International Brotherhood of Electrical Workers, Local 402 v. Ken Anderson Electric Inc., 1996 CanLII 11188

[1996] OLRB REP. SEPTEMBER/OCTOBER 846

0550-96-R; 1001-96-U International Brotherhood of Electrical Workers, Local 402, Applicant v. Ken Anderson Electric Inc., Responding Party

BEFORE: G. T Surdykowski, Vice-Chair, and Board Members F B. Reaume and I. Redshaw.

APPEARANCES: U. Boylan, Gary Hogan, Bruce Dare and Jim Dick for the applicant; Elizabeth Keenan, Ken Anderson and Pain Anderson for the responding party.

DECISION OF G. T. SURDYKOWSKI, AND BOARD MEMBER J. REDSHAW; September 18, 1996

I Introduction

1. Board File No. 0550-96-R is an application for certification in the construction industry. Board File No. 1001-96-U is a complaint under section 96 of the Labour Relations Act, 1995 in which the applicant trade union alleges that the responding employer has committed certain unfair labour practices. The application and complaint were scheduled to be heard together. However, despite the fact that unfair labour practice complaint refers to and in a sense arises out of the certification application, no section 11(1) relief is claimed in the complaint with respect to the application, and netther the allegations nor any possible result in the complaint would otherwise impact upon the application. Indeed, the Board proceeded to hear the application alone and upon inquiring of the parties at the conclusion of that hearing was advised by counsel that the complaint had been settled.

2. The following therefor deals with the certification application only.

3. By decision dated May 23, 1996, a differently constituted panel of the Board determined that the applicant is a "trade union" and an affiliated bargaining agent of a designated employee bargaining agency under the Act. That panel also determined the bargaining unit and that not less than forty percent of persons in the bargaining unit proposed by the applicant (which was agreed to by the employer) were members of the applicant at the time the application was made. The Board therefor directed that a representation vote be taken, and a vote was held on May 28, 1996.

4. However, there was a dispute between the parties concerning who was entitled to vote. Accordingly, the ballots cast were segregated and the ballot box was sealed. A hearing was scheduled to deal with the vote issues. That hearing was scheduled for Toronto, something which also became an issue.

5. There was no dispute between the parties with respect to which employees were actually at work on the day the application was made. Nine ballots were cast. The parties agree that Jim Dick and Gary Gazankas were entitled to cast ballots. The right of all seven other persons who voted was originally in dispute.

6. The applicant challenged Kelly Smith's right to participate in the vote on the basis that he is neither a journeyman electrician nor a properly registered apprentice in the trade. The employer challenged Bruce Dare on the basis that he was not an employee of the company on the day the application for certification was made. The employer asserted (as did the individuals themselves in correspondence to the Board) that the ballots cast by Harry Delorme, John Bouchie, Jeff Neufeld, Kenneth Forsyth and Wade Kolmel should be counted notwithstanding that they were not at work in the bargaining unit on the day the application for certification was made. The applicant took the contrary position.

II Venue

7. By letter dated July 9, 1996, Gary Gazankas and Kenneth Forsyth requested that the hearing scheduled by the Board be held in Kenora or Thunder Bay instead of in Toronto. In the alternative, they suggested that they be allowed to express their views by teleconference call on the hearing date, or that their earlier correspondence be notarized and considered by the Board. This reference to earlier correspondence is to a June 3, 1996 letter from Mr. Forsyth and a June 5, 1996 letter from Mr. Gazankas in which they expressed their views on the application. The Board also received letters with respect to the application from Harry Delorme (who sent two letters, one dated June 3 and one dated June 5, 1996), John Bouchie (dated June 2, 2996), and one page of what apparently was a two page letter from Wade Kolmel (dated June 2,1996).

8. The hearing was convened in Toronto on July 16, 1996 as scheduled by the Registrar. The applicant and employer attended the hearing. None of the individuals who had communicated with the Board as aforesaid appeared. The Board proceeded with the hearing on July 16, 1996 (which hearing continued on July 17 and 18, 1996). The Board understands why the persons who sought to have the hearing held in Kenora or Thunder Bay made that request and is not without sympathy for their situation. However, for several years now that Board's policy has been that hearings in all certification cases (as well as in many other kinds of cases) are held in Toronto. This policy was instituted as a result of scheduling and budgetary concerns. Whether or not the scheduling concerns remain, it is clear that the Board's fiscal situation is worse now than when the policy was instituted. The days of plenty when the Board travelled wherever and whenever it was requested to do so are long gone. The Board is simply not in a position to be responsive to such requests except in a limited number of cases (and even this may have to change). Accordingly, the Board has had to institute a travel policy, which applied to this case meant the hearing was held in Toronto.

9. Further, the Board did not consider it appropriate to conduct a hearing partly by teleconfere­nce and partly in person before the Board.

10. The Board was prepared to and did consider the correspondence which was received from individuals who did not attend the hearing to the extent that this correspondence contained representa­tions with respect to the issue of whether persons other than employees that work on the bargaining unit on the certification application date should be allowed to vote. However, the Board cannot accede to the request, which was repeated at the hearing by the employer, that the Board consider anything in that correspondence as evidence with respect to the issue of Bruce Dare's entitlement to vote (which turned out to be the only issue on which the Board heard evidence). Such correspondence, which contains statements not given directly to the Board and not subjected to cross-examination, does not constitute evidence, and can be given no weight by the Board. (We note that as it turned out the employer took substantially the same position and made substantially the same representations as are contained in the correspondence from the individuals who wrote to the Board.)

III Voter Eligibility - The Date of Application Test Revisited

11. Turning to the voter eligibility issue, it was eventually agreed by the employer and the applicant that Kelly Smith and Wade Kolmel were not entitled to vote because they were neither journeymen nor registered apprentice electricians in Ontario. Under the Apprenticeship Act, the trade of electrician is a compulsory certified trade in Ontario. That is, a person must be a journeymen or registered apprentice in Ontario in order to lawfully work in the trade in this province. (See, P & M Electric (1982) Ltd., [1989] OLRB Rep. June 638).

12. The facts regarding the eligibility of Harry Delorme, John Bouchie, Jeff Neufeld and Kenneth Forsyth are straightforward and were not in dispute for purposes of the issue of the entitlement to vote of persons who were not at work in the bargaining unit on the date of application. It was agreed that all four of these persons were employees of the employer on the date of application, and that none of them were at work on that date because they had taken the day off as "lieu time", in accordance with the employer's policy of allowing employees to work and "bank" extra hours to be taken as paid time off later.

13. The employer recognized that in construction industry application for certification the Board's approach, which counsel referred to as a "policy", is to limit voter eligibility to those employees at work in the bargaining unit on a certification application date. However, counsel argued that the Board should not apply its "policy" by rote and that it was appropriate for the Board to depart from its usual approach in this case. Counsel argued that this is not a transient work force, that the four employees in issue would have been at work on the application date but for taking a lieu day which they had earned in order to give themselves an extra long weekend. The employer argued that it is appropriate for the Board to re-examine its former eligibility "policy" in light of the new purposes in section 2 of the Labour Relations Act, 1995, and the fact that the certification process is now vote based. The company suggested that the Board's approach is unfair because it allows a union to avoid dealing with an employer's real work force and that that is what the applicant seeks to do in this case.

14. The employer asserted that in this case at least the date of application snap shot approach does not provide a representative or true picture of the employer's work force, and applying that approach to this case is inconsistent with the purposes of the Act. Counsel argued that all persons with a demonstrable employment connection to the employer should be permitted to express their wishes with respect to an issue which will affect them so directly and that a union, in this case the applicant, cannot be prejudiced by having the wishes of the very persons its seeks to represent tested, particularly where those very employees have expressed a strong desire to be heard.

15. In response, the applicant submitted that there was no reason, either generally or in this case, for the Board to depart from its "usual practice".

16. Upon considering the representations of the parties, the Board ruled, orally (and with Board Member Reaume indicating he may issue a separate opinion, as he does herewith), that notwithstanding the able submissions of counsel for the employer only those employees at work in the bargaining unit on the date the application for certification was made were entitled to vote. As indicated in our oral ruling would be the case, the Board's reasons follow.

17. It appears that one thing needs to be made clear from the outset. The Board's approach to ''who counts'' and voter eligibility in construction industry applications for certification is more than a "policy" or a "practice" or a "rule of thumb". It may have been appropriate to describe the Board's approach in such terms in the past, but the fact is that the Board has determined that, in the construction industry, persons/individuals/employees in the bargaining unit at the time the application was filed means only those persons who were employees of the responding employer who spent a majority of their time at work in the bargaining unit on the day the application for certification in question was made. This is the interpretation that the Board has given to the statutory language, and it is an interpretation which has stood the test of time.

18. The basis for the Board's approach, which has been in effect for over forty years, is well established. In Smiths Construction Company, [1984] OLRB Rep. Mar. 521, the Board dealt with an employer submission that the Board should depart from its then thirty year old practice of "counting" only employees at work on the date of application as follows:

19. The Act requires the Board to ascertain the number of employees in the bargaining unit at the time the application was made. There are no legislated criteria to guide the Board in this task, but, of course, there is really no difficulty in respect of those individuals both employed and working on the application date. The problem arises in respect of individuals who may, in some sense, be considered "employees" but who may not have been at work on the application date and may not return to work for some time thereafter, if at all. Employees on sick leave, maternity leave, long-term disability, workers' compensation, or layoff may fall into this latter category, as do the employees of a firm with a work force which fluctuates from day to day.

