United Cement, Lime and Gypsum Workers International Union v. Craftwood Construction Co. Ltd., 1980 CanLII 940

[1980] OLRB Rep. November 1613

1789-79-R; 1872-79-R United Cement, Lime and Gypsum Workers International Union, Applicant, v. Craftwood Construction Co. Ltd.,/Coreydale Contracting Co., Respondents, v. The Teamsters Local Union Number 230, Ready Mix, Building Supply, Hydro and Construction Drivers, Warehousemen and Helpers, of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America, Intervener #1, v. Metropolitan Toronto Sewer & Watermain Contractors Association, Intervener #2.

BEFORE: George W. Adams, Chairman and Board Members J. D. Bell and O. Hodges.

APPEARANCES: James Hates, Frank Luce and Angelo Natale for the applicant; S. C. Bernardo and T. D. Albani for the respondent Craft wood Construction Co. Ltd.; S. C. Bernardo, Barry Edson and Frank DiPede for the respondent Coreydale Contracting Co.; J. Nyman, G. Wilkes, Al Lefort and Isaac Raymond for Intervener#1; and S. C. Bernardo and Jack Agnew for Intervener #2.

DECISION OF THE BOARD; November 13, 1980

1. These two cases involve applications for certification that are similar in factual detail and raise for the Board's consideration the same principles relating to the dependent contract provisions of The Labour Relations Act. The same decision will, therefore, be rendered for both files.

2. In File No. 1789-79-R affecting Craftwood Construction Co. Ltd. the parties have agreed that if the persons subject to the application are dependent contractors, the bargaining unit should be described as:

All dependent contractors of the respondent engaged in handling materials to and from the respondents' job sites in the Regional Municipality of Metropolitan Toronto (or Board Area #8) save and except non-working foremen, persons above the rank of non-working foreman, office and clerical staff, shop employees and security guards.

In File No. 1872-79-R affecting Coreydale Excavating and Grading Co. the unit applied for was described in somewhat similar terms. Paragraph 3 of the application reads:

All employees (dependent contractors) of Coreydale Contracting Co. engaged as truckers in the Municipality of Metropolitan Toronto save and except foremen, dispatchers, persons above the rank of dispatchers and foreman, office and sales staff and persons represented by subsisting collective agreements.

In both cases the respondent companies took the position that the persons subject to the applications were independent contractors. Similarly, in both cases the intervener trade union agreed with the applicant that the persons applied for were dependent contractors but submitted that they were already subject to collective agreements between itself and the respective employers. It was the position of the respondent employers that if the persons subject to the application were in fact dependent contractor, they were not covered by any existing collective agreements negotiated with the intervener trade union. In both files, the Board appointed a labour relations officer to inquire into the duties, responsibilities and dependency of those persons subject to the applications. Two reports were subsequently prepared by labour relations officers and the parties made representations on these reports to this panel of the Board at a hearing convened for this purpose.

3. The Board would record its awareness that a number of similar applications affecting other respondent companies have been filed with the Board and are currently with labour relations officers awaiting the outcome of these two cases. The other applications are:

File No. Respondent Applicant

1886-79-R Coreydale Contracting Co. United Cement, Lime &

Gypsum Workers International

Union

1917-79-R Par-Tex Engineering and “ “ “

Contracting Co. Ltd.

1975-79-R S. & F. Excavating Co. Ltd. “ “ “

1981-79-R Ben David Excavating & “ “ “

Contracting Ltd.

2031-79-R American Construction Co. “ “ “

2186-79-R Rumble Contracting Ltd. “ “ “

2215-79-R “ “ “ Ready Mix Building Supply,

Hydro and Construction

Drivers, Local 230 of

Teamsters

2230-79-R Valentine Enterprises United Cement, Lime &

Gypsum Workers International

Union

2307-79-R Alsi Construction United Cement, Lime &

Gypsum Workers International

Union

2374-79-R Alcan-Colony Contracting “ “ “

2392-79-R Val-Dal Construction “ “ “

2436-79-R Maple Earth Moving Co. “ “ “

0021-80-R Oshawa Paving Ready-Mix Building Supply,

Hydro & Construction Drivers,

Local 230 of Teamsters

0165-80-R King Cross-Div. of Colosimo United Cement, Lime &

Bros. Contracting Gypsum Workers

International Union

0166-80-R Roseway Construction “ “ “

0207-80-R Clearway Construction “ “ “

0439-80-R Acton Shoring & Excavating “ “ “

0449-80-R Badner Engineering Ltd. “ “ “

0466-80-R D'Orazio Excavating Ltd. “ “ “

0537-80-R Lanterna Homes “ “ “

0538-80-R Academy Consolidated “ “ “

0606-80-R Gottardo Bros. “ “ “

0615-80-R Pilen Construction of Canada “ “ “

0732-80-R Bot Construction “ “ “

102l-80-R Petrex Construction Ltd. “ “ “

Craft wood Construction Co. Ltd.

4. Three witnesses were examined. They were A. Di Savino, V. Polsinelli, and L. Facchini.

(a) Percentage of income or business derived from work made available by the respondent company.

From December 15th, 1978 to December 14th, 1979, Di Savino worked for 22 companies. His total gross income was $39,374.00, of which $2,058.50 (or 5%) was from Craftwood. During this same period $13,670.50 was earned from Elmford Construction Company. Di Savino worked for Craftwood from November 21st, 1979, to December 21st, 1979, and was at work on December 14th, 1979, the date of application for certification. From January 11th, 1979 to December 2 1st, 1979, Polsinelli worked for 12 companies. His total gross income was approximately $31,228.87, of which $1,848.00 (or 5.5%) was from Craftwood. During this period $9,996.75 was earned from Acri Construction. Polsinelli worked for Craftwood from November 15th, 1979 to December 21st, 1979, and was at work on December 14th, 1979. From December 1st, 1978 to December 20th, 1979 Facchini worked for approximately 18 companies. His total gross income was approximately $27,465.00, of which $4,013.00 (or 15%) was earned from Craftwood. During this period $10,549.00 was earned from Alcan-Colony Limited. Facchini worked for Craftwood from November 19th, 1979, to December 20th, 1979, for a total of 174.5 hours. He was at work on December 14th, 1979, the date of application for certification. All three witnesses stated that they arranged for work at various companies. Often they heard of available jobs through other owner/operators. Occasionally the companies would contact them for work at other sites. When starting to work at Craftwood, the length of the job was not discussed. Di Savino heard of the available job at Craftwood through a friend who is an owner/operator. He stated that he did not phone the company before reporting to work. The owner/operator friend of Di Savino's had given him the details of where to report to work, the rate of pay and the time to report to work. Apparently the friend had spoken to someone at Craftwood prior to Di Savino's appearance at work, and that is how this job was arranged. Polsinelli stated that he was not sure who phoned him about the job at Craftwood. He could not remember whether it was an owner/operator friend or someone from Craftwood who called. The person who called him informed him about the pay rate, the locations of the job site and dump site and the time to report to work. Facchini called Craftwood and asked if work was available. He had not heard of the availability of any job there through his owner/operator friends.

