[1983] OLRB Rep. November 1793
1423-82-R United Brotherhood of Carpenters and Joiners of America Local 2486, Applicant, v. Des-Build Development Limited, Respondent
BEFORE: R. A. Furness, Vice-Chairman, and Board Members C. A. Ballentine and J. Wilson.
APPEARANCES: M. A. Church, Dale Chappell and Roger Charette for the applicant; D. L. Brisbin, Hugh C. MacLachlan and A. Rochefort for the respondent.
DECISION OF R. A. FURNESS, VICE-CHAIRMAN AND BOARD MEMBER J. WILSON; November 30, 1983
The applicant is seeking to represent a bargaining unit of carpenters and carpenters' apprentices employed by the respondent in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario and in all other sectors in Board Area #16, excluding the industrial, commercial and institutional sector, save and except non-working foremen and persons above the rank of non-working foreman.
The respondent initially filed a list of ten persons who were described as carpenters employed by it on the date of the making of this application. The applicant adopted the position initially that it had filed evidence of membership with respect to four of the five carpenters whom it believed to be employed by the respondent in the proposed bargaining unit on the date of the making of this application. The Board appointed a Labour Relations Officer to inquire into the list and composition of the proposed bargaining unit. It subsequently appeared that that respondent did not fully appreciate the criteria for designating its employees according to a given trade. The jobs which were undertaken by the respondent utilized a number of employees who exercised various skills and trades from time to time and after reviewing the matter with the applicant and the Labour Relations Officer, the respondent modified its list of employees to two. Subsequently, the respondent adopted the position that there were four carpenters in its employ on the date of the making of this application. The applicant objected to the respondent modifying its list after the appointment of a Labour Relations Officer.
In Santa Maria Foods, [1981] OLRB Rep. Nov. 1618, the Board considered the question of amendments to lists of employees upon challenges before the Board. At page 1619 the Board stated:
At the outset of the hearing the Board will generally allow the employer to amend the lists filed to reflect any new information not previously available or to correct any error. During the hearing the Board does not announce the count of employees or any union membership until the description of the bargaining unit is settled. Similarly it does not announce the membership count until the count of employees in the unit is determined, subject, of course, to such outstanding challenges to the list as may have been made to that point in the hearing. These are rules well known to the parties and articulated in the Board's jurisprudence. (See, Gwell Investments Ltd., [1971] OLRB Rep. Oct. 675; The Corporation of the Township of Kingston, [197S] OLRB Rep. Apr. 370; Inter City Food Services Inc., [19761 OLRB Rep. July 388; Great Windsor Investments Ltd. Windsor Nursing Home, [19761 OLRB Rep. Sept. 515.) Without these general rules certification hearings would be endless meanderings without map or compass, each turn in the journey being dictated by changing perceptions of the parties as to what best serves their own interests. That is why, absent extraordinary circumstances, the Board does not entertain submissions on the structure of bargaining unit or the list of employees in the unit after the point in the hearing when the count has been given.
It is the view of the Board that extraordinary circumstances exist in this application due to the fact that the employees affected by this application exercised more than one skill, and due to the fact that legitimate differences of opinion arose concerning whether the Board should look at the work performed on the date of the making of this application, or on a more representative period with respect to the work performed. The Board therefore permitted the respondent to amend its list of employees as originally filed.
