Teamsters Local 879 v. A. Cupido Haulage Limited, 1980 CanLII 748

[1980] OLRB Rep. May 679

0716-78-R;0717-78-R Teamsters Local 879 affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Applicant, v. A. Cupido Haulage Limited, v. Canada Crushed Stone, A Division of Steetley Industries Ltd., Respondents v. United Steelworkers of America, Intervener.

BEFORE: Kevin M. Burkett, Alternate Chairman and Board Members H.J.F. Ade and W.F. Rutherford.

APPEARANCES: Ken Petryshen and Mat Elliot for the applicant; Roy C. Filion, A. Craig and A. Cupido for the respondent A. Cupido Haulage Limited; E. L. Stringer, Q. C. and Peter Boffa for the respondent Canada Crushed Stone; no one appeared for the intervener United Steelworkers of America.

DECISION OF THE BOARD; May 23, 1980

1. This is an application for certification filed on July 17, 1978. The matter came on for hearing on August 8, 1978. In a decision dated August 14, 1978 the Board identified the issues raised by the application at paragraphs 5 of the decision as follows:

"The applicant is seeking bargaining rights for the dependent contractor owner/operator truck drivers who service the Canada Crushed Stone pit on Highway #5, Hamilton and who are dispatched through A. Cupido Haulage Ltd. The applicant takes the position that it does not know whether these persons are employees of Canada Crushed Stone or Cupido. Both Canada Crushed Stone and Cupido deny that there exists within the meaning of the Act an employment relationship between either one of them and the persons for whom the union seeks bargaining rights. There is an issue raised, therefore, as to whether or not the persons for whom the union seeks bargaining rights are dependent contractors within the meaning of the Act and if so, which of the two named respondents they are dependent upon.

The applicant made it clear at the hearing, and amended its proposed bargaining unit in respect of Canada Crushed Stone to show that it seeks to represent only those dependent contractor owner/operator truck drivers who service the Canada Crushed Stone pit who are dispatched through A. Cupido. The applicant's position in this regard is consistent with its proposed unit in respect of A. Cupido which covers only those owner/operator truck drivers dispatched through Cupido who service the Canada Crushed Stone pit on Highway #5, Hamilton. Assuming that there are other owner/operator truck drivers employed as dependent contractors at either Canada Crushed Stone or A. Cupido, there is an issue raised as to whether the unit sought by the union is sufficiently broad to be appropriate for collective bargaining."

2. The Board appointed a Labour Relations Officer to meet with the parties and make certain inquiries. The Board's direction to the officer was framed as follows:

"The Board hereby appoints Mr. S. Netherton, Labour Relations Officer, to meet with the parties and inquire into the employee status, if any, of the persons claimed by the applicant to be owner/operator dependent contractors in the employ of either Canada Crushed Stone or A. Cupido. The Labour Relations Officer is authorized to inquire into the relationship between the persons for whom the union seeks bargaining rights and the respondent companies. In addition the Labour Relations Officer is authorized to inquire into the community of interest, if any, between the persons for whom the union seeks bargaining rights and any other persons who may work under similar terms and conditions for either Canada Crushed Stone or A. Cupido."

3. The report of the Labour Relations Officer in this difficult and complex matter was received by the Board on September 26, 1979. The report, including the exhibits and appendices, extends to 512 pages and sets out the evidence given by 12 persons. The officer described in detail the manner in which he carried out the direction of the Board in the preface to his report. As a result of his investigation the Labour Relations Officer discovered that 57 persons were involved with the hauling of aggregate from the Canada Crushed Stone Quarry during the relevant period. All 57 were connected in varying degrees to 11 brokers whose names are listed in the report. The officer secured agreements between the Parties (as set out in the report) in respect of the status of 39 of the 57 persons. It is agreed that 6 of these persons are employers in their own right and that 33 of the others are employees of one or other of these 6 and not dependent contractors engaged by either Canada Crushed Stone or Cupido Haulage. It is further agreed that 16 of the remainder are owner/operators whose status as either dependent or independent contractors is in dispute. 12 of these 16 are connected with Cupido Haulage. Finally, there is no agreement as to whether the two remaining persons (Messrs. Crisante and Perri), who are attached to A. Cupido Haulage, are either employees or owner/operators and if owner/operators whether dependent or independent contractors. Needless to say the endeavours of the Labour Relations Officer and the co-operation exhibited by the parties has simplified the Board's task in this matter.