(b) Presence or absence of business initiative or entrepreneurial activity on the part of the owner/operator

All three witnesses stated that they did not advertise and they were not listed in the Yellow Pages of the telephone book. Facchini stated that he has business cards which he distributes to friends and companies. However, the last time he handed out a business card was nine years ago. The other two witnesses do not have business cards. Di Savino hires a bookkeeper to prepare his income tax. He claims capital depreciation for his truck. Repairs, insurance and gas are also claimed on his income tax. Di Savino's bank account is in the name of 'Angelo Di Savino Haulage'. His business is registered with the Ministry of Consumer and Corporate Relations. He stated that he thought the registration was necessary in order to obtain a loan. It is not a limited company. Polsinelli hires a bookkeeper to prepare his income tax. Expenses such as repairs, insurance and gas are deducted. In Polsinelli's 1978 income tax return, an expense of $2,300.00 referring to subcontractors was deducted. Polsinelli stated that he did not hire anyone to work for him and that he did not know what the deduction meant. There was also a deduction of $1,723.00 labelled subcontractor — casual labour. Polsinelli stated that he didn't know what this meant. Later, he stated that this sum was related to the payment to his two sons for maintenance work that they did on his truck. (i.e. grease, oil, changing tires). Facchini's brother-in-law prepares his income tax.

(c) Manner of remuneration

All three witnesses submitted periodic statements and a copy of the daily bills to the contractor. They would make out an invoice at the end of each working day, and the person in charge of the excavating site would sign it. These would be submitted every 15 or 30 days in accordance with the manner in which the particular company paid the owner/operators. Facchini stated that Craftwood paid two times a month. Di Savino stated that he did not discuss the rate of pay with Craftwood. He stated that Craftwood paid him $23.00 per hour and that he had no idea how this rate was set. Di Savino's pay rates had varied from $19.00 to $24.00 per hour during the past year. When asked if there was a particular rate below which he couldn't make a living, he stated "No". He stated that he would work for $5.00 per hour. Di Savino, could not, or would not, indicate the break-even rate of the truck. He did state that the companies did tell him the amount that they are willing to pay. (However, it should be noted that Di Savino was paid between $19.00 and $24.00 in 1979). Finally, he stated that the companies decide what they're willing to pay – whether he "likes it or not". He has never refused to work for the rate a company had set. Di Savino's only source of income is from driving his truck. Polsinelli did not discuss the rate of pay with Craftwood. He knew what Craftwood was paying and he was happy with it. Craftwood paid him $23.00 per hour. Polsinelli stated that he doesn't negotiate the rate of pay. He stated that if he didn't like what the company was offering, he simply would not work for that company. Facchini was also paid $23.00 per hour by Craftwood. He stated that he was not told the pay rate of Craftwood. He billed for $23.00 per hour. He stated that he sets the rates of his pay and that he would lose money if he worked for less than $21.00 per hour. All witnesses stated that their only source of income in 1979 was from driving their trucks. None received any holiday or vacation pay from Craftwood or any of the other companies. All received their full gross pay – there were no deductions for income tax, workmen's compensation, unemployment insurance, or Canada Pension Plan.

(d) Ownership of Tools

All three witnesses stated that they owned their own trucks. None of the companies gave the witnesses any assistance in the purchase of their trucks. All witnesses stated that they paid for their own fuel, maintenance and repairs on the trucks. All arranged their own financing of the trucks. All pay for their own insurance and licences for their trucks. All witnesses stated that they were the sole drivers of their trucks. Di Savino owns a 1974 Mack dump truck which he purchased in 1978. The name on the truck is 'Angelo Di Savino Haulage'. He received no assistance from Craftwood in its purchase. Di Savino paid $25,500.00 for this truck and it is financed through a bank with monthly payments of $650.00. Craftwood sets no restrictions over the amount of insurance. Di Savino has the following licences in his name:

1. P.C.V. licence which was transferred to him after the purchase of a previous (but now sold) truck;

2. Cartage owner licence — to obtain this he obtained a letter from Active Excavating; and

3. a Commercial Motor Vehicle permit.

Di Savino's invoices state 'tandem Mack, rental by the hour'. He stated that with truck rentals, he would never allow a company to have the use of his truck unless he was driving it. Di Savino does minor repairs and maintenance on his truck. He decides whether and where large repairs will be done.

Polsinelli brought his 1973 Mack truck in 1977 for $14,000.00. Prior to that time, he had worked as a truck driver at Timar making $6.50 per hour, along with paid benefits. He stated he bought the truck because "I want to work for myself'. The name 'Vince Polsinelli Haulage' is on the side of the truck. The purchase of the truck was financed through borrowed money from his family and bank. Craftwood had no restrictions over insurance. Polsinelli has a Cartage licence in his name. This was obtained three years ago with a letter stating that he had a job. (He doesn't remember which company). Polsinelli does not have a P.C.V. licence. He applied for this two years ago and was informed that there were not going to be anymore licences issued at that time. He has recently applied again. Polsinelli stated that he always drives his own truck and wouldn't allow a company to use his truck without him.

Facchini owns a 1974 Mack Truck which he purchased for $16,000.00. He stated that he paid cash for the truck. He is now the sole driver of the truck. Facchini's son drove the truck for two months in 1978 while he was recovering from a broken leg. Facchini kept the cheques from the companies and supplied his son with the lunches. He stated that his son was not paid any hourly wage. The name 'L. Facchini' appears on the side of the truck. He has P.C.V. and Cartage Owner Licences in his name. In 1974, Rumble supplied him with a letter stating he had a job in order to obtain the Cartage licence. He bought the truck from Rumble. In 1979, Facchini belonged to two associations:

1. the Independent Truckers' Association (membership fee of $250.00), and

2. the Ontario Haulage Association (membership fee of $200.00).

The Truckers' Association was supposed to assist in finding work, but Facchini stated that it did not. The Haulers' Association found him a job for one month in 1978, and nothing further. Craftwood apparently had 2 or 3 of its own trucks working at the excavation site, and these trucks were doing the same work.

(e) Contract of employment

All three witnesses stated that they had never had a contract of employment or any formal agreement with any of the companies, including Craftwood.

(f) Supervision and control

All three witnesses stated that they checked with the person in charge of the excavating site for the times to start and finish work each day. They had no control over their hours of work, i.e. - they couldn't start earlier than the time stipulated by the company. All stated that there were no formal rules at the company about reporting to the person in charge when leaving early. However, all stated that it would damage their business relationship with the company if they left early without speaking to the person in charge. There were also no formal rules for calling in sick, but the witnesses stated that they would phone the company and try to arrange for a replacement driver if possible. All witnesses stated that when they were paid by the hour, the company instructed them on the dump site to be used and the route to be used to get there. The witnesses would report to the person in charge when arriving at work, and have their invoices signed before leaving work. The person in charge would decide when the site had to be closed in inclement weather. Di Savino reported to work according to the foreman's instructions. The foreman directed the trucks to the dump site. There were no restrictions on the number of loads he could take. He stated he had never been disciplined by Craftwood. He has never purchased any material from the company. Di Savino stated that if he refused a load, he supposed he would be sent home. He has never refused a load. The foreman made decisions about lunch breaks at Craftwood. There were two paid coffee breaks. De Savino stated he has never left the job early for personal reasons at any company. He stated he has refused overloaded trips at other companies, but couldn't recall which companies. When he did refuse a load, he was sent home and told not to return to the company. He stated that he had never left a job to take another at a higher rate of pay or for a longer duration. He stated to do so would hurt his reputation. Finally, he stated that if he took a job with a company, it would be expected that he would continue to work for as long as he was needed. Polsinelli felt that he had to report to the company if he was unable to report for work. He stated that he has never quit a job before it was completed, or to make more money. He stated that he has never been disciplined by any company. Facchini also wouldn't leave a job before it was finished. He stated that he had never been disciplined by a company. It was previously necessary for him to leave a job early (at 4:00 p.m.) for dental work. He reported this matter to the foreman at the beginning of the day.

