Labourers' International Union of North America, Local 1036 v. Stone & Webster Canada Limited, 1987 CanLII 3254

Ontario Labour Relations Board

Citation: [1987] OLRB Rep. April 607 File No.: 2388-85-R Date: April 21, 1987

Between: Labourers' International Union of North America, Local 1036, Applicant v. Stone & Webster Canada Limited, Respondent v. International Union of Operating Engineers, Local 793, Intervener.

Before: R. A. Furness, Vice-Chair, and Board Members C. A. Ballentine and J. Wilson.

Appearances: L. A. Richmond and B. Suppa for the applicant; Mark Contini and Robert Black for the respondent; Jack J. Slaughter, Joe Mihalich and George Palanuk for the intervener.

Decision of the Board

1. The name of the respondent is amended to read: "Stone & Webster Canada Limited".

2. The applicant has applied for certification with respect to a proposed bargaining unit of "all unrepresented construction labourers in the employ of the respondent including all field employees engaged in surveying operations in the industrial, commercial and institutional sector of the construction industry of the Province of Ontario and all sectors of the construction industry in Board Area No. 21 save and except non-working foremen and persons above the rank of non-working foreman". During the course of the hearing, however, the applicant amended its proposed bargaining unit to read "all construction labourers in the employ of the respondent in the industrial, commercial and institutional sector of the construction industry in the Province and all construction labourers in all other sectors of the construction industry except the industrial, commercial and institutional sector of the construction industry in the District of Algoma south of the 49th parallel of latitude, save and except non-working foreman and persons above the rank of non-working foreman, persons covered by a subsisting collective agreement between the applicant and the respondent, certificates of the Board and written voluntary recognition agreements". The applicant also proposed a clarity which stated, "For the purpose of clarity the Board declares that employees engaged in survey work are included in the bargaining unit".

3. The Board finds that the applicant is a trade union within the meaning of section l(l)(p) of the Labour Relations Act and that this is an application for certification within the meaning of section 119 of the Labour Relations Act.

4. The intervener sought to establish its status to appear as a party in this application. The intervener did not file a collective agreement which covered anyone affected by this application. In addition, the intervener advised the Board that it was not in a position to call evidence that it had membership evidence for anyone affected by this application. In these circumstances, after listening to the representations of the applicant, the respondent and the intervener, the Board ruled that the intervener had not established its status to intervene in this application and dismissed the intervention.

5. The employees who are affected by this application are classified by the respondent as surveyor rodman, surveyor levelman or surveyor instrumentman. The Board heard evidence from employees in each of these categories who worked for the respondent in its surveying work in connection with the construction of a steel rolling mill at The Algoma Steel Corporation, Limited, in Sault Ste. Marie (the "project"). The Board also heard evidence from William Suppa, the northern Ontario representative for the Ontario Provincial District Council, and from James Dalrymple, a professional engineer employed by the respondent as the project manager at the project.

6. The instrumentman spends the majority of his time field checking the concrete pours and the placements of anchor bolts, inserts and conduits. In addition, he sets control lines. Occasionally a levelman would use a transit on the project and assist in establishing a control line. It is the instrumentman's responsibility to check anchor bolts. In order to accomplish this, hand tapes or chains and hand levels are used and held by a levelman or a rodman. Sometimes it is necessary to use a transit where the anchor bolt has to be set to a tight tolerance. The instrumentman takes the readings and the levelman and rodman ensure that the chains are properly positioned on the templet. The instrumentman may also determine levels or grades from a bench mark. He sights through, takes the reading, sets up the line and installs a stake with a hammer. He also makes the necessary calculations and uses blueprints to determine where the line is to be set. The levelman and rodman use tapes and chains under the direction of the instrumentman in order to establish offset points. It is also a major duty of the instrumentman on the project to do the layout work so that the outer limits of an excavation can be fixed on the ground. This requires the levelman and rodman to use the chains and install the stakes under the direction of the instrumentman. The instrumentman receives his instructions from the engineering foreman and assists the labourers with sketches of locations on the project from blueprints.

