[1989] OLRB Rep. October 1041
1468-88-R United Brotherhood of Carpenters and Joiners of America, Local Union 27, Applicant v. 162706 Canada Inc., (Eddie Bauer), Respondent
BEFORE: Louisa M. Davie, Vice-Chair, and Board Members J. Trim and C. A. Ballentine
APPEARANCES: N. L. Jesin and Robert Reid for the applicant; Joseph N. Tascona and Deborah B. Divis for the respondent.
DECISION OF THE BOARD; October 18, 1989
- This is an application for certification brought pursuant to the construction industry provisions of the Act. The parties disagree as to whether it has been properly brought under the construction industry provisions of the Act. The respondent asserts that it is not an employer in the construction industry. The applicant alleges otherwise. Intertwined with this issue is the dispute between the parties regarding the duties and responsibilities of the two employees whom the applicant claims are properly included in the bargaining unit for which it seeks certification. That unit is described in the application in the typical or usual manner and in conformity with section 144(1) of the Labour Relations Act ("the Act") as follows:
all carpenters and carpenters' apprentices employed by the employer in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario; and
all carpenters and carpenters' apprentices employed by the employer in Board Area 8 excluding the industrial, commercial and institutional sector, save and except non-working foremen, and persons above the rank of non-working foreman.
The respondent (Eddie Bauer) operates retail stores under the name of Eddie Bauer. On and about September 16, 1988, it caused to be constructed a retail store in the Fairview mall. That construction was generally performed through the engagement of various contractors. The focus of this case is whether the final installation and assembly of shelving and certain other store display units is construction work. Counsel for Eddie Bauer asserts that the shelving and display units are not "fixtures" but are merely chattels. He argues therefore that Eddie Bauer is not an employer in the construction industry. In so doing, he relies primarily upon Disney Display, [1986] OLRB Rep. Feb. 236 and Re Royal Bank of Canada and Saskatschewan Telecommunications (1985) 1985 CanLII 2377 (SK CA), 20 D.L.R. (4th) 415 (Sask C.A.).
Counsel for the union on the other hand asserts that the various shelving and other display structures are affixed to the wall, must therefore be considered "fixtures" with the result that Eddie Bauer employees who assembled and installed those fixtures were employed in the construction industry by Eddie Bauer. Counsel for the union further asserted that although a portion of the display structures assembled on the date of application were admittedly free-standing display structures, the assembly and installation of those free-standing display structures had to be assessed in light of the other construction activities which occurred on September 16, 1988, the date of application. Counsel submitted that the Board ought to focus upon the fact that all of the activities of the persons directly employed by Eddie Bauer were performed upon a new construction site and not in a operating retail store. At the relevant time the store had not yet opened. Eddie Bauer through its own employees and by engaging various contractors was still in the process of "building" the store. He argued that had the assembly and installation of these shelving and other types of display units been part of the general construction contract it would undoubtedly have been considered construction work. The fact that it was not part of the general contractor's construction contract, but was performed by Eddie Bauer employees therefore, should not make a difference in the determination that this was construction work. As a result, it was argued that Eddie Bauer was an employer in the construction industry. In support he referred to the decision of the Board in Board of Education for the City of Windsor, [1988] OLRB Rep. March 342 and the cases referred to therein.
In our view, in the circumstances of this case, we need not decide whether the final assembly and installation of these various display units is or is not work in the construction industry. Upon the evidence before us, it is clear that, even if this work was work within the construction industry, the only two persons whom the applicant asserts in the bargaining unit (and the only two persons on the employer's schedule of employees) did not in fact perform that work for a majority of the time on the date of application. Therefore, assuming without finding that this work was work within the construction industry and that the application has been properly brought under the construction industry provisions of the Act, we propose to dispose of the application after reviewing the nature of the work performed by these two persons on the date of application.