(g) Detailed Statement of Income for Period December 1, 1978 to December 20, 1979— L. FACCHINI

Company Amount % Total Income

York Excavating $3,323.00 12.1

Will Thorn Contractors Ltd. 1,100.00 4.0

Kalabria Construction Ltd. 220.00 0.8

Petrex Construction 528.00 1.9

D.S.W. Investments 492.00 1.8

Fred Ostron 480.00 1.8

American Construction 480.00 1.8

Rumble Contractors Ltd. 5,308.00 19.3

Clearway Construction Limited 5,519.00 20. 1

Con Drain Construction Co. Ltd. 1,683.00 6.1

Angellotti Contracting Ltd. 189.00 0.7

Craftwood Construction Co. Ltd. 4,013.00 14.6

Gabriel Excavating and Grading Ltd. 640.00 2.3

Savini Construction Co. Ltd. 198.00 0.7

Alcan-Colony Ltd. 1,005.00 3.7

Tace Construction Ltd. 1,944.00 7.1

Kaneff 220.00 0.8

Acri 123.00 0.4

18 Companies $27,465.00 100.0

Detailed Statement of Income for Period January 16, 1979 to August 3, 1979- V. POLSINELLI

Company Amount % Total Income

Acri Construction $9,204.75 33.2

Lou Savini 3,948.50 14.2

Armbro Construction 2,280.00 8.2

Warren Bitulithic Ltd. 722.62 2.6

Farry Excavating 143.00 0.5

Alcan-Colony 660.00 2.4

Costa Trucking 440.00 1.6

Craftwood Construction 1,848.00 6.7

Petrex 69.00 0.2

Four Valleys Excavating 1,265.00 4.6

Will Thorn Construction 4,983.00 18.0

San Joe Excavating 2,156.00 7.8

12 Companies $12,719.87 100.0

Detailed Statement of Income for Period December 15, 1978 to December 14, 1979- A. DI SAVINO

Company Amount % Total Income

Craftwood Construction

Company Limited $2,058.50 5.2

Elmford Construction

Company Limited 13,670.50 34.7

Marab Excavating 870.50 2.2

Badnar Engineering Construction 2,410.00 6.1

Colosino Brothers Limited 3,410.00 8.7

Cerrito Excavating 1,122.00 2.8

Alcan-Colony Construction 1,650.00 4.2

Cafagna Brothers Construction 6,127.00 15.6

Sanjoe Excavating 354.50 0.9

Mora Excavating 399.00 1.0

Community Home 264.00 0.7

R. C. Contracting 99.00 0.3

Sahara Development 176.00 0.5

Maeo Excavating 192.00 0.5

Raimar Holdings 451.00 1.1

Gottardo Brothers 108.00 0.3

Boston Excavating 242.00 0.6

Adeo Excavating 1,700.00 4.3

Wasero Construction Limited 869.00 2.2

M.A.D.S. Haulage 181.00 0.5

York Excavating 2,725.50 6.9

Angellotti Contracting 294.00 0.7

20 Companies $39,374.00 100.0

Coreydale Excavating and Grading Co.

5. Three witnesses were examined. These were G. Fedele, A. Romano and A. Quaranta.

(a) Percentage of income or business derived from work made available be the respondent company.

From January 1, 1979 to December 31, 1979 Fedele worked for 18 companies. His total gross income was $43,757.00, of which $612.00 was from Coreydale (1.4% of his total income). During this period, $24,253.50 (55.4%) was earned from Val-Dal Construction Limited. In 1978, Fedele worked for 13 companies with a total gross earning of $11,518.00. None of this work was for Coreydale. Fedele worked for Coreydale on December 10, 11 and 20, 1979, for a total of 25½ hours. He stated that he worked during the first week of January, 1980, but he could not remember for whom. From January 1, 1979 to January 7, 1980, Romano worked for 21 companies. His total gross income was $40,230.50 of which $648.00 was from Coreydale (1.6% of his total income). During this period, $31,466.50 (78.2%) was earned from Bot Construction. Romano stated that he had worked for Coreydale several years ago, but he could not remember the dates. His income statements indicated that he worked for Coreydale on January 4, 5 and 7, 1980. From July 17, 1979 to January 7, 1980, Quaranta worked for 8 companies. His total gross income was $26,999.00 of which $828.00 was from Coreydale (3. 1% of his total income). During this period, $11,312.50 (41.9%) was earned from York Excavating. Quaranta worked for Coreydale on December 17, 18, 20 and 21, 1979. He worked 9¼ hours for Coreydale on January 7, 1980. All three witnesses stated that they arranged for work at the various companies. Often they heard of available jobs through other owner/operators. Occasionally the companies would contact them for work. The witnesses contacted Coreydale for work with that company. When work at one site was completed, the witnesses would seek work at other sites. When starting to work at Coreydale, the length of the job was not discussed.

(b) Presence or absence of business initiative or entrepreneurial activity on the part of the owner/operator.

All three witnesses stated that they did not advertise and that they were not listed in the Yellow Pages of the telephone book. All witnesses had business cards, which they handed out on an irregular basis to the various companies. All witnesses have their own bookkeeper. Fedele's income tax and bank accounts both read Gregorio Fedele Haulage. Fedele keeps a separate bank account from his personal accounts. In 1977, Romano registered the name under which he carries on business as Alex Romano Haulage. Cheques are made payable to Alex Romano Haulage and work is commenced with a company as Alex Romano Haulage. Romano stated that he registered as Alex Romano Haulage because the bank would not accept his cheques unless he did. Romano claims business expenses for his truck on his income tax (i.e. repairs, insurance, gas and oil, etc.). During 1978 and 1979, Romano had $398.00 and $463.00 listed respectively for 'advertising and promotion'. He stated that he does no advertising, but that he often takes people out for meals for the purpose of obtaining business. These included foremen and superintendents. Also, in both years he claimed deductions for office space used in his home (1978 - $744.00; 1979 - $l,119.00). Quaranta purchased his truck in partnership with G. Garsone and they operate under the name 'A & G Haulage'. This is an oral agreement. The name under which they carry on business is registered as 'A & G Haulage'. This business is not incorporated. The partnership only concerns the operation of the truck. The truck was purchased with a down payment of $8,000.00 from each partner. The truck was financed through the truck dealership over four years with monthly payments of $1,200.00. The financing was arranged by both partners. Quaranta pays himself a salary of $250.00 per week. There is a joint bank account with his partner. At the end of the year, both partners will divide the profits from the operation of the truck. Quaranta always drives the truck. When the truck was purchased, Quaranta left his job of five years as a bulldozer operator. He had been earning $350.00 - 400.00 per week net, and also enjoyed paid benefits of vacation and statutory holidays, all under a trade union contract. When asked why he bought a truck, Quaranta replied, "Because I wanted to try to make more money and to try out the business". Also Quaranta was asked, "Is it safe to say when you run your own business, you're your own boss?" - answer, "Yes". Fedele had been involved in a partnership with another person called New-Way Construction for 1¼ years (from 1977 to August 1978). The assets consisted of two trucks and a front-end loader. Fedele drove the truck, his partner operated the front-end loader, and a driver was hired for the second truck. Fedele's present truck was never an asset in the partnership. This business was and still is registered. It has not been trading or doing business under that name since August, 1978. The partnership business is dormant and Fedele has been working alone since August, 1978.

