International Union of Operating Engineers, Local 793 v. Kraft Construction Company (1978) Ltd., 1989 CanLII 3079

[1989] OLRB Rep. February 169

1469-88-R International Union of Operating Engineers, Local 793, Applicant v. Kraft Construction Company (1978) Ltd., Respondent

BEFORE: G. T. Surdykowski, Vice-Chair, and Board Members W. Gibson and C. A. Ballentine.

APPEARANCES: Jack J. Slaughter, Ken Lew and Brian Madigan for the applicant; no one appear­ing for the respondent.

DECISION OF THE BOARD; February 21, 1989

1. This application came on for hearing on February 8, 1989 for the purpose of hearing the evidence and representations of the parties with respect to all matters arising out of and incidental to it.

2. No one appeared at the hearing on behalf of the respondent. Upon hearing and consid­ering the representations of the applicant, the Board ruled (orally), pursuant to section 144(1) of the Labour Relations Act, that all employees engaged in the operation of cranes, shovels, bulldoz­ers and similar equipment, and those primarily engaged in the repairing or maintaining of same in the employ of the respondent in the industrial, commercial and institutional sector of the construc­tion industry in the Province of Ontario, and all employees engaged in the operation of cranes, shovels, bulldozers and similar equipment, and those primarily engaged in the repairing or main­taining of same in the employ of the respondent in all other sectors of the construction industry in the District of Thunder Bay, 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. The Board further ruled that all employees of the respondent engaged as surveyors are included in the bargaining unit, but that no clarity note was required in that respect.

3. The operation of businesses and the nature of employment in the construction industry are unlike those in other industries. They have resulted in the development of construction crafts or trades and a concomitant development of construction trade unions along craft of trade lines. In recognition of this, the Labour Relations Act and the Board approached construction applications for certification differently from non-construction applications.

4. While section 6(1) of the Act gives the Board a discretion in determining "the unit of employees that is appropriate for collective bargaining", that discretion is limited, in applications for certification in the construction industry, by sections 6(3) and 144 of the Act.

5. Section 144 covers all applications for certification in the construction industry (see Clarence H. Graham Ltd., [1981] OLRB Rep. Sept. 1195; Ninco Construction Ltd., [1982] OLRB Rep. Nov. 1692; Manacon Construction Ltd., [1983] OLRB Rep. March 407 and July 1104). Under the province-wide bargaining provisions of the Act, some trade unions are designated to represent certain specific trades or crafts in bargaining in the industrial, commercial and institu­tional ("ICI") sector of the construction industry. A trade union represented by a designated employee bargaining agency may, at its option, apply for certification under either section 144(1) or (3), or enter into voluntary recognition agreements under section 144(4). Trade unions which are not represented by a designated employee bargaining agency, and which are therefore not cov­ered by sections 144(1) through (4) of the Act, such as the Christian Labour Association of Canada, can apply for certification or enter into voluntary recognition agreements in the construc­tion industry under section 144(5).

6. The designation orders (which are issued pursuant to section 139(1)) describe the pro­vincial units of employees contemplated by the province-wide collective bargaining scheme estab­lished by the Act for the ICI sector of the construction industry in terms of crafts or trades, and designate, for each such bargaining unit, an employer and an employee bargaining agency. In effect, such order designates the trade(s) or craft(s) which "belongs" to each employee bargaining agency and its affiliated bargaining agents. Employee bargaining agencies, and their affiliated bar­gaining agents, can only represent, in the province-wide ICI collective bargaining scheme, those employees who are in a craft or trade they have been designated to represent (see Ninco Construc­tion Ltd., supra; Manacon Construction, supra; Superior Plumbing and Heating Ltd., [1986] OLRB Rep. Nov. 1589; D.E. Witmer Plumbing and Heating Ltd., [1987] OLRB Rep. Oct. 1228). In fact, the structure of the Act requires an employee bargaining agency to represent all parts of the trade(s) or craft(s) it has been designated to represent in ICI bargaining. Consequently, in applications for certification under section 144(1), the Board, although not necessarily bound to use the precise words of the designation order, cannot describe an ICI sector bargaining unit in a manner which is inconsistent with the relevant designation order. To accommodate this designa­tion system, and recognizing that trade union representation of the construction industry has his­torically been along trade or craft lines, the Board's general practice, in applications under section 144(1), is to describe bargaining units in terms of the relevant trade in using the words of the rele­vant designation order. Further, the Board has held that where a trade union seeks to be certified for a bargaining unit limited to a particular craft or trade (as an affiliated bargaining agent must do in an application which relates to the ICI sector of the construction industry), all employees per­taining to that trade or craft who are at work on the date of application must be included in the bargaining unit for certification purposes (see, for example, Dufresne Piling Co., (1967) Ltd., [1984] OLRB Rep. July 924).

