4395-98-R Labourers’ International Union of North America, Local 183, Applicant v. Bayview-Wellington Construction Inc. and/or Bayview-Wellington Homes Inc., Responding Party.

BEFORE: David A. McKee, Vice-Chair.

APPEARANCES: Mark J. Lewis, Nicholas J. Keresztesi, Tony Pinto and Jorge Vala for the applicant; Joseph Liberman, David DeFrancesco and Anthony Marson for the responding party.

DECISION OF THE BOARD; August 17, 2000

1This is an application for certification in which a representation vote was held on April 1, 1999 for the following bargaining unit:

all construction labourers in the employ of Bayview-Wellington Construction Inc. and/or Bayview-Wellington Homes Inc. in all sectors of the construction industry in the City of 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, and in the County of Simcoe and the District Municipality of Muskoka, excluding the industrial, commercial and institutional sector, save and except non-working foremen and persons above the rank of non-working foreman.

2The parties have still not resolved the issue of the correct name of the responding party and have asked the Board to remain seized of that issue. This decision deals with the composition of the bargaining unit. The parties agree that there were eight persons in the bargaining unit, seven of whom cast a ballot in the representation vote. Originally the responding parties argued that there were seven additional persons who ought to be in the bargaining unit. When the matter came on for hearing, the responding parties pursued their position with respect to only two of them: Joe Biega and Kelly Vangerven. The facts with respect to these two individuals are completely different and accordingly the challenges will be dealt with separately.

Joe Biega

3The original challenge of the applicant was that Mr. Biega was not at work on the application date. We find that he was. Although the Board has no reason to doubt the evidence of the two witnesses called by the applicant, it is clear to the Board that Mr. Biega could well have been on the site doing the work he described and not have been observed by either one of them. While is true that Mr. Biega believed he had attended at the job trailer on the morning of March 25, 1999, when Mr. Alvaro, an organizer for the applicant, was watching it, he could have simply been mistaken. Counsel for the applicant did not suggest that Mr. Biega, or his (non-managerial) supervisor, Don Murray were being untruthful in their evidence. He did suggest that they were mixing up the application date and another date. However, the date had considerable significance for both of them. Mr. Murray left for holiday in Cuba at 11:00 a.m. the next day and Mr. Biega took over his responsibilities. Those witnesses had good reason to remember the specifics of the day before Mr. Murray’s departure. In addition, the time card indicates that Mr. Biega was at work on the Aurora site for nine hours on the application date. Notwithstanding one obvious clerical error on the time card, I see no reason to doubt the correctness of the information entered on it. Accordingly, the Board finds that Mr. Biega was at work on the application date.

4The applicant’s second challenge was that Mr. Biega was in fact in a unit of carpenters and carpenters’ apprentices rather than in a unit of construction labourers on the application date. The facts are relatively simple but the analysis is more detailed. Mr. Biega was employed as a serviceman. The responding party is a builder of houses operating in the low rise portion of the residential sector of the construction industry.

5The home building industry in the Greater Toronto area (“GTA”) has over the past twenty to twenty-five years taken on some organizational characteristics which distinguish it somewhat from other types of construction in residential and other sectors. These characteristics are well known to the parties and the Board. The parties agreed that it was unnecessary to lead evidence as to the nature of this industry. The parties further agreed that the Board is entitled to rely on its own institutional knowledge and experience and indeed, both referred to the characteristics of this segment of the industry in argument without having called evidence on the point.

6Sites are controlled by businesses who sell houses to prospective home buying customers (“Builders”). They may be involved in assembling the land or may purchase it from someone else who has assembled the land. They are frequently involved in providing the site services and are always responsible for the construction and final finishing of houses (including townhouses), services to each house and landscaping. Builders do not employ the tradespeople who perform the basement forming, framing, shingling, electrical, plumbing, drywall, bricklaying, glazing, trim, siding and painting work that is necessary for the construction of a typical home. These are subcontracted to various specialty trades. Builders do employ a few employees; they are called, colloquially, labourers and “servicemen”. The responsibility of these individuals is to do some work to assist the sub-trades, supplying materials and so on, some excavation and landscaping, some utility work, the cleaning of units for presentation to customers and inspectors and the performance of “deficiency work”. Generally speaking, the performance of deficiency work is performed by service persons. They are usually higher paid than “labourers” and tend to have a greater number of construction skills.

