International Union of Operating Engineers, Local 793 v. Bill Brownlee Excavating Limited, 1988 CanLII 7044

[1988] OLRB Rep. April 364

1797-87-R International Union of Operating Engineers, Local 793 v. Bill Brownlee Excavating Limited, Respondent v. Group of Employees, Objectors

BEFORE: Harry Freedman, Vice-Chair, and Board Members W. Gibson and D. A. Patterson.

APPEARANCES: Bernard Fishbein, P. Bertrand and R. Kerr for the applicant; Daniel Kimmel and Peter Galway for the respondent; J. A. Emond and H. Wilson for the group of employees.

DECISION OF THE BOARD; April 28, 1988

1This is an application for certification made pursuant to the construction industry provi­sions of the Labour Relations Act.

2The Board finds that the applicant is a trade union within the meaning of section l(l)(p) of the Labour Relations Act and is an affiliated bargaining agent of a designated employee bargain­ing agency. Pursuant to the designation issued by the Minister under section 139(1) of the Act on July 13, 1978, the designated employee bargaining agency is the International Union of Operating Engineers and Local 793 of the International Union of Operating Engineers.

3The Board further finds that this is an application for certification within the meaning of section 119 of the Labour Relations Act and is an application which relates to the industrial, com­mercial and institutional sector of the construction industry and is made pursuant to section 144(1) of the Act which provides:

144.-(1) An application for certification as bargaining agent which relates to the industrial, com­mercial and institutional sector of the construction industry referred to in clause 117(e) shall be brought by either,

(a) an employee bargaining agency; or

(b) one or more affiliated bargaining agents of the employee bargaining agency,

on behalf of all affiliated bargaining agents of the employee bargaining agency and the unit of employees shall include all employees who would be bound by a provincial agreement together with all other employees in at least one appropriate geographic area unless bargaining rights for such geographic area have already been acquired under subsection (3) or by voluntary recogni­tion.

4Pursuant to section 144(1) of the Labour Relations Act and having regard to the agree­ment of the parties, the Board finds that all employees of the respondent in the industrial~ com­mercial and institutional sector of the construction industry in the Province of Ontario and all employees of the respondent in all other sectors of the construction industry in the Regional Municipality of Ottawa-Carleton~ and the United Counties of Prescott and Russell engaged in the operation of cranes, shovels~ bulldozers and similar equipment and those primarily engaged in the repairing and maintaining of same, save and except non-working foremen and persons above the rank of non-working foreman~ constitute a unit of employees of the respondent appropriate for collective bargaining.

5The parties disagreed over the list of employees in the bargaining unit, and as a result, a Labour Relations Officer was authorized to make the requisite inquiries and report back to the Board. Pending the completion and submission of the Officer's report, the Board concluded hear­ing the evidence and representations of the parties with respect to a timely statement expressing opposition to the application. The Board, by decision dated March 30, 1988, held that the state­ment expressing opposition did not have sufficient weight to cause the Board to exercise its discre­tion under section 7(2) of the Labour Relations Act to order a representation vote.

6The hearing reconvened before the Board in Ottawa on April 8, 1988 to receive the rep­resentations of the parties with respect to the report of the Labour Relations Officer which related to the list of employees in the bargaining unit.

7The applicant challenged the inclusion of seven persons on the list of employees in the bargaining unit as of the application date. While all seven persons were employees of the respon­dent and were working for the respondent on the application date~ the applicant contended that all seven persons were not employed in the bargaining unit on that date and therefore should not be considered for purposes of making the requisite calculations under sections 144 and 7 of the Act. The respondent submitted that all of the challenged employees were performing bargaining unit work on the application date and in any event, submitted that if they did not actually work within the bargaining unit on the application date, the Board should look at more than just the applica­tion date to characterize the employment of the employees in dispute.

8In 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. 1793; 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.

9In Delco Contractors, [1987] OLRB Rep. June 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.

10The 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.

