International Union of Operating Engineers, Local 793 v. Ro-Von Construction Limited, 1988 CanLII 3609

[1988] OLRB Rep. December 1329

1640-87-R International Union of Operating Engineers, Local 793, Applicant V. Ro-Von Construction Limited, Respondent v. Group of Employees, Objectors

BEFORE: R. A. Furness, Vice-Chair, and Board Members W. Gibson and P. V. Grasso.

APPEARANCES: Jack J. Slaughter and George Palanuk for the applicant; Peter Thorup, R. W. Paciocco, Joanne Santjos, Ivan Champagne and Ron Champagne for the respondent; George Priddle for the objectors.

DECISION OF THE BOARD; December 19, 1988

1. In this application for certification the Board appointed a Labour Relations Officer to inquire into and report to the Board on (a) the list and composition of the bargaining unit and (b) on the nature of work performed and the duties and responsibilities of any person who is chal­lenged by any of the parties.

2. In the course of meeting with the Labour Relations Officer, the parties entered into minutes of settlement wherein it was agreed that the following persons were not performing bar­gaining unit work on the date of the application and should be deleted from the list of employees on Schedule "A" and should not appear on Schedule "A":

Dan Tier

Simon McQuabbie

Mike Schoch

Bob Lewis

Larry Parniak

Ronald Walker

Donald Brown

Calvin Raines and

Clifford Smith.

The parties also agreed that Nathalie Bernier was performing bargaining unit work on the date of the application and is properly included on Schedule "A". At the commencement of the hearing

before the Board, the parties further agreed that the following persons were included on Schedule

Richard Gamble

Danny Dauphenais

Todd Burch and

Ken Garside.

The parties agreed at the commencement of the hearing that Brendan Rafter was not included on Schedule "A".

3. At the commencement of argument with respect to the Report of the Labour Relations Officer it was apparent that the following persons were in dispute as to their inclusion or exclusion from Schedule "A":

William Louttit

Raymond Champagne

Ralph Alello

Garnet Boyer

Roland Cloutier

Ronald McClelland

Ralph Louttit

Frederick Buetow.

It was the position of the applicant that William Louttit, Raymond Champagne and Ronald McClelland ought not to be included on Schedule "A" primarily because they exercised manage­rial functions within the meaning of section 1(3)(b) of the Labour Relations Act. It was also the position of the applicant that Ralph Aiello, Garnet Boyer, Roland Cloutier, Ralph Louttit and Frederick Buetow ought not to be included on Schedule "A" because they were not performing bargaining unit work. It was the position of the respondent and the objectors that these eight per­sons were properly included on Schedule "A" because they performed bargaining unit work and did not exercise managerial functions within the meaning of section 1(3)(b).

4. The Board heard representations with respect to the Report of the Labour Relations Officer dated June 1, 1988. There were quite clearly contradictions and conflicts in the evidence before the Board. In assessing the evidence before it, the Board considers the onus on the parties before it with respect to whether certain employees are properly included on a list of employees and also whether employees are to be excluded from the operation of the Labour Relations Act because he or she exercises managerial functions within the meaning of section 1(3)(b) of the Act. The Board has considered the representations of the parties on these points.

5. With respect to whether certain challenged employees are properly included on a list of employees the onus of proof rests with the respondent in an application for certification. In PHI International Inc., [1980] OLRB Rep. Dec. 1789, the Board stated at pages 1795 and 1796 as fol­lows:

6. On an application for certification, the Board is required to ascertain both the number of employees in the bargaining unit employed on the application date, and the number of employ­ees who were members of the union on the "terminal date" fixed pursuant to section 92(2)(j) of the Act. An employer is required to file, in Form 51, a list of his employees. This list must be prepared under the instruction of a responsible company official who signs the list to verify its accuracy. In determining the number of employees in the bargaining unit the Board places pri­mary reliance on this material, for the number and nature of an employer's employment rela­tionships are matters which are often within its exclusive knowledge. The trade union seldom has detailed information in this regard, even though its right to certification will ultimately turn on establishing majority support among these employees. This is especially so in the construc­tion industry where employment relationships are transitory, employment levels can fluctuate on a day-to-day basis, and an employer may be engaged on a number of independent and geo­graphically separate construction sites. Unless there is an interchange of employees, of func­tional interdependence among construction sites, the union may not have specific knowledge of the employer's employee complement. In these circumstances, we do not think it is unreason­able to require an employer to come forward and substantiate its claim that certain individuals were, indeed, "employees" on the application date. Frequently, a simple check of the employ­er s records will be all that is required. Sometimes, it may be necessary to entertain oral evi­dence. In either case, however, we are satisfied that when an employer submits a list of individ­uals whom it claims are employees in the bargaining unit on the application date, it must be prepared to come forward, if challenged, and demonstrate that its list is accurate.

