the Board had subsequently appointed an Officer to inquire into the list and composition of the bargaining unit.

The Board directed that the applications proceed based on the positions taken at the commencement of the Officer's inquiry.