Labourers' International Union of North America, Local 506 v. Pre-Eng Contracting Ltd., 1991 CanLII 6120

Ontario Labour Relations Board

[1991] OLRB Rep. February 256

0808-89-R Labourers' International Union of North America, Local 506, Appli­cant v. Pre-Eng Contracting Ltd., Respondent

BEFORE: N. B. Satterfield, Vice-Chair, and Board Members W. N. Fraser and C. A. Ballentine.

APPEARANCES: Elizabeth Mitchell and Peter Treacy for the applicant; Douglas Gilbert, Bruno Scenna and Mona Anis for the respondent.

DECISION OF THE BOARD; February 28, 1991

1. In this application for certification the applicant filed three combination applications for membership and receipts. The combination applications for membership are signed by the employees and the receipts are countersigned and indicate that a payment of $1.00 has been made within the six-month period immediately preceding the terminal date of the application. The money was collected by one person. The applicant also filed a duly completed Form 80, Declaration Concern­ing Membership Documents, Construction Industry.

2. The respondent filed a reply, a list of employees containing six names on Schedule "A" and specimen signatures within the time fixed in accordance with the Labour Relations Act and the Board's Rules of Procedure.

3. 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 September 30, 1983, the designated employee bargaining agency is The Labourers' International Union of North America and The Labourers' International Union of North America, Ontario Pro­vincial District Council.

4. The Board further finds that this is an application for certification within the meaning of section 119 of the Labour Relations Act and is an application made pursuant to section 144(1) of the Act which provides that:

An application for certification as bargaining agent which relates to the industrial, commercial and institutional sector of the construction industry referred to in clause 117(e) shall be brought by either,

(a) an employee bargaining agency; or

(b) one or more affiliated bargaining agents of the employee bargaining agency,

on behalf of all affiliated bargaining agents of the employee bargaining agency and the unit of employees shall include all employees who would be bound by a provincial agreement together with all other employees in at least one appropriate geographic area unless bargaining rights for such geographic area have already been acquired under subsection 3 or by voluntary recogni­tion.

5. The Board further finds, pursuant to section 144(1) of the Act, that 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 and in all other 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, 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.

6. The pleadings filed by the parties revealed a dispute about the number of employees who would be included in the bargaining unit for purposes of subsection 7(1) of the Act. Subsec­tion 7(1) requires the Board to "...ascertain the number of employees in the bargaining unit at the time the application was made...". The declaration filed by the applicant pursuant to the Board's Rules of Procedure in support of its membership evidence claimed that there were three employees in the unit. The list of employees filed by Pre-Eng Contracting Ltd. ("the employer" or "the respondent") contained six names. Accordingly, a different panel of the Board authorized a Board officer to inquire into and report to the Board on the list of employees who would be included in the unit described above. The officer's inquiry was made during three days approximately one and one-half to two months after the application date. Once the officer's report to the Board was released to the parties, they requested to make oral submissions as to the conclusions the Board should reach based on the evidence contained in the report. A hearing was held for that purpose.

7. The six persons named on the employer's list were: Frank J. Grotsch, John Jeronimo, Joseph L. Lefevre, Steven C. Long, Sam Rodriguez and Stephen Small. The applicant claimed that Grotsch, Lefevre and Long should not be included in the unit because on the date of application Grotsch was not working within the unit, Lefevre and Long exercised managerial functions within the meaning of subsection 1(3)(b) of the Act or, in the alternative, if the Board were to find that Lefevre did not exercise managerial functions, he was not working within the unit. During the course of her submissions to the Board, applicant counsel conceded that Steven Long should be included in the unit and the Board so finds. Consequently, the persons remaining in dispute are Frank Grotsch and Joseph Lefevre.