7For years, Labourers’ Local 183 has organized employees of Builders. It has obtained bargaining rights for those employees and negotiated collective agreements that contain terms and conditions for certain employees and subcontracting clauses covering the work of a number of sub-trades. In doing so, Local 183 took somewhat contradictory positions. On the one hand, when faced with an application for certification by another trade union, it asserted that its collective agreement covered all on-site construction employees directly employed by the Builder regardless of the work performed (see Runneymede Development Corporation Limited [1987] OLRB Rep. Oct. 1305 (“Runneymede No. 1”)). On the other hand, it agreed, at least with a number of Builders at one point in time, that it would not in fact represent service people, whose terms and conditions of employment were generally not covered by the collective agreement. In Runneymede No. 1, supra, the Board found that the collective agreement in fact covered only construction labourers and certified the Carpenters Union for a unit of carpenters and carpenters’ apprentices employed by Runneymede (see Runneymede Development Corporation Limited [1998] OLRB Rep. September 976 (“Runneymede No. 2”)). The carpenters in the bargaining unit in that application were not service people, but in fact were carpenters recruited from the hiring hall of the Carpenters’ Union to perform specific carpentry work. The Carpenters Union resisted (mostly successfully) having service persons included in their unit.

8Sometime in 1991 or 1992, after Runneymede and certain other applications for certification brought by the Carpenters Union, Labourers’ Local 183 decided to “close off” the possibility of other trades representing direct employees of Builders (and at the same time employees of apartment builders). They negotiated “carpenter” and other specific classifications into the industry collective agreements with both Builders and apartment builders. However, with respect to Builders, they still did not agree as to whether to include “service persons” in the bargaining unit notwithstanding a “handyman” classification.

9In 1998, the Board issued a decision in Mattamy Homes Limited [1998] OLRB Rep. February 70. In that decision the Board found that the service persons employed by Mattamy on that application date fell into a bargaining unit of construction labourers. The work is set out in some detail in that decision, and it is necessary to quote it here at length for reasons of comprehensibility:

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

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

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

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

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

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

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

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

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

10The Board determined that these persons fell into a unit of construction labourers. There were essentially two reasons for this decision. First, following an earlier decision of the Board in PHI International Inc. [1980] OLRB Rep. December 1789, the Board found the work involved many tasks which were typically performed by labourers. In addition, given the multitude and minor nature of many of the tasks, it was unrealistic to characterize the performance of that bundle of duties by reference to one of the various trades within which certain of the duties fall. Second, the Board was concerned about the possibility of such persons ever being able to exercise their right to bargain collectively unless they were found to be in a single unit, in this case of construction labourers. At paragraph 33 the Board said:

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

11Counsel for the responding parties (supported somewhat less enthusiastically by counsel for the applicant) argued vigorously that this decision represented a disruption of industry practice. They argued that the Board was being “insensitive” to the labour relations realities of the industry. In our view, it was not. The Board’s mandate under the statute is to define appropriate bargaining units that make general labour relations sense. Its mandate is not to reflect idiosyncratic bargaining structures that mirror those in some collective agreements applicable to some employers in part of a sector in some parts of the Province. Parties in a particular bargaining relationship may fashion a bargaining unit structure which suits their particular needs and agendas. Indeed, the Board encourages them to do so. This is in contrast to some jurisdictions which assert a continuing function for certificates issued by a labour relations board (for example, see the decision of the Canada Industrial Relations Board in Shaw Cablesystems (B.C.) Ltd. (2000) 57 CLRBR (2d) 235.). A certificate issued by this Board is the basis for bargaining and is often said to be “spent” once the first collective agreement is signed. Parties are free to structure the bargaining unit in a collective agreement to adjust to their particular relationship. However, in administering the Labour Relations Act, the Board is obliged to certify trade unions for bargaining units which may be used by the parties as a platform for constructing sensible bargaining arrangements. It does not serve that function by adapting its bargaining units to particular deals struck by parties for their own purposes, and, as a matter of fairness, predictability and consistency forcing them on parties who may find them to be an entirely unworkable platform for bargaining.

