Labourers' International Union of North America, Ontario Provincial District Council v. E. & E. Seegmiller Limited, 1991 CanLII 6014

[1991] OLRB Rep. January 1124

1233-90-R Labourers' International Union of North America, Ontario Provincial District Council, Applicant v. E. & E. Seegmiller Limited, Respondent

BEFORE: G. T. Surdykowski, Vice-Chair, and Board Members J. A. Rundle and D. A. Patterson.

APPEARANCES: John Moszynski and Kip Ryan for the applicant; Daniel Fryzuk for the respondent.

DECISION OF G. T. SURDYKOWSKI, VICE-CHAIR AND BOARD MEMBER J. A. RUNDLE: October 16, 1991

1. 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)(a) of the Act on September 30, 1983, that designated employee bargaining agency is the Labourers' International Union of North America, and the Labourers International Union of North America, Ontario Provincial District Council.

2. Further, the applicant is a council of trade unions within the meaning of section 1(1)(g) of the Act. Locals 183, 247, 491, 493, 506, 527, 597, 607, 625, 837, 1036, 1059, 1081 and 1089 of the Labourers' International Union of North America are trade unions within the meaning of section l(l)(p) of the Act and are constituent trade unions of the applicant which have vested the appro­priate authority in it to enable the applicant to discharge the responsibilities of a bargaining agent within the meaning of section 10(1) of the Act.

3. This is an application for certification within the meaning of section 119 of the Labour Relations Act which has been brought pursuant to section 144(3) of the Act. As such, it does not relate to the industrial, commercial and institutional sector of the construction industry referred to in section 117(e) of the Act.

4. Having regard to the material before the Board, and pursuant to the provisions of sec­tions 6(1) and 144(3) of the Act, the Board finds that all construction labourers in the employ of the respondent in all sectors of the construction industry, except the industrial, commercial and institutional sector, within a radius of 33 kilometres (approximately 20 miles) of the North Bay post office, 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.

5. The respondent filed a list of employees in the bargaining unit with twenty-one (21) names on it. Initially, the applicant challenge the inclusion of eleven of those persons included by the respondent on its list. The Board (differently constituted) authorized a Labour Relations Offi­cer to inquire into and report to the Board with respect to the composition of the bargaining unit herein and the list of employees in it.

6. The Officer designated to conduct the inquiry authorized by the Board did so and reported to the Board. A copy of the Officer's report in that respect was also provided to each party. After reviewing the Officer's report, the applicant withdrew six of its challenges (i.e. with respect to Stephen Mathieu, Wilma Rose, David Adair, Muriel Gravelle, Paul Tremblay and David Shaw). This left five persons whose inclusion on the list of employees remained in dispute between the parties; namely, Thomas Brooks, Michael Laplante, Rick Chicquen, Robert Chic­quen and Terrance Dolson.

7. Subsequently, a hearing was convened for the purpose of hearing the representations of the parties in that respect.

8. One of the noteworthy things about the evidence before the Board with respect to the list of employees in this case is the lack of it. At best, it is barely adequate for purposes of the Board's considerations. Nevertheless, the Board is constrained to make its determinations on the basis of the evidence placed before it and its labour relations expertise.

9. The applicant challenges the inclusion of Thomas Brooks on the list of employees on the basis that he exercises managerial authority and was not an employee within the meaning of the Act during the material times.

10. The evidence reveals that Brooks oversees and directs other employees on the job site in a general way. However, he appears to have no power to hire, fire, discipline, or otherwise directly affect the employment of other employees. Although he may provide information to man­agement with respect to employees which might be used in decisions which affect them, Brooks appears to function as a mere conduit between management and other employees rather than as a part of management. In addition, Brooks regularly works "with the tools" alongside other bargain­ing unit employees.