20. The construction industry poses special problems. Employment is necessarily transitory. Employ­ees are quite literally "here today and gone tomorrow". A construction project is completed in phases, so on any given day the mix of tradesmen on a site may be different. Moreover, there are always the exigencies of the market, collective bargaining difficulties, the weather, and the prover­bial "snafu". Collective bargaining problems, jurisdictional disputes, controlled subcontracting arrangements, the availability of financing, and the dispersement of mortgage monies will effect the level of employment in any given trade at any particular time. So will the weather. A period of intense cold or rain will interfere with construction work and reduce the number of employees on the site until weather conditions improve. Likewise, bottlenecks, problems, or the possibility of missing a time limit or deadline may require the employment of more tradesmen to resolve the difficulties or get the project back "on the rails" even though such employment may only be on a short-term basis. For all of these reasons an employer's complement of employees may vary markedly from day to day so that, in the construction industry, it is very difficult to pin down with any precision those individuals who should be treated unequivocally as "employees" for the purposes of the Labour Relations Act. That is why, in the construction industry, the Board need not have regard for any increase in the employer's work force after the application for certification. And, of course, this inevitable fluctuation in the employee complement underlines the importance of the expeditious resolution of applications for certification. If there is any significant delay there will be a real possibility that any certificate ultimately issued will affect employees who were not even there when the application for certification was made. The union's support will have evapo­rated and bargaining rights will be largely academic. This possibility also exists in manufacturing enterprises but is minimized by the relative stability of employment over the time frame when a certification application is likely to be before the Board. Such is not the case in the construction industry.

21. To cope with these special problems in the construction industry, the Board has developed a particular rule of thumb as to the way in which it should ascertain the number of employees in the bargaining unit at the time the application was made. The Board determines the employee comple­ment to be that which exists on the application date - fully realizing that the number may well be different the day before, or the day after and that, for example, if the application date is a rainy day, the union may find that its members are not at work so that its application may be dismissed. This "rule of thumb" has been accepted and applied by unions and employers in the construction industry for thirty years - and for a very practical reason: anything else would lead to costly and time-consuming litigation on every certification application causing delay which would severely preju­dice the establishment of bargaining rights purportedly guaranteed by the statute. If time is of the essence generally in labour relations, that maxim is particularly true in the construction industry. That is why the Act expressly empowers the Board to issue certificates without a hearing where it considers it advisable to do so, and, as we have already noted, the Board need not have regard for a build-up of the work force after the application is made. Technically, a union may conclude a collective agreement even though there are no employees at the time it is entered into (see section 121), although as a practical matter, if there are no employees, there may be no bargaining leverage to induce an employer to do so.

22. The present application for certification is one of a series of similar applications made in respect of the respondent's road building operations in various parts of Northern Ontario. This application was made on November 9, 1983, which, we are told, was a couple of days after the start of the hunting season in and around North Bay. The employer submits that we should take into account the importance of the hunting ethos in Northern Ontario communities, which prompts some employees to take time off at this time of the year to engage in such activity. The employer argues that those employees who were not at work because they were off hunting really be treated as employees in the bargaining unit despite the Board's established practice in that regard.

23. We do not accept the respondent's submission. Given the inherent instability, uncertainty, and ephemeral nature of employment in the construction industry, it would add yet another element of complexity and uncertainty if the parties and the Board had to take into account and weigh the multitude of possible reasons why an individual would not be at work for a particular employer on a particular day. No union or employer would ever know who should be included on the list submitted with the employer's reply. The issue could only be resolved after an enquiry before the Board, by which time the picture would probably have changed again. Such approach would not further the orderly and expeditious processing of construction industry certification applications in which, we repeat, time is of the essence. The Board's existing practice is neutral, easy to understand and administer, and has been applied without difficulty for more than thirty years. In particular cases it may benefit a trade union or employer but, overall, we think it is a sensible and workable compromise which is much preferable to the alternatives. This is not to say that a concern for the consequences of a particular interpretation can confute the clear meaning of a statute. However, where in a particular context the statutory language does not give an unequivocal answer, it must be of real concern for the Board to consider which of the competing interpretations urged upon us is more consistent with the orderly resolution of certification applications and the promotion of rights dealt with in the Act. And, in so doing, we do not think we can overlook the fact that the Board's existing approach is of long-standing, we accepted in the labour relations community, and provides an important element of certainty for all parties, despite the volatile environment of the construction industry.

(See also, Diplock Durable Floor Company Limited, [1982] OLRB Rep. Aug. 1159.)

19. Subsequently, in E & E Seegmiller Limited, [19871 OLRB Rep. Jan. 41 and Gilvesy Enterprises Inc., [1987] OLRB Rep. Feb. 220, where the Board examined its approach to construction certification applications, the Board concluded (at paragraphs 16, 17 and 21 of Gilvesy Enterprises Inc., supra) that it is appropriate to focus even more on the certification application date in such cases:

20. In applications for certification in the construction industry, a person must be at work on the date of application in order to be included in the bargaining unit for purposes of "the count" (see for example, Smiths Construction Company Arnprior Limited [1984] OLRB Rep. March 521). In addition, an individual must be doing bargaining unit work in order to be included in it. In the past, the Board has determined whether an employee is in the bargaining unit by looking at the work that an employee did during the majority of the time on the date of application (see for example O.J. Gaffney Limited, [1964] OLRB Rep. Aug. 233; McNamara Construction of Ontario Limited, [1964] OLRB Rep. Dec. 419; Nedan Forming Company Limited., 119651 OLRB Rep. May 100; Clairson Construction Company Limited, 11968] OLRB Rep. Apr. 126; Deer-Mine Services Limited, [1971] OLRB Rep. June 336; George and Asmursen Limited, [1971] OLRB Rep. Oct. 683). Even when an employee was doing the work of one classification or craft on the date of application but has previously been engaged in doing the work of several trades or crafts but at the same wage rate, the Board has long been willing to examine a representative period of time prior to the date of application to ascertain what work an individual spends the majority of his time doing and whether or not he/she is properly included in the bargaining unit. (See for example, Johnson -Keiwit Subway Corporation, [1966] OLRB Rep. June 182; Mal-Nicholson Limited, [1970] OLRB Rep. March 1448;Health Construction Inc., [1977] OLRB Rep. Oct. 691; Watcon Inc., [1981] OLRB Rep. Dec. 1840; Des-Build Development Limited., [1983] OLRB Rep. Nov. 1793; Dufresne Piling Co. (1967) Ltd., [1984] OLRB Rep. July 924;Di Marco Plumbing & Heating Company Limited, [1985] OLRB Rep. May 659). It is evident from the decided cases that the "representative period" will vary in length according to the circumstances. For example, the Board has looked at periods of ten days (Heath Construction Inc., supra); fifteen days (J. M. Chartrand Realty Ltd., [1978] OLRB Rep. May 423), two weeks (Di Marco Plumbing & Heating, supra) and one month (Des-Build Develop­ments Ltd., supra). It has also be [sic] suggested that the Board may look to the primary reason for which the employee was hired to determine his classification (Pre-Con Murray, [1965] OLRB Rep. Jan. 1003) although his test has only been applied in limited circumstances where the evidence of what the employee was doing prior to and on the date of application was inconclusive of the issue. (See, Des-Build Development Limited, supra and Dufresne Piling Co. (1967) Ltd., supra).

21. In summary, the previous decisions of the Board indicate that the Board has considered the following criteria in making its determinations:

(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 the person was previously been engaged in the work of more than one trade or craft and the work performed by him/her on the application does not accurately reflect the work that he/she normally spends the majority of his/her time doing, the work done by the employee during an appropriate representa­tive period prior to the date of application; or

(d) where there is no conclusive evidence with respect to the work in which an employee has been engaged, any other relevant factor, including the primary reason for hire.

21. In making our determination, 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 according 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" has 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 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.

20. Those cases were decided under the Labour Relations Act as it was prior to both Bill 7 and Bill 40, but have been invariably and consistently followed ever since. Initially, this did not alter the Board's approach of voter eligibility in the construction industry which was described and contrasted with the Board's approach in that respect in non-construction applications in City Plumbing (Kitchener) Limited, [1987] OLRB Rep. June 8]0 as follows:

21. The Board has also long recognized that there is a difference between employment in the construction industry and non-construction employment. A major difference between the two is that employment in the construction industry tends to be intermittent and transitory relative to non-construction employment. A great deal of construction work is seasonal or subject interruption due to inclement weather. When they do work, construction employees tend to work in small crews and continuous employment with any given employer is often measured in weeks or months rather than years. In recognition of the differences between them, the Board has established a practice of approaching the two situations differently. For example, in both applications for certification and termination proceedings, the employer involved is required to file with the Board a list of employees in the bargaining unit so that the Board can, as it must, ascertain the level of employee support of the application before it. In proceedings relating to the construction industry, the Board counts only these persons actually at work in the bargaining unit on the date of application in determining the number of employees in the bargaining unit. In contrast, in non-construction proceedings, the Board does not require an individual to be at work in the bargaining unit on the date of application for purposes of the count so long as s/he was an employee in the unit on that day, and did actually work in it on at least one day in the thirty day period prior to and one day in the thirty day period subsequent to the date of application. Similarly, when a representation vote is held in the course of proceedings involving the construction industry, a persons is entitled to vote if s/he was at work in the voting constituency on the date of the Board's decision directing the vote (or, where a pre­hearing vote is requested in a certification application, on the terminal date), and the day of the vote. In non-construction matters, on the other hand, an individual is entitled to vote if s/he was employed in the voting constituency on those two material dates. Being "at work in" the voting constituency requires an individual to be physically on the job. Being "employed in" the voting constituency does not require a person's physical presence at work so long as s/he has not been permanently removed from employment in the voting constituency. This distinction illustrates the Board's practice of focusing on specific dates in construction industry proceedings and on periods of time in non-construction matters, and it reflects the Board's attempt to accommodate the differences between the two employment situations.

