[1988] OLRB Rep. September 976
2034-86-R United Brotherhood of Carpenters and Joiners of America, Local 27, Applicant v. Runnymede Development Corporation Limited, Respondent v. Labourers' International Union of North America, Local 183, Intervener
BEFORE: G. T. Surdykowski, Vice-Chair, and Board Members W. N. Fraser and C. A. Ballentine.
APPEARANCES: David McKee and Tony Bucci for the applicant; Mary Ellen Cummings and Irving Moss for the respondent; A. M. Minsky, E. Mitchell and Tony Pinto for the intervener.
DECISION OF THE BOARD; September 20, 1988
By decision dated October 6, 1987 (reported at [1987] OLRB Rep. Oct. 1305), the Board, differently constituted in part, made a number of findings and preliminary determinations with respect to this application, and authorized a Labour Relations Officer to inquire into and report to the Board with respect to the list of employees in the bargaining unit found by the Board to be appropriate for collective bargaining in this matter.
Subsequently, the applicant took issue with the Labour Relations Officer's decision to proceed with his inquiry by examining all five individuals whose inclusion on the list of employees was in dispute and requested that the Board direct him to examine only the person on whose behalf the intervener had filed membership evidence in order to enable the Board to determine whether that individual should be on the list of employees and, concomitantly, the intervener's continued right to participate in the proceeding. By decision dated December 2, 1987, the Board ruled that it would not overrule or otherwise interfere with the Officer's decision and directed that the inquiry proceed.
By letter dated May 18, 1988, the respondent requested that the Board reconsider its
October 6, 1987 decision insofar as it restricted the representations that the respondent could make with respect to the list of employees. The parties agreed that this panel of the Board should deal with the respondent's request, which had to be disposed of before the Board could hear the representations of the parties with respect to the Officer's report.
In its October 6, 1987 decision, the Board ruled that it would not permit the respondent to resile from an agreement it had made with respect to the list of employees, and, further, that it would not entertain evidence or representations from the respondent that are inconsistent with that agreement. It was that ruling which the respondent requested the Board to reconsider so that it might be permitted to make whatever representations it chose with respect to the Officer's report. The Board was also called on to determine, as a matter preliminary to hearing representations with respect to the Officer's report, whether it should determine whether the disputed individual with respect to whom the intervener had filed membership evidence was an employee in the bargaining unit on the day the application was made before addressing that issue with respect to the other four persons in dispute. The applicant took the position that the Board should do so, and submitted that if the Board found that that individual should not be included on the list of employees, the intervener would no longer be entitled to participate in the proceeding, and it would be unnecessary for the Board to consider the evidence with respect to the remaining four individuals in dispute.
Section 7 of the Labour Relations Act requires the Board to ascertain the number of employees in the bargaining unit at the time the application was made and the number of employees in the unit who were members of the trade union at the time determined under clause lO3(2)(j) (i.e. the terminal date) before proceeding to determine the applicant is entitled to be certified as the bargaining agent of the employees in the bargaining unit. In this case, the inclusion on the list of employees of all five individuals has been placed in issue in the proceeding and there is evidence with respect to all five before the Board. In our view, it is not open to the Board to ignore evidence which is clearly relevant to issues the Labour Relations Act mandates the Board must determine(see Cara Operations Limited, [1985] OLRB Rep. Apr. 523 at paragraph 8; Re Ontario Public Service Employees Union et al. and The Queen in Right of Ontario (1984) 1984 CanLII 2204 (ON HCJ), 45 O.R. (2d) 70 (Div. Ct.)). Further, although paragraph 29 of the Board's October 6,1987 decision seems, on its face, to leave open the possibility that the Board might first determine the status of~the individual on whose behalf the intervener had filed membership evidence and therefore the intervener's continued right to participate in the proceeding, and only proceed to consider the status of the remaining four individuals in dispute if the first individual is held to be an employee in the bargaining unit, it is apparent from the December 2, 1987 decision (by the same panel which made the October 6, 1987 decision) that that was not its intent since the latter decision virtually foreclosed that possibility (although it is not evident that anyone considered the December 2,1987 decision would have that result). In the result, the Board ruled (orally) that it would consider and hear the representations of the parties with respect to all five of the individuals in dispute, and determine whether or not they are employees in that bargaining unit for purposes of this application.
With respect to the respondent's request for reconsideration, the Board noted that the circumstances in this case are somewhat unusual in that the agreement from which the Board refused to permit the respondent to resile was not, as many agreements are, dispositive of an issue in the proceeding. Accordingly, and although we agree that it is generally inappropriate to permit a party to conduct itself in a manner inconsistent with an agreement that it has made, the Board determined that, in the circumstances of this case, it would be helpful to have the benefit of the respondent's unrestricted submissions. The Board therefore ruled (orally) that the respondent would be permitted to make whatever submissions it chose and that, to the extent that it was necessary to permit the respondent to do so, the Board's October 6, 1987 decision was varied accordingly. The Board then heard the representations of the parties.