In Pre-Con Murray Limited, [19691 OLRB Rep. Jan. 1003, the Board considered the question of the issue of the characterization of a trade performed by an employee for the purposes of the Labour Relations Act and stated at page 1007 as follows:
In the Nedan Case, [[196S] OLRB Rep. May 100] and in such other cases as George Armstrong Co. Limited, O.L.R.B. Monthly Report, January 1967, p.773, the Board has applied a rule that a person engaging in more than one trade is characterized for purposes of inclusion or exclusion from a bargaining unit by the trade in which he spends the majority of his time. Thus, if an employee does both carpentry and labouring work, he will be characterized as a labourer if he spends the majority of this time doing a labourer's job. Admittedly, in some cases this is a difficult rule to apply because it is sometimes virtually impossible to establish how much time is spent on different types of work. In the George Armstrong Case the Board was urged to apply a different rule, namely, if the prime reason for hiring a person is because of a particular skill and if the employee uses this particular skill when needed, then this should be sufficient for the purpose of characterizing that employee's trade or craft. In that case the Board made no decision as to whether to adopt such a rule. It seems to us, on further reflection, that the principle does have some merit, provided the employee is paid according to the trade or craft for which he was hired. For example, it might well be used in a case where it is not possible to determine how much time is spent in doing two different types of work or where the evidence establishes that an employee's time is equally divided between two trades. It may be that it should replace the majority rule presently followed by the Board. We express no final opinion on this point but will be prepared in future cases to entertain representations with respect to the possible adoption of such a rule.
The parties were in disagreement concerning the period of time to be considered as a representative period if the Board did not look at solely the date of the making of the application as being determinative of the craft engaged in by a particular employee. The Board has generally considered a period which was believed to be representative having regard to the nature and duration of the job. In the circumstances of this application it appears to the Board that the one-month period immediately preceding the terminal date of this application is the appropriate period to consider. It must be borne in mind that the period of the jobs affected by this application is measured in months rather than in longer periods of time.
The Board faces an additional difficulty on the facts of this application. The jobs affected by this application are not large, and the respondent clearly required and took advantage of the need for flexibility in scheduling work. This meant switching employees from one task to another so that the work could be efficiently performed and so that continuation of employment could be maintained. The employees affected by this application variously describe themselves as carpenters or bricklayers. While they all possess tools and wore an apron where it was thought to be appropriate, it is clear that none of them had any formal training, that is to say, none of them had gone through a formal apprenticeship programme leading to the qualification of a journeyman. The persons who described themselves as carpenters had received their training on various jobs, or from their fathers, with very little supervised and formal training.
The evidence of Nelson Rhode, considered on its own, and in the context of the evidence of the other witnesses who gave evidence, presents serious problems with regard to the reliability and credibility of Mr. Rhode's evidence. Mr. Rhode clearly understated and devalued the nature of the work he was performing. He emphasized the work he performed with the tools of the carpentry trade and de-emphasized all other aspects of his work. It is quite clear that he signs time sheets, that he assigns work, may effectively hire employees, awards overtime work, co-ordinates the work on the job, organizes and supervises the sub-trades, and is responsible for the job preparation. The evidence as a whole discloses that he performs a minor amount of work with the carpentry tools. The Board has considered the records of the company which clearly indicate that Mr. Rhode spent, during the month prior to the date of the making of this application, only six or so hours engaged in carpentry work. The balance of his time of almost a hundred and ninety hours was spent on supervisory work or work which involved trades other than carpentry. The Board finds that Nelson Rhode is not properly included on the list of employees filed by the respondent.
Fernand Boulanger was challenged by the applicant on the grounds that he was not a carpenter. The evidence establishes that he was initially hired as a bricklayer and then was told some time before this application was filed that his classification would be that as a carpenter. Mr. Boulanger owns both the tools of the trade for a bricklayer and a carpenter and does not remember what type of work he was performing on the date of the making of this application. Mr. Boulanger does not have any certificates or formal recognition in either the trade of bricklaying or in the trade of carpentry. The evidence of the employment records of the respondent indicate that Mr. Boulanger spent about sixteen hours performing carpentry work and about a hundred and thirty-nine hours performing non-carpentry work. The Board finds that on a fair reading of the evidence before it that Mr. Boulanger was not properly listed by the respondent as a carpenter.
There is very little evidence before the Board with respect to Emile Boudreau and Gerald Samson. It is clear that they were both hired as carpenters, and there appears to have been no suggestion in the evidence before the Board that they were not employed as carpenters throughout the one-month period prior to the date of the making of the application. In these circumstances, the Board finds that Emile Boudreau and Gerald Samson are properly included on the list as carpenters.