22. Contrary to what counsel for the respondent suggests, so long as employment in the voting constituency is not terminated, in neither case does the Board require an individual to be at work in it for any minimum period of time, or at all, during the period between the two material dates in order to be eligible to vote. It would be impractical and unrealistic to impose any such requirement. It is to be expected that some employees will not be at work, or if at work not be performing work within the voting constituency, during some part, or all, of the period between the date of the Board decision directing the vote (or the terminal date in the case of a pre-hearing vote), and the day the vote is taken. That is particularly true in the construction industry where the vagaries of employment are such that it is possible, even likely, that imposing a requirement that an individual perform work in the voting constituency during that intervening period would, in many cases, result in there being no one entitled to cast a ballot. The Labour Relations Act provides employees with an opportunity to join and be represented by a trade union in their employment relations with their employer, and also permits them to terminate that trade union's right to represent them, if they see fit to do so. It would be inappropriate for the Board to adopt procedures which would effectively deny either right. Furthermore, such a requirement could create uncertainty and invite protracted litigation, neither of which is desirable in labour relations matters, particularly those relating to representation rights.

23. The purpose of the Board's practices is to ensure that the persons affected by the outcome of a vote; that is, the employees in the bargaining unit affected, have an opportunity to participate in a representation vote where one is directed. To achieve that goal, the Board has formulated different approaches to employment in the construction industry and non-construction industry employment in response to the differences between the two employment situations. Some of those differences in approach have already been discussed. They are also reflected in the difference in the meaning that the Board has ascribed to the standard language it has long used to describe voter eligibility in representation votes in the construction industry compared to that in non-construction votes. In the result, in non-construction matters, a person need not be "at work in" the voting constituency at any time so long as s/he is 'employed in" it. In construction matters, the same eligibility terminology has been made equivalent to ~'at work in" so that a person must be at work in the voting constituency on both of the material dates; that is, the date of the Board decision ordering the vote (or the terminal date in the case of a pre-hearing vote), and the day the vote is taken in order to be eligible to vote (see Crowle Electrical Limited, supra). This reflects the Board's attempt to strike a balance between the vagaries of employment in the construction industry and the object of affording affected employees an opportunity to vote.

24. That changed with the Board's decision in Crete Flooring Group Limited, [1992] OLRB Rep. July 792 (also a pre-Bill 40 case), where the Board reviewed its approach as follows:

25. Ordinarily, when a pre-hearing representation vote is requested in a certification application, whether it arises in the construction industry or not, those eligible to vote will be those individuals who are considered to be employees in the voting constituency as of two different dates, both as of the terminal date and as of the date the vote is taken. (In pre-hearing applications, the appropriate bargaining unit is not determined until after the vote is held.) In non-construction pre-hearing vote certification applications, the voter eligibility requirements are described in terms of those employ­ees who "are employed in" the voting constituency on the terminal date and the day the vote is taken, while in construction certifications, those eligible to vote are described as those "at work in" the voting constituency as of the same two date. (See City Plumbing (Kitchener) Limited, [19871 OLRB Rep. June 810.)

26. Practice Note No. 9 describes voter eligibility requirements for pre-hearing representation votes.

That Practice Note reads as follows:

APPLICATION FOR CERTIFICATION

PRE-HEARING REPRESENTATION VOTES

DATE FOR DETERMINING ELIGIBILITY OF VOTERS

1. Where a trade union, in applying for certification, requests a pre-hearing representation vote and the Board directs that such a vote be taken, it has been the practice of the Board, except in special circumstances, to direct that the employees in the voting constituency who are eligible to vote are those in the employ of the employer on the terminal date fixed for the application in accordance with Section 2 of the Board's Rules of Procedure.

2. If any party wishes to have eligibility determined as of some date other than the terminal date for the application, representations as to the reason therefor should be made to the Labour Relations Officer appointed to confer with the parties at the time of the Labour Relations Officer’s meeting.

3. Practice Note No. 9 dates from August, 1964. It arose at a time when the Board applied similar practices to construction and non-construction certification applications. This is no longer true, and has not been the case for many years now. For that matter, the Practice Note itself does not reflect current practice, for it indicates that only one date is determinative, the terminal date, rather than the “two date” requirement.

4. It is necessary to understand and appreciate the construction industry context in which this application arises in order to determine the appropriate voter eligibility requirements. In Diplock Durable Floor Company Limited, [1982] OLRB Rep. Aug. 1159, the Board had before it an application for certification in the construction industry. The Board wrote, as follows:

5. Unlike the situation in other industries, the Board's general practice in the construction industry is to count as employees of an employer only those persons actually at work for the employer on the day in question. This applies both when the Board determines who was an employee on the application date for the purposes of the "count", and also who was an employee on the date set to determine eligibility to vote in a representation vote. The Board's practice arises out of the transient nature of the work force in the construc­tion industry as well as a resulting need for a clear set of practices regarding construction industry certification applications. Individual tradesmen frequently move from employer to employer. Further, when a tradesman is laid off, even for a short period of time, he often obtains alternate employment with another firm. In this regard, it is instructive to note that one of the individuals who worked for the respondent during most of March, namely Mr. Games, was included on the voters' list in the Metro Concrete Floors Inc. case, File No. 2657-81-R (which involved a contest between the same two unions as in this case) on the basis of his employment by that firm during part of March, including March 31, 1982, the date set to determine voter eligibility.

6. We are not prepared to depart from the Board's practice of regarding as employees in the construction industry only those persons actually at work for an employer on the date in question. We would note that the policy is one that avoids uncertainty and lengthy

disputes concerning who should be counted as an employee. In this regard, we would adopt the reasoning of the Board in the Keystone Contractors Limited case [1966] OLRB Rep. Feb. 821, where in denying a request that it not dismiss a construction industry certification application due to the fact that no one was at work on the application date because of a snow storm, the Board noted that its policy respecting who it will view as a construction industry employee is basically equitable to all parties and also lends itself to the expeditious disposition of certification applications which is a primary consider­ation in the construction industry. In the instant case, the Board set March 16, 1982 as the date for determining voter eligibility. In that the five individuals in question did not work for the respondent on March 16, 1982, we are satisfied that on that date they were not employed within the voting constituency. Accordingly, the segregated ballots of Messrs. Iwasjuk, Gomes, Fritas, G. White and J. White are not to be counted.

22. Then, after citing the paragraphs from City Plumbing (Kitchener) Limited, supra, set out above, the Board went on to say that:

23. Because of the nature of the construction, in certification applications arising in the construction industry the Board takes a "snapshot" of the state of affairs on the application date of the application. Focusing solely on the employee complement on that date, the Board determines the number of employees in the bargaining unit, and the level of membership support filed by the union amongst those employees. The Board does not have regard to all the principles or rules that apply in non-construction certifications. For example, the Board does not include in the bargaining unit those who meet the requirements of the "30-30" rule. It does not apply the principles of "build-up", where the Board defers consideration of the number of employees in the bargaining unit, or defers directing a vote, until such time as the employer work force is more stabilized, regular, or representative. In this respect, section 121(2) of the Act reflects the different context and approach to construction industry applications, stipulating that the Board need not have regard to any increase in the number of employees in the bargaining unit after the application was made. The legislation specifically encodes the right of the Board in construction applications to focus solely on the application date.

24. This practice is not new. In determining whether a certificate will issue automatically, or a vote be directed, the Board, in construction applications, has long considered the wishes of only those employees at work in the bargaining unit on the application date. The Board does not consider the wishes of those employees at work the day before, the day after, or any day other than the application date, for to do so would be inconsistent with how construction works, and would more likely be less fair and less representative. In E & E Seegmiller Limited, [1987] OLRB Rep. January 41, the Board clarified and reemphasized the extent to which the Board looks only to the employees at work on the application date. And see Gilvesy Enterprises Inc., [1987] OLRB Rep. Feb. 220. Whether the employees who were at work on the application date had ever worked for the employer before, or ever would again, it is only those employees at work on the application date whose wishes are taken into account in determining the merits of the certification application. It does not matter why a given individual might not have been at work on the application date, whether for reasons of illness, lay-off, or whatever. If that individual was not in fact at work in the bargaining unit on the application date, then his/her wishes are not taken into account in determining whether the union is entitled to automatic certification, or, if the level of membership support is not sufficient for automatic certification (or if a pre-hearing representation vote is requested), is entitled to a vote.

