[1990] OLRB Rep. January 1
2437-88-R Labourers' International Union of North America, Ontario Provincial District Council, Applicant v. Atcost Soil Drilling Inc., Respondent v. International Union of Operating Engineers, Local 793, Intervener v. Group of Employees, Objectors
BEFORE: Ian C. Springate, Vice-Chair, and Board Members W. N. Fraser and J. Kurchak.
APPEARANCES: L. A. Richmond, T. Connolly and L. D'Agostini for the applicant; J. Tascona and S. Sukunda for the respondent; J. J. Slaughter and Mike Gallagher for the intervener and employee objectors.
DECISION OF THE BOARD; December 29, 1989
This is an application for certification filed pursuant to the construction industry provisions of the Labour Relations Act. The applicant is seeking to be certified to represent a bargaining unit comprised of construction labourers employed by the respondent in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario as well as those employed in all other sectors within the Board's geographic area No. 8.
On April 8, 1988 the Board certified the intervener for a bargaining unit comprised of all employees of the respondent working at and out of Concord, subject to certain exceptions not relevant to the these proceedings. The intervener's application for certification was filed pursuant to the general rather than the construction industry provisions of the Act. On December 15, 1988 the Board directed that a first collective agreement be settled by arbitration. A collective agreement between the respondent and the intervener was imposed by the Board on January 18, 1989. The instant application was filed on January 5, 1989.
The intervener raises its bargaining rights as a bar to the instant application. The applicant and the respondent contend that those bargaining rights are not a bar. They submit that the respondent is an employer in the construction industry and that the certificate issued to the intervener cannot bar a construction industry certification application. The applicant further contends that by force of section 144 of the Act, the intervener is barred from representing employees of the respondent in the industrial, commercial and institutional sector of the construction industry. At the hearing the Board ruled that the appropriate starting point for dealing with this application would be to determine whether or not the respondent is an employer in the construction industry.
The evidence indicates that the respondent was engaged in the same general type of work when both the intervener and the applicant filed their applications for certification. During the initial certification proceedings the respondent did not contend that the intervener's application should have been made under the construction industry provisions of the Act. During the first contract proceedings the respondent expressly contended that it was not engaged in the construction industry.
The respondent is based in the community of Concord in the Town of Vaughan. It primarily performs drilling operations for the purpose of obtaining soil and rock samples. It is generally engaged to perform this work by consulting engineering firms. A consulting engineering firm will ask the respondent to send a crew to a particular location where either an engineer or a technologist with the engineering firm will instruct them where to dig. Employees of the respondent will then use drilling equipment to drill a hole and lift out samples. The samples are provided to the engineering firm to assess. Recently the respondent has not done any work for the Ministry of Transportation. From 1984 to 1987, however, some 20 per cent of the company's work was done for the Ministry. The main difference with this work was that the Ministry had its own engineers on staff and accordingly no consulting engineering firm was involved.
Soil and rock samples are generally taken to enable an engineering firm to ascertain the appropriateness of the area in question for the future construction of a building, road, bridge hydro tower and/or to determine the type of foundation which will be required. Apart from employees of the respondent and representatives of an engineering firm, generally no one else is present when a soil sample is taken. Mr. Stan Sukunda, the president of the respondent, indicated that the respondent is not advised as to why the company is being asked to take a particular soil or rock sample. He further testified that construction work might take place anywhere from one month to ten years later. At one point in his evidence Mr. Sukunda indicated that it was possible that based on a soil sample no construction would take place. Subsequently, however, he indicated that he would not be in a position to know about such a decision.
Between 20 and 30 per cent of the respondent's business results from being retained by hydrogeology firms to install a pipe in the ground so that the hydrogeology firm can make certain determinations with respect to the local water table. In the past the respondent has also installed pipes at and around dump sites so as to allow officials to check for the possible build up of gas.
Soil samples are obtained by the respondent using the same equipment employed by construction firms to do horizontal boring. The drilling for rock samples is similar to the work done by construction employees when blasting rock. The drilling by these construction employees, however, is not done to obtain rock samples but to make holes into which an explosive can be inserted.
During his examination in chief Mr. Sukunda testified that some 65 per cent of the respondent's work is related to future subdivisions, 20 per cent is for hydrogeology purposes and 15 per cent is on Ontario Hydro sites. Mr. Sukunda was subsequently cross-examined about the 65 per cent figure relating to subdivisions. At that point Mr. Sukunda stated that he did not know what work performed by the respondent was related to subdivisions. Mr. Sukunda added that he works for consulting engineering firms and does not know if the work relates to a future subdivision, a big building, a sewer or a road.
Mr. Sukunda testified that if a problem develops with a building under construction, the respondent might be called onto an actual construction site to take a soil sample. This is done so that a determination can be made as to whether the engineer or a contractor was at fault. Mr. Sukunda indicated that this type of situation does not occur very often. Mr. Sukunda also noted that on one occasion when some cracks had occurred in a generating plant, the respondent was called in to take soil samples so that tests could be done to ascertain the cause of the cracks.
It was the evidence of Mr. Tom Connolly, senior assistant manager for the Labourers Ontario District Council, that on Ontario Hydro sites soil sampling has been performed by construction labourers under the Electrical Power System Construction Association ("EPSCA") collective agreement. Mr. Sukunda indicated that on Ontario Hydro sites the respondent generally uses its own employees but pays them the EPSCA rate for construction labourers. He added that on one occasion he had hired a single labourer through a Labourers Union hiring hall.
Section l(1)(f) of the Labour Relations Act defines the construction industry as follows:
1.-(1) In this Act,
(f) "construction industry" means the businesses that are engaged in constructing, altering, decorating, repairing or demolishing buildings, structures, roads, sewers, water or gas mains, pipe lines, tunnels, bridges, canals or other works at the site thereof;
In support of its contention that the work performed by the respondent is work in the construction industry, the applicant relies on the Board's decision in Stone & Webster Canada Limited, [1987] OLRB Rep. April 607. In that case the Board concluded that certain employees engaged in surveying work were employed in the construction industry. It appears that the employees in question were employed on an actual construction project checking concrete pours and the placements of anchor bolts, inserts and conduits. In its decision the Board noted that another union had been certified to represent employees of general surveying companies under the general provisions of the Act. For its part the intervener relies on the Board's decision in Ethier Sand & Gravel Limited, [1979] OLRB Rep. Oct. 962 where the Board held that the supplying of sand and gravel to construction sites does not fall within the construction industry.
The work performed by the respondent is generally not done in connection with an ongoing construction project. Presumably at times construction projects tentatively planned for a particular area will not be built, at least at that location, because of the results of soil, rock or hydrogeology tests. If construction does eventually go ahead, it is possible that the results of the tests might determine what type of construction will take place. Actual construction work might not occur for up to 10 years after a sample has been taken. In our view, the work performed by the respondent takes place well prior to the construction process and the respondent cannot reasonably be viewed as being engaged in a business in the construction industry.
It follows from this conclusion that the instant application should not have been brought under the construction industry provisions of the Act. As a general practice the Board will permit a construction industry certification application to be turned into a regular application for certification. No useful purpose would be achieved by doing so in the instant case, however, since any regular application for certification would clearly have been out of time due to the intervener's bargaining rights. In the result, this application is hereby dismissed.