International Union Operating Engineers, Local 793 v. MIHU Holdings Limited and Mancheneel Investments Limited c.o.b. as H & D Construction, 1987 CanLII 3143

International Union Operating Engineers, Local 793 v. MIHU Holdings Limited and Mancheneel Investments Limited c.o.b. as H & D Construction

[1987] OLRB Rep. December 1495

0560-85-R International Union Operating Engineers, Local 793, Applicant v. MIHU Holdings Limited and Mancheneel Investments Limited c.o.b. as H & D Construction, Respondent v. Labourers' International Union of North America, Local 183, Intervener

BEFORE: Owen V. Gray, Vice-Chain, and Board Members M. Eayrs and N. Wilson.

DECISION OF THE BOARD; December 10, 1987

1The title of this proceeding is amended to describe the respondent as "MIHU Holdings Limited and Mancheneel Investments Limited c.o.b. as H & D Construction."

2This is an application for certification in the construction industry within the meaning of section 119 of the Labour Relations Act ("the Act") and is made pursuant to section 144(1) of the Act. The applicant is a trade union within the meaning of clause l(l)(p) of the Act and is an affiliated bargaining agent of a designated employee bargaining agency which, pursuant to the designation issued by the Minister under subsection 139(1) of the Act on July 13, 1978, is the International Union of Operating Engineers and Local 793 of the International Union of Operating Engineers.

3The applicant seeks certification for a bargaining unit consisting of all employees of the respondent engaged in the operation of cranes, shovels, bulldozers and similar equipment and those primarily engaged in the repairing and maintaining of same in the Province of Ontario in the industrial, commercial and institutional sector of the construction industry and in Board Area 8 in all other sectors, save and except non-working foremen and those above the rank of non-working foreman. Persons who are employed "in the operation of cranes, shovels, bulldozers and similar equipment" are hereafter described as "operating engineers".

4The sole issue remaining in dispute is whether any of the respondent's employees were employed in the subject bargaining unit on the application date. The nature of a question of this sort the Board's prior approach to it were described in E & E Seegmiller Limited, [1987] 9LRB Rep. Jan. 41, at paragraph 12:

12. 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, [1984] OLRB Rep. 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 O. J. Jaifrey Limited, [1964] OLRB Monthly Rep. Aug. 233; Clairson Construction Company Limited, [1968] OLRB Monthly Rep. April 126; George & Asmussen Limited, [1971] 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; DeMarco Plumbing & Heating Company Limited, [1985] OLRB Rep. May 659; Des-Build Development Limited, [1983] 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 Monthly 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.

The Board went on at paragraph 23 of that decision to make these observations:

23. 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.

(See also Gilvesey Enterprises Inc., [1987] OLRB Rep. Feb. 220.)

5This application was filed on June 5, 1985. Prior to the hearing set for July 19, 1985, the parties agreed that the hearing should be adjourned and that one of the Board's labour relations officers should be authorized to inquire into and report to the Board on the nature of the work being performed by the persons whom the applicant seeks to represent and who are classified by the respondent as construction labourers. At an initial meeting with the officer, the parties agreed to adjourn proceedings sine die. Several months later, the applicant asked that the examinations proceed. Further adjournments were agreed to during the examination process. The examinations were completed in June 1986. Preparation of transcripts of the examinations was completed and the officer's report thereon was served on the parties by November 1986. A hearing to consider the parties' submissions as to the conclusions which we should draw from the report could not be scheduled to suit the convenience of counsel before June 1987.

6The report includes the testimony of six witnesses: Giacomo Guarascio, Renalldo Pannppzzo, Gerald Houston, Peter Dimitruk, Manuel Pendigao and Jim McDyre. Messrs. Guarascio and Pannozzo are members of the applicant whom it says were employed as operating engineers on the application date because they were operating worker and material hoists at two of three buildings then being constructed by the respondent at 250, 260 and 270 Queens Quay West in the City of Toronto. Mr. Houston is another of the respondent's employees who operated such hoists at the subject construction site from time to time. Messrs. McDyre and Perdigao were the respondent's project manager and labour foreman, respectively, on this project. Mr. Dimitruk, a business agent of the applicant, dealt with Mr. McDyre concerning the employment of Messrs. Guarascio and Pannozzo and visited the site twice on the day this application was filed.

