Labourers' International Union of North America, Local 493 v. McEndon Limited

[1988] OLRB Rep. August 836

0596-88-R Labourers' International Union of North America, Local 493 v. McEndon Limited, Respondent

BEFORE: Harry Freedman, Vice-Chair, and Board Members W. Gibson and C. A. Ballentine.

DECISION OF THE BOARD; August 18, 1988

1. In this application for certification, the Board, by decision dated July 7, 1988 made vari­ous determinations, including the description of the appropriate bargaining unit, and authorized a Labour Relations Officer to inquire into the list of employees in that bargaining unit. The parties subsequently entered into Minutes of Settlement by which they agreed upon two schedules of employees; Schedule "A" being a list of employees of the respondent who were actually at work in the bargaining unit on the application date and Schedule "D", being a list of employees of the respondent who were not at work in the bargaining unit on the application date.

2. The Minutes of Settlement stated that the respondent takes the position that the employees on both Schedule "A" and Schedule "D" should be considered by the Board in deter­mining the count, that is, the number of employees in the bargaining unit as of the time the appli­cation was made, and also requested the opportunity to make representations at an oral hearing before the Board. Counsel for the respondent, in response to a direction from the Registrar, filed the representations he wished the Board to consider with respect to whether the persons listed on Schedule "D" ought to be considered as employees in the bargaining unit for purposes of the count and again requested that a hearing be scheduled to deal with the matter.

3. The Board, pursuant to section 102(14) of the Act, may dispose of an application for certification made pursuant to the construction industry provisions of the Act without holding a hearing. In this case, the respondent has been given the opportunity to file written submissions which contain factual assertions that the Board accepts as fact in dealing with this matter and as counsel for the respondent has submitted the representations he wants the Board to consider, there is no need to convene a hearing into this application for certification.

4. The respondent is a general contractor engaged principally in utilities construction. A majority of its employees, including almost all of the employees on Schedule "D", have had long-term employment relationships with the respondent. The employees on Schedule "A" were work­ing within the bargaining unit on the date the application was made while the employees on Sched­ule "D" were employed by the respondent and were working on construction projects outside of the bargaining unit on the application date. Nevertheless, the employees on Schedule "D" did work within the bargaining unit at some time both 30 days before and 30 days after the date the application for certification was made.

5. Section 7(1) of the Labour Relations Act requires the Board to ascertain the number of employees in the bargaining unit at the time the application is made and the number of those employees who are members of the applicant at a time fixed by the Board, which is usually the ter­minal date. While employment circumstances are not static, and in the construction industry in particular, the number of employees working in a particular bargaining unit will change over a period of time, the Labour Relations Act requires the Board to make its determination with respect to the number of employees in the bargaining unit as of a specific point in time, which is fixed by the Act as being the time the application was made. The Board's approach to the making of this determination was described in Bill Brownlee Excavating Limited, [1988] OLRB Rep. April 364 at 365-66:

"In determining whether an employee is employed within a bargaining unit for purposes of an application for certification made under the construction industry provisions of the Labour Rela­tions Act, the Board is required by section 7(1) of the Act to assess the circumstances at the time the application is made. Generally, the Board looks to whether a person was actually at work for the employer on the application date. If an employee was not actually working on the appli­cation date, then the Board does not ordinarily consider that person in making the determina­tions required by sections 7(2) and 144(2) of the Act. See Smith's Construction Arnprior Limited, [1984] OLRB Rep. March 521 at 522. If an employee was working for the employer at the time the application was made, the Board then decides whether that person was employed within the bargaining unit at that time. The Board in the past had made that determination by examining the nature of the employee's work over a period of time prior to the application that was said to be "representative" of the typical work that the employee in question performed. See Des-Build Development Limited, [1983] OLRB Rep. Nov. 1983; J. & M. Chartrand Realty Limited, [1978] OLRB Rep. May 423; Di-Marco Plumbing and Heating Company Limited, [1985] OLRB Rep. May 659. More recently, however, the Board has made that determination by having regard principally to the work done by the disputed employee on the application date. See E & E Seegmiller Limited, [1987] OLRB Rep. Jan. 41 at 44; Gilvesy Enterprises Inc., [1987] OLRB Rep. Feb. 220 at 225.

In Delco Contractors, [1987] OLRB Rep. May 830 the parties agreed that the Board should apply the test set out in Gilvesy, supra, to determine whether an employee hired as a carpenter and who performed carpentry work extensively was an employee in the bargaining unit com­prised of carpenters for the purposes of an application for certification. On the application date, the employee in question was engaged in chipping of concrete and not carpentry work. Thus, the Board held that as he did not spend the majority of his time on the application date working at the carpentry trade, he was not an employee in a bargaining unit comprised of carpenters.

The Board noted in Gilvesy, supra, and E & E Seegmiller, supra, that if the evidence was incon­clusive with respect to the work performed by the disputed employee on the application date, then any other relevant factor, such as the primary reason for hire, would be considered in determining whether an employee, who was at work on the application date, was employed within the bargaining unit.

Counsel for the respondent argued that the Board should not restrict itself to the application date in determining whether employees working for the respondent were employed in the bar­gaining unit. In our opinion, the approach taken by the Board in Gilvesy, supra, and Seegmiller, supra, is consistent with the Board's approach in construction industry applications generally. The circumstances of employment may vary over time, and in the construction industry in par­ticular, employment may change from day to day. Indeed, the policy underlying the Board's approach to holding that in a construction industry certification application, an employee must be actually at work on the application date in order to be counted applies with equal force to determining whether that employee was employed in the bargaining unit.

