Ontario Labour Relations Board

[1980] OLRB Rep. February 197

0006-79-R International Union of Operating Engineers, Local 793, Applicant, v. Esam Construction Limited, Respondent, v. Group of Employees, Objectors.

BEFORE: R. A. Furness, Vice-Chairman, and Board Members H. J. F. Ade and C. A. Ballentine.

APPEARANCES: B. Fishbein and J. Redshaw for the applicant; Rodney D. Dale and Douglas W. Magrath for the respondent; Peter R. Lockyer and Ian C. Wallace for the objectors.

DECISION OF THE BOARD; February 13, 1980

1. The applicant has filed this application for certification with respect to its usual craft bargaining unit of operating engineers in the Board's geographic area #3. The respondent and the objectors are in agreement with the applicant with respect to the bargaining unit.

2. The Board finds that the applicant is a trade union within the meaning of section 1(1)(n) of The Labour Relations Act.

3. The Board further finds that this is an application for certification within the meaning of section 108 of The Labour Relations Act.

4. The applicant has challenged the inclusion of certain names on the schedule "A" which has been filed by the respondent. At the meetings convened by Mr. D. McNabb, Labour Relations Officer, the parties resolved some of the applicant's challenges to the schedule "A". At the commencement of the examination of the persons who gave evidence before the Labotr Relations Officer, the parties agreed that schedule "A" consisted of at least the following persons who were engaged in the occupational classifications which appear adjacent to their names:

Dan Cadotte Crane Operator

Scott Crockard Bulldozer Operator

George Kitson Crane Operator & Maintenance

Star Moore Crane Operator

Adam Sauve Crane Operator

Joe Soares Crane Operator

The applicant challenged the inclusion on schedule "A" of the following persons who, according to the respondent, were engaged in the occupational classifications which appear adjacent to their names:

Danny Bembridge Loader Operator

Bruno Chelchowski Maintenance & Crane Operator

Don Dunham Maintenance & Crane Operator

Drew Kane Loader Operator & Maintenance

5. On the date of the making of this application the respondent was engaged in the construction of four apartment buildings at a site on Proudfoot Lane in London known as Forest Hill. Proudfoot Lane is a lane which lies to the south of Oxford Street West. The respondent also operated to the north of Oxford Street West a pre-cast and ready-mix batching plant, a repair and welding shop, a garage and a servicing and storage area for equipment on the Esam dirt road. These facilities are used as a support area by the respondent for the construction of the apartment buildings. The distance between the construction of high-rise apartments on Proudfoot Lane and the facilities on the Esam dirt road is about one kilometer. In order to travel from the facilities on the Esam dirt road to the construction site on Proudfoot Lane it is necessary to proceed in a southerly direction along the Esam dirt road, then in a westerly direction along Oxford Street West, which is a four-lane highway, and then in a southerly direction along Proudfoot Lane. The respondent maintained time clocks on both locations. The immediate area around these two locations is in a state of development from an area which was generally wooded into mixed commercial and residential development. There is not a clear and unobstructed view between these two locations.

6. Danny Bembridge, Bruno Chelchowski, Don Dunham and Drew Kane each gave evidence before the Labour Relations Officer. Mr. Bembridge was initially hired by the respondent about six years ago as a labourer. He was employed by the respondent as a labourer for two years. For the last two years he has been employed by the respondent as a batcher. On the date of the making of this application he was classified by the respondent as a loader operator. As far as he remembers he was running the batching plant on that date. Mr. Bembridge described his job as involving the loading of a bin with sand and stone with a loader. At least half of his day is occupied with running the loader. For the rest of the day he runs the plant. This involves weighing the cement and charging the trucks. Most of the material goes to the construction site at Forest Hill. About a quarter of the material is sent to the respondent's pre-cast plant which is adjacent to the batching plant. However, the output from the batching plant goes to the construction site at Forest Hill.

7. Mr. Chelchowski has been an employee of the respondent for three years. He was hired as a crane operator and is a licensed hoisting engineer. Since he was hired he has been promoted to chief mechanic and he is also licensed as an "A" mechanic. Mr. Chelchowski gave evidence that on the date of the making of this application he started the morning by working on a mobile crane at the pre-cast and ready-mix batching plant. Subsequently, there were problems with another crane and he went with his partner, Don Dunham, to the construction site at Forest Hill where he worked for about three hours. Afterwards he repaired a fork lift at the same construction site. On other days he has operated a traveller crane to unload concrete shingles and load a trailer. On these days he operates the crane for about forty-five minutes in the afternoon with the rest of his time being spent in maintenance and repair work. Mr. Chelchowski reports to work in the morning at the garage. While he was able to give detailed evidence concerning his activities on the date of the making of this application he was unable to remember what he did on the next working day.

