Labourers' International Union of North America, Local 506 v. Grant Construction, 1989 CanLII 3065

[1989] OLRB Rep. July 766

Labourers' International Union of North America, Local 506, Applicant/Complainant v. Grant Construction, Division of Malachy Grant and Associates Limited, Respondent

BEFORE: G. T. Surdykowski, Vice-Chair, and Board Members D. A. MacDonald and H. Kobryn.

APPEARANCES: Elizabeth Mitchell and Ed Ferreira for the applicant/complainant; Peter Chauvin and Robert Scott for the respondent.

DECISION OF THE BOARD; July 14, 1989

1. By decision dated November 8, 1988, the Board (differently constituted in part) made certain findings, including the unit of employees of the respondent appropriate for collective bar­gaining, with respect to the application for certification herein. In addition, the Board authorized a Labour Relations Officer to inquire into and report to the Board with respect to the list of employ­ees in the bargaining unit and particularly the challenges made by the applicant in that respect. The Board also indicated it would conduct its usual investigation into a "non-pay" allegation made by the respondent.

2. By decision dated December 13, 1988, the Board (again differently constituted in part) directed that a hearing be held with respect to the non-pay allegation.

3. At the outset of the hearing convened with respect to the respondent's non-pay allega­tion, counsel for the respondent asked what investigation the Board had conducted in that respect and what inquiry the Board intended to pursue at the hearing. Counsel suggested that, in the cir­cumstances, the Board's investigation ought to have extended beyond the respondent's specific allegations in that respect.

4. By letter, from counsel, dated November 3,1988, the respondent alleged that one spe­cific employee, Craig Pugsley, "did not pay to the Trade Union on his own behalf an amount of at least $1.00 in respect of initiation fees or membership dues of the Trade Union" and requested that the Board investigate its allegation "in accordance with the Board's usual practice in such mat­ters". By letter dated November 16, 1988, the respondent further particularized its non-pay allega­tions as follows:

We are in receipt of the Board's decision dated November 4,1988 in which the Board appointed a Labour Relations Officer to enquire into and report to the Board with respect to the list of employees in the Bargaining Unit and to conduct an investigation into the non-pay allegation made by the Respondent.

Further to our letter dated November 3, 1988, the Respondent has become aware that Mr. Craig Pugsley did not pay to the Trade Union on his own behalf an amount of at least $1.00 in respect of initiation fees. Rather, the Respondent is advised that another employee paid the $1.00 on Mr. Pugsley's behalf and that no subsequent requests were made of Mr. Pugsley for the repayment of this amount by either the employee or Union representatives. We are advised that Mr. Pugsley has not in fact repaid this amount. We are not aware whether similar circumstances exist with regard to other employees.

We hope that these further particulars will assist the Board in conducting its investigation into this non-pay allegation and in verifying the declarations contained in the Union's Form 9.

5. In Estonian Relief Committee in Canada, [1988] OLRB Rep. Nov. 1167 (at paras 16 and 17) the Board outlined what its "usual investigation" with respect to non-pay (and non-sign) alle­gations consists of as follows:

16. The first step in that "usual investigation" is to see whether any membership evidence has been submitted in the name of the employee who it is alleged did not sign a card or make the payment referred to on the receipt or other documentary evidence of payment accompanying the card. The concern raised by a "non-sign" or "non-pay" allegation is that the Board has been invited to act on documentary evidence which may not reflect the truth about whether the per­son said to be a member has actually applied for membership or paid to the union on his own behalf the amount shown. If there is no document, there is no such concern. If there is a docu­ment purporting to be evidence of membership of the subject employee, a labour relations offi­cer will interview that employee in private. If the interview discloses any matter which is cause for concern, either standing alone or in light of the contents of the From 9 declaration filed by the union, the Board will schedule the matter for hearing, summon those persons who may have knowledge for the matters in issue and, at the hearing, conduct its own inquiry. If a "non-pay" or 'non-sign" allegation does not result in the Board's scheduling a hearing, that is either because no membership evidence was filed with respect to the employee identified in the allega­tion or because the results of an interview with that employee raised no cause for concern. When it follows the "usual investigation", a decision not to conduct an enquiry at hearing with respect to a "non-sing" or "non pay" allegation reveals nothing about whether a card was or was not received with respect to the individual named in the allegation.

