1096-00-R International Union of Painters and Allied Trades, Applicant v. Blastco Corporation, Responding Party.
BEFORE: Mary Ellen Cummings, Alternate Chair.
APPEARANCES: S.B.D. Wahl, W. Nichols and Rob Kucheran for the applicant; Mark A. Stone and John Vander Hayden for the responding party.
DECISION OF THE BOARD; December 17, 2001
This is an application for certification in the construction industry. The International Union of Painters and Allied Trades (the union) seeks to be certified to represent the employees in the following bargaining unit:
all painters and painters’ apprentices in the employ of Blastco Corporation in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario and all painters and painters’ apprentices in the employ of Blastco Corporation in all other 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; the United Counties of Stormont, Dundas and Glengarry, save and except non-working forepersons and persons above the rank of non-working foreperson.
There were a number of issues between the parties arising out of the application. At the start of the hearing, the issue of the status of the union was resolved.
Status of the union
Based on the material filed by the applicant, the Board is satisfied that the International Brotherhood of Painters and Allied Trades has, by resolution, changed its name to the International Union of Painters and Allied Trades. Since the International Brotherhood of Painters and Allied Trades long ago established its status as a trade union, and a trade union in the construction industry, under Labour Relations Act, 1995 the (“Act”), the Board concludes that International Union of Painters and Allied Trades is a trade union within the meaning of section 1 of the Act, and within the meaning of section 126 of the Act.
The parties also reduced the number of voter eligibility issues. They agreed that the following individuals were eligible to vote:
Kyle Bomberry
Fred Lake
Dan MacDonald
Joe Powless
Status of persons to vote
The union maintained its position that Jay Soper is not an employee within the meaning of the Act, and in any event, did not perform the work of the bargaining unit for the majority of the day the application was made. The responding party took the position that Mickey Waukey, Corey Patey and Curtis Bomberry were not performing work of the bargaining unit on the application date. The Board heard evidence on these issues over a number of days.
The application date was Saturday, July 8, 2000. Blastco Corporation (Blastco or the employer) was working two jobs that day; the blasting and painting of a water tower in Markham and the blasting and painting of a bridge in Cornwall. Mr. Soper was involved with the water tower crew while Mr. Bomberry, Mr. Waukey and Mr. Patey were working at the Cornwall bridge. I will start with a review of the evidence surrounding Mr. Soper and the Markham water tower.
The Status of Mr. Soper
Mr. Soper was hired approximately 3 years ago to what he calls a working foreman position, with the job of running blasting and painting jobs, keeping the work going and ensuring that employees had all the supplies needed each day. He saw his role as being out on the road with crews to get the job done. He acknowledged that he was not hired to blast and paint.
Mr. Soper is described on his business card as Site Manager and in the employer’s staff newsletter as a Project Manager. Mr. Soper did not see himself as such, and speculated that the titles may have been used to facilitate cross border travel to work in the United States.
Mr. Soper had some background and experience as a working foreman doing similar work. In that job he said he regularly worked the tools.
At Blastco, Mr. Soper regularly worked with a crew of about 5, but it could be larger depending on the size of the job. It was not unusual for a crew to start off large, and then change in complement as the work progressed. Mr. Soper reports to John Vander Hayden, the employer’s Director of Operations.
Mr. Soper said Mr. Vander Hayden determines how many crew members are needed for a job. Mr. Soper often works with the same “core” crew members and he and Mr. Vander Hayden will discuss who else might be available, either because another Blastco job is finishing or because Mr. Soper may know that an employee is on lay-off, or a former Blastco employee would like to return to work. Mr. Soper has input into those discussions, but the hiring and crewing decisions are made by Mr. Vander Hayden. Mr. Soper, however, will often be the one to place the call to employees advising them when and where they are to report to work.
Although Mr. Soper can determine who is to do what task each day, based on Mr. Vander Hayden's directions, in practice, crew members have personal preferences which can usually be accommodated.
