Ontario Labour Relations Board

[1989] OLRB Rep. June 682

2455-87-R International Union of Operating Engineers, Local 793, Applicant v. Wraymar Construction and Rental Sales Ltd., Respondent v. Group of Employ­ees, Objectors

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

APPEARANCES: S. B. D. WahI and A. Luchak for the applicant; Joseph Liberman and Margaret Gurney for the respondent; William Challis and James Devereux for the objectors.

DECISION OF THE BOARD; June 19, 1989

1. At this stage of this proceeding, the Board must decide whether it is appropriate to use the Gilvesy test to determine which persons should be included in an operating engineers' construc­tion industry bargaining unit for purposes of the count in an application for certification made pur­suant to section 144(1) of the Labour Relations Act. In doing so, the Board must examine the effect, if any, of section 117(b) on such determinations.

2. The operation of businesses and the nature of employment in the construction industry are unlike those in other industries (see Smiths Construction Company, (1984] OLRB Rep. March 521; J. A. Willes, The Craft Bargaining Unit, Industrial Relations Centre, Queens University, 1970); G. W. Adams, Q.C., Canadian Labour Law, (Canada Law Book Inc., Aurora, 1985) at pages 863 to 893; Arlington Crane Service Limited et al. v. Minister of Labour and The Attorney General of Ontario et al. (1989) 1988 CanLII 4802 (ON HCJ), 67 O.R. (2d) 225). Many construction industry employers arrange their affairs so that they employ persons in one or more specific trades or crafts to do the work of that trade or craft as required. The nature of employment in the construction industry, which has developed in part as a result of the manner in which construction employers tend to operate, has been partly responsible for the development of construction crafts or trades, and for the concomi­tant development of construction trade unions along craft or trade lines. In recognition of this, the Labour Relations Act and the Board approach construction industry applications for certification differently from non-construction applications.

3. Section 6(1) of the Act gives the Board a discretion in determining "the unit of employ­ees that is appropriate for collective bargaining". In applications for certification relating to the construction industry, that discretion is limited by sections 6(3), 119, 139, and 144 of the Act.

4. All applications for certification in the construction industry are made pursuant to sec­tions 119 and 144 (see Clarence H. Graham Ltd., [1981] OLRB Rep. Sept. 1195; Ninco Construc­tion Ltd., [19821 OLRB Rep. Nov. 1692; Manacon Construction Ltd., 11983] OLRB Rep. March 407 and July 1104). Under the province-wide bargaining provisions of the Act, there are organiza­tions of trade unions, referred to as designated employee bargaining agencies, which are desig­nated to represent in bargaining in the industrial, commercial and institutional ("ICI") sector of the construction industry those employees in certain specified trades or crafts who are represented by the trade unions, referred to as affiliated bargaining agents, which constitute them. A trade union which is an affiliated bargaining agent 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 are therefore not affiliated bargaining agents to which by sections 144(1) through (4) of the Act apply, 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).

5. For the trade unions to which they apply, the designation orders issued pursuant to sec­tion 139(1) describe the provincial units of employees for the province-wide collective bargaining scheme established by the Act for the ICI sector of the construction industry in terms of trades, and designate, for each such provincial bargaining unit, an employer and employee bargaining agency. In effect, such orders designate the trade(s) which "belongs", for purposes of the prov­ince-wide bargaining scheme, 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 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) 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 in 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 and to use the words of the relevant designation order. Indeed, the Board has held that where (as in this case) a trade union seeks to be certified for a bargaining unit limited to a particu­lar craft or trade (as any affiliated bargaining agent must in an application which relates to the ICI sector of the construction industry), all employees pertaining to that craft or trade 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).

6. Once the appropriate bargaining unit has been determined, the Board must, before it can dispose of an application for certification, determine the number of employees in it, and the number of those employees who are members of the applicant trade union at the material time (section 7(1) of the Act). In order to accommodate the unique nature of employment in the con­struction industry, the Board's approach is to take a snapshot of the business and employees of a construction industry employer with respect to which it has received an application for certifica­tion. While the date of application has always been important in that respect (see Smiths Construc­tion Co., sup ra) , the Board's approach has (relatively) recently become even more focused on that date (see E & E Seegmiller Limited, [1987] OLRB Rep. Jan. 41; Gilvesy Enterprises Inc., [1987] OLRB Rep. Feb. 220).