25. In this context, where the Board looks to the "snapshot" of the application date already, and appropriately so, it is difficult to see why the Board should apply a two-date voter eligibility rule or why it should not also look only to the application date for voter eligibility.

26. The intervener submitted that the use of two different dates, with some meaningful interval between them, will increase the likelihood that a representative group of employees will be eligible to vote, and that those who must live with the vote results will be those voting. As already noted, this is not generally true in construction matters. To take other than a single representative day to determine voter eligibility is inconsistent with the historical reality of how the construction industry operates. And it is more consistent, fair, and representative to apply a practice whereby the group of employees that gets to determine whether the union gets certified without a vote, (if enough memberships are signed and filed for automatic certification), or whether it gets certified after a vote (where the level of support requires a vote, or where a pre-hearing vote is requested) is the same group of employees that gets to participate in any vote. Since the work force is so transitional and quickly changing, focusing on a different date or dates for purposes of voter eligibility will ordinarily result in a different group of employees getting to vote on the application than the group of employees that secured the right to the vote.

27. Picking a single date for voter eligibility would also serve to reduce the potential for gerryman­dering, and reduce lengthy and expensive litigation over a number of issues, promoting certainty and finality. The potential for gerrymandering continues to exist when a date for voter eligibility has not yet arrived at the time the employer becomes aware of the application. To repeat, the work force in construction is often fluid, transitional and rapidly changing. Where the first date of voter eligibility is the terminal date, a date the employer is advised of when it receives notice of the application, the employer will be able, if it chooses, to significantly influence which employees are at work on that date, just as it can influence who is at work on the date the vote is held. We do not suggest that most employers gerrymander, only that some do and the current practice creates a significant potential for such abuse.

28. An employer's actions are subject only to the union's right to file an unfair labour practice complaint if it asserts that the employer breached the Act in its conduct in this respect (as, indeed, the Labourers' assert here). (See, for example, P & R Concrete Finishing, [1978] OLRB Rep. Oct. 944; London District Crippled Children’s Treatment Centre, [1980] OLRB Rep. Apr. 461). Such an approach is not particularly satisfactory. First, this approach engenders litigation (as it has here) both over whether an unfair labour practice has been committed and over the list of eligible voters. Where a representation vote is to be held, it is important that the vote be held quickly. In regular certification applications, litigation may occur over a variety of issues with the sole purpose of delaying the vote in order to ensure that a new group of employees get to cast ballots. Prejudice caused by delay is particularly acute in the construction industry, given the constant turnover of employees and the transitional nature of the work force. The community, and the Board, have long been aware that delay in holding a vote in the construction industry will almost always be to the prejudice of an applicant union. Even when the vote is still held quickly, as here, litigation will delay the resolution of the application. Voter eligibility rules ought to reduce the potential for litigation delay, by providing greater certainty and clarity, and by reducing the potential for gerrymandering. A two date eligibility requirement, where both dates occur after notice has been provided to all parties, can only increase the likelihood of less fair representation votes. Much of the type of litigation that has been occurring in this area would likely disappear if it were clear that only those at work on the application date will be eligible to vote, if a vote should be directed. Second, events may occur subsequent to the application date which cannot be shown to be an unfair labour practice, yet influence or affect who may vote. This might not be a problem if it were otherwise appropriate to allow those who are employees on a subsequent date to vote. But the fact remains that the appropriate group of employees to determine the success or failure of the applica­tion are those who were at work in the bargaining unit on the application date.

29. We do not agree that in a displacement application, as here, use of the application date for voter eligibility provides an unfair advantage to the raiding union. The incumbent union will have represented the employees during the term of the collective agreement, and the employees will generally be members of the incumbent union. Given these facts, it is neither apparent nor likely that a union attempting to replace the incumbent as bargaining agent will be unfairly advantaged by being able to choose, within the limited open period under the Act for bringing such applications, when to file the application. The applicant will have no influence on who the employees are on the application date. It only gets to select that date, within the open period. In any event, in construction applications there is nothing new in this. The applicant already gets to choose the application date, and the Board already focuses on the employees at work that day. On occasion, this no doubt results in tactical advantages to the applicant but there is nothing untoward or unfair in this.

30. Practice Note No. 9 indicates that the terminal date will be looked at for voter eligibility. That Practice Note was formulated and became effective approximately twenty-eight years ago, and does not appear to reflect the Board's current practice. The Practice Note recognizes that there may be "special circumstances" where use of the terminal date in pre-hearing votes will not apply. In our view, the traditional approach, reflected in the Practice Note, ought not to apply in the special circumstances of the construction industry.

31. Accordingly, in pre-hearing construction applications, as here, those eligible to vote will be those at work in the voting constituency on the application date, and in regular construction applications, those eligible to vote, if a vote is directed, will be those at work in the bargaining unit on the application date.

32. The approach enunciated in Crete Flooring Group Limited, supra, has been consistently and invariably followed since that decision.

33. This is the first case under the Labour Relations Act, 1995 (Bill 7), which came into effect on November 10, 1995, in which the Board's approach to voter eligibility in the construction industry has been directly challenged. Because, as the Board noted in Crete Flooring Group Limited, supra, this approach follows logically from the date of application tests described in Smiths Construction Company, supra, and subsequently in the E & E Seegmiller, supra, and Gilvesy Enterprises, supra, decisions, the Board's entire approach must be examined in order to properly deal with the employer's arguments in this case.

34. The real question is whether there have been any changes which should cause the Board to depart from its long established approach of "counting" only those employees at work in the bargaining unit on the application date in construction industry applications for certification, or from its more recent approach to voter eligibility in such cases. We think not.

35. Have their been changes in the construction industry over the past forty plus years? Of course there have. But the fundamental nature of employment in the construction industry has not changed. Construction industry employment remains fundamentally transient and ephemeral in nature. There have always been regular or long term employees (sometimes referred to as "steady Eddies") employed in the construction industry by both small and large construction employers. The number or proportion of such steady Eddies has varied over time, depending largely on the economy and availability of work generally or in a particular sector of the industry, or even with the rise or fall of the fortunes of particular employers. But even these fluctuations tend to demonstrate the fundamentally transient nature of employment in the construction industry. The "special problems" described in paragraph 9 of Smiths Construction Company, supra, continue to exist today.

36. What of the legislative changes? The Labour Relations Act, 1995 has fundamentally changed the nature of the certification process in Ontario. As the Board recently explained in Burns International Security Services Limited, [1996] OLRB Rep. Mar/Apr. 192 (and see also the Corporation of the City of Toronto, Board File No. 2603-95-R, decision dated July 3, ]996, unreported), the certification scheme under every pre-Bill 7 Labour Relations Act was document based, with the representation vote being an essentially residual mechanism. Prior to Bill 7 there were relatively few representation votes in certification cases, particularly if one excludes cases where there was an incumbent trade union in place from the analysis. Under the Labour Relations Act, 1995, the certification scheme is vote based. That is, subject perhaps to applications under section 11(1), a representation vote is held in every case and a trade union will only be certified if it wins a vote. The Bill 7 certification system is designed to facilitate representation votes, and to give effect to the result of such votes. The question is: Does this effect the Board's date of application approach to voter eligibility in the construction industry?

37. The purposes of the pre-Bill 40 Labour Relations Act were set out in its preamble as follows:

WHEREAS it is in the public interest of the Province of Ontario to further harmonious relations between employers and employees by encouraging the practice and procedure of collective bar­gaining between employers and trade unions as the freely designated representatives of employees.

In the Bill 40 Act, the purposes were incorporated in the legislation and described, in section 2.1 as follows:

2.1 The following are the purposes of this Act.

1. To ensure that workers can freely exercise the right to organize by protecting the right of employees to choose, join and be represented by a trade union of their choice and to participate in the lawful activities of the trade union.

2. To encourage the process of collective bargaining so as to enhance,

i. the ability of employees to negotiate terms and conditions of em­ployment with their employer.

ii. the extension of co-operative approaches between employers and trade unions in adapting to changes in the economy, developing work force skills and promoting workplace productivity, and

iii. increased employee participation in the workplace.

3. To promote harmonious labour relations, industrial stability and the ongoing settlement of differences between employers and trade unions.

4. To provide for effective, fair and expeditious methods of dispute resolution.

In section 2 of the Labour Relations Act, 1995, the following are set out as its purposes:

2. The following are the purposes of the Act:

3. To facilitate collective bargaining between employers and trade unions that are the freely-designated representatives of the employees.

4. To recognize the importance of workplace parties adapting to change.

5. To promote flexibility, productivity and employee involvement in the work­place.

6. To encourage communication between employers and employees in the work­place.

7. To recognize the importance of economic growth as the foundation for mutu­ally beneficial relations amongst employers, employees and trade unions.

8. To encourage co-operative participation of employers and trade unions in resolving workplace issues.

9. To promote the expeditious resolution of workplace disputes.

10. Throughout the evolution of the express purposes of the primary labour relations legislation of this province, the fundamental purpose has remained constant: to facilitate free collective bargaining between employers and trade unions, the latter as the freely designated representatives of employees. A review of the purposes of the Labour Relations Act, 1995 does very little to further the analysis of the issue raised in this case. "Freely-designated" merely means free of threats, intimidation or coercion, and "of the employees" suggest no particular answer since it begs the question of "who is to be considered an employee for purposes of a representation vote in an application for certification in the construction industry?", or, in section 8(2) (of the Labour Relations Act, 1995) terms: "who are the individuals in the voting constituency?"

