1061‑98‑R International Brotherhood of Electrical Workers, Local 586, Applicant v. Megatech Electrical Ltd., Responding Party v. Construction Workers Local 52, affiliated with the Christian Labour Association of Canada, Intervener.
BEFORE: R. O. MacDowell, Chair.
APPEARANCES: Michael Gottheil for the IBEW; John Barrack for Megatech; and Elizabeth Forster for the Intervener CLAC.
DECISION OF THE BOARD; April 23, 1999
I
This is an application for certification in which IBEW Local 586 seeks to "carve out" its traditional "craft bargaining unit" from a broader‑based grouping of employees currently represented by CLAC. The application is made pursuant to the construction industry provisions of the Labour Relations Act, and was filed with the Board on June 16, 1998 ("the application date").
In a decision dated June 22, 1998, the Board (differently constituted) made a number of preliminary determinations confirming that the application was governed by the construction industry provisions of the Act. Those determinations are not controversial and need not be repeated here. It suffices to say that, among other things, the Board determined a voting constituency and directed that a representation vote be taken. The voting constituency is defined this way:
all journeymen and apprentice electricians and journeymen and apprentice linemen in the employ of Megatech Electrical Ltd. in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario and all journeymen and apprentice electricians and journeymen and apprentice linemen in the employ of Megatech Electrical Ltd. in all other sectors of the construction industry in the Regional Municipality of Ottawa‑Carleton, and the United Counties of Prescott and Russell, save and except non‑working foremen and persons above the rank of non‑working foreman.
The Board then went on to say:
The responding party is directed to post copies of the application for certification, this decision and the "Notice to Employees of Application and of Vote" in a location or locations where they are most likely to come to the attention of those individuals who are eligible to vote.
All individuals who were employed by Megatech Electrical Ltd. and at work in the voting constituency on June 16, 1998 are eligible to vote.
Voters will be asked to indicate whether they wish to be represented by the applicant or the intervener in their employment relations with the responding party.
The voting constituency reflects the "standard" "craft" bargaining unit to which the applicant is entitled under sections 9(3) and 158 of the Act. The voter eligibility rule (in paragraph 9) is the standard one that the Board applies in all construction industry cases. The statute requires the Board to hold the vote within 5 days of the filing of the application. The scheme of the Act contemplates considerable expedition.
The representation vote took place, as directed, on June 24, 1998. There is no dispute about the regularity of the balloting. However, there is a dispute about whether Paul Dal‑Cin and Bruce Quackenbush were entitled to vote. Their ballots have been segregated and not counted pending receipt of the parties' representations.
The positions of the parties can be simply stated.
The union asserts that Mr. Dal‑Cin was not entitled to vote because he was not at work, in the bargaining unit, on the application date, (June 16, 1998) ‑ or, indeed, at any other time proximate to the application for certification. Mr. Dal‑Cin has not been actively employed since the fall of 1997, many months before the union applied for certification, and, in fact, he died not long after the union's certification application. He never returned to work.
The union submits that Mr. Dal‑Cin was not an "employee" "in" the "bargaining unit" defined for the purposes of this application, and, as it turned out, he never will work in that unit. And he clearly does not meet the voter eligibility requirements spelled out in the Board's decision of June 22, 1998. So, in the union's submission, Mr. Dal‑Cin was not entitled to cast a ballot.
The union asserts that Mr. Quackenbush was not entitled to vote either, because he was not a "journeyman or apprentice electrician" within the commonly understood meaning of those terms, or within the meaning of the Trades Qualification Act.
The union concedes that Mr. Quackenbush was at work on the application date. In this respect, Mr. Quackenbush is in a different position than Mr. Dal‑Cin. However, the union says that Mr. Quackenbush was not doing the work of an electrician or apprentice, and therefore he was not "in the bargaining unit" on the application date.
CLAC and Megatech dispute these propositions. In their submission, Mr. Dal‑Cin and Mr. Quackenbush should both be entitled to vote.
CLAC and Megatech concede that Mr. Dal‑Cin was not actively at work on the application date, or at any time proximate to the application date. They acknowledge that Mr. Dal‑Cin had been off work, for months, before the application date, and that he eventually died (of cancer) without ever returning to active employment. However, CLAC and Megatech assert that, Mr. Dal‑Cin should nevertheless be entitled to vote because, they say, he is a journeyman electrician who would have been at work in the bargaining unit on the application date, if he had not been absent from work because of a disability.
CLAC and Megatech argue that "but for" Mr. Dal‑ Cin's disability, he "would have been" actively at work in the bargaining unit on June 16, 1998, and that, had he been there, he "would have been" entitled to cast a ballot. In their submission, he is being "disadvantaged" because of his prolonged illness, and it is "discriminatory" to deny him an opportunity to vote. CLAC and Megatech rely on the anti‑ discrimination provisions of the Ontario Human Rights Code and the Charter of Rights and Freedoms.
CLAC and Megatech submit that Mr. Quackenbush is also entitled to vote because, contrary to the IBEW's submission, he is, in fact, an "apprentice electrician", as that term is understood in a certification context.
CLAC and Megatech assert that the bargaining unit definition is a creation of the Board, and that Mr. Quackenbush was an "apprentice" as the Board customarily defines that term. Moreover, Mr. Quackenbush's employment as an "apprentice" was not contrary to the Trades Qualification Act, because he made an application for apprenticeship in a timely fashion. CLAC and Megatech rely on the approach to bargaining unit determination outlined in cases such as Heritage Mechanical [1995] OLRB Rep. March 272, and Marsil Mechanical Inc., [1997] OLRB Rep. July 636.