4. The Board must decide firstly, if the twelve owner/operators shown as attached to A. Cupido Haulage are dependent or independent contractors. If dependent contractors dependent upon Cupido a further issue arises as to whether Messrs. Crisante and Perri are also dependent contractors of Cupido and thus properly within a bargaining unit of dependent contractors working for A. Cupido Haulage. If the twelve are found to be dependent upon Canada Crushed Stone the Board must then determine if the remaining 4 owner/operators, who are attached to brokers other than Cupido, are also dependent upon Canada Crushed Stone, in which case they would also fall within a bargaining unit of dependent contractors working for Canada Crushed Stone. Finally, if the twelve are found to be dependent upon Canada Crushed Stone, the Board must also determine if Messrs. Crisante and Perri are dependent contractors dependent upon Canada Crushed Stone and therefore properly within a bargaining unit of dependent contractors working for Canada Crushed Stone.

5. The twelve owner/operators who are connected with A. Cupido were engaged by Canada Crushed Stone prior to 1977 after being interviewed by an official of the company. Each owned his own truck and licence before commencing to haul for Canada Crushed Stone. Canada Crushed Stone provided no financial assistance with respect to the yearly PCV fee, tools or equipment. Maintenance costs were borne by the owner/operators.

6. Prior to September, 1977 these owner/operators hauled almost exclusively for Canada Crushed Stone. The evidence is that on only a few days per year (about 5% of the time) did these owner/operators haul for others and that when they did it was usually during a slack period at the Canada Crushed Stone quarry. If a driver intended to work elsewhere on a particular day, he notified the Canada Crushed Stone dispatcher. As informal understanding existed however, that Canada Crushed Stone enjoyed first priority on the owner/operators' services. The Canada Crushed Stone dispatcher assigned loads to the owner/operators and marked the zone on the delivery slips. If overtime was required the dispatcher requested it. If an owner/operator was sick or had an accident or breakdown or for any other reason was unable to appear for work at the quarry he would notify the Canada Crushed Stone dispatcher. Occasionally, an owner/operator would arrange to have someone else drive his vehicle, usually without consulting Canada Crushed Stone. Vacations could be taken at any time but Canada Crushed Stone was usually notified. The owner/operator was responsible for delivering the load and where necessary collecting cash or cheque and returning the payments to the company. If an owner/operator experienced difficulty in collecting on a COD delivery he contacted the dispatcher.

7. The owner/operators were paid on a zone rate determined by Canada Crushed Stone and had little, if any, say in establishing these rates. They received their cheques from the dispatcher. Gas purchased from the company was shown as a deduction. However, deductions for Income Tax, Unemployment Insurance and Workmen's Compensation were not made. The owner/operators were not paid for stand-by time at the quarry. None of the drivers advertised their services or used business cards. Their vehicles were identified by a number assigned by Canada Crushed Stone.

8. In mid-September, 1977 Canada Crushed Stone decided that it would no longer deal directly with the owner/operators. The owner/operators were advised that in future they would have to operate through one of several brokers. When Canada Crushed Stone notified the owner/operators of the impending change they protested by refusing to work until officials of the company discussed the matter with them. Cox and DaSilva testified that when the drivers refused to work the day after they were informed of the change they were told by officials of Canada Crushed Stone that the company wanted them back at work as soon as possible. Canada Crushed Stone suggested to the owner/operators that they split themselves among several brokers. The owner/operators had reservations, however, and chose A. Cupido as their broker. There are no written agreements between Cupido and the owner/operators. After the broker system was established, Canada Crushed Stone paid the broker's fee of S per cent until April 1, 1978, at which time the drivers were given a raise equal to the brokerage fee and simultaneously began paying the broker's fee themselves.

9. Very little has changed in the day-to-day routine of the owner/operators since the inception of the brokerage system. The owner/operators continue to report to the Canada Crushed Stone quarry on an almost day-to-day basis. They continue to take direction from the Canada Crushed Stone dispatcher and they perform in essentially the same manner as they did prior to September, 1977. The changes of note relate to the method of payment and the handling of complaints. The owner/operators now receive pay cheques marked "A. Cupido Haulage Limited, Broker's Account, Canada Crushed Stone." The owner/operators receive the rate sheets from Cupido and Cupido computes the weekly gross, based upon the rate sheet, and deducts his per cent brokerage fee. If the amount shown on the pay cheque is in error the owner/operator contacts Cupido. The owner/operators continue to receive their cheques from the Canada Crushed Stone dispatcher. The drivers have been instructed at various times by both Cupido and Canada Crushed Stone to address their work-related complaints and concerns to Cupido. The evidence is, however, that at least some of the owner/operators continue to approach Canada Crushed Stone in respect of work-related matters. Since the broker system has been established there have been four meetings (December, January, February, March) between Cupido and the drivers. The broker's fee, loading procedures at the quarry and road grading were discussed at these meetings. In respect of the latter two issues, the owner operators asked Cupido to approach Canada Crushed Stone. There is evidence that the owner/operators lost confidence in the ability of Cupido to deal effectively with Canada Crushed Stone and so the owner/operators did not meet with Cupido as a group after March. There is no evidence that Cupido met with Canada Crushed Stone on their behalf in the three months prior to this application. Cupido is sometimes notified when one of the owner/operators is not able to work but this is often after the fact. It is the Canada Crushed Stone dispatcher who continues to be notified at the time. The customers to whom deliveries are made are the customers of Canada Crushed Stone. The owner/operators continue to work out of the Canada Crushed Stone quarry on an ongoing basis and have little day to day contact with Cupido.

