[1990] OLRB Rep. January 13
2570-88-R Labourers' International Union of North America, Local 183, Applicant v. Beaverbrook Estates Inc., Respondent.
BEFORE: Inge M. Stamp, Vice-Chair, and Board Members D. A. MacDonald and J. Redshaw.
APPEARANCES: Bernard Fishbein, L. Baldassarra and M. Fasan for the applicant; Stephen A. McArthur and Murray Parton for the respondent.
DECISION OF THE BOARD; January 4, 1990
This application for certification pursuant to the construction industry provisions of the Labour Relations Act came on for hearing before the Board on February 27, 1989.
The list, or Schedule "A", submitted by the respondent, was settled subject to three challenges by the applicant on the day of hearing. The parties agreed as to who should be properly on the list, who should be off the list and the applicant challenged three individuals stating its reasons why they should not be on Schedule "A". By majority decision of the Board (differently constituted) dated April 11, 1989 a Labour Relations Officer was authorized to make inquiries with respect to these challenges. Paragraph 9 of that decision reflected the agreement of the parties with respect to Schedule "A" as follows:
The parties agreed to the deletion of D. Resendes and M. Resendes from Schedule "A". The applicant is challenging three individuals of the remaining six employees listed on Schedule "A", on the following basis:
L. Melchiore section 1(3)(b) managerial exclusion; not at work T. Oresti same as above F. Talarico not performing bargaining unit work.
Pursuant to the Board's decision, the parties met with a Labour Relations Officer in April and May. By letter dated June 26, 1989 the respondent advised the Board that notwithstanding their agreement on the date of hearing (February 27, 1989), the position of the respondent now is that D. Resendes and M. Resendes "should be included in ascertaining whether the applicant has achieved sufficient membership support".
A hearing was scheduled on October 2,1989 to hear the submissions with respect to the Labour Relations Officer's Report. At that hearing, counsel for the respondent, pursuant to its letter of June 26, 1989, raised the issue of the Board's policy with respect to who is in the bargaining unit on the application date for the purposes of the count.
The respondent wanted to make submissions to the Board with respect to the Board's policy in construction industry certification applications of counting only those employees at work in the bargaining unit on the date of application. The panel gave an oral ruling at the time as follows:
"This issue could have been raised at the time the reply [to the application for certification] dated January 26, 1989 was filed, or at the time of the initial hearing in this matter on February 27, 1989. The Board will not permit the respondent to raise this issue at this point in the proceedings".
By letter dated October 13, 1989 the respondent has asked for reconsideration of the Board's oral ruling of October 2, 1989 as set out above. The respondent submits that the Board's policy is incorrect or alternatively incorrectly applied if it excludes D. Resendes and M. Resendes for the purpose of the count. The respondent further submits that to deny him the opportunity to make submissions with respect to the "policy" is a denial of natural justice.
The respondent, in its submissions to the Board on the last day of hearing on October 2, 1989 and in its letters to the Board of June 26, July 6, July 13 and October 13, 1989 takes the position that notwithstanding the agreement on February 27, 1989 to delete D. Resendes and M. Resendes from Schedule "A", they should be included for the purpose of the count and that the Board should allow the respondent to make submissions with respect to that position which is contrary to the Board's well-established policy. The respondent submits that he is not resiling from his agreement that these 2 employees were not at work on the date of application. However, the respondent takes the position that they are employees within the meaning of the Labour Relations Act and as such should be included for the purpose of the count. The respondent further submits that since it was agreed that D. Resendes and M. Resendes were not at work on the date of application, this was one of the remaining issues to be dealt with at the October 2nd hearing.
The Board's policy with respect to who is in the bargaining unit on the application date for the purpose of the count is not the issue here, but rather whether the respondent at this point in the proceeding can resile from its agreement made in February as to who is properly on Schedule “A”.
The Board is not persuaded by the respondent's submissions to reconsider its oral ruling of October 2, 1989. At the initial hearing in February, the Board heard submissions with respect to the applicable geographic scope and the Board dealt with the list. Schedule "A" is the list of persons at work in the bargaining unit on the date of application. Only those persons at work on the date of application are employees in the bargaining unit for the purpose of the count. The respondent agreed as to who was properly on Schedule "A" and who should be deleted. It was further agreed as to who was in the appropriate geographic area. The applicant stated its challenges to the list and the reasons. At no time during this exercise of ascertaining who is properly on Schedule "A" did the respondent indicate that it did not accept this list for the purpose of the count. The reason the Board or a Labour Relations Officer goes through this exercise is to establish who is on the list for the purpose of the count. The respondent, by agreeing that D. Resendes and M. Resendes were not at work on the date of application and therefore not on Schedule "A" cannot now say, "we agreed, but it did not mean we agreed to that for the purpose of the count"! For practical purposes, the effect of the respondent's position which was first communicated to the Board by letter dated June 26, 1989, some four months after the initial hearing, is to resile from the agreement as to who is on the list for the purpose of the count. The very reason for the existence of the list is to determine whether the applicant has sufficient membership support in relation to who is properly on the list. The Board will not now allow the respondent to resile from its agreement made in February with respect to Schedule "A". There are valid labour relations reasons why the Board does not allow any party to resile from its agreement as to who is properly on the list for the purpose of the count. This is especially so when the proceedings have been ongoing for some months. Unless there is some finality, certification applications would drag on endlessly. Once the list for the purpose of the count has been agreed to and after the challenged individuals have been examined, it would be unfair to allow parties to resile from their agreement with respect to the list.
