3252-00-R Ken Fields, Applicant v. Teamsters, Chauffeurs, Warehousemen and Helpers Union Local 880, Responding Party v. 1078266 Ontario Ltd. c.o.b. as Jo Jo Trucking, Intervenor.
0930-01-U Teamsters, Chauffeurs, Warehousemen and Helpers Union Local No. 880, Applicant v. 1078266 Ontario Ltd. c.o.b. as Jo Jo Trucking, Responding Party.
BEFORE: John Morgan Lewis, Vice-Chair.
APPEARANCES: David Deluzio and Ken Fields on behalf of Ken Fields; David Watson, Gary Kitchen and Don Billette on behalf of Teamsters, Chauffeurs, Warehousemen and Helpers Union Local 880; Patrick F. Milloy and Joe Francisco on behalf of 1078266 Ontario Ltd. c.o.b. as Jo Jo Trucking.
DECISION OF THE BOARD; September 19, 2001
1Board File No. 3252-00-R is an application for termination of bargaining rights in the construction industry. Board File No. 0930-01-U is an application under section 96 of the Labour Relations Act, 1995 (the “Act”).
2These matters were scheduled to be heard on July 16, 2001 at which time counsel for Teamsters, Chauffeurs, Warehousemen and Helpers Union Local 880 (the “union”) brought a motion seeking the dismissal of Board File No. 3252-00-R. That motion was argued before the Board and the Board reserved its decision. This decision deals with the union’s motion.
3On May 17, 2000, the union was certified as the bargaining agent for the employees of 1078266 Ontario Ltd. c.o.b. as Jo Jo Trucking (the “employer”) in the following bargaining units:
all teamsters in the employ of the employer in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario, save and except non-working foremen and persons above the rank of non-working foreman.
and
all teamsters in the employ of the employer in all sectors of the construction industry in the Counties of Essex and Kent, excluding the industrial, commercial and institutional sector, save and except non-working foremen and persons above the rank of non-working foreman.
4Pursuant to section 162 of the Act, the employer became bound to the Provincial Collective Agreement between the Construction Site Teamster Employer Bargaining Agency and the Teamster Construction Council of Ontario effective from September 28, 1998 to April 30, 2001. As of the date of the filing of the application for termination no collective agreement had been made in the non-ICI sector(s).
5The applicant describes the bargaining unit for which the union is the bargaining agent as “all truckers employed by the intervenor in and around Essex County”. The applicant also indicates that no collective agreement is in force. In correspondence dated June 1, 2001 counsel for the applicant indicates that the applicant was not aware that the union obtained two certificates when it certified the employer on May 17, 2000.
6The union maintains that the correct bargaining unit description is: “All teamsters in the employ of the employer in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario”. The union has raised a number of challenges to the application for termination. The union asserts that the application is untimely and is defective as it seeks to terminate bargaining rights in two distinct bargaining units, which the union maintains is not contemplated by the Act. The union has also challenged the application on the basis that it was instigated by the employer and should be dismissed pursuant to section 63(16) of the Act.
7The union’s preliminary motion did not address any of these arguments. The union’s position in the preliminary motion is that the application for termination should be dismissed as there were no individuals employed by the employer who were working in the construction industry on the date of application. Accordingly, there were no employees working in either of the bargaining units which is fatal to the application for termination of bargaining rights. It was agreed by the parties that no evidence was required to determine the union’s preliminary motion. For the basis of the motion, the union was prepared to accept the facts as pleaded by counsel for the applicant in his letter dated June 1, 2001 with respect to the work duties of the affected individuals on the date of application. The relevant pleadings are reproduced as follows:
There were five (5) employees at work on the day in question, all of whom were doing the same type of work, namely, preparing their vehicles and doing such work at the yard of the employer in preparation for their usual work as dump truck drivers, hulling [sic] aggregate from mostly residential construction sites, which work they would resume doing that week after a lengthy temporary seasonal layoff.
8The Board has consistently held that it will only look at the date of application for determining the status of employees in the bargaining unit. The Board has applied this analytical framework in both applications for certification as well as applications for termination in the construction industry. In T.E. Leroux Contracting Ltd., [1982] OLRB Rep. August, 1204, the Board wrote as follows:
… The legislation is clear, an application for termination can only be brought by employees in the bargaining unit. In the instant case, that is a bargaining unit consisting of carpenters and carpenters’ apprentices. In certification cases involving the construction industry provisions of the Act, the Board has consistently held that it will only look to the date of the making of the application as the date for determining the list of employees in a bargaining unit. See, for instance, Keystone Contractors Limited, [1966] OLRB Rep. Feb. 821. The reasons for this rule is that it eliminates extensive arguments concerning the type of work being performed by employees who may or may not be in a particular bargaining unit. Counsel for the respondent trade union argued that in a termination case involving a construction union, the same test ought to be applied. Thus the Board should look to the date of the making of the application and if there were no employees in the bargaining unit or if the applicants are not employed in that bargaining unit as in the present case, then they should not be entitled to bring such an application.
We are of the view that in cases involving construction trade unions the Board ought only to look at the date of the making of the application for termination, to determine the status of employees under section 57(2) to make that application…
9On the date of application, all of the affected employees were preparing their trucks for the upcoming construction season after the winter season. Their work was confined to the employer’s yard. Are these work duties of such a nature to fall within the construction industry? After considering the submissions of counsel and the authorities referred to in argument, the Board finds that the employees were not working in the construction industry on the date of application. The Board’s reasons are as follows.
10Section 1(1)(f) of the Act defines the construction industry in the following terms:
construction industry means the businesses that are engaged in constructing, altering, decorating, repairing or demolishing buildings, structures, roads, sewers, water or gas mains, pipe lines, tunnels, bridges, canals or other works at the site thereof.
The Board has had many opportunities to consider this definition and in particular the phrase “at the site thereof” in the context of truck drivers. For example, in Ethier Sand & Gravel Limited, [1979] OLRB Rep. Oct. 962, Canadian Road Asphalts Limited, [1980] OLRB Rep. March. 299 and Maitland Redi-Mix Concrete Products Limited, [1980] OLRB Rep. Dec. 1751 the Board found that truck drivers delivering materials to construction sites are not engaged in work within the construction industry. Conversely, the Board has determined that truck drivers engaged in hauling excavated material from a construction site are engaged in the construction industry both when on the construction site and while travelling off-site to the a dump site. (See Farry Excavating & Grading Ltd., [1991] OLRB Rep. Apr. 468 and the cases cited therein.)
11An individual need not be working all the time on a construction site in order to be found to be engaged in the construction industry. The definition of “employee” in section 126 of the Act includes those who are engaged in whole or in part in off-site work but who are commonly associated in either work or bargaining with on-site employees. There needs to be a nexus between the individual in question and a construction site. No such nexus exists in this case with respect to the employees who were working for the employer on the date of application. The employees were preparing their trucks after they had been idle for the winter season. They performed this activity at the employer’s yard. In such circumstances the Board finds that they were not engaged in the construction industry on the date of application. As there were no individuals employed in either bargaining unit on the application date, the union’s motion is hereby granted. Board File No. 3252-00-R is dismissed.
12The Board directs the union to advise the Registrar of the Board in writing within 10 working days of this decision whether it wishes to proceed with Board File No. 0930-01-U. Should the union fail to advise the Registrar of the Board within the prescribed time period, the Board shall dismiss Board File No. 0930-01-U without further notice to the parties.
13The employer is directed to post copies of this decision where it is most likely to come to the attention of all employees who may be affected by it. The copies are to remain posted for 30 days.
“John Morgan Lewis”
for the Board