12The low rise residential sector of the construction industry in the GTA is fundamentally similar to the rest of the industry. Collective bargaining takes place along craft lines, although there are great number of single trade contractors. Hence, one craft tends to encompass the whole of a particular employer’s workforce. The Board has issued traditional craft certificates in the hundreds if not thousands, to Labourers’ Local 183, the Carpenters Union, the UA, the IUBAC and the IBEW, which have led to successful and healthy collective bargaining relationships.

13To some extent Builders organize their work differently from ICI general contractors. The issue of deficiencies is handled very differently. Generally (but not universally) an ICI general contractor will require deficiencies to be corrected by the sub-trades where the performance of work has been deficient. The importance of a sub-trade’s warranty is of greater commercial significance in that sector. While a general contractor who is not performing a major portion of the work (e.g. forming) may employ only a few employees, generally carpenters and labourers, the labour force is engaged in the “connection” work among various subcontractors. They perform work which is not in fact found in any subcontract. In doing so, these employees tend to perform work divided along typical craft lines. A Builder on the other hand employs particular individuals specifically to perform deficiency work on the work of the subcontractors. Warranties appear to be less important, although presumably the work will be back-charged when appropriate and possible. The employees who do this work may have greater or lesser degrees of skill as carpenters, bricklayers, painters, electricians or plumbers, but can do many of the work functions of those trades to repair or complete work done by the sub-trade. There is of course a difference between, for example, replacing one or two broken or warped studs in a house, and undertaking the complete layout, construction and framing of a two- or three-storey structure.

14Although this difference is a discernible one, it is both minor in nature and localized in the GTA. Nothing in that difference would cause the Board to differ from its practice of issuing certificates on a craft basis.

15However, this still begs the question of which craft the service person falls into. Are they construction labourers or do they fall into the particular craft associated with the work they perform most frequently on the application date. As the Board pointed out in Mattamy, supra, to choose the latter option would present a significant impediment to the ability of such persons to engage in collective bargaining. More specifically, a typical service person performs numerous tasks associated with labourers, e.g. the operation of a bobcat or forklift, excavating, cleaning and transporting materials. While they do from time to time employ carpentry, bricklayer or plumbing skills, such skills are generally for single isolated tasks rather than the performance of an entire subcontract covering a distinct portion of the house construction. Accordingly, the skills required, to use the above example, to replace two studs and perhaps the intervening piece of drywall are not necessarily the same as all the skills employed by the framer or the drywaller. This specific task may be the same, but both need to be seen in context.

16In any event, the Board is not convinced that it has entirely ignored the reality of the bargaining relationship between various house builders and Local 183. It must of course be recognized that this reality is of limited significance in a certification application in respect of an employer who has no previous relationship with Labourers Local 183 at all. In Runneymede No. 1, both Runneymede and Local 183 argued that their collective agreement was a bar to another union attempting to represent any other direct employees of the employer. The Board found they were wrong. In response, in the early 1990s, Local 183 attempted to redraft this agreement with other Builders to foreclose similar applications. The Board sees no unfairness in applying the same standard to the applicant in this case which it seeks to achieve in bargaining.

17Counsel for the applicant argued that the Board had significantly modified the decision in Mattamy in a subsequent decision National Homes Inc. [1998] OLRB Rep. April 259. He relied in particular on the following:

34. I 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.

35. Thus, 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.

On this basis he argued that if it could be demonstrated that a service person was performing work which fell within the “core” of another trade for a majority of time on the application date, then the service person fell within the craft unit of that trade.

