Labourers' International Union of North America, Local 183 v. Mattamy Homes Limited, 1998 CanLII 18243

Labourers' International Union of North America, Local 183 v. Mattamy Homes Limited

[1998] OLRB REP. JANUARY/FEBRUARY 70

0083-97-R Labourers' International Union of North America, Local 183, Applicant v. Mattamy Homes Limited operating as Calben Developments Corp., The Mattamy Building Corp., Rockelm Building Corporation, Tweedsmuir Building Corporation, Tyana Developments Limited, Mattamy Properties Limited, Brooksmill Building Lim­ited, Mattamy (Stonehaven) Limited, Mattamy (Eastoak) Limited, Steluk Building Corporation, The Wellesley Corporation, Mattamy (Westoak) Limited, Mattamy (Deer­field) Limited, Mattamy Homes Limited - Deify Road and Gilmac Partnership, Re­sponding Party

BEFORE: Janice Johnston, Vice-Chair.

APPEARANCES: Mark Lewis for the applicant; Bob Wright for the responding party.

DECISION OF THE BOARD; February 4, 1998

Decision

1The style of cause is hereby amended to reflect that the correct name of the responding party is: "Mattamy Homes Limited operating as Calben Developments Corp., The Mattamy Building Corp., Rockelm Building Corporation, Tweedsmuir Building Corporation, Tyana Developments Limited, Mattamy Properties Limited, Brooksrnill Building Limited, Mattamy (Stonehaven) Limited, Mattamy (Eastoak) Limited, Steluk Building Corporation, The Wellesley Corporation, Mattamy (Westoak) Limited, Mattamy (Deerfield) Limited". The parties were in dispute with regard to whether or not Mattamy Homes Limited - Derry Road and Gilmac Partnership should be added to the list of responding parties. After considering the evidence and the submissions of the parties I am of the view that these two entities should also form part of the name of the responding party in this case. Accordingly, the style of cause is also to be amended to include the names of these two additional companies. For ease of reference the responding party will henceforth be referred to simply as "Mattamy" or the "company".

2This is an application for certification in which a representation vote was held on April 14, 1997 for the following bargaining unit:

all construction labourers in the employ of Mattamy Homes Limited, Mattamy Construction Limited, o/a Calben Developments Corp., a/a The Mattamy Building Corp., o/a Rockelm Building Corporation, o/a Tweedsmuir Building Corporation, o/a Tyana Developments Limited, o/a Stelumar Building Corporation, o/a Mattamy Developments Limited, o/a Mattamy Properties Limited. o/a Brooksmill Building Limited, o/a Mattamy (Stonehaven) Limited, o/a Mattamy (Eastoak) Limited, o/a Steluk Building Corporation, n/a The Mattamy Development Corporation, o/a Clearbrook Building Corporation, o/a The Wellesley Corporation. o/a Steluk Developments Limited, o/a Mattamy (Westoak) Limited, o/a Edmayr Limited, o/a Mattamy (Deerfield) Limited, in all sectors of the construction industry in the Municipality of Metropolitan Toronto, the Regional Municipali­ties of Peel and York, the Towns of Oakville and Halton Hills and that portion of the Town of Milton within the geographic Townships of Esquesing and Trafalgar, and the Towns of Ajax and Pickering in the Regional Municipality of Durham, excluding the industrial, commercial and institutional sector, save and except non-working foremen and persons above the rank of non-working foreman.

The ballot box has been sealed pending the resolution of a number of challenges to the list.

3At the commencement of the hearing there were two main issues in dispute between the parties. One of the issues concerns the eligibility of sixteen individuals to cast a ballot in the vote which was held. The second issue pertains to applications pursuant to section 11 of the Act which have been filed by both parties. At the outset of the hearing, the parties agreed to deal with the challenged individuals and then if necessary to deal with the section 11 applications. The hearing regarding the challenges lasted ten days and the Board heard from fourteen witnesses.

