International Union of Operating Engineers, Local 793 v. Warren Bitulithic Limited, 1981 CanLII 1023

Ontario Labour Relations Board

[1981] OLRB Rep. March 376

0309-80-R International Union of Operating Engineers, Local 793, Applicant, v. Warren Bitulithic Limited, Respondent.

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

APPEARANCES: Jack Redshaw for the applicant; Joseph Carrier, Ron Patterson and Eric Yonke for the respondent.

DECISION OF THE BOARD; March 10, 1981

1. The applicant is seeking certification with respect to a bargaining unit of all employees of the respondent working in the Regional Municipality of Waterloo except part of Beverly Township annexed by North Dumfries Township, 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. The respondent, in its reply, was in agreement with the proposed bargaining unit.

2. The parties were, however, in dispute as to the number of employees in the appropriate bargaining unit for the purpose of the count. A Labour Relations Officer was appointed to inquire into and report to the Board on the list and composition of the bargaining unit.

3. The report of the Labour Relations Officer contains, among other matters, an agreed statement of fact which is now set forth as follows:

AGREED STATEMENT OF FACT

1. The parties agree that the work performed by the following persons on the date of application was as shown on the attached, amended "Draft Statement of Fact":

A. Albrecht, H. Fisher, R. Gutscher, C. Leslie, H. Lozanski [sic], Z. Melderis, R. Wagler, E. Wagler.

2. The Parties agree that those persons named above did not work on a construction site on the date of application.

3. The parties agree that the Company primarily produces granular material and asphalt for use on its own construction projects, however, it does sell such materials to others when requested. On such occasions, the customer contacts the Company and arranges to pick up the material at the Company's yard. On the date of application, no such material was sold to others.

4. The parties agree that those persons named above are subject to the same wages, hours of work, statutory holiday and vacation pay as the persons agreed by the parties to be included within the bargaining unit.

5. The parties agree that W. Wagler, D. Knowles and P. Flanagan were hired at the Company's office in the area and regularly worked in the area on equipment claimed to fall within the Applicant's jurisdiction, both on site and off site (on the Respondent's property). On the date of application, these persons reported for work at the Company's office and yard in the applied for Board area and were dispatched from there to work outside the Board area.

They were paid from the time they reported to the Company's office and received one hour travel time as they travelled through the Board area.

These persons are employees of the Company's Kitchener Division, were paid from that office and are subject to the same wages, hours of work, statutory holiday and vacation pay as those persons agreed by the parties to be included within the bargaining unit.

Wagler and Flanagan performed work on the date of application at the Company's Mississauga plant operating a front-end loader and a portable crusher. This work was not on a construction site and was outside of the applied for Board area.

Knowles worked on a construction site on the date of application. The construction project was in Milverton which is outside of the applied for Board area.

This was the only construction project undertaken by the Company outside the applied for Board area and was of approximately two weeks duration.

6. The parties agree that all employees are under the supervision of the Kitchener District Manager.

The major supervision of employees on construction projects is performed by the District Superintendent who reports to the District Manager.

Both District Superintendent and the District Manager visit the construction sites on a daily basis.

All labour relations matters for all employees, including those in the applied for bargaining unit are controlled by the District Manager and the head office of the Respondent.

7. It is agreed by the parties that some of those persons not agreed by the parties as being appropriate for inclusion within the applied for bargaining unit work on site operating equipment from time to time and some of those persons who the parties have agreed are included in the bargaining unit, work in the Company's pits and plants from time to time operating equipment. None of the persons (as listed in Item 1 of this agreement) worked on a construction site in the 1980 construction season prior to the date of application.

8. It is agreed that the date of application is May 8, 1980.

9. It is agreed that the Company's construction season began on May 6, 1980.

10. It is agreed that Atkinson, J. Hiller, I. Hodder, S. Hunchak [sic], K. Locke, J. Martindale, J. Moffat, A. Mastin [sic], and D. Hiller worked in the Company's pit at plant operation located in the Company's yard prior to May 6, 1980. The date of hire for the new construction season and the type of work performed are outlined in Schedule "A" attached hereto.

11. The parties agree that the following persons are properly included within the applied for bargaining unit:

D. Atkinson I. Hodder K. Locke J. Martindale J. Moffat J. Hiller A. Martin D. Hiller and G. Hunchak.

5. The parties are not in agreement with respect to certain persons. The applicant has adopted the position that these persons were not working on the construction projects being undertaken by the respondent on the date of the application. These persons are:

A. Albrecht H. Fisher R. Gutscher C. Leslie H. Lozinski Z. Melderis R. Wagler and E. Wagler.

6. The parties are also not in agreement with respect to certain other persons. The applicant has adopted the position that these persons were not working on construction projects within the geographic area of the applied for bargaining unit on the date of the application. These persons are:

W. Wagler P. Flanagan and D. Knowles.

7. The respondent has adopted the position that the persons referred to in paragraphs five and six are appropriate for inclusion in the applied for bargaining unit by reason of the provisions of 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;