8. The officer's report contains the evidence of Frank Grotsch, Joseph Lefevre, John Jer­onimo, Sam Rodriguez, Stephen Small, Peter Treacy, Kenneth Bloomfield and Max Stanford. Grotsch and Lefevre were called by the Board and examined by the officer and the parties. Jeron­imo, Rodriguez, Small and Treacy testified for the applicant and Bloomfield and Stanford for the employer. They were examined by the parties. There is significant conflict in the testimony of sev­eral witnesses as well as internal inconsistencies in the testimony of some. Conflicts and inconsis­tencies in the evidence about the work being performed on the date of making of the application and who was performing it are dealt with later in the decision. Where it has been necessary for the Board to resolve other conflicts and inconsistencies, it has taken into account what a witness' answers to questions reveal about the witness' opportunity for knowledge of the matters about which he was testifying, the firmness of his recollection, his ability to relate that knowledge clearly, the directness of his responses, the submissions of the parties and what is reasonably probable in all of the circumstances.

9. The officer's report also contains documentary evidence in the form of daily labour time sheets for the two sites including June 23rd, a Superintendent Daily Report for the St. James Town site for June 23rd and Environment Canada meteorological records of readings for the month of June for "Toronto City" taken at the University of Toronto station. They were submitted to the Board after the conclusion of the inquiry by counsel who had represented the employer at the inquiry. They were accompanied by a copy of a letter addressed to applicant counsel. The letter refers to employer counsel having announced her intention at the conclusion of the inquiry to introduce the reports into evidence. There was no objection to their introduction in this manner. Nor was there any objection when employer counsel relied on them in his oral submissions to the Board at the hearing held to receive the parties' submissions on the officer's report. The time sheets record the total hours worked on each day of a work week by individual employees and allo­cate those hours to particular tasks. The time sheets are an accurate record of the total hours worked by hourly paid employees because they are relied upon for payroll purposes. Their alloca­tion of hours to specific tasks, however, is made for costing purposes and may not be an accurate record of the work which an employee was actually doing on that day. Also, for Lefevre and Grotsch who are paid a salary regardless of their hours worked, they are not a reliable record of the exact hours worked by them. For example, while Bloomfield said that he would not show time for Lefevre or Grotsch on a particular day if they had not worked on the St. James Town site, on any day when they were on site, he might not be precise about their actual hours worked. Accord­ing to Bloomfield, their hours are recorded for costing purposes only and, since they are going to be working no matter which site they are on on any particular day, it does not matter whether they work on one site or the other. In these circumstances, the time sheets are not conclusive with respect to the actual work performed by the employees recorded on the sheet and they do not accurately record the actual hours worked by Lefevre and Grotsch. The Superintendent Daily Report is a general record of significant work activities of the respondent's employees and subcon­tractors and of the conditions on the site. Bloomfield prepares a report for each day.

10. In an application for certification under the construction industry part of the Act, in order for a person to be included in the bargaining unit for purposes of subsection 7(1), the person must be at work for the employer on the date the application is made and have spent the majority of his/her time on that date doing bargaining unit work. See E & E Seegmiller Limited, [1987] OLRB Rep. Jan. 41, at paragraph 12 and the cases referred to therein. Paragraph 23 of the deci­sion sets out the following criteria to be used:

(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.

Applicant counsel submits, and the Board agrees, that these are the correct tests to apply in decid­ing whether Grotsch and Lefevre should be included in the bargaining unit for purposes of the sub­section 7(1) "count". Counsel for the employer did not expressly agree with the application of those criteria but the thrust of his argument adopts them by implication.

11. This application was made on June 23, 1989. On that date, the respondent was engaged in work on two construction sites within Metropolitan Toronto. They were referred to as the Health and Welfare project located in the area of Midland Avenue and Highway 401 and the St. James Town project in the vicinity of Bloor Street East and Parliament Street in the City of Toronto. The Health and Welfare project involved the demolition of interior walls of a building. The St. James Town project was a contract for the rehabilitation of a concrete roof slab of an underground parking garage, including waterproofing, new landscaping and lighting. As of June 23rd, Max Stanford, one of three partners who own the respondent, was general superintendent of the projects, Ken Bloomfield was project superintendent at St. James Town and George Patton was project superintendent at Health and Welfare.

