Ontario Labour Relations Board

[1987] OLRB Rep. June 923

3096-86-R United Steelworkers of America, Applicant V. Kenoyd Limited trading as Pickering Welding & Steel Supply, Respondent

BEFORE: Harry Freedman, Vice-Chair, and Board Members D. A. MacDonald and J. Redshaw.

APPEARANCES: P. Turtle and W. Curtis for the applicant; M. E. Geiger, Lloyd Henning and Jerry Randall for the respondent

DECISION OF THE BOARD; June 5,1987

1. At the continuation of the hearing of this application for certification, both the appli­cant and the respondent submitted that the appropriate bargaining unit should be described in terms of "all employees" rather than by reference to the trades or crafts that were at work on the date this application was made. The respondent is an employer in the construction industry and its employees are employees in the construction industry. In Fielding Construction Limited, [1970] C LRB Rep. Jan. 1205 the Board wrote at paragraph 8:

"With respect to the 'all employees' unit which the applicant is seeking, the Board has expressed concern about bargaining units of construction industry employees belong [sic] all inclusive, as they are when described in terms of 'all employees'. Such units may well lead to jurisdictional disputes particularly where only one or two trades are employed at the date of the making of the application. The Board has, therefore, where employees in the construction industry are involved, described the appropriate bargaining unit in terms of the trades on the job on the date of the making of the applications, see, for example, Winter & Son case, OLRB Monthly Report, February 1967, p. 889, 890. It follows that if the Board were to accede to the agreement of the applicant and the respondent and determine a bargaining unit, with respect to the respondent's employees in the construction industry, in terms of 'all employees of the respondent employed at and working out of Copper Cliff', the Board's remarks on jurisdictional disputes would apply with even greater force."

2. The applicant herein is not a trade union that pertains to the construction industry. While that does not preclude the applicant from seeking certification for the employees of the res­pondent (see our decision in this matter dated March 31, 1987, [1987] OLRB Rep. April 595) the applicant cannot take the benefit of the construction industry provisions of the Labour Relations Act.

3. The employees of the respondent in this case perform both construction and non-con­struction work, but by reason of section 117(b) are employees in the construction industry. The parties submit that the respondent's methods of operation and the way in which it organizes its work and work force supports the position of the parties. In our view, the potential danger averted to in Fielding Construction Limited, supra, case is far outweighed in the matter before us by the possibility of fragmentation and disruption to the respondent's operations that could occur if we were to limit the description of the bargaining unit to only the trade or trades working on the date of application.

4. Additionally, as the employees of the respondent work at job sites away from the res­pondent's plant in Bowmanville, the parties submitted that the Board should use the phrase "at and out of' in the bargaining unit description. Counsel for the respondent suggested that the situa­tion in this case is similar to employees involved in transport who work away from the respondent's. premises. Counsel cited Brantox Holdings Limited [1969] OLRB Rep. Aug. 609 and Capital City Transport Limited [1969] OLRB Rep. Feb. 1170. Counsel also made specific reference to Cooper's Crane Rental Limited, [1980] OLRB Rep. Sept. 1286, in which similar language was used in describing the appropriate bargaining unit in relation to employees working for a crane rental busi­ness.

5. Therefore, having regard to the agreement of the parties and for the reasons aforesaid, the Board finds that all employees of the respondent working at and out of Bowmanville save and except foremen, persons above the rank of foreman, office and sales staff, persons employed for not more than twenty-four hours per week and students employed during the school vacation period constitute a unit of employees of the respondent appropriate for collective bargaining.

6. 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, at the time the application was made, were members of the applicant on February 24, 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.

7. A certificate will issue to the applicant.