7. The instrumentman received two years of training at Sault College as a civil engineering technician. After this training he was able to carry out his duties as an instrumentman. However, not all instrumentmen graduate from such a college and some instrumentmen on the project have had actual work experience. The instrumentman is responsible for the work and accuracy of the levelman and rodman who together make up a three-man crew. The instrumentman is also responsible for the accuracy of the work of his crew and checks their work and maintains accurate records. Measurements on the project are approximately equally divided between systems adhering to the imperial measurements and metric measurements. The instrumentman is required to be thoroughly familiar with both systems. In his work trigonometry is used to determine distances and angles.

8. The levelman who gave evidence, while he had no previous surveying experience, had a technical background in computer and electrical technology by studying at a community college. He commenced employment with the respondent as a rodman and after almost three months became a levelman. As a rodman he received instructions from the instrumentman or the levelman on how and where to hold the rod, chain or tape and where to drive the stake. As a rodman he did not have to make calculations. As a levelman his main instrument was a level and he spent most of his time establishing elevations from bench marks. As a levelman he did not establish control lines and used a transit only under the supervision of an instrumentman. He used trigonometry in the form of sine formulas to calculate the elevation of slopes. However, he did not calculate and locate curves in his work as a levelman. Despite his technical background it took him three months to learn how to be a levelman. As a levelman he was required to read and understand blueprints.

9. The rodman who gave evidence had attended a community college and studied to be a civil engineering technician. However, he did not graduate. In his opinion, while his courses at the college helped him to understand what was going on at the project they did not assist him to do his job as a rodman. The job of rodman essentially consisted of holding a rod plumb, taking instructions and driving in stakes. He was not required to make calculations. Whenever the crew was short a man they would use a carpenter or a labourer to do the work of a rodman. While there was an opportunity to learn for those who were ambitious, he was never told he would be trained as a levelman or an instrumentman and he never expected to receive training. The rodman did not feel that a secondary school education was necessary in order to do his job.

10. The Labourers' International Union of North America has offered a course on pipelaying and concrete for members of its participating local trade unions. This course lasts between five and six weeks and is taught in a classroom and on jobs. The instruction is for seven hours a day and five days a week. This course is offered by presenters who travel around Ontario and was offered in 1983 and 1984. At the conclusion of the course the participants are informally tested and receive certificates for having completed the course. The participants spend part of the first and second weeks receiving instruction in basic blueprints, use of a transit and layout work. Part of the second week is spent in training how to prepare grades with reference to the level, the laser, and the laying of pipe with the laser. At the end of the course the earlier material is reviewed. None of the respondent's employees who attended the course became either instrumentmen or levelmen.

11. Mr. Suppa stated that out of a membership of more than six hundred there were between six and twelve surveyors in the membership of the applicant. However, he was able to supply the name of only one person who had been referred to employment by the applicant as a surveyor. In April of 1984, Kenneth F. Johnston was apparently referred to employment with Bird Construction for placement as a surveyor. Mr. Suppa informed the Board that the job with Bird Construction involved the construction of a sewage treatment plant and that this work was performed under the labourers' provincial collective agreement for the industrial, commercial and institutional sector of the construction industry. On this job Mr. Johnston set up lines for excavating using a transit and a plumb-bob and drove in stakes. There is not a classification for surveyors under the labourers' provincial collective agreement and Mr. Suppa expressed the view that Mr. Johnston's rate of pay would be fixed by negotiation and that he received at least the labourers rate and perhaps more. Mr. Suppa gave evidence that the province-wide formwork collective agreement between The Ontario Form Work Association and The Form Work Council of Ontario was applied within the applicant's geographic jurisdiction when a forest insect laboratory was constructed in 1985. The applicant's members were employed on that job when a non-union general contractor subcontracted the forming work to Creston Construction Limited which is covered by the formwork collective agreement. On that job members of the applicant held rods and used a transit to establish grades for backfill and excavating and checked formwork and rebar with a transit. An apartment building was also constructed under the formwork collective agreement when the applicant's members performed work with a transit and rods. The formwork collective agreement includes a classification for layout men.

12. The international is also a party to the Labourers Distribution Pipeline Agreement for Canada. Members of the applicant have been employed under this national collective agreement. The definition sections of this national collective agreement state:

3. "Rodman, Chainman, or Stakeman" means a labourer employed to assist the Survey Instrument Man in running line, measuring pipe and/or right-of-way, and other survey work for the Employer.

