Brian Eric Dwight v. International Union of Operating Engineers, Local 793, 1980 CanLII 971

[1980] OLRB Rep. October 1442

0572-80-U Brian Eric Dwight, Complainant, v. International Union of Operating Engineers, Local 793, Respondent, v. Operating Engineers Employer Bargaining Agency, Intervener.

BEFORE: Kevin M. Burkett, Alternate Chairman and Board Members C. A. Ballentine and J. D. Bell.

APPEARANCES: R. W. Cosman, D. N. Corbett and R. McCormick for the complainant; A. M. Minsky, M. Zigler and E. Ford for the respondent; S. C. Bernardo for the intervener.

DECISION OF THE BOARD; October 6, 1980

1. This is a complaint filed under section 79 of The Labour Relations Act alleging violations of section 60, 60a, 61, and 136(1) of the Act. At the hearing the complainant advised that he was also alleging a violation of section 38(2) of the Act. The essence of the complainant's allegation is that because he is a dependent contractor he is also an employee within the bargaining unit represented by the respondent trade union and, therefore, the actions taken by the union which resulted in his loss of employment with Ward Crane Rentals Ltd. violate the aforementioned sections of the Act.

2. The respondent union asks the Board to restrict the scope of the complaint to the sections of the Act relied upon prior to the hearing. In any event, the respondent argues, by way of preliminary motion, that the allegations, as particularized, even if proven, would not establish a violation of the Act. The respondent relying on Rule 46(1), asks the Board to find that no prima facie case is made out and to dismiss the complaint without hearing evidence. Rule 46(1) provides:

Where an application or complaint does not, in the opinion of the Board, make out a prima facie case for the remedy requested, the Board may dismiss the application or complaint without a hearing and it shall in its decision state the reason for the dismissal.

3. The particulars filed in support of the complaint, which the respondent maintains do not established a prima facie violation of the Act, have been filed in two parts. The first pertains to Mr. Dwight's status as a dependent contractor under section 1(1)(ga) of the Act. These are:

"(1) The complainant worked exclusively for Ward Crane Rentals Ltd. and earned all of his personal income from that company.

(2) The method in which the complainant was paid for his services more nearly resembles that usually adopted in an employer/employee relationship than it does that adopted when an independent contractor is hired. In particular, the complainant relies on the following facts:

(a) the complainant issued bills to customers from a Ward Crane Rentals Ltd. bill book;

(b) customers paid Ward Crane Rentals Ltd. and not the complainant;

(c) the complainant was paid by Ward Crane Rentals Ltd. directly;

(d) the complainant was guaranteed payment 45 days from the end of the month in which his work had been done;

(e) any losses which Ward Crane Rentals Ltd. suffered were not passed on to the complainant and any benefits that Ward Crane Rentals Ltd. might receive from early payment were not passed on to the complainant; and

(f) Ward Crane Rentals set the rate to be charged to its customers for the services of Mr. Dwight and other independent operators working for that company.

(3) Licensing arrangements between the complainant and Ward Crane Rentals Ltd. support the inference that an employer/employee relationship was involved. In particular the complainant relies on the following facts:

(a) Ward Crane Rentals Ltd. arranged for the complainant to receive the necessary licenses;

(b) the P.C.V. License was issued to Ward, not to the complainant;

(c) Ward paid the application costs for the license while the complainant paid only for the plates that went on his truck; and

(d) because of the restrictions attached to the said P.C.V. License, the complainant was not able to use the truck for personal purposes, but only in connection with his work with Ward Crane Rentals Ltd.

(4) The complainant was engaged in the solicitation of business for Ward Crane Rentals Ltd. and participated in promotional activities such as distributing Ward Crane Rentals Ltd.'s pens, business cards and rate sheets to customers. At no time when working for Ward Crane Rentals Ltd. did he solicit business on his own behalf.