4As noted, at the outset there were a total of sixteen individuals in dispute. They were challenged by the applicant on the basis that they were either not at work or were not performing bargaining unit work on April 7, 1997, the application date, or that they exercised managerial functions. By decision dated November 28, 1997, the Board concluded that five of the seven individuals chal­lenged by the applicant as managerial did not perform managerial functions and should not therefore be excluded from the bargaining unit on that basis. The five were:

Mr. Phil Penney

Mr. Mike Haynes

Mr. Mike Boyle

Mr. Dave Grandy

Mr. William Kerkhof

The remaining two, Mr. Aubrey Nevan and Mr. Tony Fairbarn were agreed to as properly excluded from the bargaining unit by the employer.

5During the course of the hearing, the company also agreed that Mr. Joe Brito, Mr. Mike Boyle, and Mr. Andre Beaudry should be removed from the list of sixteen challenged individuals. In other words, the company accepted the position of the trade union that these individuals were not appropriately included in the bargaining unit. Accordingly, any ballot cast by Mr. Aubrey Nevan, Mr. Troy Fairbarn, Mr. Joe Brito, Mr. Mike Boyle, or Mr. Andre Beaudry will not be counted and is to be destroyed.

6The union withdrew its challenge to one of the individuals, Mr. Stan Rhynold and agreed that his ballot could be counted. Accordingly, the ballot of Mr. Stan Rhynold, if there is one, is to be counted.

7Therefore by the end of the hearing, the Board was left with ten individuals still in dispute. These ten individuals are:

Mr. Joe Barbosa

Mr. Phil Penney

Mr. Jarosaw Wolejszo

Mr. Steve Lumbers

Mr. Gary Lumbers

Mr. Manuel Docouto

Mr. William Kerkhof

Mr. David Grandy

Mr. Lee Pollock

Mr. Mike Haynes

8The issue remaining with regard to these individuals is whether or not they were at work on the application date and/or whether or not they were performing bargaining unit work on the date of application.

9Both parties accepted that the test for determining which individuals were to be included on the list of eligible voters in an application for certification in the construction industry was as stated by the Board in E & E Seegmiller Limited, [1987] OLRB Rep. Jan. 41. In that case the Board stated that in making the decision the Board would consider the following:

(a) whether the person was employed by the respondent and at work on the date of applica­tion; and

(b) if so, the work that that person spent the majority of his/her time doing on the date of application or

(c) where there is no conclusive evidence with respect to the work that the employee performed on the date of application, any other relevant factor, including the primary reason for hire.

10Mattamy is a builder of low-rise residential homes in and around Toronto. On the date of application, it is not disputed that the employer had several active job sites both inside and outside of Board Area #8. The sites relevant to this decision are: West Oak, Avonlea, Deerfield, Sherwood Mills, Joshua Creek and the sales office located at Creditview and Derry Road.

11The individuals in dispute break down into two broad categories. The first category is what was referred to by the parties as "servicemen" or "handymen". The remaining individuals are challenged as generally not performing labourers' work on the application date. On the date of application, the workday was nine hours long for everyone.

(i) The Servicemen Issue

a) The Facts

12There are certain individuals who have been agreed to by the parties as servicemen. The issue is whether or not they are properly included in the bargaining unit, or in other words, is the work they perform bargaining unit work. The work they performed on the application date is either agreed to or essentially agreed to. The individuals in this category are Steve Lumber, Gary Lumber, Lee Pollock and Mike Haynes.

13The parties agreed that the work performed by Lee Pollock should be described as follows:

Mr. Pollock worked at the Sherwood Mills site on April 7, 1997. On that day he performed minor repairs to a closet, door lock, (one and a half hours), installed window and hood fans and adjusted windows and doors (five and three quarter hours).

The parties agreed that the work performed by Mike Haynes should be described as follows:

Mr. Haynes worked at the Joshua Creek site on April 7, 1997. On that day he worked all day on trim repairs (four and a half hours) and cleanup (four and a half hours). The cleanup referred to was predominantly of the repairs he had been doing.

