International Union of Operating Engineers, Local 793 v. Dibblee Construction Limited, 1988 CanLII 3697

[1988] OLRB Rep. May 483

0351-87-R International Union of Operating Engineers, Local 793, Applicant v. Dibblee Construction Limited, Respondent, v. Labourers' International Union of North America, Local 247, Intervener

BEFORE: R. A. Furness, Vice-Chair, and Board Members W. Gibson and R. Montague.

APPEARANCES: Bernard Fishbein and Graham Steers for the applicant; Joseph Liberman and Larry Corlyon for the respondent; no one for the intervener.

DECISION OF R. A. FURNESS, VICE-CHAIR AND BOARD MEMBER W. GIBSON; May 19, 1988

1. This is an application for certification which has been filed under the general provisions of the Labour Relations Act and has reference to the asphalt plant operations of the respondent.

2. The Board finds that the applicant is a trade union within the meaning of section l(l)(p) of the Labour Relations Act.

3. Having regard to the agreement of the parties, the Board further finds that all employ­ees of the respondent in the Township of Kingston, save and except non-working foremen, persons above the rank of non-working foreman, office, clerical and engineering staff and persons for whom any trade union held bargaining rights on May 5,1987, constitute a unit of employees of the respondent appropriate for collective bargaining.

4. There was a dispute between the applicant and the respondent with respect to the num­ber of employees in the bargaining unit. It was agreed that the following four employees are prop­erly included in the bargaining unit:

Jack Walker Mechanic Franklin Leach Lead Hand Jack Walker, Jr. Plant Mixer Man Charles Wiskin Leader Operator Asphalt Plant

The parties were not in agreement with respect to whether or not the following employees were to be included in the bargaining unit:

Rene Boulianne

Wally Curtis

Garnet England

Ray Harpell

A.D. Houle

J.P. Ouimet

It was the position of the applicant that these six persons were included in the bargaining unit. The respondent adopted the position that Rene Boulianne was not at work in the shop or plant and that four of the other five persons were covered by a collective agreement (the "Kingston area agree­ment") which will be referred to subsequently. With respect to A.D. Houle, it was the position of the respondent that he was covered by a collective agreement (the "National Capital Roads Build­ers Association") which will also be referred to subsequently.

5. At the hearing neither the applicant nor the respondent called witnesses. The applicant and the respondent, however, presented an agreed statement of fact with respect to Messrs. Curtis, England, Harpell, Houle and Ouimet. Facts were presented to the Board with respect to Mr. Boulianne. Both parties apparently surmised that the dispute regarding the number of employees in the bargaining unit for the purpose of the count would be decisively settled by a determination of whether Messrs. Curtis, England, Harpell, Houle and Ouimet were or were not to be included on the list for the purpose of the count. The agreed statement of fact is now set forth.

6. The respondent has three operations which are (i) a quarry operation, (ii) a plant/shop operation, and (iii) a construction operation. The respondent is bound by the Kingston area agree­ment for its construction operation and this agreement has been renewed. As the road building season comes to an end, employees who are covered by the Kingston area agreement are placed on layoff between the middle and end of October. With the coming of Spring these employees are called back to work some time during the period from the end of March to the beginning of April or even May. These employees do not go back immediately on the road. They are engaged in pre­paring ("prepping") the machines and equipment that they will use in road building. The Kingston area agreement provides in article 3.08 for the recall of such employees after a seasonal layoff. Four of the five employees referred to in paragraph 5 - Messrs. Curtis, England, Harpell and Oui­met were recalled by the respondent at the beginning of May of 1987 and were given clearance cards and dispatched by the Belleville office of the applicant. The employees in dispute have been paid at all times in accordance with the wage scales outlined in the Kingston area agreement and dues, benefits and remittances of these employees have been made in accordance with the King­ston area agreement. This has been the practice since at least 1981. The work performed by these employees at the time in question was work which could be characterized as preparatory work on machines and equipment to be used by these employees on road building. Mr. Houle is in a some­what different position in that his classification as a welder is set out on his clearance card and relates to classifications specified in the Kingston area agreement. However, with his classification as a welder he was paid under the National Capital Road Builders Agreement (the "National Capi­tal agreement"). Mr. Houle was dispatched from the Ottawa office of the applicant and his clear­ance card has marked on it "recall". Mr. Houle has attached an authorization for union dues and benefits under the National Capital agreement and for other union dues and benefits under the Kingston area agreement. The work in Kingston being done by these employees was not being per­formed at a road site but rather at the respondent's plant/shop. The employees other than Mr. Houle form part of the construction crew. They were working on machines and equipment that the construction crew would use, that is to say, that the construction crew was preparing machines and equipment to be used by the construction crew. Mr. Boulianne was not present on the date of the making of this application but he falls into the same category as the other employees and was clas­sified as a truck driver - tagalong. He would be employed seasonally, is laid off and is paid and dealt with by the respondent in accordance with the Kingston area agreement. On the date of the making of this application Mr. Houle was not welding a piece of equipment but was welding on the asphalt plant which produces asphalt for the construction season. The other employees were work­ing on a tagalong trailer which would be used by the construction crew. The classifications on the clearance cards match classifications on the Kingston area agreement. The applicant has never pos­itively asserted that the Kingston area agreement applies to the plant/shop operation.