7The first worker and material hoist on this project went into operation on April 19, 1985. Mr. McDyre thought he had to have an operating engineer to operate a hoist of this sort. He hired Mr. Guarascio on April 22, 1985 because Mr. Guarascio was an operating engineer. He intended Mr. Guarascio to be the person primarily responsible for operating that first hoist. He also expected that when the hoist was not in use, Mr. Guarascio would do labouring work within earshot of the intercom system used by others to call for the hoist. Prior to the erecting of the second such hoist, Mr. McDyne again sought an operating engineer to be the person primarily responsible for operating that second hoist. He hired Mr. Pannozzo for that reason on May 22. 1985, even though the second hoist was not yet in place. Mr. Pannozzo was to (and did) do labouring work until the hoist was ready; thereafter, as with Mr. Guarascio, Mr. McDyne intended that Mr. Pannozzo would operate that hoist and do nearby labouring work when it was not in use. The parties agreed during the officer's examination that this hoist "was erected and ready for operation on June 5, 1985"; before us they argued about whether this meant it had been in operation all day on June 5th or only part of the day.

8The respondent paid Messrs. Guarascio and Pannozzo at the rates set out in the prevailing collective agreement covering employment of operating engineers on projects of this sort, and remitted benefit payments to the applicant on their behalf. By contrast, the respondent paid Mr. Houston at the rate prescribed by the intervener's then current agreement with the Metropolitan Toronto Apartment Builders Association.

9One of the respondent's arguments was that the work of operating the hoists used on this project was not the work of the applicant's craft and, so, the performance of it would not have brought any of the respondent's employees within the scope of the bargaining unit applied for. This argument is based on the assertion (which was the subject neither of rigorous proof non of challenge) that in 1982 provincial law ceased to require that operators of hoists of this sort hold a certificate of qualification as a hoisting engineer.

10Counsel for the respondent cited Joseph Brant Memorial Hospital, [1981] OLRB Rep. Nov. 1598, and Boise Cascade Canada Ltd., [1983] OLRB Rep. Feb. 194, for the proposition that "while the Labour Relations Act does accord a special status to craft unions, it does not guarantee their continued preservation when the craft basis for them has been eroded on disappears" (Boise Cascade Canada Ltd., supra, at paragraph 20). Counsel for the applicant noted that in Robertson-Irwin Limited, [1969] OLRB Rep. Dec. 1097, and Dune Mosaic & Marble Ltd., [1970] OLRB Rep. Apr. 153, the Board held that "the words 'similar equipment' [in the standard description of the applicant's craft unit] includes [sic] hoists." Neither decision qualified "hoists" by reference to legal requirements as to the qualifications of the operator. Counsel for the applicant also referred to the decision in Ellis-Don Limited, [1983] OLRB Rep. Jan. 65, because of this statement in the Board's description of the background to the grievance dealt with in that arbitration proceeding:

Up until the end of March of 1982, a manually operated construction hoist was used on the project to lift men and material to the various floors. Consistent with the collective agreement, a member of Local 793 was employed to operate the hoist. ... This grievance arises, however, because a member of Local 793 was not further employed to operate the elevator that took over the job of lifting workmen and construction materials when, during the normal progression of the project, the construction hoist was dismantled and taken out of service.

The Board concluded in that case that the relevant collective agreement did require that an operating engineer "operate" what would ultimately be the building's passenger elevator, when it was being used to move construction workers and materials.

