[1989] 0LRB Rep. April 319
3220-88-R International Union of Operating Engineers, Local 793, Applicant v. B. Maskeli Limited, Respondent
BEFORE: G. T. Surdykowski, Vice-Chair, and Board Members W. N. Fraser and P. V. Grasso.
DECISION OF THE BOARD; April 20, 1989
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.
This is an application for certification within the meaning of section 119 of the Labour Relations Act and is an application made pursuant to section 144(1) of the Act.
The respondent filed a reply, a list of employees, and specimen signatures for those employees within the time fixed therefore in accordance with the Labour Relations Act and the Board's Rules of Procedure.
In a letter which accompanied its filings, the respondent writes that:
The application was received on Friday, April 7th, which allowed me only 4-1/2 working days to seek legal advise [sic], research my position and submit my response, and I feel that this was totally inadequate preparation [sic) to meet the Terminal date of today. It furthermore did not allow my employees time to research their position since being approached on the job site by the union, nor to seek their own legal advice, especially concerning an objection to certification.
Please clarify one point for me. Did the union representative have the right to interrupt over [sic] work on the job site in order to conduct his recruitment program?
Under cover of letter dated April 5,1989, the Registrar sent the respondent notice of this application together with the other requisite documents with respect thereto in accordance with the Board's Rules of Procedure. Section 91 of the Board's Rules of Procedure stipulates that, where the Registrar causes the respondent to an application for certification in the construction industry to be served by mail, the terminal date for the application shall be fixed not less than 4 and not more than 6 days after "the day immediately following the day on which the Registrar mails the notices". Because Saturdays are counted but Sundays are not for such purposes, April 13, 1989, which was the terminal date fixed for the application, was the latest date which could have been fixed therefor in accordance with the Board's Rules of Procedure. Also, it has been the Board's experience that 4-1/2 days is a sufficient period of time for an employer to assess its position and prepare its "response". Even though it is not generally permissible for an employer to make representations of the kind it appears the respondent has purported to make on behalf of its employees in an application for certification (see Image Painters L.M. Inc., [1988] OLRB Rep. Aug. 807; Federated Building Maintenance Company Limited, [1979] OLRB Rep. Oct. 974), 4-1/2 days is generally also an adequate period of time for such employees to take whatever step they feel to be appropriate.
With respect to the question posed in the last paragraph of the respondent's letter, the Board does not advise parties. They can, if they wish, obtain such advice elsewhere and, if they find it appropriate to do so, make allegations of any improper or irregular conduct. Any such allegations must, of course, be particularized in accordance with the provisions of section 72 of the Board's Rules of Procedure.
In paragraph 14(3) of its reply, the respondent requested a hearing of the application by the Board. In support of its application it states:
a) To the best of my knowledge, the application for certification is without foundation, and does not have the support of any of my employees.
b) The bargaining unit proposed by the applicant is totally inappropriate, in that its composition consisting of operators of cranes, shovels, bulldozers and similar equipment and those primarily engaged in the repair and maintenance of same, does not have any similarity in interest to those engaged in surveying.
Also, the proposed bargaining unit contains employees of the respondent who exercise managerial functions, i.e. Party Chiefs.
In conclusion, in review [sic] of this, the respondent submits that the application should be denied.
The construction industry provisions of the Act generally, and specifically section 102(14), together with the Board's Rules of Procedure with respect to applications for certification in the construction industry, enable the Board to dispose of such applications in an expedited manner without an oral hearing. Section 97 of the Board's Rules of Procedure requires a party requesting hearing to set out, in writing, the material facts upon which it relies, the relief it seeks, and the submissions it proposes to make at the hearing in support of its request therefor. The Board will not hold a hearing where irrelevant reasons are given in support of the request for one, or where the employer questions whether its employees really wish to be represented by the applicant but fails to particularize any allegation(s) in that respect. Generally, a hearing becomes necessary when there is a dispute with respect to some material fact or the Board needs or wishes to have the evidence or representations of the parties with respect to one or more issues before the application can be disposed of (see Black & MacDonald Limited, [1987] OLRB Rep. Oct. 1208; Dewform Ltd., Board File No. 0771-88-R, July 14, 1988 unreported). In this case, the materials filed are sufficient to enable the Board to dispose of the applicant and, in our view, there is no other reason to hold a hearing.
Section 1(3) of the Act provides, inter alia, that, subject to section 90 (which is not relevant to our conside ratios herein), no person who exercises managerial functions, or who is a member of the land surveying profession entitled to practise in Ontario and is employed in a professional capacity shall be deemed to be an employee for purposes of the Act. Accordingly, and having regard to the Board's decision in Kraft Construction Company (1978) Ltd., [1989] OLRB Rep. Feb. 169, and pursuant to section 144(1) of the Act, 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 District of Thunder Bay engaged in the operation of cranes, shovels, bulldozers and similar equipment and those primarily engaged in the repairing or maintaining of same and those engaged as surveyors, save and except non-working foremen and persons above the rank of nonworking foreman, constitute a unit of employees of the respondent appropriate for collective bargaining.
In support of this application for certification, the applicant filed three combination application for membership and attached receipt documents. All three are signed by the employees to whom they refer and the receipts are countersigned and indicate that a payment of $1.00 has been made within the six-month period immediately preceding the terminal date for the application. The applicant also filed a duly completed Form 80, Declaration Concerning Membership Documents, Construction Industry which attests to the regularity and sufficiency of this membership evidence.
The list of employees filed by the respondent contains four names on Schedule A. Two of the individuals named have been classified by the respondent as "party chief'. The Board is satisfied, however, that whether or not either or both of these individuals are professional land surveyors so employed or exercise managerial functions, that more than fifty-five per cent of the employees of the respondent in the bargaining unit, at the time the application was made, were members of the applicant on April 13, 1989, 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(10 of the Act.
Consequently, for the reasons given in Robin Hood Multi-Foods Inc., [1985] OLRB Rep. July 1159, (at paragraphs 6 to 11) with which we agree and adopt herein, there is no need to delay the disposition of this application (see also Superior Contracting [1988] OLRB Rep. Dec. 1348.
Consequently, and pursuant to the provisions of section 144(2) of the Act, a certificate will issue to the applicant affiliated bargaining agent on its own behalf and on behalf of all other affiliated bargaining agents of the employee bargaining agency named in paragraph 1 above in respect of all employees of the respondent in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario, engaged in the operation of cranes, shovels, bulldozers and similar equipment and those primarily engaged in the repairing or maintaining of same and those engaged as surveyors, save and except non-working foremen and persons above the rank of non-working foreman.
Further, and also pursuant to section 144(2) of the Act, a certificate will issue to the applicant in respect of all employees of the respondent in all sectors of the construction industry in the District of Thunder Bay, excluding the industrial, commercial and institutional sector, engaged in the operation of cranes, shovels, bulldozers and similar equipment and those primarily engaged in the repairing or maintaining of same and those engaged as surveyors, save and except non-working foremen and persons above the rank of non-working foreman.