12. The issue of whether Lefevre exercises managerial functions arises because subsection

1(3)(b) of the Act provides that no person who, in the Board's opinion, exercises managerial func­tions, shall be deemed to be an employee under the Act. Thus such persons are excluded from any unit of employees which the Board may find to be appropriate for purposes of collective bargain­ing. As a matter of practice, in applications for certification, the Board excludes all persons employed at and above the lowest level at which managerial functions are exercised. In applica­tions for certification in the construction industry, this exclusion is consistently expressed as "non­working foremen and persons above the rank of non-working foreman". The corollary of that exclusion is that persons who are commonly referred to as "working foremen", because they exer­cise some supervision over other employees while doing the same kind of work themselves, are not excluded unless they have overall responsibility for a job site or can and do affect the employment relationship of the employees whom they supervise. See Seegmiller, supra, at paragraph 13.

13. Lefevre has worked in construction for 15 years, primarily in concrete construction. He was hired by the respondent in March 1989 and there is no doubt that one reason why he was hired was his knowledge of concrete construction and its application to the work on the St. James Town project. He also knew other persons who were experienced in concrete construction. He stated that the respondent's owners wanted to get into concrete restoration work and expected him to be on-site overseeing the jobs and at the same time helping to do the work. He was hired at a salary of $40,000 per year. He asked for that form of payment, declining to be paid at an equivalent hourly rate. No hours of work were stipulated and no job title was discussed. When asked by the Board officer what was his classification, he replied that he had not been given one and he guessed that the closest label he could give himself was "labour foreman".

14. Lefevre was hired before the St. James Town site was open so he worked at other sites for the respondent and did preparatory work for the opening of the St. James Town site. It opened at the beginning of May and Lefevre was the only person regularly on site who supervised the employees. He worked under the direction of one of the owners. Bloomfield did not return from an extended vacation until mid-May. During this period Lefevre ran a labour crew of from two to twelve employees involved in the placing of hoarding and safety fences and the removal of trees prior to excavating the earth overburden on the roof slab. Sometimes Lefevre worked as part of the crew and other times he worked in the site office. Although the evidence is unclear as to the precise division of his time between working with the crew, supervising them and working in the site office, Lefevre's testimony contains a number of references to him working with the labourers on the preparatory work and of doing the work himself; for example, cutting down and removing the trees. He also spent some of his time doing demolition work for the respondent at the Health and Welfare site. Grotsch testified that Lefevre directed the employees cutting down trees, putting up hoarding and helping them with those jobs.

15. Even if the Board was prepared to assume, because he was responsible for the St. James Town site prior to Bloomfield's arrival in mid-May, that Lefevre exercised managerial func­tions at the time, he ceased exercising them once Bloomfield joined the St. James Town project in mid-May, about five weeks prior to this application. Bloomfield was made responsible for the project, including the concrete work, in spite of the fact that Lefevre had been hired for his experi­ence with concrete construction. The fact that Bloomfield was responsible for that work is demon­strated by the attempt, described later in the decision, to remove the waterproof membrane from the roof slab by using a piece of equipment referred to as a Bobcat. Bloomfield proposed this method. Lefevre disagreed with his proposal. The owners agreed with Bloomfield and purchased the Bobcat for $20,000 for that specific purpose. Bloomfield had direct control over the respon­dent's work force, including the labour crew. He hired labourers. Rodriguez was the first labourer hired after Bloomfield joined the project. Rodriguez applied at the site for employment and Bloomfield interviewed him in the site office. Lefevre was present during the interview but his only input into the decision to hire Rodriguez was a positive comment about his physique. Bloomfield hired other labourers after Rodriguez but did not seek Lefevre's opinion on them. Bloomfield, not Lefevre, had direct responsibility for discipline, granting time off, scheduling overtime, deciding whether an employee could take vacation time off and assessing employees' performances.