17. Having regard to subsection 111(1) of the Act, the Board is concerned that its process not reveal whether a card has or has not been signed by an employee or filed with respect to that employee unless it is persuaded that there is some genuine cause for concern which outweighs the concern addressed by subsection 111(1). The risk of unnecessarily revealing membership information is minimized by invariably responding to a "non-pay"/"non-sign" allegation the subject of a hearing unless the result of the investigation warrants one. If it were otherwise, employees could be made to testify about whether they had or had not taken steps to join a union merely because they had been named in a noit-sign or non-pay allegation pursuit by those opposed to certification of "scatter gun" allegations of "non-pay" or "non-sign" could essen­tially neutralize the protection afforded by subsection 111(1).

(See also Sack, Jeffrey, Q.C. and C. Michael Mitchell, Ontario Labour Relations Board Law and Practice (Butterworths, Toronto, 1985) at pp. 181-182.)

6. In addition, section 72 of the Board's Rules of Procedure requires that any party wish­ing to rely upon what it asserts is irregular or improper conduct of another party to give notice and full particulars of its allegations in that respect (see Estonian Relief Committee in Canada, supra; Pebra Peterborough Inc., [1987] OLRB Rep. March 421, among others).

7. It should be evident that the Board does not conduct any audit, investigation or hearing with respect to membership evidence filed in support of an application for certification unless it appears to be irregular on its face or the Board receives specific particularized allegations of impro­priety with respect to it. It should also be evident from the November 13, 1988 decision herein that the Board followed its usual procedure in such matters in this case. In the Board's view, there was no cogent reason to conduct any broader or other investigation or inquiry.

8. Subsequently, in the course of the testimony of Ed Ferreira (who is a Business Agent of the applicant, and who was both the collector of the membership evidence in question and the Form 80 declarant with respect to all of the applicant's membership evidence) the Board heard evi­dence with respect to the dates on which 4 membership documents other than the one in issue were collected by him. The respondent sought leave to examine these 4 cards on the basis that it could not properly evaluate Mr. Ferreira's testimony or cross-examine him without doing so.

9. Other than at a hearing which the Board finds it appropriate to hold with respect to non-sign or non-pay allegations, no party other than the applicant trade union is permitted to either examine witnesses with respect to or inspect membership evidence filed in support of an application for certification. Even at such a hearing the Board generally permits other parties to examine only those pieces of membership evidence which are the subject of specific non-sign or non-pay allegations. The Board's practise in this respect is based on the provisions of section 111(1) of the Labour Relations Act and have proved to be reliable (see Grand & Toy Limited, [1986] OLRB Rep. Sept. 1223).

10. The Board was not persuaded that there was any cogent reason in this case to depart from its general practice by permitting the respondent to inspect the 4 additional membership doc­uments. (Parenthetically, we note that the protection of section 111(1) of the Act also extends to persons who sign a statement of desire or petition in opposition to an application for certification and that an argument analogous to that put forward by the respondent on this issue could also be made by counsel for a trade union; that is, that it is necessary to inspect a petition in order to prop­erly test the voluntariness thereof.) In our view, the primacy of the secrecy of information with respect to any persons wishes relating to trade union membership or representation is such that it will generally prevail over the usually slight prejudice to other parties which may result from the non-disclosure of such information. Accordingly, the respondent's request was denied. The Board did, however, advise the respondent that Mr. Ferreira had collected the cards in question and the dates on them.

11. After hearing and considering the evidence and representations of the parties with respect to the non-pay issue, the Board ruled (orally, with reasons to follow) that it was satisfied that it could rely on both the membership evidence in question and the Form 80 declaration.

12. The membership evidence in question relates to Craig Pugsley who was, at all material times, an employee in the bargaining unit. It consists of a combination application for membership in the applicant and receipt card which indicates, on the face of the document, that Pugsley paid a $1.00 initiation fee with respect to membership in the applicant. It also indicates on its face, that Craig Pugsley wished to join and freely authorized the applicant and its parent the Labourers' International Union of North America to represent him in employment matters.

