0579-99-R International Union of Operating Engineers, Local 793, Applicant v. 1145389 Ontario Inc. o/a K & J Excavating, Responding Party.
BEFORE: Caroline Rowan, Vice‑Chair.
APPEARANCES: Robert Gibson and Mike Unsworth for the applicant; O.J. Deleersnyder for the responding party.
DECISION OF THE BOARD; June 20, 2000
This is an application for certification in the construction industry filed by the International Union of Operating Engineers, Local 793 (the “union”) in respect of a unit of employees of the responding party, 1145389 Ontario Inc. o/a K & J Excavating (the “employer”).
By decision dated May 28, 1999, the Board found, pursuant to section 158(1) of the Labour Relations Act, 1995 (the “Act”), that all employees of the responding party in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario and all employees of the responding party in all other sectors of the construction industry in the County of Lambton engaged in the operation of cranes, shovels, bulldozers or similar equipment, and those primarily engaged in the repairing or maintaining of same, and employees engaged as surveyors, save and except non-working foreman, constitute a unit of employees of the responding party appropriate for collective bargaining. The Board further directed that a representation vote be held on June 2, 1999.
The sole issue outstanding in this application relates to the status of two individuals to cast a ballot in the representation vote. The two individuals in issue are Mr. Randy Hall and Mr. Michael Mitchell. In both cases, the status issue relates to whether or not these individuals performed bargaining unit work for the majority of the day on the date of application, being May 25, 1999.
The test for determining whether or not an individual is to be treated as an employee in the bargaining unit in the construction industry has become known as the Gilvesy test, and is set out in E.E. Seegmiller Limited, [1991] O.L.R.B. Rep. October 1124, as follows:
In the construction industry, the Board has been consistently applying what has come to be known as the Gilvesy test. This test first enunciated in E. & E. Seegmiller Limited [1987] OLRB Rep. Jan. 41 at para. 23 as follows:
In making our determination with respect to Mr. Murray, we considered the work performed by the persons whose status was in dispute in these proceedings both on the date of application and during a period prior to that date. However, it appears to us that recourse to a “representative period” has made the certification process in the construction industry less consistent, certain, and expeditious than it might be. The use of any such period is inconsistent with the requirement that a person be both employed by the respondent and at work on the date of application. The very nature of a “representative period” is such that its length will vary accordingly to the circumstances of the particular application and creates uncertainty. Looking to a “representative period” overlooks the fact that once a trade union has been certified as bargaining agent for a bargaining unit of employees of an employer in the construction industry, any collective agreement to which that employer becomes bound, whether a provincial agreement or not, will apply to persons doing the work covered by that agreement. Consequently, whether or not an employee is covered by a particular collective agreement and represented by a particular bargaining agent depends on the work that s/he is doing at the time and is in no way dependent upon the work that s/he performed during any previous period. Further, the use of a “representative period” had tended to result in protracted and expensive proceedings before the Board. Because it is important that the Board’s policies and tests be consistent and create as certain, equitable, and expeditious a means as possible for ascertaining which persons are in a bargaining unit, and having regard to the nature of applications for certification in the construction industry, we take the view that the Board should eliminate its use of “representative period” and restrict itself to the following criteria:
(a) whether the person was employed by the respondent and at work on the date of application; and
(b) if so, the work that that person spent the majority of his/her time doing on the date of application or
(c) where there is no conclusive evidence with respect to the work that the employee performed on the date of application, any other relevant factor, including the primary reason for hire.
(see also Gilvesy Enterprises Inc. [1987] OLRB Rep. Feb. 200).
In the circumstances of the present case, there is no dispute that both Mr. Hall and Mr. Mitchell were persons employed by the responding party and were at work on the date of application. The issue before the Board in this case therefore concerns the nature of the work that these two individuals spent the majority of their time performing on May 25, 1999.
Michael Mitchell
Mr. Mitchell was working on the employer’s “Oil City” job site from 7 a.m. to 2:30 p.m. on the date of application. The work performed at this job site involved road reconstruction with some installation of services, which work included digging up the old road and making a new street with curves and asphalt. On May 25, 1999, the work performed at that site involved putting topsoil on the boulevards and putting in a gravel grading. The crew working on the site that day consisted of Mr. Jim Rade, Mr. Michael Mitchell, Mr. Mark Demeyer, Mr. Mike Tonneguzzo and Mr. Matthew Kettle. Mr. Rade was the foreman on site that day. He also happens to be Mr. Mitchell’s father-in-law.