16. On the other hand, Bloomfield clearly expected Lefevre to direct the work of other lab­ourers and, in fact, was critical of him for refusing a request to assign some work to new employees and show them how to do it. Bloomfield's response was to assign the task to Grotsch whom Bloomfield referred to as his working foreman, describing his duties as follows:

He works with the tools and every morning I give him a list of items to go through and areas of importance to get ready for subcontractors coming into that area and he takes [the list] and the men out and does the work.

That is a fairly representative description of a working foreman's function, directing a crew and working "at the tools" with them to accomplish particular work tasks. Grotsch and other witnesses described Lefevre as doing labourers' work like them and directing them in the performance of the work. Grotsch estimated Lefevre to spend about a third of his on-site time at St. James Town directing labourers work. In June when there were only two or three labourers working on the site, Grotsch described Lefevre as doing mostly labouring work. The description of Lefevre doing and directing labourers' work is consistent with Stanford's view of Lefevre's role on the St. James Town site. In cross-examination, Stanford agreed that Steven Long could be described as labour foreman of the Health and Welfare site and, when asked whether Long directed other employees, Stanford's response was that Long would be given a task to do and either do it himself or take a couple of employees with him and perform the tasks. When asked who was Long's counterpart on the St. James Town site, he replied that Lefevre was.

17. On balance, the Board is satisfied that Lefevre's responsibility for directing and control­ling other employees at the time material to this application was no higher than that of a working foreman. While he was responsible also for identifying materials and equipment required for the concrete and demolition work and recommending prices and suppliers to Bloomfield, those responsibilities have no direct bearing on his direction and control of other employees. Nor does the fact that Lefevre was paid a salary of $40,000 per year, and not an hourly wage, detract from the Board's conclusion that he was nothing more than a working foreman. Lefevre rejected an hourly wage and asked for a salary instead. While no hours of work were stipulated for that salary, the least daily hours recorded for him on the daily time sheets in evidence are eight and one-half. For those hours, his salary would be the equivalent of approximately $18.00 per hour. His condi­tion is little different than that of Grotsch's who was hired at a salary of $39,000 per year. Rather their salaries reflect the respondent's recognition of the value of their concrete construction experi­ence to its attempt to get into the concrete restoration business and the fact that they were employed elsewhere at the time the respondent hired them. In the Board's opinion, therefore, Joe Lefevre does not exercise managerial functions and should not be excluded from the bargaining unit pursuant to subsection 1(3)(b) of the Act.

18. That leaves the issue of whether Lefevre and Grotsch, or either of them, were employed in the bargaining unit on June 23rd. There is substantial conflict in the evidence about what work was being performed on June 23rd and what Lefevre and Grotsch were doing on that day. Lefevre at first recalled that he was at the St. James Town site where he had the labourers chipping and repairing areas of the roof slab and putting up hoarding. Later, however, he admitted that chipping did not start until early July. He relates that work with a visit to the site made by offi­cers of the applicant. The parties agree that the evidence shows that visit to have been on July 5th.

19. Grotsch's evidence was that he and Lefevre worked on placing hoarding that morning until about noon. The hoarding used on the site was described by Bloomfield as a type of safety fence made by driving steel T-stakes into the ground, attaching 2x4's, 12 feet long, to the stakes and suspending rolls of plastic fencing from the 2x4's and stakes. Erecting the fences involves mini­mal nailing. After lunch Grotsch operated a piece of equipment he and others referred to as a Bob­cat. That is a trade name for a rubber-tired, skid-steer loader and backhoe. He operated the Bob­cat until 4:30 p.m. and then worked another half-hour to finish the hoarding. The Bobcat was being used as part of an experiment in removing a waterproof membrane from the roof slab. Bloomfield was directing the work and two of the owners were present to observe it. The mem­brane had to be removed before the chipping and restoration work could begin. According to Grotsch, while he was operating the Bobcat, Rodriguez was working on some areas of the roof try­ing to remove the membrane with an ice scraper. Grotsch also tried removing the membrane by hand in some areas for 15 or 20 minutes while Bloomfield operated the Bobcat. When Grotsch was asked why he was able to be so specific about what he was doing on June 23rd, he related it to the site visit by two officials of the applicant whom he recalls talking with Lefevre on the roof slab. That is the visit which the parties agree took place on July 5th.