In E & E Seegmiller Limited, [1987] OLRB Rep. Jan. 41, the Board commented, at paragraph 23, that:
However, it appears to us that recourse to a "representative period" has made the certification process in the construction industry less consistent, certain, and expeditious than it might be. The use of any such period is inconsistent with the requirement that a person be both employed by the respondent and at work on the date of application. The very nature of a "representative period" is such that its length will vary according to the circumstances of the particular application and creates uncertainty. Looking to a "representative period" overlooks the fact that once a trade union has been certified as bargaining agent for a bargaining unit of employees of an employer in the construction industry, any collective agreement to which that employer becomes bound, whether a provincial agreement or not, will apply to persons doing the work covered by that agreement. Consequently, whether or not an employee is covered by a particular collective agreement and represented by a particular bargaining agent depends on the work that s/he is doing at the time and is in no way dependent upon the work that s/he performed during any previous period. Further, the use of a "representative period" had tended to result in protracted and expensive proceedings before the Board. Because it is important that the Board's policies and tests be consistent and create as certain, equitable, and expeditious a means as possible for ascertaining which persons are in a bargaining unit, and having regard to the nature of applications for certification in the construction industry, we take the view that the Board should eliminate its use of a "representative period" and restrict itself to the following criteria:
(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/her 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.
(see also Gilvesy Enterprises Inc., [1987] OLRB Rep. Feb. 220 at paragraph 21).
In Darrow Developments Ltd., [1987] OLRB Rep. Oct. 1238, the Board was faced with a situation where the evidence did not conclusively establish what work an employee whose status was in dispute was performing on the date of application and therefore found it appropriate to "... consider other relevant criteria, such as his job title, purpose for hire and the kind of work that he normally performed around the time the application was made". The Board went on to find that, on the basis of that evidence, it had "... no doubt that although Mr. Gagnon may on occasion have performed work normally done by construction labourers, Mr. Gagnon was not employed as a construction labourer on March 17, 1987", which latter date was the date of application therein.
The tests suggested in E & E Seegmiller, supra (and Gilvesy, supra) have been consistently applied by the Board since those decisions issued. It is evident that the purpose for looking to other criteria when there is no conclusive evidence with respect to the work being performed on the date of application is to determine whether it is more probable than not that the individual in dispute was an employee in the bargaining unit on the date of application. The fact that "primary reason for hire" was specifically mentioned in E & E Seegmiller, supra (and in Gilvesy, supra) does not mean that that factor will necessarily be any more (or any less) significant in any given case. It is merely an example of what the Board will consider to be a relevant factor. It is unnecessary, and probably inappropriate (and impossible), to try to set out any exhaustive list of factors that the Board will consider to be relevant. What factors are relevant, and what weight is to be given to any relevant factor, will depend on the circumstances of each case. We also observe that in E & E Seegmiller, supra, and Gilvesy, supra, the Board was concerned with on site employees only. Clause 117(a) of the Act contemplates that off-site employees who are commonly associated in their work or bargaining with on-site employees will be included in a construction industry bargaining unit and a "work done on that of application test" does not seem to be suited to resolving disputes with respect to off-site employees (see Bill Brownlee Excavating Limited, [1988] OLRB Rep. Apr. 364).
The Labour Relations Officer's report contains the information upon which the Board must make its determinations with respect to whether the individuals in dispute, or any of them, should be included on the list of employees. Satisfactory or not, it is only on the evidence before it that the Board can base its decision. There was no dispute that all five individuals in question were employed by the respondent and working in the construction industry on the date of application.
It is evident that all five employees in dispute were employed as "servicemen" and that in the course of their employment they did the work of several trades, including labourers' work and carpenters' work. In its October 6,1987 decision, the Board commented, at paragraph 23, on the distinction between the labourers' work and carpenters' work:
Some of the work covered by the Housing bureau Agreement is work which can be, and is, performed by either construction labourers, or by carpenters or carpenters' apprentices; that is, it is work over which both trades assert jurisdiction. In other words, some of the work covered by the Housing Bureau Agreement can be done by either members of the United Brotherhood of Carpenters and Joiners of America, (the "Carpenters") or by members of the Labourers' International Union of North America (the "Labourers"). It is both "labourers work" and "carpenters work". In such circumstances, the work being performed cannot be determinative of the trade of the person performing it; that is, it is not work belonging to the Labourers just because a labourer is doing it, nor is it work belonging to the Carpenters just because a carpenter or carpenter's apprentice is doing it. An employee is not a construction labourer merely because s/he is doing work that a construction labourer sometimes does if carpenters also perform that work as part of their trade. Consequently, the fact that members of the intervener sometimes perform work (for the respondent) that carpenters also do does not mean that the intervener represents all carpenters employed by the respondent.