18Counsel for the responding party argued that this case did no such thing. He argued that this decision was simply an elaboration on the duties of a service person. In his submission, Mattamy stands for the proposition that the Board has “found” a classification (rather than a craft) of a service person, and once an employee is found to be employed as a service person that ends the inquiry.

19With respect, we disagree with both arguments. Ever since Gilvesey Enterprises Inc. [1987] OLRB Rep. Feb. 220 and E & E Seegmiller Limited [1987] OLRB Rep. Jan. 41, the Board has looked at the work done (or most probably done) on the date of application. The rationale for doing so is set out in those two cases and has passed the test of time over thirteen years. The Board followed this test in Mattamy and National, supra. However, nothing in Gilvesey or Seegmiller, or indeed any decision of this Board ever suggested that there is a simple and specific connection between each specific work function and membership in a single craft bargaining unit. It should come as no surprise to anyone familiar with the construction industry that different trades can and do claim and perform some of the same tasks. This overlap in trade jurisdiction underlies most jurisdictional disputes. In this type of application, in looking at the work performed on the date of application, the context in which a specific work function is performed is almost as determinative as a specific task or function itself. In a recent, and thoroughly unremarkable decision (Rybrek Construction, unreported June 16, 2000, Board File No. 2581-99-R, in which I was also the Vice-Chair), the performance of certain work was analyzed in this fashion:

8. It is true that, during the initial construction, not all of this work would have been done by glaziers. The Board accepts Mr. Gallagher’s evidence that a frame structure would have been built by carpenters (as this building was constructed of wood frame). Had the building been constructed of block or brick, a mason would have erected the structure. During the erection of the structure, the carpenters or the masons might have installed the blueskin vapour barrier into the structure they were building. It would hang loose in the window opening waiting for the glazier. However, it would have been a glazing sub-trade, or a crew of glaziers, who installed the window frame and who ensured that the air and moisture-tight seal around the window frame was properly installed. As noted, it was the failure of Sherwood’s previous window subcontractor to do this that led to the need for the repairs. As it was, the subcontractor attempted unsuccessfully to achieve this result with the Tyvec paper, a technique which failed. The essence of the work assigned to the three employees was to repair, and in some senses to install in the first place, the air and moisture seal associated with the window. The other work, removing caulking, siding, facia and Tyvec paper was all incidental to this work. It is necessary to get the exterior cladding and trim off the window in order to perform the work. Material damaged in the removal had to be replaced. Sills were narrowed to accommodate the greater thickness of the new vapour barrier once the blueskin was installed. Perhaps the only work not precisely incidental to the sealing of the vapour barrier was the replacement of rotted plywood on the structural wall. This work would only have involved a small portion of the day.

9. The Board’s emphasizes that this decision is not intended to define the work jurisdiction of glaziers for all time and in all contexts. Even absent a jurisdictional dispute with another trade, it is entirely possible that, in the course of constructing the buildings for the first time, the work associated with the installation of structural members and trim (which might include the fastening of one edge of the vapour barrier to the wood or block structure), the facia, siding and possibly the caulking would not necessarily be the work of the glazier. Most likely some or all of it would have been done by other trades. Much depends on the context in which the work is performed. This job involved the repair of windows, and the work necessarily incidental to the performance of that primary task and in that context is work which brings the three individuals into the bargaining unit of journeymen and apprentice glaziers and metal mechanics.

20In contrast, context can sometimes separate the work done on one day from the work done on many other days. For example, in Delco [1997] OLRB Rep. June 830, the Board dealt with an employee hired as a carpenter who worked exclusively as a carpenter before the application date. However, on the date of application he was assigned the work of chipping concrete. This work was not ancillary to or incidental to some carpentry function. The employee was assigned the work because there was no carpentry work for him to do that day or at all until the chipping was done. In other words, for that day, and perhaps for that day only, he was performing work as a member of a bargaining unit of construction labourers.