Mr. Soper’s testimony that he spoke with Mr. Vander Hayden 3 or 4 times a day and that Mr. Vander Hayden usually visited the job site once a day, was not contradicted. Mr. Soper said he regularly consulted with Mr. Vander Hayden about the progress of a job, whether it was being done within estimated hours, and discussed any quality control issues.
Mr. Soper considers one of his responsibilities is to ensure that the work is done within the allocated hours Blastco has assigned for the job. He said he discusses with his crew whether their performance meets Blastco’s expectations. Mr. Soper also carries forms for recording a customer’s request for extra work. However, Mr. Soper said he would always contact Mr. Vander Hayden to get a price for any additional work. Mr. Soper has no responsibility for maintaining the budget of any job, beyond ensuring that the hours worked do not exceed the allocated hours.
For the Markham water job, the client had retained an independent quality control inspector to test the thickness of applications and to measure temperature and humidity. Mr. Soper said that in most jobs, an independent person is retained, but if not, he is responsible for taking and recording these quality control measurements.
Some days the crew cannot paint because humidity levels are too high to permit proper adhesion of the product. Mr. Soper contacts Mr. Vander Hayden, discusses the conditions and weather outlook, and the two would discuss whether to send the crew home, or have them perform other tasks, such as site clean up. Mr. Soper testified that Mr. Vander Hayden makes those decisions.
Mr. Soper also raises issues of employee performance, but he said that most matters were resolved at the job site, without Mr. Vander Hayden’s knowledge. Mr. Soper said that he has never disciplined an employee or terminated anyone, although he may have threatened once to fire someone. But Mr. Soper said, all of the employees know that he does not have the authority to terminate anyone.
Mr. Soper has made requests for employee wage increases, and discussed with Mr. Vander Hayden whether the employee has acquired the skills to warrant the raise, but there is no dispute that Mr. Soper does not make the decision about whether the pay change is made. In contrast to other employees on the job, Mr. Soper is paid a salary which is not dependent on how many hours he works.
Mr. Soper tracks the daily and weekly hours of employees and gives them to the Blastco office for payroll purposes. Mr. Soper said he has passed on requests for vacation or days off for Mr. Vander Hayden’s approval, but Mr. Soper would be expected to give an opinion of the impact of the absence on getting the job done.
Mr. Soper carries payroll forms which would be completed when an employee is hired. Mr. Soper testified that he would only fill out such forms after he had discussed hiring someone with Mr. Vander Hayden. Although such a situation has never arisen for Mr. Soper, he said that if he was on a distant job and desperate to hire someone, he might interview the person, then seek Mr. Vander Hayden’s approval for hiring. However, to this point, Mr. Soper has had no role in hiring.
For the most part, Mr. Soper is involved with one job at a time. Mr. Kyle Bomberry, an employee on the Markham water tower job, recalled that Mr. Soper was at the job site every day he was, although not always for the whole day. Mr. Soper remembered one time when he had responsibility for two crews; one working on a ship in Hamilton and one on a ship at Port Dalhousie. Mr. Soper moved back and forth between the two jobs.
When asked when he would work the tools for Blastco, Mr. Soper answered any time that the crew was behind, or someone needed help, or someone was absent from the crew.
But Mr. Soper had a range of responsibilities, some of which required him to leave the site. Mr. Soper purchased some materials, particularly, disposables and made arrangements for, say, a welder to come and do a task, but again, only after discussion with Mr. Vander Hayden. He could also requisition, after discussion with Mr. Vander Hayden, a truck to come to a job site and move a large piece of equipment. If Mr. Soper has to leave the work site, he leaves crew instructions with the lead hand.
Mr. Soper has a corporate credit card to pay for gas, lodging and small supplies. He is provided with a company truck for his exclusive use. Crew members travel together in another vehicle.