13. There was no dispute that Pugsley signed the application for membership card in ques­tion. Nor was there any dispute that the trade union received a $1.00 payment with respect to that card from him. However, the respondent asserted that the circumstances were such that Pugsley did not in fact pay the $1.00 on his own behalf and that the card is therefore defective. The respon­dent also submitted that Ferreira's actions and inquiries with respect to that matter were insuffi­cient and the that Form 80 Declaration is therefore unreliable and should, together with all of the membership evidence to which it relates, be rejected by the Board.

14. Craig Pugsley testified that he signed the membership cards only because he felt harassed by the applicant. He also testified that he told the applicant's representatives that he did not have a dollar and that when another bargaining unit employee, Denies MacFarlane, offered to lend him the requisite dollar, he took it and gave it to Ferreira only to get rid of the applicant's rep­resentatives. He testified that he never had any intention of paying back the $1.00 he obtained from MacFarlane.

15. On the other hand, Craig Pugsley, who did not strike the Board as being a particularly diffident individual, testified that he met the applicant's organizers (Ferreira and Michael Mihajlo­vic) on only two occasions, both on August 23,1988, the day he signed the application for mem­bership card. There was nothing in Craig Pugsley's testimony or in any other evidence before the Board which suggested he had in fact been harassed. Indeed, when Pugsley advised the organizers that he wanted an opportunity to speak to a friend of his about joining a trade union and asked them to come back that afternoon, they did so.

16. Craig Pugsley also testified that he knew he had to himself pay (at least) a dollar with respect to membership in the applicant, that he accepted the dollar offered to him by MacFarlane, that he understood that the exchange of a dollar between MacFarlane and himself constituted a loan which had to be repaid, and that he did not indicate to anyone either that he did not intend to repay the loan, or that he had not, in his view, in fact repaid it until well after the event. He also stated that he and MacFarlane often exchanged small amounts of money for coffee etc. Finally, Pugsley testified that he telephoned Ferreira on August 29, 1988 in an effort to "cancel" or "de­stroy the contract"; that is, his membership in the applicant. This illustrates that he is not a diffi­dent individual and that he considered himself to have become a member of the applicant and that he himself considered that he had paid the dollar that was required in that respect on his own behalf. It is apparent that Craig Pugsley had changed his mind and that the story of the harassment by the applicant and that loan was not bona fide and had not been repaid was one which he con­trived after his unsuccessful telephone approach to Ferreira.

17. The evidence also reveals that Ferreira, having made it clear that the loan was one which had to be repaid, did make an effort to find out whether or not it had been. Because Craig Pugsley was avoiding him, Ferreira was unable to speak to him about it. Ferreira did speak to MacFarlane about it, however, and, we find, MacFarlane advised him that it had been repaid. We note that neither Craig Pugsley nor Ferreira mentioned the loan in a telephone conversation referred to in paragraph 16 above. In the circumstances, including the allegations of arguably improper conduct by the respondent which Craig Pugsley made in the course of the conversation, it is not surprising that Ferreira's attention was focused elsewhere. It is interesting that Craig Pugs­ley did not raise it, however, and this also suggests that Pugsley himself considered at that time that he had paid a dollar with respect to membership in the applicant.

18. In Calvano Lumber & Trim Co. Ltd., [1988] OLRB Rep. Aug. 735, one employee lent another employee $1.00 which the latter gave to the union organizer with a signed application for membership card. There was no discussion about any need to repay the $1.00 and it was never in fact repaid. The loan was not disclosed on the applicant's Form 80 declaration. The respondent in that case submitted that the employee who had "borrowed" the dollar had not really paid it to the union "on his own behalf' as required by section 1(1)(l) of the Labour Relations Act and that the membership evidence to which it related should be disregarded. It also argued that because the From 80 in that case did not disclose the loan, it, and therefore all the membership evidence to which it related, were invalid. The Board rejected that argument as follows:

9. Whatever may have been the case 35 years ago when RCA Victor was decided (when, it might be noted, there was no provision in the Labour Relations Act equivalent to section 1(i)(1)), it is obvious, today, that a payment of one dollar cannot realistically be considered to be much of a "financial sacrifice". Its purpose is symbolic, and to provide a simple statutory formula for determining union membership without, in each case, an inquiry into the terms of the union constitution defining initiation requirements, membership obligations and so on. In order to facilitate the processing of certification applications (which now number well over a thousand each year), the Legislature has established a simple standard of "membership" for statutory purposes. It is important that trade unions relying on that formula adhere to the prescribed stan­dard. Ordinarily, the membership evidence is not revealed to the employer (see section 111 of the Act and Grand & Toy Limited, [1986] OLRB Rep. Sept. 1223), and against that background the Board is entitled to demand strict compliance with the statutory requirements. Failure to collect the $1.00 payment contemplated by the Act, or to conduct the inquiries necessary to complete the Form 80 declaration, can result in the rejection of the union's membership evi­dence and a dismissal of the application.

