United Brotherhood of Carpenters and Joiners of America, Local Union 93 v. Gisar Contracting Limited

[1985] OLRB Rep. April 528

2097-83-R United Brotherhood of Carpenters and Joiners of America, Local Union 93, Applicant, v. Gisar Contracting Limited, Respondent, v. Labourers' International Union of North America, Local 527, Intervener.

BEFORE: M. G. Mitchnick, Vice-Chairman, and Board Members B. L. Armstrong and J. Wilson.

APPEARANCES: Denis J. Power and Frank Manoni for the applicant; Mark Contini for the respondent; L. Steinberg and Andre Roy for the intervener.

DECISION OF THE BOARD; April 1, 1985

1. This is an application for certification in the construction industry involving, inter alia, a request that the Board certify the applicant pursuant to the provisions of section 8 of the Labour Relations Act.

2. The application raises a number of potential issues before the Board, and all parties agreed that the Board before proceeding further ought to determine the question of the appropriate bargaining unit, and of the particular employees falling within that bargaining unit as of the date of the application. The Board accordingly appointed one of its officers to inquire into and report to it on the list and composition of the unit.

3. The officer's report has now been submitted and reviewed by the Board, together with the parties' oral representations thereon. The issues thereby raised for the Board are neatly set out in a letter from counsel for the applicant Carpenters' dated September 28, 1984, and it would be useful to refer at this point to the history of this matter as set out in that letter.

4. On December 5th, 1983, the Carpenters' Union, Local 93, submitted an application for certification on behalf of all carpenters and carpenters' apprentices in the employ of the Respondent in all sectors, save and except non-working foremen and persons above the rank of non-working foreman.

5. On December 13th, 1983, the employer filed its reply, indicating that it had forty employees on the job in question and describing the appropriate bargaining unit as follows:

all construction employees of the Respondent in the Province of Ontario, save and except non­working foremen and persons above the rank of non-working foreman.

6. The employer also took the position that there were no employees designated as carpenters or carpenters' apprentices engaged on the project.

7. On December 15th, 1983, the Labourers' Union, Local 527, intervened, alleging that the application was untimely on the basis that it held the bargaining rights. It also took the position that the bargaining unit requested by the Carpenters' Union was inappropriate. On the same day, the Labourers' Union, Local 527, filed an Application for Certification by Intervener, Construction Industry. It described the appropriate bargaining unit as follows:

all construction labourers, carpenters and carpenters' apprentices and cement finishers and cement finishers' apprentices in the employ of the Respondent in all sectors of the construction industry, other than the industrial, commercial and institutional sector thereof, in the Regional Municipality of Ottawa-Carleton and the United Counties of Prescott and Russell, save and except non-working foremen and persons above the rank of non-working foremen.

8. The Labourers' Union alleged that there were forty-three persons in its proposed unit. This application for certification was filed without prejudice to the fact that the Labourers Union alleged that it was a party to a collective agreement with the Respondent, dated August 29th, 1983, covering the employees affected by its application.

9. That collective agreement is the pick-up of a formwork agreement between the Ontario Form Association and the Formwork Council of Ontario. It contains wage classifications for, inter alia, form-(builder) setters and form helpers, and all of the twenty-five persons now in dispute in this application were employed pursuant to that agreement as form setters, some through the intervener's hiring hall, and some through another job site of the respondent (also under the formwork agreement of the Labourers'). The Carpenters certification application was not filed during the open period of that collective agreement, so that unless the Carpenters' can show that the persons it now seeks to represent were somehow improperly being treated as falling under the formwork agreement, or, that the agreement itself is invalid, as the Carpenters' allege, the Carpenters' application will be untimely in any event.

10. At the initial meeting with the officer, the parties took the following positions regarding the list and the bargaining unit proposed by the Carpenters' Union:

A.The Employer -

i. There are no employees in the bargaining unit proposed by the Carpenters’ ie. no carpenters or carpenters' apprentices;

ii. In the alternative, if there were any employees in the unit, the unit should include all twenty-five persons listed by the Employer as form setters, since they are, in essence, carpenters or carpenters' apprentices or, at least, perform indistinguishable functions. Accordingly, the Carpenters' Union lacks the necessary representation percentage:

iii. Form helpers are properly excluded from the proposed bargaining unit.

B. The Labourers Union -

i. The Labourers' Union adopted Points (i) to (iii) as above set out;

ii. In any event, its collective agreement is a bar to the Carpenters' application.

C. The Carpenters' Union -

i. The proposed bargaining unit is appropriate and includes only eight persons on the lists, all of whom are designated by the Employer as form setters. The Carpenters' allege that, in the Ottawa area, there is no such recognized trade designation as form setters — or form helpers, for that matter. All other persons described as form setters are outside the proposed bargaining unit, as they were labourers who did not perform work within the carpenters traditional bargaining unit — ie, the other seventeen of the twenty-five form setters are distinct from the eight above-mentioned persons.

ii. The persons described as form helpers are labourers clearly outside the unit proposed by the Carpenters' and, in any event, there is no such trade jurisdiction in the Ottawa area.