21Counsel for the applicant sought to rely on a portion of the decision on Runneymede #2. At paragraph 12 the Board dealt with two of the employees as follows:

12. In this case, it was quite clear what Minuil Lima (referred to in the October 6, 1987 decision as Emmanuel Lima) and Michael (Mike) Robertson were doing on the date of application. It is evident, and was virtually conceded by the applicant, that Lima spent the majority of his time on the date of application doing carpentry work, specifically applying 2 x 4 strapping and plywood to the top of a building at Gerrard Street East and Victoria Park Avenue, and that he should therefore be included on the list of employees. It was also evident that, although Robertson spent a portion of his time measuring and cutting plywood for Lima to apply, he spent the majority of his time on the date of application assisting Lima by handling the material for him in a manner similar to that of construction labourers who work in a mixed crew with carpenters. Accordingly, the Board was satisfied that Robertson was not doing work in the bargaining unit applied for herein on the date of application.

From this paragraph, we can only conclude that the evidence before the Board was extremely brief and consisted only of specific tasks and functions performed by the two employees that day. There appears to be no context at all, although the description of the work (“2 x 4 strapping and plywood to the top of a building at Gerrard Street East and Victoria Park Avenue”) it does not even suggest that it was a house. Accordingly, that decision is based on the work in isolation because parties did not give the Board any context in which to put it.

22Turning to the facts of this case, Joe Biega was employed as a service person. As such, he performed a typical variety of tasks, primarily deficiencies. The examples given by him ranged from a replacement of a plug in a bathroom, to brick repair, replacing a defective 2 x 4 stud in a framing context and fabricating and affixing the bottoms of six bay windows. The parties agreed that the witnesses did not need to detail all of Mr. Biega’s duties, and agreed that he was a typical service person.

23On the application date, he spent the majority of his time doing work that should have been done by the framing carpentry contractor. The townhomes in one phase of the project had bay windows at ground level. The bay windows should have had a piece of plywood affixed to the bottom to seal off the exterior of the bay window. Six of them did not. Mr. Biega therefore took plywood and other materials to the location of these six bay windows. He measured the bottom of the window, cut the correct size and shape of plywood (presumably half a hexagonal or octagonal shape), fitted it into place, secured it with screws, and caulked the seam. Access was restricted and some of the windows were very difficult to get at. Mr. Biega’s recollection was that he spent the entire day performing this task. Mr. Murray, who gave him the instructions, said this was one of the many tasks that he gave to Mr. Biega to be performed that day, including possibly some brick repair, but he agreed that the work on the bay windows would take more than half a day.

24Counsel for the applicant argued that this work brought Mr. Biega within the bargaining unit of carpenters and carpenters’ apprentices. In his submission the work functions of measuring, cutting and putting in place a wooden component which was designed to become part of the structure is work which falls within the core of the trade of carpenter. It was in fact work that should have been done by a bargaining unit of carpenters employed by the framing subcontractor. Relying on the portion of National Homes quoted above, he argued that since Mr. Biega spent more than half of his day performing work which was at the core of the carpentry trade, he fell within the unit of carpenters and therefore not in the bargaining unit applied for.

25The Board disagrees. It is true that the work described would, in the abstract, be part of the core work of a carpenter. Similarly the brick repairs he may have been assigned that day would be part of the core work of the craft of a bricklayer. That is the nature of the deficiency work. It involves the performance of work that would normally be performed by members of a craft bargaining unit, and indeed by definition it should have been performed by them. That is why it is a “deficiency”. In the context of this case, the performance of these specific tasks were part of the normal and regular duties of a service person, not of a carpenter. The parties would agree that if he did only one bay window, and therefore spent only two of the nine hours performing carpentry tasks and, for example, two hours of painting, two hours of clean up, two hours of bricklaying and one hour of plumbing deficiency work, that he would be a service person and therefore in a unit of construction labourers. It is absurd to suggest that when he performs one of those functions for the major part of the day, as part of his duties as a service person, he suddenly enters another bargaining unit. Thus while the performance of this type of work, in the abstract, is part of the core of the carpenters’ craft, in the context of deficiency work it falls within the peripheral area of work which may be performed by both carpenters and labourers. The craft of an employee does not change because the mix of his or her duties changes from day to day.