7. It is the position of the applicant that the employees in dispute are not covered by the Kingston area agreement and are appropriate for inclusion in the bargaining unit defined in para­graph three. The respondent takes the position that the employees in dispute are covered by the Kingston area agreement and are therefore not properly included within the bargaining unit defi­ned in paragraph three.

8. The applicant argued that there had been merely a unilateral application or observance of the Kingston area agreement by the respondent and that the mere observance of a collective agreement did not create a collective agreement. The applicant further argued that there was noth­ing in the Kingston area agreement which related to the plant/shop. The applicant also referred to the language in the National Capital agreement and a collective agreement between the applicant and the respondent with respect to the Board's geographic area number 31 - the United Counties of Dundas, Stormont and Glengarry.

9. The respondent argued that its conduct with respect to the Kingston area collective agreement did not constitute unilateral adherence. The respondent further argued that the employ­ees in dispute were not shop mechanics but were rather operating engineers working on machines for a very narrow period of time and were covered by the Kingston area agreement. The respon­dent referred to the terms of the Kingston area agreement and the course of dealings involving the parties and the employees who are in dispute since 1981.

10. The mere fact that the terms of a collective agreement such as wage rates and dues deductions are applied to certain employees does not in itself establish that such employees are covered by a collective agreement. In addition, such facts do not mean a trade union has bargain­ing rights for such employees. See Ecodyne Limited, [1979] OLRB Rep. July 629 and City of Kitchener, [1983] OLRB Rep. Sept. 1490. Moreover, an employee can only be in one bargaining unit at any specific point in time. See Laurent Lamoureux Co. Ltd., 11985] OLRB Rep. Nov. 1618. The cases which were cited by the applicant supported its argument that the mere unilateral appli­cation or observance of a collective agreement did not create a collective agreement. The Board agrees with these principles. However, the cases relied upon by the applicant were premised upon situations where one of the parties was not actually a signatory or bound by the operation of law to a collective agreement. In the instant application, the Board is not asked to consider active behav­iour by one party and passive behaviour by another party. In the instant application the Board is asked to consider the interpretation of a collective agreement which has been executed by the applicant and the respondent. The issue before the Board therefore is not one of active and passive behaviour but rather one of the interpretation of a collective agreement to which the applicant and the respondent are both signatories. The applicant made comparisons between the Kingston area agreement on the one hand and the National Capital agreement and the collective agreement for the Board's geographic area number 31 on the other hand. The Board in the instant application is interpreting the Kingston area agreement and the provisions of the other two collective agreements are irrelevant.

11. Articles 1, 2 and 3.8 of the Kingston area agreement provide as follows:

ARTICLE I - PURPOSE

The purpose of this agreement is to establish wages, hours of work, and other working condi­tions within the sector or sectors of the Construction Industry in which the Employer partici­pates, save and except on Excavations, Site Preparation, Sewer and Watermain work, and Projects governed by EPSCA Agreements, as referred to in Article 23.