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 has been designated, pursuant to section 139(1) of the Act, 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.

8. By decision dated February 26, 1988, the Board, (differently constituted) found, at paragraph 9, that:

...all employees of the respondent engaged in the operation of cranes, shovels, bulldozers or similar equipment and those primarily engaged in the repairing or maintaining of same in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario and in all other sectors of the construction industry, save and except the industrial, commercial and institutional sector in the Regional Municipality of Waterloo (except that por­tion of the geographic Township of Beverly annexed by North Dumfries Township), [that is, in Board Area 6] 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.

(We note that this determination was made prior to the release of the Board's decision in Kraft Construction Company, (1978) Limited, [1989] OLRB Rep. Feb. 169).

9. Because of the designation order and the description of the bargaining unit which the Board has found to be appropriate, those persons employed by the respondent in the ICI sector or in any other sector of the construction industry in the geographic area referred to in the bargaining unit description who are primarily engaged in the repairing or maintaining of cranes, shovels, bull­dozers and similar equipment (hereinafter "mechanics") must be included in the bargaining unit. The question is whether this applies to both on (construction) site and off (construction) site mechanics.

10. 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. Jaifrey 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.

(See also Gilvesy Enterprises Inc., supra at paragraph 21).

11. Since then, the Board has consistently applied the tests suggested in Seegmiller, supra and Gilvesy, supra, and, for the purpose of applications for certification in the construction indus­try, has determined that employees must have spent a majority of their time on the date of applica­tion performing work in a trade or craft to which the application relates as an employee of the respondent employer. In applying the Gilvesy test, as it has come to be referred to~ in Runnymede Development Corporation Limited, [1988] OLRB Rep. Sept. 976, the Board noted that:

The tests suggested in E & E Seegmiller, supra (and Gilvesy, supra) have been consistently applied by the Board since those decisions issued. It is evident that the purpose for looking to other criteria when there is no conclusive evidence with respect to the work being performed on the date of application is to determine whether it is more probable than not that the individual in dispute was an employee in the bargaining unit on the date of application. The fact that "pri­mary reason for hire" was specifically mentioned in E & E Seegmiller, supra (and in Gilvesy, supra) does not mean that that factor will necessarily be any more (or any less) significant in any given case. It is merely an example of what the Board will consider to be a relevant factor. It is unnecessary, and probably inappropriate (and impossible), to try to set out any exhaustive list of facts that the Board will consider to be relevant. What factors are relevant, and what weight is to be given to any relevant factor, will depend on the circumstances of each case. We also observe that in E & E Seegmiller, supra and Gilvesy, supra, the Board was concerned with on-site employees only. Clause 117(b) of the Act contemplates that off-site employees who are commonly associated in their work or bargaining with on-site employees will be included in a construction industry bargaining unit and a "work done on date of application test" does not seem to be suited to resolving disputes with respect to off-site employees (see Bill Brownlee Excavating Limited, [1988] OLRB Rep. Apr. 364).

In this case, the Board must address the issue raised in Runnymede Development Corporation Limited, supra; namely, how does section 117(b) apply, if at all, to the issue of which employees should be included on the list of employees in this, or any, construction industry bargaining unit?

12. In Bill Brownlee Excavating Limited, [1988] OLRB Rep. Apr. 364 (application for reconsideration dismissed [1988] OLRB Rep. July 645), which was also an application for certifica­tion made by the applicant herein pursuant to section 144(1) of the Act, the Board rejected a sug­gestion that it should depart from the Gilvesy test. In that case also, the Board concluded that mechanics (that is, persons primarily engaged in repairing or maintaining cranes~ shovels~ bulldoz­ers or similar equipment) employed by that respondent who regularly performed repair or mainte­nance work both on construction-sites and in a "shop" were commonly associated in their work with on-site employees within the meaning of section 117(b) of the Act. One of the respondent's mechanics in that case spent the entire date of application working off-site in a shop apparently within the geographic area to which that application related. The Board found that employee to be commonly associated in his work or bargaining with on-site employees in the bargaining unit (within the meaning of section 117(b) of the Act) and that he should be included in the bargaining unit for purposes of the application for certification. In doing so, the Board followed the decision in Esam Construction Limited, [1980] OLRB Rep. Feb. 197 and disapproved of the decisions in J & M Chartrand Realty Limited, [1978] OLRB Rep. May 423 and 590308 Ontario Inc., Board File No. 0915-87-R, November 26, 1987, unreported, which latter decisions make no reference to sec­tion 117(b). With great respect, we prefer and agree with the approach in Bill Brownlee Excavating Limited, supra, and Esam Construction, sup ra.