(5) The complainant's machine carried the Ward Crane Rentals' logo and sign and Ward Crane Rentals' telephone number. The only reference to the complainant was a small statement printed on the sign of the cab saying that the truck was owned and operated by the complainant.

(6) Ward Crane Rentals Ltd. controlled the allocation of work and the complainant received instructions from Ward Crane Rentals on the times and places at which he was to report for work and was not free to disregard these directions if he wished to continue to work for Ward Crane Rentals Ltd.

(7) Ward Crane Rentals Ltd. made deductions from the payment it gave to the complainant pursuant to an insurance policy which the company had set up for the complainant and others working for it."

The remaining particulars relate to the actions taken by the respondent against Mr. Dwight. These are:

"(1) The complainant is a licensed crane operator holding a hoisting engineer's certificate of qualification pursuant to The Operating Engineers Act, R.S.O. 1970, c. 333. The complainant owns his own crane.

(2) From June, 1978, to April 8th, 1980, the complainant worked for Ward Crane Rentals Ltd. supplying his own labour and furnishing his own mobile crane, and was paid by Ward Crane Rentals Ltd. for his services.

(3) From time to time in the aforesaid period, and in the two years prior, the complainant was refused membership in the respondent union.

(a) In June, 1976, the complainant approached Mr. Gus Gosse, a business agent for the respondent, to obtain an application for membership in the respondent union and was told by Mr. Gosse that it was not necessary that he become a member of the respondent union.

(b) In the winter of 1976, the complainant again approached Mr. Gosse with a request for membership in the respondent union and was again informed that it was not necessary that he become a member of the respondent union.

(c) On May 28, 1978, the complainant attended at the offices of the respondent union to apply for membership in the union and was informed by Mr. Gosse that he should reattend after obtaining his operating engineer's license.

(d) The complainant completed the required test to obtain a hoisting engineer's certificate of qualification and was informed on June 1st, 1978, that his Certificate Number would be 053561. He attended at the offices of the respondent union on the same date with a cheque for initiation and monthly dues and informed Mr. Gosse as to his Certificate Number. Mr. Gosse informed the complainant that he would have to take the matter up with Ernie Ford, a business agent for the respondent union.

(e) By telephone the following day, Mr. Ford informed the complainant that he could not submit a membership application form and that he would not be admitted into membership by reason of problems with owner-operators of cranes, but further advised him that the complainant's case would go before the Union Executive Board.

(f) Approximately two weeks later the complainant telephoned Mr. Ford at the office of the respondent and was informed that Mr. Ford required documentary proof that the complainant was the owner of a crane. On the following day the complainant delivered to the office of the respondent union a copy of the cancelled cheque used to purchase the machine in question together with a loan statement.

(g) On or about June 16th, 1978, the complainant again telephoned Mr. Ford and asked as to the status of his application and whether the respondent had all the documents required. Mr. Ford informed the complainant that the respondent union was not accepting any more owner-operators into membership at that time and would not process the application of the complainant until the question of owner-operators was resolved.

(4) The complainant continued to work for Ward Crane Rentals Ltd. as the owner/operator of a crane until April 8th, 1980. On that date a grievance brought by the respondent union against Ward Crane Rentals Ltd. was settled between those parties and a consent order signed prior to the hearing of the referral of the grievance by the Board. (File No. 2408-79-M).

(5) The respondent union in that grievance alleged that Ward Crane Rentals Ltd. was improperly sub-contracting work to the complainant herein, among others, contrary to Article 3.4 of the Provincial Collective Agreement then in force between the Operating Engineers Employer Bargaining Agency and the respondent Union herein. The Minutes of Settlement and consent order signed included a direction that Ward Crane Rentals Ltd. shall forthwith cease and desist from sub-contracting work to the complainant, among others.