7. The applicant is an affiliated bargaining agent of a designated employee bargaining agency; namely, the International Union of Operating Engineers and Local 793 of the Interna­tional Union of Operating Engineers. That employee bargaining agency is designated to represent in bargaining "all employees engaged in the operation of cranes, shovels, bulldozers or similar equipment, and those primarily engaged in the repairing or maintaining of same, and employees engaged as surveyors" represented by its various affiliated bargaining agents in the ICI sector of the construction industry in Ontario. Accordingly, employees engaged as surveyors have been deemed to have a community of interest with those who operate, or repair or maintain such equip­ment, and all are equally operating engineers.

8. Since the enactment of the province-wide bargaining scheme, including section 144, in 1978, the Board has granted the applicant herein three different kinds of certificates: (a) for employees engaged in survey work ("surveyors") alone; (b) for employees engaged in the operation of cranes, shovels, bulldozers and similar equipment and those primarily engaged in the repairing or maintaining of same ("operators") and surveyors; and (c) for operators alone.

9. In Stone and Webster Canada Limited, [1987] OLRB Rep. April 607, the Board found that:

10. From the evidence before the Board, it appeared that the International Union of Operating Engineers, Local 793 ("Local 793") had applied to the Board to be certified as the bargaining agent of employees engaged as surveyors for several construction companies. From a recital in a collective agreement between the Sarnia Construction Association and Local 793 which was admitted in evidence, it appeared that jurisdiction over non-professional survey crews had been transferred to the International Union of Operating Engineers in a letter dated January 25, 1965, from the American Federation of Technical Engineers. The earliest certificate in evidence before the Board was issued by the Board to Local 793 in 1968. The bargaining unit in that case was all instrumentmen, rodmen and chainmen (in a geographic area) save and except party chief and those above the rank of party chief". Over the next ten years the Board issued twelve certificates to Local 793 with bargaining units defined in similar terms in various geographic areas in Ontario. Each of these applications for certification was entertained by the Board as an application for certification under the construction industry provisions of the Labour Relations Act. Since the advent of the legislative scheme of provincial bargaining in the industrial, com­mercial and institutional sector of the construction industry in 1978 the Board has issued a num­ber of certificates to Local 793 with respect to bargaining units defined in terms of the standard bargaining unit description of operating engineers and employees engaged as surveyors or con­fined to employees engaged as surveyors with no reference to operating engineers. The most recent certificate which was referred to the Board was issued in 1982. The provincial collective agreement between the Operating Engineers Employer Bargaining Agency and the Operating Engineers Employee Bargaining Agency contains a schedule which covers and applies to employers engaged in survey work within the Province of Ontario. The schedule refers to the classifications of instrumentman, senior and junior rodman, chainman and party chief. The schedule also sets out the scope of their duties and responsibilities. Local 793 has entered into sixteen collective agreements which cover "employees engaged as surveyors, in all sectors of the construction industry in the Province of Ontario and engaged in any such work outside of the construction industry in the said Province."

11. From the evidence before the Board it is clear that Local 793 has a history of acquiring bar­gaining rights for employees engaged as surveyors and of entering into collective agreements with respect to such employees. Moreover, the acquisition and exercise of these bargaining rights has occurred within the construction industry across the Province of Ontario. The Labour­ers' International Union's history in acquiring and exercising bargaining rights for employees engaged as surveyors is limited to Local 183, confined to the area around Metropolitan Toronto and is limited to survey companies that do not operate as employers in the construction indus­try. The bargaining history of Local 793 with respect to employees engaged as surveyors is of a far greater extent and is far more pertinent to the construction industry than is any comparable history within the Labourers' International Union. This bargaining history appears to have been recognized by the Minister of Labour when on March 31, 1978, she designated Local 793 and the International Union of Operating Engineers as the employee bargaining agency to represent employees engaged as surveyors in the industrial, commercial and institutional sector of the con­struction industry in the Province of Ontario pursuant to section 139(1) of the Labour Relations Act.

