Labourers' International Union of North America, Local 183 v. National Homes Inc.
[1998] OLRB REP. MARCH/APRIL 259
1039-97-R Labourers' International Union of North America, Local 183, Applicant v. National Homes Inc., Responding Party
BEFORE: D. L. Gee, Vice-Chair.
APPEARANCES: M. Lewis and J. Vala for the applicant; Joseph Liberman, Sheryl Johnson, Pino Trentedue and Rocky Pantalone for the responding party.
DECISION OF THE BOARD; April 16, 1998
1The style of cause is hereby amended to refer to the responding party as "National Homes Inc.".
2This is an application for certification under the construction industry provisions of the Labour Relations Act, 1995 (the "Act"). By decision dated June 26, 1997, the Board (differently constituted) directed that a representation vote be taken in the following voting constituency:
all construction labourers in the employ of National Homes Group Inc. 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.
3The vote was held on June 30, 1997 as directed by the Board. Three persons, Messrs. Oliveira, Marciel and Machado, cast ballots. All three individuals were challenged by the responding party on the basis that they were not performing construction labourers' work for a majority of the day on June 23, 1997, the application date, and accordingly the ballot box was sealed. This matter was listed for hearing for the purpose of determining the status of the individuals in dispute.
Evidentiary Issue
4During the course of the applicant's questioning of Mr. Oliveira, an issue arose as to whether the applicant would be permitted to ask Mr. Oliveira leading questions. I ruled that the applicant would be permitted to put leading questions to Mr. Oliveira. My reasons for so ruling are as follows.
5Prior to July, 1996, status disputes were referred, by the Board, to a labour relations officer for the purpose of conducting examinations and preparing a report to the Board on the issues in dispute. The conduct of an officer's examination was summarized in PHI International Inc., [1980] OLRB Rep. Dec. 1789 at paragraph 10 as follows:
- ... Frequently, all that will be necessary is a check of the employer's records which will usually contain sufficient information to resolve the question. If the records are inadequate or do not provide enough information on the particular issue in dispute (for example, whether a person is 'managerial" or employed in a particular capacity) the person can be examined directly. If the individual is not currently employed by the employer, and is not, therefore, readily available to the parties the Board will normally issue a subpoena so that he can be present for examination. As a convenience to the parties, this subpoena will generally be served by an employee of the Board. Likewise, when an individual has been subpoenaed, the Board officer will generally begin the inquiry by asking a number of fairly standard questions which in most circumstances will throw some light on the employee's status. When the questioning is completed, the parties are then permitted to cross-examine the witness, as well as call such other evidence as they consider relevant to the matter in dispute....
6Following the conclusion of the officer's examinations, it was the practice that the evidence would be transcribed and the resulting report circulated to the parties for comment. Often, a single day of hearing was scheduled so that the parties could make oral submissions to the Board concerning the conclusions the Board should reach. The Board would then issue a decision based on the officer's report and the submissions of the parties.
7Commencing in July, 1996, the Board introduced a number of changes to its practice with respect to status disputes in construction industry certification applications which were aimed at reducing Board expenses. The Board's current practice is set out in Interim Information Bulletin No. 3 - Status Disputes in Certification Applications in the Construction Industry ("Information Bulletin No. 3").
8As Information Bulletin No. 3 indicates, the Board no longer subpoenas the individuals in dispute. Unless otherwise ordered by the Board, the party who asserts that an individual is on the list of voters is responsible for ensuring that individual's attendance at the Board and calling the individual as a witness. Further, officers are no longer appointed to conduct examinations and the evidence adduced is no longer transcribed. Instead, where it is necessary for evidence to be adduced with respect to the issues in dispute, a Board hearing is held. This change has the effect of saving officer time and avoiding the costs and delays associated with preparing a transcript of the officer examinations.
9The Board decided to create a policy with respect to which party is responsible for producing the individuals in dispute and calling them as witnesses in order to ensure that the parties would be in a position to determine, in advance of the hearing, where such responsibility lies. It was decided that the party that asserts that an individual is on the list would be responsible for producing the individual and calling him/her as a witness as it is presumed that, where a party is asserting an individual is on the list, that party has some evidence in support of its position and further that there is an open line of communication between the party and the individual. Where either or both of the presumptions are true, the party asserting that an individual is on the list would have a basis from which to question the individual and more readily elicit evidence from him/her relevant to the dispute. Recognizing, however, that the Board's policy may result in a party being required to call an individual who testifies to a state of events with which the party calling the witness does not agree, Information Bulletin No. 3 was drafted so as to stipulate, in bold print, that "[t]here may be circumstances in which a party calling a witness is allowed to cross-examine the individual".