I will examine these arguments in a little more detail below. First, it might be useful to briefly describe how the Board goes about determining the description and composition of construction industry bargaining units. By description, I mean the words used by the Board to describe the unit of employees appropriate for collective bargaining. By composition, I mean the number of employees that fall within that unit for the purposes of a certification application.
II
On every application for certification, the Board is required to determine the unit of employees appropriate for collective bargaining, then to calculate the level of trade union support in that unit. The bargaining unit is defined with reference to the statute and broad labour relations criteria. Union support is assessed by means of a representation vote.
However, in the construction industry, bargaining‑unit determination is a more complex exercise than it is in a manufacturing setting, because the construction industry has a number of features which make it unique, including: the predominance of "craft unionism" and thus "craft bargaining units"; a special regulatory regime that shapes the way in which construction industry bargaining units must be framed; and an unusually fluid work force, so that the number of individuals at work on a job site can vary significantly from day to day ‑ as can their work assignments on any given day.
Craft bargaining units are specifically addressed in section 9(3) of the Act which provides as follows:
Any group of employees who exercise technical skills or who are members of a craft by reason of which they are distinguishable from the other employees and commonly bargain separately and apart from other employees through a trade union that according to established trade union practice pertains to such skills or crafts shall be deemed by the Board to be a unit appropriate for collective bargaining if the application is made by a trade union pertaining to the skills or craft, and the Board may include in the unit persons who according to established trade union practice are commonly associated in their work and bargaining with the group, but the Board shall not be required to apply this subsection where the group of employees is included in a bargaining unit represented by another bargaining agent at the time the application is made.
Section 9(3) must be read together with section 158, which, together, determine how "ICI" and "non‑ICI" bargaining units must be structured (i.e. how individual bargaining‑unit determinations fit within the prescribed province‑wide bargaining scheme).
The description of a craft bargaining unit is determined by reference to the historical work jurisdiction of the various crafts: carpenters, sheet metal workers, plumbers, electricians, and so on. A "carpenters" or "electricians" bargaining unit is composed of individuals who are doing "carpenters'" or "electricians'" work. And if the requirements of section 9(3) are met, a craft union may be entitled to the craft bargaining unit pertaining to its trade.
The composition of a construction industry bargaining unit is determined by ascertaining who was an "employee", "in the bargaining unit" (or voting constituency), on the application date. It is a two‑fold test that requires the Board to look at:
(a) who was actively at work on the application date, and
(b) what work those individuals were doing on that date.
To be "in" a craft bargaining unit, an individual has to be doing the work of the trade on the application date.
In the construction industry, the Board is not required to look at who was at work on any other date (see section 128(2) of the Act which contemplates that the construction labour force may fluctuate). Nor is it enough to be an "employee" in some common‑law sense, or to be "on the employer's payroll", or to be "working" in some capacity for the employer. To be "in" a construction industry craft bargaining unit, the person in question must be: actively at work, in the trade, on the date the application for certification is filed.
In Smith Construction Company, [1984] OLRB Rep. March 521, the Board explained the first branch of the test, in a long passage to which I might usefully refer:
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.
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 that 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 disbursement 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" [in the bargaining unit] 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.
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.
(See also: Ken Anderson Electric Inc., 1 OLRB Rep. Sept./Oct. 846.)
The practice described in Smith Construction has been in place now for almost 50 years and admittedly involves a rather stark, "bright line test". But without it, (or some equally rigid rule), the Board simply would not be able to process the hundreds of construction industry certification applications that it receives every year. For as the Board noted in Smith Construction: time really is "of the essence" for construction industry certification applications (which is why the Board has special powers to ensure expedition ‑ see section 110(18)‑(20) of the Act).
In the construction industry, there are compelling labour relations reasons for a simple (if rough and ready) approach that permits the Board to deal with certification matters expeditiously ‑ otherwise the work (and workers) to which bargaining rights relate will be gone, and the entire exercise will become academic. Moreover, in the construction industry, there is a real incentive on the employer's part to slow down the process in order get through that job, or that construction season, without a union presence. As Estey J.A. put it in Journal Publishing Company (March 31, 1977, unreported): "labour relations delayed is labour relations defeated and denied". But that is especially so in the construction industry.
This is not to say that employers routinely raise groundless claims in order to frustrate construction industry certification applications ‑ although there will always be some of that, when the benefits of delay are so obvious and the costs to the employer are so negligible. The point is: in a fluctuating work setting, there must be clear and simple rules, or the process will inevitably sink under layers of litigation. Process will defeat purpose, and the right to organize will become illusory. The context demands a "bright line test" ‑ as the Divisional Court acknowledged in Colautti Construction (1986), 86 CLLC ¶14,065:
The Board was required to ascertain the employees in the bargaining unit. The Employer attacks the Board's finding because two employees were not included. They were not at work on the date of the application. One was on vacation and the other was away due to illness.
Employment in the construction industry is of a transient nature. The Board has adopted a policy of determining the bargaining unit in that industry by ascertaining those employees who are at work on the date of the application. Different methods are used in different industries. Once again, the policy may appear to be draconian but it has been instituted because of the transient nature of the industry and the need to have a certain method in order to avoid protracted disputes. The method has been in place for a number of years and is well recognized. For example, it is known that bad weather or lay‑offs may have a significant effect on an application by the union. The determination of the members of the bargaining unit was within the jurisdiction of the Board and I am unable to say that the application of its policy to the situation of the Employer was patently unreasonable.
The Court recognized that there is a practical and policy underpinning to what an outsider might consider a "Draconian" approach. It is reasonable, sensible and necessary in the special context of the construction industry.
