International Brotherhood of Electrical Workers, Local 353 v. Galil Electric Company Limited, 1986 CanLII 1414

Ontario Labour Relations Board

[1986] OLRB Rep. July 959

2962-85-R International Brotherhood of Electrical Workers, Local 353, Applicant, v. Galil Electric Company Limited, Respondent

BEFORE: R. A. Furness, Vice-Chairman, and Board Members H. Kobryn and I. M. Stamp.

APPEARANCES: Bernard Fishbein and Michael Lloyd for the applicant; Anne E. Burke and H. Heskin for the respondent.

DECISION OF THE BOARD; July 8, 1986

1The applicant has applied for certification with respect to a bargaining unit of electricians and electricians' apprentices. The applicant has also filed a complaint under section 89 of the Labour Relations Act with respect to the respondent (see Board File No. 3002-85-U). In that complaint the applicant has alleged that certain employees have been dealt with by the respondent contrary to the Act.

2In the instant application, the applicant challenged the list of employees filed by the respondent. The respondent filed lists of employees which contained five names on Schedule "A" and four names on Schedule "C". The four persons whose names appear on Schedule "C" are also named as grievors in the complaint under section 89 (see Board File No. 3002-85-U). It was the position of the applicant that if the employees on Schedule "C" were properly on Schedule "A" then it might well place the applicant in a certifiable position and so render academic the issues under section 8 of the Act and the managerial challenges.

3The applicant stated that it had a two-level argument. Firstly, the four employees on Schedule "C" were laid off for union activity and should therefore be listed on Schedule "A". The applicant agreed that this could only be determined after hearing evidence on the dispute over the reason for their alleged layoff. Secondly, independent of any anti-union motive and assuming the employees were laid off for bona fide reasons, how ought the Board deal with employees laid off in the morning as they were about to proceed and leave their homes to work at the construction site?

4The applicant and the respondent stipulated the following facts:

1. This is an application for certification in the construction industry.
2. The respondent was engaged on a multiplicity of job sites.
3. All of the four persons listed on Schedule "C" were working on various sites among these sites on March 3, 1986 (all within the Board's geographic area #8).
4. The practice of the respondent is for employees to report to the job site and to report to the same job site as they were working the day prior unless notified by the respondent.
5. March 4, 1986, is the date of the application for certification.
6. On March 4, 1986, between 6:30 and 7:30 a.m., just prior to leaving for work, the four employees on Schedule "C" were called by Mr. Heskin and told they were laid off.
7. All of these employees received letters dated March 4, 1986, advising that they were laid off. There had been typed in at the bottom of these letters that the effective date of layoff was March 3, 1986. Each letter was sent by registered mail and each bears the date of registration of March 5, 1986.
8. None of these employees actually did any work on March 4, 1986.
9. None were actually paid on March 4, 1986.

The applicant and the respondent agreed that for the purposes of this argument the issue of Oreste Carere reporting for work need not be dealt with.

5The applicant is seeking to have the Board include for the purpose of the count the persons whose names appear on Schedule "A" as well as the persons whose names appear on Schedule "C". There is no dispute that the names which appear on Schedule "A" are to be included for the purpose of the count. The dispute occurs with respect to the inclusion of the persons whose names appear on Schedule "C". It is the position of the respondent that the persons whose names appear on Schedule "C" ought not to be included for the purpose of the count. The Board will consider the arguments of the applicant and the respondent at the second level argument (that is to say, assuming for the purpose of argument, without so finding, that the respondent has not acted out of any anti-union animus in its treatment of the grievors in Board File No. 3002-85-U) based upon stipulations referred to in paragraph 4.

6When an application for certification is filed, the Board is required under section 7(1) of the Act to ascertain the number of employees in the bargaining unit at the time the application was made. To this end, the Board requires the respondent to file schedules of employees. The names of employees who actually worked on the date that an application is made, ought to appear on Schedule "A" or Schedule "B" ("A" for full-time employees and "B" for part-time employees). These employees are included for the purposes of the count because they were actually employed on that date. Employees who are not actually at work on that date are listed on Schedule "C" or Schedule "D" ("C" for employees who are absent on layoff and "D" for employees who are absent for other reasons). Whether or not employees whose names appear on Schedule "C" or Schedule "D" are to be included for the purpose of the count is normally determined by the application of the rule known as the 30/30 day rule. Under this rule an employee who works within the 30-day period immediately preceding the date of application and is expected to return or has returned to work within the 30-day period immediately following that date is included as an employee for the purpose of the count. An employee whose most recent or anticipated next appearance at work does not fall within the 30/30-day rule is not sufficiently linked by the active performance of work with the date of application to be included for the purpose of the count.

7The matter of arriving at the list of employees for the purpose of the count referred to in paragraph 6 has been generally applied, apart from applications for certification filed under the construction industry provisions of the Act, and the Board was referred to decisions which were regarded by the applicant as supporting its argument. In Amplifone Canada Ltd., [1967] OLRB Rep. Dec. 840, the Board stated at page 844:

20. Ii is our opinion that the persons who, not having been forewarned by the respondent, presented themselves at their place of work in the reasonable expectation of carrying on their normal employment must be found to be employees in the bargaining unit on the date they so reported and should have been shown on schedule "A" and not on schedule "C", notwithstanding the fact that they were laid off indefinitely without performing any work on that same date.

In Holiday Juice Ltd., [19841 OLRB Rep. Feb. 277, and in Lajambe Forest Products Limited, [1985] OLRB Rep. July 1088, the Board followed the decision in Amplifone Canada Ltd.

8The stipulated facts in the instant application are quite different from the facts in the decisions referred to in paragraph 7. The applicant and the respondent were unable to refer the Board to any decisions which were on point with the issues in the instant application.

9In the instant application the employees were laid off before they actually reported to work at a job site and none of them actually performed work on March 4, 1986. On these facts alone, the cases which are referred to in paragraph 7 are distinguishable. However, the essential difference between the instant application and the cases referred to in paragraph 7 is the fact that the instant application is an application which has been properly filed under the construction industry provisions of the Act. In such applications, the Board determines that the number of employees in the bargaining unit at the time the application was made under section 7(1) of the Act is the number of employees who were actually at work on the date of the application. This method of determination recognizes that employment in the construction industry is usually of limited duration and that the number of persons in a particular trade who are required at any point in time may vary substantially for sound reasons in the scheduling of work. This method also permits the determination to be made based upon the objective consideration of the number of employees actually at work on the date of the application rather than the more difficult assessment of the subjective factors which are based upon intention of layoff situations. This method of determination is easily ascertained and is understood in the construction industry as being of wide application. Thus in Keystone Contractors Limited, [1966] OLRB Rep. Feb. 821, the Board dismissed an application for certification where there were no employees at work on the date of application due to a heavy snowstorm even though there were employees at work the day before and the day after the date of application. The method of determining the number of employees in the bargaining unit at the time the application was made under section 7(1) of the Act recognizes the short-term and often indeterminate length of the employment relationship in the construction industry.

10For the foregoing reasons, the Board is not prepared to find, on the stipulated facts, that the employees on Schedule "C" are to be included for the purpose of the count.

11The Registrar has listed this matter for continuation of hearing.