11. Section 1(3)(b) of the Labour Relations Act provides that, subject to section 90 (which does not apply herein), no person shall be deemed to be an employee who, in the opinion of the Board, exercises managerial functions. Consequently, in applications for certification, the Board excludes persons employed at or 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 job site or project, or can and do affect the employ­ment status of persons in the bargaining unit. On the evidence before the Board, Thomas Brooks does not, in our opinion, exercise managerial functions within the meaning of section 1(3)(b) of the Act; nor is he perceived to do so by other employees. Indeed, if his duties and responsibilities were held to constitute such managerial functions, most working foremen would probably have to be excluded from construction industry bargaining units. We therefore find that Thomas Brooks should be included on the list of employees for purposes of this application.

12. The applicant challenged Michael Laplante on the basis that he was operating a "packer" on the date of application and was therefore not performing bargaining unit work. In the Board's experience, a "packer" is a machine commonly operated by a construction labourer and the operation of such a machine is commonly claimed by the applicant and its constituent trade unions as being the work of a construction labourer. The Board is therefore satisfied that Michael Laplante should be included on the list of employees in the bargaining unit.

13. The applicant also challenges the inclusion of Rick Chicquen and Robert Chicquen. It does so on the basis that the respondent, it asserts, has failed to discharge the onus on it to estab­lish that they or either of them were employed in the bargaining unit during the material times.

14. At paragraph 21 of PHI International Inc. [1980] OLRB Rep. Dec. 1789, the Board explained that:

21. On an application for certification, the Board is required to ascertain both the number of employees in the bargaining unit employed on the application date, and the number of employ­ees who were members of the union on the "terminal date" fixed pursuant to section 92(2)(j) of the Act. An employer is required to file, in Form 51, a list of his employees. This list must be prepared under the instruction of a responsible company official who signs the list to verify its accuracy. In determining the number of employees in the bargaining unit the Board places primary reliance on this material, for the number and nature of an employer's employment rela­tionships are matters which are often within its exclusive knowledge. The trade union seldom has detailed information in this regard, even though its right to certification will ultimately turn on establishing majority support among these employees. This is especially so in the construc­tion industry where employment relationships are transitory, employment levels can fluctuate on a day-to-day basis, and an employer may be engaged on a number independent and geographically separate construction sites. Unless there is an interchange of employees, or functional interdependence among construction sites, the union may not have specific knowledge of the employer's employee complement. In these circumstances, we do not think it is unreason­able to require an employer to come forward an [sic] substantiate its claim that certain individu­als were, indeed, "employees" on the application date. Frequently, a simple check of the employer's records will be all that is required. Sometimes, it may be necessary to entertain oral evidence. In either, case, however, we are satisfied that when an employer submits a list of individuals whom it claims are employees in the bargaining unit on the application date, it must be prepared to come forward, if challenged, and demonstrate that its list is accurate.

On the other hand, it has been said that the onus with respect to "list issues" lies with the party seeking to exclude a person from the list of employees in a bargaining unit.

15. There is merit to both views. On one hand, it is the employer which originally places persons on a list of employees and is in the best position to justify its decision to include or exclude a person from it. On the other hand, a trade union which asserts that a person should be off or on a list of employees should be able to provide some basis or justification for adopting its position in that respect.

16. In our view, however, questions such as this are best decided by answering the follow­ing question: "Is it more probable than not, on the evidence, that the person in dispute was an employee in the bargaining unit during the times material to the Board's considerations?". Fash­ioning an answer to this question may well involve various onuses, but the answer will ultimately depend upon an assessment of the evidence before the Board.

17. In the construction industry, the Board has been consistently applying what has come to be known as the Gilvesy test. This test first enunciated in E. & E. Seegmiller Limited [1987] OLRB Rep. Jan. 41 at para. 23 as follows:

23. In making our determination with respect to Mr. Murray, we considered the work per­formed by the persons whose status was in dispute in these proceedings both on the date of application and during a period prior to that date. 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 accordingly 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. [1987] OLRB Rep. Feb. 220).

