[1987] OLRB Rep. December 1510
0507-85-R; 0508-85-R; 0509-85-R; 0510-85-R; 0841-85-R; and 0877-85-R International Union of Operating Engineers, Local 793, Applicant v. Harnden & King Construction Ltd., Respondent v. Group of Employees, Objectors
BEFORE: Harry Freedman, Vice-Chair, and Board Members I. M. Stamp and H. Kobryn.
APPEARANCES: S. B. D. Wahl and J. Slaughter for the applicant; Bruce Binning and Grant Robinson for the respondent; Peter M. Whalen for the objectors.
DECISION OF THE BOARD; December 29, 1987
[1]. These are a series of applications for certification by which the applicant seeks to obtain bargaining rights for various groups of employees employed by the respondent at different locations and in its various operations.
[2]. The respondent is a construction contractor primarily engaged in the construction of roads. It also owns and operates gravel pits, asphalt production facilities, storage yards and garage facilities.
[3]. There were challenges made in respect of the bargaining unit descriptions and lists of employees in these applications. Additionally, timely statements purporting to express opposition to the applications (hereafter referred to as petitions) were filed.
[4]. The Board authorized a Labour Relations Officer to meet with the parties and also conduct various examinations with respect to all of the outstanding issues, save for the voluntariness of the petitions. The reports of the Labour Relations Officer were filed and the parties were content to rely on written argument with respect to those reports. The Officer also reviewed the lists of employees and the degree of membership that the applicant had among the employees in the various bargaining units for which the applicant seeks certification.
[5]. The Board, pursuant to its decision of May 15, 1986, received the evidence and argument of the parties relating to the voluntariness of the petitions in respect of all of the applications in which those petitions were numerically relevant.
[6]. We have first disposed of all of the outstanding issues in relation to each application but for the effect of the petitions on the exercise of our discretion under section 7(2) of the Act. We have made a final decision in the one application in which the petitions were not numerically relevant to that application without considering the petitions. We have then dealt with the applications in which the petitions were numerically relevant and have considered their effect on the exercise of our discretion under section 7(2) of the Act.
[7]. The Board finds that the applicant is a trade union within the meaning of section l(l)(p) and section 117(e) of the Labour Relations Act.
Board File No. 0507-85-R
[8]. The parties agreed to the description of the appropriate bargaining unit. Having regard to the agreement of the parties the Board finds that:
all employees of the respondent working at and out of the Dale Road pit and asphalt plant, in Hamilton Township, Northumberland County, save and except scale man, non-working foremen and those above the rank of non-working foreman
constitute a unit of employees of the respondent appropriate for collective bargaining.
[9]. The applicant challenged the list of employees filed by the respondent in respect of the above described bargaining unit. The applicant claimed that Greg Honsley, classified by the respondent as the Asphalt Plant Foreman, should be excluded from the bargaining unit because he exercises managerial functions and therefore is not an employee within the meaning of the Act by reason of section 1(3)(b) of the Act.
[10]. The applicant also claimed that three of the persons listed on Schedule "D" filed by the respondent in this application, Dave George, Jack Bailey and Eugene Hines ought to be excluded from the bargaining unit described above, and be included in the bargaining unit of employees for which the applicant seeks certification in Board File No. 0509-85-R.
[11]. Mr. Honsley's duties and responsibilities were described in the Labour Relations Officer's report in this matter. Generally, Mr. Honsley monitors and supervises the work of two employees who operate the asphalt plant. Mr. Honsley also performs a substantial amount of the physical work related to the asphalt plant's operation. Mr. Honsley reports to Andre Reyns, a member of the respondent's management, who decides upon the size of the crews at the asphalt plant and the filling of any vacancies that might occur there. While Mr. Honsley does have some responsibility for ensuring that the employees under his supervision perform their work properly, and in that vein, can warn them to "straighten up", he is not aware that he has the authority to impose any formal discipline upon any employee. If such occasion arises, Mr. Honsley consults with Mr. Reyns. Mr. Honsley is paid a higher hourly rate than the two employees under his supervision and also has the use of a company vehicle.
[12]. In our opinion, the evidence of Mr. Honsley's duties and responsibilities does not establish that he exercises managerial functions within the meaning of section 1(3)(b) of the Act. We find that Mr. Honsley does some supervision and reporting, but the actual managerial functions in respect of the respondent's operation that is the subject of this application rest with Mr. Reyns, Mr. Honsley's supervisor. Additionally, it is clear from the evidence that Mr. Honsley spends a considerable amount of time doing the same kind of physical work as the employees under his supervision. Based on all of the evidence before us, and the representations of the parties, we are satisfied that Mr. Honsley is an employee in the bargaining unit described above.
[13]. With respect to the applicant's challenge to Messrs. George, Bailey and Hines, we observe firstly that Messrs. George and Hines are on the list of employees who were at work in the bargaining unit in another application on the application date, that is, the Schedule "A" that was filed by the respondent in Board File No. 0509-85-R. As no one challenged their inclusion on that list, it appears to us that the parties have, at the very least, implicitly agreed that at least two of the three employees that the applicant challenged in this application were employees in the bargaining unit described in the application in Board File No. 0509-85-R on the date that both this application and that application were made.
[14]. Where more than one application for certification is made on the same day in respect of the same employer and involves more than one bargaining unit comprised of employees of the same employer, on one application for certification is made in respect of more than one bargaining unit, an employee can only be in one bargaining unit at the time the application is made. See Laurent Lamoureux Co. Ltd., [1985] OLRB Rep. Nov. 1618 at 1623. Thus, while employees may, depending on their work, be employed in different bargaining units at different times, an employee can only be in one bargaining unit at any specific point in time. In certification proceedings the Board must assess the circumstances relevant to making the requisite determinations under section 7(1) of the Act as of two distinct points in time. The Board must ascertain how many employees were in the bargaining unit at the time the application was made. The Board considers the time the application was made as being the day on which the application was made. See Windsor Tube & Metal Inc, [1977] OLRB Rep. June 396; Bond Place Hotel, [1982] OLRB Rep. Aug. 1135 at 1137-38; Amplifone Canada Ltd., [1967] OLRB Rep. Dec. 840. Thus, the determination of the number of employees in the bargaining unit is made as of the day the application was made. Therefore, while an employee may be performing work that is normally done by employees in different bargaining units on the day an application is made, and may also have worked in different bargaining units both before and after the application date, the Board, for purposes of an application for certification will only consider an employee to be in one bargaining unit when the Board makes its determinations under sections 7(1) and 7(2) of the Act.
[15]. In this case, apart from the fact that the parties are apparently agreed that two of the three challenged employees were employed in another bargaining unit on the day that this application was made, the report of the Labour Relations Officer makes it clear to us that the three employees, who are classified as drivers, report to the company's shop daily from where they are dispatched. They are under the supervision of the truck supervisor, Bruce Davidson, who works out of the company's shop. Although the three employees are involved in the transportation of product to and from the asphalt plant and gravel pit that is the subject of the instant application, we find that the three employees challenged by the applicant are not employees in the bargaining unit in this application since they do not work at and out of the Dale Road pit and asphalt plant, but rather report to and work out of the company's yard in Cobourg, which is the subject of the application in Board File No. 0509-85-R.
[16]. Therefore, on the basis of all the material filed the Board finds that more than fifty-five per cent of the employees of the respondent in the bargaining unit in Board File No. 0507-85-R, at the time the application was made, were members of the applicant on June 10, 1985, 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.
[Remainder of decision omitted: Editor]