Before so doing, we find it helpful to briefly review the Board's jurisprudence in respect of the "date of application" and the "majority of time" tests employed by the Board. These tests were reviewed and subsequently applied in a recent decision of the Board, Wraymar Construction and Rental Sales Limited, [1989] OLRB Rep. June 682. There the Board stated:
In E & E Seegmiller Limited, supra, the Board reviewed, at paragraph 12, its then existing practice with respect to determining who is an employee in the bargaining unit for purposes of applications for certification in the construction industry:
In applications for certification in the construction industry, a person must be at work for the respondent employer on the date that the application is made in order to be included in the bargaining unit for the purposes of "the count" (see for example Smiths Construction Company Arnprior Limited, [1984] OLRB Rep. Mar. 521 among others). In addition to actually being at work, the employee must have spent a majority of his time on the date of application doing bargaining unit work (see for example 0. J. Jaffrey Limited, [1964] OLRB Rep. Aug. 233; Clairson Construction Company Limited, [1968] OLRB Rep. April 126; George and Asmussen Limited, [1971] OLRB Rep. Oct. 683 among others). Where an employee was doing the work of one trade or craft on the date of application but prior thereto had been engaged in doing the work of several trades or crafts at the same wage rates, the Board has long been willing to examine a period of time prior to the date of application that is representative for purposes of ascertaining what work the employee spends the majority of his/her time doing and so determine whether or not that employee should be included in the bargaining unit. The length of this "representative period" has heretofore varied on a case by case basis (see for example Heath Construction Inc.,[1977] OLRB Rep. 691; J. M. Chartrand Realty Ltd., [1978] OLRB Rep. May 423; Di Marco Plumbing & Heating Company Limited, [1985] OLRB Rep. May 659; Des-Build Development Limited, [1983] OLRB Rep. Nov. 1793 among others). It has also been suggested that the Board may look to the primary reason for which the employee was hired in order to determine his/her classification (Pre-Con Murray, [1965] OLRB Rep. Jan. 1003) but this test has largely been used in the circumstances where the evidence of what the employee actually did does not answer the question of whether the employee should be included in the bargaining unit (see for example Des-Build Developments Limited, supra and Dufresne Piling Co. (1967) Ltd., [1984] OLRB Rep. July 924). In summary, the Board has looked at the following criteria in making its determinations:
(a) whether the person concerned 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, previous to the date of application, the person has been engaged in the work of more than one trade or craft and the work s/he performed on the application date does not accurately reflect the work s/he normally spends the majority of his/her time doing, the work done by that employee during the appropriate representative period prior to the date of application; or
(d) where there is inconclusive evidence with respect to the work in which an employee has been engaged, any other relevant factor,
including the primary reason for hire.
(See also Gilvesy Enterprises Inc., supra, at paragraphs 16 and 17). The Board went on, at paragraph 23, to state 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.
While it is possible for an employee to be employed in different bargaining units at different times, she can only be in one bargaining unit at any one point in time. As the Gilvesy test and that line of cases demonstrates, the Board has concluded that, for construction industry certification purposes, the date of application (which is "the time the application was made" for the purpose of section 7(1)) constitutes a single point in time. Consequently, an employee can only be in one bargaining unit for certification purposes. (As Harnden & King Construction Ltd., [1987] OLRB Rep. Dec. 1510 (at paragraph 14) demonstrates, the Board has also arrived at this conclusion without reference to the Gilvesy test or that line of cases.) Pursuant to the Gilvesy test, the bargaining unit an employee is in, if any, is the one in which s/he spent a majority of his/her time in on the date of application. The Board is aware that this can result in some apparent anomalies. However, it is also the Board's experience that such anomalies do not arise very often. Further, any test employed by the Board in certification matters will be somewhat arbitrary and create some anomalies, particularly at its edges. The application of the "majority of time on the date of application" test to determine which individuals are employees in the bargaining unit in a construction industry application for certification reflects the Board's attempt to use as certain, equitable and expeditious a means as possible to ascertain who is in such a bargaining unit.
There remains to be determined, however, what is meant by the "majority" of time on the date of application. Should it mean that an individual must have spent more than 50% of his/her working time on the date of application in a bargaining unit in order to be included in it for certification purposes? Or should it mean that an individual will be considered to be in whichever bargaining unit s/he spends the most time in? If the first approach was adopted, an employee who worked at more than two kinds of work (or in more than two geographic areas) could work a full day but, having spent less than a majority of his/her working time at any one kind of work-(or in any one geographic area), end up being in no bargaining unit for certification purposes. The undesirable result can be avoided if the second approach is adopted. Accordingly, and even though as with any test there may be other anomalies, we favour that second approach.