14Mr. Gary Lumbers worked on the Avonlea site, which is located at Derry Road and Winston Churchill Boulevard, on the application date. Mr. Lumbers described himself as a handyman. Mr. Lumbers was paid $16.85 an hour at the time of the application and reported to Mr. Aubrey Nevan, the service supervisor or manager. Mr. Lumbers described his duties generally as getting homes ready for pre-delivery inspections (PDIs). Mr. Lumbers described the PDI inspection as an inspection that occurs prior to the closing date in which the prospective owner of the house goes through the house with a representative of the company. Therefore, to ensure that the PDI goes smoothly it is necessary for a serviceman to thoroughly check the house prior to the PDI to ensure that everything is in as perfect a condition as can be. Mr. Lumbers indicated that there is a list in existence that he referred to as as PDI check list, that indicates everything that should be checked room by room. He referred to this inspection as a "pre PDI". In performing a "pre PDI", Mr. Lumbers would basically go over a house from top to bottom. He would check on everything and ensure everything was functioning properly in the house. For example, he would check all windows, cupboards, water taps, carpet, and shelving to make sure that everything was in working order, had been completed and was in place. He would also do siliconing in the bath rooms, check all of the doors to ensure that they open and close smoothly, perform paint and drywall touch-ups, caulk around bath tubs, ensure light bulbs are working, install dryer vents and other heating vents, and installing things such as towel bars and toilet paper holders. The final part of this job was to ensure that everything in the house was spotless and clean. To perform these tasks, Mr. Lumber's carries in the trunk of his car a wide variety of tools which he makes use of on a regular basis.

15On April 7, 1997, Mr. Lumbers worked in three different houses. In one of the houses he performed floor repairs; specifically, he repaired squeaks he had found in the floor. Mr. Lumbers worked with his brother Steve Lumbers in performing this work. In order to repair the squeaks, it was necessary for the two brothers to remove all of the wall-to-wall carpeting which had been laid and then to pull back the under-padding which had also been laid on the floors. After doing this they were able to access the floors and put in additional screws to eliminate the squeaks. After the floor had been repaired, they assisted a carpet specialist in re-laying the underpad and carpet. Mr. Lumbers estimated that they spent approximately three and a half hours performing this work as they essentially had to lift all of the carpet on the upstairs of the house to access the floor which needed repair work. After they completed the work they cleaned up.

16Mr. Lumbers also spent approximately one hour on April 7th going through another house to ensure that it was thoroughly clean and that the floors in particular were clean as carpet was going to be laid the next day. After Mr. Lumbers cleaned the floors he went through the house ensuring that there were no squeaks, dents or marks in the floor. If he found any, he repaired them. Finally on April 7th Mr. Lumbers spent approximately four and a half hours doing a pre-PDI inspection on a house. He described what he did in that house as follows: repairing windows on the upstairs floor, which consisted of repairing three windowsills that had cracked; siliconing the bath tubs and the jacuzzi; putting in the floor registers; inserting light bulbs; dapping of frames which consists of siliconing the base boards where the frames met the tiles; adjusting a couple of cupboards; some drywalling and some paint touch-ups and finally a general clean-up of the whole house.

17Mr. Steve Lumbers testified that he too was a handyman and that he performed a wide variety of duties from repairs to clean-up to light duties. Mr. Steve Lumbers makes $16.50 an hour and also reports to Mr. Aubrey Nevan. Mr. Steve Lumbers described the work he performs generally as wall repairs, floor repairs, wood-working, or drywall touch-ups. On April 7th, Mr. Steve Lumbers testified that in addition to spending approximately three to three and a half hours working with his brother on the floor repairs described above, he also spent approximately three hours repairing a defective wall stud in a home which was occupied by the owner. Mr. Steve Lumbers indicated that repairing the stud involved: initially locating where it was; removing the drywall that concealed it; removing the defective stud; going to the construction area and finding a replacement stud and drywall; returning back to the house; inserting the new stud and replacing the drywall; taping the drywall; putting on a coat of drywall mud and then cleaning up after. Mr. Lumbers indicated that it took him approximately three hours from start to finish. He broke the time down as approximately one half hour to remove the stud and drywall, one hour to find the replacement pieces, one hour to insert the new stud and drywall and approximately one half hour of clean-up.