13. Section 117(b) provides that:

(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;

14. As intimated in paragraphs 4 and 5 above, section 119, the designation orders made under section 139, and section 144(1) operate together to prescribe the appropriate unit of employ­ees for collective bargaining in the ICI sector of the construction industry. Other than requiring that the bargaining unit in an application like this one include all employees who would be bound by a provincial agreement, these provisions do not, however, prescribe which individuals must be included in the bargaining units. The opening words of section 117 limit its application to sections 118 through 136 of the Act. On its face, section 117 appears to apply to section 119 but not to sec­tion 144, other than as incorporated by reference into the latter (for example, section 117(e) is referred to in section 144(1)). However, section 119(1) provides that:

119.-(1) Where a trade union applies for certification as bargaining agent of the employees of an employer, the Board shall determine the unit of employees that is appropriate for collective bar­gaining by reference to a geographic area and it shall not confine the unit to a particular project.

(And section 118 provides that section 119(1) prevails over section 6(1) in the event of a conflict between them.) Consequently, although all applications for certification in the construction indus­try are made pursuant to section 144 section 119 is the root of all such applications. Accordingly, section 117 does, in effect, apply to section 144. Indeed, it would make little sense to find other­wise because if it did not apply to section 144, it would apply to nothing at all (see paragraph 4, above).

15. While it is possible for an employee to be employed in different bargaining units at dif­ferent times, s/he 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.

16. 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.

17. In our view, there is no conflict between the Gilvesy date of application test and section 117(b) of the Act. Prior to the enactment of what is now section 117(b) in 1970, the Board excluded shop, yard and other off-site employees from construction industry bargaining units. Sub­sequent to the enactment of that provision, the Board has had to determine, as a question of fact, whether employees engaged in off-site work are commonly associated (in their work or bargaining) with the on-site employees in question. The wording of section 117(b) is such that, once the Board finds that an employee is so commonly associated, such an employee must be considered to be a construction employee. The Board has no discretion to find that s/he is not.

18. However, the fact that an off-site employee must be considered to be a construction employee does not dictate that s/he must be included in any particular bargaining unit. Section 117(b) is directed at the question of which employees are employed in the construction industry. It does not relate to a community of interest issue, other than in the broad sense of distinguishing between construction and non-construction employees and perhaps indicating which employees may be candidates for inclusion in a particular bargaining unit. For craft bargaining units, commu­nity of interest is determined primarily (but not exclusively) on the basis of the skills and working conditions which distinguish the employees engaged in that craft or trade. In the construction industry, the community of interest question has largely been resolved by the development of that industry along trade or craft lines and the Board's recognition thereof in its approach to it. Section 117(b) does not operate to determine which persons were employees in the bargaining unit for pur­poses of the count in an application for certification (see paragraph 14, above). The Gilvesy test is applied by the Board to determine that question (see Bill Brownlee Excavating Limited, supra). For example, an off-site employee in the trade could be commonly associated in his/her work or bargaining with on-site employees within the meaning of section 117(b), but not be at work on the date of application. Such an employee although otherwise encompassed by the bargaining unit description, would not be counted as an employee in a bargaining unit for certification purposes. Further, an off-site employee in the trade who satisfied the section 117(b) test and was employed in the geographic area to which the application related would be included in the bargaining unit. However, an off-site employee in the trade who satisfied the section 117(b) test but was employed outside the geographic area to which the application related (an, in section 144(1) applications, in other than the ICI sector) would not be included.