4. "Grader" means a qualified labourer employed in hand working ditch bottom to maintain required grade where grade stakes have been set.

There are wage classifications in this national collective agreement for rodman, chainman, stakeman, pipefinder and flagman as one group and also for grader for another group. The latter group is at a higher rate of pay than the former group. It was the testimony of Mr. Suppa that the grader does not use instruments and that the grader would clear a ditch in response to directions from an instrumentman as to whether the ditch was on grade. While Mr. Suppa gave evidence that members of the applicant would use a transit in pipeline distribution work, the definitions in this national collective agreement do not appear to support his testimony.

13. Mr. Dalrymple stated that each of the three classifications of instrumentman, levelman and rodman are surveyors as that word is commonly understood in the construction industry. It is the practice of the respondent to seek people from community colleges and then train them with the hope that people with ambition and skill will respond and progress. While the respondent hoped that the three members of a crew will be interchangeable, the reality was that they were not interchangeable because of the nature of the work and the requirement of formal training. He informed the Board that it was part of the understanding that members of a crew would receive training in the field. However, the reality was that no one was told that he would automatically move up and there was little formal training by the respondent. The survey crews on the project were not represented by the intervener and there was never a claim to such representation. The respondent is bound by the provincial collective agreements in the industrial, commercial and institutional sector of the construction industry with respect to labourers and operating engineers.

14. There was no evidence before the Board that the applicant had previously sought to obtain bargaining rights for employees engaged as surveyors. However, the evidence before the Board established that Labourers' International Union of North America, Local 183 ("Local 183") was successful in obtaining twelve certificates from the Board between May 1,1978, and April 9, 1981, for bargaining units of "all field employees engaged in surveying operations in and out of (municipalities in southern Ontario, usually Metropolitan Toronto), save and except party chiefs, persons above the rank of party chief, sales, office and clerical staff". Of these twelve certificates, ten were obtained in 1980. These applications for certification involved survey companies as opposed to construction companies and were not determined by the Board to be applications for certification within the meaning of what is now section 119 of the Labour Relations Act. These bargaining units were determined by the Board under the provisions of section 6(1) of the Labour Relations Act. From the evidence before the Board, it appears that Local 183 signed five collective agreements which covered employees engaged in surveying operations.

15. From the evidence before the Board, it appeared that the International Union of Operating Engineers, Local 793 ("Local 793") had applied to the Board to be certified as the bargaining agent of employees engaged as surveyors for several construction companies. From a recital in a collective agreement between the Sarnia Construction Association and Local 793 which was admitted in evidence, it appeared that jurisdiction over non-professional survey crews had been transferred to the International Union of Operating Engineers in a letter dated January 25, 1965, from the American Federation of Technical Engineers. The earliest certificate in evidence before the Board was issued by the Board to Local 793 in 1968. The bargaining unit in that case was "all instrumentmen, rodmen and chainmen (in a geographic area) save and except party chief and those above the rank of party chief'. Over the next ten years the Board issued twelve certificates to Local 793 with bargaining units defined in similar terms in various geographic areas in Ontario. Each of these applications for certification was entertained by the Board as an application for certification under the construction industry provisions of the Labour Relations Act. Since the advent of the legislative scheme of provincial bargaining in the industrial, commercial and institutional sector of the construction industry in 1978 the Board has issued a number of certificates to Local 793 with respect to bargaining units defined in terms of the standard bargaining unit description of operating engineers and employees engaged as surveyors or confined to employees engaged as surveyors with no reference to operating engineers. The most recent certificate which was referred to the Board was issued in 1982. The provincial collective agreement between the Operating Engineers Employer Bargaining Agency and the Operating Engineers Employee Bargaining Agency contains a schedule which covers and applies to employers engaged in survey work within the Province of Ontario. The schedule refers to the classifications of instrumentman, senior and junior rodman, chairman and party chief. The schedule also sets out the scope of their duties and responsibilities. Local 793 was entered into sixteen collective agreements which cover "employees engaged as surveyors, in all sectors of the construction industry in the Province of Ontario and engaged in any such work outside of the construction industry in the said Province".

