International Union of Operating Engineers, Local 793 v. M. Pickard Construction Co. Ltd., 1991 CanLII 6067

[1991] OLRB Rep. May 654

1364-89-R International Union of Operating Engineers, Local 793, Applicant v. M. Pickard Construction Co. Ltd., Respondent v. Labourers' International Union of North America, Ontario Provincial District Council, Intervener v. Group of Employees, Objectors

BEFORE: Louisa M. Davie, Vice-Chair, and Board Members R. W. Pirrie and P. V. Grasso.

APPEARANCES: J. Slaughter for the applicant; J. Liberman for the respondent; no-one appearing for the intervener or the objecting employees.

DECISION OF LOUISA M. DAVIE, VICE-CHAIR AND BOARD MEMBER R. W. PIRRIE: May 17, 1991

1. At this stage of the proceedings in this application for certification we must determine which persons should be included in the bargaining unit for purposes of the count.

2. Before so doing, it is convenient to briefly capsulize the history of this application for certification and the decisions of the Board which have preceded this one.

3. This application for certification was filed pursuant to section 144(1) of the Labour Relations Act ("the Act") on August 28, 1989. Applications for certification by The Labourers' International Union of North America, Ontario Provincial District Council ("the Labourers") in respect of certain employees of the respondent (hereinafter referred to as "the employer" or "Pickard Construction") had also been filed. Timely petitions objecting to the certification of both this applicant ("the Operating Engineers") and the certification of the Labourers were also filed. In addition timely revocations were filed on behalf of the Operating Engineers. An unfair labour practice complaint was also filed by the Labourers. There was disagreement amongst the parties in respect of the appropriate description and composition of the bargaining units in the various appli­cations, and numerous challenges to the lists of employees filed by the employer in reply to the applications. Both the Operating Engineers and the Labourers intervened in the applications for certification which had been filed by the other.

4. By decision of a different panel of the Board dated July 11, 1990, these matters were heard together. Upon agreement of the parties (as reflected in the decision dated July 11, 1990) it was agreed that the Board would hear first the evidence and representations of the parties with respect to the voluntariness of the petitions and the unfair labour practice allegations.

5. We note that a Labour Relations Officer had been appointed by the decision of yet a different panel of the Board dated October 20, 1989. The Labour Relations Officer was authorized to inquire into and report to the Board in respect of the numerous challenges to the lists of employ­ees filed in the various applications. That inquiry was conducted on various days commencing on November 14, 1989 and concluding on July 4, 1990. The Labour Relations Officer's report with respect to the various challenges consists of some 468 pages and numerous exhibits.

6. This panel of the Board heard the evidence and representations of the parties with respect to the voluntariness of the petitions and the unfair labour practice allegations over seven days. We concluded our hearing in respect of that aspect of the applications on November 27, 1990. By decision of the Board dated December 4, 1990, a majority of the Board with Mr. P. V. Grasso dissenting determined that the petition filed in opposition to this application for certifica­tion by the Operating Engineers was voluntary. The Board unanimously found the petitions filed in opposition to the Labourers' applications not to be voluntary and subsequently certified the Labourers. In our decision dated December 4, 1990, the majority (Mr. Grasso dissenting) also determined that Mr. Jim McCutcheon was an employee and ought not to be excluded from the appropriate bargaining unit by reason of section 1(3)(b) of the Act.

7. A request for reconsideration of that decision was dismissed by the majority of the Board by decision dated February 27, 1991.

8. As a result of the finding that the petition was voluntary, it became necessary to hear the evidence and representations of the parties with respect to the voluntariness of the timely revo­cations which had been filed by the Operating Engineers. We conducted a hearing with respect to that issue on April 8, 1991. At the conclusion of the evidence and submissions we rendered an unanimous oral ruling that the revocations were a voluntary expression of the wishes of the employees who had signed them.