18On Oct./Apr. 7th, Mr. Steve Lumbers also spent approximately two hours conducting what he referred to as a house "prepping". It appears that this is his way of describing what Mr. Gary Lumbers referred to as a "pre-PDI" inspection. The work he performed in the house consisted of cleaning and checking the windows; checking the trim work; caulking the baseboards; cleaning the cupboards; and essentially ensuring that everything looked ready for the prospective home owners. He also checked to ensure that all of the sinks and taps were functioning properly. He cleaned the garage and swept and cleaned the floors. Most of the work he performed in this two hour period consisted of inspecting and cleaning the house.

b) Argument

19Counsel for Mattamy argued that the work of the servicemen should be considered to be bargaining unit work. He took the position that the labourers perform a broad range of tasks and that there is a great deal of overlap between work performed by the construction labourers and other trades. The Board has never defined the labourers as a "craft" union and as such they do not have a clear, core jurisdiction over certain work. In his view, work traditionally described as labourers' work is wide enough to encompass the type of tasks performed by the servicemen employed by Mattamy. After reviewing the work performed by the servicemen, counsel for Mattamy argued that all of this general repair work and clean-up work is properly considered to be work of construction labourers.

20In support of his argument counsel referred the Board to PHI International Inc., [1980] OLRB Rep. Dec. 1789. The Board in that case was dealing with the status of several individuals, two of whom appear to have performed duties similar to those performed by Gary and Steve Lumbers. The Board in the PHI case concluded that work such as cleaning garages and basements of houses recently built, cleaning floors prior to the laying of carpet, doing minor repair work on cupboards, lighting fixtures, an entrance way, steps, tiles, locks, windows, and fixing minor cracks in the walls, could be properly characterized as construction labourers' work. Counsel for Mattamy urged the Board to come to a similar conclusion in this case. In support of his argument, counsel for Mattamy also referred the Board to Vibration Assessment Limited, [1989] OLRB Rep. Feb. 223, Runnymnede Development Corporation Limited, [1988] OLRB Rep. Sept. 976 and sought to distinguish Na-West Development Corporation Limited, [1983] OLRB Rep. May 692.

21Counsel on behalf of the trade union argued that servicemen should not be included in the bargaining unit. He argued that the work generally performed by the servicemen was different from that performed by the other labourers. He pointed out that this company had organized the service function as a separate function under separate management. He noted that the work performed by the servicemen on the application date was certainly construction work but he was not prepared to concede that on every day all of the servicemen spent the majority of the day performing construction work. Counsel pointed out that servicemen are common in the residential construction sector and that they perform the work of a number of different trades. He conceded that certainly a portion of the work performed by the Lumber brothers on the application date was construction labourers' work. Work such as general clean-up, hand digging or concrete work has traditionally been found to be construction labourers' work. But in his view, the two brothers also performed work which is traditionally performed by frame carpenters, trim carpenters, tile and terrazzo workers, electricians and masons.

22While agreeing with counsel for the employer that the Board had not found that construction labourers were a craft union, counsel pointed out that the Board at a minimum has limited the work of construction labourers to ensure that they are not performing work which has traditionally been found to be the core work of other trades. The Board consistently has found that there are certain core functions pertaining to each of the trades and crafts and that the core functions of the other trades cannot be the work of the labourers union. In his view, in this case, the work performed by the servicemen clearly falls within the core jurisdiction of a variety of trades and crafts.

23Counsel reviewed some of the work performed by Mr. Steve Lumbers. In particular he pointed to the work that Mr. Lumbers did when he removed a defective stud, removed drywall, replaced the stud, replaced the drywall and painted the drywall. Counsel argued that there can be no doubt that this work is carpenters' work and drywallers' work, not the work of construction labourers. If it was not labourers' work when it was done initially, counsel questioned how it could ever be labourers' work when it was being performed for a second time.

