[1984] OLRB Rep. August 1113
1654-83-R United Brotherhood of Carpenters & Joiners of America Local 1256, Applicant, v. Letham, Jarvela and Robertson Ltd., Respondent
BEFORE: N. B. Satterfield, Vice-Chairman, and Board Members F. W. Murray and W. F. Rutherford.
DECISION OF THE BOARD; August 2, 1984
In this application for certification the applicant filed three 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 made with 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 respondent filed a reply, a list of employees containing three names on schedule "A" and specimen signatures within the time fixed in accordance with the Labour Relations Act and the Board's Rules of Procedure.
The Board finds that the applicant is a trade union within the meaning of section 1(1)(p) of the Labour Relations Act and is an affiliated bargaining agent of a designated employee bargaining agency. Pursuant to the designation issued by the Minister under section 139(1) of the Act on April 10, 1980, the designated employee bargaining agency is the United Brotherhood of Carpenters and Joiners of America and the Ontario Provincial Council of the United Brotherhood of Carpenters and Joiners of America.
The Board further 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 which provides that:
An application for certification as bargaining agent which relates to the industrial, commercial and institutional sector of the construction industry referred to in clause e of section 117 shall be brought by either,
(a) an employee bargaining agency; or
(b) one or more affiliated bargaining agents of the employee bargaining agency,
on behalf of all affiliated bargaining agents of the employee bargaining agency and the unit of employees shall include all employees who would be bound by a provincial agreement together with all other employees in at least one appropriate geographic area unless bargaining rights for such geographic area have already been acquired under subsection 3 or by voluntary recognition.
The applicant ("Local 1256") is seeking its traditional trade unit composed of carpenters and carpenters' apprentices. The appropriate unit proposed by the respondent in its reply is described in terms of carpenters and registered carpenters' apprentices (emphasis added by the Board). The reply and the lists of employees filed by the respondent indicated that there were three carpenters at work on the date of the application in the bargaining unit proposed by Local 1256. Local 1256 challenged the list of employees filed by the respondent. In view of those issues, a Board Officer was authorized to inquire into and report to the Board on the list and composition of the bargaining unit. The Officer made his inquiry, reported to the Board and copies of his report were sent in the usual manner to Local 1256 and the respondent. The solicitors for those parties subsequently made written submissions to the Board on what conclusions it should reach from the evidence in the Officer's report.
The Board wishes, before dealing with the report and the submissions thereon, to deal first with the issue raised in the reply with respect to registered carpenters' apprentices. The respondent's position is based on what it understands to be the requirements of the Apprenticeship and Trademen's Qualification Act, R.S.O. 1980 c. 24, and Ontario Regulation 570/76, section 2 (pursuant to that legislation). The respondent claims also that the carpenters provincial agreement contemplates only registered apprentices. What that agreement says about apprentices is simply irrelevant to the determination of the appropriate bargaining unit in this application. With respect to the Apprenticeship and Trademen's Qualification Act, the Board agrees with Local 1256's solicitors that persons in the general carpenter trade and employers of persons in the trade are not bound by those provisions of the Apprenticeship and Trademen's Qualification Act which caused the Board in Irvcon Roofing, [1981] OLRB Rep. Nov. 1594 to describe the appropriate bargaining unit in that case in terms of registered apprentices. Thus, that Act is not cause for the Board to use the term "registered" with respect to apprentices when describing bargaining units for the carpentry trade. Therefore, there is no reason for the Board in this case to depart from describing the appropriate bargaining unit in terms of carpenters and carpenters' apprentices, the trade usually granted to the United Brotherhood of Carpenters and Joiners of America and its constituent carpenter locals.
The Board therefore finds, pursuant to section 144(1) of the Act, that all carpenters and carpenters' apprentices in the employ of the respondent in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario and all carpenters and carpenters' apprentices in the employ of the respondent in all other sectors in the County of Lambton, 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.
The applicant is seeking to have the names of two persons, Roger Lauzon and Blaise Campbell added to the list of employees filed by the respondent. Local 1256 claims that Lauzon and Campbell were performing carpentry work on the date of application and therefore were employees in the bargaining unit described above. The respondent, at the time of the inquiry, was taking the position that they were not performing carpentry work, were not apprentices and, particularly, were not registered apprentices. Alternatively, if they were performing carpentry work on the date of the application, they were doing the work of construction labourers as well and spent the majority of their time while employed by the respondent on labouring work. Therefore, the Board should find them to be labourers and not carpenters.
Local 1256 is not claiming either person to be an apprentice and, through its solicitors has admitted that Campbell is not an apprentice. Local 1256 claims that Lauzon and Campbell were doing carpentry work on the date of the application and for a representative period before the date. Therefore, they were carpenters and employees in the bargaining unit.
The evidence in the officer's report reveals that Lauzon was hired on July 11th, 1983 as a labourer. He was paid $6.50 per hour and worked as a labourer until approximately September 2 1st. By that date the project had reached the stage where the major part of the carpentry work involved was to begin. At or about that time Lauzon's wage rate was increased to $10.00 per hour and he began to do carpentry work and continued to do that work at least until October 20th, 1983, the application date. He did the same kind of work as Gregory Delmotte who was hired by the respondent on October 5th. Delmotte was also paid $10.00 per hour and his name appears on the list of employees filed by the respondent with respect to the application. His classification is given as carpenter and is not disputed. The evidence in the report of the work which they were performing establishes clearly that Lauzon was employed as a carpenter at the making of this application. Therefore, the Board finds that he is an employee in the bargaining unit described above.