19. Construction equipment like bulldozers, scrapers, and so on, is often kept, repaired and maintained at the job site where it is being used. However, many employers which use such equip­ment in their construction business also have a yard or shop where such equipment is stored when not in use, and where repair and maintenance work is also carried out on them. Whether or not off-site employees primarily engaged in the repair or maintenance of such equipment are com­monly associated in their work with on-site operators and mechanics, such off-site mechanics have traditionally, both prior to and since the advent of province-wide bargaining in 1978, been treated differently from on-site mechanics (and operators) by both employees and the applicant trade union. This is because, as a general matter, off-site mechanics tend to perform a different kind of repair or maintenance work than on-site mechanics, command a lower rate of wages than on-site mechanics, have different responsibilities and working conditions than on-site mechanics, and tend to be physically separated from on-site mechanics. There is also a commonly held view that the introduction of province-wide bargaining in the ICI sector of the construction industry was not intended to create additional bargaining rights for trade unions affected thereby or to require such trade unions to represent employees which they had not previously represented.

20. The Board is aware of all of that. We also accept that, to the extent it is able, the Board's practices and policies should reflect and be responsive to the real world of labour rela­tions. This does not mean that the Board can or should blindly follow the lead of the labour rela­tions community. The Board is an administrative tribunal established by the Labour Relations Act to administer and apply that legislation. While the Board enjoys a considerable discretion in that respect, it must not exceed its jurisdiction. The Board has no statutory or inherent jurisdiction to "do what it thinks is best" or otherwise do, or require to be done, anything which is contrary to the Act. In this case, the designation order and the description of the bargaining unit which the Board has found to be appropriate do not differentiate between on-site and off-site mechanics. In the result, and having regard to the above analysis, we find ourselves constrained to conclude that not­withstanding the distinction which appears to have been made between them within the labour relations community, both on-site and off-site mechanics who were at work on the date of applica­tion must be included on the list of employees, both in this case and generally in an operating engi­neers' bargaining unit which is the subject of an application for certification made pursuant to sec­tion 144(1) of the Act. Accordingly, the persons who are to be included in the bargaining unit herein are:

All employees of the respondent employer at work on the date of application who spent a majority of their time on that date engaged in either the opera­tion of cranes, shovels, bulldozers or similar equipment or primarily engaged, whether on-site or off-site, in the repairing or maintaining of the same (or, pursuant to Kraft Construction Company (1978) Ltd., supra, engaged as surveyors). Further, and also in accordance with the Gilvesy test, where the evidence with respect to the work that an employee performed on the date of application is either inconclusive or not determinative, any other relevant factor will be considered by the Board. (In circumstances where the sector of the construction industry in which an off-site mechanic was working must be ascertained (as, for example, in an application pursuant to section 144(1) where the employee in question worked at a location outside of the "geographic area" to which the application relates), it will be necessary to determine the sector in connection with which s/he worked.)

21. Any difficulties that this decision may pose to those involved in employing or represent­ing operating engineers can, in our view, be dealt with in collective bargaining.

22. In its February 26, 1988 decision, the Board also noted the challenges being made by the applicant to the list of employees filed by the respondent, and, with respect thereto, authorized a Labour Relations Officer to inquire into and report to the Board with respect to:

i) the duties of those employees on the application date including the location where the employees worked on that date;

ii) the duties and responsibilities of Bruce Whitlow to enable the Board to determine whether he exercised managerial functions;

iii) the community of interest among the persons classified as mechanics with the other employees of the respondent employed in the respondent's shop.

[sic]

23. The Labour Relations Officer designated to conduct the inquiry completed a report with respect thereto. The Board received written submissions from the parties and also convened a hearing at which the parties made oral submissions with respect to that report.

24. Prior to the hearing, the parties agreed that Jerry Marsh should not be on the list of employees. We also note that although there is a dispute with respect to whether or not Ken Cope-land and Jeff Shular should be on the list of employees, that issue is part of a complaint under sec­tion 89 of the Labour Relations Act (Board File No. 2538-87-U) and was not a matter with which the Officer's inquiry was concerned. Consequently, the issue of their status as employees in the bargaining unit was not before the Board in this phase of the proceeding.