The applicant challenged the inclusion of Wallace Weiss on the list of employees on the grounds that he was not performing carpentry work on the date of the making of the application or during any other representative period. Mr. Weiss was unable to recall what he was doing on the date of the application and stated that he classified himself as a rough carpenter. When he was hired, he was not told the capacity in which he was hired. Mr. Weiss, in his evidence, also described himself as a formwork carpenter and as a jack-of-all-trades. It appears that Mr. Weiss may have been engaged in caulking and sealing on the date of the making of this application. This would normally be considered the work of a carpenter. However, when the Board looks at the work performed by Mr. Weiss during the one-month period immediately prior to the date of the making of this application, it appears that he spent only eighteen hours performing carpentry work and a hundred and thirty-two hours performing non-carpentry work. In these circumstances, the challenge of the applicant is upheld and the Board finds that Mr. Weiss is not properly included on the list as a carpenter.
The Board did not receive any direct evidence regarding the work of Claude Cadotte or Gilles Perron. While Mr. Cadotte was regarded by other employees as a carpenter, there is no precise evidence as to the nature of the work he performed. Mr. Perron, on the other hand, was hired as a carpenter. In considering the work performed by each of these employees in the one-month period immediately preceding the date of the filing of this application, the Board finds that Mr. Perron performed carpentry work as opposed to non-carpentry work by a ratio of five to two. The Board therefore finds that Mr. Perron was employed by the respondent as a carpenter and is properly included on the list of carpenters. On the other hand, Mr. Cadotte performed slightly less work as a carpenter as opposed to a non-carpenter, and although the figures are extremely close, the Board concludes that Mr. Cadotte is not properly included on the list of employees as a carpenter.
The respondent hired Richard M. Tremblay and Richard R. Tremblay as carpenters. However, while Richard R. Tremblay spent the vast majority of his time in the month preceding the date of the filing of this application in performing carpentry work, Richard M. Tremblay spent approximately one-third of his time during that period in performing carpentry work. In these circumstances, the Board finds that Richard R. Tremblay is properly included on the list of carpenters, and that Richard M. Tremblay is not properly included on the list of carpenters. Aurele Guillemette is a self-taught carpenter who possesses his own tools and is regarded by some of the other employees as a carpenter. He was not sure the work he was performing on the date of the making of this application, although he was pretty sure he was doing clean-up work. Mr. Guillemette performed a variety of jobs, including signalling on the job site. The records of the respondent indicate that in the one-month period immediately preceding the terminal date of this application, Mr. Guillemette spent roughly one-eighth of his work time performing carpentry work, with the balance being taken up with tasks in the field outside carpentry. In these circumstances, the Board finds that Mr. Guillemette is not properly included on the list of carpenters.
The applicant criticized the records of the respondent as being self-serving. It appears to the Board that this criticism is not merited. The respondent produced these records of its work force and informed the Board that these are records used for costing purposes. The respondent utilizes a series of codes for describing, in some detail, the nature of the work performed and the amount of time spent performing the work of each code. While it is possible to dispute the characterization of some of the work as viewed by the respondent, the Board is of the view that the characterization of the work by the respondent into carpentry and non-carpentry work is, for the most part, soundly conceived.
In summary, the Board finds that the list of employees, for the purpose of the count, consists of the following carpenters who were at work on the date of the making of this application, namely:
Gilles Perron
Emile Boudreau
Richard R. Tremblay and
Gerald Samson.
In this application for certification the applicant filed four 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 received within the six-month period immediately preceding the terminal date of the application. The money was collected by one person. The applicant also filed a duly completed Form 80, Declaration Concerning Membership Documents, Construction Industry.
The Board finds that this is an application for certification within the meaning of section 119 of the Labour Relations Act and is an application made pursuant to section 144(1) of the Act.