(c) Manner of remuneration

All three witnesses submitted periodic statements and a copy of the daily bills to the respondent company for payment. They would make out an invoice at the end of each working day and the person in charge of the excavating site would sign it. These would be submitted every 15 or 30 days in accordance with the manner in which the particular company paid the owner/ operators. Payment to the owner/operators takes from 15 days to 3 months. The average time appears to be 1¼ months for payment. Fedele stated that when he phones a company or when they phone him for work, he asks what the rate of pay is. If he thinks the amount of pay is too low, he does not work for the company. He stated that the minimum amount he would work for was $22.00 per hour. However, he stated that "I always ask for more, but everyone pays more or less the price". With respect to Coreydale, Fedele stated that he asked $25.00 per hour and the company offered and paid $24.00 per hour. Romano stated that he is not instrumental in deciding hourly rates of pay but he has asked for a specific hourly rate. He stated that companies have raised their rates to what he was asking but he was unable to provide any examples of this. He stated that the owner/operators are paid basically the same rate of pay (give or take $1.00). For Coreydale, no rate of pay was discussed when Romano phoned for the job. He stated that he spoke to other drivers and heard from them that Coreydale was paying $24.00 per hour and he billed Coreydale that amount. Romano stated that he would refuse a job that paid less than $20.00 per hour. He stated that the companies state the rate of pay, and that his choice was to work for the company at the rate they were offering or not go to work at all. Romano calculated his expenses so he knows the hourly rate at which he would not make money. For Coreydale, Romano stated that there were no negotiations over the amount of pay — he was paid $24.00 per hour. He later stated that he had asked Coreydale for $25.00 per hour but was told that the company was paying everybody $24.00 per hour. As mentioned earlier, Romano was paid a salary of $250.00 from his partnership. That is if he works a full week. If he only works two days in a particular week, he is paid for the two days only. If the truck cannot be operated (e.g. if damaged), he stated he would not be paid any money. All witnesses stated that their only source of income in 1979 was from driving their trucks. None received any holiday or vacation pay from Coreydale or any of the other companies. All received their full gross pay - there was no deductions for income tax, workmen's compensation, unemployment insurance or Canada Pension Plan.

(d) Ownership of tools

All three witnesses stated that they owned their own trucks. None of the companies gave the witnesses any assistance in the purchase of their trucks. All witnesses stated that they paid for their own fuel, maintenance and repairs on the trucks. All arranged their own financing of the trucks. All pay for their own insurance and licences for their trucks. All witnesses stated that they were the sole drivers of their trucks. If they became ill, they stated that the trucks would remain idle. Fedele bought a 1974 Mack Truck in December, 1978 for $25,500.00. He arranged for his own financing from the bank. He has the following licences, all in his own name - P.C.V., Commercial Motor Vehicle Permit, and a Cartage Owner Licence. The insurance for the truck is in his own name. Fedele's name is the only one that appears on his truck. Fedele stated that he never hires anyone to drive his truck and he never hires anyone else with a truck to do a job. For Coreydale, Fedele stated that he did not discuss the size of his truck or its insurance when he phoned for work. He stated that Coreydale had its own trucks on the job doing the same work. Fedele stated that he does minor repairs and maintenance work on his own truck. Romano bought his Mack truck in July, 1979 for $55,070.00. This is the only truck he presently owns. From 1974-76, Romano owned two trucks. He employed another driver and paid him a regular wage. He sold the second truck in the spring of 1977, and since then has operated as an owner/ driver of one truck only. The purchase of the Mack truck was financed by Romano through the bank. He is the only driver of the Mack truck but stated that if he were ill for a lengthy period of time, someone else would drive his truck. However, this has never happened. The truck has only Romano's name on it. Romano has a P.C.V. licence and Commercial Motor Vehicle Permit in his own name. These licences and insurance are all paid for by Romano. If Romano is fined for driving an overloaded truck, he is responsible for the overload and the payment of the fine. Romano stated that he never owns the materials he carries in his truck. Romano stated that he was not asked about insurance by Coreydale (nor at any other company). He stated that he purchased the truck so he could work for himself -"If you don't want to go to work you don't have to go the work". Quaranta and his partner, Garsone, bought their 1979 Mack truck in July, 1979 for $57,000.00. (The financial arrangements over this were stated in paragraph 5.(b).) Quaranta is the sole driver of the truck. The name on the truck is 'A & G Haulage'. Quaranta has no P.C.V. licence. In order to obtain his Cartage licence, Quaranta had to submit a letter from the company that was giving him work. This letter was from Kelco Sand and Gravel, the first company that Quaranta worked for after the truck was purchased. No letter from a company was required when Quaranta purchased the truck. For Coreydale, Quaranta was asked the size of his truck, but was not asked about licences or insurance. Quaranta also stated that there were Corey-dale trucks at the site also doing the same work. Quaranta's statements indicated that he rented his truck to York Excavating at $25.00 per hour from October 13 to October 31, 1979. He has also rented his trucks to other companies (e.g. to York Excavating in mid-September, 1979). Quaranta was asked, "When company wants a truck, do they care who drives the truck so long as they get a truck?" He answered, "No, I don't think it matters". However, he later stated that he has never rented the truck to anyone without operating it himself.

(e) Contract of employment

All three witnesses stated that they had never had a contract of employment or any formal agreement with any of the companies, including Coreydale.

(f) Supervision and control

All three witnesses stated that they checked with the person in charge of the excavating site for the times to start and finish work each day. They had no control over their hours of work, i.e. — they couldn't start earlier than the time stipulated by the company. All stated that there were no formal rules at the company about reporting to the person in charge when leaving early. However, all stated that it would damage their business relationship with the company if they left early without speaking to the person in charge. There were also no formal rules for calling in sick, but the witnesses stated that they would phone the company and try to arrange for a replacement driver if possible. All witnesses stated that when they were paid by the hour, the company instructed them on the dump site to be used and the route to be used to get there. The witnesses would report to the person in charge when arriving at work and have their invoices signed before leaving work. The person in charge would decide when the site had to be closed in inclement weather. The companies also had an estimate of the time necessary to go to the dump site and return, although the drivers were not given strict time limits. Even when the owner/operator is being paid by the load, it would be in his interest to return from the dump site as quickly as possible. All witnesses stated that while they could refuse an overload, but if they do, the work association ends. Most companies do not pay if the owner/operator reports to work, but for some reason there is no work to do. Fedele stated that some employers pay one to two hours in this situation. This was not the case at Coreydale. Fedele stated that he would refuse a job if the thought his truck would be damaged. At Coreydale, the timekeeper kept track of their hours of work and signed the invoices at the end of each day. There was an unpaid lunch break, but the owner/operators would work if requested. There were two paid coffee breaks. The foreman instructed them on the location of the dump site and the route to take to get there. Romano stated that he would not leave the job for another higher paying job because the original company would not hire him back. Romano stated that he would notify a company if he was planning a vacation. However, he does not take vacations in the summer "because in the summer you work". Romano stated that he took vacations in the winter when there was little work available.

