[1988] OLRB Rep. July 645
1797-87-R International Union of Operating Engineers, Local 793 v. Bill Brownlee Excavating Limited, Respondent
BEFORE: Harry Freedman, Vice-Chair, and Board Members W. Gibson and D. A. Patterson.
DECISION OF HARRY FREEDMAN, VICE-CHAIR AND BOARD MEMBER W. GIBSON; July 21, 1988
Counsel for the applicant, by letter dated June 9, 1988, requests reconsideration of the Board's decision in this matter dated April 28, 1988 [[1988] OLRB Rep. April 364] wherein it directed a representation vote. Counsel for the applicant submits that the Board's finding that two equipment mechanics were employees in the bargaining unit on the application date was inconsistent with the Board's decisions in J & M Chartrand Realty Limited, [1978] OLRB Rep. May 423 and 590308 Ontario Inc., unreported, November 26, 1987. The Board in its decision of April 28, 1988 reviewed and considered both of those decision and for the reasons set out in its April 28, 1988 decision found "... that the mechanics who regularly perform both repair work at the construction site and in the shop are commonly associated in their work with on-site employees". Thus, the Board concluded that the two mechanics were employees in the bargaining unit on the application date.
That conclusion differed from the result in 590308 Ontario Inc., supra. The Board in that case, in finding that the three mechanics in question should not be included in the construction industry bargaining unit, relied on the fact that two of the three mechanics who were in dispute worked on a construction site once a week and spent an overwhelming majority of their work hours in the shop. The Board also wrote, in respect of the third mechanic in dispute,
'... Although Mr. Holm goes into the field more frequently, and spends a greater proportion of his time away from the repair shop, he is nevertheless one of the respondent's group of three mechanics who, in our view, would be more appropriately included in an industrial bargaining unit (along with their helper, whose name does not appear on the employer's list) than in a unit with on-site construction employees."
It is not clear from that decision whether the third mechanic, Mr. Holm, merely spent more time on a construction site than the other two mechanics, or spent a majority of his work time on a construction site. Also, the Board's decision that it would be more appropriate to include that third mechanic with the two shop mechanics and to exclude all three mechanics from the construction bargaining unit is simply stated as a conclusion that the three mechanics "would be more appropriately included in an industrial bargaining unit ..." without referring to any factual basis for coming to that conclusion.
Counsel for the applicant also submitted that the Board erred in finding that the respondent operates a repair shop which employs only mechanics who are regularly and routinely dispatched to construction sites. Counsel submits that the Board was incorrect because other employees who report to and work out of that repair shop were excluded from the bargaining unit and cited the example of Lucien Beauregard. Those employees who were excluded from the bargaining unit for purposes of the count were not mechanics employed in the construction industry on the date of application. Mr. Beauregard, the example relied on by counsel for the applicant, was excluded from the bargaining unit because, on the application date he was operating a power sweeper and was not performing construction work.
Counsel also submitted that the Board's decision was inconsistent with the principles set out in E & E Seegmiller Limited, [1987] OLRB Rep. Jan. 41, Gilvesy Enterprises Inc., [19871 OLRB Rep. Feb. 220 and Delco Contractors, [19871 OLRB Rep. June 830. Counsel submitted that although the Board purported to apply the principle that the date of application is the determinative date in deciding whether someone is an employee in the bargaining unit, the Board's decision to include Ken Hart Sr. as an employee for purposes of the count is contrary to that principle as he was a mechanic who worked only in the shop on the application date.
The principle set out in Gilvesy Enterprises Inc., supra, F & E Seegmiller Limited, supra, and Delco Contractors, supra, is used to determine whether an employee is included in the bargaining unit for purposes of the count. It is not used to define the description of the appropriate bargaining unit. In this case, the bargaining unit encompassed employees who are primarily engaged in the repair and maintenance of construction equipment on site and included off-site employees who are commonly associated in their work with on-site employees by applying section 117(b) of the Act. As the Board pointed out in paragraph 26 of its April 28, 1988 decision, employees who regularly work both in a shop and on-site are commonly associated in their work with on-site employees.