24While conceding that the case before the Board was not a jurisdictional dispute, counsel for the employer nevertheless argued that it was necessary for the Board to determine whether the work performed by the servicemen was in fact work which fell within the bargaining unit. He argued that the work was not bargaining unit work, as much of what was done on a daily basis and in particular on the application date by the various servicemen, is work which clearly falls within the core jurisdiction of other trades.

25Counsel asserted that the PHI International Inc. case was not helpful as there was no analysis with regard to the core jurisdiction of the other trades. Although the case found that repair work was construction labourers' work it did not address the arguments being made in this case. In addition he pointed out that the PHI International Inc., supra case was decided prior to E & E Seegmiller Limited, [1987] OLRB Rep. Jan. 41. In his view the Seegmiller case initiated a new test for the Board in which the Board primarily looked at work performed on the application date as opposed to work generally performed. In his argument counsel also referred the Board to Ellis Don Limited, [1994] OLRB Rep. Sept. 1222, J.R. Knowle Plastering Limited, [1984] OLRB Re. July 928, Ming Sun Holdings Inc., [1987] OLRB Rep. Dec. 1585, and Gilvesv Enterprises Inc., [1987] OLRB Rep. Feb. 220.

c) Decision

26I agree with counsel for the trade union that the servicemen employed by Mattamy viewed themselves and were viewed by others as dit'ferent from the general construction labourers. They had a separate line of supervision in that Mr. Aubrey Nevan was in charge of the servicemen employed on different construction sites. Often but not always, the servicemen had the use of a company vehicle. Regardless of whether or not a particular serviceman used a company vehicle or his own vehicle, the vehicle was loaded with a variety of tools and materials. Clearly Mattamy has a cadre of servicemen who perform work in the various homes both before and after the sale of the home. However, this conclusion does not really assist me in the question I must answer, which is whether or not "service" work is bargaining unit work, or in other words, construction labourers' work.

27Simply because the servicemen are treated differently than the other construction labourers employed by Mattamy and generally perform more inspection and repair work than the other labourers, does do not mean that the work they perform is not construction labourers' work. "Service" work, in the context of this case, could be labourers' work, or it could be that "service~~ work is not labourers' work. Counsel for the union conceded that the service work was construction work but argued that it was not labourers' work.

28In PHI International Inc., supra, the Board came to the conclusion that work virtually identical to the work performed in this case could be characterized as construction labourers' work. After the reviewing the various jobs which had been performed by the two individuals in question, the Board stated:

……it is clear that the functions of both of these employees were closely connected with the construction project, and can either be characterized as part of the finishing or decorating phase, or alternatively, as the repair of equipment or fixtures which were defective or improperly installed. In either case, we are satisfied that the employees functions are properly characterized as construction labourers work.

As noted by counsel for the trade union no reasons were provided f'or this conclusion. Nevertheless, the PHI International Inc., supra, does stand for the proposition that the type of work which has been characterized by the parties in the case before me as "service" work is to be characterized as construction labourers' work.

29Counsel for the trade union argued that if the type of work being performed by the servicemen was the work of a variety of other trades the first time it was performed, then it could not be the work of construction labourers when it was being performed the second time by the servicemen. In other words counsel argued that if painting a wall was painters work the first time, then any repair to that painting job being performed by the servicemen must be painters' work as well.

30While at first glance this argument sounds persuasive, the difficulty with it lies in the practical problems its application could create. Surely it does not make any labour relations sense to require that all repair work done in the context of this case must belong to the original trade who performed the work being repaired. This would mean that a painter would have to be called back to put a tiny dab of paint on a scratch or mark on a wall, or that a carpenter would have to be called in to hammer in a nail which was a bit loose. Clearly in the course of a day a serviceman employed by Mattamy could perform the work normally performed by a painter, carpenter, electrician, frame carpenter, plumber, drywaller and so on. Being a serviceman employed by this employer, which performs work in the residential sector, involves the use of a wide variety of tools and the performance of a wide variety of tasks which could fall within the ambit of the work of a particular trade.