10. There is no evidence before the Board that the terms of the relationship between Canada Crushed Stone and Cupido or between Canada Crushed Stone and any of the other brokers has been reduced to writing. The evidence establishes, however, that Canada Crushed Stone sent identical letters to Bowtenheimer Ltd., Benny Haulage and A. Cupido on December 29, 1977 announcing the rate schedule which it had determined would go into effect on January 1, 1978. The letters read:

"Some time ago, Canada Crushed Stone made a decision to deal directly with a limited number of trucking companies rather than individual truckers, and thereby reduce its administration. Accordingly, we have drawn up the following rate schedule to go into effect January 1, 1978. If your Company is prepared to haul stone for us at the rate set out in the enclosed schedule please notify us in writing and furnish us with the following information.

1. Number of persons employed by you as follows: —

(a) direct employees,

(b) owner-operators.

2. Number of vehicles in service of your company either: —

(a) owned directly by you,

(b) owned by other operators.

3. Number of operated trucks you would be able to make available to us on a regular basis.

Thanking you for your attention. We remain,

Yours very truly

"P.S. RATCLIFF

Vice President

Sales & Development."

Letters announcing the rate schedule in effect as of January 1, 1978 were sent to five other brokers between March and June. Cupido Haulage replied to Canada Crushed Stone's letter of December29, 1977 by letter dated February 27, 1978. Cupido's letter reads:

"We acknowledge receipt of your letter of December 29, 1977. As you know, the rate schedule is still the subject of discussion between your company and ours. Accordingly, we are not in a position at this time to confirm any rate schedule, however, we are in a position to furnish you with the additional information which you requested in your letter.

At present, we employ approximately 19 employees on a direct hire basis. In addition, we regularly engage the services of a number of owner-operators. Five of these owner-operators drive vehicles licensed by our company. Eighteen others drive vehicles which are independently licensed. Of these eighteen, approximately four involve multi-vehicle operations.

We presently own twenty-two vehicles. Approximately thirty additional vehicles are owned by operators which we engage. We would be able to make approximately thirty-five trucks available to your company on a regular basis. If circumstances dictate, we would be able to supply any additional vehicles which might be required from time to time.

We trust this is the information which you require.

Yours very truly

"Anthony Cupido"

A. Cupido Haulage Limited"

There is no evidence before the Board that the discussions referred to in Cupido's letter resulted in any alterations to the rate schedule drawn up by Canada Crushed Stone and put into effect on January 1, 1978. In April, 1978 the owner/operators were given an increase and at the same time were required to pay the broker direct so that from April, 1978 the broker's fee has been deducted at source by the broker.

11. The union argues that the owner/operators in this case were dependent contractors within the meaning of the Act prior to September, 1977 and have continued to carry on as dependent contractors since the inception of the broker system. The union relies on the line of Board cases in which owner/operators hauling construction aggregate have been found to have been dependent contractors. Canada Crushed Stone agrees with the union s submission that the owner/operators in this case are dependent contractors but maintains that following the inception of the broker system the owner/operators became dependent upon Cupido. Cupido, in turn, takes the position that the owner/operators are independent contractors and as such are not employees within the meaning of the Act. The respondent Cupido relies on evidence that the majority of the drivers own their own vehicles and licence and pay their own expenses, that a majority of the drivers' vehicles are identified by the owner's name on the side of the truck, that the drivers have a discretion as to the extent of work performed and that the drivers, albeit infrequently, work for other persons.

12. In support of its contention that the owner/operators are dependent contractor employees of Canada Crushed Stone the union relies on the fact that these owner/operators haul from the Canada Crushed Stone quarry on an ongoing basis, are under the day-to-day direction of the Canada Crushed Stone dispatcher, are paid on the basis of rate schedules prepared by Canada Crushed Stone and continue to serve Canada Crushed Stone customers. The union argues that Cupido did not hire these owner/operators and does not negotiate their rates or its own percentage fee. The union argues that the element of control must be assessed in a collective bargaining context and primary consideration given to who controls what the owner/operators do and who controls what they earn. The union refers to Northern Television Systems, 78 CLLC ¶16,031, a decision of the Canada Labour Relations Board, and asks the Board to conclude that Canada Crushed Stone controls the relationship and is the employer of these dependent contractors for purposes of the Act. The union characterizes Cupido Haulage as a payroll agent vis-a-vis its relationship to the owner/operators and asks how collective bargaining can take place with a payroll agent.