That determination of the bargaining unit description having been made, the Board applied the principles set out in Gilvesy Enterprises Inc., E & E Seegmiller Limited, and Delco Contractors, to decide which employees were in the bargaining unit on the date of the making of the application. Since Mr. Hart Sr. was working as a mechanic who regularly did his work both in the shop and on-site, repairing and maintaining construction equipment on the date of the making of the application, he was included on the list of employees notwithstanding that on the application date, he did not actually work on-site.
In its April 28, 1988 decision the Board set out at paragraphs 32 and 33 the factual basis
for concluding that it was appropriate to include the mechanics in the construction industry bargaining unit. We do not accept that our decision conflicts with the Board's decision in 590308 Ontario Inc. which came to the opposite conclusion since no reference to the factual basis for that conclusion is contained in that decision. Also, the Board's decision of April 28, 1988 referred to and applied Esam Construction Limited, [1980] OLRB Rep. Feb. 197, which was decided after J & M Chartrand Realty Limited, supra. Both J & M Chartrand Realty Limited and 590308 Ontario Inc. made no reference to section 117(b) of the Act and 590308 Ontario Inc., supra, which relied on J & M Chartrand Realty Inc. also did not refer to Esam Construction Limited, supra, or the other decisions interpreting section 117(b) which were cited at paragraph 26 of the Board's April 28,1988 decision.
Counsel for the applicant has not persuaded us that our April 28, 1988 decision was incorrect. For reasons set out above and for the reasons expressed in our April 28, 1988 decision, we are satisfied that our decision in this matter did not depart from the principles expressed in Gilvesy Enterprises Inc., E & E Seegmiller Limited, and Delco Contractors. Additionally, we are satisfied that on the facts before us, the two mechanics in dispute were properly included in the bargaining unit for purposes of the count.
For the foregoing reasons, the application for reconsideration is hereby dismissed.
Counsel for the respondent filed written submissions responding to the applicant's request for reconsideration after the majority had written its reasons dismissing the application for reconsideration. The majority, in reaching its decision in this matter, did not consider the submissions filed by counsel for the respondent.
DECISION OF BOARD MEMBER D. A. PATTERSON; July 21,1988
I dissent from the majority's decision to deny the reconsideration request filed by the applicant union, the International Union of Operating Engineers, Local 793.
I did agree with the Board decision on which the applicant is filing its request for reconsideration because I believe section 117's interpretation by the Board,
In this section and in sections 118 to 136,
(b) "employee" includes 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;
would properly include Ken Hart Sr. an Athanasios Tsaussis in the unit applied for collective bargaining.
My reasons for granting a reconsideration by the applicant would be based on a number of factors which would allow a full airing of the reconsideration and possibly have a different effect on the outcome of the original decision of the Board.
The reconsideration should be granted because I believe both mechanics in question fall into a primary job classification of shop mechanics. The applicant over the years has developed a customary craft bargaining unit for which it makes application. This unit description has been accepted in industry over the years as the acceptable normal bargaining unit for the applicant. Evidence during the hearing revealed that both mechanics are dispatched from the shop to the respective job sites and remain in the shop to maintain and do larger repair work.
The practical side of this reconsideration is what makes good industrial relations sense in this case. That, simply put, would mean we would recognize two distinct units, one for shop mechanics and secondly one unit for site mechanics. The preamble to the Act states clearly this is the purpose of the Act and to a large extent this is what has happened over the years. Both interest groups have enjoyed the arrangement over the years with very little disruption in the province.
If this tribunal is to inject into the labour relations community some sense of harmonious industrial relations which make sense to the respective parties who seek certification under the Act, then I believe the norm is the acceptable panacea to this application for reconsideration.
While the respondent may not be experienced in resolving bargaining unit descriptions the applicant did not attempt to change or alter its normal bargaining unit description. Failing this reconsideration the Board may open an entirely new approach to applications for certification in the construction industry.
Counsel for the applicant has cited various jurisprudence which speaks for itself. Unfortunately, the jurisprudence cited by the respondent is just as convincing. The Board policy was amended in 1987 from a representative period to the date of application in the construction industry. However, section 117(b) only lends itself to complicate that policy in determining what or who should be in the unit most appropriate for collective bargaining.
Finally, I would grant the reconsideration based on the jurisprudence, which has determined the same issue different in various cases. Having regard to that balance the Board should impose some practical labour relations logic.