(6) On April 9th, 1980, the complainant attended at the offices of the respondent union and was informed by Mr. Ford that the respondent union desired to get rid of owner/operators and that it was the respondent's position to support the owners of large crane operations. The complainant asked about obtaining a collective agreement and Mr. Ford also informed the complainant that the respondent union did not intend to enter into any more collective agreements with owner/operators. The complainant also met with Mr. Rick Watson, a Local 793 business agent, and was permitted to complete a membership application form and submit a cheque to cover the initiation fee.

(7) On April 29th, 1980, the complainant was informed his application for membership in the respondent union had been refused. The complainant and another owner/operator attended at the Union Hall to meet with Mr. Ford, and were referred to Mr. Chris Dowdell, the recording secretary for the union, who informed the complainant that the application for membership was rejected on the advice of the union solicitor.

(8) On April 30th, 1980, the complainant telephoned Mr. Ford and was informed by Mr. Ford that his membership application had been rejected by reason of high unemployment.

(9) The complainant understands that other individuals have been admitted into membership in the respondent union after April 26th, 1980.

For purposes of deciding whether a prima facie violation of the Act is established we must accept, as if proven, the particulars set out above.

4. The sections of the Act which the complainant alleges have been violated are:

"38. (1) Notwithstanding anything in this Act, but subject to subject to subsection 4, the parties to a collective agreement may include in its provisions,

(a) for requiring as a condition of employment, membership in the trade union that is a party to or is bound by the agreement or granting a preference of employment to members of the trade union, or requiring the payment of dues or contributions to the trade union;

(2) No trade union that is a party to collective agreement containing a provision mentioned in clause (a) of subsection 1 shall require the employer to discharge an employee because,

(a) he has been expelled or suspended from membership in the trade union; or

(b) membership in the trade union has been denied to or withheld from the employee,

for the reason that the employee,

(c) was or is a member of another trade union;

(d) has engaged in activity against the trade union or on behalf of another trade union;

(e) has engaged in reasonable dissent within the trade union;

(f) has been discriminated against by the trade union in the application of its membership rules; or

(g) has refused to pay initiation fees, dues or other assessments to the trade union which are unreasonable.

60. A trade union or council of trade unions, so long as it continues to be entitled to represent employees in a bargaining unit, shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the unit, whether or not members of the trade union or of any constituent union of the council of trade unions, as the case may be.

60a. Where, pursuant to a collective agreement, a trade union is engaged in the selection, referral, assignment, designation or scheduling of persons to employment, it shall not act in a manner that is arbitrary, discriminatory or in bad faith.

61. No person, trade union or employers' organization shall seek by intimidation or coercion to compel any person to become or refrain from becoming or to continue to be or to cease to be a member of a trade union or of an employers' organization or to refrain from exercising any other rights under this Act or from performing any obligations under this Act.

62. (1) designated or certified employee bargaining agency shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of the affiliated bargaining agents in the provincial unit of affiliated bargaining agents for which it bargains, whether members of the designated or certified employee bargaining agency or not and in the representation of employees, whether members of an affiliated bargaining agent or not."

63. The relevant sections of the collective agreement are:

"ARTICLE 2 - RECOGNITION

2.1 The Employer recognizes the Union as the exclusive bargaining agent for all employees of the Employer for whom the Union has bargaining rights within the Province of Ontario engaged in work covered by the schedules and classifications set out in this agreement, and any additional classifications as may be agreed to by the parties.

ARTICLE 3 - UNION SECURITY

3.3 Employees working under this Agreement shall be members of the Union in good standing, or make application to become members of the Union within seven days of hiring or be replaced upon written request by the Union.

3.4 (a) The Employer agrees to engage only those sub-contractors and equipment rentals (except equipment dealers) who are in contractual relations with the Union to perform work set out in the classifications of this agreement or as otherwise agreed to by the parties.

(b) Owner-Operators who perform work covered by this agreement shall be signatory to an Agreement with the Union and shall be

(i) a member in good standing of the Union; and

(ii) in good standing on contributions under the Health Plan, Pension Plan and for Working Dues, as required by this Agreement.