13. The respondent Cupido Haulage acknowledges that the "principle issue" in this case is the identity of the employer. Cupido refers the Board to the criteria set out in the York Condominium case, [1977] OLRB Rep. Oct. 648 which are used by the Board in determining which of two or more entities is the employer for purposes of an application brought under The Labour Relations Act. It is the position of Cupido that the owner/operators who are the subject of this application carried on the exact duties which they had prior to working through a broker and that Canada Crushed Stone continued to exercise the same direction and control over their work performance after they commenced to operate through brokers. Cupido takes the position that despite the fact the individuals subject to this application were paid after September 14, 1977 by cheque which read "A. Cupido Haulage Ltd. Broker's Acct., Canada Crushed Stone", it is merely a payroll agent vis-a-vis these owner/operators. Cupido argues that Canada Crushed Stone continues to bear the burden of remuneration in that payment continues to be based on rates set by Canada Crushed Stone for loads hauled from its quarry to its customers. Cupido refers to the evidence of Harland Cox, Jr. and Dave Shaver that Canada Crushed Stone set rates for trips outside the zone map in further support of its position that it does not bear the burden of remuneration. Cupido denies emphatically that it has ever imposed discipline upon the owner/operators who are the subject of this application and maintains that there is evidence to suggest that Canada Crushed Stone retained its authority to discipline. Cupido takes the position that the relationship between the drivers and Canada Crushed Stone commenced well before September, 1977, continued beyond September 14, 1977 and continued to be in existence on July 17, 1978. Cupido denies that a new employment relationship was created between the owner/operators and Cupido argues that the changes of September 14, 1977, and those made subsequent thereto, constituted merely the transfer of the owner/operators and Dave Shaver Cartage to Cupido for payroll purposes and nothing more. Cupido maintains that the owner/operators considered Canada Crushed Stone to be their employer evidenced by the extent to which they accepted control and direction from Canada Crushed Stone and notified Canada Crushed Stone when they would not be reporting to work because of illness, personal reasons or vacation. Cupido explained that its role as spokesman on behalf of the owner/operators was as an agent or representative and not as an employer and maintains that the evidence which shows that some of the owner/operators concluded they would obtain better results by approaching Canada Crushed Stone directly supports this conclusion. It is the position of Cupido that the consensual element required in an employment relationship does not exist as there never was any intention on the part of Cupido or the drivers to enter into such a relationship. Cupido maintains that at best the owner operators were willing to work through Cupido as their payroll agent as a condition of continuing to be employed by Canada Crushed Stone. The respondent Cupido argues that on the evidence it must be found that the owner/operators remained under the direction and control of Canada Crushed Stone and in the absence of any intention to form an employment relationship with Cupido the Board must find that they are employees of Canada Crushed Stone. Cupido referred the Board to the Adbo Contractors case, [1977] OLRB Rep. Apr. 197 as an example of a fact situation which would require a finding that the broker is the employer. If the Board finds the owner/operators to be dependent contractors, Cupido asks that it be found that they are economically dependent upon Canada Crushed Stone.

14. The respondent Canada Crushed Stone maintains that the criteria used by the Board to identify the employer in the normal employer/employee situation cannot be applied in a carbon copy manner to a dependent contractor situation. Canada Crushed Stone asks the Board to begin its analysis by recognizing firstly, that Canada Crushed Stone terminated its relationship with the owner/operators who are the subject of this application and secondly that these owner/operators did not drift to Cupido but took a decision to operate through Cupido. It is the position of Canada Crushed Stone that Cupido hired the owner/operators at this time. Canada Crushed Stone argues that the fact that very little else in the day to day work routine changed must be seen as a red herring in the context of the company's operation where very little else could change. Canada Crushed Stone asks the Board to consider the alleged control exercised by it over the owner/operators in the context of an operation where the same type of alleged control is exercised over other employers, the employees of these other employers and brokers. Canada Crushed Stone maintains that if a company can exercise this type of control over persons who are obviously not its employees it is not an indicia of an employer/employee relationship. Canada Crushed Stone asks the Board to discount evidence of the owner/operators that they viewed or perceived Canada Crushed as the employer because of their predisposition to this result. Similarly, the respondent Canada Crushed Stone considers the continued attempt by the owner/operators to deal with it as habit or as an attempt to provide the basis for additional self-serving evidence. Canada Crushed Stone maintains that the customer always bears the burden of remuneration in a sub-contracting arrangement but that does not establish an employer/employee relationship with the persons working for the sub-contractor. Canada Crushed Stone argues that Cupido has input into the setting of the rate and refers the Board to the February 27th letter from Cupido to itself in support.