10. On the other hand, there comes a point when technical adherence to alleged "rules" drifts into artificiality and becomes increasingly remote from the real life experience of employees in the work place, whose interests must also be considered if the Board is to faithfully fulfill its statutory mandate. Does the ordinary employee in a plant, or on a construction site, seriously distinguish between a "bona fide" loan of a dollar which s/he "solemnly" undertakes to repay, or an outright gift of what, today, is a nominal amount? Does a dollar received by an employee in this way cease to be "his own", to use as s/he wishes, because it may be a gift, or there may be no undertaking or real concern about its repayment? We do not think so; moreover, as early as 1958 in Webster Air Equipment Co. Ltd., 58 CLLC ¶18,110 the Board indicated that it was "not greatly concerned about isolated instances of money being advanced by one employee to another". The Board recognized that these cash transfers were a natural incident of an estab­lished relationship between fellow employees who accommodate each other, from time to time, when they are short of funds. Usually there is an expectation of reciprocity, but no one keeps a ledger cataloguing the number of cups of coffee, soft drinks, muffins, chocolate bars or small sums owed to, or by, a fellow employee.

11. What the Board was suggesting in Webster Air Equipment, and what we here confirm, is that the Board will not ordinarily be concerned about the advance of small sums of money from one rank-and-file employee to another whether by way of "gift" or "loan", nor will they be the sub­ject of Board scrutiny, unless the evidence suggests that a union official or the "collector" or perhaps some fervent union supporter was, in effect, "buying memberships". In such cases the Board might well disregard the membership documents, altogether or seek the confirmatory evi­dence of a representation vote. However, it is totally artificial and unrealistic to focus upon the expressed or presumed "intent to repay" of an individual employee in respect of the relatively trivial sum necessary to meet a statutory requirement which today is merely symbolic.

12. In the instant case we are satisfied that Mr. Comeau, to the extent that he thought about it at all, intended to and would have repaid the dollar to Mr. Luna, if Mr. Luna had raised the mat­ter or really expected formal repayment; or, alternatively, that this minor amount was a gift, to be used by Mr. Comeau as he sat fit - either to buy a coffee or, in this case, to provide the token amount required to confirm his written intention to join the trade union and week its represen­tation. The transfer of one dollar from Mr. Luna to Mr. Comeau was a private arrangement, and, once consummated, left Mr. Comeau with a dollar to dispose of as he pleased. It was his money which was tendered on his own behalf to support his written signification that he wished to join and be represented by a trade union.

13. In conclusion then, whether the origin of the dollar in question is characterized as a "gift" or a "loan" we are satisfied that it was Mr. Comeau's money to do with as he pleased, and that advancing that sum in support of his application for union membership meets the requirements of section 1(1)(l) of the Act and provides the requisite confirmation of the written document contemplated by the statute. That being so, there is no error, omission or misstatement on the Form 80 declaration. While it might well have been wiser for the union organizer to note the long/gift that he had witnessed, (because that might have avoided these proceedings and consid­erable delay), we do not think that there was anything improper in his failure to do so.