7. On the issue of the onus of establishing whether an employee is to be excluded from the operation of the Labour Relations Act because he or she exercises managerial functions within the meaning of section 1(3)(b) of the Act, the Board has on several occasions stated that the onus rests with the party which seeks the exclusion. In York University, [1975] OLRB Rep. Dec. 945, the Board stated at page 946:

In assessing the duties and responsibilities exercised by persons holding positions of authority the Board is cognizant of the potential for a conflict of interest that may ensue if an employer is denied the exclusive loyalty of the person whose services are the subject matter of dispute. On the other hand, the Board is also mindful that the very design of the Act is to promote collective bargaining amongst employees who fall under the umbrella of its jurisdiction. Because of the "remedial" nature of the legislation the legal onus is placed on the party seeking to exclude a person from the operation of the Act to satisfy the Board of the exercise of managerial func­tions.

In Inglis Limited [1976] OLRB Rep. June 270, the Board expressed its views at page 271 as fol­lows:

4. The Board is empowered under section 1(3)(b) to determine which employees exercise duties and responsibilities requiring, on the one hand that the employer be given their undivided loy­alty and on the other that the trade union not be weakened or compromised by their inclusion within its ranks. In the face of the hierarchical structure of many large organizations and the dependency of the more senior persons in the hierarchy on the information and input of "spe­cialists" and functional experts the section can be a most difficult one to apply especially as it pertains to so-called "middle management" and to persons who possess technical expertise. Notwithstanding the overriding concern that there be no conflict of interest the Board must be circumspect in the exercise of this discretion having regard to the fact that those who are declared to be "managerial" are denied access to the collective bargaining process. In view of this "remedial" aspect, therefore the onus is placed on the party seeking to exclude a person from the operation of the Act to satisfy the Board of the exercise of managerial functions. (See York University case [1975] OLRB Rep. Dec. 945 wherein reference is made to Ajax Pickering General Hospital case [1970] OLRB Rep. Feb. 1283).

See also to the same effect: Oakwood Park Lodge, [1982] OLRB Rep. Jan. 84 at page 87: Green

Gables Manor Incorporated, [1986] OLRB Rep. May 626 at page 631 and DRG Inc., [1986] OLRB Rep. Sept. 1210 at page 1211.

7. The evidence establishes that William Louttit, Raymond Champagne and Ronald McClelland are employed as foremen and that they wear white hats and are paid hourly rates of $14.00, $15.25 and $15.50 respectively. The issue before the Board is whether or not any of these three exercise managerial functions within the meaning of section 1(3)(b). Typically working fore­men in the construction industry are included in the bargaining unit and work with the tools and

equipment. However, on occasions the Board has determined that working foremen do exercise managerial functions. See, for example, Pre-Con Murray Limited, [1965] OLRB Rep. Aug. 328.

8. William Louttit is paid $14.00 an hour and reports to either Ron or Yvon Champagne. He has a company truck and a company credit card but does not have a company telephone calling card. He does not recommend discipline for missing employees and has never recommended that the respondent hire someone. He handles the time sheets of the employees. While he was origi­nally hired as a labourer, he has been a working foreman for about five years. Mr. Louttit spent the majority of his time operating a loader. On the balance of probabilities, the Board finds that, on the date of the making of this application, William Louttit was employed as a working foreman who worked as an operating engineers. In our opinion he does not exercise managerial authority and is therefore included on Schedule "A".

9. Raymond Champagne is paid $15.25 an hour and was hired as an operator. He is described as a working foreman. He reports to Yvon Champagne and discusses the progress of the job with him. While he can authorize overtime, there was no evidence on the circumstances under which he may do this. When Ronald McClelland has been away due to sickness he has replaced him on the job. He keeps track of the time sheets of the labourers and initials them. Raymond Champagne is responsible for seeing that jobs are fully manned. He has the use of a company truck for company use only and has a company telephone dialing card. He may spend up to one hundred dollars on behalf or the respondent without approval. While he is in charge of a job he spends ninety per cent of his time operating equipment or working as a mechanic-welder. He is described as a working foreman. Raymond Champagne has not recommended that the respondent fire some­one and is not responsible for training. He has never recommended that the respondent hire some­one and may not change assignments unless he first notifies Yvon Champagne. The Board finds on a reading of all the evidence that Raymond Champagne was employed by the respondent generally and on the date of the making of this application as an operator-mechanic-welder. In addition, the Board finds that he worked as a working foreman and that he did not exercise managerial func­tions within the meaning of section 1(3)(b). His authority appears to be limited with no appreciable opportunity to exercise independent discretion. Raymond Champagne is therefore included on Schedule "A".