The Board received the submissions of the parties with respect to the Labour Relations Officer's report and makes the following findings, including a brief summary of the evidence that led to the Board's conclusions.
L. Melchiore
Exhibit 2, Melchiore's time card, shows 9 hours assigned to the Richmond Hill job on Monday, January 16, 1989, the date of application. Although it indicates that Melchiore was at work on the date of application, it does not assist the Board in determining what work was actually performed. Mr. Melchiore's evidence is not particularly helpful as to what work he performed on the date of application, and so we must look at other factors to determine whether or not he is properly included on the list. Melchiore was hired by Phil Lani, the President of the company. The company was just starting out and his evidence was that he was not given a specific role. The superintendent at the Richmond Hill site, John Tavone, was fired around the time of this application. Melchiore from the start has been paid a salary including the time when the labourers were paid by the hour. Melchiore does not receive overtime pay unlike the hourly-rated employees. The evidence is that Melchiore was sent to the Richmond Hill site, in his words "so that there's somebody on the site for any deliveries that come in". He explained his duties as "just basically be there for anybody that came, cause there was no... there was no full superintendent at the site at the time I was there". He explained that the superintendent had been fired. At the beginning of the job in Richmond Hill, Melchiore was "spreading straw on some basements that were left exposed", and doing a "few other odds", some "clean-up" and "at the trailer basically". He started in December. There were approximately ten exposed basements.
However, Melchiore indicated he could not be sure what exactly he was doing on the application date. He was the only person employed by the respondent on the site at the beginning. For the previous two years, Melchiore worked alongside the superintendent. He went from assistant superintendent at the Scarborough site directly to Richmond Hill. Melchiore was instructed to stay at the site until the new superintendent, Dino Alexander, replaced Tavone. Melchiore was looking after the site and subcontractors who were at the site and filling in for the site superintendent from December until February or March. At the time of the application, Melchiore was the only person representing the company at the Richmond Hill site, and when the safety inspector arrived on the site Melchiore told him that he was there temporarily until the new superintendent came on stream. Melchiore then signed the safety inspector's paperwork using the title "Site Superintendent". This took place a few days prior to the application date. He assumed he was the site superintendent because he was the only one there. The report establishes that Melchiore went to look after the job site after the site superintendent was fired and before the new superintendent arrived, including the date of the application. Such manual work as may have been performed by Melchiore is not sufficient to put him properly in the bargaining unit. Having regard to the evidence in the report and the parties' submissions, we find that Melchiore is not properly included on the list.
The remaining 2 persons in dispute are T. Oresti and F. Talarico. Having found that Mr. Melchiore is excluded from the bargaining unit, it is not necessary to determine the status of the remaining 2 individuals being challenged. The determination of whether these 2 persons are included in the bargaining unit does not affect the description of the bargaining unit or the applicant's right to be certified. Under these circumstances, the Board may issue a final certificate (see Robin Hood Multifoods, [1985] OLRB Rep. July 1159).
The description of the bargaining unit is set out in paragraph 8 of the Board's decision dated April 11, 1989.
The Board is satisfied on the basis of all the evidence before it 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 January 26,1989, 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(1) of the said Act.
Section 144(2) of the Act, which states in part as follows, provides for the issuance of more than one certificate if the applicant has the requisite membership support:
the Board shall certify the trade unions as the bargaining agent of the employees in the bargaining unit and in so doing shall issue a certificate confined to the industrial, commercial and institutional sector and issue another certificate in relation to all other sectors in the appropriate geographic area or areas.
[emphasis added]
Therefore, pursuant to 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 2 of the Board's decision dated April 11, 1989 in respect of all construction labourers in the employ of the respondent in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario, save and except non-working foremen and persons above the rank of non-working foreman.
- Further, pursuant to section 144(2) of the Act, a certificate will issue to the applicant trade union in respect of all construction labourers in the employ of the respondent in all sectors of the construction industry in the Municipality of Metropolitan Toronto, the Regional Municipalities of Peel and York, the Towns of Oakville and Halton Hills and that portion of the Town of Milton within the geographic Townships of Esquesing and Trafalgar, and the Towns of Ajax and Pickering in the Regional Municipality of Durham, excluding the industrial, commercial and institutional sector, save and except non-working foremen and persons above the rank of non-working foreman.