(g) Detailed Statement of Income for Period January 1, 1979 to December 31, 1979- G. FEDELE

Company Amount % Total Income

Four Valleys Excavating Ltd. $540.00 1.2

Gottardo Brothers 5,996.00 13.7

Duncan Reynolds General

Contractor Ltd. 390.00 0.9

Boston Excavating 667.00 1.5

Palmisano Construction Ltd. 397.50 0.9

F C M Construction 1,844.00 4.2

Rumble Construction 1,541.00 3.5

Land Excavating 2,117.00 4.8

Nardi Excavating 737.00 1.7

Eaton Construction Ltd. 616.00 1.4

Val-Dal Construction Ltd. 24,253.50 55.4

Sandjo Excavating Ltd. 350.00 0.8

Mayclair Homes Ltd. 460.00 1.1

Fermar Paving Ltd. 1,320.00 3.1

Silver Rose Construction Ltd. 345.00 0.8

Italian Transport 168.00 0.4

Costa Trucking Ltd. 1,403.00 3.2

Coreydale Construction 612.00 1.4

18 Companies $43,757.00 100.0

Detailed Statement of Income for Period January 1, 1979 to January 7, 1980-A. ROMANO

Company Amount % Total Income

Bot Construction $31,466.50 78.2

Konto Corporation 2,310.00 5.8

Marsello Construction 176.00 0.4

Celano Excavating 130.00 0.3

Accucom Ltd. 147.00 0.4

Redcliffe Homes 393.00 1.0

Anthony Pooles Limited 1,008.00 2.5

All Types Excavating 409.00 1.0

R. C. Contracting 187.00 0.5

G.A.G.A. General Contracting 616.00 1.5

Marsan Excavating & Grading 388.50 1.0

J.M. Guest Ltd. Utility Div. 220.00 0.5

Maio Excavating Ltd. 198.00 0.5

Northwest Excavating Ltd. 231.00 0.6

Rena Road Paving & Concrete 180.00 0.4

York Construction 240.00 0.6

Golzan Construction 228.00 0.6

Four Valleys Excavating 448.50 1.1

G. Zanata Haulage 195.00 0.5

Canada Brick 408.00 1.0

Coreydale Construction 648.00 1.6

21 Companies $40,230.50 100.0

Detailed Statement of Income for Period July 17, 1979 to January 7, 1980-A. QUARANTA

Company Amount % Total Income

Kelco Sand & Gravel $8,891.00 32.9

Metric Excavating 850.00 3.1

Marcoccia Haulage 1,125.00 4.2

London Excavating 2,273.50 8.4

York Excavating 11,312.50 41.9

Peter Excavating 1,503.00 5.6

Boston Excavating 216.00 0.8

Coreydale Construction 828.00 3.1

8 Companies $26,999.00 100.0

6. On behalf of the applicant and intervener, it was submitted that the only distinguishing feature of these two cases from the many other cases in which dependent contractor status has been found by the Board was the low percentage of total income flowing to the owner/operators from the two companies. In this respect counsel for the applicant argued that this fact should not be allowed to obscure the subservient relationship between the companies and the owner/operators. It was submitted that the low percentage of income simply reflected the highly mc bile nature of employment in the construction industry and that when all the evidence was considered the owner/operators more closely resembled employees than independent contractors. In support of these submissions the Board was referred to Fownes Construction Co. Ltd., [1974] 1 Can LRBR 453; Midland Superior Express Limited (1974), 4 di 30; Purple Heart Film Corporation, [1979] OLRB Rep. Sept. 900; and Arthurs, The Dependent Contractor: A Study of the Legal Problems of Countervailing Power (1965), 16 U.T.L.J. 89. The applicant sought to distinguish many of these earlier dependent contractor cases on the basis that they dealt with a stable commercial relationship, many times centering on a pit or quarry. Counsel was candid in stating that the instant applications raised for the first time the issue of whether or not this Board would recognize "dependence on a number of employers or on an industry". The applicant reviewed with the Board the more general matters of (i) vehicle ownership; (ii) method of remuneration; (iii) the project orientation of the work; (iv) the hours of work and method of supervision; (v) and the extent of entrepreneurial initiative. Emphasized was the "take or leave it" method of setting remuneration; the highly routinized nature of work; the de facto control exercised by the companies in light of the nature of the work; and the absence of any real entrepreneurial initiative. Counsel for the intervener adopted the applicant's submissions, but sought to support the viability of collective bargaining by these owner/operators by reference to its own collective agreements with many of the companies subject to the applications referred to in paragraph 3. For example Coreydale is a member of the Toronto and District Excavators Association and Craftwood is a member of the Sewer and Watermain Association. Both associations have collective agreements with Local 230 pertaining to employee/drivers. He stressed that the kind of work being done by the owner/operators for these two companies was essentially the same as that performed by their regular employees who were members of Local 230. It was the intervener's position that this feature of the cases demonstrated that the owner/operators worked within a defined labour market. It was submitted that owner/operators were used to supplement the trucking capacities of the two companies and that the owner/operators were subject to the same disparity in bargaining power that pertained to the drivers regularly employed by Craftwood and Coreydale. It was submitted that if the latter employees could have the benefit of collective bargaining, the purpose of the dependent contractor provision must surely embrace the conclusion that the owner/operators subject to these applications may also engage in collective bargaining. Counsel concluded by pointing out that everything about the relationship was dictated by the two companies. The only decision made by the owner/ operators was the decision to work with the particular company or not.

7. Counsel for the respondent companies distinguished the British Columbia Labour Board cases on the basis that the B.C. Board could only vary an existing bargaining unit to include dependent contractors. Because of this restriction, the viability of collective bargaining was almost guaranteed and the dependent contractor applications were definitely restricted to a defined labour market. It was submitted that operating within this legislative framework, the B.C. Board could afford to give a very liberal or generous interpretation to economic dependency. Counsel also submitted that the intermittent contractual relationships of the owner/operators are not analogous to the way in which regular employees are used by these two companies. The regular employees are not let go after each project but continue in employment with the two companies for the duration of the construction season. Counsel directed the Board to that evidence in the transcripts where owner/operators testified that they had been regular employees at one time and had been employed continuously on such occasions. Counsel exhaustively reviewed the evidence with the Board in support of the conclusion that all of the usual indicia pointed to an independent contractor relationship. Particular emphasis was given to (1) the method by which work was obtained; (2) the investment of the owner/operator in his equipment; (3) the tax advantages and personal freedom associated with the work of the owner/operators; (4) the reasons for entering into this type of work which centered on the choice of the owner/operator to better himself; (5) the absence of discipline and any meaningful control; and (6) the very low percentage of total income flowing from the two respondent companies to the six owner/operators. Counsel disputed the assertion that these applications were, in reality, restricted to a few companies and advised the Board that there are 180 excavation and sewer and watermain contractors in the Toronto area alone. He submitted that a review of the companies having retained the services of the owner/operators revealed that some were roadbuilders, some were developers and others were trucking companies. Counsel strongly disagreed with the submission of the applicant and intervener that the cases pertained to a defined labour market. He argued that hundreds of companies might use the services of owner/operators and these companies could be unionized, non-unionized and, if the former, could be subject to either association bargaining or individual local bargaining. In requesting that the applications be dismissed on the basis of a lack of economic dependency, counsel for the respondents referred the Board to Crawford Sand and Grevel, [1980] OLRB Rep. Mar. 308; Niagara Veteran Taxi, [1979] OLRB Rep. Nov. 1056; Sherman Sand and Gravel, [1978] OLRB Rep. May 459; Dominion Dairies, [1978] OLRB Rep. Dec. 1083; Giordano Sand & Gravel, [1978] OLRB Rep. Nov. 989; Comfort Guard Services, [1978] OLRB Rep. Oct. 905; Flintkote Co. of Canada, [1978] OLRB Rep. Sept. 822; Dufferin Aggregates, [1978] OLRB Rep. Mar. 278; Consolidated Sand & Gravel, [1978] OLRB Rep. Mar. 264; Superior Sand. Gravel & Supplies, [1978] OLRB Rep. Feb. 119; Indusmin Limited, [1979] OLRB Rep. Mar. 213; Nelson Crushed Stone, [1977] OLRB Rep. Feb. 104; and Adbo Contracting, [1977] OLRB Rep. April 197.