ARTICLE 2- RECOGNITION AND SCOPE

The Company recognizes the Union as the sole collective bargaining agency for all its employees employed in the County of Lennox and Addington, the County of Frontenac and the Townships of Rear of Leeds and Landsdowne, Rear of Yonge and Escott, and all lands south thereof in the United Counties of Leeds and Grenville, and in Prince Edward County and the Townships of Lake, Tudor and Grimsthorpe and all lands south thereof in the County of Hastings, and the Townships of Percy and Cramahe and all lands east thereof in the United Counties of North­umberland and Durham save and except non-working foremen and persons above the rank of non-working foremen, office and clerical engineering staff and employees employed at the employer's quarry, shop and plant operations.

ARTICLE 3- UNION SECURITY AND CHECK-OFF OF UNION DUES

3.8 The employer agrees before recalling to work their present employees after a seasonal layoff, to refer them to the Union Office or Union Representative concerned.

Article 14 sets forth wages and classifications. Article 15 provides for hours of work and overtime and specifically refers to road building. Article 17 provides for reporting time and article 18 pro­vides for travel time and expense allowance. Article 21.3 provides as follows:

ARTICLE 21- SENIORITY

21.3 Continuous service shall be considered as broken under the following circumstances:

b) Senior employees shall not displace junior employees during temporary lay-offs due to equipment being repaired at the shop during months other than December, January, February and March,

12. Continuity of employment with one employer over a period of years is not a normal

occurrence in the construction industry. However, in certain types of construction activity such as road building, it is not uncommon for employees to return annually to the same employer for the seasonal work of road building. Since at least 1981, the employees who are in dispute have returned to employment with the respondent and were given clearance cards and dispatched by the applicant. One of the clearance cards, indeed, even has the word "recall" written opposite the heading "Remarks". The Kingston area agreement by its terms applies to the construction industry and there can be no doubt that it applies to the road building operations of the respondent in the Board's geographic areas number 12 and 29.

13. The provisions of the Kingston area agreement are clearly relevant to the seasonal and ongoing nature of the employment by the respondent and its construction crews. The conduct of the respondent in recalling employees, the conduct of the applicant in issuing clearance cards to them and the observance of the terms and conditions of the Kingston agreement as recited to the Board and the fact that the applicant has never positively asserted that the Kingston area agree­ment applies to the plant/shop operation of the respondent all clearly establish the positions of the applicant and the respondent as being that the employees who were engaged in preparation work were treated and regarded as working in the construction industry and not as shop/plant employees accordingly covered by the terms of the Kingston area agreement. These employees are in truth construction employees who are initially employed as operating engineers on machines for a nar­row period of time.

14. The applicant also referred the Board to three cases in support of an argument that the Board has always treated separately shop employees from construction activities and has issued non-construction certificates for such shop employees. It is true that separate certificates have gen­erally issued with respect to such construction and non-construction activities. However, it is quite another matter to determine which employees properly fall within a given bargaining unit. It such a determination which has involved the Board in this application in the light of the language of an existing collective agreement. The applicant referred the Board to Fielding Construction Company Limited, [1970] OLRB Rep. Jan. 1205; H.J. MacFarland Construction Company Limited, [1969] OLRB Rep. Feb. 1130; J. & M. Chartrand Realty Limited, [1978] OLRB Rep. May 423; and 590308 Ontario Inc., (Board File No. 0915-87-R, unreported decision dated November 26, 1987). The Board observed that the first two decisions were decided prior to The Labour Relations Amendment Act, 1970 (No. 2), S.O. 1970, c.85, s.39. The significance of this amendment was noted by the Board in Esam Construction Limited, [19801 OLRB Rep. Feb. 197 where the Board stated at page 202:

15. The Board now considers the list of employees for the purpose of the count. Prior to the enactment of The Labour Relations Amendment Act, 1970 (No. 2), S.O. 1970, c.85, s.39, the Board excluded shop and yard and other off-site employees from bargaining units which were determined in applications for certification filed under the construction industry provisions of The Labour Relations Act. The enactment in 1970, however, introduced a broad definition of "employee" in the construction industry. This definition appears in section 106(b) of the Act. Section 106(b) states [now section 117(b)]:

"In this section and in sections 107 to 124 [now sections 118 to 1361,

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

employees."