9. We note that it was not until December 7, 1990 that the parties ultimately agreed upon the description of the bargaining unit in both this application and the applications filed by the Lab­ourers. Having regard to that agreement and the provisions of section 144(1) of the Act we find the appropriate bargaining unit in this application to consist of 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 County of Grey engaged in the operation of cranes, shovels, bulldozers and similar equipment, and those primarily engaged in the repairing and maintaining of same, and employees engaged as sur­veyors, save and except non-working foremen and persons above the rank of non-working fore­man.

10. Our decision herein addresses which of the employees are to be included in that bar­gaining unit for purposes of the count.

11. We note that over the course of these protracted proceedings the parties were able to resolve a number of challenges to the list. As a result the only individuals whose inclusion on the list remains in dispute are:

(a) Andrew McCutcheon

(b) Jim McCutcheon

(c) Steve McCartney

(d) Dale Cuyler

(e) Dave Thomson

12. In making our determination as to whether these individuals should be included in the bargaining unit, or excluded from it, we adopted and applied what has come to be known as the "Gilvesey test" (see Gilvesey Enterprises Inc., [1987] OLRB Rep. Feb. 220) and have focused on the date of application (see also E & E Seegmiller Limited, [1987] OLRB Rep. Jan. 41).

13. In addition, and notwithstanding counsel for the applicant's submissions to the con­trary, we have also applied the principles enunciated by the Board in Wraymar Construction And Rental Sales Ltd., [1989] OLRB Rep. June 682 to assist in our determination whether the "me­chanics" employed by Pickard Construction (Jim McCutcheon and Andrew McCutcheon) should be included in the bargaining unit. We agree with and adopt the reasoning of the Board in Wraymar Construction and Rental Sales Ltd., supra, and Bill Brownlee Excavating Ltd., [1988] OLRB Rep. April 364, application for reconsideration dismissed [1988] OLRB Rep. July 645.

14. With respect to the challenges relating to persons characterized by the respondent as independent contractors we have considered and applied the Board's jurisprudence regarding the issue of whether persons are dependent or independent contractors including Airline Limousine, [1988] OLRB Rep. March 225, Algonquin Tavern, [1981] OLRB Rep. Aug. 1057, Atway Trans­port Inc., [1989] OLRB Rep. June 540, Craftwood Construction Co. Ltd,, [1980] OLRB Rep. Nov. 1613 and the decisions referred to therein.

15. Having regard to the officer's report and the representations of the parties and the juris­prudence already referred to' we find the following:

16. On the application date Mr. McCartney reported for work at 7:00 o'clock. He travelled to the work site and for the first two hours of his working day from 7:30 to 9:30 he cut sod and took out a hedge on the property. For the next two hours from 9:30 to 11:30 he dug a trench operating equipment which falls within the jurisdiction of the operating engineers. Thereafter and for the remainder of the day he spent his time manually digging, shovelling, and raking gravel to backfill. As a result of the configuration of the site on which he was working and the proximity of the houses on that site he did not operate any equipment to perform this backfill work on that day.

17. In our view, Mr. McCartney did not spend the majority of his time performing work in the bargaining unit on the date of application. We find that Steve McCartney was not an employee in the bargaining unit on the application date. Mr. McCartney was hired as a labourer and on the date of application he spent the majority of his time performing labourers work.

18. On occasion Mr. McCartney does operate equipment which the applicant asserts as being within the work jurisdiction of the operating engineers including a skid steer loader. The employer does not concede that the skid steer loader falls exclusively within the operating engi­neers bargaining unit although counsel conceded that the classification of skid steer loader appears in a number of collective agreements which the operating engineers have with contractors. It was the employer's position that the skid steer loader was a tool of the trade.

