Ontario Labour Relations Board
[1980] OLRB Rep. December 1736
File No.: 0444-80-R Date: December 4, 1980
Applicant: United Brotherhood of Carpenters and Joiners of America Respondents: Cross Canada Equipment, Cross Enterprises, Brad Cross, Cross Canada Service, Brad Cross Ltd., Sprucedale Texaco
Before: Ian C. A. Springate, Vice-Chairman, and Board Members H. J. F. Ade and M. A. Ross.
Appearances: H. P. Rolph and W Sherman for the applicant; B. Pollock for the respondents.
Decision of the Board
1This is an application for certification filed pursuant to the construction industry provisions of The Labour Relations Act. By way of this application, the applicant is seeking to acquire bargaining rights for carpenters and carpenters' apprentices employed by the respondents. At issue is the question of whether Mr. Brad Cross or any of the other respondents, all of which appear to be controlled by Mr. Cross, employed any carpenters and carpenters' apprentices on the date of the making of the application. It is the applicant's contention that two individuals, namely, Mr. C. Larson and Mr. Z. Paanen were so employed.
2A review of the report of a Labour Relations Officer appointed in this matter indicates that Mr. Larson is employed on a full-time basis by Boise Cascade in Kenora, but that from time to time he undertakes to perform certain outside work during his free time. Although Mr. Paanen did not attend before the Labour Relations Officer, it appears from the report that he is employed on a full-time basis by Peter Kooms Limited, but that at the relevant time had been given a week off by the company.
3On or about May 21, 1980, Mr. Larson heard that Mr. Cross desired to have some work performed and went out to see him. Mr. Larson and Mr. Cross reached an agreement whereby Mr. Larson would build a wooden facade on the exterior of a service station owned by Mr. Cross and in return receive a flat sum for the work, irrespective of how long it took to complete. Mr. Cross supplied the construction materials. Mr. Larson arranged for Mr. Paanen, a friend of his, to assist him in the work. Mr. Larson paid Mr. Paanen directly. Mr. Larson and Mr. Paanen did not work any set hours on the service station job, but rather decided between themselves what days they would work and for how long. They were not supervised by Mr. Cross. When the work was completed, Mr. Larson received a cheque for the full agreed-upon price.
4On these facts set out above, we are of the view that at the relevant time, neither Mr. Larson nor Mr. Paanen were employees of Mr. Cross or any of the other respondents. Rather, it appears that Mr. Larson was retained as a contractor and it was he who employed Mr. Paanen. It was not contended that either Mr. Larson or Mr. Paanen were "dependent contractors" of the respondents.
5Having regard to the above, the Board is satisfied that the respondents did not employ any carpenters and carpenters' apprentices on the date of the filing of the application. The application is accordingly dismissed.