In an application for certification the Board is making determinations as to whether an employee is in the bargaining unit as of the time an application for certification is made. Even though circumstances may be constantly changing, the Board must examine those circumstances at an instant in time to make the requisite determinations under section 7 and 144 of the Act. Therefore, we are not persuaded that we should depart from the Board's approach in determin­ing whether an employee is in the bargaining unit discussed in Gilvesy. supra, and E & E Seegmiller, supra."

6. Counsel for the respondent submitted that the Board should apply the "30/30" rule in determining whether employees ought to be included in the bargaining unit for purposes of the count. That argument was made and rejected by the Board in Colibri Construction Inc., [1986] OLRB Rep. July 931 at 933-35:

The Board did not deal explicitly with its "30/30" rule and whether, as the respondent argues in submission #1, the rule should have been applied in deciding the number of employ­ees in the bargaining unit. This is because the Board had followed its policy and consistent prac­tice in construction industry certification applications of counting only persons actually at work in the bargaining unit on the application date for deciding the number of employees in the unit. By implication, that policy and practice excludes use of the "30/30" rule.

Where the Board does apply the "30/30" rule in applications for certification, it looks to the fact of employment during the 30 days immediately prior to the application date and the 30 days immediately following the application date. Persons who have worked in the bargaining unit sometime during the defined period prior to the application date and the defined period after it, are considered by the Board to be employees for purposes of determining the number of employees in the unit as of the application date. The Board's decision in Sydenham District Hospital, [1967] OLRB Rep. May 135 explains the underlying rationale of the rule as having the effect of excluding persons absent during the union's organization campaign and those persons unlikely to return to work, and of allowing the parties to ascertain, in advance of a hearing, which persons will be dealt with by the Board. This rule has been applied by the Board to non-construction applications for certification with a consistency which has established a substantial measure of certainty for the parties in knowing prior to any hearing which persons the Board will find to be in the proposed bargaining unit. The Board has just as consistently not applied the rule to construction industry applications for certification. See, for example, the Board's decision in Bertrand & Frere Construction Co. Limited, [1965] OLRB Rep. July 292. The Board applied the "30/30" rule in that case in making a finding that certain persons who are on lay-off when the application was made were not employees in the bargaining unit for purposes of the count. The employer requested the Board to reconsider its finding and, instead, find that they were employees on the grounds that the employer's business was in the construction industry and the Board should have given account to the seasonal nature of the industry. The Board declined to do so. It is clear from the Board's response quoted below that it was the Board's pol­icy at the time to not apply the "30/30" rule in certification applications in the construction industry. Rather, the Board's rule in construction cases was to count only those persons in the employ of the employer on the actual date of application.

'We would mention that it was not suggested by counsel for the respondent that the respondent is an "employer" operating a business in the construction industry as defi­ned in section 90(A) [now section 117(c)] of The Labour Relations Act. In any event, the application was not made under the construction industry sections (sections 90 to 96) [now sections 117 to 151] of The Labour Relations Act. We would point out that if, in fact, the applicant had been entitled to makes its application under the construc­tion industry sections of the Act and had done so, the practice of the construction industry division of the Board is to include in the bargaining unit for the purposes of the count only those employees who are in the employ of the employer on the actual date of the making of the application.'

[emphasis in original]

The rationale for the rule for construction applications relates to the nature of the employment relationship in the construction industry. See, for example, the Board's decision in Polmar Tile Company, [19701 OLRB Rep. Apr. 50. That is still the Board's rule for applications for certifi­cation in the construction industry today and the rule applied by the Board in the instant case in determining that there were three employees in the bargaining unit at the time the applications was made. This rule clearly excludes Mario Lachapelle named in items 3 and 4 of the material facts alleged in the request for reconsideration.

Whereas application of the Board's "30/30" rule in non-construction applications has been the source of certainty for the parties in ascertaining prior to any hearing which employees the Board is likely to include in the bargaining unit sought in the application, in construction indus­try applications it has been the rule expressed by the emphasized words in the quotation from the Board's decision in Bertrand & Frere,, supra,. Some sense of the importance which the Board has attached to certainty in the construction industry applications is gained from a read­ing of its decision in Industrial-Mine Installations Limited, [1968] OLRB Rep. May 217 at para­graphs 9 and 10, a case cited by respondent's solicitor in support of its submissions that the Board should consider the "build-up" factor in the instant application. See also the cases referred to in the dissent to the majority decision in that case, particularly, the quote in para­graph 2 therefrom respecting the Board's decision in Keystone Contractors Limited, [1966] OLRB Rep. Feb. 821."

7. It is clear in this case that the persons listed on Schedule "D" were employees of the respondent on the application date, but that they were not working in the bargaining unit at that time. Section 7(1) of the Act requires the Board to determine the number of employees in the bar­gaining unit as of the time an application for certification is made. The employees listed on Sched­ule "D" were not employed in the bargaining unit at the time the application was made, but were employed by the respondent elsewhere.

8. In non-construction certification applications~ the Board may determine that a person is an employee in a bargaining unit even if that person is not actually at work in the bargaining unit on the application date. Nevertheless, for the reasons set out in Colibri Construction Inc., supra, and Bill Brownlee Excavating, supra, it is not appropriate to do so where, in the circumstances of this case, the employees of the respondent were not at work in the bargaining unit on the applica­tion date, but were working elsewhere. See also New Look Restoration (Ottawa) Limited, [1988] OLRB Rep. March 316.

9. In this application for certification the applicant filed eight 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 one person. The applicant also filed a duly completed Form 80, Declaration Concehi­ing Membership Documents, Construction Industry.

10. The Board is 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 June 27, 1988, 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.

11. A certificate will issue to the applicant.