[1984] OLRB Rep. July 924
2704-83-R Teamsters, Chauffeurs, Warehousemen and Helpers Local Union No. 91, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Applicant, v. Dufresne Piling Co. (1967) Ltd., Respondent
BEFORE: Ian C. Springate, Vice-Chairman, and Board Members N. Wilson and M. Eayrs.
APPEARANCES: Eric del Junco and Don Swait for the applicant, John L. Razulis and Leonard S. Graham for the respondent.
DECISION OF THE BOARD; July 31, 1984
The name of the respondent is amended to read: "Dufresne Piling Co. (1967) Ltd."
This is an application for certification filed pursuant to the construction industry provisions of the Labour Relations Act. By way of this application the applicant is seeking to be certified for a bargaining unit of truck drivers in the employ of the respondent.
The Board finds that the applicant is a trade union within the meaning of section 1(1)(p) of the Labour Relations Act.
The Board further finds that this is an application for certification within the meaning of section 119(1) of the Act, but that the application does not relate to the industrial, commercial and institutional sector of the construction industry referred to in section 144(1).
Having regard to the agreement of the parties, the Board further finds that all truck drivers in the employ of the respondent in the Regional Municipality of Ottawa-Carleton, and the United Counties of Prescott and Russell exclusive of those employed in the industrial, commercial and institutional sector, 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 respondent filed a list of bargaining unit employees with 15 names. The applicant challenged the inclusion of two names on the list, namely, those of Mr. Perry French and Mr. Roger Cardinal. In consequence of this challenge a Board Officer conducted an inquiry into the status of these two individuals. The officer's report includes a verbatim transcript of the evidence led at his inquiry.
The basis of the applicant's challenge to the inclusion of the names of Mr. French and Mr. Cardinal on the list of bargaining unit employees is two-fold. One of the grounds is based on the applicant's contention that at the relevant time both Mr. French and Mr. Cardinal were primarily employed by the respondent as labourers and not truck drivers. In the alternative, the applicant contends that if the two individuals were employed as truck drivers, given that they were driving service trucks as opposed to the tandems, floats and dump trucks driven by the respondent's other drivers, there is not a sufficient community of interest to include them in a unit with the other drivers.
The community of interest issue is the simplest one to deal with. In recognition of both the structure of trade union organization in the construction industry and the provisions of section 6(3) of the Act, the Board generally describes construction industry bargaining units in terms of a particular craft or classification of employee. This means that rather than be required to apply to be certified for a bargaining unit comprised of all of the respondent's employees, the applicant can apply to be certified for a unit comprised only of truck drivers. However, where, as here, a union seeks to be certified for a unit limited to a particular craft or classification, the Board requires that all employees pertaining to that craft or classification be included in the bargaining unit. Were it otherwise, the result would be an even greater proliferation of construction industry bargaining units than is the case at present, a result that would serve no useful industrial relations purpose. Given these considerations, we are of the view that if at the time of the filing of the application Mr. French and Mr. Cardinal were in fact employed as truck drivers, then they should be included on the list of employees, regardless of the type of trucks that they were driving.
It is clear that both Mr. French and Mr. Cardinal did some truck driving, and that they also performed certain labouring-type work. When employees in the construction industry are engaged in the work of different crafts or classifications but paid a single rate, it has been the long-standing practice of the Board to characterize the craft in which they are employed for a majority of their time as the one governing their status on an application for certification. See O.J. Gaffney Limited [1964] OLRB Rep. Aug. 233. In the relatively small number of cases where an employee receives different rates of pay depending upon the type of work he is performing, the Board may conclude that the employee is in fact being transferred between two different positions, rather than being employed in a single position which contains elements of what are generally regarded as the work of two different crafts or classifications. At the hearing into this matter, the respondent submitted that given the facts of this case it would be appropriate for the Board to adopt a somewhat different approach when deciding how to characterize the two employees in question, an approach suggested (but not adopted) by the Board in Pre-Con Murray Limited [1969] OLRB Rep. 1003. In that case the Board indicated that in certain cases, such as where it is not possible to determine how much time an employee spends in doing two different types of work, or where his time is evenly divided, it might be appropriate to classify the employee on the basis of the skill he was primarily hired for. With respect to this approach, the Board commented:
"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."
(emphasis added)
One of the issues in this case is whether at the time the application was filed Mr. French and Mr. Cardinal were being paid different rates when driving a truck and when performing labouring work. The applicant contends that they were being paid a single rate. The respondent, however, contends that the report of the Labour Relations Officer indicates that they were being paid different rates. The evidence given by Mr. French before the Labour Relations Officer is not very helpful with respect to this issue. Mr. French indicated that the respondent paid its labourers $11.69 per hour, and its truck drivers $10.50 per hour. Mr. French was asked if during the course of the application date his rate of pay was changed, to which he replied that he could not say for sure without checking his pay stubs. Mr. French was then asked if he remembered the last time his rate of pay had been changed in a day, to which he again replied that he would have to check his pay stubs. Mr. Cardinal's evidence, however, was much more specific. Mr. Cardinal indicated that he was paid two rates, namely, a regular labourer's rate as well as a rate of $11.89 when operating an air track. We believe we can take notice of the fact that operating an air track is generally regarded as construction labourers work, for which a labourer will generally draw a slightly higher rate of pay than when performing general labouring work. Mr. Cardinal indicated quite clearly that he only received either the general labourer's rate or the rate for operating the air track, and that he did not receive a third rate when driving a truck. Indeed, when specifically asked what he was paid when driving a truck, Mr. Cardinal replied "they still pay me as a labourer". Given Mr. Cardinal's evidence, we are satisfied that he was paid only as a labourer. We regard it as unlikely that Mr. French and Mr. Cardinal would have been paid on a differing basis, especially since the evidence indicates that Mr. Cardinal drove a truck more frequently than did Mr. French. Accordingly, we are led to conclude that both Mr. Cardinal and Mr. French were paid only the rate for labourers, and did not receive a separate rate when driving a truck.