However, where the applicant is a "craft union" entitled to a "craft bargaining unit" (again see sections 9 and 158 of the Act), it is not enough to determine who was actively employed on the application date; it is also necessary to determine which employees, at work, on the application date, were actually working at the particular "trade" or "craft" ‑ which is to say, which employees were doing "bargaining unit work" on the application date.
That is essentially a factual question, requiring the Board to examine what work functions the employees were performing, to see whether those functions fall within the historical work jurisdiction of the target trade (carpenter, plumber, electrician, etc.). And, of course, just as the employment of the individual can be quite irregular or unpredictable, so can the work functions to which s/he is assigned on any given day.
For example, it is not at all unusual for an individual to be performing the work of a carpenter (say) for a day or two, then to be performing the work of a "labourer", or to have a mix of functions on any given day. A "certified journeyman" (see below) may not actually be working at his/her "trade". Nor are the trades themselves watertight compartments containing mutually exclusive bundles of work. Each trade has a core jurisdiction distinctive to itself; but, on the periphery, particular functions can be performed by more than one trade.
So, where the applicant is entitled to a "craft" bargaining unit, the Board has to characterize the "work" that the individuals are doing on the application date.
In the construction industry, therefore, the Board gives a rather precise and literal reading to the words "employee in the [craft] bargaining unit [or voting constituency]", requiring that the individual in question:
(a) actually be at work on the application date; and
(b) actually be performing the work of the trade for a majority of his/her time on the application date.
If the disputed individual meets these requirements, then s/he is considered to be in the craft bargaining unit for the purposes of certification under the Labour Relations Act. Conversely, if the individual is not actively at work on the application date, or is at work but is not performing the work of the trade on that day, then s/he is not in the craft bargaining unit for the purposes of a certification application.
In recent years, the Board has added one additional element to the equation, in order to make its approach to craft bargaining units congruent with related legislation governing certain trades to which those collective bargaining units relate (the so‑called "compulsory certified trades": plumbers, electricians, sheet metal workers, boilermakers and operating engineers).
Under the Trades Qualification Act, certain work in certain trades can only be done "lawfully" by a journeyman or apprentice who is registered under that Act. An individual requires a legislated form of accreditation in order to do the work, and it is improper to assign the work to someone who does not have the proper accreditation. But because craft bargaining units are also defined with reference to "work", the requirement for a licence (without which performing the work would be unlawful) has influenced the way in which the Board treats workers in these particular trades.
If the work being performed on the application date is "bargaining unit work", then in the case of these compulsory certified trades, the Board has also looked at whether the individuals in question actually were "journeymen" or "apprentices" within the meaning of the regulatory statute ‑ that is, the Board has looked at whether they have the required licences that make them a "certified" tradesperson, or they have otherwise met the requirements of the statute pertaining to that trade. The Board has looked at whether they are "lawfully" entitled to do the work that they are performing. In this respect, the Board's craft unit definition is influenced by a collateral legal framework pertaining to certain trades.
The reasoning in these cases seems to be that if an individual is not "lawfully" performing the work of one of these compulsory certified trades, then that worker should not be included in the "craft bargaining unit" that pertains to that trade and that kind of work. A worker should not be treated as, say, an "electrician", if s/he does not have the required licence or otherwise meet the legislated criteria for that status. To put the matter colloquially: work performed "unlawfully" ‑ contrary to the Trades Qualification Act ‑ "doesn't count". And in order to meet the requirements of the Trades Qualification Act, a worker has to either be a journeyman as the law defines it, or s/he must make an application for apprenticeship (with the Ministry of Skills Development) within 90 days of beginning to perform the work of the trade.
With this general background, then, I turn to the status of the disputed individuals in the instant case.
It will be convenient to look at the disputed individuals one by one.
In weighing the evidence respecting those individuals, I have taken into account the relative credibility of the various witnesses, as well as the difficulty which anyone would have in recalling unremarkable events that occurred many months before. Where workers move from job to job and work patterns shift from day to day, it would be unrealistic to demand firm and unequivocal memories of what particular workers were doing on any given day. And having considered the testimony, I do not think that any of the witnesses were being disingenuous, or were seeking to mislead the Board. To the extent that there were inconsistencies, I attribute them to the normal failures of recollection, or differences in perception.
Nevertheless, on balance, I prefer the evidence of Mr. Quackenbush over that of Mr. Ventura ‑ who fairly conceded that he did not have a firm recollection of the particular day in question. Nor was it his job to pay attention to the work functions performed by other workers. Thus, I am satisfied that the best evidence of what Mr. Quackenbush was doing on June 16, 1998 comes from Mr. Quackenbush himself.
The evidence respecting Mr. Dal‑Cin (such as it is) is not really in dispute.
III
Bruce Quackenbush
Bruce Quackenbush was hired by the company a couple of months before the union applied for certification, and he initially worked as a materials handler and general labourer. There is no assertion that these functions constitute "bargaining unit work", or that during this period Mr. Quackenbush could be considered a journeyman or apprentice electrician. Had he done no other work, he would not be considered to be an employee in the IBEW bargaining unit.
In late March and again in early May 1998, Mr. Quackenbush was encouraged by the company to improve his future prospects by enrolling as an electrical apprentice. He was told that he should "make something of himself", or he would be a labourer all his life. He was advised that, if he acquired a trade, he would have a brighter future.
Mr. Quackenbush accepted that advice. He was unsure about whether he should choose the plumbing or electrical trade, because both possibilities were attractive to him. But the company was more interested in his becoming an electrician, and that is what Mr. Quackenbush ultimately decided to do.