Decision

8. Prior to the enactment of the subject dependent contractor provisions, Livingston Transportation Limited, [1972] OLRB Rep. May 488 set out the various tests that have been utilized in determining whether a person in an employee or an independent contractor. While many of these tests originated in a context quite different from that in which modern collective bargaining now finds itself, they have been employed by this Board albeit as guidelines and with a flexibility aimed at implementing the purpose of The Labour Relations Act. It is therefore useful to determine first whether the owner/operators qualify as employees without regard to the dependent contractor provisions of the statute. It is our view that they do not so qualify. Whether one looks to the statutory purpose test, or to whether the six owner/ operators are carrying on business for themselves as opposed to the respondent companies or to the fourfold test suggested by Lord Wright in Montreal v. Montreal Locomotive Works Ltd., 1946 CanLII 353 (UK JCPC), [1947] 1 D.L.R. 161 (P.C.) at 169, the only conclusion that can reasonably be drawn is that, unless the owner/operators can be considered dependent contractors within the meaning of section l(l)(ga), they are not employees for the purpose of The Labour Relations Act. The facts in the two cases before us should be contrasted with those in Livingston Transportation Limited, supra, and General Concrete of Canada Ltd., [1975] OLRB Rep. Mar. 234. In the Livingston case the vehicles, while owned by the operators, were painted in the colours and insignia of the respondent company. They were acquired in light of the respondent's specifications. Replacement drivers had to be approved by the respondent. The operators worked exclusively for the respondent. P.C.V. and motor vehicle licences were registered in the respondent's name. All business records were kept by the respondent and the owner/operators had none of the trappings of the independent businessman. Similarly, in General Concrete the vehicles exhibited the logo of the respondent and its colours. Operators wore the respondent's uniforms. Vehicles were purchased, in most instances, according to the respondent's specifications. The respondent was, in most cases, involved in the purchase of the vehicles as guarantor and P.C.V. licences were most often restricted to the respondent, although in the name of the owner/operator. Once again, the respondent represented the principal source of revenue of the owner/operators. All of these facts led the Board to conclude that the respondent companies had voluntarily continued to exercise the same or a similar control exercised over the regular employees and the formalistic structuring of the relationship had to give way to this de facto employment relationship having regard to the purposes of The Labour Relations Act. In both cases the owner/operators could not be considered independent of the respondent companies. The facts in the instant cases are quite to the contrary. All the owner/operators had their own bookkeeper and a number had business cards. Each had voluntarily purchased a vehicle without any form of involvement by the respondent companies. Each had so structured himself to take advantage of the tax laws applicable to the independent contractor. None of the vehicles exhibit the colours or insignia of the respondent companies. All relevant licences are in the names of the owner/operators. Work is usually obtained through the effort of the owner/operator or his friends and acquaintances. There is no systematic call-in procedure administered by the respective companies. Finally, the owner/ operators have the freedom to work elsewhere and exercise this freedom on a regular basis. On the other hand, the regular employees of the respondent companies are employed on a continuous basis throughout the construction season and from project to project. Accordingly, if the owner/operators are to engage in collective bargaining under The Labour Relations Act they must be found to be dependent contractors. And, unfortunately, Purple Heart Film Corp., supra, does not help us with this determination because the Board in that case made no final determination on this point.

9. These two cases deal with owner/operators who, during 1979, drove their trucks for a substantial number of companies. These owner/operators worked for the two respective companies for a short period of time (ranging from 3 days to one month), and earned only a small portion of their total income from these companies. The basic issue to be resolved is the determination of how transitory a relationship can be in determining whether or not these owner/operators are dependent contractors under section 1(1)(ga) of The Labour Relations Act. The Act defines dependent contractor in section 1(1)(ga) as:

(ga) "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 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.

(gb) "employee" includes a dependent contractor.

And section 6(4) provides:

A bargaining unit consisting solely of dependent contractors shall be deemed by the Board to be a unit of employees appropriate for collective bargaining but the Board may include dependent contractors in a bargaining unit with other employees if the Board is satisfied that a majority of such dependent contractors wish to be included in such bargaining unit.

Dealing with a similar question of dependency in Fownes Construction Co. Ltd., [1974] 1 Can LRBR 453 at page 462, the British Columbia Labour Relations Board observed that:

"the only major roadblock to the application of the definition is the question of whether any of these owner/operators can be said to be dependent contractors of Fownes Construction itself. The difficulty is the intermittent relationship between any one owner/operator and Fownes. Rarely does an owner/operator work on a continuing basis for one contractor in the construction industry. Instead, when the contractor bids a job and wins it, his superintendent phones around and obtains the necessary number of trucks and drivers. The owner/operators come in and work on the project until it is finished and then go on to work for another contractor.... if it were the normal pattern in an industry for employment to be on a regular, continuing basis with one employer, then the fact that contractors were engaged for short periods by large numbers of persons would be a significant reason for finding they were independent rather than dependent contractors. However, employment in the construction industry inflict closely resembles the use made of owner/ operators. Employees work for particular contractors for the period. They are needed on a specific job, and then move on to the next project and the next contractor. This intermittent character of their employment does not affect their employee status for purposes of collective bargaining. Neither should it affect the status of the owner/operators as dependent contractors.” [emphasis added]

That Board therefore focused its attention on the wording in the dependent contractor legislation which states "more closely resembling the relationship of an employee" - wording that is also found in the Ontario definition. However, it is also important to note that section 48 of the B. C. Labour Code provides:

(1) The board may, on the application of a trade union or a group of dependent contractors, vary a certification of a trade union as a bargaining agent to include dependent contractors, where the board is satisfied that

(a) a majority of the dependent contractors consent to representation by the trade union; and

(b) reasonable procedures have been developed to integrate dependent contractors into the bargaining unit.

(2) A dependent contractor included in a certification under subsection (1) shall be deemed an employee for the purpose of this Act.

10. Moreover, a reading of Vancouver Printing Specialities et al, [1975] 1 Can LRBR 193, makes it evident that the successful application of the B.C. provision is far from automatic in the marginal cases. The union in that case applied to vary its certification to a bargaining unit of “....all dependent contractors (i.e. those engaged in trucking) from the circulation department of the company.” The characteristics of the truckers varied from substantial cartage companies who were not dependent on the company, to individuals who did the work on a part-time basis, to truckers who relied solely on this work for their income. Although this case did not involve the transitory nature of these truckers' employment, their employment did not follow the "usual routine of an employee. Because all of the papers [had to] be taken in many different directions all at the same time, a large number of contractors must be assembled to work for short periods." (p. 199) The Board concluded that it had not been shown that collective bargaining was appropriate for a portion of these outside contractors particularly given the nature of the employees in the bargaining unit. On the other hand, in Pacific Press and Vancouver - New Westminster Newspaper Guild Local 115, [1977] 1 Can LRBR 342, the Guild successfully applied for a determination as to the legal status of a number of regular freelance reviewers who wrote regular columns reviewing events in areas of their expertise such as art, music and drama. The freelance reviewer earned a flat rate for each article written but "because of the regular nature of the reviewing function, there tended to be a normal amount consistently earned by each reviewer." (p. 347) Time spent working by the reviewers varied from 15 to 40 hours per week, and this work was performed on a year-round basis. Percentages of income earned ranged from 50% to 90% from this work. The Board concluded that the freelancers were dependent contractors on the basis of facts indicating that the expertise or specialization involved in the work was similar to that of staff reviewers; that the freelance reviewers were part of the organization of the newspaper and identified with it; that the newspaper controlled the time available to do the work and selected the events to be covered; that the fees earned varied little on a monthly basis though they were calculated on a flat fee for review basis; that the reviewer could be summarily terminated and that there was a serious limitation on alternative remunerative work. But, in discussing the definition of 'employee' under the Code the Board indicated that boundaries to the dependent contractor concept had to be recognized when it wrote:

"sometimes employees work on commission or on a profit-sharing basis (such as salesmen or fishermen); some employees are subject to very little in the way of meaningful direction or control (such as professionals); some employees work primarily for training or education, rather than to earn a living (such as apprentices or interns). But while this concept of employee can be stretched a fair distance, ultimately it does run up against its legal boundaries. In our economy one finds many examples of individuals who provide valuable services to a business, but do so as independent entrepreneurs or professionals.” (p. 349)