31Therefore, while in strictly technical, legal terms counsel for the trade union may be correct, in the context of this case, to apply it would result in a totally unworkable and impractical situation. In the past the Board has observed that there can be overlap between the work of one one trade and that of another. Although dealing with the issue in a different context, in Runnymede Development Corporation Limited, supra, the Board stated:

11. It is evident that all five employees in dispute were employed as "servicemen" and that in the course of their employment they did the work of several trades, including labourers' work and carpenters' work. In its October 6, 1987 decision, the Board commented, at paragraph 23. on the distinction between the labourers' work and carpenters' work:

12. Some of the work covered by the Housing Bureau Agreement is work which can be. and is, performed by either construction labourers, or by carpenters or carpenters' apprentices: that is. it is work over which other trades assert jurisdiction. In other words, some of the work covered by the Housing Bureau Agreement can be done by either members of the United Brotherhood of Carpenters and Joiners of America, (the "Carpen­ters') or by members of the Labourers' International Union of North America (the “Labourers"). It is both "labourers work" and "carpenters work". In such circumstances. the work being performed cannot be determinative of the trade of the person performing it; that is, it is not work belonging to the Labourers just because a labourer is doing it, nor is it work belonging to the Carpenters just because a carpenter or carpenters apprentice is doing it. An employee is not a construction labourer merely because s/he is doing work that a construction labourer sometimes does if carpenters also perform that work as part of their trade, consequently, the fact that members of the intervener sometimes perform work (for the respondent) that carpenters also do not mean that the intervener represents all carpenters employed by the respondent

How does one determine whether an employee who is working in one trade or another in circum­stances where the two trade jurisdictions overlap, as do those of construction labourer and carpenter? It is no easy matter to do so particularly when the work being performed comes within the overlap.

However, the determination must be made and can only be made by considering the evidence as a whole and bringing to bear the Board's own expertise.

32Obviously the work performed by the servicemen in this case could be work which is normally performed by a number of other trades. However, the cleaning work performed by the servicemen is clearly construction labourers' work and makes up a significant portion of the work of a servicemen. On balance I am satisfied that it makes labour relations sense to conclude that the work of a construction labourer is broad enough to include the type of work regularly performed by the servicemen. Therefore, the "service" work is construction labourers' work and bargaining unit work.

33It is appropriate to include the servicemen in the labourers bargaining unit for another reason as well. Counsel for the union argued that there should not be a separate bargaining unit made up solely of servicemen. If that is so, and the servicemen do not belong in the labourers bargaining unit then where do they belong? In the case before me, although the work performed by the servicemen is work which may be performed by a wide variety of other trades, it appears that it would be somewhat unusual for a serviceman to spend an entire day performing work which would normally performed by only one trade. Generally the work performed by the servicemen on any given day would be the type of work performed by several different trades. Therefore, if the test as articulated in the See gmiller case is to look at whether or not a particular individual spent the majority of his day performing bargaining unit work, it is quite possible that the servicemen could never fall into any particular bargaining unit if they do not spend the majority of the day performing work normally associated with one trade. It could mean that some of the servicemen would never be placed in any bargaining unit even though the work they perform is construction work which is covered by the Act.

34Accordingly, in the circumstances of this case, it makes no sense to exclude the servicemen from the bargaining unit. While some of the work they perform could result in them being placed in a bargaining unit of another construction trade union, they also can fit within a labourers' bargaining unit. Given the nature of the tasks performed by the servicemen on the date of application, I am of the view that it is appropriate to place them in the labourers bargaining unit. Therefore the four agreed upon servicemen, Mr. Lee Pollock, Mr. Mike Haynes, Mr. Gary Lumbers and Mr. Steve Lumbers are all employees in the bargaining unit.

35If any or all of these four individuals cast a ballot in the representation vote, that ballot is to be counted.