11. The Legislature must be taken to have been aware of the Board's approaches and practices under the pre-Bill 7 legislation, including the Board's approach in issue herein, when it passed the Labour Relations Act, 1995. Yet there is nothing in the present Act which suggests that the Board should alter its approach to voter eligibility in construction industry applications for certification. Other than requiring that there be a representation vote "in every case" and the provisions relating to this requirement, the Labour Relations Act, 1995 contains no substantive changes to the construction industry provisions. In that respect, it is significant that now as under the Bill 40 Act and the pre-Bill 40 Act before that, the Board need not have regard to an increase in the number of employees in the bargaining unit after a construction industry application for certification is made in dealing with such an application.

12. This is not the first case in which it has been argued that the Board's "date of application" approach to construction industry applications for certification is "unfair", generally an argument made by employers resisting an application for certification. Smiths Construction, supra, was one such case. Al Gordon Electric Limited, [19901 OLRB Rep. June 637 was another. In that case, the trade union (coincidentally another Local of the IBEW) filed an application for certification by mail registered on a Sunday (in accordance with the then practice and procedures in that respect). The Board outlined the employer's position in that case as follows:

13. Counsel for the respondent submitted that the only difference in the Labour Relations Act between construction and non-construction applications for certification is that the Board need not, pursuant to section 119(2), have regard to any increase in the number of employees in the bargaining unit after the application was made for the purposes of its considerations under section 7 of the Act. Counsel questions the jurisdiction of the Board to apply different standards to construction and non-construction applications for certification except with respect to the matter addressed by section 119(2). Supported by counsel for the objectors, he argues that it would be a travesty, and contrary to the representation principle which underlies the Labour Relations Act for the Board to restrict itself to the date of application f or purposes of making the necessary section 7 determinations in the circumstances of this application. He referred the Board to Industrial-Mine Installations Limited, [1968] OLRB Rep. May 217; J.G. Fitzpatrick Construction Ltd., [1972] OLRB Rep. May 485, and Colibri Construction Inc., [1986] OLRB Rep. July 931. Counsel suggested that the Board would be improperly fettering its discretion if it followed its general practice in construction applications without regard to the circumstances of this case.

Then, after citing Smiths Construction Company, supra, and Gilvesy Enterprises, supra, among others, the Board wrote that:

15. Section 102(13) of the Act specifies that the Board is the master of its own practices and procedures, though of course this is subject to the specifics of any applicable legislation and the requirements of natural justice and fairness. As illustrated above, the Board has developed a number of practices (or policies or "rules of thumb") which it uses in certification proceedings. These have been developed over time with a view to decreasing repetitious or fruitless, but often lengthy and expensive litigation before the Board. In fashioning these practices in certification proceedings, the Board strives to create as certain, fair, and expeditious a means as possible for making the determinations necessary in such matters. Through its practices, the Board tries to be responsive to the real world of labour relations. There will of course be limits or exceptions to every practice. Indeed, blind adherence to a practice or policy set in advance may constitute jurisdictional error (see, for example, Re: Testa and Worker's Compensation Board of British Columbia, (1989) 1989 CanLII 2727 (BC CA), 58 D.L.R. 676 (B.C. Court of Appeal) at pages 685 to 687). On the other hand, it would do nothing to further harmonious labour relations in this province to abandon practices which have evolved over and stood the test of time in thousands of applications for certification without some compelling reason(s) to do so. On the contrary, to approach them differently would make them less than practices and would create undesirable uncertainty. It would also tend to encourage unnecessary litigation and involve the Board in the fruitless exercise of constantly reinventing the labour relations wheel. In short, there is a balance to be struck. Although the Board should not abandon tried and true practices, it must be willing to examine their applicability in the circumstances of particular cases.

16. Colibri Construction Inc. supra, was a construction industry application for certification in which the Board demonstrated its willingness to consider the applicability of its general practices of not taking into account an expected increase in the number of employees and of focusing on the date of application for the purposes of ascertaining the number of employees in the bargaining unit, although it declined to depart from those practices in the circumstances of that case.

17. J.G. Fitzpatrick Construction Ltd., supra, was also a "build up" case. There the Board found it appropriate to consider the increase in the number of employees in the bargaining unit after the application for certification had been made (as it had the discretion to do under what is now section 119(2) of the Act) and, in the circumstances, exercised its discretion, under what is now section 7(2), to order a representation vote notwithstanding that the applicant had filed membership evidence with respect to all four employees in the bargaining unit on the date of application.

18. In Industrial-Mine Installations Limited, supra, the applicant filed membership evidence with respect to twenty-one of the respondent's twenty-four employees who were performing bargaining unit work on the date of application. However the Board considered the fact that those twenty-four employees had been hired on a temporary basis to fill in for the respondent's regular work force of over forty employees who were not at work because of a regularly scheduled Christmas shut down. In those circumstances, the Board (by majority of decision) concluded that:

19. This last class of case has given us some concern in the present situation. After much anxious consideration, however, we have come to the conclusion that in the present case we ought to take into account the peculiar circumstances which here obtain, namely, the existence of a reasonably permanent (for the construction industry) work force, together with the shut-down, the reasons therefor and the fact that it is an occurrence which happens yearly with this particular respondent. In other words, the representation princi­ple must in this case take precedence over the short-term employment features of the construction industry. Viewed in another way, if this is to be regarded as a case involving build-up, then, in our opinion, the peculiar circumstances of this case make it one in which regard should be had to an increase in the number of employees in the bargaining unit after the application was made. It may well be that the construction industry division will have to review its policy of dismissing applications in circumstances where, because of the weather or some other unusual occurrence, there are no employees in the bar­gaining unit on the date of the making of the application.

20. In reaching the above conclusions, we have not overlooked the argument that our decision might introduce a certain element of doubt in an otherwise straight-forward policy and that this in turn may on occasion lead to delay in the disposition of some applications for certification in the construction industry. In our view, however, such considerations must give way in a proper case such as the present where, because of the peculiar and unique circumstances, an inflexible application of a policy would produce an obviously inequitable result.

(emphasis added)

19. In neither J. C. Fitzpatrick Construction Ltd., ~ nor Industrial-Mine Installations Inc., supra, did the Board depart from its practice of focusing on the date of application for the purposes of making the determinations under what is now section 7 of the Act. While this does not mean that it would never be appropriate to do so, it does demonstrate that the Board's response in cases in which it is satisfied that the circumstances are such that a strict application of the date of application "rule of thumb" would lead to an inequitable result will generally, and quite appropriately in our view, be to direct the taking of a representation vote even if the applicant trade union has filed evidence of membership with respect to more than fifty-five per cent of the persons who were employees in the bargaining unit on that date.

20. We are not persuaded that the Board should depart from its practice of focusing on the date of application for the purposes of ascertaining the number and identity of employees in the bargaining unit in the circumstances of this application. Because the applicant has not filed membership evidence with respect to more than fifty-five per cent of the employees in the bargaining unit at the time the application was made (for those purposes we assume that schedule A to the agreement of the parties referenced in paragraph 8 above is an accurate list of employees in that respect), the applicant would at best, in the absence of its request for relief under section 8 of the Act, be entitled to a representation vote. In all the circumstances, particularly the applicant's allegations that the respondent has contravened the Act in a manner such that the true wishes of the employees cannot be ascertained and that it should therefore be certified pursuant to section 8, we find it inappropriate to either comment on or make any determination with respect to whether or not a vote should be taken until we have had the benefit of the evidence and representations of the parties with respect to all matters in issue in the application.

21. Does certainty and an expeditious determination of an application for certification take precedents over fairness? No, but fairness is not an absolute concept. Nor is it a concept which applies to some parties and not to others. What is "fair" depends upon the interplay of all of the interests involved. What is "fair" depends on the circumstances, and factors of certainty, expeditious resolution and the other concerns in Crete Flooring, supra, are properly taken into account in determining whether an approach like the one in issue in this case is "fair". It has always been up to the trade union to decide whether and when it will make an application for certification. Subject to specific legislative parameters (and there are none for certification proceedings where there is no incumbent trade union and no bar applies), it is always up to an applicant to decide when it will apply, in any kind of case. While it is true that an applicant trade union can try to wait for an application which is advantageous to it, there are limits on its ability to do so. For example, delay in an organizing campaign generally works the detriment of the trade union, and experience suggests that the longer a trade union waits, and in a vote based system the longer a vote is delayed, the more difficult it will be for the trade union to gain or even retain support. Further, it is always the employer which controls and directs its work force, and trade unions are as susceptible to the vagaries of construction industry employment as everyone else. Further, to throw open voter eligibility would clearly cut both ways. After all, why couldn't the trade union argue that someone (who it thought would support it) has a "connection" with the workplace such that s/he should be entitled to vote notwithstanding that s/he was not at work on the date of application.

22. It is clear that there must be some "rules" for voter eligibility. That is the case for every vote or election, be it municipal, provincial, federal, a vote in a club, or a vote in a corporation (whether privately or publicly held) etc. It will always be necessary to draw a line between those who can vote and those who cannot. Sometimes it is easy to do so, and sometimes it is not. Wherever the line is drawn, there will be cases which are close to it and which will appear to create an unfairness to those who fall just on the wrong side. Under the Board's interpretation of the Act there will be cases, arguably including this one, where it may appear to be unfair to allow an approach which disfranchises someone who it appears may have a connection with the workplace. But in the construction industry it can be difficult to discern either that there is such a connection, or whether it is real.