Both Mr. Mitchell and Mr. Rade testified on behalf of the union concerning the work performed by Mr. Mitchell that day. Both indicated in their evidence that Mr. Mitchell worked in tandem with Mr. Rade throughout the course of the day on May 25, 1999. Mr. Rade was using an 850 Case bulldozer to lay and spread gravel along the roadway and Mr. Mitchell followed along behind him operating a “packer” (also referenced to as a roller) to compact the gravel. Mr. Rade indicated that he worked in close proximity to Mr. Mitchell all day as Mr. Mitchell was following behind him with the packer. Both Mr. Mitchell and Mr. Rade also testified that Mr. Mitchell spent approximately ninety (90) per cent of the day (or roughly six (6) hours) operating the packer. The balance of Mr. Mitchell’s time was generally spent performing the work of a surveyor, which work involves checking the grades of the road.
Mr. Mike Unsworth, the business agent for the union, also testified that he visited the Oil City job site both in the morning at around 7:15 a.m. and again at around 1 p.m. that day. He said that when he first arrived in the morning, all of the equipment on site including the packer was warming up. About fifteen (15) minutes after his arrival, he observed Mr. Mitchell operating the packer. Mr. Unsworth stated that he also observed Mr. Mitchell operating the packer further down the street upon his return to the Oil City job site later that afternoon.
There is no dispute between the parties that the operation of a packer or roller involves bargaining unit work. The employer, however, contends that Mr. Rade was not operating a packer as alleged, but rather was doing the work of a labourer for the majority of the day. The employer takes the position that Mr. Mitchell was simply using a shovel that day to spread topsoil on the boulevards. In this respect, Mr. Keith Matthews, who at that time was responsible for estimating and ordering equipment, gave evidence on behalf of the employer. Mr. Matthews testified that he visited the Oil City job site for about fifteen (15) to twenty (20) minutes in the morning and again for approximately twenty (20) to thirty (30) minutes between 2:30 and 3:00 p.m. in the afternoon of May 25, 1999. He states that he recalls seeing Mr. Mitchell in the morning putting topsoil in behind the curves and that Mr. Mitchell was working with Mr. Matt Kettle and Mr. Mike Demeyer at that time. Mr. Matthews also stated that, to his knowledge, Mr. Mitchell was hired as a labourer and not as a machine operator apprentice as contended by the union.
Mr. Matthews, however, confirmed that there was a packer on site that day, although he did not recall seeing it warming up when he visited the Oil City job site that morning. Mr. Matthews further conceded in evidence that Mr. Mitchell could have been running the packer that day during the period of time Mr. Matthews was not on site. He also indicated that Mr. Rade could have assigned Mr. Mitchell to operate the packer that day without his knowledge and that a small portion of Mr. Rade’s responsibilities included assigning workers to equipment if required. Mr. Matthews also noted that when he attended at the Oil City job site in the afternoon between approximately 2:30 and 3:00 p.m., the majority of the pile of gravel had already been placed on the driveways.
Mr. Matthews could not, however, say whether or not the gravel had been packed, since it was hard to see because of the rain. In this respect, he indicated that on May 25, 1999 it rained on and off all day changing from constant to intermittent rain. Mr. Matthews did not, however, believe it likely that gravel had been packed that day since one does not normally use the packer when it is raining. He also suggested that it was not likely because there was very little stone that “came in” that day and that normally one uses the roller when one is putting in stone.
Mr. Matthews’ diary notes for the week commencing Tuesday, May 25, 1999 indicate that the packer in question operated for a total of twenty (20) hours that week. According to Mr. Matthews, this represents twenty (20) hours of operation over a period of four working days as the Monday of that week was a holiday. Mr. Matthews also observed that while Mr. Rade’s time sheet for that day confirms that Mr. Rade was overseeing the job and was also running the 850 bulldozer, Mr. Mitchell’s time sheet did not indicate that he had used any equipment. According to Mr. Matthews, the normal procedure is for a worker to record the equipment used on his or her timesheet.
Having regard to all of the evidence before it, the Board accepts the evidence of Mr. Rade and Mr. Mitchell that Mr. Mitchell spent approximately ninety (90) percent of his day on May 25, 1999 operating the packer. In this respect, the Board notes that the evidence of Mr. Rade and Mr. Mitchell is clear and consistent that Mr. Mitchell was operating the packer for the majority of the day on May 25, 1999. He was working in tandem with Mr. Rade throughout the course of the day as he was following behind Mr. Rade who was spreading gravel along the roadway using a bulldozer. Mr. Rade was therefore in a position to observe what Mr. Mitchell was doing throughout the course of the day.
The Board also notes that Mr. Rade and Mr. Mitchell’s testimony is consistent with that of Mr. Unsworth who visited the job site on two occasions that day and observed Mr. Mitchell operating the packer on both occasions. In addition, even if it accepts Mr. Matthews’ evidence that he observed Mr. Mitchell using a shovel during his brief visit to the job site that morning, the Board notes that Mr. Mitchell could still have spent the majority of the day operating the packer. As Mr. Matthews conceded in cross-examination, it is possible that Mr. Mitchell was operating the packer for most of the day when Mr. Matthews’ was not present at the job site.
