[1986] OLRB Rep. September 1238

1385-85-R; 0268-86-U Labourers' International Union of North America, Local 491, Applicant, v. Klimack Construction Limited, Respondent, v. Group of Employees, Objectors; Labourers' International Union of North America, Local 491, Complainant, v. Klimack Construction Limited, Respondent

BEFORE: Ken Petrysh en, Vice-Chairman, and Board Members R. J. Gallivan and D. A. Patterson.

APPEARANCES: David Strang, Bill Suppa and Ray Doucette for the applicant/complainant; Lorenzo Girones and Alex Klimack Sr. for the respondent; Michael J. Glover for the group of employees.

DECISION OF THE BOARD; September 30, 1986

1. This is an application for certification made under the construction industry provisions of the Labour Relations Act. We also have before us a complaint filed pursuant to section 89 of the Act which was filed in support of an application under section 8 of the Act.

2. The Board finds that the applicant is a trade union within the meaning of section l(l)(p) of the Act.

3. The Board further finds that this application for certification does not relate to the industrial, commercial and institutional sector of the construction industry referred to in section 117(e) of the Act.

4. A hearing was held for the above matters on July 22nd and 23rd, 1986 in Timmins. The purpose of the hearing was to deal with a number of issues including the following: a bargaining unit description issue which was raised by the respondent; to hear argument on a Labour Relations Officer's report enquiring into the list and composition of the bargaining unit; and to deal with the respondent's allegations of misconduct on the part of the union which challenged the reliability of the union's membership evidence.

5. The applicant proposed a bargaining unit description encompassing all construction labourers in the employ of the respondent in Board area #19, save and except non-working foremen, persons above the rank of non-working foreman and persons employed in the industrial, commercial and institutional sector. In its reply to the application dated September 11, 1985 the respondent agreed to the bargaining unit description proposed by the applicant. By a telegram dated September 16, 1985 the respondent amended its reply in such a way as to put in issue the appropriate geographic scope of the unit.

6. In written submissions filed with the Board prior to the hearing and in his oral presentation at the hearing, counsel for the respondent argued that the Board should hold hearings for the purpose of inviting representations from interested parties in relation to "the revision of the geographical boundaries of area #19." Board area #19 is presently defined to encompass the area within a radius of fifty miles of the Timmins Federal Building and counsel argued "that it is not only capricious but irrational in terms of present day collective bargaining trends, and union representation and the geographical economic boundaries of present day District of Cochrane." Counsel referred to the Board's comments in John McLeod & Sons Ltd., [1970] OLRB Rep. July 462 wherein the Board stated at page 464 "that areas defined in terms of a radius are far from satisfactory and require a redefinition and perhaps enlargement." Counsel also directed our attention to a 1980 paper prepared by the Research Branch of the Ministry of Labour titled "Proposals for Re-organzing Board Construction Areas" which he submits concludes that there is a need to enlarge and reduce the Board areas. The representative of the objecting employees essentially adopted the employer's position while counsel for the applicant strongly argued that the Board should limit the geographic scope of the unit to Board area #19.

7. Having carefully considered the submissions of the parties, the Board is not inclined to adopt the position advocated by counsel for the respondent. Following the enactment in 1962 of the construction industry provisions of the Act prohibiting project certification, the Board established a number of standard geographic areas by reference to which it describes bargaining units in the construction industry. The Board has recognized that changing circumstances may require changes to the boundaries of the Board areas but, over the years, there have been only a few occasions where the Board found it appropriate to change the boundaries. Before changing the boundaries, the Board's general practice is to consult interested trade unions and employer organizations.

8. It appears that we have before us the first request to hold hearings to inquire into the appropriateness of the boundaries of Board area #19. We are not unmindful of the fact that the request is being made in the context of a certification proceeding and that if the Board altered the boundaries of Board area #19, it would have a considerable impact on this application. Counsel for the respondent was quite frank in admitting that his client's request was based in part on a selfish motivation. Without some indication that there is a general concern with respect to the boundaries of area #19 within the construction labour relations community, we would not be prepared to engage in the type of inquiry requested by the respondent. The existing well-established boundaries of Board area #19 appear to have served the construction community well. Accordingly, the Board will not engage in an inquiry at this time in order to review the geographic boundaries of Board area #19.