8. Don Dunham was hired by the respondent as "supervising equipment and repairs, cranes" a few months before the date of the making of the application. He described the normal course of work in a day as repairing breakdowns on the job with respect to cranes, 'dozers, front end loaders, ready-mix trucks and welding machines. He physically handles tools and either repairs such equipment or has someone else perform such repairs. Mr. Dunham reports to the respondent's superintendent, Hank Koemraads. He gave evidence that on the date of the making of this application he was engaged in crane repairs or crane checks. Mr. Dunham was referred to records of the respondent and indicated that on April 2, 1979, the date of the making of this application, he was engaged in repairing the number one mixer in the cement plant. He also made reference to climbing tower crane on the construction site. However, it appears to the Board that the reference in the records to climbing tower crane on the construction site refers to April 3, 1979, and not to April 2, 1979. The respondent's records indicate that for the six working days prior to April 2, 1979, Mr. Dunham was engaged in, for the most part, repairing and servicing cranes and trucks at the construction site for about three hours each day.

9. Drew Kane has been an employee of the respondent for about four years. He commenced working for the respondent in maintenance and gardening and then progressed into construction work. Mr. Kane gave evidence that on the date of the making of this application he was driving a cement truck and that he had been driving a cement truck for about two years. During the winter he drives a loader in connection with snow removal. On occasions Mr. Drew has operated a front end loader in the absence of the regular operator. However, he was unable to confirm a suggestion by the respondent that he operated a front end loader in the absence of Jim Copeland on the date of the making of the application.

10. Hank Koemraads, the respondent's superintendent, gave evidence with respect to the work performed by Mr. Kane on the date of the making of this application. He stated that on that date Mr. Copeland did not report for work and that he gave instructions that Mr. Kane was to operate the front end loader at the Forest Hill construction site. Mr. Koemraads also gave evidence that he saw Mr. Kane operate the front end loader on that date and expressed the view that he would have operated it for the entire day.

11. Mr. Kane's time cards were shown to him. However, he was unable to recall in what capacity he was working for the respondent on the date of the making of this application. Further evidence by Mr. Koemraads on the respondent's practice with respect to setting its time clocks failed to shed any light on what Mr. Kane was doing on the date of the making of this application.

12. Bernard McMillan, a business representative of the applicant, and three employees of the respondent, Stan Moore, Dan Cadotte and Adam Sauve, gave evidence with respect to their observations of the work performed by Messrs. Bembridge, Chelchowski, Dunham and Kane on the date of the making of this application.

13. Mr. McMillan gave evidence that Messrs. Chelchowski and Dunham worked in the shop and that Mr. Bembridge worked at the batching plant. He also gave evidence that the pre‑cast building is a steel building which is approximately thirty feet across the front and sixty to eighty feet in depth. This building has an overhead crane inside it and a concrete floor. Attached to it or as part of the same building is the ready-mix batching plant. He described the batching plant as a permanent batching plant rather than a mobile batching plant. Mr. McMillan also described the garage as a permanent steel building in the shape of a dome. He gave evidence that on the date of the making of this application he observed that both of the respondent's tower cranes at the Forest Hill construction site were working during the morning and during the afternoon. Mr. McMillan gave evidence that the tower cranes were the only cranes at the construction site which would need to be jacked and that it was impossible for a crane to work and be jacked at the same time. He gave evidence that no cranes were being jacked on the date of the making of this application.

14. Stan Moore was employed by the respondent as a crane operator on the date of the making of this application. On that date he operated a mobile crane and was loading pre‑cast shingles out of a form and on to a semi-trailer at the pre-cast plant. By nine o'clock in the morning he had finished this job and he drove his crane to a gas station and took on fuel. Mr. Moore then drove his crane to the construction site at Forest Hill and reached there at ten o'clock. At the commencement of that morning there was a mechanical problem with the mobile crane. The problem was attended to by Mr. Chelchowski in the garage. Mr. Moore gave evidence that Mr. Kane is a ready-mix driver and that on the date of the making of this application he saw him at the pre-cast building driving a ready-mix truck from approximatly 7:30 a.m. until 9:00 a.m. Mr. Moore then observed Mr. Kane leave the pre-cast yard driving a rubber-tired front end loader in the direction of Oxford Street. At ten o'clock in the morning Mr. Moore again observed Mr. Kane coming from the construction site on Proudfoot Lane heading in the direction of Oxford Street. Mr. Moore did not see Mr. Kane again on the date of the making of this application for certification.