Mr. Soper has significant responsibility for safety on the job. He is considered by Blastco to be a “supervisor” under the Occupational Health and Safety Act. He conducts job safety meetings, recording minutes and passing on to Blastco’s Manager of Health and Safety any issues that require follow up. Mr. Soper keeps the relevant material safety data sheets, and is responsible for reporting any accidents or injuries. In Blastco’s policy manual, persons in Mr. Soper’s position are charged with the responsibility of providing a safe workplace.
Mr. Soper would supervise any confined space entries, a not infrequent event. That requires ensuring that employees are trained, have the proper equipment, checking oxygen level monitors and completing the “Confined Entry Space Checklist/Log”.
Although employees who had been part of Mr. Soper’s crew testified about their perception of the scope of Mr. Soper’s authority and their knowledge of the authority of other supervisors, there is no evidence to contradict Mr. Soper’s testimony that he had no ability to hire, fire, discipline or grant wage increases.
Turning now to what work Mr. Soper was performing on the application date, he recalls that he arrived at the site between 8:00 and 9:00 am. The rest of the crew, which consisted of Fred Lake, Kyle Bomberry, Murray Ottman, Dan McDonald and Gord Blake had been at work since 7:00 am. Mr. Soper believed that when he arrived, Mr. Lake was painting from a ladder. Later, in his cross-examination, Mr. Soper said that Mr. Lake may have been up in the paint enclosure, moving it at the time of Mr. Soper’s arrival. Mr. Soper testified that he remained at the job site for 30 to 45 minutes. Mr. Soper testified that the first time he was at the site that day, he held the ladder for Mr. Lake who was painting, doing touch up work on the bottom of the bell, cutting in edges around the concrete. Mr. Soper also said that he helped with the paint mixing, while watching what was going on in the paint enclosure to ensure the crew was progressing.
Mr. Soper then left the job site. He believes that he was gone half an hour to an hour. When asked how long he remained at the site on his return, Mr. Soper could not recall, nor could he remember whether he left again before his final departure. Mr. Soper was asked whether he recalled that when he returned, the crew was down on the ground. Mr. Soper responded that “was probably right” and that the employees were on a lunch break. When asked if he recalled telling Gord Blake that the crew should work until 3:00 pm, Mr. Soper responded “that’s probably the way it happened” but that he would have given the instruction to the whole crew, not just Mr. Blake. Mr. Soper left the site for the last time, during the crew’s lunch break, so sometime between 12:00 p.m. and 12:30 p.m. Mr. Soper was not asked where he went when he left the work site in the morning nor was he asked why he left before the crew finished. However, elsewhere in the evidence about the general pattern of Mr. Soper’s work, it was noted that it was not unusual for him to come and go from the site during the workday.
Mr. Lake also testified about what Mr. Soper did on the application date. But, it is important to note that Mr. Lake firmly recalled that he spent the whole of the day, except the lunch period, up in the enclosure and was unable to see what was happening on the ground. While that evidence is significant because it contradicts Mr. Soper’s evidence that he held a ladder for Mr. Lake, it is also noteworthy because it affects Mr. Blake’s ability to observe Mr. Soper. Mr. Lake saw Mr. Soper only during the lunch period.
Mr. Kyle Bomberry, in contrast, was on the ground the whole of the day because he was operating the generator and mixing paint for the crew working in the enclosure. He said that Mr. Soper arrived around 9:30, asked Mr. Bomberry a couple of questions around when the crew started, and where everyone was working. According to Mr. Bomberry, Mr. Soper then left, returning at around 10:30. He asked Mr. Bomberry to light a torch to do some cutting, but they were out of fuel, so that task was abandoned. Mr. Bomberry testified that Mr. Soper borrowed his radio and spoke to the crew in the enclosure, asking how everything was going. Mr. Bomberry recalls Mr. Soper then left, returning only when the crew was down for lunch. Mr. Bomberry confirmed Mr. Soper’s testimony that he told the crew to work until 3:00, then Mr. Soper left the site.