19. In our view, the operation of a skid steer loader is work within the bargaining unit applied for. That is not to say that the operation of the skid steer loader falls exclusively within the operating engineers' work jurisdiction. The work jurisdictions of trade unions are not air tight compartments. Overlap of work jurisdiction and competing claims for work by trade unions is not unusual as the numerous jurisdictional complaints filed with the Board attests. The fact that another trade union may equally claim the operation of the skid steer loader as falling within its jurisdiction does not resolve the issue as to whether the operation of the skid steer loader is work within the work jurisdiction of the operating engineers. The question in this application is whether an individual can, in the particular circumstances, be said to fall within the bargaining unit applied for when operating a skid steer loader. It is not whether the assignment of that work to the operat­ing engineers would be reversed by the resolution of the jurisdictional complaint arising out of competing claims for that work. It is neither appropriate nor necessary to determine such a jurts­dictional dispute in this certification application. (see George and Asmussen Limited, [1970] OLRB Rep. Oct. 783; Sample-Gooder Roofing Ltd., [1983] OLRB Rep. Nov. 1908 and H & D Construc­tion, [1987] OLRB Rep. Dec. 1495.) This is especially so where, as here the evidence does not unequivocally establish that Mr. McCartney operated a skid steer loader at all on the date of appli­cation.

20. Dave Thomson is an owner operator who clearly spent the majority of his time on the date of application performing bargaining unit work. Counsel for the employer asserted Mr. Thomson was an independent contractor. We disagree. We find that Mr. Thomson is a dependent contractor. Although there are some factors which point towards independence~ having particular regard to the economic dependence of Mr. Thomson, his full-time engagement with Pickard Con­struction during the construction season, and the conditions of that engagement and its similarity to the conditions under which persons who are clearly employees of Pickard Construction work~ we find that Mr. Thomson is a dependent contractor within the meaning of subsection 1(1)(h) and an employee pursuant to section 1(1)(i) of the Act. Mr. Thomson is therefore properly included on the list of employees filed.

21. Dave Cuyler is also an owner operator who we find is a dependent contractor and an employee pursuant to subsection 1(1)(i) of the Act. We find that Mr. Cuyler was performing the work of an operating engineer on the application date. We find however, that he did not on the date of application spend a majority of his time performing bargaining unit work in either the industrial, commercial and institutional sector of the construction industry or in any other sector of the construction industry in the geographic area to which this application relates. Mr. Cuyler was at work in the County of Bruce on the date of application. Bruce County falls within Board Area 3 and not Board Area 28 to which this application relates. Mr. Cuyler was therefore not at work in the bargaining unit on the date of application and ought not to be included on the list of employ­ees.

22. The issue as to whether the mechanics employed by Pickard Construction should be included in the bargaining unit is not at all clear-cut or easily determined. Before examining the nature of the work performed by the disputed individuals it is therefore appropriate to provide a brief review of certain facts and circumstances which have a general bearing upon that determina­tion.

23. Pickard Construction has a three-bay garage. That garage or "shop" is situated within the geographic region to which this application applies. Pickard Construction employs three indi­viduals as mechanics. The inclusion of two of those mechanics in the bargaining unit is in dispute. The parties are agreed that the third individual classified as a "small engine mechanic" is properly excluded from the bargaining unit. As that classification title suggests the small engine mechanic maintains and repairs small equipment such as portable waterpumps, earth compactors, chain saws, tampers, etc. In addition, the small engine mechanic repairs and maintains the small equip­ment of another company owned and operated by Mr. Pickard called Sound Rentals.

24. In addition to this "small equipment", Pickard Construction owns a number of trucks. It also owns various pieces of equipment the operation of which clearly fall within the jurisdiction of the operating engineers. The list of equipment and trucks itemized in the Labour Relations Offi­cer's report includes approximately eight or nine back hoes, two small and four large ride-on dit­chwitches, one walk behind ditchwitch, one skid steer loader, one bulldozer, two reel trucks, three tandem trucks, four single axle trucks and approximately thirty to forty pick-up trucks. Counsel for the applicant argued, inter alia, that the disputed mechanics were primarily truck mechanics and were not mechanics "primarily engaged in the repairing or maintaining" of "cranes, shovels, bull­dozers or similar equipment" and therefore they did not fall within the bargaining unit. That sub­mission, although persuasive, is not borne out by the evidence of the work performed by either Mr. Jim McCutcheon or Mr. Andrew McCutcheon on either the application date or generally.