15. Canada Crushed Stone asks the Board to find that Cupido hired the owner/operators, called them to meetings, assigned them to Canada Crushed Stone, and paid them. Canada Crushed Stone argues that the indicia which might indicate that the owner/operators are dependent upon it are in fact indicia of a contractor/sub-contractor relationship between itself and Cupido under which Cupido supplies a service to Canada Crushed Stone using his own employees.

16. Section 1(1)(ga) of the Act defines a "dependent contractor" as follows:

"dependent contractor" means a person, whether or not employed under a contract of employment, and whether or not furnishing his own tools, vehicles, equipment, machinery, material or any other thing, who performs work or services for another person for compensation or reward on such terms and conditions that he is in a position of economic dependence upon, and under an obligation to perform duties for, that person more closely resembling the relationship of an employee than that of an independent contractor;

and section 1(1)(gb) goes on to provide:

"employee" includes a dependent contractor.

The Board does not determine dependency and then undertake a separate inquiry in order to determine the identity of the employer. If the persons who are the subject of this application are found to be dependent, the person upon whom they are dependent is the employer for purposes of the Act.

17. We are referred in argument to the criteria listed in York Condominium Corporation, [1977] OLRB Rep. Oct. 645, which has been used by the Board to determine which of two or more entities is the employer for purposes of an application brought under The Labour Relations Act. A "dependent contractor" inquiry, however, does not focus on the identification of a traditional employer/employee relationship but rather, the identification of a relationship which more closely resembles that of employer/employee than that which would exist between two independent businesses. While these criteria may be utilized in a "dependent contractor" inquiry it is important to recognize that the object of the inquiry is less specific than identifying a party exhibiting all the necessary indicia of an employer. Rather, if the relationship more closely resembles an employment relationship than that which would exist between two independent businesses, a finding that a "dependent contractor" relationship exists will result. The statutory definition forces the Board to engage in a comparative exercise; to determine on which side of the mid point of an imaginary line between independent contractor and employee the disputed persons fall.

18. The nature of the Board's task in a "dependent contractor" inquiry has been succinctly set out in the Superior Sand, Gravel & Supplies Ltd. case, [1978] OLRB Rep. Feb. 119. The Board stated at para. 19:

"In cases such as this one the Board must distinguish the workman from the true entrepreneur. The task is not an easy one since there exists no clear line of demarcation. Determining who falls within the Act as a dependent contractor is essentially a factual exercise. The legal test, found in section 1(1)(ga) of the Act provides the Board with only a point of reference but, as the Board has already noted in Adbo Contracting Ltd., supra, it is a more useful and less confusing reference point than those adopted by the Board prior to the enactment of the dependent contractor provisions. This new point of reference leads the Board directly to the substance of the economic relationship, and away from those matters of form which merely obscure its reality. While it may be quite true that the Board might reach the very same result by recourse to the old points of reference, this new test provides a more direct and understandable route to the ultimate result."

and went on at paras. 23 and 24:

"23. Both arguments, in our view, tend to obscure the considerations that the Board must take into account when determining whether a person is a dependent contractor. As we have already noted in the Adbo case, supra, there is a shaded area on the spectrum of economic relationships where it is difficult to determine whether a person is functioning as a workman or an independent contractor. The Board, however, is required to draw a line through that shaded area when determining the extent of the coverage of The Labour Relations Act. When drawing this line, the Board can gain only limited assistance from benchmarks that also lie within that shaded area, such as the ones suggested by counsel. Differences between situations within the shaded area, although perhaps appearing small, can be significant, given that such situations themselves lie very close to the line. More visible benchmarks, therefore, should be used by the Board if the line is to be drawn with any accuracy.

24. Our task is to make the determination by reference to the criteria set out in the statutory definition of dependent contractor. This definition directs the Board to examine the types of economic dependence and the kind of business relationship, or obligation, that it has before it, and further directs the Board not to give undue emphasis to whether there exists a formal contract of employment and whether or not a person furnishes his own tools, vehicles, equipment or machinery. In the final balance, the Board must be satisfied that the relationship before it, even though it may not bear all the hallmarks of the typical employment relationship, more closely resembles the relationship of an employee than that of an independent contractor.~~

25. The statutory definition directs us not to use the existence or non-existence of a contract of employment or the ownership of tools, vehicles, equipment, etc. as benchmarks. Typically, in the construction aggregate cases those found to be dependent contractor/employees under the Act have not been party to a contract of employment and have owned their own vehicle. The Board, however, has found that a contractor who owns more than one truck and hires others to drive these other trucks more closely resemble an independent contractor than an employee in his business relationship and have excluded this type of contractor from the Act. (See Canada Crushed Stone, [1977] OLRB Rep. Dec. 806.) The Act does not extend to persons engaged in an essentially entrepreneurial undertaking.