10In the case of Mr. Oliveira, the applicant was required to secure his attendance at the hearing and call him as a witness because the applicant asserts that he is on the list. However, it became clear very early on in the applicant's examination of Mr. Oliveira that the applicant and Mr. Oliveira were not agreed as to what work Mr. Oliveira performed on the date of application. The applicant was asserting (and intended to call evidence, to this effect) that Mr. Oliveira spent a significant portion of the date of application cleaning out a house. Mr. Oliveira was testifying that he spent no more than 40 minutes cleaning out the house and spent the remainder of the day correcting deficiencies. Clearly, Mr. Oliveira was not testifying to a factual scenario with which the applicant agreed.
11When it became clear that Mr. Oliveira's evidence was not consistent with the applicant's assertion of what Mr. Oliveira was doing on the date of application, counsel for the applicant sought to cross-examine Mr. Oliveira. Counsel for the responding party objected.
12In my view, it was appropriate to permit the applicant to cross-examine Mr. Oliveira. The fact that Mr. Oliveira was called by the applicant as a witness was solely as a result of the Board's policy requiring it to do so. The Board's policy was devised to facilitate the conduct of hearings and the elicitation of evidence, not to prevent a party from exploring evidence adverse to its position. Further, the Board's policy anticipates situations where the party required to call an individual in dispute will be permitted to cross-examine the individual. The Board requires that the party who asserts that an individual is on the list should call that individual as a witness. As the Supreme Court of Canada remarked in R. v. Coffin, 1956 CanLII 94 (SCC), [1956] S.C.R. 191, 114 C.C.C. I, although there is a general rule of evidence against a party asking its own witness leading questions, courts have a non-reviewable discretion to relax it whenever necessary in the interests of justice. Pursuant to section 111(2)(c) of the Labour Relations Act, 1995, the Board has the power to accept evidence as it considers proper, whether admissible in a court of law or not. In the present case, it was my view that it made no sense to prohibit the applicant from cross-examining Mr. Oliveira when he was giving evidence adverse to the applicant's interests, and permit only the responding party, which Mr. Oliveira's testimony favoured, to cross-examine him. It was my determination that the interests of justice would be best served by permitting the applicant to cross-examine Mr. Oliveira and I so ruled.
Merits
13At the commencement of the hearing, the parties' positions were as follows. It was the responding party's position that the individuals in dispute spent a majority of the date of application engaged in "service work" and that "service work" is not the work of a construction labourer. Without intending to exhaustively define the term, '~service work" generally includes the rectification of deficiencies immediately prior to or following the closing of a home and the performance of repairs to the house for a period of two years following closing pursuant to the HUDAC warranty applicable to all new homes. The applicant took the position that it is not accurate to say that service work as a whole is not the work of a construction labourer. Rather, some "service work" is the work of a construction labourer whereas other '~service work" may not be. In the applicant's submission, the Board should examine the work performed by the individuals in dispute on the date of application and determine whether a majority of the individuals' time was spent performing work that constitutes construction labourers' work. Having regard to the evidence called and challenged by the applicant, it was apparent that the applicant did not consider many of the tasks pertormed by the individuals in dispute in connection service work to be the work of a construction labourer.
14On the day before the parties presented final argument, the Board's decision in Mattamy Homes Limited. Board File No. 0083-97-R, February 4, 1998, as yet unreported, was released [now reported at [1998] OLRB Rep. Jan./Feb. 70]. The applicant in the instant case was also the applicant in Mattamv Homes Limited and was seeking its standard non-ICI construction labourers bargaining unit. In Mattamy Homes Limited, the applicant took the position that individuals who were performing service work were not within a construction labourers' bargaining unit on the date of application on the basis that they did not spend a majority of the day engaged in the work of a construction labourer. Mattamy Homes Limited took the position that the work performed by the individuals in dispute was the work of construction labourers such that they were performing bargaining unit work for a majority of the day on the date of application. For the reasons set out in the decision, the Board determined that it was appropriate to place the individuals in dispute in the labourers' bargaining unit.
15Thus, on the day of final argument, the applicant changed its position from that outlined above to argue that the Board need not examine the tasks performed on the date of application by the individuals in dispute because the Board in Mattamy Homes Limited determined that “service work" as a whole is construction labourers' work and that such determination is sufficient to lead to the conclusion in the instant case that the three individuals in dispute spent a majority of their day on the date of application performing construction labourers' work.
16The responding party argued that Mattamy Homes Limited is wrong and argued that the correct approach is to determine the status of the individuals in dispute based on whether or not they spent a majority of their time on the date of application performing construction labourers' work and that, as demonstrated by the industry practice set out below, construction labourers' work does not include service work. The parties' arguments are set out in greater detail below.