The Board further finds that the applicant filed evidence of membership on behalf of one of the four persons referred to in paragraph 15.
The Board is satisfied on the basis of all the evidence before it that less than forty-five per cent of the employees of the respondent in any bargaining unit that the Board might find appropriate, at the time the application was made, were members of the applicant on November 9, 1982, the terminal date fixed for this application and the date which the Board determines, under section 103(2)6) of the Labour Relations Act, to be the time for the purpose of ascertaining membership under section 7(1) of the said Act.
The application is dismissed
DECISION OF BOARD MEMBER C. A. BALLENTINE;
I disagree with the majority's finding that only four of the ten persons on the respondent's list of employees were carpenters for the purposes of the count, and the dismissal of this certification application because the applicant filed membership evidence for only one of those four persons. The basis of my disagreement stems from the majority's acceptance of the coding system used by the respondent as reliable evidence of the work performed by them at the relevant times.
On my reading of the Board Officer's report and based on the representations of the parties at the hearing, the following is my assessment of who were employed as carpenters at the relevant dates and therefore fall within the bargaining unit and who were not so employed:
a) I agree with the majority that Nelson Rhode, Fern Boulanger and Wally Weiss are not in the bargaining unit;
b) I also agree with the majority that Emile Boudreau, Richard R. Tremblay and Gerald Samson are in the bargaining unit;
c) I find, contrary to the majority, that Richard M. Tremblay, Aurele Guillemette and Claude Cadotte are also employees within the bargaining unit; and
d) I believe that Gilles Perron was not an employee in the bargaining unit.
Richard M. Tremblay's evidence was quite clear and was unshaken by cross‑examination. He is an experienced carpenter of twenty years. He was hired as a carpenter on the Stats Canada building in Sturgeon Falls, and his evidence was that the vast majority of his working time was spent doing carpentry work. Richard M. Tremblay's evidence was collaborated by Richard R. Tremblay's evidence. Both of them were hired as carpenters on the same project around the same time, and at the same rate of pay. They both did the same type of work, and both had a labourer working with them. Their evidence is that they were the only two carpenters on the Stats Canada project at Sturgeon Falls. Notwithstanding the evidence of these two persons, the majority finds that Richard R. Tremblay was a carpenter with four years' experience and is included in the bargaining unit, and that Richard M. Tremblay with twenty years of carpentry experience was not employed as a carpenter and is excluded from the bargaining unit. The majority has exclusively relied on the evidence of the code system used by the respondent. I believe that the evidence of these two persons alone demonstrates that the respondent's code system is an unreliable basis for determining what type of work was performed by the employees. In my view, the oral evidence of these employees set out in the Examiner's report, subjected to cross-examination is to be preferred over the respondents' evidence, where that evidence conflicts.
Aurele Guillemette's evidence is that he was a carpenter with seven years' experience. He was hired by the respondent as a carpenter at the rate of $9.50 per hour to work on the Reichhold Chemical project. He also gave evidence that he had worked for the same company on two previous occasions as a carpenter doing similar work. Mr. Guillemette's evidence is that he, along with Claude Cadotte, whom he described as being another carpenter, spent the vast majority of their time erecting and dismantling concrete forms. In the case of these two persons, the majority again accepted the respondent's code system and based on the respondent's records, concluded that both of these persons spent more time on non-carpentry work than on carpentry work. This conflict between the oral and documentary evidence persuades me to believe that the respondent's code system was not an accurate basis for determining the nature of the work performed and thus should not be accepted by the majority.
S. It is a well-established fact that in the concrete forming field of construction, carpenters and labourers work closely with each other. It is often very difficult to distinguish carpentry work from labourers' work when concrete forms are being erected and dismantled. However, the main function of the carpenter is to see that the forms are level and plumb so that the concrete walls will be a properly finished product according to specifications. There is no doubt in my mind from the evidence that both Aurele Guillemette and Claude Cadotte were primarily engaged in carpentry work and should be included in the bargaining unit.
