[1981] OLRB Rep. December 1840
1392-81-R; 1427-81-R United Brotherhood of Carpenters and Joiners of America Local 785, Applicant, v. Watcon Inc., Respondent, v. Group of Employees, Objectors; Labourers' International Union of North America Local 1081, Applicant, v. Watcon Inc., Respondent, v. Group of Employees, Objectors.
BEFORE; Ian Springate, Vice-Chairman, and Board Members W. Gibson and C. A. Ballentine.
DECISION OF THE BOARD; December 18. 1981
These are two applications for certification in which the Board issued an earlier decision on November 19, 1981. In its November 19th decision, the Board appointed an Officer to inquire into the composition of the bargaining unit and the list of employees with respect to both applications.
File No. 1427-81-R involves an application for certification by Labourers' International Union of North America, Local 1081 ("Labourers Local 1081"). No hearing has as yet been held with respect to the application. By letter dated December 4, 1981, counsel for the respondent requested information "as to the present status" of certain statements of desire filed in opposition to the application by a group of objecting employees. The group of objecting employees are, of course, entitled to participate fully in the proceedings as a separate party. As to whether the statements of desire might be relevant to the question of whether the Board should exercise its discretion under section 7(2) of the Act to direct the taking of a representation vote, that it is a matter which must await a resolution as to the proper list of bargaining unit employees, and a determination as to the number of bargaining unit employees who were members of the union on October 9, 1981, the terminal date fixed for this application.
File No. 1392-81 -R involves an application for certification by United Brotherhood of Carpenters and Joiners of America, Local 785 ("Carpenters Local 785"). By letter dated December 4, 1981, counsel for the respondent set out the following submissions:
On Wednesday, December 2, 1981 the parties held their first examination meeting pursuant to the Board's decision of November 19, 1981 with the Labour Relations Officer so appointed. At this meeting, the Union repeated its position taken earlier at the Labour Board hearing that Mr. Brian Lang, listed on the Respondent's Schedule A, should be excluded from the bargaining unit as he is a managerial employee, the Respondent argued if Mr. Lang is a managerial employee and thereby excluded from the bargaining unit, then three other persons listed on Schedule A should also be excluded on the same basis: James Harnack, Dennis Kuepfer, and Pascal Perry. The Respondent therefore requested the Labour Relations Officer to examine these three persons in addition to Mr. Brian Lang so that the final appropriate composition of the bargaining unit could be determined.
The Respondent would raise the following arguments in support of its position that these three persons should also be examined:
The Board has the initial responsibility to determine an appropriate bargaining unit. The Board would not want to include persons who should be excluded as managerial, in this bargaining unit. The Board may be critical of the Respondent for having included these four persons on its Schedule A. The Respondent would respectfully ask the Board to bear in mind the unique situation which exists in the construction industry, wherein certain foremen are historically included in the bargaining unit, while other foremen are not included in the bargaining unit. This line is not an easy one to draw. In this case, the applicant Union has taken the position that Brian Lang is a managerial employee and should be excluded from the bargaining unit. The Respondent must advise the Board that the three persons it has requested the Officer to examine would have identical or greater managerial and supervisory responsibilities with Mr. Brian Land.
The respondent originally included the names of Messrs. Lang, Harnack, Kuepfer and Perry on the list of employees. In our view, it is generally not open to an employer to contend after a hearing that persons it included on the list of employees should not have been included. For the purposes of this decision, however, we will assume that the respondent's position is correct, and that if Mr. Lang's name is to be removed from the list of employees so should the names of other persons who have identical or greater managerial and supervisory responsibilities. It appears to us, even on the basis of this assumption, that the question of whether Messrs. Harnack, Kuepfer and Perry actually exercise "identical or greater managerial and supervisory responsibilities" than Mr. Lang, is a relevant consideration only if the Board concludes that at the time of the filing of the application Mr. Lang did exercise managerial functions and hence should not have been included on the list of employees. In these circumstances, we are of the view that at this time Messrs. Harnack, Kuepfer and Perry should not be examined by the Labour Relations Officer, but instead the issue of the status of these three persons should (subject to the matters raised in paragraph 8 below) await the Board's decision with respect to the alleged managerial status of Mr. Lang.
As indicated above, in its decision of November 19, 1981, the Board appointed an Officer to inquire into the list and composition of both a bargaining unit of construction labourers, and a bargaining unit of carpenters and carpenters' apprentices. One of the reasons for this appointment was the fact that a number of individuals who appear as carpenters on the list of employees filed by the respondent in File No. 1392-81-R, also appear on the list of employees in File No. 1427-81-R as labourers. The impression we received at the hearing held with respect to File No. 1392-81-R was that the individuals in question were at times assigned labouring functions and at other times carpentry duties, and that the respondent had been uncertain as to how they should properly be classified. Counsel for Carpenters Local 785, by 1842 letter dated December 7, 1981, has indicated that the parties are in agreement that one of these persons was employed as a carpenter on the date Carpenters Local 785 applied for certification, namely, September 25, 1981, but that he was employed as a construction labourer on September 30, 1981 when Labourers Local 1081 applied to be certified.
As a general principle, in the construction industry it is the Board's practice where employees are engaged in the work of different crafts or classifications, and are paid only one rate, to characterize the craft or classification in which they are employed for a majority of their time as the one governing their status on an application for certification. Further, in seeking to determine the craft or classification in which an employee was employed for a majority of the time, the Board looks not simply to the actual date of the making of the application, but rather to a period of time leading up to the date of the application. See: .1. & M. Chartrand Realty Limited, [1978] OLRB Rep. May 423, where the Board took into account a two week time period. This approach on the part of the Board, along with the submissions of the parties at the hearing and the fact that the two application dates were only five days apart, led the Board to the conclusion that it was unlikely that the same individuals would have properly been included on both the list of carpenters and the list of construction labourers.
Notwithstanding the above, it is possible that a persons who was employed primarily as a carpenter might at some point in time have been "re-classified" and thereafter employed primarily as a construction labourer. If the parties are in agreement that one or more employees who were included on both lists of employees filed by the respondent fit within this category, and were employed in the carpenters' bargaining unit on September 25, 1981 and in the construction labourers' unit on September 30, 1981, the Board will accept their agreement and conclude that the individuals involved were properly included on both lists. Accordingly, there is no need for the Labour Relations Officer to inquire into the status of persons agreed by the parties to be properly included on both lists.
In his letter of December 7, 1981, counsel for Carpenters Local 785 made the following submission with respect to the application in File No. 1392-81-R:
... since the Applicant's challenges cannot affect its membership position and since there is no challenge to the person referred to in paragraph 17 of the Board's decision, the Applicant requests that a certificate should be issued in this matter without the necessity of examinations.
If in light of this decision, and the positions taken by the parties with respect to the status of the various individuals on the lists of employees filed by the respondent, it appears to the Labour Relations Officer that any remaining disputes between the parties as to the proper list of employees cannot affect the right of Carpenters Local 785 to be certified, the Officer is not to continue his inquiry into the list and composition of the bargaining unit in File No. 1392-81 -R, but instead is to proceed only with respect to File No. 1427-81-R. In such a situation the Board will receive written submissions from the parties on the question of whether any useful purpose is now likely to be served by determining which individuals were employed within the carpenters' bargaining unit back on September 25, 1981, the date of the filing of the relevant application.