8. The evidence before the Board establishes that the persons referred to in paragraph five did not work on a construction site on the date of the making of this application. The draft statement of fact establishes that these persons were working at the respondent's pits at either New Dundee or Manheim. Messrs. Albrecht, Fisher, Gutscher, Leslie, Lozinski operated front-end loaders in connection with the loading, washing or storage of construction materials. Mr. Melderis operated the washing plant at the pit at New Dundee, Mr. R. Wagler worked as the batcher at the asphalt plant at the pit at New Dundee and Mr. E. Wagler worked as the crusher plant operator at the pit at New Dundee. The materials from these pits are sent to and used on various construction jobs in the area. There is no indication, however, that any of the persons in paragraph five were engaged in the delivery of such materials. The respondent primarily produces construction materials for use on its own construction projects. However, the respondent does sell such materials to others when requested. On the date of the making of this application such materials were not sold to others.

9. The evidence further establishes that the persons referred to in paragraph six were not employed on construction sites on the date of the making of this application. While they were hired at the respondent's office in the area and regularly worked in the area on equipment claimed to fall within the applicant's jurisdiction both on site and off site on the respondent's property, on the date of the making of this application they were dispatched to work outside the geographic area in the applied for bargaining unit. On the date of the making of this application Mr. W. Wagler and Mr. Flanagan worked at the respondent's Mississauga plant operating a front-end loader and a portable crusher and not on a construction site. While Mr. Knowles worked on a construction site on the date of the making of this application, this site was outside the geographic area in the applied for bargaining unit.

10. It appears that some of the persons referred to in paragraphs five and six worked on site operating equipment from time to time and that some of the persons referred to in paragraph four worked in the respondent's pits and plants from time to time operating equipment. However, none of the persons referred to in paragraph five worked on a construction site in the 1980 construction season prior to the date of the application. The persons referred to in paragraph four worked in the respondent's pit and plant operation located in the respondent's yard prior to the 1980 construction season and performed a variety of tasks such as preparing, repairing and washing the plant, shop work, preparation of spreader, and moving construction materials.

11. In applications for certification which are filed under the construction industry provisions of the Act, the list for the purpose of the count is the number of persons in the appropriate bargaining unit on the date of the making of the application. The parties are in agreement that such a list consists of the nine persons referred to in paragraph four. The question to be determined is whether any or all of the persons referred to in paragraphs five and six ought to be added to this list.

12. Section 106(b) defines employee as including 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. There was no evidence before the Board with respect to whether the plant, pit and site employees are associated in their bargaining with on-site employees. The Board has previously considered situations where it was argued that certain employees were engaged in whole or in part in off-site work but who are commonly associated in their work with on-site employees. See C. A. Pitts Engineering Construction Ltd. [1973] OLRB Rep. Feb. 123; Taggart Construction Limited [1974] OLRB Rep. March 190; and Esam Construction Limited [1980] OLRB Rep. Feb. 197.

13. In the instant case there is no indication of the degree or frequency to which employees interchange between off-site and on-site work. In Taggart Construction Limited, supra, the Board held that where such interchange occurred only rarely, uncommonly and briefly off-site employees were not commonly associated in their work with on-site employees within the meaning of section 106(b). While it is clear that most of the construction material is destined for the respondent's own use, the fact that pit and yard work is part of a sequence of operations which leads up to on-site work is not, in itself, sufficient to make off-site employees commonly associated in their work with on-site employees. See C. A. Pitts Engineering Construction Ltd., supra. There is no indication in the instant application that the off-site employees spend time on construction sites on other days on a regular basis. In Esam Construction Limited, supra, the Board included on the list for the purpose of the count two off-site employees who spent time on a construction site on other days on a regular basis and found that they were commonly associated in their work with on-site employees within the meaning of section 106(b).

14. In the instant case, the Board, on the criteria laid down in the preceding paragraph, is not prepared to find that any of the persons referred to in paragraphs five and six are to be added to the list of employees for the purpose of the count because the Board finds that such employees are not employees within the meaning of section 106(b).

15. At the hearing the applicant clarified its position with respect to the appropriate bargaining unit and informed the Board that this application for certification was made pursuant to the provisions of section 131a(3) of the Act.

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

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

18. The Board further finds that this application for certification does not related to the industrial, commercial and institutional sector of the construction industry referred to in section 106(e) of The Labour Relations Act.

19. The Board further finds that all employees of the respondent in the Regional Municipality of Waterloo except part of Beverly Township annexed by North Dumfries Township, and excluding the industrial, commercial and institutional sector, 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.

20. For the purpose of clarity, the Board declares that employees who are working in the respondent's pits, plants and yards are not included in the bargaining unit.

21. The list for the purpose of the count consists of the nine persons referred to in paragraph four. The applicant filed evidence of membership of the type referred to at the hearing on behalf of five of these nine persons.

22. 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 May 20, 1980, 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.

23. A certificate will issue to the applicant.