(ii) The remaining challenges to the list

a) Mr. Manuel Docouto

36Mr. Manuel Docouto's duties generally included repairing drywall, fixing breakwalls, fixing floors which were squeaky, fixing the slabs which make up the walkway to a house and cleaning floors. On some days his duties included fixing doors and other things. As he put it "super says go fix and I go fix". Mr. Docouto's evidence with regard to the tasks he performed on April 7, 1997, was somewhat confused. In examination-in-chief he indicated that he spent approximately two hours in a house doing minor repairs to the drywall and a floor, approximately one hour adjusting patio slabs and approximately six hours cleaning up debris. Mr. Docouto also indicated that he spent some time cleaning the bricks of a house. In cross-examination, Mr. Docouto became quite mixed up concerning what duties he performed on April 7th, the order in which he performed them, and the amount of time he spent performing each task.

37Although his evidence was somewhat jumbled, I am satisfied that the duties he performed on April 7th could be characterized as construction labourers’ or servicemen's work. In fact in final submissions, counsel for the trade union characterized him as a serviceman. Accordingly, as he is a construction labourer, he is to be included in the bargaining unit. Any ballot cast by Mr. Docouto shall be counted.

b) Mr. William Kerkhof

38The facts concerning the work performed by Mr. William Kerkhof are essentially not in dispute. What is in dispute, is whether or not the work he performed on the application date is construction labourers' work. Mr. Kerkhof described himself as a working foremen who performed service related work. On the application date, it is not disputed that he spent approximately nine hours inspecting and repairing the water boxes located in front of homes which had been sold by Mattamy and were occupied.

39Mr. Kerkhof indicated that a water box is a valve which is located approximately four feet underground at the front of a residential home. In order to be functioning properly, it must be possible to close the valve easily. Sometimes the pipe leading to the valve has been bent by heavy machinery going over it and must be replaced. Therefore in checking the water boxes, his first step was to go up to the house to see if the home owner was present. If the home owner was present Mr. Kerkhof advised him/her that he was there to check the water box. After receiving permission from the home owner, he would locate the water box, clear the dirt away which occasionally involved digging up the water box using a pick and hand shovel and then inspect the water box. Occasionally the pipe or the lid needed to be replaced, or the pipe had sunk into the ground so deeply that it was necessary to put an extension pipe on it. Once Mr. Kerkhof determined which water boxes needed to be repaired, he then spent approximately one hour organizing the materials he would need to repair the water boxes and ordering those materials that he did not have. After that he spent about three hours repairing the water boxes.

40In final argument counsel for the employer stated that in applying the Seegmiller test, the Board should conclude that generally on days other then the date of application Mr. Kerkhof was a working foreman who performed service/handyman functions. Counsel argued that on April 7th, Mr. Kerkhof was employed as a serviceman.

41Counsel for the trade union took the position that Mr. Kerkhof should not be included in the bargaining unit as on the date of application he did not spend the majority of his day doing construction work. Counsel argued that the five hours he spent performing checks on water boxes in houses where the construction work had been completed was not construction work. It was not disputed that construction had been completed on the homes, as that was why the checks were being performed at this time when there was no chance of any further damage to the water boxes by heavy machinery. The trade union argued that although there is no doubt that fixing the water box is construction work, as it is repair work, performing the test itself on the completed system is not construction work. Accordingly, on the application date, some of the work performed by Mr. Kerkhof was construction work, namely the repair work, but as the majority of his day was not spent doing construction work he should be excluded from the bargaining unit.

42I am satisfied that Mr. Kerkhof spent the majority of his time performing the work of a construction labourer on the application date. It is not appropriate to compartmentalize the work on the water boxes in the fashion suggested by counsel for the union. Checking and repairing water boxes can be and is construction labourers' work. Accordingly any ballot cast by Mr. Kerkhof is to be counted.

c) David Grandy

43It was not disputed that Mr. David Grandy is a working foreman. On the application date he started the day by using a rubber tire backhoe to transport propane bottles and heaters to various houses. He would then unload them, take them into the basement or where a trade might be working, set them up and turn the heat on. If a propane heater was already located in the house, after attaching a new propane bottle he would take away the empty propane bottle(s). Mr. Grandy spent approximately two hours performing this function. Mr. Grandy spent approximately one hour at the end of the day using the backhoe to scrape the mud and other debris which had been tracked onto the roadway by the heavy trucks. In addition, on the application date Mr. Grandy spent approximately three to four hours repairing water boxes. He indicated that he would test the water box to see if it was functioning properly and that if it was not, then he would dig it up and repair it or replace it. Of the three to four hours Mr. Grandy spent working on the water boxes, he indicated that testing the water boxes took up approximately five percent of the time, digging it up took up approximately fifty percent of the time and then repairing it took up approximately forty-five percent of the time. He dug up the water boxes using either the backhoe or a hand shovel.