23. It is true that in some of the pre-Crete Flooring, supra, cases, including Al Gordon Electric, supra, the Board seemed to take comfort in the fact that there would have to be a representation vote taken (in the absence of extraordinary relief under the equivalent of what is now section 11(1) of the Act) in the case, something which is now mandatory. However, even under the voter eligibility approach prior to Crete Flooring, supra, persons not at work on the date of application would not have been entitled to cast ballots in such a vote; that is, the wishes of persons not at work on the date of application would not have been considered in such a vote even then.

24. In the result, the practical and legal concerns and considerations remain the same now as before, and apply equally to a vote based system where representation votes are generally held relatively quickly. (In that respect we observe the Crete Flooring, supra, was a construction industry application for certification in which a pre-hearing vote was requested and held quickly.) Accordingly, the analysis in that decision, with which we respectfully agree, is equally applicable generally under the Labour Relations Act, 1995, and specifically in this case. The Board found it neither necessary nor appropriate to depart from its tried and true approach and therefor ruled as aforesaid.

IV The Bruce Dare Status Issue

36. The Board then heard the evidence and representations of the parties with respect to the issue of Bruce Dare's status, the question being whether Dare was an employee of the employer on the date of application.

37. The employer called two witnesses, Ken Anderson, the owner and principal of the company, and his wife, Pam Anderson, who is the company's office manager. The applicant called Bruce Dare and Jim Dick as witnesses. Dare and Dick are friends who have known each other for many years, and it was Dick who alerted Dare to the possibility of employment with the employer and recommended him to Ken Anderson.

38. It is not unusual to have discrepancies or inconsistencies in the evidence of witnesses who testified before the Board. What is unusual about this case is the number and extent of the inconsistenc­ies on material points between the evidence of Ken and Pam Anderson on one hand, and Bruce Dare on the other. The evidence of Jim Dick was both consistent and inconsistent with both the evidence of Ken and Pam Anderson on one hand, and that of Dare on the other. Further, none of these witnesses could be said to be completed neutral or disinterested. Not only are Ken and Pam Anderson married, but their opposition to the trade union was manifest. On the other hand, in Board File No. 1001-96-U Dick complained of the treatment he received from the employer after the application for certification was made. Similarly, Dare complained that he had not been paid for work he had performed and it was his status which was in issue. It is in this context and against the documentary evidence before the Board, namely telephone records, which the Board must assess the evidence.

39. The following basic facts are uncontested. The employer is one of three electrical contractors in Red Lake, Ontario, which is a community in north-western Ontario close to the Manitoba border. It is the only electrical contractor with employees, the other two being "one man shows". The company has been in business for approximately eleven years in the ICI and residential sectors of the construction industry. It competes with contractors in Kenora and Dryden but its main competitors operate out of Manitoba. A the time the application was made, on May 17, 1996, the employer had two active jobs, one at the Red Lake town office and one at the Madsen Public School in Red Lake. Not counting Dare, the company had eight employees (Jim Dick, Kelly Smith, Gary Gazankas, Kenneth Forsyth, Jeff Neufeld, John Bouchie, Harry Delorme and Wade Kolmel) at the time, of whom only Dick and Gazankas were actually at work that day. Dick and Smith were relatively new employees. Gazankas and Forsyth had been employed by the company for "a significant time", Neufeld and Bouchie have been employed by it off and on when work was available, and Kolmel as a student who has worked with the company for two years. Smith has since left, and the company now has two more employees (Robert Marselai (?) and someone named Peter).

40. Pam Anderson testified first. Her evidence is quite brief. She testified that Dare called the Anderson home sometime during the morning of Sunday, May 12, 1996 and told her that he was coming to Red Lake for an interview but had some loose ends to tie up and wouldn't arrive until Tuesday, May 14, 1996. She says she told Dare that he was supposed to be in Red Lake on Monday, May 13, 1996 for an interview and was to start work on Tuesday, May 14, 1996 if he was hired. Pam Anderson testified that Dare's response was that he would try to hurry. She also says that she was present in the company's office on Tuesday, May 21,1996 when Ken Anderson interviewed Dare, hired him and reviewed the company's practices and policies with him, and when Dare signed a TD-l Employment form.

41. Ken Anderson testified that he is the only one at the company who has the power to hire or fire, and that he assigns and directs all of the work (although he clearly does not attend to every on the job detail in that respect). He describes what he says is his invariable hiring process as follows. When the company requires an additional employee, he approaches the local Canada Employment Centre. If the Centre is unable to refer anyone it will place advertisements in newspapers for him. In the alternative, he will review his file of resumes, some of which are sent to him unsolicited. Mr. Anderson said that he likes to get resumes and that he likes to interview applicants for employment in person before he actually hires them so that he can check the persons qualifications and license, and also observe him (or presumably her) to make sure that the applicant is someone who would be an appropriate representative of the company and the community. Consequently, said Mr. Anderson, he discourages telephone interviews. In that respect, he cited the example of a prospective employee from Thunder Bay who appeared to be suitable on the basis of his resume and a telephone conversation with him, but who presented poorly in person and came to his job interview with alcohol on his breath. Based on these things, which Mr. Anderson pointed out he could not have known from a telephone interview, Mr. Anderson decided that this person would not be a suitable employee, declined to hire him, and sent him home after giving him some money for his travel expenses.

42. Ken Anderson testified that he received a resume from Jim Dick in November 1995 but that he simply filed it at the time. However, in April 1996, the company needed a working foreman for the Madsen Public School Job, and after reviewing the resumes he had on file he called Dick in for an interview and subsequently hired him for that job because he was qualified and successful in the interview. In that respect, Anderson said that he picked up Dick at the Vermillion Bay bus station on Easter Sunday, they had a "good talk" during the drive to Red Lake. Anderson said that had Dick not appeared to be suitable he would have given him some expense money, thanked him for coming and said "sorry to put you out".

43. Mr. Anderson testified that Dick came to him in late April 1996, and said he needed another electrician on the Madsen School job and recommended Dare to fill that job. Anderson said he told Dick the company didn't need more electricians on that job. Although he denied asking Dick to tell Dare to send in his resume, Dare did in fact do so, by fax sent to Dick's attention, a day or three later. Ken Anderson said he filed this in his resume file. He denies calling Dare at that time but said that Dare called him, and that they had a brief discussion about Dare's resume, and he told Dare he had no work for him.

44. Anderson testified that a few days later, Placer Dome called with an industrial job for two electricians at its nearby mine. He considers Placer Dome to be an important customer and says this was an important job to him. Anderson thinks this call was on one of May 8,9 or ]0, 1996 and that on Friday, May 10, which was as soon as he could, he called Dare to verify his industrial experience, and asked him to come for an interview on Monday, May 13, with the view to having him start work on Tuesday, May 14, 1996, and that he hoped to have work for Dare "for the summer". Anderson denies telling Dare in their conversation that he was "hired" or that Dare was to talk to Dick if he (Anderson) was there when Dare arrived.

45. Ken Anderson says that Pam Anderson told him, he thinks on Sunday, May 1], 1996, that Dare had called to say that he couldn't be there until mid-Tuesday. He says that he expected Dare to be there by noon, May 14, 1996. Anderson testified that as a result of this, he called Placer Dome to ask if he could hold off on the mine job for a few days and was told that the job could start the following Tuesday, May 21, 1996. Ken Anderson says he tried to call Dare to tell him that the job had been bumped back but was unable to reach him and assumed that Dare was on his way. He denies that he spoke to Dare again until Tuesday, May 2], 1996.

46. On Wednesday afternoon (May 15, 1996), Ken and Pam Anderson left for a brief vacation in Las Vegas. Ken Anderson says that Dare had not arrived and had not called before they left. He testified that he thought Dare was a "no show", something which he says is not uncommon because of the location of Red Lake.

47. Anderson says that on May 14, 1996, he took Dick to the Placer Dome mine to introduce him to the electrical superintendent and that he told Dick that he might have to work there. Gazankas was the other employee scheduled to work on the Placer Dome job. He says that Placer Dome has a three hour orientation session for everyone who will work at the mine and that Dick and Gazankas were to have their session on Friday, May 17, 1996. Ken Anderson testified that he never saw Dick on May 15, 1996 and he never spoke to him before he left for his vacation, either about Dare or otherwise. He says he left Gazankas to "take care of the customers" and "run the show" but that no one was left with any authority to hire anyone, including Dare. He says that Dick and Gazankas were to be at the Placer Dome job starting on May 2], 1996, and he didn't need any more electricians on the school job because they were was ahead of the other trades.

48. Ken Anderson says that he returned from vacation on Monday, May 20, 1996, and that when he was unsuccessful in contacting Gazankas he sought out Dick, who told him that he (Dick) had put Dare to work at the school job site and had taken him to the Placer Dome orientation on May 17, 1996. Ken Anderson testified that he was surprised at this but that he was tired and said he would deal with that the next day.

49. Anderson says that the next day, Tuesday, May 21, 1996, he located Dare at the school job site, asked him to wait while he viewed the site and then took Dare back to the company's offices for an interview, to see his license and to find out from Dare why he was late and why he hadn't called.