20. Rodriguez, on the other hand, said that he worked most of June 23rd cleaning mud off the street and sidewalk at the site entrance. This was necessary, he said, because it was raining enough for him to get wet and the tires on trucks removing soil from the site were making the side­walk and street muddy. He testified that he spent about five hours on that work and the rest of the day working on hoarding and other work. He remembers the 23rd as the same day when two rep­resentatives of the applicant stopped by the site and spoke with him while he was cleaning the street. This is not the same visit which the parties agree took place on July 5th. He also testified that he and Bloomfield were the only employees on site that day. According to Rodriguez, that was not the only time in June when he and Bloomfield were the respondent's only employees on the St. James Town site. He testified in chief that he and Bloomfield were the only employees on site during the last one and one-half weeks of the month. Then on further questioning about the removal of soil from the site, he testified that trucks were hauling soil all month and he was the only employee (besides Bloomfield) of the respondent on the site while that work was being done. Hauling was being done by subcontract, not by the respondent. In cross-examination he denied the latter testimony and reiterated that he and Bloomfield were the only employees on the site for one and a half weeks. On further challenge, he testified that, except for Lefevre and Grotsch coming on site a few times, Bloomfield and he were the only employees on site while soil was being hauled and, when Lefevre and Grotsch were there, they worked occasionally, but mostly argued about how to remove the waterproof membrane and about the Bobcat being used for that purpose.

21. Rodriguez does recall the Bobcat being used to try and remove the membrane, but not on June 23rd. He also recalls two of the owners being on site when it was used and that the Bob­cat's bucket had been filled with concrete. He cannot recall the date, although he thinks that the owners came to the site before June 23rd to watch the experiment. Only he, Bloomfield and the two owners were there and Bloomfield operated the Bobcat. He said that Lefevre was not there and he could not recall Grotsch being there.

22. Peter Treacy was one of the two representatives who stopped and talked with Rodri­guez when he was cleaning the street. His evidence corroborates that of Rodriguez respecting the date, June 23rd, the weather and the cleaning of the street. He asked Rodriguez to remember what he was doing that day. It is reasonable to infer from that instruction that Treacy was checking the job sites in order to see who was at work before filing the application. In the Board's experience, organizers for construction trades unions commonly follow that practice. Treacy did not go on the site and could see very little of it from the street. He had visited the Health and Welfare site first, around 9:30 a.m. and returned to it briefly some time after 1:00 p.m. He did not go on site either time. He testified that he saw Lefevre, Small and Jeronimo at the site on his first visit. He saw the three of them talking and then saw Lefevre go into a trailer. In cross-examination he admitted that he saw Lefevre for the first time at the officer's examination. Prior to that he knew of him only by the description of the other employees. When asked what the weather was like when he visited the two sites, he stated that it had not been raining on his first visit to the Health and Welfare site but it was drizzling when he spoke to Rodriguez at the St. James Town site around 11:00 a.m. It was still drizzling when he returned to the Health and Welfare site some time after 1:00 p.m. By 1:30 p.m. he had left that site to attend to an unrelated matter nearby. When asked again what the weather was like for the rest of the day, he described it in the following terms:

"It was a lousy day. It wasn't really raining hard, but it was just a lousy, rotten day. Overcast."

