Labourers' International Union of North America, Local 183 v. Nu-West Development Corporation Ltd.
[1983] OLRB Rep. May 692
1287-82-R Labourers' International Union of North America, Local 183, Applicant, v. Nu-West Development Corporation Ltd., Respondent.
BEFORE: D. E. Franks, Vice-Chairman, and Board Members J. Wilson and H. Kobryn.
APPEARANCES: B. Fishbein and T Pinto for the applicant; J. R. Hassell for the respondent.
DECISION OF THE BOARD; May 17, 1983
This is an application for certification pursuant to the construction industry provisions of the Labour Relations Act.
This matter was set on for hearing to deal with the representations of the parties on the report of the Labour Relations Officer dated February 18, 1983.
The report of the Labour Relations Officer breaks down into two parts. The first part deals with three employees who can be termed "service employees", and thus, there arises a question about whether they fall within the bargaining unit of this application. The second group deals with three employees who have been challenged by the applicant as being managerial employees within the meaning of section l(3)(b) of the Labour Relations Act.
We shall deal first with the three service employees and the question of whether or not they fall within the bargaining unit.
Notwithstanding the representations of the applicant concerning the credibility of the three witnesses who are service employees, the Board is of the view that the evidence in relation to these three employees is sufficient to decide their status.
The three employees in question deal essentially with the Hudac warranty for new homes. Thus, the prime reason for their job is to conduct a series of four inspections at periods of two weeks, three months, six months and 12 months of various purchasers of homes from the respondent employer. In the course of their duties in this regard they are required to deal with the purchasers of the homes in question. It is also part of their duties to effectuate any repairs that they can perform, but where they are unable to perform such repairs then call in "the appropriate trades" to perform the repairs. In this respect they perform work similar to the construction labourers employed by the respondent to deal with the cleaning up of the project at the end of the construction process.
The position taken by the respondent with regard to these employees is that they are construction labourers within the meaning of the Labour Relations Act. The position taken by the applicant is that they are not employees engaged in a construction industry. Indeed, the position of the applicant is that they are employees engaged in the maintenance of a construction site. The applicant's position is that in an application under the construction industry provisions of the Labour Relations Act, the applicant ought not to be required to take industrial (non-construction) employees regardless of the extent of fragmentation in bargaining units caused by this separation of bargaining units. In this regard, the applicant relies on the oldest of the Board cases dealing with the definition of the construction industry, namely, Tops Marina Motor Hotel 119641 OLRB Rep. Jan. 583. That was an application by the carpenters union for certain employees of a company which was engaged in both the construction of a hotel and the on-going operation thereof. In the last paragraph of the decision the Board noted:
"However, the Board thinks it should be made clear that it is not the Board's intention to include in the present bargaining unit carpenters who may subsequently be employed by the partnership to do ordinary maintenance work once the motor hotel is in operation."
It is our view that the three employees are not construction labourers within the meaning of the Act, but are rather service employees and as such excluded from the bargaining unit.
Counsel for the respondent urged the Board to follow the decision of the Board in PHI International Inc., 119801 OLRB Rep. Dec. 1789. That case involved two labourers who continued to clean up and do repairs after the purchasers had taken possession of certain condominium units. That case is clearly distinguishable from the present case in that those employees (who are similar to a number of the employees in the bargaining unit in this case)really did this work after the purchase simply as part of their normal job. In the present case, the three service employees form a distinct and separate operation and do not spend any of their time cleaning in the sense of the employees in the PHI International Inc. case and the other employees in the bargaining unit in the present case.
The remainder of the Labour Relations Officer's report deals with the three employees claimed to be managerial. Of these three employees, one Mr. Mitsu Yano, had previously been a superintendent for the respondent company, and the position taken by the respondent in this matter is that he had been demoted and was now a working foreman. On the basis of the evidence contained in the Labour Relations Officer's report we cannot accept this interpretation of the report. If Mr. Mitsu Yano was in fact demoted from superintendent, it is clear from the report of the Labour Relations Officer that his pay did not change and neither did his responsibilities change. He was in fact simply moved to a smaller job site. In our view, therefore, Mitsu Yano is excluded by virtue of section 1(3)(b) of the Labour Relations Act. With respect to the remaining two employees, Roy Boughner and Vince Valela, there is a substantial conflict in the report in terms of their actual duties, and in particular it appears that a number of the construction labourers who gave evidence were of the view that these two persons did not perform any work. However, we are prepared to accept the evidence of Roy Boughner and Vince Valela and the evidence of Mr. Alex Smith, and on that basis it is clear that these two persons occupy the position of working foreman. They are, therefore, including in the bargaining unit and not excluded by the operation of section 1(3)(b) of the Labour Relations Act.