Both Mr. Cardinal and Mr. French indicated that they are members of the Labourers Union (presumably a reference to the Labourers' International Union of North America). From the officer's report we gather that they are employed under the terms of a collective agreement between the respondent and the Labourers Union, and further, that the respondent has been deducting union dues from their wages and forwarding them to the Labourers Union.
Both Mr. French and Mr. Cardinal are responsible for driving a service truck loaded with materials to a job site. If required during the day, they will also use the truck to pick up any additional required material. The remainder of their time is spent at a job site performing labouring work. The application date in this matter was Monday, February 20, 1984. On Thursday, February 16, 1984 Mr. French had been recalled to work after a three month lay-off. In his testimony, Mr. French indicated that on February 16th and 17th he spent about ninety per cent of his time working as a labourer. As for February 20th, Mr. French indicated that while he had driven a truck to and from a job site at Carleton University, for most of the day he had worked as a labourer. Based on this testimony, we are satisfied that on and prior to the application date Mr. French spent most of his time doing labouring work. In these circumstances, we are satisfied that at the time of the filing of the application, Mr. French was essentially employed as a labourer, not a truck driver, and that his name should not have been included on the list of bargaining unit employees.
The situation with respect to Mr. Cardinal is not as easy to discern. Mr. Cardinal testified that he had been hired as a service truck operator. However, at the time or the filing of the instant application he was regarded as an employee in a bargaining unit represented by the Labourers Union, and the respondent deducted union dues from his pay for forwarding to the Labourers Union. On a number of occasions during his examination Mr. Cardinal indicated that he did not know what proportion of his time he had spent in driving a truck. However, at one point he did state that during the two week period leading up to the application date he had spent four or five hours per day driving. Further, when pressed to give an estimation of the percentage of his time he spent performing different tasks, Mr. Cardinal stated that he spent about fifty per cent of his time driving and fifty per cent doing labouring work. Complicating the matter is a notation in the Board Officer's report wherein based upon a check of the respondent's records the officer stated:
"That Roger Cardinal's time ticket indicates that he worked 8 1/2 hours as a labourer on the application date and that in the ten days immediately prior to the application date spent the majority of his time as an air track operator."
Unfortunately, we do not actually have before us any of Mr. Cardinal's time tickets. Further, we have no evidence as to whether the purpose of the time tickets was to show the type of work Mr. Cardinal was actually performing, or only the basis upon which he is to be paid. In this regard, we know that Mr. Cardinal was not paid as a truck driver when driving a truck, but at all times received the labourer's rate.
The respondent contends that the best estimate as to how Mr. Cardinal divided his time was that he spent fifty per cent of the time driving a truck and fifty per cent of the time performing labouring work. In these circumstances, submits the respondent, the Board should apply the test suggested in the Pre-Con Murray Limited case, and categorize Mr. Cardinal on the basis of the skill for which he was primarily hired. The only evidence as to why Mr. Cardinal was hired is his own statement that he was hired as a service truck operator. For our part, it is difficult to say with any certainty how much of the time Mr. Cardinal actually spent driving a truck. However, given the evidence in the officer's report, we agree with the respondent that probably the best estimate is that he spent about fifty per cent of his time driving a truck and fifty per cent in performing labouring work. Nevertheless we do not accept the respondent's contention that the approach suggested in the Pre-Con Murray Limited case should be applied in determining how Mr. Cardinal might properly be classified. In this regard, we would be note that in the Pre-Con Murray Limited case the Board indicated that it might be appropriate to categorize an employee on the basis of the skill for which he was hired provided the employee was being paid the rate for that trade. Here, however, it is clear that Mr. Cardinal was paid only as a labourer. In these circumstances, and given that the Board's generally applied criteria do not give any clear indication as to how Mr. Cardinal should be classified, we believe the deciding factor should be how Mr. Cardinal was regarded by the respondent at the time the application was filed. In this regard, it is clear that the respondent viewed Mr. Cardinal as coming within a bargaining unit represented by the Labourers Union, paid him as a labourer, and deducted dues from his pay for forwarding to the Labourers Union. These considerations lead us to the conclusion that the respondent regarded Mr. Cardinal essentially as a labourer, and that for the purposes of this application he should be regarded as a labourer and not as a truck driver. (We would note at this point that given our earlier finding with respect to Mr. French, even if we had agreed with the respondent's position insofar as it related to Mr. Cardinal, it would not have changed the right of the applicant to be certified.)
As already indicated, the respondent filed a list of bargaining unit employees with 15 names. Having regard to our findings with respect to Mr. French and Mr. Cardinal, we are satisfied that there were in fact 13 employees in the unit on the date of the making of the application. The applicant filed evidence of membership with respect to eight of these employees. The evidence of membership takes the form of combination applications for membership and receipts. The applications for membership are signed by the employees. The receipts indicate a payment to the union of one dollar within the six month period prior to the terminal date fixed in this matter. The membership evidence is supported by a duly completed Form 80, Declaration Concerning Membership Documents, Construction Industry.
The Board is satisfied on the basis of all the evidence before it that more than fifty-five per cent of the employees of the respondent in the bargaining unit, at the time the application was made, were members of the applicant on March 1, 1984, 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.
A certificate will issue to the applicant.