17For the reasons set out below, it is my view that the position taken by the applicant at the commencement of the hearing is the appropriate approach. It cannot be said that "service work" is not the work of a construction labourer because the institutional parties have, in limited circumstances, treated it that way. Rather, service work should be analyzed and considered in the same fashion as the Board considers any other work performed on the date of a certification application. If the "service work" performed can also be said to be the work of a construction labourer, and if the individual spent a majority of his day engaged in the work of a construction labourer, then that individual is on the list of eligible voters. In the present case, assuming the individuals to have performed the work asserted by the responding party, it is my determination that they spent a majority of their day performing work falling within a construction labourers' bargaining unit and are therefore properly on the list of eligible voters.
Work Performed
18National Homes Inc. is a low-rise residential house builder. On the date of application, one of the individuals in dispute, Joe Oliveira, was working on a job site referred to as the "Mississauga Site". The remaining two individuals, Dinis Marciel and Victor Machado, were working on a job site referred to as the “Brampton Site". Messrs. Oliveira and Machado are employed by National Homes Inc. as servicemen. Mr. Marciel is employed as a labourer. As of the application date, both the Mississauga and Brampton job sites were in the very final stages. Many of the homes on both job sites had closed and were occupied.
19I have assumed the responding party's assertions concerning the work which was performed on the application date to be factually correct. Thus, on the application date, Mr. Oliveira arrived at Lot 12 at approximately 8:00 a.m. Mr. Oliveira cut out a spot in the floor, replaced it with a piece of plywood and cleaned up the mess he made. He left Lot 12 at approximately 8:40 and went to Lot 258. Lot 258 was scheduled to close on the application date. Mr. Oliveira had been provided with the pre-delivery inspection report (the "PDI") by the customer service co-ordinator and directed to rectify the deficiencies noted thereon. As a result, Mr. Oliveira spent the next six hours performing a number of jobs including: finding missing plugs for the sinks and tubs and spindles for the toilet paper holders; checking to ensure the existence of phone wires in the basement; touching up scratches in the paint and stucco; removing marks on doors and stains from carpets; adjusting doors and drawers; installing trim and kick plates; applying silicone and caulking around bathroom fixtures; and replacing burnt out light bulbs. Most of the tasks performed took 10 to 15 minutes. The task which took the longest period of time to perform was fixing the stucco on the ceiling which took an hour and a half. A few of the items on the list had already been looked after. The garage door, which the PDI indicated had to be installed, had in fact been installed. Carpet which was missing from the basement stairs had been installed. Three painting deficiencies had been rectified by the painting subcontractor. Mr. Oliveira indicated that any painting jobs which would take two hours or more are done by the painting subcontractor. After Lot 258, Mr. Oliveira proceeded to Lot 274 where he replaced trim that had fallen off of an outside window of a house that was occupied. Replacement of the trim took approximately one to one and a half hours.
20Victor Machado and Dinis Marciel worked together all day on the date of application. They started work at approximately 7:30 am. and spent one to two hours installing window wells around basement windows following which they spent approximately one hour painting the construction trailer which was being converted for use as the service trailer. Following their morning break, Messrs. Machado and Marciel spent approximately an hour cleaning garbage up from around the exterior of the trailer. Some of the garbage was used for service work and some of it was construction debris or related to construction activity. The next hour was spent cleaning construction and service materials out of the trailer and putting it in the sales office. After lunch, Messrs. Machado and Marciel spent the afternoon repairing deficiencies. The work included filling in holes in the exterior brick wall of houses with cement, repairing trim on windows and caulking windows. Messrs. Machado and Marciel spent approximately four and a half hours performing such deficiency work.
Industry Practice
21There was little if any dispute between the parties as to the prevailing industry practice regarding servicemen for the past decade. The responding party relies on the industry practice in support of its assertion that "service work" is not the work of a construction labourer.
22The current collective agreement between the Toronto Residential Construction Labour Bureau and the Labourers' International Union of North America, Local 183 (the "Low-Rise Agreement") stipulates that final house and window cleaning and on-going housekeeping maintenance are exempt from the subcontracting provisions of the agreement. While the applicant does not agree with the responding party's assertion that service work is thus excluded from the agreement, the applicant agrees that there is agreement between the parties that full-time servicemen are considered to be outside of the construction labourers' bargaining unit.
23Full-time servicemen are generally multi-skilled and have considerable contact with the homeowners. Servicemen may drive a company vehicle stocked with most of the supplies required to rectify deficiencies and often carry a pager. In the event of layoffs, the labourers are generally laid off first with the servicemen being the last to be laid off.