25. Andrew McCutcheon is an apprentice mechanic. On the date of application he worked ten hours. He spent the first two hours of his work day (10:00 a.m. to 12:00 p.m.) in the shop ser­vicing a backhoe. Thereafter, from 12:00 p.m. to 2:00 p.m. he serviced a backhoe "on the road" (i.e. at a construction site). The amount of time actually spent servicing the backhoe was forty-five minutes while the remainder of that two-hour period was travel time to and from the site. Mr. McCutcheon indicated that for reasons of economy and efficiency it was determined to service this backhoe on-site rather than bringing it back to the shop for servicing.

26. From 2:00 p.m. to 3:30 p.m. Mr. McCutcheon delivered a backhoe bucket to the crew at another job site. The backhoe bucket at this site needed to be replaced with a different one and Mr. McCutcheon was sent out to do that. Fortuitously, before leaving the shop, Mr. McCutcheon was advised that the crew also needed a compressor at the site. He therefore hooked up the com­pressor and delivered it to that site. The travel time to and from the job site was approximately one hour while the removal and replacement of the backhoe bucket took approximately thirty minutes.

27. After returning from that job site, Mr. McCutcheon spent two hours working on a sin­gle axle-dump truck at the shop. Thereafter, he spent two and a half hours working on a ditchwitch with a full size trencher. During this two and a half hours Mr. McCutcheon also had his half-hour break. For the last half-hour of this shift he performed a "walk-around" the yard "service check'.' noting mileages on the trucks and determining which trucks needed to serviced. He also changed the oil on a three-quarter ton truck.

28. Mr. McCutcheon could not estimate with any degree of certainty how much time he spent in the shop and how much time he spent "on the road". He indicated that was dependent on other factors stating in his evidence:

It really depends. During the season you can't really say on a day to day, like take the whole year and say well I spent the majority of my time, I spend the most of my time in the shop. In the summer time it is different because you have service calls and everything else. So you never know if you're going to be in the shop or out of the shop. The winter time, I would have to say that you know 80% of your time is spent in the shop. You still have some service calls but not as many.

Sometimes it's very, it's more inconvenient to bring a piece of equipment into the shop then it is for us to travel out to it and for all the time it takes to drop the oil and fill it back up again, you can have it done in no time. So in that case it would have been, you know they would have been on the job for maybe three or four weeks or whatever and it was easier for us to go out to it and dump the oil, then it was to have it floated in and changed here.

29. Similarly, Mr. McCutcheon was unable to differentiate between the time spent working on machinery such as backhoes, bulldozers, etc. and the time spent working on trucks.

30. Counsel for the applicant submitted that the actual time which Mr. A. McCutcheon spent servicing, repairing or maintaining equipment ought not to include the time spent traveling to and from the site. He asserted that with respect to the removal and replacement of the backhoe bucket, that time was only thirty minutes. The remainder of the time was travel time to deliver the compressor. With respect to the on-site service of the backhoe, counsel noted that the actual time spent servicing the backhoe was forty-five minutes and the remainder of the time was travel time. He argued that the Board ought not to piggy-back travel time or the work of "driving" onto the work of the operating engineer which falls within the bargaining unit. In support, he referred to Bill Brownlee Excavating Limited, supra, On-Grade Excavating and Drainage (Niagara Limited), unreported decision of the Board dated October 14, 1988 and Vanson Construction Limited unre­ported decision of the Board dated October 24, 1990. These cases variously stand for the proposi­tion that driving a float truck, fuel truck, fuelling or driving to deliver parts is not work within the bargaining unit.

31. In our view, these cases are readily distinguishable and do not apply. We agree that "driving" (whether its a fuel truck, pick-up truck or float) and "delivery" (whether delivery of parts or fuel) is not work within the operating engineers' bargaining unit. In our view, however "driving" and "delivering" in those instances is separate and distinct from "travel time" to and from a job site to perform work within the bargaining unit.