The Board does not have the direct evidence of Campbell about the work which he was performing on the date of application because, at the time of the Board's inquiry, he was employed in Nova Scotia. The Board does have the evidence of the respondent's general foreman George Munt, who hired Campbell, as well as that of Lauzon and Gregory Delmotte. Campbell was hired by Munt as a labourer on August 10th, 1983. He did labouring work until he started to work with Lauzon. Delmotte was in a position to observe the work which Campbell was doing while he worked together with Lauzon. Campbell began working with Lauzon not later than September 28th and, except for a maximum of three days when he did some labouring work, he worked with Lauzon at least up to and including October 20th. Having reviewed the testimony recorded in the Officer's report of Lauzon and Munt, the Board is satisfied that the three days on which Campbell was doing labouring work after he began working with Lauzon did not include October 20th. The project on which they were working was a one storey office building, they worked together on the framing of interior and exterior walls, the installing of prefabricated roof trusses, installing slope wedges for the roof, laying sheathing for the roof and placing sheathing for the exterior walls. Campbell and Lauzon worked as a team in the same way that Delmotte and another person who is listed by the respondent as a carpenter worked together as a team. When the roof trusses were being raised and the roofs sheathing being laid the four of them were working on the roof together.
Campbell was not experienced at carpentry work and at first had to be shown by Lauzon how to do measuring accurately and how to cut. Cutting was done by power saw and the respondent's general foreman eventually told Lauzon not to do any cutting with the power saw because he was unskilled at that work. Because of his inexperience, Campbell did not do all of the carpentry work which Lauzon and Delmotte were doing. When Lauzon was framing walls, Campbell carried the lumber for him. He also shared with Lauzon the placing and nailing of the 2" x 6" wall studs. Campbell and Lauzon worked together with Delmotte and another carpenter in installing the prefabricated roof trusses and laying sheathing for the roof. On the latter work, Campbell laid and nailed the sheathing. When weather did not allow that work to be done, he and Lauzon worked together installing solid bridging with Campbell holding the bridging for Lauzon and also nailing it in place. Local 1256 claims that the work which Campbell had been performing together with Lauzon was the work of a carpenter. The respondent claims it to be the work of a carpenter's helper and, therefore, not the work of a carpenter. The respondent claims, moreover, were the Board to agree with Local 1 250, the Board should look at the work Campbell was doing for the majority of the time he was employed until the application date. On that basis, the respondent submits, the Board would find Campbell to be a labourer.
Obviously the work which Campbell was doing prior to September 28th does not assist Local 1256's position that he is a carpenter. Therefore, if that work does not establish him as a carpenter, it is unnecessary for the Board to decide whether it would consider the earlier period of his employment. Campbell did not own any of the tools of the carpenter trade and was loaned a carpenter's hammer and measuring tape by the general foreman when Campbell began to work with Lauzon. He had been hired as a labourer and received the same rate of pay throughout his employment with the respondent. The evidence does not reveal his actual rate of wages, but it is reasonable to infer from the evidence with respect to the manner in which he and Lauzon were employed and from the evidence with respect to Lauzon s wage rates that Campbell was earning from 65 to 75 percent of the wages paid to Lauzon and Delmotte as carpenters. He had to be shown by Lauzon the proper way to measure lumber and, while he did do some cutting of lumber to size using the power saw available, he was taken off that work because he lacked the skill to do it safely. On the other hand, except for the use of the power saw, he used the same tools which Lauzon used and did much the same work which Lauzon was doing when the two of them worked together. If Campbell was carrying lumber for Lauzon it follows that he did not spend as much of his time doing the same work of a carpenter as Lauzon did.
While the fact that Campbell worked with Lauzon doing much the same work as Lauzon and the other carpenters points toward a conclusion that he was working as a carpenter, the Board considers it significant that Campbell was instructed by the general foreman, Munt, not to use the power saw because he lacked the skill to do so safely. While the ability to use a power saw properly and safely may not be a skill exclusive to the carpenter trade, it is difficult to see how a person could function as a carpenter absent such a basic skill. That circumstance points persuasively to a conclusion that Campbell was working as a carpenter's helper and not as a carpenter when he was working with Lauzon. When it is considered together with the fact that Campbell did not possess skills similar to Lauzon and the other carpenters, was paid substantially less, carried lumber and placed and held lumber for Lauzon, work more characteristic of that of a carpenter's helper, the Board concludes that he was performing the work of a carpenter's helper and not the work of a carpenter. Therefore Campbell is not an employee in the bargaining unit described above.
The Board finds, therefore, that there were four employees in the bargaining unit on the date of making of this application. Having regard for the membership documents filed by the applicant as described above in paragraph 2, the Board finds that not less than forty-five per cent and not more than fifty-five percent of the employees of the respondent in the bargaining unit, at the time the application was made, were members of the applicant on November 1,1983, the terminal date fixed for this application and the date which the Board determines, under section 103(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.
The Board directs that a representation vote be taken of the employees of the respondent in the bargaining unit described in paragraph 8. All employees of the respondent in the bargaining unit as of the date hereof who do not voluntarily terminate their employment or who are not discharged for cause between the date hereof and the date the vote is taken will be eligible to vote.
Voters will be asked to indicate whether or not they wish to be represented by the applicant in their employment relations with the respondent.
The matter is referred to the Registrar.