18. In this case, there is no cogent conclusive evidence with respect to what work either Rick Chicquen or Robert Chicquen performed on the date of application herein. The evidence does indicate that they were present on the job site, even if briefly, and that they were paid two hours wages for that day. The evidence is clear that they both were hired as construction labourers and worked for the respondent only as construction labourers both before and after the date of application. On the basis of the evidence as a whole, we are satisfied that it is more probable than not that Rick Chicquen and Robert Chicquen were employees in the bargaining unit on the date of application and that they should therefore be included on the list of employees.

19. Terrance Dolson is also challenged by the applicant on the basis that he was not per­forming bargaining unit work on the date of application. Again, the applicant asserts that the respondent has failed to discharge the onus on it to establish that he was.

20. Dolson was the only person challenged who did not testify before the Officer. The Offi­cer's report indicates that he could not be located. There is in fact precious little evidence with respect to Dolson before the Board. Although there is some reference to him in the testimony of the persons examined in the course of the Officer's inquiry, there is nothing in it suggests, in any cogent way, that Dolson was at work in the bargaining unit on the date of application. The only evidence that he was is a "Daily Cost Sheet" submitted by the respondent which, standing alone as it does, is insufficient to satisfy us that it is more likely than not that Dolson was at work in the bar­gaining unit on the date of application. Accordingly, he should not be included on the list of employees.

21. In the result, having regard to the materials filed and the Board's determination as aforesaid, the Board finds that there were 20 employees in the bargaining unit at the time this application was made.

22. All ten of the pieces of documentary evidence of membership filed by the applicant sat­isfy the requirements of Act in that respect. The applicant also filed the requisite Form 80, Decla­ration Concerning Membership Documents, Construction Industry, attesting to the adequacy and sufficiency of its membership evidence.

23. On the basis of the evidence before it, the Board is satisfied that not less than forty-five per cent and not 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 one or other of the constituent trade unions of the applicant and therefore, pursuant to section 10(3) of the Act, are therefore deemed to be members of the applicant on August 24, 1990, the terminal date fixed for this application and the date which the Board determines under section 103(2)(j) of the Act, to be the time for the pur­pose of ascertaining membership under section 7(1) of the Act.

24. The Board therefore directs that a representation vote be taken of employees in the bargaining unit found by the Board as aforesaid. All those employed in the bargaining unit on the date hereof who are so employed on the date the vote is taken will be eligible to vote. (The atten­tion of the parties in that respect is directed to City Plumbing (Kit chener) Limited [1987] OLRB Rep. June. 810.)

25. Voters will be asked to indicate whether or not they wish to be represented by the appli­cant in their employment relations with the respondent.

26. The matter is referred to the Registrar.

DECISION OF BOARD MEMBER D. A. PATTERSON: October, 16, 1991

1. I dissent from the majority decision.

2. I am at odds with the majority's findings regarding the employee status of Rich Chic­quen and Robert Chicquen. I would not have found either of these witnesses to be employees on the date of the applicant's application for certification. I am not convinced nor did I find their evi­dence persuasive. Neither Rick or Robert Chicquen in closer examination by counsel for the union could remember anything, even remotely about the day in question. The employer did not provide any additional evidence during the Board inquiry which could have clarified their respective duties and responsibilities on the date in question.

3. I believe that the Board's jurisprudence is very clear in setting out where the onus lays in such cases. I feel that E. & E. Seegmiller Limited has not discharged its onus as per the test the Board has adopted over the years. In PHI International Inc., (hereinafter referred as "PHI"), [1980] OLRB Rep. Dec. 1789, the Board stated at paragraph 11 of its decision:

…..It is the parties themselves who are in the best position to understand the business or factual context in which the employee status dispute arises, and it is the parties, therefore, who must bear the primary burden of adducing evidence to support their positions, or risk the possibility that if they do not lead such evidence, the Board will draw inferences adverse to their position from the evidence which is available. We do not think the officer has any obligation to "call" any evidence or ask any particular questions although frequently he will do so in order to clarify and expedite matters, and ensure that relevant evidence is before the Board. Certainly, he has no obligation to conduct an examination of a witness of which he knows nothing whatsoever. The present circumstances provide a case in point, for here, neither the union, nor the Board officer, had any knowledge of the background of the witness, or the evidence which the respon­dent Farlo claimed might be material. These facts were exclusively within the knowledge of the respondent itself, and in our view it was entirely appropriate for the officer to turn to the respondent to call that evidence.