25. The respondent is a road construction contractor. Its offices are located in Paris, Ontario (which is in Board Area 4). It also maintains a yard and a two-way repair shop there. The repair shop is used for the purpose of making those repairs to the respondent's construction machinery which cannot be completed on the job site. The respondent was not doing any work in the industrial, commercial and institutional ("ICI") sector of the construction industry on the date this application was made. However, it did have several non-ICI sector job sites. Two of these (Pine Bush Road and Franklin Boulevard) were in the geographic area to which this application relates (i.e. Board Are 6), one was in Guelph (which is in Board Area 7), and one was in Tavistock (which is in Board Area 3). We note that, unlike what seems to have been the situation in Bill Brownlee Excavating Limited, supra, the respondent's shop is outside the geographic area to which this application relates.

26. There are six individuals whose inclusion on the list of employees is in issue and who were the subject of the Officer's inquiry. Having regard to the Officer's report and the representa­tions of the parties with respect to the individuals whose inclusion on the list of employees is in dis­pute, the Board finds that:

(a) James (Jim) R. Devereux is classified, and employed by the respon­dent, as a "float driver - maintenance". Although he operates con­struction equipment on occasion, he is, and is considered by the respondent to be, primarily a truck driver. The evidence is clear that on the date of application Mr. Devereux spent the majority of his time working as a float driver. In our view, the time he spent prepar­ing a piece of machinery for loading onto the float truck, or driving a machine on or off the float truck forms a part of the normal duties and responsibilities as a float truck driver. Further, driving a machine on or off a float truck, or driving it over a road from one location to another, however difficult that might be, is not equivalent to operating a machine on a construction job site.

(b) Bruce Whitlow is classified as and, on the date of application, worked as a working foreman. As such, he oversees and directs other employees in a general way. However, he has no power to hire, fire, or discipline employees, or to make effective recommendations in that respect. He may provide information to Don Gurney (the Presi­dent and principal of the respondent) which the latter might use in making decisions with respect to such matters but Mr. Whitlow has no real input into the decision-making process. Nor does Mr. Whit-low have any independent decision-making authority with respect to the operation of the respondent or its construction projects. Any involvement in that respect is as a mere conduit for communications between Mr. Gurney and the respondent's employees on one hand, and, for example, the project owner on the other. Mr. Whitlow has no control or even input into the rates of pay or hours of work of other employees. He has no authority to grant employees any time off. He is not involved in budgetary matters and can, at most, make only minor purchases for which he is reimbursed by the company. As part of his normal duties on the date of application he assisted in the starting and routine maintenance of machinery, assisted in on-site repairs of a bulldozer, and operated a packer for approximately two hours. It is evident that Mr. Gurney, or, if he is unavailable, Marga­ret Gurney, has direct control over the respondent's operations and employees.

(c) Art Gariepy is classified by the respondent as a mechanic. Except when the respondent's construction activities stop for the winter, he works primarily on construction job sites. On the date of application he worked for approximately ten hours on the two job sites which are within the geographic area to which this application relates. We accept his estimate that he spent between three and three and a half hours of that time helping Mr. Devereux load and unload the float truck. The balance of his time; that is, the majority of his working day, was spent doing maintenance and repair work on various pieces of machinery including a bulldozer and a Volvo (a gravel truck-like off-road construction vehicle). This is representative of his usual duties and responsibilities which consist of maintaining and repairing construction machinery operated by employees in the bargaining unit. We note that while Mr. Gariepy may on occasion operate such machinery as well, occasional interchanges between operators and mechanics employed by the respondent are not uncommon.

(d) John Hockley is employed by the respondent as an on-site mechanic. He generally spends all of his working hours on a construction job site performing checks on and helping start machinery, as well as fuelling and doing on-site repairs on such machinery as required. That is in fact what he did on the date of application. He also helps load or unload the float truck when necessary and occasionally oper­ates some of the machinery. He may also accompany a piece of machinery which has broken down on the job site to the respondent's repair shop where he either does or assists in the necessary repair work.

(e) Bill Roddam is the respondent's chief mechanic. He works both in the repair shop and on job sites~ as required~ repairing the respon­dent's construction machinery. Overall, he spends approximately 80 per cent of his time in the shop. On the date of application, he spent approximately three and a half hours at the Guelph job site (that is, outside of the geographic area to which this application relates) fol­lowed by an hour at the Pine Bush Road site, where he checked scra­pers and Mr. Gariepy's bulldozer repairs. He then went to the Franklin Boulevard job site for about twenty minutes and then returned to the shop where he worked from approximately 1 p.m. to 5p.m.