50. Apparently, Anderson was satisfied with Dare and his explanation because he testified that he then "hired" Dare and had him complete the requisite TD-1 form. He also says that he told Dare that he would not pay him for the work he had performed on Thursday, Friday, Saturday and Monday because he was not an employee of the company when he did it. Anderson denies offering to pay Dare for that work as a subcontractor.

51. Anderson testified that during this discussion Dare began to apologize for the union activity and said that he didn't want to have anything to do with it but was pressured by Dick and Gary Hogan (a representative of the applicant) to do so. He says that Dare said that he could understand why the company couldn't pay him and that he (Dare) didn't intend to work until Tuesday, May 2], 1996 but was pressured by Dick and Hogan (a representative of the applicant) to do so.

52. Anderson says that Dare then returned to the job site for the rest of Tuesday, but that on Wednesday, May 22, 1996 Dare told him that he had to return to Quebec because his girlfriend's mother had become ill. Ken Anderson says that he gave Dare $290.00 for travel expenses.

53. Jim Dick testified that he had sent his resume to the company in response to a newspaper ad in a Winnipeg newspaper. He says that Ken Anderson telephoned him in early April 1996, that he asked about his work experience and particularly whether he had worked in a school before and whether he had had any supervisory experience, and whether he was interested in coming to work. Dick says that he told Anderson that he had some personal things to take care of and he would get back to Anderson, but, he says, Anderson called him back first. Dick believes he was offered a job in his first conversation with Ken Anderson.

54. In any case, Dick agreed to go to Red Lake but he was travelling by bus and because of the Easter weekend he couldn't get to Red Lake until "a day late". He says Ken Anderson offered to and did pick him up the Vermillion Bay bus station and drove him to Red Lake. Dick denies that Ken Anderson said anything about an interview in Red Lake and says he would not have gone all that way just for an interview.

55. Dick testified that he told Ken Anderson that he needed another electrician at the school job site and that he recommended Dare. He agrees that Anderson told him he didn't feel he needed another electrician but says that Anderson told him to have Dare send him his resume. He says he called Dare and told Dare to do so.

56. Dick said he learned of the Placer Dome job during the week of May 7 to 10. At first, he says that on May 10, 1996 he found out Dare was coming but then he testified that, notwithstanding a discussion he says he had with Anderson about the job, that he couldn't really say for sure when he learned Dare was coming. But Dick does say that at some point he came to expect Dare on Tuesday, Wednesday or Thursday, he was uncertain on this point, and that he understands that Dare was to work on the Placer Dome job. Dick says he went to Placer Dome with Ken Anderson on Monday, May 13, 1996, the day he understood the work was to begin, but that they were told by Placer Dome that it was not ready to proceed with the work and that the job could start the following week.

57. Dick says he spoke with Anderson by telephone on Wednesday, May 15, before Anderson left on vacation and that Ken Anderson told him to put Dare to work at the school job site when he arrived. Dick absolutely denies that he could or would put someone to work without Ken Anderson's authorization. Dick confirmed that he met with Ken Anderson on Monday, May 20, 1996 and that he told Anderson about everything that had occurred while Anderson was away, including that Dare had been working at the school job. Dick testified that this appeared to be all right with Anderson.

58. Bruce Dare's home is in Quebec, some 75 kms east of Ottawa, and some 2,000 kms from Red Lake. He testified that Dick telephoned him in early April and told him there might be work for him in Red Lake. Dare faxed his resume to Red Lake to Dick's attention. He says he understood Ken Anderson asked Dick to tell him to send in his resume. Although he concedes it as possible that he called Anderson, Dare says that he thinks Anderson called him several weeks later, on Friday, April 26, 1996 and that they discussed Dare's resume and experience. Dare says that Anderson asked him to come to Red Lake for Monday (April 29, 1996) but that he couldn't because he was involved in a real estate transaction with respect to his matrimonial home. He says that Ken Anderson accepted that and indicated that maybe something else would turn up later. Dare testified that he felt this approximately ten minute long conversation was an interview. However, it is clear that he did not think that he had a job with the company at that point.

59. Dare says that on Friday, May 10, 1996 at approximately 5:00 to 6:00 p.m., Ken Anderson called him again, asked him some questions about his resume and specifically his industrial experience, asked him if he would like to work in Red Lake, and told Dare about the Madsen School and Placer Dome mine jobs. Dare agreed to go to Red Lake. He says he understood that he had been hired to work at the mine job although he would spend the first day or two at the school job and start at the mine on Friday, May 17 or on May 21, 1996. Dare testified that Ken Anderson wanted him there by Monday, May 13, 1996 but that he told Anderson he didn't think he could get there on such short notice and would call him on Saturday, May 11, 1996 to confirm whether he could get there by May 13. Dare denies that Ken Anderson said anything about having an interview when he (Dare) arrived from Red Lake, and says that he would not take the time or incur the expense to drive over 2,000 kms for an interview.

60. Dare testified that he called Anderson at home at approximately 9:00 or 10:00 a.m. on Saturday, May 11, 1996 and spoke to Pam Anderson. He says he told her that he was coming but that the truck he would be driving (his girlfriend's) needed work, and he expected to be able to leave Monday morning to arrive in Red Lake on Wednesday. He says he asked Pam Anderson to have Ken Anderson call him but that when he didn't hear from Ken Anderson, he telephoned Anderson at home at approximately 6:00 p.m. that evening. Dare testified that Anderson said that he would like to meet him before Dare started work but if they didn't meet that Dare should contact Dick.

61. Dare says that because the truck repairs took longer than expected, he did not leave for Red Lake until 6:00 or 7:00 p.m. on Monday, May 13, 1996. He arrived in Red Lake at approximately 4:30 p.m. on Wednesday, May 15, 1996. In all, the trip took some forty-five hours, approximately 28 hours of which were spent actually driving.

62. Dare says he made contact with Dick and worked at the school job site on each of Thursday, May 16, Saturday, May 18 and Monday, May 20. He says he also worked ten hours on Friday, May 17 (the date of application) divided between an orientation session at the mine and the school job site. Dare testified that he expected to begin work at the mine job on Tuesday, May 21. However, on May 2], he met Ken at the school site, and went with him to the company's office to have coffee and donuts with Ken and Pam and to sign a TD-l form. He says Ken seemed neither surprised to see him nor unhappy that he was there, but he says that Ken suggested that he pay Dare as a subcontractor for the hours he had worked prior to May 2], an offer which Dare says he declined. Dare denies that Anderson told him he would not pay him for the work he performed prior to May 2] and says that he would have left right away if that had been the case because he would not work if he was not going to be paid.

63. As it turned out, Dare left the following day anyway. He testified that his girlfriend, who had travelled with him to Red Lake, received word that her mother was ill and that she wanted to return to Quebec to be with her. Dare agrees that this is what he told Ken Anderson and that he met with Anderson at the latter's request and that Ken gave him $290.00 for travelling expenses. Dare denies apologizing for the union's presence, or that he said that he had been pressured to start working or at all. However, Dare says that Anderson questioned him about who was involved in the application.

64. Finally, Dare testified that although he and Anderson discussed wages and hours of work over the telephone, he didn't think that hours could be banked. He also says that when he left Red Lake to accompany his girlfriend to her mother's side, he intended to return to Red Lake when everything was cleared up.

65. Together with various telephone records, that is the evidence before the Board and forms the basis upon which the Board must determine whether Bruce Dare was an employee of the responding employer on the day this application was made. The Board did not hear evidence from any other employee, from anyone connected with Placer Dome, or from Dare's girlfriend, for example.

66. The issue then is whether Bruce Dare was an employee on May 17, 1996. In this case, the question is: was Bruce Dare hired by the employer prior to May 17, 1996? In assessing the evidence and determining what is more probably than not the answer to that question, the Board must weigh the evidence having regard to the apparent interests of the witnesses who testified. Further, while consider­ing what was reasonable in the circumstances, we are obliged to remind ourselves both that peoples recollections may differ according to their perceptions, and that people do not always act in a manner which, particularly when viewed in hindsight, appears to be reasonable or rational.

67. It is apparent that Jim Dick, a long time friend of Dare, actively and persistently sought to obtain employment with the company for Dare. While it is possible that Anderson asked Dick to have Dare send in his resume, one wonders why Dare faxed his resume to Dick's attention if that was the case, particularly since there is no dispute that only Anderson has the power to hire employees. It seems more likely that this was Dick's suggestion and that Dick planned to use Dare's resume to continue to promote Dare with Anderson. There is no support for Dare's evidence that Anderson telephoned him in late April 1996. The telephone records show no such call from either the Anderson's home telephone or from the company's business telephone, and there is nothing which suggests that the company needed another electrician at the time. It seems far more likely that Dare telephoned Anderson, to follow up on what appeared to him was a reasonable prospect of work.