23. Small remembered June 23rd as a Friday. He placed Lefevre at the Health and Welfare site that day stating that Lefevre was there in the morning when Small started at 7:30 a.m. and again at the end of the day when Small left with Lefevre. He testified that Lefevre helped Small and Jeronimo clean up debris in one of the laboratories for a while and then returned to the respondent's site office, after which Lefevre checked occasionally to see what they were doing and whether they needed help. Small also saw Lefevre on breaks. He conceded that it was possible for Lefevre to have left the site without Small seeing him. He testified that he was able to recall the events on June 23rd because he understood that the applicant was going to do whatever was neces­sary to "sign up" the respondent that day. He had been told previously that the applicant had signed up the respondent on Wednesday (June 21st), but Jeronimo had not been there and, as a result, he and Jeronimo had talked all day on June 23rd about "what we should do".

24. Bloomfield testified that Lefevre, Grotsch and Rodriguez were all at work on the St. James Town site on June 23rd. He recalls that the afternoon was spent unsuccessfully experiment­ing with the removal of the waterproof membrane using the Bobcat. Grotsch operated the Bobcat except for a very brief period when Bloomfield took over. He places Rodriguez trying to remove the membrane from different areas of the slab using an ice scraper. He remembers the experiment with the Bobcat because he had arranged to have its bucket filled with concrete on June 21st to see if adding weight might help the operation and had tried it out on June 22nd, also without success. The Bobcat had been bought by the respondent for $20,000 on Bloomfield's recommendation that it be used for removing the waterproof membrane. He said it had been used successfully to remove membrane from another area of the slab, but when it did not work on other areas on June 22nd, he asked the owners to come to the site the next day for a demonstration and to review the process. Bloomfield was confronted in cross-examination with a document which he described as a delivery slip for a delivery of concrete on June 21st on which he had noted that some of the concrete was poured into the Bobcat bucket. Bloomfield also testified in cross-examination that the weather on June 23rd had been overcast in the morning, without rain, and sunny from noon on. Upon being challenged in cross-examination that it had drizzled in the morning of June 23rd, Bloomfield replied that he had no recollection of it raining that day, but it had rained so substantially the day before that they were still mopping up on June 23rd. When asked to concede that it could have been drizzling in the morning even if he had no recollection of it doing so, he reiterated that he had no recollection of it drizzling or raining that day and that it was overcast (in the morning) and sunny in the afternoon.

25. The June 23rd time sheet for the St. James Town site records 8 1/2 hours worked for each of Lefevre, Grotsch and Rodriguez. Lefevre's and Grotsch's time is distributed to de-water­ing the site, 3 1/2 hours, and to removal of the waterproof membrane, 5 hours. Rodriguez' time is distributed to hoarding repairs, 1 1/2 hours, and to the removal of the waterproof membrane, 7 hours. The June 23rd time sheet for the Health and Welfare site records 8 1/2 hours worked for each of Long, Small and Jeronimo, all on demolition work. While Lefevre's name does not appear for June 23rd on the time sheet for the Health and Welfare site, it is on it for June 20th and June 21st for eight and one-half and nine and one-half hours respectively. The St. James Town site time sheet also records him for those two days at nine hours each day. Bloomfield made out the time sheet for St. James Town. Patton, his counterpart at the Health and Welfare site, usually prepares it for that site. On June 19, 20 and 21, however, Steven Long prepared it. When Stanford checked over the time sheet for June 20th, he added Lefevre's name and hours because Stanford had visited the site briefly that day and thought that he had seen Lefevre there. Stanford had visited several job sites that day and admitted that he could have been mistaken. There was no satisfactory expla­nation for Lefevre's name appearing on that same time sheet for June 21st. With respect to June 23rd, according to Stanford who was on the Health and Welfare site that day, Lefevre did not work there on June 23rd. With respect to Small's evidence that Jeronimo was not on the Health and Welfare site on June 21st, the Board notes that the time sheet records Jeronimo as having worked for eight and one-half hours at the site that day, but no time is shown for him on June 20th. Thus, it would appear that Small was correct about Jeronimo being absent one day that week, but not about the date of absence.