12. The terms 'surveying" and "surveyors" cover a range of activities, surveying may be regarded as the process of measuring and delineating the contours, dimensions and positions of any part of the earth's surface and the relationship of one point relative to any other point. Sur­veying on the earth's surface involves the intricacies of geodetic surveying down to the simple surveys performed by municipalities and on construction sites. On construction sites the com­plexity and permanence of the job will dictate whether the surveying will require co-ordinates and the construction of a grid on a plan or simply the determination and sketching of lines, curves and angles during the initial aspects of construction. The term surveyors likewise embraces a range of abilities and training. Not all surveyors are covered by the Labour Relations Act and section 1(3)(a) specifically states that, subject to to section 90, for the purposes of the Labour Relations Act, no person shall be deemed to be an employee who is a member of the land surveying profession entitled to practise in Ontario and employed in a professional capac­ity. Ontario land surveyors are covered by this exclusion. The employees who are affected by this application are not members of the land surveying profession. These employees are non­professional surveyors as that term is commonly understood in the construction industry. The interpretation given to "surveying" and "surveyors" also varies on construction sites even among construction trades unions. This is particularly true with respect to layout work which is sometimes considered to be outside the term "surveyors". For example, in Commonwealth Con­struction Company Limited (Board File No. 1630-76-R, decision dated January 11, 1977), the Board in determining an appropriate bargaining unit of surveyors on an application by Local 793, excluded from the bargaining unit, by a clarity note, "a person who uses any instrument or tool for layout work incidental to the trade of carpentry". In that case the employer was bound by a collective agreement which included a specific reservation of such work for carpenters. Moreover, the definitions of "rodman, chainman or stakeman" and "grader" referred to in paragraph 12 indicate that they do not use instruments notwithstanding their titles.

13. The evidence established that there are differences in skill and ability among the classifica­tions of rodman, levelman and instrumentman. It is readily apparent that a rodman may be ade­quately trained on the job in a matter of days. In the case of a levelman and an instrumentman, the necessary skill and ability is produced by post-secondary instruction and training with on-the-job experience. There was evidence that on this project construction labourers could and did become rodmen. There was no similar evidence with respect to construction labourers who became levelmen and instrumentmen. The applicant may well number among its membership individuals who are competent levelmen or instrumentmen. However, there was no evidence that on this project any of the levelmen or instrumentmen were construction labourers. The course on pipelaying and concrete offered by the International offered an opportunity for con­struction labourers to understand the uses of surveying and no doubt takes some of the mystery out of the process. It appears to the Board that the part of the course dealing with surveying enables construction labourers with ability and ambition to become levelmen and then instru­mentmen. Having regard to the unchallenged evidence before the Board, such a course does not produce competent levelmen or instrumentmen. On the evidence before the Board, there was no one on the list of employees who was a construction labourer who had engaged in survey work. There was reference to a Ken Cameron who had worked as a construction labourer and who had had his classification changed to rodman. However, Mr. Cameron's name did not appear on the list of employees who would fall within the bargaining unit and accompanying clarity note proposed by the applicant. Having regard to the provisions of section 6(1), this application is dismissed.

14. The Board also examines the effect of the provisions of the Labour Relations Act on this application for certification. This application is an application for certification under section 144(1) of the Labour Relations Act. Section 144(1) of the Act provides:

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.

Such an application may be brought by either an employee bargaining agency or one or more affiliated bargaining agents of an affiliated bargaining agency on behalf of all affiliated bargain­ing agents of the employee bargaining agency. The unit of employees is required to include all employees who would be bound by a provincial agreement together with all other employees in at least one appropriate geographic area. It was agreed that the applicant is an affiliated bar­gaining agent. The evidence before the Board does not establish that the applicant is a bargain­ing agent that, according to established trade union practice in the construction industry, repre­sents employees engaged in survey work who commonly bargain separately and apart from other employees within the meaning of section 137(1) of the Labour Relations Act.

20. In Clarence G. Graham Construction Limited, [1981] OLRB Rep. Sept. 1195, the Board held that section 144 of the Labour Relations Act deals with all possible applications for certifi­cation in the construction industry. Since this application refers to the industrial, commercial and institutional sector of the construction industry, it may only be made pursuant to section 144(1). In Manacon Construction Limited, [1983] OLRB Rep. Mar. 407, the Board considered the requirements of section 144(1) and stated in paragraphs 34 and 35 at pages 423-424 as fol­lows:

21. Section 144(1) also sets certain requirements for the bargaining unit that will be appropriate. It stipulates that:

…...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.".