26This analysis is very specifically contextual. First, this type of organisation of the performance of this work is common only in the low-rise portion of the residential sector of the construction industry, and probably limited to the GTA. Second, even within that narrow portion of a sector, it is dependent on what the employer is actually doing in assigning specific work functions on the day of application. If, for example, the responding party had decided to take over the framing of the last few houses from a framing subcontractor and assigned a crew of service persons to finish off the framing, such persons would likely fall in the unit of carpenters and carpenters’ apprentices. In that case, the context for this work would be the builder acting as a framing contractor, completing a portion of the initial construction of the house. Even if the work took only one day, the persons generally employed as service persons would, like the carpenter in Delco, supra, find themselves in a different bargaining unit for that day.

27We disagree with the distinction which counsel for the applicant attempted to draw between “repair-type deficiencies” (i.e. correcting work which had been done) and “work deficiencies” (i.e. work that a sub-trade neglected to do). This distinction was rejected in National Homes as well. While the quantity of the work being done may well define the context, the fact that one (or six) pieces of plywood were not installed at the bottom of the bay windows is a deficiency of the type service persons usually perform. It is not completing the construction of an element of a house.

28This is not to say that this decision represents a different test from the one set out in National Homes. If anything, it is a difference of vocabulary.

29Mr. Biega’s employment fits very clearly with the type of work performed by the persons who were the subject of the Mattamy and National Homes decisions. The Board found that such persons were construction labourers. We find Mr. Biega was too. It is worth noting that Don Murray, a service person who gave Mr. Biega his list of instructions to perform that day, and who generally instructed him on his duties and responsibilities was employed in the same capacity as Mr. Biega. There is no dispute that Mr. Murray fell within the bargaining unit. There is no reason to include him and exclude Mr. Biega. Therefore, Mr. Biega’s ballot will be counted.

Kelly Vangerven

30Mr. Vangerven was employed by Bayview-Wellington at the Port Union site in Scarborough. He did work on the application date. The applicant challenged him on two bases. First, it alleged that he was a person who exercised managerial functions and was therefore excluded from the bargaining unit by section 1(3)(b) of the Act. In the alternative, the applicant alleged that the work he did on the application date was not work which brought him within the bargaining unit.

31The Board is satisfied that he was not managerial. He did hold a managerial position at a different site (Erin) before he moved to the Port Union site. He also assumed the managerial position of the supervisor of that site (John Martini) when Mr. Martini left the site as scheduled later in 1999. However during the period January to May 1999 he had no actual or apparent authority to hire or fire anyone. He could not negotiate or set wages, he could not authorize overtime or time off for vacation or other needs. While, as detailed below, no doubt the employees saw him as a supervisory person, that is not determinative of his real duties and responsibilities.

32With respect to his actual duties in March of 1999 we have two different versions. No witness could remember what he did on March 25, 1999 so all of the evidence which the Board heard related generally to the month of March. Both parties agree that if the version of events given by Mr. Vangerven was correct, he was included in the bargaining unit. If the version given by the three employees called by the applicant is correct, he was not in the bargaining unit as he was performing little or no “physical” construction work. The question for the Board then is which version to accept.

33Mr. Vangerven described himself as Mr. Martini’s “lead hand”. He stated that he operated a bobcat to move material and assist in house cleanouts, operating a mini excavator to dig trenches for utility lines, performed framing deficiencies, insulation, unit cleaning and snow shovelling. He identified Tom Palfrey as a person he had cleaned houses with. Tom Palfrey said he did not. Mr. Vangerven agreed he may have spoken to trades on occasion concerning the scheduling of their work, although Mr. Martini made all of the decisions and arrangements concerning scheduling. He denied ordering materials, a task he said Mr. Martini performed.