11Counsel for the respondent argued that none of the cases cited by counsel for the applicant addressed the precise issue he had raised. That is so. The two cases he cited did not address that issue either. Both involved jurisdictional disputes outside the construction industry, between a craft union and an industrial union. This is a certification application, not a jurisdictional dispute. The Board has been careful not to allow jurisdictional disputes to insinuate themselves into certification applications: George and Asmussen Limited, [1970] OLRB Rep. Oct. 783; Semple-Gooder Roofing Ltd., [1983] OLRB Rep. Nov. 1908. It may be, as counsel for the respondent argues, that the rationale for that approach is weaker when the craft bargaining unit is defined by express reference to the work performed by the employees in it. Even so, the question in this application is still whether an individual can, in the particular circumstances, be said to fall within the bargaining unit applied for when performing the work in issue; it is not whether the assignment of that work to members of the applicant would be reversed by the resolution of a jurisdictional complaint arising out of competing claims for that work. There is not sufficient material before us to support a conclusion that "equipment" is "similar" in the definition of the applicant's traditional construction industry craft unit only if and so long as provincial law requires that a person operating the equipment hold a hoisting engineer's "ticket". Even if this were a jurisdictional dispute, it strikes us that there would be quite a lot more to consider in this instance than whether or not the law has ceased to impose such a requirement. This application will be dealt with on the basis that the hoists in question here are "similar equipment."

12That brings us to the question whether any of the employees in question was employed as a operating engineer for a majority of his time at the relevant time. The witnesses' testimony addressed what Messrs. Guarascio, Pannozzo and Houston had been doing before as well as on the application date; indeed, it addressed what they did afterwards as well. Not surprisingly, that testimony was neither precise nor consistent when elicited between 8 and 12 months after the event. Counsel for the respondent and intervener argued that we should consider the representative period in this case, despite what the Board said in the Seegmiller and Gilvesey decisions, because the examinations were conducted before those decisions issued. Counsel for the respondent suggested that those questioning the witnesses would have paid more attention to the date of the application and the circumstances of hiring had the examination taken place after those decisions issued.

13We do not think that the evidence about what the subject employees did before the application date affects the conclusions we would draw if we confined ourselves to the criteria recommended in the Seegmiller and Gilvesey decisions. The mix of tasks performed by Mr. Guarascio do does not appear to have varied significantly during the period addressed in the examinations. There is no evidence that Mr. Houston performed any significant amount of operating engineer's work on the application date, and he spent considerably less than a majority of his time on such work in the period between the hiring of Mr. Guarascio and the application date. The mix of tasks performed by Mr. Pannozzo on the application date was different from what it had been prior to that date, but that is because the hoist he was hired to operate was not up and running before that date. Having regard to the purpose for which Mr. Pannozzo was hired, we do not see how any period prior to the date on which that hoist was operational could be described as "representative" for the purpose of determining the nature of his employment on the application date.

14Evidence and argument identified three major types of activity in which Messrs. Guarascio and Pannozzo may have engaged to varying degrees on the application date:

a) activities associated with the movement of the cage: opening and closing the door of the cage and standing in it pushing the buttons which control its movement up and down;

b) participation in the actual loading and unloading of the cage; and,

c) general labouring work not directly associated with the hoist in any way.

15Time spent in activities of the first sort cleanly counts as time in the bargaining unit; time spent in activities of the third sort clearly would not. Activities of the first sort cannot take place while materials are being loaded into or unloaded from the cage. There were also times when a hoist was not in use; that is, it was neither being moved non loaded non unloaded. Actual performance of activities of the first sort could not alone have occupied a majority of either man's time at work. It seems from the witnesses' testimony that on this project loading and unloading of a hoist generally took up about the same amount of time as activities associated with movement of the heist, and that for each hoist there would also have been time during which neither sort of activity was taking place. A worker who did only work of the first sort would be idle for the better part of the average day on this project.

