[1980] OLRB Rep. October 1389
0848-80-R International Union of Operating Engineers, Local 793, Applicant, v. E & E Seegmiller Limited, Respondent, v. Teamsters' Construction Council of Ontario, Intervener.
BEFORE: D. E. Franks, Vice-Chairman, and Board Members H. J. F. Ade and O. Hodges.
APPEARANCES: B. Fishbein and J. Redshaw and R. Watson for the applicant; James A. Costigan for the respondent; Douglas J. Wray, A. Marinelli and David McKee for the intervener.
DECISION OF THE BOARD; October 9, 1980
The present application was made on July 21, 1980. On August 11, 1980 the Board endorsed the record in this case appointing a Labour Relations Officer to inquire into and report to the Board on the list and composition of the bargaining unit herein. Subsequently, the Examiner held a number of hearings in the performance of his duties set out in the endorsement of the Board.
This matter was listed for hearing on October 3, 1980 with the following specific purpose set for that hearing:
THE PURPOSE OF THIS HEARING IS TO PERMIT THE PARTIES TO SHOW CAUSE WHY THE LABOUR RELATIONS OFFICER WHO HAS BEEN APPOINTED IN THIS MATTER SHOULD INQUIRE INTO THE DUTIES OF THE PERSONS WHO ARE CLASSIFIED AS DRILLERS AND ROCK TRUCK DRIVERS (HAVING REGARD TO THE BARGAINING UNIT FOR WHICH THE APPLICANT IS SEEKING CERTIFICATION)
The applicant in this matter takes the position that it is clear on the basis of the Board's jurisprudence that the persons classified as drillers in the instant application are clearly labourers and since the applicant trade union is seeking its usual unit of equipment operators, any inquiry into the work performed by the persons classified as drillers would be simply a delay of the Board's proceedings since it is beyond doubt that drillers could not be on the list of employees in the bargaining unit.
With respect to the persons classified as "rock truck drivers", the applicant takes the position that these persons are teamsters and that there is a jurisdictional agreement between the applicant and the intervener council that rock truck drivers are not in the operating engineers' jurisdiction but are in the teamsters' jurisdiction. The applicant points out that in fact the Board has certified the teamsters for such employees in the past.
The respondent, which apparently has a collective agreement with both the applicant and the intervener relating to the Kitchener area, argues that an inquiry into the duties of drillers and rock truck drivers in necessary since the local collective agreement with the operating engineers in the Kitchener area includes both classifications in the collective agreement. In addition, the employer submits that there are other collective agreements throughout the province with these two classifications covered by the operating engineer's bargaining unit.
With respect to the classification of drillers, it is clear that the respondent's agreement in the Kitchener area is an anomaly and the Board quite clearly regards such employers as construction labourers, (see the Board's decision in Kaymick Enterprises Ltd., Board File No. 1093-79-R decision of the Board dated July 30, 1980). It will, therefore, not be necessary for the Labour Relations Officer in this matter to inquire into the duties of the persons classified as drillers.
With respect to the persons classified as rock truck drivers, however, it is clear that the respondent's apprehension, that such persons driving "off the road vehicles" might be included in the classifications to the collective agreement, is a valid apprehension. It is not the purpose of the present hearing to foreclose any arguments which the respondent might take in that regard.
At the hearing in this matter, the applicant also argued that the conduct of the respondent in this matter was such that the Board's proceedings for certification were being delayed to the point of an abuse of the Board's proceedings. There is no doubt that the proceedings of the Labour Relations Officer in this matter have been protracted to the point where they may in fact constitute an abuse of the Board's proceedings.
In view of the above reasons, the parties and the Labour Relations Officer are directed to resume the Labour's Relations Officer's inquiry as expeditiously as possible. The Officer will not be required to inquire into the duties of the persons classified as drillers. The Officer will report on the duties of the persons classified as rock truck drivers. However, the Board notes at this point the undertaking of the employer at the hearing to proceed with this matter as an agreed statement of fact rather than through the calling of witnesses. The matter is therefore referred back to the Labour Relations Officer.