On or about May 22, 1998, Phil Harris, the company's project manager, approached the Ministry of Skills Development, to initiate the process by which Mr. Quackenbush would become a registered electrical apprentice. Harris arranged for Mr. Quackenbush to visit the Ministry himself a couple of weeks later, in order to complete the required documentation. However, that visit to the Ministry was delayed because: it took some time for Mr. Quackenbush to obtain the necessary school records from New Brunswick; the relevant Ministry official is only available on Fridays; the Ministry official was on vacation during this period; and Mr. Quackenbush was experiencing a number of personal problems which distracted his attention. In the result, the final documentation was not completed until July 27, 1998 ‑ about six weeks after the union's application for certification.
However, it is evident that Mr. Quackenbush had formed the intention to become an electrical apprentice well before the application for certification was filed, that he took active steps to pursue that goal, and that he ultimately completed the required registration in late July. One cannot conclude that this career choice was a response to the union organizing campaign, or that it was prompted by the employer to undermine that campaign. On the contrary. Mr. Quackenbush took steps to become an electrical apprentice well before the union arrived on the scene.
There is no dispute that Mr. Quackenbush was at work on the day that the certification application was filed.
So what was he actually doing on that day?
On the basis of the evidence before me, I find that on June 16, 1998, Mr. Quackenbush was engaged for part of the day on the pre‑installation assembly of electrical light fixtures, including the positioning of end plates and the re‑installation of socket wires that had been displaced during shipping. For another portion of the day, Mr. Quackenbush was assisting a journeyman electrician to install these light fixtures. I am satisfied, therefore, that on June 16, 1998, Mr. Quackenbush was predominantly employed doing "bargaining unit work" ‑ which is to say, the work of an apprentice electrician.
If one looked only at the nature of the work performed by Mr. Quackenbush, one would have to conclude that, on the application date, he was an "apprentice electrician" (i.e. doing the work of an apprentice electrician). In other words, if one ignored the Trades Qualification Act altogether, and looked only at work functions, Mr. Quackenbush would be in the bargaining unit. He was actively at work, on the application date, performing the kind of work associated with the electrical trade ‑ "bargaining unit work".
However, was it unlawful for him to perform such work without a licence? And would the application of the Trades Qualification Act exclude Mr. Quackenbush from an "electricians' bargaining unit"? In Heritage Mechanical, [1995] OLRB Rep. March 272, the Board made this observation:
Section 9 of the Trades Qualification Act appears to permit a person to work at a trade for which an apprenticeship program is established without a certificate of apprenticeship or qualification in the trade for up to three months. Accordingly, a person who is not a journeyman or registered apprentice may lawfully work in a compulsory certified trade for up to three months, and is therefore properly included on the list of employees for certification purposes for up to three months from the day s/he begins to work in the trade.
Similarly, and more recently, in Marsil Mechanical, [1997] OLRB Rep. July/August 636, the Board observed:
In the result, a person who is not an apprentice or journeyman plumber or steam fitter on the day of the application, but who spent a majority of his/her time on the date of the application working in one of those trades, is properly included in the bargaining unit herein and was entitled to vote, so long as that person had been working or employed in the trade for not more than three months.
In each case the Board identified a 90‑day window, within which someone could do the work of a compulsory certified trade without running afoul of the Trades Qualification Act. See also, and more recently: Rolan Plumbing, [1998] OLRB Rep. July 711.
In the instant case, there is little reliable evidence about what Mr. Quackenbush may have been doing on days other than June 16, 1998, but within the 90‑day period before his formal registration as an apprentice on July 27, 1998. The witnesses' recollections in this regard were simply too vague to be reliable ‑ which is hardly surprising since no one was really observing Mr. Quackenbush, nor was anyone particularly concerned with what he was doing from day to day. Accordingly, I am unable to conclude that Mr. Quackenbush was working in the electrical trade for more than the 90‑day window mentioned in Marsil and Heritage.
To put the matter another way: I am unable to conclude that the electrical work that Mr. Quackenbush was doing on June 16 was "unlawful" in the sense of contrary to the Trades Qualification Act. The fact that he was doing such work before completing all of the paperwork does not exclude him from the bargaining unit.
For present purposes, I am not prepared to depart from the approach enunciated by the Board in Marsil and Heritage; and for the foregoing reasons, I find that, on the date of the application, Mr. Quackenbush was an employee in the bargaining unit applied for by IBEW Local 586.
Mr. Quackenbush was therefore entitled to cast a ballot in the representation vote held on June 24, 1998.
I will return to the significance of that ballot later.
Paul Dal‑Cin
Paul Dal‑Cin was first hired by Megatech in early 1996 as an apprentice electrician, and apparently completed his apprenticeship in mid‑1996. However, there is no evidence about how regularly or steadily Mr. Dal‑Cin worked for Megatech in 1996, before the onset of his disability in the fall of 1996. In particular, there is no evidence that his work pattern was different from that of other able‑bodied electricians working for the company from time to time.
In the fall of 1996, Mr. Dal‑Cin was diagnosed with cancer, and immediately began a course of treatment that took him away from work with increasing frequency. Because of his battle with cancer, Mr. Dal‑Cin was not actively employed by Megatech from December 20, 1996 until July 11, 1997, (i.e. for about seven months). He returned to "light duties" for a period of about 10 weeks ‑ beginning on July 11, 1997. However, he ceased working again on September 21, 1997. He never returned to active employment.
Once more, there is no evidence of how regularly or steadily Mr. Dal‑Cin worked during the periods when he was working. Nor is there any evidence about what kinds of work he was doing, or whether his work pattern differed from able‑bodied employees. All that we know is that he was back "on the payroll" for ten weeks, ending in September 1997, then never returned.