How does one determine whether an employee who is working in one trade or another in circumstances where the two trade jurisdictions overlap, as do those of construction labourer and carpenter? It is no easy matter to do so particularly when the work being performed comes within the overlap. However, the determination must be made and can only be made by considering the evidence as a whole and bringing to bear the Board's own expertise.
In this case, it was quite clear what Minuil Lima (referred to in the October 6, 1987 as Emmanuel Lima) and Michael (Mike) Robertson were doing on the date of application. It is evident, and was virtually conceded by the applicant, that Lima spent the majority of his time on the date of application doing carpentry work, specifically applying 2 x 4 strapping and plywood to the top of a building at Gerrard Street East and Victoria Park Avenue, and that he should therefore be included on the list of employees. It was also evident that, although Robertson spent a portion of his time measuring and cutting plywood for Lima to apply, he spent the majority of his time on the date of application assisting Lima by handling the material for him in a manner similar to that of construction labourers who work in a mixed crew with carpenters. Accordingly, the Board was satisfied that Robertson was not doing work in the bargaining unit applied for herein on the date of application.
Unfortunately, the evidence was less satisfactory with respect to Tony laccino, Andy Campbell, and Sam Primerano, the remaining three employees in dispute. There is no doubt that laccino, Campbell and Primerano all did some carpentry work in the c;ourse of their employment. It is evident, however, that Primerano did relatively little such work, that he was not hired to do such work, that he was paid well below the rate being paid to carpenters at the time, and that he did not consider himself to be a carpenter. His job was primarily to "clean up" newly built houses. Accordingly, the Board was satisfied, on the evidence before it, that it was highly improbable that Primerano was an employee in the bargaining unit on the date of application. Similarly, Campbell thought of himself as a labourer, was paid at far below the wage rate being paid to carpenters, and did not normally do much carpentry work. In the Board's view, Campbell was not an employee in the bargaining unit on the date of application either.
laccino presented the most difficult question for the Board. It seems that he was somewhat more skilled than Campbell and Primerano, which is reflected in the higher wage rate that he received. However, his wage rate seems to have been significantly lower than that paid to carpenters at the time and he was not hired as a carpenter. Finally, although his subjective view was that he possessed similar skills to those of Lima, the Board was not satisfied, on the evidence before it, that it was more probable than not that Laccino was doing carpentry work on the date of application. Accordingly, the Board found that laccino was not an employee in the bargaining unit on the date of application.
In the result, the Board ruled (orally) that, of the five individuals in dispute, one, Minuil Lima, was an employee in the bargaining unit on the date the application was made and that the other four, Andy Campbell, Michael Robertson, Sam Primerano, and Tony laccino were not. The Board therefore determined that there were three employees in the bargaining unit on the date of application:
Brian Bursey
Minuil Lima
Scott Wells
In support of its application for certification, the applicant filed documentary evidence of membership consisting of two Certificates of Membership. Both certificates are checked and certified correct by an officer of the applicant and indicate that the individuals on whose behalf they have been filed were members of the applicant on the terminal date fixed for the application. The applicant also filed a Form 80, Declaration Concerning Membership Documents, Construction Industry, attesting to the regularity and sufficiency of its membership evidence.
The Board was 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 unit at the time the application was made were members of the applicant on October 28, 1986, the terminal date fixed for the application and the date which the Board determines, under clause 103(2)(j) of the Labour Relations Act, to be the time for the purpose of ascertaining membership under subsection 7(1).
Subsection 144(2) of the Act provides for the issuance of more than one certificate if the applicant has the requisite membership support. Therefore, pursuant to subsection 144(2) of the Act, a certificate will issue to the applicant affiliated bargaining agent on its own behalf and on behalf of all other affiliated bargaining agents of the employee bargaining agency named in paragraph 1 of the Board's October 6, 1987 decision herein in respect of al][ carpenters and carpenters' apprentices, in the employ of the respondent in the industrial, commercial, and institutional sector of the construction industry in the Province of Ontario, save and except non-working foremen and persons above the rank of non-working foreman.
Further, and also pursuant to subsection 144(2) of the Act, a certificate will issue to the
applicant trade union in respect of all carpenters and carpenters' apprentices in the employ of the respondent in the Municipality of Metropolitan Toronto, the Regional Municipalities of Peel 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, in the Towns of Ajax and Pickering, in the Regional Municipality of Durham, excluding the industrial, commercial and institutional sector, save and except non-working foremen and persons above the rank of non-working foreman.