44In cross-examination, Mr. Grandy agreed with counsel for the trade union that he would normally spend approximately one to two hours performing administrative tasks or supervising the work of the construction labourers over the course of a day. He agreed that on April 7th he would have done so. He also agreed with counsel for the union's estimate that he spent more or less half of the remaining day operating the backhoe. He operated the backhoe as part of repairing the water boxes, delivering the propane and cleaning the road.

45Counsel for Mattamy argued that although the operation of a backhoe could be operating engineers' work, it could also be labourers' work. He pointed to the evidence of the union's business representative that when the business representatives were looking for labourers on a given site one of the things they looked for was the backhoe. as the backhoe is commonly operated by labourers. Counsel for the employer also argued that as the operating engineers do not claim the operation of a rubber tire backhoe in residential construction as their work, it could be considered to be construction labourers' work.

46Counsel for the trade union pointed out that the backhoe is not mini-equipment but a large piece of machinery. In his view there was absolutely no doubt that the backhoe utilized in this case falls within the jurisdiction of the operating engineers. Although he conceded that labourers' use and work on backhoes, it does not mean that it is labourers' work. He stressed that what was critical was what work was being performed on the backhoe. For example, if the backhoe was being used to pile garbage and drive it to the dumpster, it could be labourers' work. However, if the backhoe is being used to dig holes and scrape roads, then you are performing the work of a backhoe driver and should not be included in the labourers bargaining unit. Counsel asserted that moving propane tanks around using a backhoe is also working as a backhoe operator and as such is not labourers' work.

47Mr. Grandy conceded that he spent at least three and a half to four hours of his nine hour day operating the backhoe. He spent one to two hours working on administrative or supervisory duties and approximately three and a half to four hours of time performing general labourers' duties.

48While clearly the operation of the backhoe could be the work of operating engineers, I am satisfied that in the context of this case it can also be construction labourers' work. Accordingly any ballot cast by Mr. Grandy is to be counted.

d) Mr. Jarosaw Wolejszo, Mr. Phil Penney and Mr. Joe Barbosa

49After carefully reviewing the evidence of these three individuals I am satisfied that they were not performing bargaining unit work on the application date. While I do not think these three men intentionally misled the Board, the evidence they did give was either uncertain or unclear concerning what duties they performed on the application date. The evidence of the witnesses called by the trade union concerning what they observed these three men doing, or not doing, on the application date, is to be preferred. As I am not satisfied that they spent the majority of time on the application date performing bargaining unit work, these three men will not be included on the list of eligible voters. Therefore any ballot cast by one of these three men is to be destroyed and not counted.

50This matter is hereby referred to the Manager of Field Services to arrange for the counting of the segregated ballots in accordance with this decision. To summarize, the ballots cast by the following individuals are to be counted:

Mr. Stan Rhynold

Mr. Lee Pollock

Mr. Mike Haynes

Mr. Steve Lumbers

Mr. Gary Lumbers

Mr. Manuel Docouto

Mr. David Grandy

Mr. William Kerkhof

The ballots cast by the following individuals are not to be counted:

Mr. Aubrey Nevan

Mr. Tony Fairbarn

Mr Joe Brito

Mr. Mike Boyle

Mr. Andre Beaudry

Mr. Jarosaw Wolejszo

Mr. Phil Penney

Mr. Joe Barbosa

51Although I am not seized with regards to the section 11 application, if it is possible to schedule this issue in a timely fashion before me, the Registrar will do so. If not, the section II issue will be dealt with by another panel of the Board.