In the instant case, I believe that the evidence the employer chose to call in support of its assertion falls short of exactly what the Board expects in such cases and is laid out in PHI.

4. I would also draw on paragraph 17 of the PHI decision to further support my opinion.

For these three individuals there are not even the minimal employment records which are avail­able for Ponte, DiLabio and the other employees on the list. There are no unemployment insur­ance records, TD-1 forms or separation certificates. There is only an unsigned typewritten docu­ment dated April 25, 1979 indicating that work was done by the three persons at 220 and 230 Woolner Road. However, although this document was produced, no one from the respon­dent(s) came forward to explain what it was, whether it is the kind of document which is kept in the ordinary course of business, whether this is the way the respondent(s) document casual lab­ourers, why the space for a signature is not filled in, who prepared the document, who keeps documents of this kind and from what record or sequence of records it has been extracted. All of these things might have been of some assistance to the Board in determining what weight to be ascribed to this document. As it is, in the absence of such information, the Board is satisfied it should give this particular document no weight.

I believe the same analysis is applicable in this case. In the exhibits filed by the respondent the daily cost sheets where both Robert and Rick Chicquen's names are listed for the date in question on page 3 of the cost sheets. This particular cost sheet although it signifies the same date, job site, job number etc. on pages 79 and 80, the page 81 is signed by foreman no. 13927, and pages 79 and 80 were signed by Mason, a different foreman. During the Board inquiry the respondent did not offer up any evidence from any of the foreman who signed the cost sheets. I believe the only infer­ence the Board should draw from this lack of evidence is an adverse inference and thus the docu­ments filed should be given no weight.

5. It is this Board member's opinion that the onus falls directly in the lap of the respon­dent, not the applicant. In paragraph 21 of the PHI case, the Board stated that:

On an application for certification, the Board is required to ascertain both the number of employees in the bargaining unit employed on the application date, and the number of employ­ees who were members of the union on the "terminal date" fixed pursuant to section 92(2)(j) of the Act. An employer is required to file, in Form 51, a list of his employees. This list must be prepared under the instruction of a responsible company official who signs the list to verify its accuracy. In determining the number of employees in the bargaining unit the Board places pri­mary reliance on this material, for the number and nature of an employer's employment rela­tionships are matters which are often within its exclusive knowledge. The trade union seldom has detailed information in this regard, even though its right to certification will ultimately turn on establishing majority support among these employees. This is especially so in the construc­tion industry where employment relationships are transitory, employment levels can fluctuate on a day-to-day basis, and an employer may be engaged on a number of independent and geo­graphically separate construction sites. Unless there is an interchange of employees, or func­tional interdependence among construction sites, the union may not have specific knowledge of the employer's employee complement. In these circumstances, we do not think it is unreason­able to require an employer to come forward and substantiate its claim that certain individuals were, indeed, "employees" on the application date. Frequently, a simple check of the employ­er's records will be all that is required. Sometimes, it may be necessary to entertain oral evi­dence. In either, case, however, we are satisfied that when an employer submits a list of individ­uals whom it claims are employees in the bargaining unit on the application date, it must be prepared to come forward, if challenged, and demonstrate that its list is accurate.

6. In closing, I would not have found either Rick or Robert Chicquen to be employees employed on the date of the application for certification by the respondent employer. I would not have included either Rick or Robert Chicquen on the list of employees. Therefore, I would have issued a certificate to the applicant.