We also know (from an employer time sheet filed with the Board) that in the week of June 15, 1998 (when the certification application was filed), Al Girard was not at work on Monday June 15 and Tuesday June 16. During that same week, Luc Vezina worked only on Wednesday June 17, and on no other day. In other words, for whatever reason, these two (presumably able‑bodied) individuals had an irregular work pattern ‑ which, as the Board has already noted, is not unusual in the construction industry.
There is no evidence as to why these two individuals were not actively at work on June 16.
Following Mr. Dal‑Cin's departure in September 1997, there was apparently some hope that, with surgery, he would be able to return to active employment. But in the result, he never did. He never returned to work, and he died some weeks or months after the certification application was filed. He never actually worked in the union's proposed bargaining unit.
According to CLAC (which submission is not disputed), Mr. Dal‑Cin had an outstanding claim for "long term disability", which was eventually approved by an insurance company on or about June 9, 1998, effective from January 17, 1998. For insurance purposes, Mr. Dal‑Cin was considered to be totally disabled during this entire period, and ongoing.
Accordingly, at the time that the application for certification was filed, Mr. Dal‑Cin had not only been away from work for many months, but he was not planning to return to work anytime soon, if at all ‑ however hopeful anyone may have been about his chances of recovery. Mr. Dal‑Cin was claiming long term disability, and the insurance company eventually accepted that claim.
There is no evidence that Mr. Dal‑Cin was receiving wages or other payments from the company during these absences. Presumably, that is why he was applying for long term disability.
In summary, then:
(a) Mr. Dal‑Cin was not at work on the application date.
(b) Mr. Dal‑Cin was not at work at any time in the nine months preceding the application date.
(c) Mr. Dal‑Cin was not at work at any time in the weeks or months following the application date.
(d) Mr. Dal‑Cin worked for the company only 10 weeks in the 18 months preceding the application date, and all of that work was in calendar year 1997.
(e) Mr. Dal‑Cin asserted and received entitlement to long term disability effective from January 1998 ‑ six months before the union's certification application.
Whatever Mr. Dal‑Cin's "employment status" may have been at common law or for insurance purposes, his actual attachment to Megatech and the proposed bargaining unit was very tenuous indeed. If he was an "employee" at all, he had ceased to be an "active employee" long before the union arrived on the scene.
I am further satisfied that, however optimistic the company may have been, there was no reasonable prospect of Mr. Dal‑Cin returning to active employment at any time proximate to the application date, or perhaps at all. I say "perhaps" because, in fact, Mr. Dal‑Cin died without ever returning to work. So whatever the hopes or expectations may have been in September 1997 or June 1998, the evidence is now clear that Mr. Dal‑Cin was never returning to active employment (which is why I have used the phrase "if he was an employee at all" in an earlier paragraph ‑ if he was not working for wages and had no settled prospects of returning to work, in what sense was he still an employee for the purposes of the Labour Relations Act? It would probably be more accurate to describe him as a "former employee" who hoped to be re‑employed if he ever recovered ‑ which he never did).
In any event, on the evidence, Mr. Dal‑Cin did not, and would not ever, actually work in the bargaining unit proposed by the trade union in its application for certification on June 16, 1998.
To be specific: I reject the employer's assertion that, as of June 16, 1998, there was some reasonable likelihood that Mr. Dal‑Cin would be returning to work. His outstanding and ultimately successful claim for long term disability, and his work pattern in the previous months, support precisely the opposite conclusion.
Mr. Dal‑Cin was not striving to return to work. He was seeking income support for a period of long‑term disability ‑ a disability from which he never recovered.
The question, then, is whether the Board should nevertheless count Mr. Dal‑Cin's ballot cast in the representation vote taken on June 24, 1998.
The employer says that Mr. Dal‑Cin's ballot should be counted because, "but for" his disability, he would have been at work on June 16, 1998 and he would have been doing "bargaining unit work". The employer says that there was work available that Mr. Dal‑Cin would have been assigned to do ‑ if only he had not been disabled. In the employer's submission, the Board's "policy" of defining the voting constituency with reference to the individuals actively at work in the bargaining unit on the application date, "discriminates" against disabled workers like Mr. Dal‑Cin, and is contrary to both the Ontario Human Rights Code and the Charter of Rights and Freedoms.
Counsel concedes that this departure from established practice may generate additional uncertainty, litigation, and delay, in a context in which "time is of the essence" and "bright line tests" have a significant labour relations value. In the construction industry, where so much of the work force is "casual", it is not at all clear when a disabled worker should be considered an "employee" of his last (or another) employer ‑ let alone how one might apply the double‑barreled "but for test" argued by the employer in this case. It also is conceded that adding disabled workers to the "employee list", and according them the right to vote, would give such absentees a greater right to participate in the certification process than individuals who were away for other reasons and might have a much stronger connection to the employer and to the job site. In this sense, a disabled worker would have broader access to the certification process than someone who is able‑bodied ‑ even though s/he is less connected to the workplace or to the process of union organizing or collective bargaining (which is what the certification mechanism is all about). In the instant case, for example, Mr. Dal‑Cin's "connection" is very tenuous indeed, because, as I have already found: he had not been actively at work for months, there was no reasonable prospect of his returning to work and he never did return to work.
Counsel acknowledges these difficulties. However, in counsel's submission, the Code and the Charter "trump" these operational and labour relations considerations. The Code and the Charter are paramount. And if it makes it more difficult for a union to organize, or more difficult for the Board to process certification applications, that is the price to be paid for protecting disabled workers and enhancing their right to fully participate in workplace concerns.
The "but for test" articulated by the company has some superficial attraction, because it raises the specter of invidious discrimination ‑ an assertion that, "but for" his disability, Mr. Dal‑Cin would have been entitled to vote, like his able‑bodied co‑workers who were actually working on June 16, 1998. It is said that if he had not been disabled, he would have been at work and doing the work of his trade, so that he is being "denied" a "right" to vote "because of" his disability.
