[1987] OLRB Rep. June 830
2838-86-R United Brotherhood of Carpenters & Joiners of America, Local #494, Applicant V. 608322 Ontario Inc. Delco Contractors, Respondent
BEFORE: Patricia Hughes, Vice-Chair, and Board Members W. H. Wightman and D. A. Patterson.
APPEARANCES: N. L. Jesin and Jim Caron for the applicant; Theodore Crljenica, Alphonso Fanelli and Mario Mancini for the respondent.
DECISION OF THE BOARD; May 29, 1987
This file, as well as File Nos. 3098-86-R and 3099-86-U, were listed for hearing on the same date. This is an application for certification by the applicant (or "Local 494") made pursuant to the construction industry provisions of the Labour Relations Act ("the Act"). The parties agreed that Files No. 3098-86-R (an application under subsection 1(4) of the Act) and 3099-86-U (a complaint under section 89 of the Act) should be adjourned pending the disposition of the application for certification. This decision therefore deals only with the application for certification.
The Board finds that the applicant is a trade union within the meaning of paragraph l(l)(p) of the Act.
Having regard to the agreement of the parties, the Board finds that
all carpenters and carpenters' apprentices employed by the employer in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario and in all other sectors in Board Area 1, excluding the industrial, commercial and institutional sector, save and except non-working forepersons and persons above the rank of non-working forepersons
constitute a unit of employees of the respondent suitable for collective bargaining.
Initially, the employer filed a list of six employees. This list appears to include all the employees in the respondent's employ as of January 13, 1987, the date of application, and not only those employees the respondent considered to be employees in the applicant's proposed bargaining unit. The applicant maintained there were two employees in its proposed unit. After discussions between the parties and a Labour Relations Officer, the employer in a letter dated February 3, 1987 (and received by the Board on February 10, 1987) deleted four employees from the list, adding at the bottom "To the best of my knowledge, the only employees in the bargaining unit are Filiomeno Fiorito and possibly Paul Garneau". The applicant was of the view that Paul Garneau was a carpenter. Counsel for the applicant contends that the issue of Mr. Garneau's status was settled at the officer's meeting and that the employer re-opened it only after the applicant filed its application under subsection 1(4) of the Act.
Having considering the submissions of both counsel and the documents in the file, we made the following oral ruling:
We are not satisfied that the employer has ever conceded that Garneau is a carpenter properly within the unit. At most it has conceded Garneau might be in the unit. Since the respondent has maintained this position throughout, we are of the view that this is not a reopening of the issue but a maintenance of the employer's position that Garneau has not performed carpentry work exclusively. Accordingly, we conclude that it would be the appropriate course to hear evidence today of the work performed by Garneau.
- Prior to our hearing evidence on the status of Mr. Garneau, the parties agreed that the applicable test was that articulated in Gilvesy Enterprises Inc., [1987] OLRB Rep. Feb. 220:
(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 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.
Accordingly, the evidence led related primarily to the work performed by Mr. Garneau on January 13, 1987, the date of application. As another relevant factor, evidence was led with respect to the basis upon which Mr. Garneau was hired. Evidence of work performed by Mr. Garneau at other times was restricted to the general nature of the work; the parties were not permitted to ask questions about the proportion of particular types of work performed. In our view, to permit that line of questioning would detract from the intent of the Gilvesy case, supra, to clarify that the test is the work performed on the date of application and not during a representative period. That case signals a departure from the representative period test employed in cases such as Heath Construction Inc., [1977] OLRB Rep. Oct. 691; J. & M. Chartrand Realty Limited, [1978] OLRB Rep. May 423; and Di Marco Plumbing and Heating Company Limited, [1985] OLRB Rep. May 659 where the date of application test did not provide an adequate answer.
Paul Garneau has been a member of Local 494 for seventeen years. He started work at the Howard and Niagara apartment complex project at the end of November 1986 and finished work at the site on January 16, 1987. His separation slip, completed by Alphonso Fanelli, a supervisor with the respondent, shows his occupation as "carpenter". We are also satisfied that he performed carpentry work on the site and had previously performed carpentry work extensively.
