Sheet Metal Workers International Association, Local 30 v. Rainscreen Metal Systems Incorporated, 1988 CanLII 3711

[1988] OLRB Rep. November 1180

2436-87-R; 2505-87-U Sheet Metal Workers International Association, Local 30, Applicant/Complainant v. Rainscreen Metal Systems Incorporated, Respondent

BEFORE: Ken Petryshen, Vice-Chair, and Board Members D. A. MacDonald and C. A. Ballentine.

APPEARANCES: Elizabeth Mitchell, Jim Moffatt and Duane Wells for the applicant/complainant; Karen J. Weinstein and John Bierma for the respondent.

DECISION OF THE BOARD; November 3, 1988

1. The Board has two matters before it. Board File No. 2436-87-R is an application for certification made pursuant to the construction industry provisions of the Labour Relations Act. If necessary, the applicant seeks relief under section 8 of the Act. Board File No. 2505-87-U is a com­plaint under section 89 of the Act which the applicant relies upon in support of its section 8 request.

2. These matters and others initially came on for hearing on February 8, 1988, before another panel of the Board. An application under section 63 and subsection 1(4) of the Act was withdrawn at that time and the parties involved in that application withdrew from the proceeding. Although a petition had been ified, no one appeared on behalf of the objecting employees at the hearing on February 8, and the panel hearing this matter determined it would give no weight to the petition. Given these developments, the proceeding continued with only the Sheet Metal Workers International Association, Local 30 ("Local 30") as the applicant/complainant and Rainscreen Metal Systems Incorporated ("Rainscreen") as the respondent.

3. In its decision of February 16, 1988, the Board determined that the applicant is a trade union and an affiliated bargaining agent of a designated employee bargaining agency. The Board further found the following bargaining unit constitutes a unit of employees of the Rainscreen appropriate for collective bargaining:

all journeymen and apprentice sheet metal workers in the employ of the respondent Rainscreen in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario and all journeymen and apprentice sheet metal workers in the employ of the respondent Rain-screen in all other sectors of the construction industry in the Municipality of Metropolitan Toronto, the Regional Municipalities of Pee] and York, the Towns of Oakville and Halton Hills and that portion of the Town of Milton within the geographic Townships of Esquesing and Trafalgar, and the Towns of Ajax and Pickering in the Regional Municipality of Durham, save and except non-working foremen and persons above the rank of non-working foreman.

For purposes of clarity, the Board notes that employees working as sheeters, sheeters' assistants and material handlers are employees in the bargaining unit.

4. In its decision of February 16, 1988, the Board appointed a Labour Relations Officer to inquire into the list of employees in the bargaining unit and report back to the Board for the pur­pose of enabling the Board to determine whether eleven persons were employees of Rainscreen working in the bargaining unit on the application date. Pursuant to his appointment, the Board Officer met with the parties on May 24 and on June 3 and 7, 1988, proceeded to examine ten per­sons. When the examination continued on June 8, 1988, the applicant called three witnesses and the respondent called one.

5. A copy of the Board Officer's Report (the "Report") was sent to each of the parties, together with a (Form 68) Notice of Report of Labour Relations Officer. Counsel for each party submitted written representations with respect to the conclusions the Board should reach in view of the Report and requested a hearing. On September 27 & 28, 1988, a hearing was conducted to entertain the representations of the parties regarding the Report. The parties were in agreement that it would be appropriate to resolve the issues raised in the Report before proceeding to address the remaining outstanding issues.

6. At the outset of the hearing on September 27, counsel for Rainscreen requested that the Board take a view of the job site that was the focus of much of the evidence contained in the Report. Counsel for Local 30 objected to the Board taking a view. After entertaining the parties' submissions on this issue and after recessing to consider the matter, the Board advised the parties orally at the hearing that it was not satisfied that this was an appropriate case for exercising its dis­cretion in favour of taking a view.

7. At the hearing before the previous panel, the applicant challenged six persons on vari­ous grounds set out at paragraph 12 of the Board's decision dated February 16, 1988. At the begin­ning of her argument, counsel advised the Board that Local 30 was withdrawing its challenge to Michael Sanderson and that the basis for the challenges to the remaining five persons was nar­rower. Accordingly, the argument proceeded on the basis of Local 30's challenges to David Mokry, Guy Simmons, Lyman Verge, Paul Verge and Frederick Willey.

8. The Board has carefully reviewed the Report, the parties' submissions and the relevant jurisprudence. Since the parties have the Report, we do not propose to set out in detail the evi­dence contained therein.

9. Rainscreen is engaged in the retrofit of wall facings and window openings. The employ­ees working for Rainscreen utilize materials such as steel, siding, coping and flashing. On the date of the application, Rainscreen had employees working at two job sites, the main one being the Strathcona Hotel. It also had employees working at its shop located at the King Sideroad in Rich­mond Hill.