However, upon reflection, this proposition is much less clear than it first appears, because it skips a step: it presupposes a regular pattern of daily attendance and continuing connection to the work site for disabled workers, which the Board is not prepared to presume for able‑bodied workers ‑ who come and go for all kinds of reasons, as the Board noted in Smith Construction. It also presupposes that someone who has not worked for months and has no reasonable prospects of returning at any particular date should still be treated as an "employee" for the purposes of the construction provisions of the Act. And it presumes that a tradesperson will also and necessarily be working at his/her trade on any given day.
In construction industry certification applications, there is no assumption that because someone is able‑bodied and willing to work for a particular employer, s/he will be at work for that employer on any particular day, or will be doing any particular work assignment. Indeed, in the construction industry, the Board makes no assumptions about such "connection" or work assignment at all. Nor does the Board concern itself with "why" a particular worker ‑ even a so‑called "steady Eddy", who works quite regularly ‑ might not have been at work on the application date. And the fact that someone is an "employee" on a particular date, or that there was work available, does not, by itself, mean that a particular individual is "in the bargaining unit" or "counts" for the process of certification.
On an application for certification, the Board does not speculate about who "might have been" "in/doing the work of" the bargaining unit, "but for" a myriad of eventualities: illness, weather, traffic, vacation, a doctor's or dentist's appointment, work flow problems, shifting work assignments, a shortage of materials, failure by another trade to complete necessary preparations, malfunctioning equipment, an unexpected strike or picketing affecting that site, etc. Nor, for able‑bodied employees, does the Board infer their presence in the bargaining unit from the fact of employment on some date or dates, or from the fact that they were qualified journeymen in the target trade, or from the fact that there was work to be done that day. The Board simply asks whether, as a fact, a particular worker was present on the construction site doing bargaining unit work. The Board looks at who was actually working and what they were doing ‑ just as an employer does when calculating an employee's wages for hours worked on a particular day.
The Board uses this "snapshot" for the operational and policy reasons outlined in Smith Construction and Colautti Construction. It provides a readily ascertainable benchmark in a fluid work setting, where no "day" or "days" are likely to be more representative than others, and where certainty and expedition are important independent values.
There may be other ways of constructing a more "representative" sampling for certification purposes: having regard to the particular circumstances of a given employer, on a particular work site, at a given stage of the construction cycle. But not without sacrificing these other important labour relations objectives.
In the construction industry, therefore, the Board does not ask whether a particular worker's absence is unusual, or idiosyncratic, or "but for" various circumstances s/he "would have been" actively at work. In this sense, therefore, the employer is asking the Board to treat Mr. Dal‑Cin differently from able‑bodied workers ‑ and also differently from persons whose "disability" does not interrupt their work at all.
However, there are other problems with this artificial "but for" approach ‑ which can perhaps be highlighted by some not implausible examples.
Suppose the disabled worker is replaced by someone else, who is actively at work in the trade on the application date. If there really is work available, that is what one would expect an employer to do. But does this replacement worker get to vote when, "but for" the disabled worker's absence, he wouldn't be there at all? Or do they both vote ‑ thereby artificially enlarging the bargaining unit which, by definition, will never actually include both the disabled worker and the replacement at the same time?
Suppose there are a number of injured workers who hope to return to active employment at some point. This is not an implausible scenario either ‑ especially for a construction company, whose work force will normally fluctuate with the number and nature of the jobs in which it is engaged. Does one count all of these individuals? Does one add all of them to the employee list ‑ even though the total may exceed the actual number of workers who would actually be employed on that job on any given day, and thus, in the normal course, would be given a right to vote?
If one counts all of the employees who are at work, as well as all of the individuals who might have been at work but for the state of their health (a matter which itself may be open to debate for are all "illnesses" "disabilities"?), it is not difficult to get a bargaining unit that is much bigger than any actual work force that the employer might actually employ at any given time.
On an application for certification, a trade union is required to show a minimum appearance of support among the employees in the proposed bargaining unit before any representation vote can be given legal effect (currently 40% support ‑ see section 8.1 of the Act). There is a threshold requirement for organizing purposes; and if the union cannot organize to a preliminary level of 40%, it is effectively precluded from seeking certification even if it could "win" a representation vote. The 40% threshold can be a significant hurdle to organizing when the union has no right to employee names prior to certification, and the work force is transitory.
So do the disabled workers "count" for that purpose as well? Do absent workers make up part of the group within which 40% must be shown? In other words, does the right of active employees to have an effective vote on trade union representation, depend upon the union's ability to contact and organize a number of "disabled workers" who (like Mr. Dal‑Cin) may have been nowhere near the work site for weeks or months, and whose status, identity and whereabouts will likely be totally beyond the union's knowledge? For, as noted above: not only had Mr. Dal‑Cin been away from work, for many months, but there was no reasonable prospect of his returning any time soon, if at all. He was not seeking to return to work, he was applying for long‑term disability. Was the union obliged to organize persons like Mr. Dal‑Cin, so that those actually at work would have the right to a vote?
That would certainly be an unusual result, as well as an impediment to self‑organization ‑ particularly in larger firms where there may be quite a number of workers in this category. "Expanding the count" in an ostensible effort to help disabled workers, may have the practical effect of making it more difficult for all employees to organize.