11Counsel 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.

12In 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.

13There were seven employees who the respondent contended were employees in the bar­gaining unit on the application date whom the applicant challenged.

Harvey Wilson and Lucien Beauregard

14Harvey Wilson was employed as a tandem truck driver who delivered material on occa­sion to construction sites. While Mr. Wilson indicated that he occasionally operated a bulldozer or loader, the evidence is clear that on the application date he spent a majority of his time as a truck driver, and not as an equipment operator.

15Lucien Beauregard was employed by the respondent as the operator of a power sweeper. Generally, he operated the sweeper to clean parking lots and other asphalt surfaces. He did not generally work at construction sites~ and on the application date, was operating the power sweeper. Mr. Beauregard has, in the past, worked as a power shovel operator and also did minor repairs to the power sweeper he operated. Mr. Beauregard was not performing construction work on the application date.

Edgar Regimbauld

16Edgar Regimbauld was hired as a mechanic by the respondent. He also worked as a float driver, transporting construction equipment. On the application date, he fuelled the tractor he was to drive and then drove to various locations transporting construction equipment such as shovels and a bulldozer. Mr. Regimbauld generally operates the construction machinery to load and unload it from the float. Mr. Regimbauld also worked with the mechanics on occasions, but on the day of application, it is clear that he spent a majority of his time working as a float driver.

Blair Harris

17Blair Harris was employed by the respondent as a backhoe operator. While he generally operated equipment on a construction site, on the application date he worked for only one hour operating a loader loading topsoil at the premises of the respondent. Mr. Harris was not engaged in construction work on the application date because of the weather. Mr. Harris also drove the float on occasion and sometimes did mechanical work on the equipment he operated.

Greg Grant

18Greg Grant was employed by the respondent as an apprentice mechanic. He drove a fuel truck and also assisted the mechanics in repairing and maintaining equipment. Mr. Grant fuelled the construction equipment, such as shovels, bulldozers, excavators and backhoes by driv­ing the fuel truck to the job sites where that equipment was located. He also changed the oil and filters on the equipment and assisted the mechanics in repairs. On the application date, Mr. Grant worked assisting a mechanic on repairs of a machine for approximately two hours. The balance of the day was spent by him travelling to the various job sites fuelling equipment and also performing some work in the shop.

Ken Hart Sr.

19Ken Hart Sr. is an equipment mechanic. He repairs and maintains construction equip­ment and vehicles owned by the respondent. The respondent has a shop where Mr. Hart reports and as the need arises is dispatched to repair construction equipment at the job sites. On the day of application, he did not leave the shop but spent the entire day working on construction equipment. In the month previous to the application he was dispatched to perform repairs to construction equipment on site on 10 different days, spending almost the entire day or majority of those days at the construction site.

Athanasios Tsaussis

20Athanasios Tsaussis is an equipment mechanic. On the application date, he spent a sub­stantial majority of his time doing mechanical repairs to the construction equipment at the job sites. Mr. Tsaussis indicated that he typically will spend half of his work day on-site repairing con­struction equipment. Mr. Hart Sr. and Mr. Tsaussis work together, and according to Mr. Hart Sr., either of them may be dispatched to a construction site, depending on who is available.

21The bargaining unit which the applicant seeks to represent does not include truck driv­ers. See Armbro Materials and Construction Limited, [1973] OLRB Rep. Aug. 450 at 451; Clairson Construction Company Limited, [1967] OLRB Rep. Sept. 606 at 607; Bruno's Contracting (Thun­der Bay) Limited, [1985] OLRB Rep. Dec. 1701; Jim Bertram & Sons Construction Ltd., Board File No. 1815-85-R, June 13, 1986, unreported and Cedarhurst Paving Company Limited, [1964] OLRB Rep. Dec. 442. Persons who drive floats engaged in the transportation of construction equipment on and off construction sites are considered truck drivers employed in the construction industry. See Canadian Asphalts Limited, [1980] OLRB Rep. March 299 at 303; Cooper's Crane Rental Limited, [1980] OLRB Rep. Sept. 1286; Cedarhurst Paving Company Limited, supra, at 445. Similarly, an employee who drives a fuel truck and who servicing construction equipment is also a truck driver employed in the construction industry. See Canadian Road Asphalts Limited, supra, Cedarhurst Paving Company Limited, supra.