In the past it would appear that these tests have been employed only in the construction industry to determine into which of two craft units an employee falls. We were not referred to any decision of the Board where the majority of time test was employed to assist in the determination as to whether a person falls within a construction "craft" bargaining unit or a non-construction bargaining unit. In our view, application of the majority of time test is equally appropriate in these circumstances. In particular, we concur with the two observations of the Board in Wraymar that:
(a) although it is possible for an employee to be employed in different bargaining units at different times, he/she can only be in one bargaining unit at any one point in time, and
(b) that an individual should be considered to be in whichever bargaining unit he/she spends the most time in.
Not only would application of the majority of time tests in the present circumstances be consistent with the Board's general approach when dealing with applications in the construction industry, a similar, although perhaps not identical approach has been used by the Board in certain applications that do not relate to the construction industry. Thus, in the non-construction industry applications for certification, the Board has recognized that the employees of a particular employer may constitute more than one bargaining unit or potential bargaining units for purposes of collective bargaining. This, combined with a notion of the exclusivity of the trade union to act as bargaining agent for the employees has, for example, caused the Board in applications dealing with "occasional teachers" to enunciate a test focusing upon which, of two potential units, (whether the elementary or secondary school panel) an employee has the "greatest attachment". Thus, in the Board of Education for the City of Hamilton, [1987] OLRB Rep. June 847, the Board stated at pp 849-850:
The employees of any particular employer may constitute more than one bargaining unit or potential bargaining unit for the purposes of collective bargaining. In the industrial context, for example, office and clerical employees are ordinarily regarded as forming an appropriate bargaining unit separate and distinct from the "plant" unit of employees engaged in production.
A bargaining unit comprises the employees for whom a particular trade union is to be the exclusive bargaining agent. The notion of exclusivity requires that bargaining units be so defined as to ensure that an employee falls within only one such unit at any particular point in time. Returning to the industrial example in which office and clerical employees are excluded from the unit into which plant employees fall, an employee may move back and forth between the office and the plant and so fall within the plant unit and the office unit at different times, but that employee cannot be in both units at the same time: see Laurent Lamoureux Co. Ltd. [1985] OLRB Rep. Nov. 1618 at paragraph 15.
In circumstances in which teachers receive a variety of teaching assignments in the course of a year, the application as of a particular date of the test propounded in City of York Board of Education, sup ra, can lead to the conclusion that the employee was in two or more bargaining units simultaneously on that date. The Board had to deal with this problem in The Board of Education for the City of Scarborough, [1987] OLRB Rep. Jan. 119. In that decision, the Board concluded that teachers who "ordinarily" acted as substitutes for secondary school teachers but "occasionally" worked in the elementary schools in the year preceding the relevant date, should not be regarded as falling within the bargaining unit of elementary panel occasional teachers as of that date. We take this to mean that when the application of the York test places a particular teacher in more than one existing or potential unit of teachers, that teacher will be treated as falling within the bargaining unit to which he or she has the greatest attachment as of that time, in terms of the relative quantities of work performed during the year preceding the relevant date in each of the bargaining units of teachers employed by the subject school board.
After considering the submissions of the parties and the Labour Relations Officer's report in this matter, the Board finds that neither Mr. Gehman nor Mr. Male engaged in the assembly and installation of the displays for the majority of their time on the date of application. Mr. Gehman was the second Assistant Store Manager whose primary role throughout the day (September 16, 1988) was to assist in the supervision of the approximately thirty employees who were working in the store on that day in order to get the store "ready" for its opening. Mr. Male was the Quality Assurance Supervisor and Assistant Warehouse Supervisor who was also at the store for that purpose on that day. Neither Mr. Gehman nor Mr. Male spent more than one and a half hours of their work day (in the case of Mr. Gehman, a work day that lasted from 8:30 a.m. to 10:00 p.m.) in the assembly or installation of the display units. The remainder of their day was spent in floor supervision of the other employees, directing those other employees, receiving, unpacking and ultimately displaying the store merchandise upon the shelves and other display units. The evidence discloses that the majority of the time spent by these employees was in "setting up" the store with merchandise. The majority of time was not spent performing work within the bargaining unit sought by the applicant. Alternatively, it can be said that these persons have a ''greater attachment'' to a notional or potential non-construction bargaining unit.
In view of the fact that there were no employees employed within the bargaining unit sought by the applicant on the date of application, this application is hereby dismissed. In the result, the Board will not inquire further into the other matters and issues raised in this application for certification.