The majority found Gilles Perron was employed as a carpenter and therefore came within the bargaining unit. I cannot agree and find it hard to comprehend how the majority can come to this conclusion. Mr. Perron did not give evidence before the Examiner. According to the respondent's list, Gilles Perron was engaged on the Reichhold Chemicals project, the same project that Guillemette and Cadotte were working on, performing concrete forming work. In a letter to Mr. Church, counsel for the applicant, from Mr. MacLachlan, counsel for the respondent, dated March 22, 1983, Mr. MacLachlan stated: "Please also be advised that the company employed 11 unskilled labourers on October 28, 1982, whose rate of pay ranged from $6.50 per hour to $7.50 per hour". Along with the letter, Mr. MacLachlan attached a list of the ten persons in question whom they considered originally to be in the bargaining unit. This list included the various rates per hour. It should be noted that Gilles Perron's rate shows at $7.50 per hour. The respondent, on its own admission through this letter and the list, classifies such a rated person as being unskilled. It is not reasonable, in my opinion, for the majority to find Gilles Perron, a person rated at $7.50 per hour, was employed in the bargaining unit and, on the other hand, to find that Aurele Guillemette rated at $9.50 per hour and Claude Cadotte rated at $9.00 per hour were not. I reiterate that all three of these persons were working on the same project and working on the same type of work, namely, concrete forming. The code system which the majority has relied upon to establish the bargaining unit list should be completely disregarded. The respondent's evidence, based on its code system, is only self-serving and is not accurate.
I have thoroughly read the evidence of Mr. Rochefort, the respondent's official who gave evidence about the respondent's computer system which codes various work functions performed by the respondent's employees. Each function is defined by a code number. It was Mr. Rochefort's evidence that on both the Reichhold Chemical project and the Sturgeon Falls Stats Canada project the respondent only had labourers and carpenters employed. Therefore, all of the work performed by the employees should have been either labourers' work or carpenters' work. On my review of the code system classifications, in many areas it does not provide to a practical assessment of what constitutes the various work functions on a construction project. For example, on the Sturgeon Falls project; the Tremblays were engaged in building retaining walls with concrete precast, a self-locking mechanism. The evidence of the two Tremblays was that they each had a labourer assisting them. A masonry saw was used to cut the slabs and then they were set in dry, one on top of the other and levelled by the Tremblays. The respondent through its code #0277 classified this work under walks, curbs and posts. Mr. Rochefort's classification of this type of work is that it is a masonry function. From my background as a bricklayer and knowledge of the masonry industry, I categorically state that the building of dry slab retaining walls whether they are concrete or wood is not masonry work.
On the Reichhold Chemical project the evidence of Aurele Guillemette is that he and Claude Cadotte were engaged in erecting and dismantling concrete forms. However, their work was coded primarily as miscellaneous concrete labour work. From this assessment it is clear, in my opinion, that this coding system cannot be relied upon to establish the work of a craftsman in the construction industry. I suggest that in most, if not all trades, a code could be devised to show that the majority of time spent working would be in the non-craft area, especially in the concrete forming field.
It is my finding that the list of employees for the purpose of the count should consist of the following carpenters who were at work on the date of the application:
i) Emile Boudreau -- rate -- $10.75 per hour;
ii) Richard R. Tremblay -- rate -- $10.50 per hour;
iii) Richard M. Tremblay -- rate -- $10.50 per hour;
iv) Aurele Guillemette – rate -- $9.50 per hour;
v) Gerry Samson -- rate -- $10.50 per hour; and
vi) Claude Cadotte -- rate -- $9.00 per hour.
- The applicant union filed evidence of membership on behalf of four of the six persons referred to above. I am satisfied on the basis of all the evidence that more than fifty-five per cent of the employees of the respondent in the bargaining unit were members of the applicant on the relevant dates and that the applicant should be certified as the bargaining agent for all carpenters and carpenters' apprentices in the employ of the respondent company in the appropriate bargaining unit.