Ontario Labour Relations Board

[1987] OLRB Rep. April 601

2781-86-R Sheet Metal Workers' International Association, Local 562, Applicant v. Ridsdale Steel Fabricators Inc., Respondent v. Employee, Objector

BEFORE: G. T. Surdykowski, Vice-Chair, and Board Members J. Wilson and J. Redshaw.

APPEARANCES: L. Steinberg and C. Coffin for the applicant; Ian S. Campbell and Doug Ridsdale for the respondent; Ken Brueckner for the objector.

DECISION OF THE BOARD; April 21, 1987

1. This application for certification was heard on March 20, 1987 at which time the Board directed that certificates issue to the applicant effective that same date.

2. 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 clause (a) of section 139(1) of the Act on April 28, 1986, that designated employee bargaining agency is the Sheet Metal Workers Interna­tional Association and the Ontario Sheet Metal Workers Conference consisting of Locals 30, 47, 235, 392, 397, 473, 504, 537, 539, 562 and 269 of the Sheet Metal Workers International Associa­tion.

3. 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.

4. The applicant sought to represent a bargaining unit of journeyman sheet metal workers and registered sheet metal apprentices, save and except non-working foremen and those above that rank, employed by the respondent in the industrial, commercial and institutional ("ICI") sec­tor of the construction industry throughout Ontario, and also such employees of the respondent in all other sectors of the construction industry in Board Area No. 6. In its Reply, the respondent states that only one of the four employees affected by this application performs work within the "construction industry" as defined by section 1(1)(f) of the Act. It asserts that the application should therefore be treated as having been made under the general provisions (sections 5, 6, and 7) of the Act, rather than under the construction industry provisions.

5. At the hearing, the applicant accepted as substantially correct the respondent's descrip­tion of its business as a manufacturer of custom steel products as set out in the Reply. The respon­dent operates a custom steel fabricating shop producing steel products for manufacturing compa­nies in the Cambridge area, including parts for fans, brackets for the furniture industry, parts for oil filtration systems, and parts for industrial dust collecting systems. Some of these products are manufactured to be installed by the customer. Other products are manufactured and installed by the respondent's employees. The parties also agreed to the following facts:

(a) Gerhard Haas spends virtually 100% of his time at work in on-site installation of products fabricated by the respondent in its shop. Only occasionally does he work in the shop.

(b) Ken Brueckner is a working foreman. He spends approximately 77.4% of his time at work in the respondent's shop. His remaining time (i.e., 22.6%) is spent in on-site installation work.

(c) Dennis Burger and Hugh Rendle spend between 64% and 73% of their time at work in the respondent's shop. The rest of the time (27% to 36%), they are engaged in on-site installation.

(d) 50% of the jobs worked on by Messrs. Brueckner, Burger and Ren­dle are "manufacturing" jobs; that is, they involve only fabricating products to the customer's specification. The other 50% of the jobs they work on involve both fabrication and on-site installation; that is, the product is fabricated by one or more of Messrs. Brueckner, Burger and Rendle and is installed on site by Mr. Haas or one or more of Brueckner, Burger and Rendle. On the fabrication and installation jobs, 60% of the work time is spent fabricating the prod­uct and 40% of the time is spent installing.

(e) The installation work is construction work.

(f) All of the named employees report to work at the respondent's shop at 20 Hobson Street and all are supervised by Mr. Brueckner the working foreman.

6. In addition, Mr. Cliff Coffin, the applicant's business manager for the past 13 years, tes­tified that all of the 15 to 18 sheet metal contractors in his "area" operate fabricating shops in the same manner as this respondent. That is, they have their own shops and both install what they have fabricated for the customer and fabricated without doing the installation. In cross-examina­tion, he agreed that the majority of the business done by these fifteen to eighteen other sheet metal contractors was fabricating and installing product for their customers and that the fabricating only portion of their business was relatively small. Finally, the applicant produced a provincial collec­tive agreement for 1986 to 1988 between the Ontario Sheet Metal and Air Handling Group and the Sheet Metal Workers' International Association and Ontario Sheet Metal Workers' Conference which refers to both shop fabrication and on-site installation.

7. Counsel for the respondent argued that because the company uses the same work force for what he submits are mixed construction (the installation) and non-construction (the fabrica­ion) activities, this application should be treated as one made under the general provisions of the Xct. In support of its submission, he referred to the Board's decisions in Ethier Sand & Gravel Limited, [1979] OLRB Rep. Oct. 962; Warren Bitulithic Limited, [1981] OLRB Rep. March 376 md Dominion Paving Limited, [1981] OLRB Rep. Oct. 1370.