There are two aspects to the union’s submission about Mr. Soper’s ineligibility to vote; that he is not an employee within the meaning of the Act, and in any event, he was not performing work of the bargaining unit for the majority of the day of application. I will look at each in turn.
The relevant statutory provision is as follows:
(2) Subject to section 97, for the purposes of this Act, no person shall be deemed to be an employee,
(b) who, in the opinion of the Board, exercises managerial functions or is employed in a confidential capacity in matters relating to labour relations.
- The Board has over the years articulated what are “managerial functions” whose performance means that a person is not an “employee” under the Act and not to be included in a bargaining unit. The principle underlying all of the criteria and factors that the Board has relied upon is relatively simple. It is succinctly set out in Mike Weber’s Construction Company ([1993] O.L.R.D. No. 370 at paragraph 22:
In making determinations under section 1(3)(b), the Board has consistently recognized that effective collective bargaining requires an "arm's length" relationship between employees and persons who exercise managerial functions. In recognition of the divergence between the objectives, priorities and interest of those groups, section 1(3)(b) serves to exclude from the scope of "employee" (for purposes of the Act) persons whose inclusion in the bargaining unit would place them in a position of conflict of interest as between their responsibilities and obligations as managerial personnel, and their responsibilities as union members or members of the bargaining unit. (See for example The Corporation of the City of Thunder Bay, [1981] OLRB Rep. Aug. 1121 and The Corporation of the District of Burnaby [1974] 1 CLRBR at page 3.)
While the Board will look at a number of different indicators which may vary across industries and settings, the goal is always to determine whether or not the inclusion of a person in the bargaining unit will create the kind of conflict that makes both effective bargaining and effective running of the workplace difficult or impossible. In Mike Weber’s Construction Company, the Board referred to its previous jurisprudence in the construction industry, where the issue is typically whether the person is a working or non-working foreman:
We concur with the observations of the Board that in making the determination as to whether a person does or does not exercise "managerial" functions, regard must be had to the nature of the industry and the nature of the particular business. In the construction industry, non-working foremen are typically excluded from the bargaining unit while working foremen are included. That is also the case before us. In the construction industry working foremen are treated in roughly the same way as the leadhands in an industrial setting. Both the working foremen on a construction site, and the leadhand in an industrial setting have some skills, duties and responsibilities which are different from those of their fellow employees. In both cases however, these persons normally work at the tools, or regularly and routinely perform the same work or the same type of work as employees in the bargaining unit. Typically, neither the working foremen at a construction site, nor the leadhand in an industrial setting have the type of control or authority over other employees or the economic lives of their fellow employees as to render them "managerial" within the meaning of the Act. Generally, neither the construction foreman nor the industrial leadhand exercise those types of managerial functions which would result in the conflict of interest which section 1(3)(b) was designed to avoid.
In this case, I am not satisfied that the duties performed by Mr. Soper on a regular basis place him in a conflict situation with respect to the other employees on his crew who would fall into the bargaining unit.
In determining whether or not a person exercises “managerial functions”, the Board has placed considerable reliance on whether the person at issue plays a significant, if not decisive, role in matters of fundamental importance to the livelihood of employees. In Hydro Electric Commission of the Borough of Etobicoke, [1981] OLRB Rep. Jan. 38, at paragraphs 26 and 27, the Board said:
To determine whether the foremen in this case exercise managerial functions within the meaning of section 1(3)(b) of the Act, the Board will look to whether or not they exercise effective control and authority over the people they supervise as may be seen by an ability, at a minimum, to make effective recommendations in areas that materially affect the economic lives of the employees. If they act merely as conduits for management and do not themselves effectively control the economic lives of their employees, they would not be exercising functions with true management significance. As well, foremen would not be exercising managerial functions if they merely gather facts relating to their men from which management is then able to make its own decision as to how to deal with particular situations. Even if foremen’s evaluations of employees are given serious consideration and are relied on by their supervisors in making their decisions affecting employees, the foremen would not be making effective recommendations unless the recommendations are so consistently and frequently followed that it could be said that through the recommendations the foremen are effectively controlling or determining the decisions. A recommendation would not be effective, for example, if it was merely one of several factors considered or relied on by a supervisor in the course of making his own independent decision. Similarly, foremen would not be viewed by the Board as exercising managerial functions if they merely act within strict supervisory guidelines.