(f) George William Edward (Bill) Sibbick is employed by the respondent as a maintenance repair welder of its construction machinery. Although the respondent considers him to be a shop (i.e. off-site) employee, he works both in the repair shop and on job sites. On the date of application, he spent his first working hour in the shop, and travelled to Guelph where he worked on machines until noon or 12:30 p.m. He then went to the Pine Bush Road site for about fifteen minutes and the Franklin Boulevard site where he spent approxi­mately forty-five minutes. After that, he returned to the shop for the rest of the day.

27. Employees engaged in driving float trucks which are used to transport construction machinery to or from construction-sites are truck drivers employed in the construction industry (see Bill Brownlee Excavating Limited, supra; Canadian Road Asphalts Limited, [1980] OLRB Rep. March 299; Cooper's Crane Rental Limited, [1980] OLRB Rep. Sept. 1286; Cedarhurst Pav­ing Company Limited, [1964] OLRB Rep. Dec. 442). However, the bargaining unit which the Board found, in paragraph 9 of its February 26, 1988 decision, to be appropriate for collective bar­gaining in this case does not include such truck drivers (see Bill Brownlee Excavating Limited, supra; Bruno's Contracting (Thunder Bay) Limited, [1985] OLRB Rep. Dec. 1701; Armbro Mate­rials and Construction Limited, [1973] OLRB Rep. Aug. 450; Cedarhurst Paving Company Limited, supra). James R. Devereux, who spent the majority of his time on the date of application working as a float truck driver, should therefore not be included on the list of employees.

28. Section 1(3)(b) of the Labour Relations Act provides that, subject to section 90 (which does not apply here), no person shall be deemed to an employee who, in the opinion of the Board, exercises managerial functions. Consequently, in applications for certification, the Board excludes all persons employed at and above the lowest level of management from the bargaining unit. Working foremen are usually included in construction industry bargaining units unless they have a real overall responsibility for a construction-site or project, or can and do affect the employment status of employees in the bargaining unit. On the evidence before the Board, Bruce Whitlow should be included on the list of employees. He does not exercise managerial functions within the meaning of section 1(3)(b) of the Act. Indeed, if his duties and responsibilities were held to consti­tute such managerial functions, most working foremen would probably be excluded from construc­tion industry bargaining units.

29. On the date of application, Art Gariepy spent the majority of his time on-site primarily engaged in the maintenance and repair or construction machinery operated by other employees in the bargaining unit: that is, he spent the majority of his time on-site doing operating engineers work in a geographic area to which this application relates. He should therefore be included on the list of employees.

30. John Hockley clearly spent the majority of his time on the date of application on a con­struction job site primarily engaged in maintaining or repairing construction machinery operated by other employees in the bargaining unit. He should therefore also be included on the list of employees.

31. Bill Roddam and Bill Sibbick are primarily off-site mechanics. They are commonly associated in their work with on-site employees in the bargaining unit, but they did not on the date of application, spend a majority of their time performing bargaining unit work in either the ICI sector or in any other sector of the construction industry in the geographic area referred to in the bargaining unit description. They should therefore not be included on the list of employees.

32. As a result of the agreement of the parties and the Board's findings herein, the follow­ing employees names presently appear on the list of employees in the bargaining unit:

Art Gariepy

Garnet Green

Dave Guthrie Jr.

John Hockley

Judy Kendall

Lewis Peters

Len Smith

Norm Stenson

Al Whitlow

Bruce Whitlow.

In addition, the applicant asserts that Ken Copeland and Jeff Shular should also be included on the list.

33. It appears that the Board cannot dispose of this matter on the basis of the material pres­ently before it. Accordingly, the Registrar is directed to schedule this matter for hearing for the purpose of hearing the evidence and representations of the parties with respect to all remaining matters out of and incidental to the application.

34. Given the relationship between this application and the complaint in Board File No.

2538-87-U, the two matters should be scheduled to be heard together.