8. Counsel for the applicant submitted that the three employees who spent more of their time in the respondent's shop fabricating than they do on the job site installing are employees in he construction industry within the meaning of clause (b) of section 117 of the Act. He submits hat Ethier Sand & Gravel Limited, supra, insofar as it stands for the proposition that an employer which engages in construction and non-construction activities with the same work force is not an employer in the construction industry, is wrongly decided or, in the alternative, that it does not apply to the facts of this case. Counsel referred us to the Board's decisions in Metro Railing Ltd., [1986] OLRB Rep. Dec. 1731; Esam Construction Limited, [1980] OLRB Rep. Feb. 197; Cooper's Crane Rental Limited, [1980] OLRB Rep. Sept. 1286; Stoney Creek Mechanical Limited, (unre­ported decision in Board File No. 0169-83-M); Irvcon Roofing & Sheet Metal (Prembroke) Ltd., [1981] OLRB Rep. Nov. 1594; and Regulation 57 under the Apprenticeship and Tradesmen's Qualification Act R.S.O. 1980 Chapter 24.

9. In Ethier Sand & Gravel Limited, supra, one of the issues before the Board was whether r not the application for certification before the Board was properly brought under the construct­ion industry provisions of the Act. In dealing with that issue, the Board said in part at paragraphs 8 and 9 that:

10. Before an application may be successfully made under the provisions of section 108 of The Labour Relations Act, it is necessary for an applicant to establish not only that it is a trade union within the meaning of section 117(f) but also that the employer is an employer within the mean­ing of section 117(c) and that the employees are employees within the meaning of section 117(b). With respect to section 117(b), the applicant might well have been able to establish that the employees affected by the application are employees within the meaning of that subsection if it had called any evidence on this point. Since no evidence was called on this point, the Board is not prepared to find that the employees who are affected by this application are employees within the meaning of section 117(b) of The Labour Relations Act.

11. The respondent performs essentially the work of a supplier of materials to employers who apparently operate businesses in the construction industry. As a secondary feature, the respondent constructs roads from its own materials. There is no doubt that the construction of roads is included in the definition of "construction industry" in section 1(l)(f) of The Labour Relations Act. The delivery of materials to employers who are engaged in performing work at the site of the construction of roads is not the operation of a business engaged in construction of "works" at the site thereof and does not fall within the definition of "construction industry" within the meaning of section 1(1)(f). See the Cedarhurst Paving Co. Limited case, [1964] OLRB Rep. Dec. 442. The respondent, on the facts before the Board, is engaged in operations which essen­tially fall outside the definition of "construction industry" in section 1(1)(f) and as a secondary feature is engaged in operations which fall within the definition of "construction industry" within the meaning of section 1(1)(f). Where an employer is engaged in the construction and non-construction activities with the same work force, the Board has held that such mixed activities do not fall within the meaning of "construction industry" in section 1(1)(f) and that such an employer is not an employer as defined in section 117(c) of the Labour Relations Act. See the John Harvie Limited case [1969] OLRB Rep. April 145; and the Canadian Pittsburgh Industries Limited case, Board File No. 15984-69-M.

[emphasis added]

In Ethier Sand & Gravel Limited, the Board did not have before it an employer that operated a fabricating shop, a mode of operation that is common in the sheet metal business. Further, both of the decisions cited as authority for the proposition that an employer who engaged in construction

and non-construction activities with the same work force is not an employer in the construction industry were made prior to the enactment of the Labour Relations Amendment Act Statute of Ontario, 1970 (No. 2) c. 85, section 39 which introduced what is now clause (c) of section 117 of the Act and defined who is an 'employee' in the construction industry for the first time. Prior to that, as for example in its John Harvie Limited, [1969] OLRB Rep. April 145 and Canadian Pitts­burgh Industries Limited, Board File No. 15984-69-M decisions, the Board had excluded shop, yard, and other off-site employees from bargaining units when considering applications for certifi­cation under the construction industry provisions of the Act.

10. Clauses (b) and (c) of section 117 of the Labour Relations Act define "employee" and "employer" in the construction industry as follows:

(b) "employee" includes an employee engaged in whole or in part in off-site work but who is commonly associated in his work or bargaining unit with on-site employees;

(c) "employer" means a person who operates a business in the construction industry, and for purposes of an application for accreditation means an employer for whose employ­ees a trade union or council of trade unions affected by the application has bargaining rights in a particular geographic area and sector or areas or sectors or parts thereof;

Nowhere in the Act is it stipulated that a person must operate a business that is engaged solely or even primarily in the construction industry in order for that person to be an employer in the con­struction industry. Nor has the Board required that a person's business be operated solely or pri­marily in the construction industry in order for that person to be an employer in the construction industry (see, The Board of Education for the City of Windsor, [1983] OLRB Rep. May 831 and the Board decisions cited therein at paragraph 10). Similarly, there is no requirement that an employee perform a majority or any of his work on a construction site in order to be an employee in the construction industry. It is sufficient for an employee to be "commonly associated in his work or bargaining with on-site employees". Consequently, it is not correct, in our view, to say that an employer engaged in construction and non-construction activities with the same work force cannot be an employer in the construction industry.

