Editor’s Note: Erratum released on February 4, 2013 by email, by the tribunal. Original judgment has been corrected.
[1987] OLRB Rep. January 41
2355-85-R Labourers' International Union of North America, Local 493, Applicant, v E & E Seegmiller Limited, Respondent, V. International Union of Operating Engineers,Local 793, Intervener
BEFORE: G. T. Surdykowski, Vice-Chairman, and Board Members R. M. Sloan and J. Sarra.
APPEARANCES: David Strang and Bill Suppa for the applicant; Daniel Fryzuk for the respondent; no one appearing for the intervener.
DECISION OF THE BOARD; January 28, 1987
- This is an application for certification within the meaning of sections 119 of the Labour Relations Act and is made pursuant to the provisions of section 144(1) of the Act.
[Paragraphs 2 to 9 omitted: Editor]
The applicant sought to have Thomas Brooks, Werner Goerg and Aubrey Mason excluded from the list of employees on the basis that they exercised managerial functions within the meaning of section 1(3)(b) of the Act. The respondent asserted that these persons were working foremen and were therefore properly included in the bargaining unit. The applicant also sought to have James Murray deleted from the list on the basis that he was not doing bargaining unit work. The respondent took the contrary position.
At the hearing of the matter on December 11, 1986, the applicant withdrew its challenge with respect to Thomas Brooks. Having regard to that and to the evidence before the Board, we find that Thomas Brooks is properly included on the list of employees in the bargaining unit.
In applications for certification in the construction industry, a person must be at work for the respondent employer on the date that the application is made in order to be included in the bargaining unit for the purposes of "the count" (see for example Smiths Construction Company Arnprior Limited, [19841 OLRB Rep. Mar. 521 among others). In addition to actually being at work, the employee must have spent a majority of his time on the date of application doing bargaining unit work (see for example 0. J. Jaifrey Limited, [1964] OLRB Rep. Aug. 233; Clairson Construction Company Limited, [1968] OLRB Rep. April 126; George and Asmussen Limited, [19711 OLRB Rep. Oct 683 among others). Where an employee was doing the work of one trade or craft on the date of application but prior thereto had been engaged in doing the work of several trades or crafts at the same wage rates, the Board has long been willing to examine a period of time prior to the date of application that is representative for purposes of ascertaining what work the employee spends the majority of his/her time doing and so determine whether or not that employee should be included in the bargaining unit. The length of this "representative period" has heretofore varied on a case by case basis (see for example Heath Construction Inc., [1977] OLRB Rep. Oct. 691; J. M. Chartrand Realty Ltd., [1978] OLRB Rep. May 423; Di Marco Plumbing & Heating Company Limited, [1985] OLRB Rep. May 659; Des-Build Development Limited, [19831 OLRB Rep. Nov. 1793 among others). It has also been suggested that the Board may look to the primary reason for which the employee was hired in order to determine his/her classification (Pre-Con Murray, [1965] OLRB Rep. Jan. 1003) but this test has largely been used in the circumstances where the evidence of what the employee actually did does not answer the question of whether the employee should be included in the bargaining unit (see for example Des-Build Developments Limited, supra and Dufresne Piling Co. (1967) Ltd., [1984] OLRB Rep. July 924). In summary, the Board has looked at the following criteria in making its determinations:
(a) whether the person concerned was employed by the respondent and at work on the date of application; and
(b) if so, the work that that person spent the majority of his/her time doing on the date of application; or
(c) where, previous to the date of application, the person has been engaged in the work of more than one trade or craft and the work s/he performed on the application date does not accurately reflect the work s/he normally spends the majority of his/her time doing, the work done by that employee during the appropriate representative period prior to the date of application; or
(d) where there is inconclusive evidence with respect to the work in which an employee has been engaged, any other relevant factor, including the primary reason for hire.
Further section 1(3)(b) of the Act provides that, subject to section 90, no person shall be deemed to be an employee, who, in the opinion of the Board, exercises managerial functions. In applications for certification in the construction industry, as in all certification applications, the Board excludes all persons employed at and above the lowest level of managerial personnel employed on the date of application. However, unless they have an overall responsibility for a project or can and do affect the employment status of employees, working foremen are usually included in a construction industry bargaining unit.
In addition to the viva voce evidence of the 3 employees whose status remained in dispute between the parties, the Board has had the benefit of the testimony of 6 other witnesses and the relevant records of the respondent with respect to the project in question in this proceeding. The latter are admittedly incomplete (some records having been lost or destroyed in the normal course of business) and consist of various daily cost sheets, foremen's hour reports and daily time sheets, drillers notes, and blasters record sheets. The records are kept by the employer as part of its internal costing procedure and their objective is largely to allocate the expenses for the job being done. Consequently, although they do reveal the number of hours for which an employee was paid, they do not necessarily reflect precisely what work, if any, an employee was doing at any given time. The evidence of Jim Lacharity, the project superintendent, reveals that the reports from the field are sometimes "adjusted" by him to ensure that employees do not get paid for a greater number of hours than they actually worked. This, and the purpose of the records, may account for the acknowledgment by Gunther Hell, the respondent's "paymaster", of a discrepancy between the blaster's record sheet and the costing sheet for December 12, 1985 with respect to the people doing blasting work on that day. Consequently, the respondent's documentary evidence, while of some assistance, is not determinative of the status of any of the persons remaining in dispute.