26. The Superintendent Daily Record for June 23rd records a high temperature for the day of 26 degrees Celsius and the weather overcast followed by a sunny afternoon with no report of rain. The report indicates that Bloomfield and two labourers were on site, that a rubber-tired back-hoe was used and work activity for the respondent's employees included site de-watering, hoarding repairs and removal of waterproof membrane. Bloomfield was challenged in cross-examination about the discrepancy between the Superintendent Daily Report, which recorded two labourers on site on June 23rd, and the time sheet, which lists Lefevre, Grotsch and Rodriguez. He replied that the Report was incorrect in that respect and, as well, the Report was not intended to cover all activities of the day. It was intended only to provide a brief overview of the major activities, the subcontractors on site and the equipment in use.

27. The meteorological records for June 23rd show seven consecutive hours of sunshine beginning at 11:00 a.m., a high temperature of 26.2 degrees Celsius and no rainfall. By contrast, on June 19th there were seven consecutive hours of sunshine beginning at 7:00 a.m. and approxi­mately one-third of an inch of rain; on June 20th there was no sunshine and minimal rainfall; on June 21st (Wednesday) there was no sunshine and significant rainfall of approximately three-quar­ters of an inch; and, on June 22nd no sunshine and minimal rainfall.

28. The problem for the Board is to extract from the conflicting evidence of the witnesses a coherent story about what work was being done on the St. James Town site on June 23rd, whether the work was work of the bargaining unit and, if it was, whether Lefevre and Grotsch, or either of them performed such work for the majority of the time on that day. Clearly there are problems with the testimony of most of the witnesses respecting the work being done at the St. James Town site and who was doing it, whether internal inconsistencies or conflicts with the testimony of other witnesses.

29. It is not possible to reconcile each inconsistency and conflict in the evidence. The Board can appreciate and understand why witnesses might have difficulty recalling with any precision or detail what they were doing on a day which otherwise had no significance for them. There are, however, two particular aspects of the evidence from which the Board can find some guidance. First, there are the reasons offered by witnesses for remembering June 23rd. Treacy, Rodriguez, Small and Bloomfield had better reasons than others for remembering what work was being done by whom on June 23rd. For Treacy, it was because June 23rd was the day on which he made this application and he was checking who was at work on the two projects. For Rodriguez, it could have been Treacy's instruction to him to remember what he and others were doing on that day at the St. James Town project. However, if it did aid his recall, Rodriguez did not offer that reason when he was queried about why he could recall what he was doing that day. For Small, it was because he believed that June 23rd was to be the day when the union was going to "sign up" the employer. While Small was not asked what he meant by signing up the employer, it is reasonable to infer that he was referring to Treacy making the application for certification. He related that event to an earlier attempt which he had been told had been made earlier in the week on a day when Jeronimo was not at work. He may have been confused about what day that was, but his evi­dence that he had seen Lefevre on the Health and Welfare site at the beginning and end of the day on June 23rd, and from time to time during the day, was consistent throughout his examination. He was the only witness who remembered with any degree of certainty that June 23rd had been a Friday. Bloomfield's reasons for remembering the day relate to his responsibilities as project superintendent at the site. He held overall responsibility for the St. James Town project, including keeping the costs within estimates. He kept records of what went on each day. On his recommendation, the respondent had paid $20,000 for the Bobcat to be used for removal of the waterproof membrane and the most recent trial had been unsuccessful. Second, there are the weather condi­tions existing on June 23rd as reported in the Environment Canada meteorological records. They are the only neutral and disinterested evidence relating to what persons might have been doing on June 23rd. While these records were not put to Rodriguez, Treacy or Bloomfield in their examina­tions, each of them was properly challenged in cross-examination about their recollection of the weather conditions on June 23rd. The admission of the records and employer counsel's reliance on them in his submissions was unchallenged. Bloomfield's viva voce evidence respecting June 23rd and his Superintendent Daily Report are consistent with those records.