11. Dominion Paving Limited, supra, illustrates the Board's response, where, in an appli­cation for certification, the respondent employer carries on both construction and non-construction activities with essentially different work forces. That response, which was underlined in Metro Railing Ltd., supra, is to group the employees into separate construction and non-construction bar­gaining units. In Esam Construction Limited, sup ra, the Board included in a construction bargain­ing unit two employees who were not working on a construction site on the date of application but who did regularly spend time on such a site. The Board also found that an employee engaged solely in off-site work that was in its entirety destined directly or indirectly for the job site to be included in the same construction bargaining unit. The Board reasoned that all three employees were commonly associated in their work with on-site employees within the meaning of what is now clause (b) of section 117 of the Act. It is in cases where off-site employees are only rarely, uncom­monly, or briefly required to work on-site that the Board does not include them in a construction bargaining unit with the on-site employees (see for example, Taggart Construction Limited, [1974] OLRB Rep. March 190; C. A. Pitts Engineering Construction Ltd., [1973] OLRB Rep. Feb. 123).

12. On the facts before the Board, in this case, we were satisfied that although the respon­dent does not operate exclusively within the construction industry, it does operate a business in the construction industry within the meaning of clause (c) of section 117 of the Act. The respondent does more than simply supply materials to other businesses. A significant part of its operation involves the on-site installation of sheet metal products which is clearly construction work. We were also satisfied that Gerhard Haas, Ken Brueckner, Dennis Burger and Hugh Rendle, are all employees in the construction industry within the meaning of clause (b) of section 117. Mr. Haas spends virtually all of his time on construction sites, doing construction work. Messrs. Brueckner, Burger and Rendle all regularly and commonly spend a significant portion of their time doing the same kind of construction work as Mr. Haas. In addition, a substantial portion of their off-site work is directly related to the on-site construction work. Further, it was evident that the applicant commonly bargains on behalf of journeymen sheet metal workers and registered apprentices who, like Messrs. Brueckner, Burger and Rendle, are engaged in fabricating and installing metal prod­ucts in the construction industry. In the result we were satisfied that all three are commonly associ­ated in their work, and would usually be commonly associated in their bargaining, with the on-site employee, Mr. Haas. Accordingly, we ruled that all four men are properly included in the bargain­[ng unit applied for by the applicant and that this application was properly made pursuant to the construction industry provisions of the Act.

13. Mr. Brueckner attended the hearing and expressed a concern with respect to the impact of certification of the applicant on employees of the respondent who presently do sheet metal work but who are neither journeymen sheet metal workers nor registered sheet metal apprentices. That is not a matter that properly enters into the Board's considerations when it deals with an appli­cation for certification. We find it appropriate only to make two observations. First, it appears that, in the Province of Ontario, only journeymen sheet metal workers and registered sheet metal apprentices are entitled to work or be employed in the sheet metal trade (see The Apprenticeship und Tradesmen's Qualification Act, supra, and Regulations thereunder; Irvcon Roofing & Sheet Metal (Pembroke) Ltd., sup ra. Second, the respondent appears to employ some people in non-sheet metal work and may have some flexibility in work assignments.

14. Having regard to all of the evidence before it, the Board finds, pursuant to section 144(1) of the Act, that all journeymen sheet metal workers and registered sheet metal apprentices in the employ of the respondent in the industrial, commercial and institutional sector of the con­struction industry in the Province of Ontario and all journeymen sheet metal workers and reg­istered sheet metal apprentices in the employ of the respondent in all other sectors of the construc­tion industry in the Regional Municipality of Waterloo (except that portion of the geographic Township of Beverly annexed by North Dumfries Township), 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.

15. On the basis of the material filed with the Board and having regard to the Board's find­ing with respect to the bargaining unit description, the Board finds that there were four employees in the bargaining unit on the date this application was made.

16. In support of its application for certification, the applicant trade union filed documen­tary evidence of membership in the form of cards, which consist of combination applications for membership and receipts. The union filed three such cards, all of which bear the name of an employee in the bargaining unit. These cards each contain the original signature of an employee, and the receipts, which are countersigned by a witness (the collector), indicate that a payment of $1.00 has been made to the union with respect to membership fees within the six month period immediately preceding the terminal date in this application. The cards and money were collected by one person and the membership evidence is supported by a duly completed Form 80 Declara­tion Concerning Membership Documents, Construction Industry, which attests to the regularity and sufficiency thereof. In short, the form and content of the membership evidence are consistent with the requirements of section 1(1)(l) of the Act.

17. There was a statement of desire indicating opposition to the certification of the applicant filed. The Board finds that the statement of desire is not relevant to its considerations because, even if it is voluntary (the test of admissibility), it would not raise a sufficient doubt con­cerning the continued support for certification of the applicant such as to cause the Board to exer­cise its discretion to direct that a representation vote be taken despite the fact that more than fifty-five per cent of the employees in the bargaining unit were members of the applicant at the relevant time.

18. 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 January 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 Act.

19. 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 or 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 dated March 20, 1987 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 3 above in respect of all journeymen sheet metal workers and registered sheet metal apprentices in the employment 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.

20. Further, pursuant to section 144(2) of the Act, a certificate dated March 20, 1987 will issue to the applicant trade union in respect of all journeymen sheet metal workers and registered sheet metal apprentices in the employ of the respondent in the Regional Municipality of Waterloo (except that portion of the geographic Township of Beverly annexed by North Dumfries Town­ship, excluding the industrial, commercial and institutional sector, save and except non-working foremen and persons above the rank of non-working foreman.