The Board is not persuaded that Mr. Rade and Mr. Mitchell’s evidence on this point should be rejected simply because it rained that day or because the employer’s records indicate that the packer only operated for a total of twenty (20) hours that week. There are no records of how long the packer operated on that particular day. It is therefore conceivable that Mr. Mitchell spent approximately six (6) hours operating the packer day as he claimed. Even assuming that Mr. Rade and Mr. Mitchell’s estimate of the time spent by Mr. Mitchell operating the packer that week was somewhat exaggerated, in all of the circumstances, the Board still accepts that Mr. Mitchell spent the majority of his time on May 25, 1999 operating the packer.
The Board’s conclusion in this regard is bolstered by the fact that a number of other crew members were present at the Oil City job site on May 25, 1999, and who therefore would likely have observed Mr. Mitchell’s activities most of that day. For example, the Board notes that, according to Mr. Matthews’ evidence, Mr. Mitchell was working with Mr. Matt Kettle and Mr. Mike Demeyer when Mr. Matthews attended at the job site for a brief period that morning. Notwithstanding this, none of the other crew members working at the Old City job site that day were called as a witness to contradict the consistent evidence of Mr. Rade and Mr. Mitchell that Mr. Mitchell used the packer for the majority of his time that day.
For all of these reasons, the Board finds that Mr. Mitchell was using a packer for the majority of his time on shift on May 25, 1999. The Board therefore finds that Mr. Michael Mitchell was performing bargaining unit work for the majority of the time on the date of application and as such had status to cast a ballot in the representation vote.
Randy Hall
Mr. Randy Hall (“Mr. Hall”) worked at the responding party’s job site in Petrolia on May 25, 1999 from approximately 7:00 a.m. to 4:00 p.m. Mr. Hall left earlier than usual because of the rain. His shift was therefore approximately nine (9) hours in length that day. The work at the Petrolia job site involved lifting a portable schoolhouse. It was Mr. Hall’s evidence that he performed bargaining unit work consisting of the operation of an 892 John Deere backhoe excavator for approximately three (3) hours on the date of application. Mr. Hall’s evidence was that he had initially tried to lift the portable with hydraulic bottlejacks commencing at around 7:00 a.m. on May 25, 1999 until approximately 1 p.m. He worked together with his brother, Mr. Carl Hall.
As their efforts proved unsuccessful, Mr. Hall testified that they then tried to lift the portable with an 892 John Deere using straps wrapped around the building. Mr. Hall stated that he started to operate the 892 John Deere backhoe excavator in or around 1:00 p.m. on May 25, 1999. Mr. Hall testified that he did not otherwise operate any equipment other than the 892 John Deere and the hydraulic bottlejacks on May 25, 1999. He went home around 4:00 p.m. because of the rain.
The employer did not dispute counsel for the applicant’s submission that the operation of an 892 John Deere backhoe excavator is bargaining unit work and that the operation of the “jacks” referred to by Mr. Hall in evidence is not bargaining unit work. The union, however, takes the position that Mr. Hall did not operate the 892 John Deere on May 25, 1999 for a three (3) hour period as alleged or otherwise. In this regard, Mr. Unsworth, the business agent for the union, testified that he visited the Petrolia job site on May 25, 1999 for the specific purpose of determining whether or not any bargaining unit work was being performed on the date the union proposed to apply for certification. He attended the job site that day and took pictures of part of the Petrolia job site including part of the portable in question. No backhoe excavator appears in these pictures. Mr. Unsworth further stated that he is familiar with the equipment referred to as an 892 John Deere and that he saw no such piece of equipment on site that day.
Even if the Board accepts Mr. Hall’s evidence that he operated the 892 John Deere for approximately three hours on May 25, 1999, the Board is nonetheless unable to find that Mr. Hall spent the majority of his time doing bargaining unit work on the date of application. This is because the three (3) hour period alleged represents only approximately one third of Mr. Hall’s nine (9) hour shift that day. In all of these circumstances, the Board is unable to find that Mr. Hall spent the majority of his time on the date of application doing bargaining unit work. As such, Mr. Hall did not have status to cast a ballot in the representation vote.
This matter is referred to the Manager of Field Services to count the ballots cast in the representation vote. The segregated ballot of Mr. Michael Mitchell should be counted together with the other non-segregated ballots cast whereas the segregated ballot of Mr. Randy Hall should be destroyed and not counted.
“Caroline Rowan”
for the Board