26. The Board suggested in Superior Sand, Gravel & Supplies Ltd., supra, that only limited assistance could be gained from benchmarks which lie close to the mid point of the imaginary line referred to above and suggested that "more visible benchmarks" be used by the Board if the line is to be drawn with accuracy. The dependent contractor sections of the Act were enacted in 1976 and since that time the Board has dealt with a number of cases involving owner/operators operating out of sand and gravel quarries and hauling construction aggregate. (See Nelson Crushed Stone, [1977] OLRB Rep. Feb. 104, Adbo Contracting, [1977], OLRB Rep. April 197; Indusmin Ltd., [1977] OLRB Rep. Sept. 552; Canada Crushed Stone, [1977] OLRB Rep. Dec. 806; Superior Sand, Gravel & Supplies Ltd. , supra; Dufferin Aggregates, [1978] OLRB Rep. Mar. 278; Consolidated Sand & Gravel, [1978] OLRB Rep. Mar. 264; Sherman Sand & Gravel, [1978] OLRB Rep. May 459; Flintkote Co. of Canada, [1978] OLRB Rep. Sept. 822 and Giordano Sand & Gravel, [1978] OLRB Rep. Nov. 989.) Certain common characteristics indicative of a dependent contractor relationship emerge from a reading of these cases. These common characteristics constitute the "more visible benchmarks" referred to in the Superior Sand, Gravel & Supplies Ltd. case, supra.

27. In deciding whether owner/operators who do not employ others on a regular ongoing basis more closely resemble independent contractors or employees, the Board has looked to the source of work. If the owner/operator looks to the quarry for the bulk of his work and does not advertise or otherwise solicit customers on his own, and is generally available during the working hours of the quarry, he is acting more like an employee truck driver than an independent contractor. The Board looks to the percentage of income derived from the relationship under inquiry. If the owner/operator derives a substantial portion of his income from the quarry (the amount ranged from 80 per cent to 100 per cent in the reported cases) he is in a position of economic dependence more like an employee than an independent contractor. The Board looks to the manner in which the amount of payment is determined. If the rates for work performed are established without consultation or with minimal consultation by the quarry, the owner/operator is in a position analogous to an unorganized employee. The Board looks to control of work methods and work procedures. If the method of work and the procedures under which it is performed are controlled by the quarry, the owner/operator is in a position more closely resembling an employee than an independent contractor. Generally the Board has looked to these visible benchmarks, weighed the evidence in respect of each, considered whatever other relevant factors exist and made a comparative assessment as to whether the owner/operator more closely resembles an employee or an independent contractor.

28. The Board has twice looked to a three-sided relationship between owner/operator, broker and quarry owner. In the Indusmin Limited case, supra, the Board stated at para. 14:

"The Board finds that the broker driver, assuming him to be an employee, holds a contractual relationship with the broker with respect to his terms and conditions of employment. The amount of his remuneration is negotiated with the broker, the nature and frequency of assignments are determined by the broker, the quality of his work performance is measured by the broker and the source of his income is controlled by the broker. His only contact with Indusmin is a functional one. That contact is dependent upon the decision of the broker's dispatcher to assign him to Indusmin. And in this regard Indusmin looks to the broker for the proper discharge of the driver's duties. The Board, therefore, finds 'the broker driver' to be an employee (assuming but without finding that this is the case) of the broker and not the respondent. (See: the Goldist Construction Limited case, [1967] OLRB Rep. 1016 Mar. at p. 1018; the Women's College Hospital case, [1977] OLRB Rep. Feb. 65.)"

The Board, therefore, removed the names of the "broker drivers" from the list of persons falling within a unit of dependent contractors of the respondent.

23. In Adbo Contracting Company Ltd. case, supra, the Board found that a number of owner/operators were dependent contractors of a broker and therefore protected by the Act. The Board found that the owner/operators relied almost exclusively upon the broker to supply them with work; that they were instructed by the broker the evening before the job as to where and when to report (although on-the-job direction came from the contractor and not the broker), that the broker obtained the work from a number of customers on the basis of his ability to quote a price and provide service and that the broker negotiated a lower rate with the owner/operators. The Board concluded at para. 29:

"Not only did Pasinato, and the other brokers, control the source of work through the contacts they had built up, but they also controlled the remuneration to be paid the complainants for performing that work. The complainants dealt with Pasinato, it was Pasinato who ultimately set the rate for the complainants. If the complainants wished to improve their economic lot, they had to look to Pasinato, and not to the persons with whom Pasinato dealt."

and found that there existed a type of economic dependence on the broker more closely resembling that of an employee than that of an independent contractor.