68. In any case, it is common ground that Anderson did telephone Dare on Friday, May 10, 1996. The telephone records indicate that this call lasted approximately six and a half minutes. Anderson and Dare agree on the essence of the conversation; that is, that they briefly discussed Dare's resume and industrial experience, the work available, and whether Dare was interested in coming to Red Lake to work. Where they differ is on what this conversation meant to each of them. From Anderson's perspective, he was following his standard procedure and while Dare looked good on paper and sounded fine on the phone he would not commit to hiring him until he interviewed him in person. From Dare's perspective, he felt he had gone through an interview, and Red Lake was a long way to go for an interview without the commitment of a job. Unfortunately, neither one said any of this to the other. Instead, each made assumptions based on his own practice or experience. If this was all the evidence, the Board could reasonably conclude that there was a simple misunderstanding between them. Since there must be a common intention to create an employment relationship before a person can be found to be an employee of an employer, there was none at this point, and Dare was not yet an employee. However, this is not the end of the story.

69. The recollections of the Ken and Pam Anderson with respect to what happened next are clearly wrong. The telephone records corroborate Dare's assertion that he telephone the Andersons twice on Saturday, May 11, 1996, once in the morning and once in the afternoon. The records indicate these telephone calls were relatively short. Ken Anderson's evidence and subsequent conduct suggest that Dare's version of what was said in these telephone conversations was more probably than not correct. Anderson said that he expected Dare by noon on Tuesday, May 14, 1996, yet he says that he telephoned Placer Dome early Monday morning to see if work on the mine job could be delayed because Dare was going to be late, something which would have been unnecessary if he really expected Dare by noon on Tuesday. Anderson said that the work was rescheduled for the following week, but the company's telephone records do not corroborate his evidence that he attempted to call Dare in that respect (the evidence also being that Dare has an answering machine on that telephone line), even though it is apparent that it was the mine job which he had in mind for Dare and so far as he knew Dare might not have left yet. In that respect, we accept Anderson's evidence that the Placer Dome job was originally to start on Tuesday, May 14, 1996, and that Dick was mistaken when he said he thought it was to start on May 13, 1996. In addition, Dick's evidence was that the mine job was delayed at Placer Dome's request but it is as likely as not that that was his perception of events at the mine on May 14, 1996, which he misunderstood because he was unaware of the prior conversations between Anderson and Placer Dome.

70. There is simply no support for Dare's suggestion that the Placer Dome job was originally to start on May 17 or May 21. His assertion that Anderson wanted him there as soon as possible and before he started on the mine job is consistent with the evidence that that job was to start on May 14, 1996, and is inconsistent with the evidence, which is uncontradicted, that there was no actual or perceived need for an extra electrician on the school job.

71. However, it is also apparent that notwithstanding his assertion that he considered Dare to be a "no show" by Wednesday, May 15, 1996, Anderson was still expecting Dare to appear. That is why he asked Placer Dome to delay the job, and this expectation is consistent with the two May 11, 1996 conversations and with Anderson advising Dick only that he might have to work at the mine job, which Dick subsequently did.

72. This brings us to the crucial point on May 15, 1996. The Board does not accept Anderson's denial that he did not speak to Dick that Wednesday before he left for Las Vegas. First, he was still expecting Dare. Even if he had begun to think that Dare might not appear it was at least equally possible that he would, having regard to the telephone discussions during the preceding weekend and the distance Dare had to travel. Second, he was going to be gone for some five days and on his own evidence he directs and assigns all the work. It is difficult to believe that Anderson would not have checked on the school job site before he left and that he would not make some provision for the Placer Dome mine job (an important job for which the orientation had been re-scheduled for Friday, May 17 while he was away, with work to begin on May 21, the day after his scheduled return) if Dare did arrive on one hand and if Dare didn't arrive on the other.

73. Accordingly, we accept Dick's evidence in that respect, and we also accept that Anderson told Dick to put Dare to work on the school job if he arrived. This is consistent with Anderson being the only one with the power to hire and with Dick's evidence that he wouldn't have put Dare to work without being instructed to do so. This is also consistent with Anderson's general approach to hiring in that Dare would be hired subject to Anderson satisfying himself upon his return from Las Vegas that Dare was as suitable as his resume and telephone conversation made him appear to be. That is, from Anderson's perspective, he could always terminate the relationship when he returned if he didn't like the look of Dare, but in the mean time his jobs, including the Placer Dome job which he considered to be an important one, would be covered. It is also consistent with what happened on Tuesday, May 21, 1996 when the confirmatory interview took place and the TD-l form was completed.

74. The Board does not accept that Anderson said the employer would not pay Dare for the some forty hours of work he had done. This would be inconsistent with the fair and reasonable approach he otherwise took in dealing with employees or prospective employees, and it is inconceivable that Dare would have accepted this as meekly as Anderson says he did. After all, Dare did perform work that the responding party employer received the benefit of. It is far more probable than not that Anderson did offer to pay Dare as a subcontractor for that work. Although we need not speculate why he would want to do so, it is not inconceivable that this application had something to do with it if he thought that would mean Dare was not an "employee" at the time. We note that Dare never did go to work at the mine but it is likely as not that Anderson simply decided to leave things as they were with Dare at the school and Gazankas and Dick at the mine.

75. We find nothing in the evidence of Dare's lack of knowledge regarding banking hours, the reasons why he came to or left Red Lake or whether he intended to return other to vote or in the conversations between Anderson and Dare just before Dare left Red Lake to have any bearing on the Board's consideration of the question of whether Dare was an employee of the company on May 17, 1996. On the evidence before the Board, we are satisfied that Anderson delegated the authority to hire Dare if he arrived to Dick, and that Dick hired Dare as an employee of the company effective May 16, 1996. That is consistent with Anderson's reaction to the information he received from Dick on May 20, and with his conduct on May 21. Accordingly, on the evidence before the Board, we are satisfied that Bruce Dare was an employee in the bargaining unit on May 17, 1996, the application date herein, and that as such he was entitled to vote.

76. In the result, the following three persons were entitled to cast ballots in the representation vote taken in this application:

Jim Dick

Gary Gazankas

Bruce Dare

77. The Registrar is directed to have the ballots cast in the representation vote counted in accordance with this decision.

DECISION OF BOARD MEMBER F.B. REAUME; September 18, 1996

1. I must respectfully dissent with the majority decisions with respect to the voter eligibility question and the Bruce Dare Status Issue.

I. Voter Eligibility

2. In the instant case, there is evidence to show that the four individuals, who took the application date off in lieu of overtime, were clearly known by all parties involved as to their connection with the workplace. Thus in their case there is no difficulty in discerning their employment connection.

3. The union clearly took advantage of these scheduled time off's in lieu to file for certification in order to disenfranchise these four knowingly connected employees.

4. To deny the four the opportunity to vote on their employment future is a denial of natural justice in these mutually acknowledged circumstances. No one knows for certainty how any of them may have voted, but they will have to wait for over a year before they will have an opportunity to show how they feel about being union members should the vote as being conducted result in the union getting bargaining rights for their employer.

5. The real question is what is more important, - (1) to carve in stone the Board's practice of recognizing only those employees in the bargaining unit who are at work on the application date or -(2) the natural justice of the majority of longer standing employees who would be disenfranchised by the said Board practice.

6. In light of the uncontested facts in this case I must cast my opinion in favour of the four disenfranchised employees who are being denied natural justice and dissent from the majority decision.

II. The Bruce Dare Status Issue

7. The evidence regarding the acquisition of Bruce Dare is not surprisingly contradictory. The key issue is whether or not Mr. Anderson authorized Jim Dick, the organizer to hire Dare in his absence, without benefit of a face to face discussion with Dare. In my considered opinion, there is nothing credible in the evidence that confirms that Anderson did authorize Dick to put Dare to work at the school job in his absence. There is evidence which supports that Anderson would not have authorized it.

8. Both Dick and Dare may have sincerely believed that they were hired before leaving for Red Lake but the evidence shows that Anderson's experience with the outside applicant, who looked good on paper and over the phone but showed a drinking problem face to face, would underline his practice not to hire without a face to face meeting.

9. Anderson's evidence was that no employee had been hired without a face to face meeting. He had even arranged to pick Mr. Dick up at the Vermillion Bay bus station which gave him the opportunity for a face to face meeting before Dick actually started working for Anderson.

10. Furthermore, it is clear that Anderson assigned Dick to the Placer Dome job due to the complete uncertainty surrounding Dare's arrival. There is every reason to believe that Anderson had no idea whether or not Mr. Dare would show or whether he was "a no show". This is not uncommon in the remote Red Lake area. As stated above the evidence supports the position that Anderson would not have hired Dare without a face to face meeting which he eventually did do after his return from the holiday.

11. On the other hand Mr. Dick had his own reasons why Mr. Dare should be working on May 17, 1996, which he knew to be the union's application date. He knew they needed as much help as possible to ensure the certification. It should not surprise anyone that Dick was confronted by those employees who were challenged as to their right to vote on the representation issue.

12. The evidence supports Mr. Anderson's version of his relationship with Mr. Dare. There is no evidence of his hiring without a face to face meeting. There was no reason to change that practice now. Therefore, I am not convinced he authorized Mr. Dick to put Dare to work on the school job in his absence. As a result Dare should not be entitled to vote.

III. Conclusion

13. I would determine that the following six persons were entitled to cast ballots in the representation vote in this application.

Jim Dick

Gary Gazankas

Harry Delorme

John Bouchie

Jeff Neufeld

Ken Forsyth.

14. It is patently unreasonable to proceed in any other way in this case where the employment connection is clearly known to all concerned. Preservation of the Board's practice should in this case give way to the interests of the real employees. The secret ballot vote will tell us their true wishes now.