16Mr. Guarascio did not admit to participating in the loading and unloading of the cage or to doing labouring work not associated with his hoist. The respondent and intervener concede that if that were true on the application date - that is, if he did nothing (except possibly perform minor service on the hoist) during loading and unloading and while the hoist was not in use - he would fall within the bargaining unit. They invite us to find that he must have participated in activities of the other sorts. Mr. Pannozzo admitted that, during the course of his employment, he participated in the loading and unloading of the cage and performed labouring work not associated with his hoist when it was not in use.

17In the case of Mr. Pannozzo, at least, it is necessary to decide whether a hoist operator who participates actively in the loading and unloading of the cage falls outside the operators' bargaining unit when he does so. He falls within the unit when opening and closing the cage door and when pushing the buttons to make the cage go up and down. He cannot do those things during the loading and unloading of the cage. If he stands idle during that time, then he remains in the unit. Why should the character of his employment during that time change if he does some useful work connected in some way to the use of the hoist? Whatever might be the outcome of a jurisdictional dispute oven the work of loading and unloading the hoist, we do not consider that the hoist operator ceases to be a hoist operator if he participates in that work. On that view, the evidence leads us to the conclusion that Messrs. Guarascio and Pannozzo both spent a majority of their work time in the bargaining unit on the application date.

18The respondent argued that Mr. Pannozzo could not be counted as an employee because he had originally been hired as a labourer in violation of the intervener's collective agreement with the Metropolitan Toronto Apartment Builders' Association ("the MTABA"), by which the respondent would be retrospectively bound if we were to grant the request it has made in this application for a declaration under subsection 1(4) of the Act that the respondent and Iron Developments Inc. constitute a single employer for the purposes of the Act. The parties agreed that we need not entertain the application under subsection 1(4) unless we accept this argument on the assumption that the respondent is bound by the MTABA agreement.

19The respondent's argument is based on the decision in April Waterproofing Limited, [1980] OLRB Rep. Nov. 1577, and others that follow it. Those decisions hold that persons hired in violation of the provisions of a collective agreement will not be regarded as employees in the bargaining unit covered by that collective agreement for the purpose of an application to displace or terminate the bargaining rights of the trade union party to that agreement. They do not hold that a person so hired cannot thereafter be considered an employee for any purpose in any other bargaining unit. The parties to this application agree that the unit applied for and the unit described in the MTABA agreement are mutually exclusive. Nothing in the decisions cited supports a conclusion that a person hired by the respondent in violation of the intervener's agreement with the MTABA could not later be considered an employee of the respondent in a unit other than the one covered by that agreement.

20We conclude that Messrs. Guarascio and Pannozzo were the employees of the respondent who were employed in the subject unit on the application date. Both were members of the applicant on June 17, 1985, the terminal date fixed for this application and the date which we determine, under clause 103(2)(j) of the Act, to be the time for ascertaining membership under subsection 7(1) of the Act.

21Section 144(2) of the Act provides for the issuance of more than one certificate if the applicant has the requisite membership support:

..the Board shall certify the trade unions 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.

[emphasis added]

Therefore, pursuant to section 144(2) of the Act, a certificate will 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 2 above in respect of all employees of the respondent the industrial, commercial and institutional sector of the construction industry in the Province of Ontario engaged in the operation of cranes, shovels, bulldozers and similar equipment and those primarily engaged in the repairing and maintaining of same, save and except non-working foremen and persons above the rank of non-working foreman.

22Further, pursuant to section 144(2) of the Act, a certificate will issue to the applicant trade union in respect of all employees of the respondent in the Municipality of Metropolitan Toronto, the Regional Municipalities of Peel and York, the Towns of Oakville and Halton Hills and that portion of the Town of Milton within the geographic Townships of Esquesing and Trafalgar and the Towns of Ajax and Pickering in the Regional Municipality of Durham, excluding the industrial, commercial and institutional sector, engaged in the operation of cranes, shovels, bulldozers and similar equipment and those primarily engaged in the repairing and maintaining of same, save and except non-working foremen and persons above the rank of non-working foreman.