24. If the brokerage system had not been introduced by Canada Crushed Stone in mid-September, 1977 this would not be a difficult case. The relationship between Canada Crushed Stone and the owner/operators prior to mid-September, 1977 carried the essential hallmarks of a dependent contractor relationship as found by the Board in the construction aggregate case. The owner/operators relied on Canada Crushed Stone for the bulk of their work and about 95 per cent of their earnings. They performed a service for Canada Crushed Stone in respect of Canada Crushed Stone's customers at rates set by Canada Crushed Stone and worked under the day-to-day direction and control of Canada Crushed Stone. The owner/operators were clearly dependent contractors in their relationship with Canada Crushed Stone prior to the institution of the brokerage system.

25. Canada Crushed Stone maintains that it terminated its relationship with the owner/operators at the time it moved to the brokerage system and that the owner/operators in turn took a deliberate decision to align themselves with Cupido. Canada Crushed Stone maintains that the owner/operators were dependent upon Cupido and could not work without maintaining a relationship with Cupido or another broker. Canada Crushed Stone maintains that very little turns on its continued control over the day-to-day work of the owner/operators in that the same type of control is exercised over employers, the employees of these employers and brokers working out of its Hamilton quarry. There is no doubt that the owner/operators must maintain a relationship with Cupido if they wish to continue hauling for Canada Crushed Stone. The requirement to work through a broker, however, is one of Canada Crushed Stone's making and the fact that it exists and that the owner/operators sought out Cupido does not mean that the owner/operators are dependent upon Cupido within the meaning of the Act. We view the determination by Canada Crushed Stone that the owner/operators would henceforth work through brokers as evidence of the control which Canada Crushed Stone enjoyed over the owner/operators and the acceptance of this arrangement as evidence of their economic dependence.

26. Since the inception of the brokerage system the owner/operators have continued to haul almost exclusively for Canada Crushed Stone. The owner/operators are present at the quarry on a daily basis. In contrast to the Indusmin and Adbo cases, supra, where the owner/operators were assigned to a variety of the broker's customers, the owner/operators in this case have continued to work almost exclusively for Canada Crushed Stone since the inception of the brokerage system. They continue to look to Canada Crushed Stone as the primary source of their work and the primary source of income. We are satisfied on the evidence that Canada Crushed Stone set the rate to be paid to both the owner/operators and the broker following the inception of the brokerage system. While the owner/operators were paid on cheques issued over the name of Cupido the words "Broker's Account Canada Crushed Stone" appear on the cheques. These cheques were distributed by the Canada Crushed Stone dispatcher to the owner/operators who worked almost exclusively for Canada Crushed Stone. Canada Crushed Stone continues to control the day-to-day work of the owner/operators. The fact that the same control is exercised over non-employees does not significantly diminish the weight of this factor as it might if we were attempting to identify the parties to a traditional employer/employee relationship. The statutory definition requires us to focus on the mid point of a spectrum of relationships between independent contractor and employee. Those who are not before us but who are controlled to the same degree as the owner/operators in their day-to-day work are beyond the scope of our inquiry because factors other than day-to-day control have caused the parties to agree that they more closely resemble independent contractors. If there had been no agreement in respect of these persons the element of control would be a relevant and visible benchmark in deciding the issue of their dependency and remains a relevant and visible benchmark in deciding the issue of the owner/operators' dependency.

27. The factors which caused the Board to find that the owner/operators in the Adbo case, supra, were dependent upon the broker cause us to conclude in this case that the owner/operators continue to be dependent upon Canada Crushed Stone. Cupido was inserted into the relationship between Canada Crushed Stone and the owner/operators by Canada Crushed Stone. However, the essential nature of the relationship between Canada Crushed Stone and the owner/operators did not change. We are satisfied on the evidence that the owner/operators who aligned themselves with Cupido continued to perform work or services for Canada Crushed Stone for compensation such that they continued in a position of economic dependency upon Canada Crushed Stone more closely resembling the relationship of an employee than that of an independent contractor.

28. There are six others who haul almost exclusively out of Canada Crushed Stone quarry who may also be dependent upon Canada Crushed Stone within the meaning of the Act and hence within a unit of dependent contractors at the Canada Crushed Stone quarry. These are V. Biancale and D. Schaefer (connected with Bowtenheimer Ltd.), J. Gerritson and L. Garlow (connected with Benny Haulage), and T. Crisante and D. Perri (connected with Cupido Haulage).

29. Messrs. Biancale and Schaefer worked directly for Canada Crushed Stone for a short time prior to operating through Bowtenheimer Ltd. in May, 1977. Bowtenheimer's relationship with these two drivers is very similar to the relationship between Cupido and the owner/operators assigned to Canada Crushed Stone through him. Bowtenheimer does not assign these owner/operators to any other customer. They work almost exclusively for Canada Crushed Stone. They do not report to Bowtenheimer on any regular basis. Their contact with Bowtenheimer consists of submitting the statements of their work to him and receiving their pay from him. They are paid on the same basis as those assigned through Cupido and have as little say in the setting of their rates as the owner/operators operating through Cupido. Their daily routine at Canada Crushed Stone is the same as the owner/operators assigned through Cupido. When reference is had to the "visible benchmarks" referred to in this decision the Board can come to no other conclusion but that Messrs. Biancale and Schaefer perform work or services for Canada Crushed Stone and are in a position of economic dependence upon Canada Crushed Stone such that in their relationship with Canada Crushed Stone they more closely resemble employees than independent contractors. They are dependent contractors of Canada Crushed Stone and accordingly are properly within a bargaining unit of dependent contractors operating out of the Canada Crushed Quarry on Highway #5 in Hamilton.