24The Board was advised that the parties have a common understanding as to how service work is dealt with in the context of a certification application. An individual who spends a majority of his day performing service work, regardless of whether that individual is a full-time serviceman who spends the majority of the day performing his normal job functions or a labourer who, on the date of application, spends the majority of his day performing service work instead of labourers' work, is not considered to be an employee in the bargaining unit. Likewise, an individual who spends a majority of his day performing labourers' work, regardless of whether that individual is a full-time serviceman who spends a majority of his day performing labourers' work instead of his usual job functions or a labourer who spends the majority of the day performing his usual work, is considered to be an employee in the bargaining unit. The same treatment applies when any other trade union applies for certification.
25Following certification, where the builder is large enough to employ full-time servicemen they are not typically considered to be in the bargaining unit. Where the builder is smaller such that the individuals who perform the service work are also engaged in the performance of labourers' work, such individuals would typically be considered to be in the bargaining unit.
Argument
26As indicated above, the applicant argued at the commencement of the proceedings that service work could include the work of a construction labourer and that the work performed must be examined to determine if such was the case and the amount of time so spent, but changed its position following the release of Mattamy Homes Limited to argue that all service work is construction labourers' work.
27The responding party argued that Mattamy Homes Limited is wrong and should not be followed. The responding party argued, by way of example, that it is simply incorrect to say that the touching up of paint or installation of wood trim is the work of a construction labourer. These tasks are clearly the work of the painting and carpentry trades respectively. Further, the responding party submits that it is incorrect to assert that tasks such as the locating and insertion of a sink plug or the replacement of a burnt out light bulb are construction work. Given that the majority of the tasks performed by a serviceman are, in the responding party's submission, the work of a construction trade other than the labourers or are not construction work at all, the responding party submits that there is no logic to the assertion that a serviceman is performing the work of a construction labourer.
28The responding party relies on the industry practice as supportive of the assertion that service work is not construction labourers' work and that the bargaining unit does not encompass servicemen. The Low-Rise Agreement excludes maintenance and clean-up from the subcontracting provisions and there has been an understanding in existence between the parties for a decade to the effect that servicemen are not in the construction labourers' bargaining unit. In response, the applicant argued that the scope of work covered by the Low-Rise Agreement is irrelevant as parties are always free to alter the scope of the bargaining unit following certification. With respect to the prevailing industry practice, the applicant indicated that, if it was the Board's determination that servicemen are construction labourers, the industry would have to adapt.
29In response to the Board's suggestion in Mattamy Homes Limited, that the situation is "unworkable", the responding party points out that the present situation has worked quite successfully for a decade. Further, it is suggested that there is a means by which the servicemen could obtain trade union representation. A trade union could apply for a unit of all unrepresented employees. In the responding party's submission, the answer to the situation is not to thrust bargaining rights on the applicant when it has not sought to represent the individuals in question.
30Concerning the Board's decision in PHI International Inc., [1980] OLRB Rep. Dec. 1789, which was relied upon by the Board in Mattamy Homes Limited in support of the conclusion that service work is the work of a construction labourer, the responding party points out that it was decided prior to Gilvesy Enterprises Inc., [1987] OLRB Rep. Feb. 220 and E & E Seegmiller Limited, [1987] OLRB Rep. Jan. 41 wherein the Board eliminated the use of a "representative period" in determining whether an individual is in the bargaining unit and indicated that it would henceforth use a test which focuses on what the individual spent a majority of his time doing on the date of application. The responding party thus argues that post Gilvesy and E & E Seegmiller, the Board applies the "majority of time" test and only finds servicemen to be in the labourers' bargaining unit if they in fact spent a majority of their day performing labourers' work. The responding party relied on the Board's decisions in Wravmar Construction and Rental Sales Ltd., [1989] OLRB Rep. June 682 wherein the Board commented that an individual will be considered to be in whichever bargaining unit he spends the most time in even where such does not constitute the "majority" of his day and Eddie Bauer. [1989] OLRB Rep. Oct. 1041 wherein the Board ruled that the "majority of time test" applies where the individual spends a portion of his time in non-construction related activity.
31The responding party relies on the Board's decision in Nu-West Development Corporation Ltd., [1983] OLRB Rep. May 692 in support of its position that servicemen are not construction labourers. In Nu-West Development Corporation, the Board described the work performed by the individuals in question as follows:
- The three employees in question deal essentially with the HUDAC warranty for new homes. Thus, the prime reason for their job is to conduct a series of four inspections at periods of two weeks, three months, six months and 12 months of various purchasers of the homes from the respondent employer. In the course of their duties in this regard they are required to deal with the purchasers of the homes in question. It is also part of their duties to effectuate any repairs that they can perform, but where they are unable to perform such repairs then call in the 'appropriate trades" to perform the repairs. In this respect they perform work similar to the construction labourers employed by the respondent to deal with the cleaning up of the project at the end of the construction season.