11. In Midland Superior Express Limited (1974), 4 di 30, the transitory nature of the employment of owner/ operators was not in issue. These owner/operators were hired under verbal contracts whereby their tractor was hired together with their services as drivers to haul the freight of the company. These drivers could not use their tractors for any other purpose than hauling freight for the company because they did not have the time to do so and the operating licences were in the name of the company. On these facts, the Canada Board found these owner/operators to be dependent contractors. The facts in the instant cases are materially different. Similarly, in Nelson Crushed Stone, [1977] OLRB Rep. Feb. 104, "the truckers' principal source of revenue was through the delivery opportunities made available by the respondent..." With respect to total fiscal revenues, a driver was shown to earn the lion's share of his income from the haulage services required by the respondent." (p. 107) Against these facts the Board was moved to observe that:

"[t]he watch word of the definition is 'dependent' and dependent is to be interpreted in a manner consistent with the economic reality of the relationship with the beneficiary of the service having regard to the industry or undertaking under review. It therefore follows that the status of the 'dependent contractor' must be matched and plotted in relation to the terms and conditions of 'employees' in like industries to determine whether he, in a de facto sense, more resembles them." (p. 108).

On the issue of opportunity for economic mobility as a measure of independence (an opportunity not exercised by the owner/operators in that case), the Board stated at paragraph 15:

The Board agreed that the opportunity for economic mobility is a factor in measuring the degree of independence exhibited by a particular entrepreneur in meeting his financial objectives. Indeed, perhaps in a particular circumstance it may very well follow that the individual entrepreneur may fall outside the definition of "dependent contractor" notwithstanding his election to extend the benefits of his service to one particular customer. Whatever that circumstance may be we are clearly of the view that when measured against the consideration of other significant factors the individual trucker reviewed herein does not fall into that category. In examining the Labour Relations officer's Report the Board was impressed with the length of service with the respondent of some of the truckers. In several of these instances these drivers have not demonstrated any individual initiative to indicate they were at all self-reliant in expanding the parameters of their "business". The sheer uniformity of the terms and conditions imposed by the respondent without negotiation or, indeed, often times without consultation in satisfying the trucker's financial needs, contradicts any suggestion of an entrepreneurial relationship. What are the special inducements that have been offered by the respondent in its dealings with the truckers that would persuade them to curb their growth potential by committing their business destiny to the respondent's enterprise? Indeed, on such too frequent an occasion, the evidence indicates, a driver was "shown the gate" in the event independent initiative was exercised in the refusal of a load that was viewed by him as not being particularly profitable.

In this light we do not understand paragraph 17 of this decision as a wholesale adoption of the Fownes approach, but rather as a rejection of any requirement of a "continuing [legal] obligation" between a respondent company and owner/operator.

12. In Adbo Contracting Company Ltd., [1977] OLRB Rep. Apr. 197, the complainants earned their living by hauling various loads in their own dump trucks (i.e. as owner/drivers). Four of the five complainants obtained most of their work through a person who styled himself as a 'broker'. In its determination of the status of these owner/drivers, the Board made a distinction between "economic dependence" and "economic vulnerability" at page 203:

"economic dependence must be such that it puts the person in roughly the same economic position as an employee who must face the perils of the labour market. Mere economic vulnerability, however, is not a sufficient basis for finding that a person is a dependent contractor, since this is a condition that may be experienced by the true entrepreneur, just as much as the individual worker. There must exist, therefore, a type of economic dependence closely analogous to that of the individual worker." [emphasis added]

One owner/driver in that case, however, did not rely exclusively on the broker for obtaining work and thus was in a more transitory relationship than the other owner/ operators. Nevertheless, and notwithstanding the above distinction that it had drawn, the Board held that this did not take him outside the purview of section 1(1 )(ga) of the Act because the owner/drivers were "performing work in the construction sector, an area in which employment relationships have always been less permanent than in the industrial sector". Using this analogy, the Board held that the transitory nature of the relationship between Fidanza and the broker did not make Fidanza any less a dependent contractor than the other four complainants (see p. 203). Unfortunately, the decision does not specify just how transitory the relationship was in that one instance. We also note that in the cases at bar there is no broker bringing the owner/operators into a cohesive definable group.

13. In Superior Sand, Gravel and Supplies Ltd., [1978] OLRB Rep. Feb. 119, all but one of nine owner/drivers obtained a very substantial portion of their remuneration from the respondent (80% - 90%). The one exception derived only 25% of his income from the respondent. Any outside work performed by the owner/drivers usually occurred when work was not available from the respondent. The Board, in concluding that these owner/drivers were dependent contractors, stated at pages 126-7 that:

Taking into account the type and extent of the outside activities of the owner/drivers, indicates that the owner/drivers were not providing service to a number of customers but were primarily dependent upon the respondent for their livelihood. Given this type of economic dependence, even the one owner/ driver who derived only 25% of his income from the respondent does not appear to be unlike a casual employee. [emphasis added]

14. In the instant cases no one owner/operator is the exception to an overwhelming reliance on the respondent companies. Moreover, in the Superior case a haulage agreement signed by all owner/operators suggested that an ongoing relationship was intended for all owner/operators. But this is not to say that it is impossible for owner/operators to be economically dependent on more than one person. In Nelson Crushed Stone, supra, the Ontario Board endorsed the guideline to be applied with respect to the extent of the economic dependency of the 'contractor' set out by the Canada Labour Relations Board in Midland Superior Express Ltd., supra, (p. 111). In this respect the Canada Board at page 278 wrote:

Surely the test of control to be applied now to the dependency is of an economic nature. Are the persons involved obliged to sell their services in a market in which they are economically dependent on a single or a restricted few purchasers? Is their freedom to contract with any degree of independence so thwarted that they are in fact in a status equivalent to that of individual employees faced by powerful employers? One can envisage situations in which a person who would be completely independent from any employer-employee relationship in the common law contractual sense and yet would be absolutely dependent in such an economic sense. [emphasis added]

The possibility of economic dependency co-existing with more than one purchaser of the services in question is also suggested by Professor Arthurs in his landmark article, supra, where at p. 114-115 he writes:

Insofar as dependent contractors share a particular labour market with employees, it is submitted, first, that they should be eligible for unionization. Such a result would require a new definition of the term "employee," perhaps along the lines of that adopted in Sweden: "For the purposes of this Act a person shall be regarded as an employee even if no normal engagement exists, provided that he performs work for another person and thereby occupies in relation to that person a position of dependence essentially similar to that occupied by an employee in relation to his employer." Second, courts and labour boards dealing with attempts by organized employees to immunize themselves from the impact of competition from dependent contractors should view this objective realistically. Union standards are as vulnerable to attack from dependent contractors as from non-union employees. Particularly when the Law does not yet permit the union to organize the former as it may the latter, defensive and exclusionary tactics should be given some latitude. In this respect the three British Columbia cases — Morrison. Scarr, and Therien — should not be followed.

Where, on the other hand, the dependent contractor does not share a labour market with employees, existing labour relations institutions afford little assistance. Here, special legislation may be required, a precedent for which exists in the Nova Scotia fishing industry. Whether under the aegis of such legislation, or without regard to it, organizations of dependent contractors have emerged. As has been suggested, their legal immunities are far from clear, and require legislative definition. At a minimum, the innocuous section 4 of the Combines Investigation Act should be recast to as to read at least as broadly as section 6 of the Clayton Act:

[T]he labor of a human being is not a commodity or article of commerce. Nothing contained in the anti-trust laws shall be construed to forbid the existence and operation of labor, agricultural, or horticultural organizations, instituted for the purpose of mutual help, and not having capital stock or conducted for profit, or to forbid or restrain individual members of such organizations from lawfully carrying out the legitimate objects thereof; nor shall such organizations or the members thereof be held or construed to be illegal combinations or conspiracies in restraint of trade, under the anti-trust laws.