30. Messrs. Gerritson and Garlow operate through Benny Haulage. For the two year period prior to this application they also have been assigned to the Canada Crushed Stone quarry on a regular ongoing basis and follow the same daily routine as the other owner/operators working there. They do not contact their broker on a daily basis or have significant input into the setting of the rate schedule under which they are paid. The evidence establishes, however, that Mr. Garlow, whose evidence is representative of both himself and Mr. Gerritson, has worked through Benny Haulage for 40 years. Mr. Garlow has OHIP and union dues (as a union member but not as a member of a bargaining unit) deducted from his pay cheque by Benny. The existence of a long-standing relationship with the broker is a significant distinguishing feature, and when considered in light of the other evidence relating to the relationship between Benny and these two owner/operators, supports the conclusion that these owner/operators are more closely attached to their broker than the other owner/operators who have been assigned on a regular ongoing basis to the Canada Crushed Stone quarry. Notwithstanding the closer ties between these owner/operators and the broker, we are satisfied that Messrs. Gerritson and Garlow are dependent upon Canada Crushed Stone within the meaning of the Act. The factors which distinguish their relationship with Canada Crushed Stone from that of the other owner/operators are not of sufficient weight to cause the Board to conclude either that they are not dependent or that they are dependent upon the broker. When reference is had to the "visible benchmarks" which have been used by the Board in inquiries of this type and the evidence as it relates to the relationship between these owner/operators and Canada Crushed Stone, we are satisfied that these two are also dependent upon Canada Crushed Stone. Accordingly, they are also within the unit of dependent contractors operating out of the Canada Crushed Stone quarry on highway #5 in Hamilton.

31. Messrs. Crisante and Perri, although attached to Cupido, work out of the Canada Crushed Stone quarry on a regular ongoing basis. They report to the Canada Crushed Stone quarry on a daily basis, are controlled in their work by the Canada Crushed Stone dispatcher and service Canada Crushed Stone customers. However, like Messrs. Gerritson and Garlow they are closer to their broker than the twelve owner/operators found to be dependent contractors of Canada Crushed Stone at paragraph 27 herein. As with Messrs. Gerritson and Garlow, they have a relationship of longer standing with the broker, use his gas pumps and report absences from the job to the broker. In addition, Messrs. Crisante and Perri use trailers owned by the broker and operate under a PCV licence owned by the broker. They each own their own tractor. The trailer and the PCV licence along with the tractor constitute the tools of the trade. An owner/operator may own these tools or he may rent or lease them. The effect of renting or leasing is not to make the owner/operator dependent upon the person from whom he rents or leases. Indeed, section 1(1)(ga) of the Act stipulates that a person may be a dependent contractor whether or not he furnishes his own tools, vehicles, equipment etc. The section directs us to look to the relationship between the person whose status is in dispute and the person for whom he performs work or services in deciding whether a dependent contractor relationship exists. We are satisfied that Messrs. Crisante and Perri perform work or services for Canada Crushed Stone. When we look to the visible benchmarks, we are satisfied that Messrs. Cristante and Perri look to Canada Crushed Stone for the bulk of their work and as the primary source of income. They are subject to the control of the Canada Crushed Stone dispatcher in the carrying out of their work and their rates are set by Canada Crushed Stone. The relationship of these contractors to Cupido is clearly distinguishable from the relationship which existed between the owner/operators and brokers in both the Adbo case, supra and the Indusmin case, supra. Messrs. Crisante and Perri are dependent contractors dependent upon Canada Crushed Stone and accordingly, they fall within the bargaining unit of dependent contractors working at or out of the Canada Crushed Stone quarry.

32. The Board finds that the dependent contractor/owner/operator/truck drivers of the respondent Canada Crushed Stone working at or out of the Canada Crushed Stone quarry on Highway #5, Hamilton, constitute a unit of employees of the respondent appropriate for collective bargaining.

33. The Board is satisfied on the basis of all the evidence before it that more than fifty-five per cent of the employees of the respondent in the bargaining unit at the time the application was made were members of the applicant on July 31, 1978, the terminal date fixed for this application and the date which the Board determines under section 92(2)(j) of The Labour Relations Act to be the time for the purpose of ascertaining membership under section 7(1) of the said Act.

34. A certificate will issue to the applicant.