Labourers' International Union of North America, Local 506 v. Ming Sun Holdings Inc.

[1987] OLRB Rep. December 1585

0345-87-R Labourers' International Union of North America, Local 506, Applicant v. Ming Sun Holdings Inc., Respondent

BEFORE: Harry Freedman, Vice-Chair, and Board Members G. O. Shamanski and C. A. Ballentine.

APPEARANCES: David Strang and Pat Scaduto for the applicant; Brenda Kops and Geoffrey Lee for the respondent.

DECISION OF THE BOARD; December 2, 1987

1. The name of the respondent is amended to read: "Ming Sun Holdings Inc."

2. The Board convened a hearing in this matter to receive the representations of the parties with respect to the Labour Relations Officer's Report of September 3, 1987. By decision dated May 26, 1987, the Board authorized a Labour Relations Officer to inquire into and report back to the Board on the list and composition of the bargaining unit.

3. After receiving the representations of the panties, the Board recessed and then returned and made the following oral ruling:

In this application for certification, the applicant challenged five of the eight employees who the respondent asserts were employed in the bargaining unit on the application date.

Two of those five employees were employed at a recently completed building on Finch Avenue East where they were cleaning up debris left from the actual construction of the building and were cleaning an area in actual prepa­ration for the installation of partitions. We indicated earlier today that those two employees were employed as construction labourers on the application date.

The other three employees being challenged by the applicant were at work at

a building on Yonge Street. The respondent purchased that building in April

1987 and the employees in question were at work there on May 4, 1987, the

date of the making of this application.

That building had been fully occupied, but when the respondent's employees were working there, the top two floors were vacant and the main floor was partially occupied.

The employees in question were cleaning up broken drywall, pieces of con­duit, papers, broken acoustic ceiling tiles, broken furniture and other gar­bage. They placed that material. in garbage bags and left the bags out for the municipal garbage pick-up.

In our view, while cleaning up debris left over from construction is the work of a construction labourer (see PHI International Inc., [1980] OLRB Rep. Dec. 1789) we do not believe that the cleaning up of scrap material that, at one time, may have been left oven from construction work is the work of a construction labourer. In this case, there was no actual construction, as that term is defined by the Act, taking place at the time the respondent purchased the building or when the employees in dispute were working there on the application date. We believe that the employees in question were simply cle­aning up garbage, a cleanup not related, in any way, to construction work.

Counsel for the respondent also argued that the cleanup was done in prepa­ration for renovation work and therefore was the work of a construction labourer. In PHI Inc., supra, the Board held that cleanup work was the work of a construction labourer if that work was closely connected with a construc­tion project.

We agree with counsel for the respondent who submitted that renovation work is construction work. See Loblaws Groceteria Co. Ltd., [1969] OLRB Rep. June 392. However, the cleanup in this case at the Yonge St. building was not done with reference to any specific renovation work. Indeed, reno­vations were only planned for the second and third floor of the Yonge Street building and the evidence is clean that the employees spent a large amount of time doing cleanup of the parking garage where no renovation work was planned.

Counsel for the respondent relied on PHI Inc., supra. In that case the Board wrote at page 1795:

"Pikula told the Board that he had arranged for a subcontractor to install architec­tural block in the lobby at 220-230 Woolner Road, but after making these arrange­ments was subsequently told by the contractor that the dry wall would have to be removed before he could start. Pikula had no persons on hand to undertake this task,

and went to a restaurant to see if he could find some casual labour.. The individuals [casual labour] were to remove the stripping and dry wall at Woolner Road, and clean the wall underneath. While there, they also performed some general cleaning, and repaired a garage door. The building itself is 12 to 15 years old."

[emphasis added]

The Board held at paragraph 22 that the work described above was construc­tion work. However, the cleanup described in PHI Inc. was necessary for the masonry work to be done, which was clearly renovation on construction work and was part of that overall renovation project.

Similarly, the floor scraping and other cleaning duties at the Finch Avenue East building performed by the two employees of the respondent who the Board earlier found to be construction labourers were also necessary and directly referable to the installation of partitions.

In our view, cleanup work in direct preparation for renovation is construc­tion work if that cleanup is closely connected or directly related to the actual renovation work to be carried out. The evidence before us with respect to the Yonge Street building is fan short of that. There was insufficient evidence linking the cleanup work done by the three labourers in question with the planned renovation work, other than the fact that renovations were planned after the cleanup was done. Therefore, we are satisfied that those three per­sons employed by the respondent at its Yonge Street building were not employed as construction labourers on the application date.

Having made that determination, we need not comment on the applicant's alternative challenge based on Mr. K. F. Lee's position as a shareholder and director of the respondent. The applicant claimed that he ought to be excluded from the bargaining unit by reason of section 1(3)(b) of the Act. See in this regard Robin Hood Multifoods, [1985] OLRB Rep. July 1159.

Therefore, based on the material filed and on our decision in this matter, we find that there were five employees in the bargaining unit on the date of the application.

4. After disposing of the issues raised in connection with the Labour Relations Officer Report, the Board proceeded to deal with the balance of the application for certification.

5. The Board finds that the applicant is a trade union within the meaning of section l(l)(p) of the Labour Relations Act and is an affiliated bargaining agent of a designated employee bargaining agency. Pursuant to the designation issued by the Minister under section 139(1) of the Act on September 30, 1983, the designated employee bargaining agency is the Labourers' International Union of North America and the Labourers' International Union of North America, Ontario Provincial District Council.

6. The Board further finds that this is an application for certification within the meaning of section 119 of the Labour Relations Act and is an application made pursuant to section 144(1) of the Act which provides that:

An application for certification as bargaining agent which relates to the industrial, commercial and institutional sector of the construction industry referred to in clause 117(e) shall be brought by either,

(a) an employee bargaining agency; or

(b) one or more affiliated bargaining agents of the employee bargaining agency,

on behalf of all affiliated bargaining agents of the employee bargaining agency and the unit of employees shall include all employees who would be bound by a provincial agreement together with all other employees in at least one appropriate geographic area unless bargaining rights for such geographic area have already been acquired under subsection 3 or by voluntary recognition.

7. The Board further finds, pursuant to section 144(1) of the Act, that 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 and all construction labourers in the employ of the respondent in all other sectors of the construction industry 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 Dunham, 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.

8. The Board is 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 May 20, 1987, 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.

9. Section 144(2) of the Act, which states in part as follows, 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 5 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.

10. Further, pursuant to section 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, excluding the industrial, commercial and institutional sector 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 Dunham, save and except non-working foremen and persons above the rank of non-working foreman.