22Therefore, Harvey Wilson, Edgar Regimbauld and Greg Grant were not employees in the bargaining unit on the application date since they spent a majority of their time on that day engaged in the trade of truck driver, and not in the trade of operating engineer.

23Additionally, since both Lucien Beauregard and Blair Harris were not engaged in con­struction work on the application date, they also were not employees in the bargaining unit on that date.

24Ken Hart Sr. and Athanasios Tsaussis are both mechanics who worked on the repair and maintenance of construction equipment. The bargaining unit includes within it "employees primarily engaged in the repairing and maintaining" of the equipment operated by the other employees in the bargaining unit. Generally employees who are primarily engaged in the repairing and maintaining of equipment come within the applicant's bargaining unit if they are working at a construction site and not within a shop. In I & M Chartrand Realty Limited, supra, the Board wrote at 426:

"At the relevant time the respondent operated a gravel pit utilizing the gravel both for its own purposes and to sell to other companies in the Timmins area. Mr. Ernest Cloutier, who appears on the list of employees, was at the relevant, time employed at the pit as the operator of a loader. The Board is of the view that the respondent's gravel pit operation does not come within the construction industry and that the employee involved would more appropriately be included in an industrial bargaining unit. (See: Fielding Construction Company, [1970] OLRB Rep. Jan. 1205). This being the case the Board is satisfied that on the application date Mr. Cloutier was not an employee in the bargaining unit.

The respondent employs a number of men at its repair shop to do repair and maintenance work on both construction equipment and trucks. The Board's general practice is to regard as coming within construction industry bargaining units of operating engineers those employees who work on construction sites and are primarily engaged in the repair and maintenance of cranes, shov­els, bulldozers and similar equipment, but to regard as being outside the scope of such units employees who work in repair shops. Generally repair shop employees will be included in indus­trial bargaining units. (See Fielding Construction Company, op. cit.) In the instant case the employees involved are based in the repair shop and most of the respondent's maintenance and repair work seems to be done at the shop. Frequently, however, the shop employees do go into the field to do maintenance and minor repair work on equipment. Notwithstanding this latter fact, the Board is satisfied that the employees based in the shop are, as a group, essentially off-site employees who would be more appropriately included in an industrial bargaining unit with other off-site employees rather than in a unit with on-site construction employees.

Having regard to the above conclusion, and for the purposes of clarity, the Board declares that employees based in the respondent's repair shop do not come within the bargaining unit."

25The Board in J & M Chartrand Realty Limited referred to Fielding Construction Com­pany Limited, [1970] OLRB Rep. Jan. 1205 where the Board distinguished between construction and non-construction activities and noted at page 1206 that employees who work in shops, yards or quarries were not employed in the construction industry. Thus, shop employees were excluded from a construction industry bargaining unit. Fielding Construction Company Limited, supra, was dealt with by the Board prior to the introduction of what is now section 117(b) into the Act.

26Section 117(b) of the Labour Relations Act provides:

"117. 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."

Employees who are off-site and who only very briefly go on site irregularly are not commonly asso­ciated in their work with on-site employees. See Taggart Construction Limited, [1974] OLRB Rep. March 190; Warren Bitulithic Limited, [1981] OLRB Rep. March 376 at 360. Shop employees whose work is merely preparatory to the work done on-site are also not employees within the meaning of section 117(b). C.A. Pitts Engineering Construction Limited, [1973] OLRB Rep. Feb. 123. Employees who regularly work both in a shop and on-site are commonly associated in their work with on-site employees. Esam Construction Limited, [1980] OLRB Rep. Feb. 197; Metro Railing Limited, [1986] OLRB Rep. Dec. 1731; Pickering Welding and Steel Supply, [1987] OLRB Rep. April 595.