11. The basic position of the Applicant with regard to the appropriate bargaining unit and the list is that there is a community of interest between the eight carpenters in that they perform essentially the same duties and responsibilities which are separate and distinct from the other seventeen form setters and that it would be contrary to established precedent and practice to lump the eight in with the other seventeen. The Applicant Union also submits that, in fact, to do so would result in the destruction of a long-established trade representation practice in this locale — a practice that has been not only recognized by the Labour Board but by the Labourers' Union.

12. Further, the Carpenters' Union takes the position that there is actually a conflict of interest between the group of eight and the group of seventeen in that the employer had attempted to require the eight to pass on their trade skills to the seventeen. The Applicant also alleges that, save for work that has been traditionally recognized as labourers' work, the Council's formwork agreement has only on one isolated occasion been applied in this area. The Applicant submits that the seventeen persons in dispute are neither carpenters nor carpenters' apprentices notwithstanding that the evidence is to the effect that some of them do some form construction work.

13. Dealing with these various positions, the Board notes that the question of community of interest in the construction industry was recently commented upon by the Board in Dufresne Piling Co., [19841 OLRB Rep. July 924, cited by the applicant. The Board wrote:

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 it 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 alt 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.

14. In that case, the Board could assess the question whether either of the individuals in dispute were employed as truck drivers by applying, at least initially, a relatively simple yardstick: did they spend a majority of their time driving a truck? No such simple criterion is afforded the Board in the present case. The question before the Board is What is a carpenter?, and it arises in the context of a formwork job, a notorious battleground for jurisdictional skirmishes between Carpenters' and Labourers' unions over the years. See, e.g. Verdi Forming Ltd., [19831 OLRB Rep. Oct. 1728; Urban Consolidated Construction Corp., [19771 OLRB Rep. Feb. 41; Dunkey Construction Ltd., [1971] OLRB Rep. Dec. 813. And to complicate matters, the respondent and intervener seek to introduce an additional trade classification, that of form setter, as an answer to the applicant's claim that the individuals it seeks to represent are carpenters.

15. The Board is of the view, as a starting point, that the evidence before it fails to establish the existence, at least in the Ottawa area, of a distinct and identifiable trade classification called form setter. Indeed, the Labourers' themselves in their application for certification by intervention do not call upon the Board to recognize a bargaining unit in those terms. The question before the Board, then, is whether the individuals in dispute are essentially carpenters, or labourers. And clearly some of them, as the applicant submits, are performing work that has traditionally been identifiable with carpenters. The first position of the respondent and intervener, therefore (that the respondent only employs form helpers and form setters, but no carpenters) is rejected. The only question, then, is how many of the respondent's employees can be said to be carpenters, and accordingly included within the bargaining unit of carpenters and carpenters' apprentices which the Carpenters' have applied for.

16. To recapitulate the positions adopted on that point, the applicant was of the view that only eight of the twenty-five persons employed as form setters on the date of the application were really carpenters. The respondent and intervener, on the other hand, maintained that all of the twenty-five form setters employed on the date of the application were doing essentially the same work, so that if the eight chosen by the applicant were carpenters, the other seventeen must be carpenters as well. It is apparent from these arguments, and from the transcript, that the use of the term form setter is of little assistance in deciding the issue before the Board. The applicant points to assertions in the transcript by employees other than its eight that they are form setters, not carpenters. But the term carpenter for at least some of these witnesses appeared to denote formal registration as such in the Province of Quebec, where registration is apparently required. In Ontario, however, carpentry is not one of the trades for which certification has been legislated as mandatory. The witness's answers may also reflect the fact that such witness was officially hired in the classification of form setter, under the terms of the Labourers' formwork collective agreement. That fact, however, has not prevented the applicant from claiming that eight of the persons equally so hired are carpenters by virtue of the work they are performing. Similarly, having heard the evidence, the applicant has agreed that form setter Dwight Mullins is a carpenter as well. Nor do we think it likely that the Carpenters' Union would place undue weight on the fact the employer had seen fit to designate certain of its employees as form setters (nor place too narrow a construction on the term carpenter), were it in the course of pressing a grievance or jurisdictional dispute before the Board over a failure to employ its members pursuant to the terms of an existing Carpenters' collective agreement.

17. In fact, there is a jurisdictional dispute outstanding before the Board, filed by the Carpenters', concerning, inter alia, this very job. See Board File No. 2175-83-JD. In it the Carpenters' Union describes the work that it claims as its own as:

All work normally carried out by carpenters and joiners and, without restricting the generality of the foregoing, all shoring and underpinning; all false work and the construction, erection and assembling of form work for concrete, including levelling and layout and the erection of shoring and steel jacks; the stripping of prefabricated panel forms designed for specific re-use and the releasing of the wedges or clamps and the removal of the plywood sheathing from the concrete surface of the wall on built in place wall forms; the setting of templates and anchor bolts; and the construction of all wood scaffolding and the erection of all types of scaffolding for work of this trade.