15. From the transcript relating to Coreydale, Fedele earned 1.4% of his income; Romano earned 1.6% of his income; and Quaranta earned 3.1% of his income from this company. From Craftwood, Di Savino earned 5% of his income; Polsinelli earned 5.5% of his income; and Facchini earned 15% of his income. The most recent case dealing with economic dependence is A. Cupido Haulage Limited, [1980] OLRB Rep. May 679. While it did not address the two exceptions found in Adbo Contracting and Superior Sand, the panel at page 688 in this case outlined its understanding of the general approach that has been adopted in the vast majority of cases in the following way:

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% to 100% in the reported cases) he is in a position of economic dependence more like an employee than an independent contractor.

From all of the above, can it be said that the owner/drivers who are the subject of these certification applications are in a position of 'economic dependence' on either Coreydale or Craftwood as that term is employed in the Ontario Labour Relations Act?

16. We believe this question must be answered in the negative. Section 1(1)(ga) makes it clear that the issue of economic dependence is in relation to the person for whom the work is done. From the wording used, it is not readily apparent that the Legislature had in mind an "economic dependence" on a vast number of purchasers or on an entire industry. Rather, the words more reasonably reinforce the existing approach of this Board which has measured economic dependence by the degree of economic association with a particular purchaser of the service or work in question. Indeed, it is almost a tautology to speak in terms of dependence on an industry in the sense that almost everyone is dependent on the source of their income when the source is so widely defined. This is not to say, however, that it is impossible to be economically dependent on more than one person and thereby more resembling an employee in relation to each of the purchasers of the services in question. However, the number of such purchasers would have to be very limited and they would have to exercise a de facto control over the labour market - an oligopoly in economic terms if you will. The economic relationship with each person would, as well, have to be substantial and more or less regular. On the evidence before us, all of these conditions are absent. The owner/operators subject to these two applications have provided their services to a great variety of purchasers. Some of these purchasers are subject to collective bargaining (although all are not party to the same collective bargaining arrangements); all are not active in the same sectors; and all do not deal with the same trade unions. Others, of course, are unorganized. Indeed, these latter contractors may be in the majority when the two cases are looked at in their totality and against the two collective agreements filed by the intervener. Finally, the economic relationships in all cases are not substantial. For all of these reasons, it is not possible to say that the owner/operators in these two cases are in a position of economic dependence upon either of the two respondent companies.

17. In concluding, we do not seek to ignore the "take it or leave it" pricing of the services. Clearly this is a reflection of unequal bargaining power. However, unequal bargaining power cannot be synonymous with economic dependence as used in section 1(1)(ga). Where supply exceeds demand or where the purchaser possesses a capacity to undertake the service himself, there may not be a great deal of bargaining over the price of the service. Moreover, truck driving and the provision of a single vehicle is not so unique or highly skilled a service that would cause much bargaining over price no matter who the purchaser. Such services are readily available as the classified ads in any newspaper often attest and a generally uniform price is therefore not unusual. The approach of British Columbia is interesting, but the spread of its effect in that Province is confined to existing collective bargaining arrangements under section 48. Thus, an expansive definition of dependency in that jurisdiction has a definable and ascertainable implication for both labour and product markets. Moreover, while we would agree with the Fownes holding that in addressing the issue of economic dependency regard should be had to the nature of the labour market, it would be inaccurate in this case to simply point to the transitory nature of employment in the construction industry and conclude that these owner/operators more closely resemble employees than independent contractors. First, we think the comparison must be with other truck drivers in the construction industry and there is no evidence before us that such drivers are laid off at the completion of each project. In fact, the evidence is quite to the contrary for the two respondent companies at bar. This evidence reflects its own economic reality in the sense that the economic incentive on an employer to keep the investment in his trucks employed demands as continuous er3ployment of his drivers as possible. There was simply no suggestion that the respondent companies experienced a turnover in their regular employees analogous to that experienced with owner/operators.

18. The definition of dependent contractor directs the Board to have regard to two related indicators of an "employment-like" relationship. They are: 1) economic dependence; and 2) obligation to perform duties. With respect to the second indicator, we have already pointed out a number of significant differences between the owner/operators and regular employees. Admittedly, in these two cases they perform similar functions, but not in an equally obligatory manner. While the owner/operator appears to display a "loyalty" to a single project, there was no indication that a failure to attend on any particular day has met with specific sanctions. Moreover, there is absolutely no feeling of obligation that moves the owner/operators to stay with the respondent companies from project to project in a manner similar to their regular employees. The applicant and intervener emphasized the routinized nature of the work, but such is not unusual in relation to this kind of work and cannot be equated to an obligation approximating an employment relationship on the evidence before us. At the most it is equivocal. With reference to the first indicator(economic dependence), the legislation defines a dependent contractor relationship in terms of economic dependence upon a person. This definition amounts to a substantial expansion in the ambit of collective bargaining over the previous approach of this Board reviewed above, but it also contains a restriction or qualification. Prior to the enactment of section 1(ga) it was far from clear that economic dependency, particularly of a more voluntary type, standing alone or together with a related obligation to perform duties entitled a person to employee status under The Labour Relations Act. This uncertainty has now been removed in favour of collective bargaining. But if a meaningful interpretation is to be accorded to the term "economic dependence", the relationship between the seller and purchaser of the service or work must be sufficient to create a form of de facto control through economic dependency. An employee is considered an employee because control is exercised or can be exercised by the employer. The entire relationship is structured to reflect subservience and obligation. It is a concept both of form and substance. A dependent contractor is a dependent contractor because he lacks control. This lack of control can arise simply out of economic dependence and not from any formal structuring of the relationship by the purchaser of the service or work although the involvement of the purchaser can be a telling fact. Indeed, the purchaser need not exercise any more control than merely continuing to treat with the dependent contractor. The dependent contractor concept is therefore primarily a concept of substance. Form has little role to play. The mutuality of the employment relationship is, as the cases illustrate, irrelevant. But as the B.C. Board in the Pacific Press case observed, the concept must ultimately run up against its legal boundaries. A ruling in favour of the applicants in these two cases would be tantamount to a declaration that an owner/driver of a single truck can never be an independent contractor for the purposes of The Labour Relations Act. We decline to take this step given the wording of our mandate. As the Arthurs article indicates, there are many individuals, differently situated, and yet deserving or in need of greater control over their economic environment. However, these circumstances of economic imbalance are highly diverse and not amenable to a single solution. Collective bargaining is one institutional device that can rationalize a broad range of anomalies but the wording employed by the statute and its related purpose must be respected. All of the owner/operators voluntarily adopted their current arrangement to improve their economic position independent of any involvement from the two respondent companies. All exercised the freedom of an independent contractor to provide services to many other purchasers and their resulting mobility reflected initiative. We also wish to make it clear that we are not finding that some or all of these owner/operators are independent contractors in relation to all the companies to whom they provided services. In this respect, we note that in a number of instances a substantial portion of total revenue came from a single or limited source. Where the line of economic dependency is to be drawn in such circumstances may be uncertain from case to case and must be based on a review of all the surrounding evidence. For all of these reasons, the Board finds that the owner/operators subject to these two applications are not dependent contractors within the meaning of The Labour Relations Act. Both applications are dismissed.