30. Therefore, in all of these circumstances, the Board prefers Bloomfield's evidence about what work was being performed that day at the St. James Town site. That preference, however, does not extend to the question of who was performing that work. The Board is satisfied on the basis of the viva voce evidence of Bloomfield and Grotsch, which is generally supported by the documentary evidence, that Grotsch spent the majority of his time on June 23rd at the St. James Town site working on the removal of the waterproof membrane from the concrete roof slab and that Grotsch was operating the Bobcat for all but 20 minutes of that activity. With respect to Lefevre, however, the viva voce evidence of Bloomfield and Grotsch that he was on the St. James Town site, and Stanford's evidence that Lefevre was not on the Health and Welfare site, conflicts with Small's evidence that Lefevre was on the Health and Welfare site at the start and end of the day and several times in between. The resolution of that conflict is not helped by the discrepancy between the daily time sheet for the St. James Town site and the number of labourers recorded on the Superintendent Daily Report for that site on June 23rd, or by the casual approach to the recording of Lefevre's time as demonstrated by Stanford's explanation of how the time sheets for the St. James Town and the Health and Welfare sites showed him spending a full day at each site on June 20th. In these circumstances, the Board prefers Small's evidence. It was simple, direct and unshaken in cross-examination. On that evidence, therefore, the Board finds that Lefevre spent the majority of his time at the Health and Welfare site on June 23rd. Except for Small's evidence that Lefevre helped him and Jeronimo briefly in the morning, there is no evidence that Lefevre performed any construction labourer work at the Health and Welfare site that day. Therefore, the Board finds that Lefevre was not employed as a construction labourer for the majority of his time on June 23rd.

31. It follows, then, that Lefevre was not employed in the bargaining unit for the majority of his time on June 23rd. Applicant counsel contends that Grotsch also was not employed in the bargaining unit for the majority of his time on June 23rd because, when he was operating the Bob­cat, he was not performing the work of the construction labourer trade. In the Board's experience, the operation of skid-steer loaders is an area of unsettled work jurisdiction between the construc­tion labourer and operating engineer trades. In these circumstances, the Board is not prepared to find that Grotsch, who was hired as a labourer and on the evidence, worked as a labourer until June 23rd, was not employed in the bargaining unit of construction labourers on June 23rd because he spent the majority of his time that day operating a skid-steer loader. Counsel also contends that placing hoarding, work which Grotsch testified he was doing all morning on June 23rd, was work of the carpenter trade and not the construction labourer trade. The Board disagrees. Even if another trade, or other trades, place the type of hoarding used on the St. James Town site, in the Board's experience it is work commonly done by the construction labourer trade. So, even if Grotsch spent the majority of his time on June 23rd placing hoarding, he would have been employed for the majority of his time on that day in the bargaining unit which the Board has found to be appropriate for purposes of collective bargaining.

32. The Board finds, therefore, that Lefevre was not employed as a construction labourer for the majority of his time on the date of making this application and is to be excluded from the bargaining unit and Grotsch was employed as a construction labourer for the majority of his time on that date and is to be included in the unit for purposes of ascertaining the number of employees in the bargaining unit at the time the application was made. In the result, the Board finds that Frank J. Grotsch, John Jeronimo, Steven C. Long, Sam Rodriguez and Stephen Small were the employees in the bargaining unit at the time the application was made.

33. 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 July 6,1989, 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.

34. 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 3 above 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.

35. 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.

CONCURRING OPINION OF BOARD MEMBER C. A. BALLENTINE; February 28, 1991

1. I concur with the conclusion that Joseph Lefevre should not be included in the unit of employees for purposes of ascertaining the number of employees in the unit at the time the appli­cation was made. However, I would have excluded him for the additional reason that, on the evi­dence, I would have found that he exercises managerial functions within the meaning of subsection 1(3)(b) of the Labour Relations Act.