34The three employees testified that Mr. Vangerven rarely performed any of the “physical work” of the type he described. Tom Palfrey did agree that he saw him operating a bobcat for between thirty minutes and one hour each day. However, Mr. Palfrey said that Mr. Vangerven’s job appear to be “to keep things organized and keep the site moving”. All three employees said that Mr. Vangerven never, in their sight, carried tools but rather a briefcase, cellphone, pad and paper. When they saw him enter a house it appeared to them that he was there to supervise the work of other trades or as part of an inspection. Dan Rice testified that he had worked in houses which he saw Mr. Vangerven enter. He did not see, or more significantly hear him performing any deficiency work. Employees saw him examining houses with inspectors for municipal inspections and PDIs. They saw him doing this with Mr. Martini and on occasion alone. They testified that they heard him on the telephone in what appeared to be conversations arranging the scheduling of sub-trades and the delivery of materials. However, they agreed they heard him do so only on break and lunch time when they were in the trailer. They testified that Mr. Vangerven gave them orders about the work they were to do. Mr. Vangerven said that these were orders that he conveyed from Mr. Martini. The three employees testified that Mr. Vangerven did not say that and appeared to be conveying his own decisions and instructions.

35Much of the evidence needs to be seen in terms of the perception of the three employees. I accept that Mr. Vangerven had no managerial authority in March of 1999. He had such authority in 1998 at the Erin site and did again later in 1999 at the Port Union. I have no doubt that when he conveyed the instructions to labourers from Mr. Martini his manner and tone (and indeed his mode of expression) was likely that of a supervisor. Once seen in this light, the perception of the three employees and their recollection of the kinds of work that they associated him with on the site in March of 1999 may well have been coloured.

36There is no question that the three employees could not and did not see the work performed by Mr. Vangerven for most of the day. He is working on a phase of the project for seventy per cent of the day which none of the three employees worked at. Taking their own estimates of the amount of time he was within view, combined the total of the three employees might be as low as an hour a day or as high as three and a half hours a day. On the other hand, it would be surprising if none of them ever saw Mr. Vangerven doing construction work (other than the one half to one hour on the bobcat each day) if he did perform the variety of tasks he said he did. From time to time, one of the employees would be working in a house which Mr. Vangerven entered. It is of course true that the employee would be unable to see what he was doing when he was outside of the room in which that employee was working. But it is not surprising that employees would have a general sense of what he was doing and in particular would have known by the nature and volume of sound he made if he was in fact doing any construction work.

37Mr. Vangerven’s evidence related to March of 1999. He says that he was Mr. Martini’s “lead hand” and replaced him as supervisor when he left. He had been a supervisor at the Erin site. It appears that Bayview-Wellington had transferred him to Port Union in order to retain his services during a period of time when they did not have work for him to do in order to employ him when Mr. Martini left the Port Union site. It is consistent with that career path that he would be doing a little or no service work, but rather assisting the supervisor he was to replace.

38On the other hand, the Board found nothing in the demeanour of Mr. Vangerven nor in the manner of his testifying that would lead the Board to conclude that he was not telling the truth. The opportunity to confuse March with some other period is very small.

39In the end this is a very difficult call. One witness we did not hear from was John Martini. He is still employed by Bayview-Wellington. Counsel submitted that Mr. Martini could not tell the Board anything about March 25 as his memory was unlikely to be better than anyone else’s. This is undoubtedly correct. However, he could have testified as to the type of work he assigned to Mr. Vangerven while he was working under him in March of 1999. No explanation was given for the failure to call him. On that basis I draw the inference that Mr. Martini’s evidence would not support that of Mr. Vangerven and therefore I must conclude that the evidence of the three employees is more likely accurate, on the balance of probabilities.

40On that basis I find that Mr. Vangerven did not perform bargaining unit work for any significant portion of the day and is therefore not entitled to vote and his ballot is not to be counted.

41The Board orders the ballots cast in the representation vote to be counted. The ballots counted will be those of the persons who were not challenged and that of Mr. Joe Biega. All of the other ballots are to be destroyed without being counted. This matter is referred to the Manager of Field Services. The parties may address the Board with respect to any issues that remain outstanding after that time.

“David A. McKee”

for the Board