19. We agree with the Board's reasoning in Calvano Lumber & Trim Co. Ltd., supra and find it generally applicable to this case. Moreover, to the extent that paragraph 12 of that decision suggests that some element of subjective intent may be relevant, we are satisfied that had anyone inquired of him at the time the loan was made, Craig Pugsley would have acknowledged an obliga­tion to repay it and that he was making the payment to the applicant on his own behalf. The fact that he subsequently changed his mind does not detract from the bona fides of the loan transaction or his membership card. (Indeed, we are satisfied, on a balance of probabilities, that the loan was repaid as part of the subsequent repayment of $4.00 and change by Craig Pugsley to MacFarlane.) Further, however enthusiastic a supporter of the applicant MacFarlane was, there is no suggestion in the evidence that anyone was buying Craig Pugsley's membership or that the transaction between Craig Pugsley and MacFarlane was any more that a natural incident of the relationship between them. Consequently, N. A. Constructions, [1982] OLRB Rep. Jan. 77, Belair Restoration (Ontario) Inc., [1987] OLRB Rep. Feb. 183 and Dough Delight Ltd.,, [1986] OLRB Rep. May 603, upon which the respondent relied, are readily distinguishable from the situation before the Board in this case. In the result, the Board found that the money which Craig Pugsley received from MacFarlane was his to do with as he wished and that he tendered it on his own behalf to sup­port his application for membership in the applicant.

20. We agree with the respondent's submissions that the highest level of integrity must be required of a trade union applying for certification in the collection and and presentation of the membership evidence it offers to the Board, and in the preparation and presentation to the Board of the requisite Declaration Concerning Membership Documents (in Form 9 or Form 80, as the case may be) which attests to the regularity and sufficiency of that membership evidence. A trade union must take all reasonable necessary steps to ensure that its membership evidence and Decla­ration with respect thereto truly and accurately represent what transpired. Consequently, the Board takes a very strict view of undisclosed defects or inaccuracies which are subsequently exposed (see Kitchener News Company Limited, [1980] OLRB Rep. Nov. 1656; Westinghouse Canada Inc., [1986] OLRB Rep. Feb. 295; Grand & Toy Limited, supra; Pebra Peterborough Inc., [1988] OLRB Rep. Jan. 76; P & M Electric (1982) Ltd., [1988] OLRB Rep. Aug. 843). As the cases illustrate, the declaration which must accompany membership evidence filed in support of an application for certification must be based on the personal knowledge or reasonable inquiries made by the declarant. What inquiries are reasonable will depend on the circumstances. The declarant must however have sufficient knowledge or information to enable him/her to attest that the persons shown to be collectors were the persons who actually collected the money, that each person with respect to whom a membership evidence is filed paid the amount shown on the membership evi­dence documents on his his/her own behalf to the named collector. Any exceptions to what appears on the face of the documentary evidence of membership must be set out in the declara­tion.

21. We are satisfied that Ferreira, the Form 80 declarant in this case, made sufficient inqui­ries to enable him to complete the Form 80 declaration and, further, that there were no defects or deficiencies in that declaration. Although it may be prudent to question all persons involved in membership evidence transactions, it is not generally necessary to do so (one would not, for exam­ple, expect a declarant to speak to every employee as well as every collector with respect to mem­bership evidence s/he has no personal knowledge of). In this case, Ferreira was himself the collec­tor of Craig Pugsley's card, took reasonable steps to ensure that Craig Pugsley and MacFarlane understood the significance of the loan between them, made reasonable subsequent inquiries (con­sidering that Pugsley was avoiding him), and could not have known that Pugsley was asserting that he had not repaid that $1.00 loan and that he was not intending to repay it. Further, Ferreira did reveal the loan transaction on the Form 80 declaration which is generally, in our view, a prudent though unnecessary thing to do (see Calvano Lumber & Trim Co. Ltd., supra, at para. 13). In the result, the Board was satisfied that there was no defect in the applicant's From 80 Declaration.

22. Subsequent to making the aforesaid ruling with respect to the applicant's membership evidence, the Board heard the representations of the parties with respect to the report of the Labour Relations Officer previously authorized by the Board to inquire into and report to the Board with respect to the list of employees in the bargaining unit. By decision dated June 15, 1989, the Board accepted the agreement of the parties that Robert Tremells should be excluded, and that Harold Johnson, Michael Pentz and Frank Quigley and Jeff Verbaas should be included on the list of employees. The Board further ruled that Guy Hammond, Ian Nish, David Owen and David Waters should all be excluded from the list of employees and that Ian Pugsley should be included on it. The Board went on to find that the applicant had sufficient membership support among the employees in the bargaining unit at the time the application was made to be certified as the exclusive bargaining agent therefore. The Board therefore issued two certificates to the appli­cant, pursuant to section 144(2) of the Act, as set out in paragraphs 7 and 8 of that decision. The Board's reasons for ruling as it did with respect to those of the applicant's challenges of which the parties were unable to resolve as between themselves follow.