While that may be a pro farina description for jurisdictional dispute purposes, the Carpenters' Union has made no concessions with respect to it before the Board, and is not now in a position to deny it for the purposes of this related application for certification. The question, then, is to what degree each of the individuals in dispute were employed at the material time in the performance of the carpenter's work described above.

18. Having reviewed the transcript of the evidence, the Board must conclude that all of the individuals in dispute were being employed at the material time on a substantial and continuous basis in the performance of the carpenter's work so described, as opposed to the kind of labourers's function referred to by one of the witnesses, for example, as a transport. The only exception to this which emerges from the transcript is with respect to Mr. Nadon, who appears to have been primarily engaged later in the job in no more than the placing of forms. But the application was filed in early December, and it appears that Mr. Nadon during the month of December was employed solely in the patching of forms to fit around the concrete columns (which would be carpentry work). As for the rest of the seventeen form setters, their work was generally confined to actually marking, cutting, and working with the wood, and performing one aspect or the other of the work claimed by the applicant to be traditional carpenter's work. To varying degrees they own their own carpentry tools, and, contrary to the case of Letham, Jarvela and Robertson, [19841 OLRB Rep. Aug. 1113 (re: skill saw), no restrictions are placed either in theory or in practice on the tools that they are permitted to use. The work in residential forming is highly repetitive, and in most cases the more experienced carpenters conceded in their evidence that the other form setters working with them were able to carry on their own once shown how the employer wanted the job laid out. An exception to this is the statement by Mr. Mullins (conceded after the examination to be a carpenter) that he would not leave Mr. Lobo and Mr. Leblanc alone with a blueprint to do a job on their own; but if by this he meant continuing a job without supervision, his evidence is specifically contradicted by Mr. Lobo, who, in answer to who was working with him on cutting and setting the forms for the columns, said:

Never anybody, I did not need any co-worker to work with me, only one labourer to get the materials close to me and that was all.

Apart from that, Mr. Mullins conceded that each of the members of his crew did the same type of work as he did, as did Mr. Kaerbye and Mr. Patenande, two of the lead-hands identified by the applicant as carpenters.

19. It was Mr. Kaerbye and Mr. Patenande, in fact, upon whom the applicant was able to obtain agreement with respect to having their evidence accepted as representative of all eight individuals the applicant seeks to represent, and it would appear to be this lead hand function, attaching at least to Mr. Kaerbye and Mr. Patenande, upon which the applicant primarily relies in distinguishing the work of its eight from the other seventeen. The evidence of Mr. Kaerbye, in particular, however, is instructive:

If I understand it correctly, would it be fair to characterize your position in respect to the other members of your crew as a lead hand'?

Yes.

what in your view is a lead hand? what does a lead hand do'?

They just tell the people what to do, make sure they're working and make sure everything is right.

Now once you've instructed them as to what to do and how to do it, isn't it the case that you work along side with them?

Oh yes.

You don't just stand there and direct them'?

Oh no.

So you're doing the same work that they're doing once you've instructed them'?

Yes.

And you use the same tools?

Yes.

And really your job is to pass on instructions from Mr. Villenuve and to make sure that it's done properly'?

Yes.

And if alter you've given instructions to your crew somebody just came to the site and didn't know you, they wouldn't be able to tell you apart from the other members of your crew in terms 01 the work you were doing'?

No.

Because you do use the same tools'?

Yes.

As with any job of some skill, there will be gradations of both experience and capability within a job class; but it hardly follows that only the most senior members of the job class, upon whom management depends to carry and explain its requirements to the crew, are the only ones truly belonging to that job class. Nor do we find merit in the submission that the eight (now nine) carpenters the applicant seeks to represent are being forced by the employer to pass on their formwork skills to the other form-setters. The evidence establishes that some of those other form-setters have been performing the very work they are now doing for a good number of years. On the basis of all of the evidence before the Board, we must conclude that all twenty-five of the respondent's form setters were performing traditional carpenter's work, as described by the Carpenters' Union itself, to such a degree as to properly fall within the description of the applicant's bargaining unit. The number of employees in that bargaining unit on the date of the Carpenters' application, therefore, is twenty-five.

20. Having made that determination, the Board will await notification from the applicant as to how it now wishes to proceed. The Board would note, however, that just as the use of the term form setter does not necessarily preclude someone from being a carpenter for the purposes of an application for certification by the Carpenters' Union, neither would being a carpenter appear to necessarily preclude that same person from being a form setter under the terms of the Labourers' collective agreement (outside, at least, the province-wide bargaining provisions of the Labour Relations Act: cf. Manacon Construction Limited, [1983] OLRB Rep. March 407; Diversified Sheet Metal Limited, [1981] OLRB Rep. Nov. 1575). The Carpenters' in the present application may, in other words, still be faced with a timeliness problem.