27The Board in J & M Chartrand Realty Limited, supra, made no reference to what is now section 117(b) when concluding that equipment mechanics who work both on and off a construc­tion site are excluded from a construction industry bargaining unit.

28The Board in Esam Construction Limited, supra, held that two employees who per­formed repair work on the employer's construction equipment at the construction site and also worked at the employer's premises were employees in the construction industry and were included in an operating engineer's bargaining unit. The Board wrote at page 202:

"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), 8.0. 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 now appears in section 106(b) [now 117(b)] of the Act. Section 106(b) [now 117(b)] states:

'In this section and in sections 107 to 124.

(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.'

In the Taggart Construction Limited case, [1974] OLRB Rep. March 190; and the C. A. Pius Engineering Construction Ltd. case, 11973] OLRB Rep. Feb. 123, the Board considered the pro­visions of section 106(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."

The Board in Esam Construction Limited, supra, did not refer to the Board's earlier decision in J & M Chartrand Realty Limited, supra.

29In 590308 Ontario Inc., Board File No. 0915-87-R November 26, 1987, unreported, the Board, without referring to section 117(b) of the Act or Esam Construction Limited, supra, held that equipment mechanics, one of whom spent more time away from the repair shop than the other two mechanics, should all be excluded from a construction industry bargaining unit. The Board, after setting out the second paragraph quoted above from J & M Chartrand Realty Limited wrote at page 3:

"In the instant case, Messrs. Messier and Munday are mechanics who spend the overwhelming majority of their work hours in the shop, repairing trucks and construction equipment. Each of them goes into the field to perform repair work on construction machinery only about once a week. Although Mr. Hone 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."

30It is clear from the evidence that Mr. Tsaussis spent a large majority of his time on the application date repairing construction equipment at the work site. It was also apparent that both he and Ken Hart Sr. are frequently dispatched to repair equipment at construction sites although they often perform repair work in the shop at the respondent's premises.

31Counsel for the applicant submitted that both of the mechanics ought to be treated in the same way for purposes of this application and be excluded from the bargaining unit because they are primarily shop employees. Counsel relied principally on I & M Chartrand Realty Limited and 590308 Ontario Inc.

32The respondent uses the same mechanics to repair and maintain construction equip­ment both on and off the construction sites. On the day of application, Mr. Tsaussis was clearly engaged in bargaining unit work on the construction site. While Mr. Hart Sr. was at work in the respondent's shop on the application date, in our view, both he and Mr. Tsaussis are primarily engaged in the repair and maintenance of the construction equipment operated by the other employees in the bargaining unit. They are often dispatched to construction sites to perform repair work on the equipment. It does not appear that the respondent operates a repair shop where other than the mechanics who are regularly and routinely dispatched to the construction sites are employed. Thus, we are of the view 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.

33It is evident that Mr. Tsaussis was engaged in the repair of construction equipment at the construction site on the application date. While Mr. Hart Sr. was not dispatched to a construc­tion site on that day, we have determined that because he is commonly associated in his work with on-site employees when engaged in the repairing and maintaining of construction equipment in the circumstances of this case he was also an employee in the bargaining unit on the date the applica­tioti was made. Thus, Ken Hart Sr. and Athanasios Tsaussis are both included in the bargaining unit for purposes of the count.

34Therefore, the Board finds that there were thirteen employees in the bargaining unit on the application date. The applicant filed six combination applications for membership and one cer­tificate of membership in respect of those thirteen employees.

35The Board is satisfied on the basis of all the evidence before it that not less than forty-five per cent and not 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 22, 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.

36A 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.

37Voters will be asked to indicate whether or not they wish to be represented by the appli­cant in their employment relations with the respondent.

38The matter is referred to the Registrar.