Areas of fundamental importance to the economic lives of employees and thus areas that would assist the Board in deciding whether a foreman has effective control and authority over people he supervises would include among others, the foreman’s participation in the hiring, discharging and disciplining of employees, his input into their general performance evaluation, participation in the grievance procedure and, to a lesser extent, the foreman’s ability to give time off and assign overtime.
Mr. Soper has some role and influence around whether employees receive pay increases, and which employees are assigned to his crew, including which employees are recalled from layoff, but I cannot find on the evidence, that Mr. Soper is effectively controlling those decisions. Most significant is the evidence that Mr. Soper does not have the authority to hire or fire or to grant wage increases. Mr. Soper does not have control over the economic lives of employees in his crew.
I agree with the submissions of counsel for the union that Mr. Soper was not hired to work on the tools. He is charged with ensuring a project is completed within budgeted hours and to a standard that meets the quality expectations of the client. To that end, he supervises the daily activities of his crew, ensures they have the supplies they need, and reports any problems or issues to Mr. Vander Hayden. As a result, Mr. Soper does work which is quite different from his crew. He deals with the client or the quality control inspector that has been hired by the client, on an ongoing basis. He takes measurements necessary to maintain quality control. Mr. Soper’s duties take him away from the job site at various points in the day and he does not work the same schedule as his crew.
And in this workplace, Mr. Soper’s responsibilities for health and safety are significant. Because there is a regular need to enter confined spaces, and at locations that are distant from Blastco’s head office, Mr. Soper is assigned to meet the employer’s responsibilities. He is accountable for the crew’s training and conducts on site safety meetings. Mr. Soper is the eyes and ears of the employer on a daily basis, particularly with respect to issues of safety and the completion of work. But all these duties are consistent with the role of a “working foreman” in the construction industry and in the absence of responsibilities and authority over hiring and firing decisions, Mr. Soper would not be in a position of conflict if included in the bargaining unit. I therefore conclude that Mr. Soper is an “employee” for the purposes of the Act.
Turning to the question of what Mr. Soper was doing on the application date, I disagree with the assertion of counsel for the union that the Board must conclude Mr. Soper was not performing the work of the bargaining unit because either he did not “work on the tools” at all that day, or worked on the tools so little of the time that it cannot be said he worked in the bargaining unit for the majority of the day. As a working foreman with responsibilities that are different from the painting and blasting crew, Mr. Soper would not be expected to work on the tools all day or even every day. One of the difficulties with this case is that no one asked Mr. Soper why he did not arrive until two hours or so after the crew started, nor what he was doing when he left the job site at various points, nor why he left the site during the lunch hour. However, as set out earlier, the evidence revealed that it was not unusual for Mr. Soper to be away from the work site for parts of the day. Moreover, his responsibilities to purchase supplies, meet with customers and confer with Mr. Vander Hayden. would require him to leave the site. Consequently, I cannot conclude that the time Mr. Soper spent away from the site on the application date was time spent doing something other than work which falls within his responsibilities as a working foreman.
While he was at the job site, on the basis of both Mr. Lake’s and Mr. Bomberry’s evidence, Mr. Soper was performing the duties of a working foreman. He was checking on the progress of the job; verifying when the employees had arrived; assigning tasks to Mr. Bomberry and giving instructions about what the crew should do for the remainder of the day. Because I conclude that those tasks fall within the responsibilities of a working foreman in the bargaining unit for which the union seeks to be certified, it is not necessary for me to decide the question of whether Mr. Soper was painting for part of the time as he asserts, or did no work “on the tools” as Mr. Bomberry and Mr. Lake asserted.