[emphasis added]

35. A provincial agreement is, by definition, a collective agreement which, amongst other things, contains provisions respecting '. . .the rights, privileges or duties of.. .the affiliated bargaining agents represented by the employee bargaining agency..." and provisions respecting .... .terms or conditions of employment of.. .the employees rep­resented by the affiliated bargaining agents and employed in the [ICI] sector...". Thus a provincial agreement deals with the bargaining rights held by affiliated bargaining agents represented by their employee bargaining agency. In turn, the first require­ment of the definition of "affiliated bargaining agent" in section 137(1)(a), as noted at paragraph 30, is that it be a bargaining agent that ". . according to established trade union practice in the construction industry, bargains separately and apart from other employees...". From reading those two definitions together, and in the context of the requirement of section 144(1) that ". . .the unit of employees shall include all employ­ees who would be bound by a provincial agreement...", it may be seen that those employees represented by the trade union making application under subsection 1 '~...who commonly bargain separately and apart from other employees are the ones who would be covered by a provincial agreement.

36. The applicant is an affiliated bargaining agent of an employee bargaining agency which has been designated to represent both operators and surveyors in bargaining in the ICI sector of the construction industry, and, as Stone and Webster Canada Limited, supra, observed, both oper­ators and surveyors are covered by the same provincial collective agreement, and are therefore in the same bargaining unit. In short, in the construction industry, surveying has been deemed, for purposes of applications for certification under the Labour Relations Act, to be part of the operat­ing engineer craft or trade.

37. In recent years, the Board has attempted to streamline its approach to construction industry applications for certification. For example, it has focused on the date of application in determining the number of employees in a bargaining unit for certification purposes (see, for example, 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; Bill Brownlee Excavating Limited, [1988] OLRB Rep. Apr. 364 and July 645). The Board has attempted to create as certain, equitable, and expeditious means as possible for disposing of appli­cations for certification.

38. In all of the circumstances, it seems to make little sense to bifurcate the employees who are covered by the same provincial agreement and which an employee bargaining agency and its affiliated bargaining agents have been designated to represent for certification purposes. In the case of the applicant, not only does it create situations in which a bargaining unit may be described in terms which are not (entirely) consistent with the relevant designation order (see paragraph 6 above), it also creates uncertainty with respect to how the Board might describe a bargaining unit and, concomitantly, what employees would be included in it for certification purposes. In our view, both surveyors and operators must be included in a bargaining unit applied for by the applicant for certification purposes. The bargaining unit description should also reflect this. Consequently, the applicant's standard bargaining unit for certification purposes should mirror the designation order and should include operators (as defined in paragraph 8 above) and surveyors, whether or not there are present, or contemplated, employees in all the classifications mentioned in the bargaining unit description (by analogy see D. E. Witmer Plumbing and Heating Limited, supra, at para 9).

39. In the result, we find it appropriate, pursuant to our powers under section 106(1) of the Act, to vary our oral ruling as aforesaid by including the reference to employees engaged as sur­veyors in it. Consequently, the Board finds, pursuant to section 144(1) of the Act, that all employ­ees engaged in the operation of cranes, shovels, bulldozers and similar equipment, and those pri­marily engaged in repairing or maintaining of same, and employees engaged as surveyors, in the employ of the respondent in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario, and all employees engaged in the operation of cranes, shovels, bulldozers and similar equipment, and those primarily engaged in the repairing or maintaining of same, and employees engaged as surveyors, in the employ of the respondent in all other sectors of the construction industry in the District of Thunder Bay, 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.

40. The list of employees filed by the respondent contains five names on Schedule A. The applicant challenges the inclusion of the three (John Buchanan, Paul Merrifield, and Ken Sundell) identified as being "equipment operators". It agrees that these individuals were equipment opera­tors on the date of application but asserts that they were not employees of the respondent.

41. In the circumstances, the Board finds it appropriate to authorize a Labour Relations Officer, to be designated by the Registrar, to inquire into and report to the Board with respect to whether John Buchanan, Paul Merrifield and Ken Sundell (or any of them) were employees of the respondent on the date of application. In the circumstances, namely that this phase of the project is expected to end in about one month, the Labour Relations Officer is directed to perform a check of the employer's records for that purpose and report to the Board with respect thereto before pro­ceeding with any examinations. The parties will be given an opportunity to make submissions with respect to the Officer's report to the Board in that respect.