16. From the evidence before the Board it is clear that Local 793 has a history of acquiring bargaining rights for employees engaged as surveyors and of entering into collective agreements with respect to such employees. Moreover, the acquisition and exercise of these bargaining rights was occurred within the construction industry across the Province of Ontario. The Labourers International Union's history in acquiring and exercising bargaining rights for employees engaged is surveyors is limited to Local 183, confined to the area around Metropolitan Toronto and is limited to survey companies that do not operate as employers in the construction industry. The bargaining history of Local 793 with respect to employees engaged as surveyors is of a far greater extent and is far more pertinent to the construction industry than is any comparable history within the Labourers' International Union. This bargaining history appears to have been recognized by the Minister of Labour when on March 31,1978, she designated Local 793 and the International Union of Operating Engineers as the employee bargaining agency to represent employees engaged as surveyors in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario pursuant to section 139(1)(a) of the Labour Relations Act.

17. The terms "surveying" and "surveyors" cover a range of activities. Surveying may be regarded as the process of measuring and delineating the contours, dimensions and positions of any part of the earth's surface and the relationship of one point relative to any other point. Surveying on the earth's surface involves the intricacies of geodetic surveying down to the simple surveys performed by municipalities and on construction sites. On construction sites the complexity and permanence of the job will dictate whether the surveying will require co-ordinates and the construction of a grid on a plan or simply the determination and sketching of lines, curves and angles during the initial aspects of construction. The term surveyors likewise embraces a range of abilities and training. Not all surveyors are covered by the Labour Relations Act and section 1(3)(a) specifically states that, subject to section 90, for the purposes of the Labour Relations Act, no person shall be deemed to be an employee who is a member of the land surveying profession entitled to practice in Ontario and employed in a professional capacity. Ontario land surveyors are covered by this exclusion. The employees who are affected by this application are not members of the land surveying profession. These employees are non-professional surveyors as that term is commonly understood in the construction industry. The interpretation given to "surveying" and "surveyors" also varies on construction sites even among construction trade unions. This is particularly true with respect to layout work which is sometimes considered to be outside the term "surveyors". For example, in Commonwealth Construction Company Limited (Board File No. 1630-76-R, decision slated January 11, 1977), the Board in determining an appropriate bargaining unit of surveyors on an application by Local 793, excluded from the bargaining unit, by a clarity note, "a person who uses any instrument or tool for layout work incidental to the trade of carpentry". In that case the employer was bound by a collective agreement which included a specific reservation of such work for carpenters. Moreover, the definitions of "rodman, chainman or stakeman" and "grader" referred to in paragraph 12 indicate that they do not use instruments notwithstanding their titles.

18. The evidence established that there are differences in skill and ability among the classifications of rodman, levelman and instrumentman. It is readily apparent that a rodman may be adequately trained on the job in a matter of days. In the case of a levelman and an instrumentman, the necessary skill and ability is produced by post-secondary instruction and training with on-the-job experience. There was evidence that on this project construction labourers could and did become rodmen. There was no similar evidence with respect to construction labourers who became levelmen and instrumentmen. The applicant may well number among its membership individuals who are competent levelmen or instrumentmen. However, there was no evidence that on this project any of the levelmen or instrumentmen were construction labourers. The course on pipelaying and concrete offered by the International offered an opportunity for construction labourers to understand the uses of surveying and no doubt takes some of the mystery out of the process. It appears to the Board that the part of the course dealing with surveying enables construction labourers with ability and ambition to become levelmen and then instrumentmen. Having regard to the unchallenged evidence before the Board, such a course does not produce competent levelmen or instrumentmen. On the evidence before the Board, there was no one on the list of employees who was a construction labourer who had engaged in survey work. There was reference to a Ken Cameron who had worked as a construction labourer and who had had his classification changed to rodman. However, Mr. Cameron's name did not appear on the list of employees who would fall within the bargaining unit and accompanying clarity note proposed by the applicant. Having regard to the provisions of section 6(1), this application is dismissed.

19. The Board also examines the effect of the provisions of the Labour Relations Act on this application for certification. This application is an application for certification under section 144(1) of the Labour Relations Act. Section 144(1) of the Act provides:

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.