The Board concluded that they were not construction labourers but rather "service employees" and as such were excluded from the bargaining unit. The Board distinguished PHI International Inc. on the basis that the individuals in issue in PHI International Inc. did clean up and repairs post closing as part of their normal job whereas the "servicemen" did not spend any of their time cleaning.
32The Board was also provided with copies of Darrow Developments Ltd., [1987] OLRB Rep. Oct. 1238, Ming Sun Holdings Inc., [1987] OLRB Rep. Dec. 1585 and Runnymede Development Corporation Limited, [1988] OLRB Rep. Sept. 976 in support of the proposition that servicemen are not construction labourers.
Decision
33As indicated above, I do not accept the position advanced by the responding party to the effect that "service work" as a whole, regardless of the tasks performed, is not construction labourers' work. While I recognize that, for in excess of a decade, the industry has treated service work, when performed by an individual on a full-time basis, as something discrete from the work of construction labourers, and that such arrangement, from the industry's perspective, has been eminently workable, the Board is not constrained by such arrangements. In the course of determining who is in the unit for the purposes of a certification application, the Board has always included all employees who were performing bargaining unit work on the date of application for a majority of the day in the unit. I am not persuaded that the Board should depart from this practice in this case.
34I equally do not accept the position advanced by the applicant at the stage of final argument to the effect that all service work is the work of a construction labourer such that there is no need to analyze the nature of the work performed. Again, I am simply not persuaded that this application should be treated differently from any other application for certification.
35Thus, I accept the position advanced by the applicant at the commencement of the proceedings. The work performed on the application date is to be reviewed and a determination made as to whether the work is that of a construction labourer. I further accept the comments of the Board in PHI International Inc. and Mattamy Homes Limited to the extent that they stand for the proposition that many of the tasks performed by servicemen are not tasks that fall within the core of a trade but rather are tasks that might be performed by a trade as peripheral to their core work or might be performed by a construction labourer. Many of the tasks typically performed by a serviceman are tasks which fall within an area of overlap between the work of the trades and the work of construction labourers.
36Support for the determination that construction labourers do many of the tasks performed in connection with service work is found in the industry practice recited by the parties and set out above. Where service work is performed by an individual on a part-time basis, which appears to be the norm for small home builders, that individual is a labourer and is covered by the Low-Rise Agreement. When there is more service work to be done than can be managed by those designated the title "serviceman", labourers are assigned to assist. On the facts before me, Mr. Machado, a labourer, was performing service work on the date of application. Thus, it is apparent that the tasks associated with service work, are tasks commonly performed by labourers and can thus constitute labourers work.
37I turn then to an examination of the facts at issue in the instant case to determine if the individuals in dispute spent a majority of the day on the date of application performing bargaining unit work.
38Mr. Oliveira spent six hours on the date of application engaged in repairing deficiencies. They are detailed in paragraph 19 above and thus I will not repeat them here. The work performed required him to engage in a multiplicity of relatively low skilled tasks each of which took a very small period of time to complete. Setting aside the stucco repair to the ceiling with respect to which I make no comment, none of the remaining tasks can be said to fall within the core of a trade's work jurisdiction. They are tasks falling within the area of overlap between the work performed by labourers and the work performed by the trades. It is thus my determination that, of the maximum eight hours and ten minutes that Mr. Oliveira worked on the date of application, he spent a minimum of four and a half hours, or a majority of his day, performing bargaining unit work. He is thus properly on the list of employees eligible to vote.
39Turning to the work performed by Messrs. Machado and Marciel, having regard to my determination that service work can constitute the work of a construction labourer, there is little question that Messrs. Machado and Marciel spent the majority of their day engaged in work in the bargaining unit. The time spent installing window wells is the work of a construction labourer as is cleaning up garbage and moving materials. Likewise, the time spent patching holes and caulking windows in the afternoon was time spent engaged in the work of a construction labourer. Thus, it is my determination that Messrs. Machado and Marciel spent the majority of the day on the date of application engaged in the work of a construction labourer and are also properly on the list.
40In the result, it is my determination that all three individuals in dispute spent a majority of their time on the application date performing bargaining unit work and accordingly are on the list of employees for the purposes of the vote.
41This matter is referred to the Manager of Field Services to arrange for the counting of the ballots in accordance with this decision.