Where the work pattern is irregular (as it usually is in the construction industry), how does one gauge the likelihood of a disabled individual's return to the active employ of one employer or another, on any particular day or days? How does one gauge whether s/he will be doing the work of the trade if not on that day, then on some day or days at some future time? Or should a disabled worker be on the employee list of the several employers that s/he may have worked for from time to time and hopes to return to? If not, how does one select the employer to whom the disabled individual is most attached ‑ the worker's hopes, the employer's needs from time to time, or some combination of factors, necessarily speculative? And, in a case like Mr. Dal‑Cin's, how does one determine whether or when a disabled individual is likely to return? Is there a distinction between short‑term and long‑term "disability" and between a "disability" and an "illness"?
Under a "but for" test, there are obvious opportunities for delay, uncertainty, and litigation ‑ the very thing which the Board's approach is designed to avoid.
Moreover, as is perhaps obvious, the fact that a worker has a disability, does not necessarily mean that such worker will not be actively employed, or actively employed on a particular day or will not be doing his/her normal duties ‑ as was the case for Mr. Dal‑Cin between July and September 1997. If a certification application had been made during that period, and Mr. Dal‑Cin had been doing electricians' work, Mr. Dal‑Cin would have been on the list like any other electrician actively employed. His disability would have been irrelevant.
But suppose that Mr. Dal‑Cin had been away at a doctor's appointment on the application date. Should he nevertheless be treated as being "at work" because, "but for" his cancer condition, he would not have visited his doctor that day ‑ even though, at that point, the disability did not generally affect his attendance at work? And would the result be different if he were at the dentist, or seeing his doctor about some ailment unrelated to his disability, because, in the latter case, one could not say that "but for" his disability, he would have been at work?
Suppose a disabled plumber is given "light duties" (say, office work) so that, while he remains actively at work, he is not working at his normal trade ‑ the second part of the Board's test. On this scenario, "but for" the disability, he would be working at that trade; so presumably, on a "but for analysis", he should be treated as someone in the plumbers' bargaining unit. But would he also be in an office workers' bargaining unit, since that is the kind of work that he is actually doing ‑ which is to say, that he can be in two bargaining units at once: the unit defined by the work he is actually doing, and the unit defined by the work that he would have been doing "but for" the disability?
I do not wish to burden these reasons with any further discussion of hypotheticals ‑ save to reiterate that the ones mentioned are not unrealistic or unrepresentative of the kind of thing that the Board would have to deal with, if the respondent's argument were accepted. The problem with this "but for" test, is that it ignores the operational significance of active employment, and imposes a totally artificial standard, unrelated to the purpose for which the certification process is designed.
For, of course, no one suggests that it would be "discriminatory" not to pay a disabled individual his regular hourly rate for the hours that he would have worked "but for" his disability. No one suggests that active employment or actual work is an inappropriate criterion for this purpose. And, I repeat, it is certainly a curious labour relations result if someone with a minor illness, someone with a flat tire, someone who decides to take care of a sick child, someone who works for a few days outside his usual trade, or someone who is not called in that day would all be off the voters' list, while someone with a serious disability who has not been around for months and will never return to the work force is included.
However, I do not think that it is necessary to multiply the examples, or to undertake a detailed examination of the law respecting "adverse effect discrimination". There is no dispute that the Board's approach is "neutral" on its face and does not distinguish between ‑ indeed is entirely uninterested in ‑ the various reasons why an individual is absent from the work site on any given day. There is no overt "discrimination" or intent to "discriminate" against individuals like Mr. Dal‑Cin, who left work because of his illness in September 1997 and never returned. If there is discrimination at all, it is because a neutral rule, adopted for sound operational and policy reasons, may be said to have a differential impact on persons like Mr. Dal‑Cin, who happened to be away from work at the time the union filed for certification (and, of course, for months before and after the application date as well). And, unlike other workers who may have been away from work for other reasons, Mr. Dal‑Cin's reason is one which is mentioned in the Human Rights Code and section 15 of the Charter.
Now, it is not entirely clear how the Human Rights Code applies to the Board when interpreting or applying the Labour Relations Act. The Board is not an employer discriminating against an employee in respect of same term or condition of employment, or right or privilege associated with employment; and the determination of bargaining‑unit composition for particular parties in a particular case, does not fit easily into the usual notion of providing "services" to the public. However, assuming that the Code applies, it seems to me that the kind of "constructive discrimination" which might be argued here is nevertheless reasonable and bona fide in the circumstances here. It falls within the exemption that the Code itself contemplates. And for the same reasons, any adverse effect discrimination in Mr. Dal‑Cin's case is reasonable within the meaning of section 1 of the Charter.
However, suppose that a rule which "counts heads" on a given day may be said to bear disproportionally on disabled workers, whose particular reason for being absent has a legal significance, or attracts a kind of legal scrutiny, which other reasons for absence do not. And suppose that such special attention, commanded by the fact that Mr. Dal‑Cin has a "disability", did require a form of "but for" analysis of the kind urged by the employer here. What would the result of that exercise be, on the particular facts of this case?
I will not reiterate the practical or policy reasons behind the Board's approach to bargaining unit composition in the construction industry, or the practical (and legal) problems which might arise from an artificial "but for" test. What these problems illustrate is that, as a starting point, there must be a very firm factual connection between the disability and the absence from the defined bargaining unit on any given day.
In other words, even accepting the approach urged upon me by the employer, the evidence must very clearly establish that "but for" the disability, the disabled worker really would have been at work, doing the work of the trade, on the application date.
The situation cannot be wholly speculative ‑ particularly when the Board makes no similar assumptions for able‑bodied workers. On the contrary, there must be a very high standard of proof when the Board is being asked to make a factual finding in respect of a disabled worker that it simply would not make in respect of able‑bodied workers, or in any other circumstances in the construction industry.
So what is the evidence in the instant case?