24. In the Taggart Construction Limited case, [1974] OLRB Rep. March 190; and the C.A. Pitts Engineering Construction Ltd. case, [1973] OLRB Rep. Feb. 123, the Board considered the pro­visions of section 106(b) [now section 117(b)]. In those two cases the Board determined that if off-site employees were only rarely, uncommonly and briefly required to work on-site they were not appropriate for inclusion with on-site employees. In the instant application Mr. Chelchowski and Mr. Dunham were not working on the construction site on April 2, 1979. However, these two employees clearly do spend time on the construction site on other days on a regular basis and the Board finds that they are commonly associated in their work with on-site employees within the meaning of section 106(b). The Board therefore includes Mr. Chelchowski and Mr. Dunham on the list for the purpose of the count because they are engaged in either operating or repairing equipment referred to in the bargaining unit.

25. Section 117(b) [formerly section 106(b)j had not been enacted when the first two cases referred to by the applicant were decided. The second two cases were decided after the introduc­tion of section 117(b). However, these two cases did not refer to the application of the provisions of section 117(b) on the facts in those cases.

26. The Board finds that Wally Curtis, Garnet England, Ray Harpell and J. P. Ouimet are covered by the Kingston area agreement and are therefore not included in the bargaining unit defi­ned in paragraph three. The Board further finds that A. D. Houle is covered by the National Capi­tal agreement and is therefore not included in the bargaining unit defined in paragraph three. On the limited evidence before it, the Board finds that Rene Boulianne is also covered by the Kingston area agreement and is also therefore not included in the bargaining unit defined in paragraph three.

27. The list for the purpose of the count consists of the following employees:

Jack Walker

Franklin Leach

Jack Walker, Jr.

Charles Wiskin

The applicant has filed evidence of membership of the type referred to at the hearing on behalf of two of these four employees.

18. The Board is satisfied on the basis of all the evidence before it that not less than forty-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 May 19, 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.

19. A representation vote will be taken of the employees of the respondent in the bargain­ing unit. All those employed in the bargaining unit on the date hereof, who are so employed on the date the vote is taken will be eligible to vote.

20. Voters will be asked to indicate whether or not they wish to be represented by the appli­cant in their employment relations with the respondent.

21. The matter is referred to the Registrar.

DECISION OF BOARD MEMBER RENE R. MONTAGUE; May 19, 1988

1. I totally disagree with the majority decision in this case, especially at paragraph 10 of the decision, which I quote:

In the instant application the Board is asked to consider the interpretation of a collective agreement which has been executed by the applicant and the respondent. The issue before the Board therefore is not one of active and passive behaviour but rather one of interpretation of a collec­tive agreement to which the applicant and the respondent are both signatories.

How the majority can put an interpretation on Article 2, Recognition and Scope paragraph 11 in the majority decision is uncomprehendable, when the scope clause clearly excludes the following, and I quote:

Save and except non-working foremen and persons above the rank of non-working foremen, office and clerical engineering staff and employees employed at the employer's quarry shop and plant operations.

[emphasis added]

2. With the wording in this case in the Recognition and Scope Article, I strongly believe no other interpretation can be placed on the wording but one of exclusion from the Kingston area agreement. Therefore, I would have included Wally Curtis, Garnet England, Ray Harpell and J.P. Ouimet in the bargaining unit in this application, as they were:

(a) employees of the respondent on the date of application; and

(b) were working for the respondent at the employer's quarry shop and plant operations, and may well have been preparing or fixing their equipment.

Further, one employee on the date of this application Mr. Houle was not welding on any equip­ment, but was welding on the asphalt plant and I would have found him included in the bargaining unit defined in the majority decision in paragraph 3 and taken whatever action necessary as a result of this application taking the above into consideration.