For all these reasons I conclude that Mr. Soper was performing work of the bargaining unit on the application date and was consequently, entitled to vote in the representation vote. The ballot cast by him should be counted.
The status of Mr. Waukey, Mr. Curtis Bomberry and Mr. Patey
There is no dispute about the work each was doing on the application date. The only question is whether the work each performed is work of the bargaining unit the applicant seeks to represent.
The Cornwall bridge job required blasting off the existing surface, and replacement by painting with another. To contain both the blasting sand and the paint spray, and permit the employees access to the bridge, Blastco arranged for the erection of two eight by 20 foot platforms, called the arc system. As needed, Blastco employees placed tarps around the frame of the arc, using hammers, nails and 2 by 4s to secure the tarps. When the crew was ready to move to another area, the employees dismantled the tarps, moved the platform and re-tarped. On the application date one crew, whose status is not in dispute was blasting and painting of one platform. The other crew, consisting of Mr. Sherman Hughes (whose status to vote was never in dispute) and Mr. Patey spent the entire day dismantling the other platform, moving it and re-rigging.
Mr. Waukey’s work on the Cornwall bridge was his only period of employment with Blastco. He saw a job ad for a labourer at the local Employment Centre and approached the Blastco trailer located at the bridge. He was asked by the foreman at that site if he had personal protective equipment, and was sent home to get it. After a short orientation by the site foreman, Mr. Waukey started to work. He spent most of his time sweeping the sand off the road that was a by-product of the blasting work being done by others. He also occasionally handed necessary tools up to employees who were working in the painting enclosure. He described his principal responsibility as keeping the work site clean. On the application date, he spent the majority of his time sweeping up the road, with the rest of the time spent handing up tools.
Mr. Bomberry spent the entire day on the ground. He was running the compressor that supplied power to the blasters and sprayers used by the painters working all day in the first enclosure. Mr. Hughes, the lead hand on the Cornwall bridge, testified that the compressor is large, mounted on a trailer and has to be pulled by a tractor. Mr. Bomberry’s only work that day was to watch the gauges on the compressor and ensure everything was “all right”.
Neither counsel was able to locate any cases that address whether erecting tarping and moving enclosures falls within the scope of work claimed by the applicant. The scope of work set out in the Provincial ICI collective agreement between the Ontario Painting Contractors’ Association, the Acoustical Association Ontario, the Interior Systems Contractors Association of Ontario and the International Brotherhood of Painters and Allied trades and the Ontario Counsel of the International Brotherhood of Painters and Allied Trades, effective May 1, 1998 to April 30, 2001 reads as follows:
2.01 The scope of work shall consist of, but not be limited to, the following:
The application and/or removal of protective and/or decorative coatings which might be referred to as paints, which in the general sense are: paints, stains, varnishes, emulsions, bituminous coatings and other organic or inorganic coatings which are applied in the same manner as paints or plastics or mastics, hypalon coatings, fiberglassing and caulkings, clear sealer applications, the application of sprayed insulation, application of all seamless floor coatings, sandblasting for decorative purposes and all other types of sandblasting, high pressure water blasting, all markings, stencilling on equipment, machinery, etc., with paint, adhesive stickers or spray bombs, the use of reflective tapes in this field of work and the application of all other material used in the various branches of the Trade, all waterproofing seals, air water barrier seals, all polyurethane spray on foam systems and lead removal or abatement.