32. Travel time which necessarily arises as a result of the performance of work which clearly falls within the bargaining unit is work within the bargaining unit. One cannot perform on-site maintenance or repair without travelling to the site. In that instance the travel is an integral part of the job functions of the mechanic. To hold otherwise could lead to the strange result that a mechanic who spent the entire day travelling to various sites would not be included in the bargain­ing unit because the travel time outweighed the time actually spent on repairs or maintenance.

33. The delivery of the compressor is clearly not work which falls within the bargaining unit. We are of the view however, that the primary purpose for McCutcheon's attendance at the site was the need to remove and replace the backhoe bucket. The delivery of the compressor was an incidental purpose. Mr. McCutcheon was initially required to go to the site to remove and replace the backhoe bucket not to deliver the compressor. The travel time to the site was an inte­gral part of his duty as mechanic to remove and replace the bucket of the back hoe on the site.

34. We note also that in our view the time which Mr. A. McCutcheon spent on the repair of the ditchwitch also should be included in the calculation as to whether Mr. McCutcheon spend the majority of his day performing work in the bargaining unit. Notwithstanding any submissions to the contrary, in our view the work of maintaining or repairing a ditchwitch is work within the bar­gaining unit applied for as the operation of the ditchwitch itself is also work within the bargaining unit applied for. As was the case with the skid steer loader, that is not to say that operation of the ditchwitch falls exclusively within the work jurisdiction of the operating engineers. Our comments with respect to the work jurisdiction of the various trade unions in relation to the skid steer loader apply equally to the operation of the ditchwitch.

35. On the basis of all the evidence we find that Mr. A. McCutcheon is commonly associ­ated in his work with on-site employees in the bargaining unit, and on the date of application spend a majority of his time performing bargaining unit work. He should therefore be included on the list of employees.

36. Mr. Jim McCutcheon is the employer's chief or head mechanic. He is a licensed, class "A" mechanic. He does not have a heavy equipment endorsement to that license. Mr. Jim McCut­cheon has no recollection of the work he actually performed on the date of application although he knows he worked eight hours on that day. In his examination by the labour relations officer he noted that "everyday is a little different but our job is to repair and keep this equipment running and that's what we do."

37. Mr. McCutcheon does on occasion leave the shop either to pick up parts or "to repair a piece of equipment that is broken down at [sic] the field."

38. In our view, the following exchange of questions and answers typifies Mr. Jim McCut­cheon's responsibilities to repair equipment on-site.

Q. What would happen when you receive the report of broken-down equipment in the field, what would your responsibilities then be?

A. My responsibilities would be to pack-up the tool box and take whatever parts I felt necessary and repaired it.

Q. So you packed up the tool box here at the shop and then what would you do?

A. I would go to the site and repair it if I could. If it couldn't be repaired we would bring it back to the shop.

Q. You said that this is the type of occurrence happens almost everyday?

A. If you average it out, it would happen everyday I'm sure.

Q. Would your evidence then be that you leave the shop almost on a regular daily basis to attend to repairs in the field?

A. Either I or one of the other men, yes.

Q. Specifically, the question was do you, Jim McCutcheon, leave the shop everyday to attend down-site equipment repairs?

A. I don't everyday, but some days I might be out five times, so it's difficult to tell.

39. In further examination by the applicant and respondent, Mr. Jim McCutcheon indicated he would be on-site more often during the summer months of the construction season than at other times of the year. He also indicated that on-site work would not take more than one hour on any job site visit because "if it takes longer than that, it's a major job and it should come in the shop."

40. There is no evidence to indicate the amount of time Mr. McCutcheon spends on-site as opposed to the time he spends in the shop.

41. We find the evidence with respect to how much time he spends working on trucks as opposed to such heavy equipment as back-hoes, bulldozers, etc. to be equivocal. In examination by counsel for the employer Mr. McCutcheon could not place an estimate on those figures. When questioned by counsel for the trade union, he estimated two-thirds of his time "was spent on trucks and the rest on the equipment."