23. First, we note that, in argument, counsel for the respondent submitted that even if the Board found that Owen, Nish and Hammond were not construction labourers on the date of appli­cation, it should include them in the bargaining unit because they shared a community of interest, on the basis of the tests set out in Usarco Ltd. [1967] OLRB Sept. 526, with construction labourers in the bargaining unit, and in order to avoid a fragmentation of employees into different bargaining units. We note that the community of interest tests in Usarco Ltd., supra, are used to determine the bargaining unit which is appropriate for collective bargaining. In this case, the parties agreed and the Board found (in its November 4, 1988 decision) a unit of construction labourers described in the manner which reflects the standard construction labourers in a bargaining unit to be appro­priate. Consequently, an employee who is not a construction labourer cannot be included in it for certification purposes. Moreover, as the Board pointed out in Ellis-Don Limited, [1988] OLRB Rep. Dec. 1254, the nature of the construction industry and the development of trade union repre­sentation in it on a craft or trade basis has created a situation where the fragmentation of bargain­ing units on the basis of crafts or trades has been (and is) the rule rather than the exception. For craft bargaining units, community of interest is primarily determined and has largely been resolved on the basis of the skills and working conditions which distinguish employees engaged in one craft or trade from those engaged in another. Finally, we note that there was no suggestion that any of the carpenters or employees in any other trade which, were or may be from time to time, be employed by the respondent should be included in the bargaining unit herein as "construction lab­ourers' or otherwise on the basis of any community of interest. In the result, we were not per­suaded that anyone who was not a construction labourer on the date of application should be included in the bargaining unit herein for the purpose of this application.

24. The evidence in the Labour Relations Officer's report reveals that the time cards sub­mitted by the respondent are not a particularly reliable indicator of what the employees to whom they relate did on any given day. These time cards were not used for costing purposes. Indeed, it is evident from the testimony of Jim McGown and Robert Scott (both of whom are project superin­tendents for the respondent at all material times) that their only real purpose was to ensure that employees were paid for all the hours they worked, rather to record what work they did or even when they actually worked. For example, the respondent agreed that the time card of one of the employees who had been challenged by the applicant, Robert Tremells, was inaccurate except insofar as it indicated the total number of hours he worked. With respect to another employee, Waters, Scott's testimony revealed that some of his time cards were mocked up so that a pay cheque could be generated for hours which had been worked during a previous pay period but not been paid for. The evidence also reveals that the time cards for Owen and Hammond do not neces­sarily reflect the work that they did either. Finally, the evidence revealed that the time cards were completed in varying degrees of detail depending on which of several people completed them, whether they were completed on the basis of personal knowledge or on the basis of information received from someone else, and when they were completed (relative to how busy the person com­pleting them was and when they were required for payroll purposes). In that regard, we note that McGown admitted that the people who completed the sheets (including, it appears, himself) were "kind of lazy at times" in filling out the time cards and that "if [an employee] has worked half the day doing one thing and half a day doing the other sometimes we will put him in for the whole day, one day put one thing in for ease of time sheets and the next we will put him in to a different thing for eight hours so that ... to try and make filling the time sheets out perhaps a little easier, and tend to be his hours for maybe two days." Consequently, the Board gave the respondent's time cards little weight as a general matter, and no weight where they conflict it with other evidence which the Board considered to be cogent and reliable. Because Scott's testimony was based largely on the very time cards which we found to be unreliable, his evidence with respect to the matters in issue is similarly unreliable. For that reason, and because it appeared that he tended to tailor his testimony to what appeared to be in the respondent's best interest, the Board gave Scott's testimony little weight.