All incidental preparatory work necessary to carry out work outlined above, such as patching small defects in surfaces, puttying, sanding, rubbing, cleaning surfaces with steam or other processes to include hydrojet cleaning (high pressure water), sandblasting, pickling bleaching, buffing, sealing, machinery and manual scraping, flame cleaning, the application of cleaning fluids, rust inhibitors, taping, covering surfaces for their protection from paint etc., including the use of miscellaneous hand and power driven tools and equipment required for work coming under this jurisdiction, the filling of spray pots and sand pots, the application of all sealers inside or outside, the application of colour code distinguishing marks and the application of all protective and decorative coatings on all rail cars, truck trailers, piping, insulated or otherwise, and the vacuuming of tanks, etc.
Counsel for the employer submitted that operating a compressor is not included in “the application and/or removal of coatings” and moving scaffold does not fall within the description of “incidental preparatory work”. Counsel pointed out that the United Brotherhood of Carpenters and Joiners of America claim the erection and dismantling of scaffold as their work in the ICI sector of the construction industry, a claim that the Board has recognized in Doug Chalmers Construction Limited [1993] O.L.R.D. No. 130, at least in the Sarnia refinery industry. A review of the ICI Provincial collective agreement of the International Union of Operating Engineers would reveal that this union claims the operation of compressors within their scope of work. Since Mr. Bomberry spent the whole of the application date operating a compressor, and Mr. Patey spent the whole of the application date moving the enclosure, the Board should conclude, counsel submitted, that neither were performing work of the painting trade on that day.
I disagree. In an application for certification, the Board is not choosing among the competing claims of construction trade unions to perform a work assignment. That is the context in which Doug Chalmers, for example, was decided. It will not come as a revelation to anyone involved in the construction industry that the scope of work clauses in collective agreements often overlap and finding for example, that the Operating Engineers claim all compressor operation does not preclude a finding that operating a compressor, in some circumstances, falls within the work jurisdiction of the Painters.
The Board is satisfied that operating a compressor whose only purpose is to power blasting hoses and painting lines is within the work jurisdiction claimed by the union. It is necessarily incidental to painting. Similarly, moving the scaffold for the exclusive use of painters and blasters is within the work jurisdiction claimed by the union. I conclude, therefore, that Mr. Bomberry and Mr. Patey were entitled to vote in the representation vote, and their ballots should be counted.
Turning, finally, to the status of Mr. Waukey, counsel for the employer submitted that if Mr. Patey’s vote counts then so should Mr. Waukey’s. His work of cleaning the site, sweeping the road etc. was just as integral and related to the work of painting as was Mr. Patey’s. I disagree. Mr. Waukey’s work was classic labourers’ work. The tasks he performed for the majority of the work-day fall squarely within the core jurisdiction of construction labourers.
In the often cited case of Ecodyne Ltd., at paragraph 19, the Board said that clean up and tending other trades is at the very core of the Labourers’ work jurisdiction:
This is a case in which the respective claims to jurisdiction do make a difference. As is apparent from their respective collective agreements, tending (of many trades, not just carpenters) and general clean-up work is part of the core of the work jurisdiction of construction labourers represented by the Labourers' union. It is not part of the core of the work jurisdiction of the Carpenters' union, although it is an incidental part of it. Accordingly, the collective agreement factor favours the claim of the Labourers.
Mr. Patey was performing work central to the jurisdiction of construction labourers, not tasks incidental to the work of painters. Consequently, Mr. Waukey was not performing work of the bargaining unit which the applicant seeks to represent for the majority of the day, and he was not entitled to cast a ballot.
In summary, on agreement of the parties, the segregated ballots of Kyle Bomberry, Fred Lake, Dan MacDonald and Joe Powless should be placed in the ballot box. On the determination of the Board, the ballots of Jay Soper, Corey Patey and Curtis Bomberry should be placed in the ballot box. The ballot of Mickey Waukey should not be counted.
This matter is referred to the Manager, Field Services, to arrange a ballot count.
I remain seized to deal with any outstanding matters.
“Mary Ellen Cummings”
for the Board