15. Mr Moore also gave evidence that he did not see Mr. Chelchowski either present on the construction site or repairing a fork lift. There were two fork lifts on the construction site. One of tie fork lifts was stationed in front of his crane during the entire day. The other fork lift was owned by the bricklayers and not by the respondent. Mr. Moore gave evidence that the bricklayers and not the respondent maintained their own fork lift. He also gave evidence that neither of the cranes on the construction site was jacked on the date of the making of this application. Mr. Moore never saw Mr. Dunham on the construction site on that date but he did see him at the garage during that morning where he was either repairing a ready-mix truck or a front end loader. While Mr. Moore punches a time clock at the plant, he performs ninety per cent of his work at the construction site. He punched the time clock at the plant rather than the construction site because he is required to take his machine to the plant as his last duty each day. The front end loader is also returned to the plant at the conclusion of the day's work.

16. Dan Cadotte was employed by the respondent as a crane operator on the date of the making of this application. The crane he operated is a Manotouwalk Model 300 Crawler which runs on a track. He commenced work on that day by punching in at the construction site at 7:30 a.m. and moving jacks. Mr. Cadotte gave evidence that Mr. Kane drives a cement truck for the respondent and that on April 2, 1979, he observed Mr. Kane with a rubber-tired front end loader. He stated that Mr. Kane came to the construction site between 8:30 a.m. and 9:00 a.m. and that Mr. Kane was driving the front end loader which was normally driven by Mr. Copeland. Mr. Cadotte stated that after the coffee break Mr. Kane used the front end loader to move some cement beams. He later observed Mr. Kane drive on the access road away from the construction site at around 10:00 a.m. After that time Mr. Cadotte neither saw Mr. Kane nor the front end loader at the construction site on April 2, 1979.

17. Mr. Cadotte gave evidence that he did not see Mr. Chelchowski repairing a fork lift at the construction site on the date of the making of this application. Moreover, he did not see Mr. Chelchowski at the construction site on that date. Similarly, he gave evidence that he neither saw a crane being jacked at the construction site nor saw Mr. Dunham at the construction site on that date. The witness explained that it was impossible for a crane to be jacked on that date without his being aware of it.

18. Adam Sauve was employed by the respondent as a hammerhead crane operator on the date of the making of this application. On that date he was working at the construction site and observed Mr. Kane driving a loader between 9:00 a.m. and 10:00 a.m. and pouring concrete in the afternoon. Mr. Sauve saw Mr. Kane at the construction site with his cement truck after 2:30 p.m. on the same date. The witness did not see any cranes being jacked on the date of the making of this application.

19. There is a conflict between the evidence of Mr. Chelchowski, Mr. Dunham and Mr. Koemraads on the one hand, and the evidence of Mr. McMillan, Mr. Moore, Mr. Cadotte and Mr. Sauve on the other hand. The three last mentioned persons, however, made notes of what happened on April 2, 1979, the date of the making of this application, and gave their evidence from their notes. On the other hand, the respondent's records, which were placed in evidence before the Board, do not support the testimony of Mr. Chelchowski, Mr. Dunham and Mr. Koemraads. In these circumstances, where there is a conflict in the evidence, the Board accepts the evidence of Mr. Moore, Mr. Cadotte and Mr. Sauve in preference to the evidence of Mr. Chelchowski, Mr. Dunham and Mr. Koemraads who were apparently relying solely on their memories.

20. Mr. Kane's evidence is of little value to the Board in determining the work he performed on April 2, 1979. The Board finds that on that date Mr. Kane was engaged for about an hour in driving a front end loader and was also engaged in pouring concrete. His usual job was driving a cement truck and he drove a cement truck during April 2, 1979.

21. Mr. Bembridge was engaged in performing his normal job of operating the batching plant on April 2, 1979, and in the course of his work he used a front end loader for at least half of that day. Mr. Chelchowski and Mr. Dunham perform both repair work on the respondent's equipment at the construction site and also operate cranes from time to time. The Board finds that on April 2, 1979, neither Mr. Chelchowski nor Mr. Dunham worked on the construction site jacking cranes, but rather worked on the respondent's facilities on the Esam dirt road which is north of Oxford Street West.

22. The respondent has employees working on the construction site and at its facilities on the Esam dirt road. The distance between, by road, is one kilometer. The structures on the dirt road are apparently of a permanent nature and there is some evidence that the facilities will also be used in conjunction with future projects of the respondent. In our opinion, the facilities are not to be regarded as part of the construction site and employees who work there are not on-site employees. The Board expresses no opinion if the facts had established that the facilities of the Esam dirt road had been of a temporary nature and intended to be operational merely for the Forest Hill construction site.

23. The Board now considers the list of employees for the purpose of the count. Prior to the enactment of The Labour Relations Amendment Act, 1970 (No. 2), SO. 1970, c. 85, s. 39, the Board excluded shop and yard and other off-site employees from bargaining units which were determined in applications for certification filed under the construction industry provisions of The Labour Relations Act. The enactment in 1970, however, introduced a broad definition of "employee" in the construction industry. This definition now appears in section 106(b) of the Act. Section 106(b) states:

"In this section and in sections 107 to 124,

(b) 'employee' includes an employee engaged in whole or in part in off-site work but who is commonly associated in his work or bargaining with on-site employees."