25. The evidence with respect to David Owen was less than satisfactory. However, it does reveal that he was considered by the respondent to be its regular and preferred truck driver for the purpose of picking up materials and delivering them to job sites. He also considered himself to be, and was considered by at least some other employees to be, a truck driver. Although he did do demolition and clean-up work as well, he estimated that he spent at least half of most working days driving a truck. On some days he did little or no driving and on others he spent the whole day driv­ing. There was little reliable evidence with respect to what Owen did on the date of application. In that respect, we note that the time cards, which contained no indication that Owen spent any time driving, are wholly inconsistent with the viva voce evidence before the Board. Accordingly, these time cards are, in our view, completely unreliable as evidence of what Owen did during any partic­ular day or week, and particularly with respect to what he did on the date of application, and we therefore gave them no weight. On balance, and having regard to the evidence as a whole, how­ever, we were satisfied that it was more probable than not that Owen spent a majority of his time on the date of application working as a truck driver in the construction industry (see E & E Seeg­miller Limited, [1987] OLRB Rep. Jan. 41; Gilvesy Enterprises Inc., [1987] OLRB Rep. Feb. 220; Runnymede Development Corporation Limited, [1988] OLRB Rep. Sept. 976). However, truck drivers are not included in a bargaining unit of construction labourers. Accordingly, the Board ruled that Owen should be excluded from the list of employees.

26. There was no doubt that Guy Hammond was the principal hoist operator at the respon­dent's Elgin Theatre job site and that he spent at least half of his time operating a hoist. On his estimate, which we accepted, he generally worked five to 6 hours out of every 8 as a hoist operator. The evidence is also quite clear that Ian Nish was the respondent's hoist operator at its 393 Univer­sity Avenue job site. Neither Hammond or Nish spent all of their time as hoist operators. Both spent some of their time performing demolition and clean-up work completely unrelated to the operation of the hoist. In addition to actually operating a hoist, Hammond and Nish assisted in loading and unloading it, and were responsible for cleaning up around the hoist. In our view, none of this detracts from the fact that their primary responsibility was to operate, and to be available to operate, a hoist. A hoist operator does not cease to be a hoist operator because he performs work associated with a hoist (like, for example, loading or unloading the hoist, or cleaning up around a hoist) any more than he ceases to be a hoist operator if s/he stands idle in or around the hoist while it is not operating for some reason. Although the evidence with respect to what work Hammond did on the date of application is less than satisfactory, the evidence taken as a whole suggests that it is more probable than not that he spent at least a majority of his time on that day performing hoist-related work. The evidence with respect to Nish was clear and led us to conclude that he also spent a least the majority of his time on the date of application performing hoist related work. Conse­quently, we found Hammond and Nish to be hoist operators for purposes of this application. As such, they were not construction labourers and were not properly included on the list of employees (see H & D Construction, [1987] OLRB Rep. Dec. 1495).

27. The applicant and the respondent agreed that Ian Pugsley and David Waters performed the work of construction labourers when they worked for the respondent. They could not, how­ever, agree whether they, or either of them, were at work on the date of application. The applicant asserted that Ian Pugsley was at work and that Waters was not. The respondent took the contrary position in each case.

28. Both parties agreed that Waters was a part-time employee. Although Scott suggested that Waters worked some week-days in August, 1988, he had no personal knowledge that that was the case. That seemed somewhat odd since Scott, who was the project superintendent at the project at which Waters worked, worked every week-day (according to his own testimony) and one would expect him to have some personal knowledge of Waters' working hours. Waters' time cards were of no assistance because they were completed without regard to the days on which he actually worked. Their purpose was to ensure only that Waters was paid for the appropriate number of hours. There is no indication that any of the other employees knew him to work weekdays in August 1988 or that any one had seen him on the date of application. Finally, Waters himself did not recall working any more than a weekend or two for the respondent in August 1988. Conse­quently, we were satisfied that it was more probable than not that Waters was not at work on the date of application and that he should therefore be excluded from the list of employees.

29. Ian Pugsley worked for both the respondent and another company, the Brick Doctor, in August 1988. In our view, there was no cogent evidence which suggested that he was not working as a construction labourer for the respondent on the date of application. Nor was there any cogent evidence which tended to contradict Ian Pugsley's assertion that he worked for the Brick Doctor, then for the respondent, and then briefly for the Brick Doctor again in August 1988. On balance, the evidence suggests that it was more probable than not that Ian Pugsley was at work as a con­struction labourer for the respondent on the date of application and that he should therefore be included on the list of employees.

30. We note that the complaint in Board File No. 1352-88-U herein was subsequently with­drawn with leave of the Board.