10. Local 30 challenged D. Mokry on the basis that he did not perform work for Rainscreen on December 3, 1987. Mokry, who has been employed by Rainscreen for approximately 1'/2 years, indicated during his examination that he did perform work for Rainscreen at the Strathcona Hotel on December 3 falling within the bargaining unit description. He testified that he did not work a full shift that day since a company Christmas party was held that evening and all of the employees who normally worked at the Strathcona Hotel site left early. Mokry could not recall a lot of the details about his work on December 3, but this is not surprising given the timing of his examina­tion. At least two other persons examined had some recollection of Mokry's presence on the job site that day. Although some persons examined indicated that they did not see Mokry at work that day, we are unable to conclude from the evidence that he was not there. Mokry's time card dis­closes that he worked 6 hours at the Strathcona Hotel on December 3. In reviewing all of the evi­dence contained in the Report, the Board finds that Mokry did perfo:rm bargaining unit work for Rainscreen on December 3, 1988 and, therefore, his name is appropriately included on the list of employees.

11. The remaining four challenges are persons who perform wo:rk, although not exclusively, in Rainscreen's shop. On December 3, 1987, Paul Verge, Guy Simmons and Frederick Wiley started their workday at the shop. Since he had a medical appointment, Lyman Verge did not attend at the shop on December 3 and did not intend to work on that day. Rainscreen's position and the evidence of these four individuals, which Local 30 disputed, is that these four individuals did perform work for Rainscreen falling within the bargaining unit at the Strathcona Hotel on December 3. Rainscreen maintains that it was necessary to call these persons to work at the Strath­cona Hotel since the employees who would normally work a complete shift at that site on that day left the job site prior to the completion of their shift due to the Christmas party. Rainscreen also takes the position, also disputed by Local 30, that the shop employees in any event are included in the bargaining unit since they are commonly associated in their work with on-site employees.

12. Having reviewed all of the evidence contained in the Report, the Board is satisfied that the employees who work in Rainscreen's shop are commonly associated in their work with on-site employees and, therefore, they fall within the bargaining unit description. With very limited excep­tion, the materials which are utilized by Rainscreen on its construction sites are fabricated in its shop. The majority of the work of the employees who perform work in the shop involves bending flashing and the fabrication of other metal products destined for a particular Rainscreen project. The employees who work in the shop do not do so exclusively. Although there is some dispute as to whether the shop employees worked at the Stratheona Hotel site on December 3, 1987, we are satisfied from the evidence in the Report that the employees who work in the shop frequently work on construction sites performing bargaining unit work. Guy Simmons and Frederick Willey work in the shop when the production demands in the shop require their presence and otherwise work on Rainscreen's construction sites. Paul Verge spends most of his time in the shop but he performs work on construction sites as well. Section 117(b) of the Act defines a construction employee as including "an employee engaged in whole or in part in off-site work but who is commonly associ­ated in his work or bargaining with on-site employees". Given this definition and the facts before us, the Board finds that Paul Verge, Guy Simmons and Frederick Wiley, the three persons who at least worked in the shop on December 3, were in the bargaining unit on December 3, 1987. See Bill Brownlee Excavating Limited, [1988] OLRB Rep. Apr. 364 and Esam Construction Limited, [1980] OLRB Rep. Feb. 197. Given this finding, it is unnecessary to decide whether Paul Verge, Frederick Willey and Guy Simmons worked at the Strathcona Hotel site on December 3, 1987.

13. We are left with the issues of whether Lyman Verge worked on December 3 and, if he did, whether he performed bargaining unit work. The Board has reviewed the evidence relevant to these issues and has determined that Lyman Verge did attend the Stratlicona Hotel site on Decem­ber 3, 1987 and that he did not work at the shop on that day. However, it is impossible from the evidence of the Report to conclude that Lyman Verge performed bargaining unit work that day. Lyman Verge had no recollection of what he did that day, nor was there any reliable evidence from other sources regarding the work, if any, that Lyman Verge performed on that day. Accordingly, the Board finds that Lyman Verge did not perform bargaining unit work for Rainscreen on the application date and, accordingly, his name should not appear on the list of employees for pur­poses of the count.

14. Of the six original challenges made by the applicant, the Board finds that Michael Sanderson, David Mokry, Guy Simmons, Paul Verge and Frederick Willey were employees of Rain-screen working in the bargaining unit on the application date and that Lyman Verge was not work­ing in the bargaining unit for Rainscreen on the application date. The final resolution of the list of employees depends on the Board's determination of Local 30's section 89 complaint. The out­standing matters are scheduled to be heard by the Board on November 21, November 23. Decem­ber 12, 1988 and January 16, 1989.