24. In the Taggart Construction Limited case, [1974] OLRB Rep. March 190; and the C. A. Pitts Engineering Construction Ltd. case, [1973] OLRB Rep. Feb. 123, the Board considered the provisions of section 106(b). In those two cases the Board determined that if off-site employees were only rarely, uncommonly and briefly required to work on-site they were not appropriate for inclusion with on-site employees. In the instant application Mr. Chelchowski and Mr. Dunham were not working on the construction site on April 2, 1979. However, these two employees clearly do spend time on the construction site on other days on a regular basis and the Board finds that they are commonly associated in their work with on-site employees within the meaning of section 106(b). The Board therefore includes Mr. Chelchowski and Mr. Dunham on the list for the purpose of the count because they are engaged in either operating or repairing equipment referred to in the bargaining unit.

25. Mr Bembridge appears to be engaged solely in off-site work. However, he is engaged in operating equipment which is referred to in the bargaining unit and he is apparently engaged solely in work which in its entirety is destined directly or indirectly for the construction site. The Board finds that he is engaged solely in the flow of work to the construction site and that lie is commonly associated in his work with on-site employees. Mr. Bembridge is therefore included in the list for the purpose of the count.

26. Mr. Kane was regularly employed as a cement truck driver and on the date of the making of this application he was employed in a variety of tasks such as driving his cement truck, pouring cement and briefly as a driver of a front end loader. In the construction industry it has been the practice of the Board where employees engaged in the work of different crafts (and where they are paid only one rate) to characterize the craft in which they are employed for a majority of their time as the one governing their status on an application for certification. See the Johnson-Kiewit Subway Corporation case, [1966] OLRB Rep. June 182; the 0. J. Gaffney Limited case, [1964] OLRB Rep. Aug. 233; the McNamara Construction of Ontario Limited case, [1964] OLRB Rep. Dec. 419; and the Nedan Forming Company Limited case, [1965] OLRB Rep. May 100. The Board finds that Mr. Kane spent by far the majority of his time on April 2, 1979, either driving a cement truck or pouring cement and only about one hour in driving a front end loader. In the absence of any evidence that he was paid more than one job rate, the Board is not prepared to find that he was paid more than one rate. Accordingly, the Board classifies Mr. Kane as a driver of a cement truck and not as an operator of equipment which is included in the bargaining unit. Mr. Kane is therefore not included in the bargaining unit for the purposes of the count.

27. The list for the purpose of the count therefore consists of: Dan Cadotte, Scott Crockard, George Kitson, Stan Moore, Adam Sauve, Joe Soares, Danny Bembridge, Bruno Chelchowski and Don Dunham for a total of nine persons. The applicant filed evidence of membership of the type referred to in paragraph twenty-eight on behalf of five of these nine persons.

28. In this application for certification the applicant filed two combination applications for membership and receipts. The combination applications for membership are signed by the employees and the receipts are countersigned and indicate that a payment of $1.00 has been made within the six month period immediately preceding the terminal date of the application. The money was collected by one person. The applicant also filed three proof of membership documents. The documents are signed by the members, indicate that the persons in question are members in good standing of the applicant and also indicate that monthly dues of $15.00 have been paid for at least one month within the six month period immediately preceding the terminal date of the application. The documents contain a certification by an officer of the applicant that the person signing the document is in fact a member in good standing. The applicant also filed a duly completed Form 54, Declaration Concerning Membership Documents, Construction Industry.

29. The Board further finds that all employees of the respondent in the Counties of Oxford, Perth, Huron, Middlesex, Bruce and Elgin engaged in the operation of cranes, shovels, bulldozers and similar equipment, and those primarily engaged in the repairing and maintaining of same, save and except non-working foremen and persons above the rank of non-working foreman, constitute a unit of employees of the respondent appropriate for collective bargaining.

30. There was also filed in opposition of this application for certification a statement of desire signed by eight persons. The names of three of these persons appear on the list of nine employees for the purposes of the count. However, there is no overlap between the names of the persons who signed the statement of desire and the persons who signed evidence of membership in the applicant. It is not necessary for the Board to inquire into the origin, preparation and circulation of this statement of desire because the applicant has unchallenged evidence of membership for more than fifty-five per cent of the employees in the bargaining unit referred to in paragraph 29. The Board finds no reason in the exercise of its discretion to direct the taking of a representation vote.

31. The Board is satisfied on the basis of all the evidence before it that more than fifty-five per cent of the employees of the respondent in the bargaining unit, at the time the application was made, were members of the applicant on April 10, 1979, the terminal date fixed for this application and the date which the Board determines, under section 92(2)(j) of The Labour Relations Act, to be the time for the purpose of ascertaining membership under section 7(1) of the said Act.

32. A certificate will issue to the applicant.