Our initial (and, in the event, exclusive) concern, however, is the nature of the work Mr. Garneau performed on January 13, 1987. One particular issue is central to our determination. Because the columns on the first floor had been built too high, they had to be chipped down after the forms were removed. When this chipping took place was dealt with extensively before the Board since the chipping occupied the greatest part of the work performed on the days it occurred. Counsel for the union conceded that Mr. Garneau would have to be doing work other than chipping to be doing carpentry work.
Chris Mayer is the architect's agent on the construction site; he attends every day and writes short written reports on the progress of the work which he submits to the architect. His reports do not exhaustively set out all the work done on a particular day, nor do they indicate which employee performed any particular work. Furthermore, he attended at the site Monday to Friday only and did not necessarily record work done on the weekend. His reports were typewritten from handwritten notes. Both the typewritten and handwritten versions were submitted as evidence.
Mr. Mayer testified that he did not realize the columns were too high until January 12, 1987 and that chipping occurred that day and on January 13 and up to 2:30 p.m. on January 14, 1987. His typewritten reports show that beam pickets were chipped on all columns on January 12 "due to oversight" and that chipping was "going on all day long" on January 13 and that it was completed at 2:30 p.m. on January 14, 1987.
Mr. Mayer's handwritten notes contradict his oral testimony and the typewritten reports. On the back of the note for January 7th, he wrote "something looks funny [.] check columns tomorrow". That note actually was made on January 6th (the Tuesday). On the back of the January 9th (that is, Friday) note, he had written
due to oversight on my part, something was wrong on column heights. because in daily report I forgot to mention columns are to [sic] high they have to be chipped down 8' do not report today leave for Monday.
In fact Mr. Mayer testified he brought this problem to Mr. Mancini's attention before the Monday but Mr. Mancini did nothing to correct it immediately. In cross-examination, he admitted that at least two columns were chipped on Friday, January 9th, but could not remember why he did not note it. He said, however, that it was not possible that more than two columns were chipped by January 9th because only two columns needed to be chipped that day. He conceded that it was possible other columns were chipped on the Saturday or Sunday, January 10th or 11th.
Mr. Garneau at first testified in cross-examination that the columns were chipped on the 13th but then said he did not know when chipping was done. He also said that his last day, January 16, 1987, was two to three days after the chipping work. His recollection of when the chipping was done - either during his last week of work or during the previous week - was confused. In addition, Mr. Garneau at first said it took one day to do all the chipping, but later extended Ihat to "two days at the most, one and a half, not three". Jim Caron, the business representative of Local 494 for three years, who visited the site on January 13, 1987, testified he saw no chipping being done on the 13th. Filiomeno Fiorito, another employee (agreed to be a carpenter) and a member of Local 494, testified the chipping was done on the 12th, 13th and 14th by Mr. Garneau, Danny Mullen and Mario Mancini.
Mr. Caron and Mr. Fiorito were both believable witnesses, but they contradicted each other. While, neither Mr. Mayer nor Mr. Garneau gave completely satisfactory testimony with respect to when the chipping occurred, considering all the evidence and weighing the testimony of the various witnesses, particularly that of Mr. Mayer (including his notes), we are satisfied the chipping took place over a three-day period. We are also satisfied that Mr. Garneau worked primarily on chipping when it occurred, and that chipping took place on January 13, 1987.
Accordingly, applying the Gilvesy, supra, test, we find that Mr. Garneau was employed by Delco Contractors and was at work on the date of the application; however, we find further that Mr. Garneau did not spend the majority of his time doing carpentry work on the date of the application, January 13, 1987. It is not therefore necessary for us to consider any other factor.
Since our finding leaves only one employee in the bargaining unit, this application is dismissed pursuant to subsection 6(1) of the Act.
The application under subsection 1(4) is no longer relevant and is hereby terminated. This matter is referred to the Registrar to schedule a hearing date for the union's section 89 complaint.