42. On the totality of the evidence we therefore find Mr. McCutcheon works both in the shop and on job sites, as required, repairing the respondent's construction machinery. On balance, we find that he is "commonly associated in his work for bargaining with on-site employees" and was so employed on the date of application. (See Bill Brownlee Excavating Limited, supra, and Wraymar Construction and Rental Sales Limited, supra. We find that he is properly on the list of employees.

43. As a result of the agreement of the parties and the Board's findings herein we find the following to be the list of employees in the bargaining unit.

44. Gord Croft

45. Jerry Henry

46. Ron Henry

47. Larry Hillis

48. Tom McDonald

49. Doug Marshall

50. Jim McCutcheon

51. Terry Nicoll

52. Jim Pringle

53. Roger Schoonjans

54. Andrew McCutcheon

55. Dave Thompson

56. We note that the Labourers did not make any submissions to this Board to the status of Steve Farrow, Steven McCartney and Ray Nickason. The Labourers withdrew from active partici­pation in this proceeding on December 7, 1990 when the Board indicated that as a result of our finding that the petitions circulated in opposition to the Labourers' applications were not voluntary the Labourers would be granted certificates covering the employees in the bargaining units for which they had sought to be certified. The determination by the Board with respect to the status of Messrs. Farrow, McCartney and Nickason did not affect the Labourers' right to be certified and as a result the Labourers took no position regarding the status of those individuals. Counsel for the Labourers requested however that the Board note that the Labourers did not participate in the liti­gation regarding the status of these three individuals and that their non-participation was "without prejudice" to any position the Labourers might take in any future matter regarding the issue of the status of these individuals. The employer and applicant in this proceeding subsequently agreed that Steve Farrow and Ray Nickason should not be included on the list of employees in this bargaining unit. We have determined that Steve McCartney also should not be included on that list.

57. We also note that in view of the final list of employees and our finding that the revoca­tions were voluntary, the voluntary petition filed in opposition to this application for certification by the operating engineers was no longer numerically relevant. There was an insufficient overlap between the number of employees for whom the applicant filed membership evidence and the number of employees who had signed the petition (and who had not later revoked their signatures on the petition and affirmed support for the applicant) so as to cause the Board to doubt whether the applicant continued to have the support of more than fifty-five percent of the employees in the bargaining unit as of the terminal date.

58. The Board finds that 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.

59. 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 September 12, 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.

60. 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 des­ignated employee bargaining agency named in paragraph 46 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 and maintaining of same, and employees engaged as surveyors, save and except non-working foremen and persons above the rank of non-working foreman.

49. Further, pursuant to section 144(2) of the Act, a certificate will issue to the applicant trade union in respect of all employees of the respondent in all sectors of the construction industry in the County of Grey, 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 and maintaining of same, and employees engaged as surveyors, save and except non-working foremen and persons above the rank of non-working foreman.

DECISION OF BOARD MEMBER P. V. GRASSO; May 17, 1991

1. I concur with most of the findings and conclusions in the decision, but I am unable to agree with the decision to include Mr. Jim McCutcheon on the list of employees. The reason for my decision is that the evidence reveals the following facts:

a) Mr. McCutcheon has no recollection of the work he actually per­formed on the date of application;

b) He does not go out every day on work-sites to repair equipment and when he does go to a work site his visit would not take longer than one (1) hour;

c) Mr. McCutcheon estimated that he spends two-thirds of his time repairing trucks.

2. The above evidence is indicative of the work that he generally performs when you look at the list of equipment. In addition to some small equipment the company owns:

8 or 9 back hoes

2 small ride-on ditchwitches

4 large ride-on ditchwitches

1 walk behind ditchwitch

1 skid steer loader

1 bulldozer

2 reel trucks

3 tandem trucks

4 single axle trucks

30-40 (approximately) pick-up trucks

3. Accordingly, based on all the evidence, I find that Mr. Jim McCutcheon was not an employee in the bargaining unit on the date of application.