9. Having regard to the partial agreement of the parties and the Board's ruling on the geographic scope of the bargaining unit, the Board further finds that all construction labourers in the employ of the respondent within a radius of 81 kilometers (approximately 50 miles) of the Timmins Federal Building, excluding 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.

10. In a decision dated September 23, 1985, the Board (differently constituted) appointed a Labour Relations Officer to inquire into and report to the Board on the list and composition of the bargaining unit. Based on the evidence contained in the Officer's report, the Board entertained submissions from the parties on the following issues:

(1) Whether Barry Godsoe, Alex Klimack and Philip Klimack exercise managerial functions within the meaning of section 1(3)(b) of the Act;

(2) Whether Robert Humphrey and Denis Legault are construction labourers or operators as of the application date; and

(3) Whether Sean McCormick is a student or ceased to be an employee prior to the date of the application.

After considering the evidence contained in the Officer's report and the parties' submissions, the Board advised the parties of its decision orally at the hearing on July 23, 1986. The Board indicated it found that Godsoe, Alex and Philip Klimack exercised managerial functions within the meaning of section 1(3)(b) of the Act. The Board advised the parties that it found Humphrey to be a construction labourer and therefore included in the bargaining unit while it found Legault to be an operator and therefore excluded from the bargaining unit for the purposes of this application. Board Member R. J. Gallivan dissented from the majority's opinion with respect to the status of Legault. Finally, the Board indicated to the parties that it found McCormick to be in the bargaining unit on the date of the application. The following sets out the reasons for the Board's findings.

11. The parties agreed that the evidence of Alex Klimack shall be representative of all the managerial challenges. Klimack's evidence reveals that each of the managerial challenges is in charge of a crew and makes out a time sheet for his crew. Klimack is involved in bidding for jobs and, if successful in obtaining the work, setting up schedules of work for each job. Klimack plays an effective role in hiring employees, laying off employees and in determining whether an employee will receive a raise in pay. Even though the managerial challenges perform physical labour, each exercises direct control over the employees they supervise. We were satisfied these facts demonstrate that Godsoe, Alex and Phil Klimack exercise managerial function pursuant to section 1(3)(b) of the Act and hereby confirm our oral ruling to that effect.

12. The evidence relating to Legault does not reveal that there was a trade in which he spent the majority of his time. It appears that he spent half of his time working as a construction labourer and the other half working as an operator. On the date of the application, Legault performed slightly more operators' work than labourers' work. We are satisfied though, that Legault was hired primarily to do the work of an operating engineer and that he was the person primarily responsible for performing such work when it was needed. See, C. W.A. Contracting (London) Limited, File No. 0781 -84-R (unreported), March 21, 1985. Humphrey spent approximately thirty per cent of his time as an operator and the remainder as a construction labourer. On the date of the application, Humphrey essentially performed labourers' work. For these reasons we were satisfied that Legault was excluded from and Humphrey was included in the bargaining unit and hereby confirm our oral ruling to this effect.

13. The last day worked by McCormick was September 4, 1985, the date of the union's application for certification. McCormick was a student who was employed as a construction labourer. His evidence before the Labour Relations Officer was that he worked for five hours in the evening for the respondent cleaning trailers. Counsel for the applicant requested the Board to hear oral evidence from McCormick since it alleged the evidence of McCormick was not credible. After entertaining submissions on this point, the Board declined the applicant's request. We were satisfied that McCormick should be included in the bargaining unit and hereby confirm our ruling to that effect.

14. Once the parties were advised of the Board's decision with respect to the composition of the bargaining unit, it became clear that, at best, the applicant was in a vote position. After considering its position, the applicant requested leave of the Board to withdraw its section 89 complaint and its section 8 application. The Board consents that the complaint in Board File No. 0268-86-U and the union's application pursuant to section 8 be and they are hereby withdrawn. After considering its position, the respondent requested leave of the Board to withdraw its allegations of misconduct against the applicant since, in its view, the misconduct, if proved, could only lead the Board to order a representation vote. The Board consents that the allegations of misconduct raised by the respondent be and they are hereby withdrawn.

15. The Board is satisfied on the basis of all the evidence before it that not less than forty-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 September 13, 1985, 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.

16. A representation vote will be taken of the employees of the respondent in the bargaining unit. All employees of the respondent in the bargaining unit on 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.

17. Voters will be asked to indicate whether or not they wish to be represented by the applicant in their employment relations with the respondent.

18. The matter is referred to the Registrar.