10. Ronald McClelland is paid $15.50 an hour and is described by several employees who gave evidence as a foreman or a working foreman. One employee even described him as a general foreman. He has effectively recommended that someone be terminated or laid off after speaking to Yvon Champagne. The labourers are "more or less under my control" according to Mr. McClel­land. He can grant two hours off for a visit to the dentist and he has the authority to permit employees to go home at lunch tome or to go home early. He keeps the time for the flagmen/labourers and checks and initials to see if the time is correct. Labourers initially go to him with any complaint while the operators do not. He has effectively recommended the hiring of employees to Yvon Champagne. Where there is a serious problem he could be contacted and he could relay the problem to Yvon Champagne. MTC representatives would talk to him or Dan Tier. He uses a company credit card for a company truck and machines. He estimates that he sends three quarters of his time operating equipment. The Board finds that by virtue of his effective power to hire and terminate employees and by the exercise of meaningful independent discretion that Mr. McClelland exercises managerial functions within the meaning of section 1(3)(b) even though he spends three quarters of his time operating equipment. In these circumstances, Ronald McClelland is excluded from Schedule "A".

11. The Board finds that Roland Cloutier is employed as an operator and is accordingly properly included on Schedule "A". The Board further finds that Frederick Buetow was employed for less than half of his time as an operator and is accordingly properly excluded from Schedule "A". The Board also finds that Ralph Aiello operated a packer from time to time, performed lay­out work and engaged in labouring work. The evidence established that on the date of the making of this application Mr. Alello spent three hours putting out stakes, three hours parking with a vibrator and three hours assisting in the repair of the vibrator. In our view, in these circumstances, it may not be said that Mr. Alello spent the majority of his time operating a packer on the date of the making of this application because assisting in the repair of a packer does not constitute operat­ing a packer. The Board accordingly finds that Mr. Aiello is not properly included on Schedule "A" and is therefore excluded from Schedule "A". The Board further finds that Garnet Boyer was working as a labourer and not as an operator. Accordingly, Mr. Boyer is excluded from Schedule "A". The Board further finds that Ralph Louttit was not employed as an operator and is accord­ingly excluded from Schedule "A".

12. The list for the purpose of the count consists of the employees who are properly included on Schedule "A" taking into account the agreements of the parties and the determina­tions of the Board. The respondent filed a Schedule "D" containing two names as well as a Sched­ule "A". In applications for certification which are filed under the construction industry provisions of the Labour Relations Acf, the Board includes for the purpose of the count only those persons who were at work on the date of the filing of this application, namely, September 14, 1987. The two names on Schedule "D" are therefore not included for the purpose of the count. The list for the purpose of the count which has been determined as aforesaid and is now contained on the cor­rect Schedule "A" is as follows:

Rick Barber

Nathalie Bernier

Jean Bilodeau

James Blackburn

Gerald Bourdage

Todd Burch

Gerald Champagne

Raymond Champagne

Terry Champagne

Roland Cloutier

Danny Dauphinais

Rheal Dauphinais

Stephen Fawcett

Richard Gamble

Ken Garside

Gerald Hache

Robert Kennedy

William Louttit

Philip McEwen

Lorne McGonegal

Paul McMurray

Thomas Odber

Rudy Page

Nick Pariak

Leonard Poliquin

Blair St. Louis

Joseph Taylor

Edwin Wonch

Melrose Wonch.

13. In this application for certification the applicant filed thirty-one combination applica­tions for membership and receipts. The combination applications for membership are signed by the employees and the receipts are countersigned and indicate that a payment of $1.00 has been made within the six-month period immediately preceding the terminal date of the application. The money was collected by more than one person. The applicant also filed a duly completed Form 80, Declaration Concerning Membership documents, Construction Industry.

14. The applicant filed evidence of membership of the type referred to in paragraph 13 on behalf of 18 of the 29 names on the correct Schedule "A". In addition there was filed documents in opposition to this application for certification. The documents with allowance made for duplicates of signatures contain the signatures of 18 persons whose names appear on the correct Schedule "A". The applicant has field evidence of membership of the type referred to in paragraph 13 on behalf of 9 of the said 18 persons who signatures have been referred to in this paragraph. In addi­tion further documents were filed which affirmed the wish to be represented by the applicant and requested the Board to disregard any "petition" which the signatories may have signed. The degree of correspondence between the documents in opposition to this application and the "peti­tion" in favour of this application is 2 signatures. Even if the Board were to give weight to the "pe­tition" in favour of this application, there is still a sufficient overlap between the names on the doc­uments in opposition to this application and the names on the evidence of membership filed by the applicant so as to cause the Board to inquire into the origination, preparation and circulation of the documents which were filed in opposition to this application for certification.

15. The Registrar is directed to list this matter for continuation of hearing with respect to the origination, preparation and circulation of the documents filed in opposition to this applica­tion, the allegations of improper or irregular conduct, the request for relief under section 8 of the Labour Relations Act and any other outstanding issues.