Such an application may be brought by either an employee bargaining agency or one or more affiliated bargaining agents of an affiliated bargaining agency on behalf of all affiliated bargaining agents of the employee bargaining agency. The unit of employees is required to include all employees who would be bound by a provincial agreement together with all other employees in at least one appropriate geographic area. It was agreed that the applicant is an affiliated bargaining agent. The evidence before the Board does not establish that the applicant is a bargaining agent that, according to established trade union practice in the construction industry, represents employees engaged in survey work who commonly bargain separately and apart from other employees within the meaning of section 137(1)(a) of the Labour Relations Act.

20. In Clarence G. Graham Construction Limited, [1981] OLRB Rep. Sept. 1195, the Board held that section 144 of the Labour Relations Act deals with all possible applications for certification in the construction industry. Since this application refers to the industrial, commercial and institutional sector of the construction industry, it may only be made pursuant to section 144(1). In Manacon Construction Limited, [1983] OLRB Rep. Mar. 407, the Board considered the requirements of section 144(1) and stated in paragraphs 34 and 35 at pages 423-424 as follows:

34. Section 144(1) also sets certain requirements for the bargaining unit that will be appropriate. It stipulates that:

'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.".

[emphasis added]

35. A provincial agreement is, by definition, a collective agreement which, amongst other things, contains provisions respecting "...the rights, privileges or duties of.. .the affiliated bargaining agents represented by the employee bargaining agency~.." and provisions respecting terms or conditions of employment of.. .the employees represented by the affiliated bargaining agents and employed in the [ICI] sector . Thus a provincial agreement deals with the bargaining rights held by affiliated bargaining agents represented by their employee bargaining agency. In turn, the first requirement of the definition of "affiliated bargaining agent" in section 137(I)(a), as noted at paragraph 30, is that it be a bargaining agent that "according to establish trade union practice in the construction industry, bargains separately and apart from other employees...". From reading those two definitions together, and in the context of the requirement of section 144(l) that ". . .the unit of employees shall include all employees who would be bound by a provincial agreement...", it may be seen that those employees represented by the trade union making application under subsection 1 ' . . .who commonly bargain separately and apart from other employees..." are the ones who would be covered by a provincial agreement.

21. The applicant is seeking to represent members of a bargaining unit engaged in survey work. In the designation order referred to in paragraph 16, the Minister of Labour has designated Local 793 and the International Union of Operating Engineers as the employee bargaining agency to represent employees engaged as surveyors in the industrial, commercial and institutional sector f the construction industry in the Province of Ontario. The terms "engaged in survey work" and engaged as surveyors" appear to the Board to encompass the same work. There is no doubt that the applicant is seeking to represent in collective bargaining employees who are included in this designation, notwithstanding the description of the proposed bargaining unit and the accompanying clarity note. Such a designation order not only states who the designated agents are, they also designate the trade which belongs to each designated agent in the construction industry. In superior Plumbing & Heating Company Ltd., [1986] OLRB Rep. Nov. 1589, the Board stated at age 1598 as follows:

Equally important, it is the Minister's function pursuant to this subsection [section 139(1)(a)l to "describe those provincial units". In other words, the Act gives the Minister the power to describe the appropriate provincial unit with respect to the province-wide scheme set out under various sections of the Act as discussed above. Those designation orders do not merely indicate who the designated agents are, but they designate the trades or crafts that, in a sense, belong to each agent. If particular trades or crafts are not therefore given to employee bargaining agencies or their affiliated bargaining agents by the Minister's designation order, then for purposes of an application pursuant to section 144(1) of the Act, the Board cannot describe a bargaining unit that includes such trades as it cannot determine an appropriate bargaining unit which includes trades or crafts other than as encompassed in the designation orders. If employee bargaining agencies or affiliated bargaining agents in the province-wide scheme want to represent trades or employees performing skills other than they have been assigned in a designation order, they can resort to section 139(5) of the Act which creates the mechanism for amending the designation orders. Alternatively, parties can argue that the performance of the skill or work in question is part of their designated trade or craft, and thus properly falls within the existing trade designation.

See also Ninco Construction Ltd., [1982] OLRB Rep. Nov. 1692.

22. The employee bargaining agency designation for the Labourers' International Union of North America and The Labourers' International Union of North America Ontario Provincial District Council does not refer to survey work or surveyors. The Board finds that it cannot determine an appropriate bargaining unit which includes trades other than the trades contained in the Labourers' designation order. On this additional ground this application is dismissed.