Ontario Labour Relations Board

[1986] OLRB Rep. December 1731

2265-86-R; 2266-86-R; 2267-86-R United Brotherhood of Carpenters and Joiners of America, Local 27, Applicant, v. Metro Railing Ltd., Respondent

BEFORE: Harry Freedman, Vice-Chairman, and Board Members F. W. Murray and H. Kobryn.

APPEARANCES: J. David Watson, Frank D'Abbondanza and Frank Rimes for the applicant; Mark D. Contini and Dominic Donato for the respondent.

DECISION OF THE BOARD; December 18, 1986

[1]. These are three applications for certification made by the applicant, one of which may be described as an "industrial" application (Board File No. 2265-86-R), and the other two may be described as construction applications (Board File Nos. 2266-86-R and 2267-86-R).

[2]. When the hearing convened in this matter, counsel for the applicant advised the Board that it sought certification for a single all employee bargaining unit to include both the employees engaged in construction work away from the respondent's premises as well as the employees engaged in non-construction work at the respondent's factory.

[3]. After receiving the submissions of counsel, the Board recessed and then returned and delivered the following oral ruling:

These are three applications for certification in which the applicant seeks to represent all of the employees of the respondent. The respondent is engaged in the manufacture, sale and installation of wooden railings, primarily for new home construction. Almost 99 per cent of the respondent's product is installed in new homes by its own employees. The installation of those rail­ings is, in our opinion, clearly work that comes within the definition of con­struction industry set out in section 1(l)(f) of the Labour Relations Act and the employees who perform that work are employees in the construction industry within the meaning of section 117(b) of the Act. While the respon­dent may be in the manufacturing business, it is also an employer in the con­struction industry when it is engaged in the installation of railings in new home construction, pursuant to section 117(c) of the Act.

Counsel for the applicant submits that one bargaining unit, comprised of both construction and non-construction employees is appropriate for collec­tive bargaining. Alternatively, counsel submits that if we find a construction unit appropriate, then the shop employees are commonly associated with the on-site construction employees who install the railings. The respondent con­tends that there should be a separate shop bargaining unit and construction bargaining unit.

The respondent employs shop employees who are engaged in the manufac­turing of the railings and also employs installers who perform the construc­tion work. Some installers will, on occasion, perform shop work and some shop employees may occasionally be engaged in on-site work. There is com­mon supervision among the employees, although the on-site employees gen­erally work without direct supervision.

All employees, both shop and installation employees report for work at the respondent's premises to punch in and punch out. The installation employees drive to the job sites from the respondent's premises in the morning and return in the evening.

The Board's approach to bargaining unit determinations in this kind of situa­tion was succinctly set out in Dominion Paving Ltd., [1981] OLRB Rep. Oct. 1370 at 1371:

"In instances where an employer engages in both construction and non-construction activities, the Board's general practice is to group its employees into separate con­struction and non-construction bargaining units. However, where an employer engages in both construction and non-construction operations simultaneously using the same work force, the Board will on an application under the general provisions of the Act describe a bargaining unit which encompasses both operations."

[emphasis added]

In this case there is not a common work force. Ten of the respondent's employees do exclusively shop work and six employees do almost exclusively the on-site work. The metal bender, one of the six construction employees who was primarily involved in installation, also spends a minority of his total work time in the shop. The remaining four employees, one of whom is being trained for on-site work, spend the majority of their time in the shop, with a trainee metal bender spending more and more time in on-site work.

In our opinion, the employees engaged in the installation work are a discrete group of employees of the respondent who perform work in the construction industry. Those shop employees of the respondent who commonly perform installation work on site also come within the definition of employee in sec­tion 117(b) of the Act.

The employees who perform shop work only do not come within the defini­tion of employee in section 117(b) since they are not commonly associated in work with the on-site employees.

Therefore, we find that the shop employees constitute an appropriate bar­gaining unit and the construction employees may constitute one or two appropriate bargaining units. The Board hereby leaves the preliminary determination of the precise description of the appropriate bargaining unit to the parties who can meet with a Labour Relations Officer to review the description as well as all other outstanding matters.

[Balance of decision omitted: Editor]