On balance, the evidence reveals that James Murray should be excluded from the bargaining unit. There is a serious conflict in the evidence with respect to what Mr. Murray was doing on the date of application. His own evidence on the point is inconsistent. Messrs. Archambault and MacDonald, both drillers who gave direct evidence of what they say they definitely saw, testified that Mr. Murray was not operating a drill. Other testimony and the respondent's records suggest he was drilling. In any case however, the evidence, though somewhat vague, suggests that, prior to the date of application, Mr. Murray spent the majority of his time at work on a rock truck and somewhat less time operating a drill or assisting with blasting.
The evidence with respect to Aubrey Mason reveals that he was more than a working foreman and he too should be excluded from the bargaining unit. Mr. Mason was referred to by other employees, and by himself, as a "foreman". Among other things, he drove the various drill operators to their job site on the project in a half-ton company owned pick-up truck, ensured that their machines were started, and that they were doing the right thing in the right place. He did not work on a crew and generally supervised and was involved with all the respondent's employees on the job site, including Werner Georg. He was generally responsible for keeping track of the work being done on the project. He did, in the usual course of his duties, operate any machinery or use any tools. On a regular, almost daily basis, he provided verbal assessments of the performance of other employees to management and he had some limited input into hiring. Mr. Mason had the authority to spend small amounts of money for fuel and supplies on behalf of the company and had keys to all of the bunkhouses and to the padlocks on the machinery. In our view, Mr. Mason exercised managerial functions within the meaning of section 1(3)(b) of the Act.
Though the situation with respect to Werner Goerg is less clear than with Mr. Mason, the result is the same. Mr. Goerg did work actively on the blasting crew and was responsible for the blasting operations at the material times. He sat in on interviews with respect to employees and had some influence with respect to the hiring of potential employees to the extent that his advice with respect to hiring was never not taken. However, this seems to relate mainly to potential employees in the respondent's blasting operations and he, as blasting foreman, was likely there because of his blasting expertise. More significant was his ability to have a negative effect on employees. For example, he routinely checked and corrected the work of other employees, made verbal reports with respect to their performance, and had the power to send employees back to the office or change their job (duties). Occasionally, he was asked whether or not employees should be kept on or terminated. He also had the power to grant brief periods of time off (to permit employees to visit their dentist or doctor for example), and he could and did schedule overtime on occasion. He was also responsible for reporting the number of hours that the employees worked for him and it is on the basis of his reports that these employees were paid. Further, if he agreed with complaints to him that there had been errors made in the payments to employees, he had the power to direct that the error be corrected. On balance, we find that Mr. Goerg exercised managerial functions within the meaning of section 1(3)(b) of the Act and should be excluded from the bargaining unit.
In summary, we find that the list of employees, for purposes of the count, in the bargaining unit as found by the Board consists of the following persons:
Paul Archambault
Thomas Brooks
Bert Duchesne
Mike MacDonald
The applicant has filed membership evidence, described in paragraph 5 above, on behalf of three of the persons referred to in paragraph 18.
The Board is therefore satisfied on the basis of all the evidence before it, that more than fifty-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 January 27, 1986, 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 Act.
Section 144(2) of the Act provides for the issuance of more than one certificate if the applicant has the requisite membership support as follows:
..,the Board shall certify the trade union as the bargaining agent of the employees in the bargaining unit and in so doing shall issue a certificate confined to the industrial, commercial and institutional sector and issue another certificate in relation to all other sectors in the appropriate geographic area or areas.
Therefore, pursuant to section 144(2) of the Act, a certificate shall issue to the applicant affiliated bargaining agent on its own behalf and on behalf of all other affiliated bargaining agents of the employee bargaining agency named in paragraph 3 above in respect of all construction labourers in the employ of the respondent in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario, save and except non-working foremen and persons above the rank of non-working foreman.
Further, pursuant to 144(2) of the Act, a certificate will issue to the applicant trade union in respect of all construction labourers in the employ of the respondent in all other sectors of the construction industry in Board Area 17 (that is within a radius of 57 km of the City of Sudbury Federal Building), save and except non-working foremen and persons above the rank of non-working foreman.
In making our determination with respect to Mr. Murray, we considered the work performed by the persons whose status was in dispute in these proceedings both on the date of application and during a period prior to that date. However, it appears to us that recourse to a "representative period" has made the certification process in the construction industry less consistent, certain, and expeditious than it might be. The use of any such period is inconsistent with the requirement that a person be both employed by the respondent and at work on the date of application. The very nature of a "representative period" is such that its length will vary according to the circumstances of the particular application and creates uncertainty. Looking to a "representative period" overlooks the fact that once a trade union has been certified as bargaining agent for a bargaining unit of employees of an employer in the construction industry, any collective agreement to which that employer becomes bound, whether a provincial agreement or not, will apply to persons doing the work covered by that agreement. Consequently, whether or not an employee is covered by a particular collective agreement and represented by a particular bargaining agent depends on the work that s/he is doing at the time and is in no way dependent upon the work that s/he performed during any previous period. Further, the use of a "representative period" had tended to result in protracted and expensive proceedings before the Board. Because it is important that the Board's policies and tests be consistent and create as certain, equitable, and expeditious a means as possible for ascertaining which persons are in a bargaining unit, and having regard to the nature of applications for certification in the construction industry, we take the view that the Board should eliminate its use of a "representative period" and restrict itself to the following criteria:
(a) whether the person was employed by the respondent and at work on the date of application; and
(b) if so, the work that that person spent the majority of his/her time doing on the date of application or
(c) where there is no conclusive evidence with respect to the work that the employee performed on the date of application, any other relevant factor, including the primary reason for hire.