[1985] OLRB Rep. May 659
1052-84-R Labourers' International Union of North America, Local 183, Applicant, v. Di Marco Plumbing and Heating Company Limited, Respondent
BEFORE: R. O. MacDowell, Vice-Chairman, and Board Members I. M. Stamp and C. A. Ballentine.
APPEARANCES: L. Steinberg and R. Latito for the applicant; Jane Ford and Ted Di Marco for the respondent.
DECISION OF THE BOARD; May 31, 1985
I
This is an application for certification pursuant to the construction industry provisions of the Labour Relations Act.
The applicant is seeking to represent a bargaining unit of labourers 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 #8, 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 four persons employed by it on the date that this application was made. Subsequently, it was agreed that the person described as cement finisher was not properly included on the list. The applicant took the position that it had filed evidence of membership with respect to two of three persons remaining on the list and whom it believed to be employed by the respondent as labourers on the date the application was made. The employer asserted that two persons should be deleted from the list as filed, arguing that Gaetano Annibale should more appropriately be grouped in an operating engineers' unit and that Paolo Reda should be excluded from the bargaining unit because he is a supervisor who exercises managerial functions within the meaning of section 1 (3)(b) of the Act.
The Board appointed a Labour Relations Officer to inquire into the list and composition of the proposed bargaining unit. A transcript of the evidence was produced and included in the Officer's report. Following the release of that report, the parties appeared before the Board and made argument as to their respective positions. The applicant argued that all three persons on the list were labourers and formed an appropriate bargaining unit. The respondent maintained that Annibale was a heavy equipment operator and, therefore, belonged in an operating engineers' unit; and that Reda was properly excluded from the unit as being a non-working foreman. In the construction industry, non-working foremen are typically excluded from the bargaining unit, whereas, working foremen are treated in roughly the same way as lead hands in an industrial setting, who are typically included in the unit. The working foreman has some skills, duties and responsibilities which are different from those of his fellow employees, but, like them he works at the tools, and seldom exercises the degree of decisive and independent authority over them to warrant exclusion pursuant to section l(3)(b).
II
Turning first to the status of Annibale, the evidence establishes that on the date of the present application, he was engaged totally in the performance of labourers' work. On the other hand, the evidence also establishes that Annibale alone was responsible for the operation of the backhoe, the dump truck, and the load machine. He was also given the use of a panel truck in which fuel, oil, and tools were kept in order to maintain the heavy equipment. There is some discrepancy in the evidence as to the frequency in which Annibale was called on to operate the heavy equipment.
The applicant argued that the Board should look only at the work performed July 19th, that being the date of the present application, and referred the Board to the following cases: R. S. Hardy Construction Limited, [1968] OLRB Rep. May 227; Rainey Brady, [1969] OLRB Rep. March 1350; and George Asmussen Limited, [1971] OLRB Rep. Oct. 683. The respondent took the position that Annibale was engaged in more than one trade, and that his performance of labourers' duties on the application date is not determinative of his status. The Board was referred to Desbuild, [1983] OLRB Rep. Nov. 1793.
The evidence establishes that Annibale was hired as a backhoe operator, and that he is the only employee who operates heavy equipment when such work is needed, however, as noted, no heavy equipment work was performed on the date of the application. In these circumstances, the Board considers it appropriate to look to a representative period rather than solely the date of the making of the application. Although no argument was made as to the period of time which should be considered representative, in choosing a representative period, the Board has looked to the nature and duration of the job. It appears that the employer was typically engaged in jobs measured primarily in days rather than weeks or months. At the examination, Annibale was questioned as to work performed in a prior two-week period, during which the employer worked on five different job sites, all of which were houses. The union did not adduce any evidence as to any other period. In all the circumstances, we think that this two-week period is sufficiently representative of Annibale's job duties. Unfortunately, the evidence concerning those duties was neither very clear nor complete — probably because of the usual problems of recollection, and the fact that factors which might be significant to this Board, would not be very significant to individual employees who would move from job to job, and function to function as the needs required. The result, however, is a somewhat murky picture in which both parties can point to factors in support of their positions, but neither can claim that the result is obvious.
Annibale gave evidence that during this two-week period he had worked on a number of jobs and would typically operate the backhoe all day. Counsel listed a number of work sites on which he had performed such work, and Annibale confirmed that running the backhoe was his main activity. Felice Morra gave evidence that the backhoe would be used for the day or the four or five hours he would take to dig the house; however, even this characterization suggests that Annibale spent the majority of his time in this activity. He was paid a premium rate precisely because he could operate a backhoe. While it is clear that when there was no backhoe work to be done, Annibale performed labourers' work, and, in fact, performed only labourers' work on the project in question, we must find on the evidence that, within the period in question, he spent a majority of his time doing work typically performed (or at least claimed) by employees in an operating engineers' bargaining unit.
Turning to employee Reda, the question is whether in construction industry parlance he is a non-working foreman who, in the opinion of the Board, exercises managerial functions within the meaning of section 1(3)(b) of the Act. If he is a non-working foreman, he is properly excluded from the bargaining unit.
The evidence establishes that Reda has the conventional duties of a construction foreman: he reads plans, requests materials, organizes work, and generally supervises the labourers. He gave evidence that he voluntarily works — he helps the crew if he chooses to do so. When pressed for an estimate of how much physical work he performed, he stated that he worked only about one-half hour of an eight-hour day with the crew. What, if anything, he might have been doing for the rest of this time, is not very clear, and it seems unlikely that he would have been idle, or that, in a functional sense, two or three employees would require a manager within the meaning of section 1 (3)(b) of the Labour Relations Act. Reda had no clear memory of how much he dug, or how much pipe he laid. Morra, on the other hand, stated that Reda worked most of the day with the men, and gave the figure seventy-five per cent. He said that Reda helped unload the truck, dug trenches, laid pipe, and connected pipe joints regularly throughout the duration of the project.
In the Board's experience, a small crew such as this, regularly employing only three to four persons, would not likely carry a non-working foreman engaged to perform managerial functions. This is confirmed by the totality of the evidence. Mr. Reda's filling out time cards, and scheduling — are not such as to justify his exclusion from the unit. Nor do we think that he has the power of effective recommendation. He cannot authorize overtime, save in an emergency; he cannot make the decision to stop work in inclement weather; he cannot authorize significant time off; and he does not discipline employees. There was some evidence that he was involved in the termination of an employee, but he appears to have intervened without the express authority to do so, and precipitated an it's him or me situation. When the evidence is considered as a whole, it is the Board's opinion that Mr. Reda is an employee under the Act who should properly be included in the applicant's proposed bargaining unit.
[Balance of decision omitted: Editor]