Ms. Danielle Harris had no direct knowledge of what individuals were doing on the site on any given day ‑ or so she said in respect of Mr. Quackenbush. That is why she listed him as a "material handler". Her knowledge was based solely on the payroll records ‑ as was her knowledge of Mr. Dal‑Cin's situation. She was not involved in day‑to‑day work assignment on the job site. She had no reliable evidence (necessarily hearsay for present purposes) about whether or when Mr. Dal‑Cin might be returning, let alone what he might have been doing if he had not been ill
Ms. Harris confirmed that she expected Mr. Dal‑Cin to be available for work in the spring of 1998, because there had been periodic contact with him. She was hopeful and optimistic. But that is not what happened; and, of course, this speculation is totally inconsistent with Mr. Dal‑Cin's efforts during this period to obtain long‑term disability ‑ efforts which ultimately persuaded an insurance company that he was totally disabled from January 1998 onwards.
Phil Harris testified that Mr. Dal‑Cin was off work on disability during the relevant period, but that if he had not been away from work, there would have been work available for him without displacing anyone else, because the company was busy during this period. However, he did not know when Mr. Dal‑Cin had last worked for the company, nor was he aware of Mr. Dal‑Cin's actual health status. He was not monitoring the situation. But he clearly did not expect Mr. Dal‑Cin's return any time soon, and, as I have already noted, other individuals were not actively at work on the application date either ‑ which is entirely typical of work patterns in the construction industry. If there was work available, why weren't those individuals doing it? The evidence isn't clear. What can be said is that the fact that the company was "busy" doesn't mean that any particular person will be at work, at his trade, on any particular day ‑ even if that person is able‑bodied.
In the circumstances, the Board is not prepared to accept the bald assertion that "but for" the fact that Mr. Dal‑ Cin was disabled, he would have been at work on June 16, 1998 or on any other particular day. There is certainly no evidence that his work pattern was different from other able‑bodied for whom the Board would make no such assumption, and the only evidence that the Board does have substantiates the way in which the Board normally looks at construction industry work patterns. Some workers were present on the application date and some workers were not. If the Board is to accept what is, in any event, a highly artificial construct, there must be a stronger objective foundation than the employer's mere assertion.
To put the matter another way: the Board is not persuaded that it should accept the proposition that a particular disabled worker would, if well, have had a different and more regular work pattern than an able‑bodied worker, unless there is strong and persuasive evidence of that. And, in my view, the evidence before me does not reach that standard.
The Board is not prepared to conclude that "but for" Mr. Dal‑Cin's disability, he would have been at work on the application date, and therefore should be treated as if he were actively employed on that date.
So whether the matter is looked at from the perspective of "constructive discrimination", or simply as an evidentiary issue, the Board is satisfied that Mr. Dal‑Cin's ballot should not be counted.
In the result, the Board accepts the respondent's submission with respect to Mr. Quackenbush and rejects its submission with respect to Mr. Dal‑Cin.
But, unfortunately, this result raises another issue: whether to count the sole segregated ballot, and thus reveal how Mr. Quackenbush voted.
IV
The scheme of the Act requires the Board to conduct a representation vote, in order to determine the wishes of employees in the bargaining unit with respect to trade union representation. The Act envisages a secret ballot vote, and specifically protects the secrecy of employee choices (see section 119). However, the counting of Mr. Quackenbush's ballot would, in the circumstances of this case, reveal how Mr. Quackenbush voted. So, what to do?
The Board, when faced with a similar situation in Empco Fab Ltd., [1980] OLRB Rep. Oct. 1391, directed that another representation vote be taken in order to preserve the confidentiality of the wishes of the individual in question. The Board noted in that case at paragraph 6:
All employees who participate in a representation election are entitled to a secret ballot vote. The parties before this Board know that when they agree to count the ballots in circumstances such as those in the instant case they run the risk of the Board directing another representation vote in order to protect the secrecy of the wishes of the employees who cast segregated ballots. See Corporation of the Township of Chinguacousy, [1973] OLRB Rep. July 380 and Super City Discount Foods Limited et al, [1971] OLRB Rep. March 175.
Similarly, in Daheim Nursing Home Limited, [1980] OLRB Rep. Nov. 1639, the Board stated at paragraph 4:
Strong feelings for or against are not uncommon when a union seeks to be certified as the bargaining agent in a particular work place. No matter which way their sympathies may lie the disclosure of the wishes of individual employees during the certification process can subject them to pressure and recrimination at the hands of their employer and to ostracism at the hands of their fellow employees. That is why the right of confidential selection must remain paramount in the certification process whether it be through the secret ballot or through the confidentiality of membership evidence and statements of employee opposition filed with the Board, expressly protected by section 100(1) [now 119] of The Labour Relations Act. That right must be jealously safeguarded if employees, employers and unions are to retain confidence in the certification process administered by this Board.
To the same effect, see: Omstead Foods Ltd., [1987] OLRB Rep. Feb. 264; The Brick Warehouse Corporation, [1996] OLRB Rep. Dec. 921 and Metric Contracting Service Corporation, [1996] OLRB Rep. Nov. 996.
When faced with this situation, the Board has virtually always exercised its discretion under section 111(5) to hold a further representation vote. And in my view, that is the result which should obtain in this case.
The Board therefore directs that there be a new representation vote, in the voting constituency defined in the decision of the Board dated June 22, 1998.
The voting constituency and list of eligible voters will remain unchanged.
Mr. Quackenbush will be entitled to vote.
Since Mr. Dal‑Cin has now died, his situation has become academic. (Nevertheless, in accordance with the request of counsel, the Board directs that the ballots of Mr. Quackenbush and Mr. Dal‑Cin cast in the previous representation vote be preserved.)
The matter is referred to the Registrar so that further vote arrangements can be made.
"R. O. MacDowell"
for the Board