[1982] OLRB Rep. August 1159
2535-81-R Labourers' International Union of North America, Applicant, v. Diplock Durable Floor Company Limited, Respondent, v. Operative Plasterers' and Cement Masons' International Association of the United States and Canada, Local Union No. 598, Intervener.
BEFORE: Ian Springate, Vice-Chairman, and Board Members W. H. Wightman and C. A. Ballentine.
APPEARANCES: lan Roland and Peter Hitchen for the applicant; W James Stuckey for the respondent; L. C. Arnold and G. Balanzin for the intervener.
DECISION OF THE BOARD; August 18, 1982
This is an application for certification. The respondent is an employer engaged in the construction industry.
The intervener is currently the bargaining agent for certain employees of the respondent. By way of this application the applicant is seeking to acquire the bargaining rights for these employees.
In a decision dated March 29, 1982, a differently constituted panel of the Board determined a voting constituency and directed the taking of a pre-hearing representation vote. In accordance with the Board's general practice in such matters, the Board stipulated that those eligible to vote were employees in the voting constituency on March 16, 1982, the terminal date fixed for the application, who had not voluntarily terminated their employment or who had not been discharged for cause between March 16, 1982 and the date the vote was taken.
Subsequent to the release of the Board's decision, the parties reached agreement on a voters' list containing six names. The parties also specifically agreed that eight persons who had at various times worked for the respondent should not be included on the list in that they had not been working for the respondent on March 16, 1982. It appears that at this time the intervener contended that an additional name should be added to the list, namely that of Mr. L. Mastromarco. The other parties did not agree to adding Mr. Mastromarco's name to the list due to their understanding that he exercised managerial functions on behalf of the respondent.
The pre-hearing representation vote was held on April 6, 1982. Five of the six employees listed on the agreed-upon voters' list cast ballots. Six additional persons also presented themselves at the poll, and each was permitted to vote by way of a segregated ballot. One of these persons was Mr. Mastromarco. The other five individuals were among the eight whom the parties had agreed should not be included on the voters' list in that they had not been working for the respondent on March 16, 1982. At the conclusion of the ballotting, the ballot box was sealed. To date none of the ballots have been counted.
The Board listed this matter for hearing with respect to the issue of whether or not the segregated ballots should be counted. The Board notes the agreement of the parties to having this panel deal with the issue. At the hearing the intervener contended that although it had earlier agreed that five of the individuals who cast segregated ballots were properly excluded from the voters list, nevertheless in that the individuals had presented themselves at the po1l, the Board should inquire into the matter. The intervener further contended that the Board should count their ballots. The applicant objected to this approach contending (although no evidence was led to support the contention) that the intervener had encouraged its supporters who were not on the agreed voters' list to show up at the vote. The applicant submitted that it would be unfair to now count the ballots of these individuals in that had the applicant been aware that the Board would do so, the applicant would have advised its supporters who were not on the voters' list to also attend at the poll. Having regard to our conclusion set out below, there is no need in this case to deal with the propriety of the intervener agreeing that certain individuals were not entitled to vote, and later contending that segregated ballots cast by these same individuals should be counted.
We turn first to consider the eligibility to vote of Mr. Mastromarco. The parties reached agreement on certain facts relevant to Mr. Mastromarco's duties. These facts indicate that at the relevant time Mr. Mastromarco was employed by the respondent as its field superintendent with the power to hire and fire employees. This being the case, we are satisfied that on March 16, 1982 Mr. Mastromarco was a person who exercised managerial functions and hence, pursuant to section 1 (3)(b) of the Act, was not an employee for the purposes of the Act. This being the case, Mr. Mastromarco's segregated ballot is not to be counted.
The other five individuals who cast segregated ballots have each had a long connection with the respondent. However, for various reasons they were not actually working for the respondent on March 16, 1982. Two of them, namely Mr. J. White and Mr. A. Fritas, had been formally laid off by the respondent for most of the month of March, although they were subsequently recalled on April 5, 1982. Two others, namely Mr. D. Gomes and Mr. J. Iwasjuk worked for the respondent during most of March, but due to a lack of work they had been advised not to report on a number of days during the month, including March 16, 1982. Both men subsequently returned to work for the respondent. The final individual, Mr. G. White, was away most of the month of March on vacation. The intervener takes the position that given their ongoing involvement with the respondent, the five individuals should be regarded as employees of the respondent and their ballots counted notwithstanding the fact that they were not actually at work on March 16, 1982.
Unlike the situation in other industries, the Board's general practice in the construction industry is to count as' employees of an employer only those persons actually at work for the employer on the day in question. This applies both when the Board determines who was an employee on the application date for the purposes of the "count", and also who was an employee on the date set to determine eligibility to vote in a representation vote. The Board's practice arises out of the transient nature of the work force in the construction industry as well as a resulting need for a clear set of practices regarding construction industry certification applications. Individual tradesmen frequently move from employer to employer. Further, when a tradesman is laid off, even for a short period of time, he often obtains alternate employment with another firm. In this regard, it is instructive to note that one of the individuals who worked for the respondent during most of March, namely Mr. Gomes, was included on the voters' list in the Metro Concrete Floors Inc. case, File No. 2657-81-R (which involved a contest between the same two unions as in this case) on the basis of his employment by that firm during part of March, including March 31, 1982, the date set to determine voter eligibility.
Counsel for the intervener contended that the Board sometimes takes a wider view concerning who is a construction industry employee, and in this regard relied primarily on the Board's decision in J. McLeod & Sons Ltd. case, [1969] OLRB Rep. Dec. 1100. In that case the Board concluded that a number of striking construction tradesmen were "employees" and hence entitled to vote in a displacement certification application. We do not regard the reasoning in the McLeod case to be applicable in these proceedings. In the McLeod case the Board appears to have concluded that at the relevant time the striking tradesmen would actually have been at work for the employer except only for the fact that they were on strike. In light of section 1(2) of the Labour Relations Act, which stipulates that no person shall be deemed to have ceased to be an employee by reason only of his ceasing to work for an employer as a result of a strike, the Board went on to conclude that the tradesmen remained employees of the employer. In the instant case, however, section 1(2) has no application.
We are not prepared to depart from the Board's practice of regarding as employees in the construction industry only those persons actually at work for an employer on the date in question. We would note that the policy is one that avoids uncertainty and lengthy disputes concerning who should be counted as an employee. In this regard, we would adopt the reasoning of the Board in the Keystone Constractors Limited case, [1966] OLRB Rep. Feb. 821, where in denying a request that it not dismiss a construction industry certification application due to the fact that no one was at work on the application date because of a snow storm, the Board noted that its policy respecting who it will view as a construction industry employee is basically equitable to all parties and also lends itself to the expeditious disposition of certification applications which is a primary consideration in the construction industry. In the instant case, the Board set March 16, 1982 as the date for determining voter eligibility. In that the five individuals in question did not work for the respondent on March 16. 1982, we are satisfied that on that date they were not employed within the voting constituency. Accordingly, the segregated ballots of Messrs. Iwasjuk, Gomes, Fritas, G. Whie and J. White are not to be counted.
The Board directs that the five non-segregated ballots cast in the pre-hearing representation vote now be counted. The matter is referred to the Registrar.