If the Union advises an Employer bound by this Agreement that an owner-operator engaged by such Employer is in violation of this Article, the Employer shall within 24 hours replace such owner-operator

3.5 (a) As a condition of employment the Employer shall require each employee to sign a form which authorizes the Employer to deduct regular monthly Union dues, working dues, initiation fees and annual assessments from the employee's pay.

The regular monthly Union dues shall be deducted from each employee on the first pay period of each month.

The union shall notify the Employer of the amounts and any changes thereto of the above-mentioned deductions.

(b) All dues, fees and assessments so deducted shall be remitted together with Pension and/or Benefit contributions as set out in this Agreement on or before the 15th day of the month following the month in which such deductions were made. The Employer shall, when making all remittances to the Union, identify employees both by name and Social Insurance Number and indicate the amount deducted from each employee."

The rates of pay set out in the appendicies apply to "operators" of various pieces of equipment. There are no rates for "owner/operators". The provisions in respect of breaks, reporting allowances, recall and premium time call-out are each made applicable to "employees".

6. The respondent's argument in support of its request to have the Board dismiss the complaint without hearing evidence centers on its contention that Mr. Dwight is not an employee covered by the scope of the union's recognition as defined under article 2.1 of the collective agreement. The respondent asks the Board to find on a reading of the agreement that Mr. Dwight is an owner-operator within the meaning of article 3.4(b) of the agreement and hence not an employee covered by the recognition clause. In support of its position that a distinction must be drawn between dependent contractor employees and non-dependent contractor employees, when considering the scope of the union s recognition, the respondent referred the Board to General Concrete of Canada Ltd. and Local 487. United Cement Lime and Gypsum Workers, 1978 CanLII 2178 (ON HCJDC), 22 O.R. (2d) 65. The union maintains that when the instant agreement is read in its entirety it is clear that the term "owner-operators" used in article 3.4(b) refers to dependent contractors who are not "employees" within the meaning of article 2.1 or article 3.3. If the Board accepts its submissions in this regard the respondent union maintains that it must find that no violation of section 60 or section 38 can be established. The union argues that section 60 imposes a duty on the union in respect of the quality of its "representation of any employees in the unit" and because Mr. Dwight is not an employee in the bargaining unit the union has no duty of fair representation to him. Similarly, the union reads section 38(2) of the Act as restricting the right of a trade union to require the employer to discharge an employee within the bargaining unit it represents because membership in the trade union has been withheld. The union maintains that Mr. Dwight is not an employee within the meaning of the section and furthermore, that the actions which the union has taken against him do not constitute an attempt by the union to "require the employer to discharge" because he was not a member of the trade union. The union argues, citing Blouin Drywall Contractors Ltd. and United Brotherhood of Carpenters and Joiners of America, Local 2486, 1975 CanLII 707 (ON CA), 57 D.L.R. (3d) 199, that where a union security clause has been violated it is proper for a union to seek the enforcement of the clause at arbitration and that the finding and order of the "court of proper jurisdiction" does not constitute a "requiring of the employer to discharge" within the meaning of section 38(2) of the Act. The union also maintains the Mr. Dwight was in breach of the other article 3.4(b) conditions and that his discharge was because these other conditions had not been met and not because he was without union membership. In any event, it is the position of the union that section 38(1) does not catch sub-contracting arrangements and hence the union s actions in moving under section 112a in respect of an alleged violation of article 3.4(a) could not have brought it within section 38(2).

7. The union relies on the findings and consent order of this Board in the section 112a arbitration proceedings brought by it. The union maintains that Mr. Dwight was given notice and was entitled to participate, and having failed to do so he is bound by the decision of the Board and cannot return to Ward Crane Rentals because the Board ordered that he be removed. The union maintains that Mr. Dwight should have pressed the arguments which he is now making before the Board in the section 112a proceeding and, having failed to do so, he is bound by the decision of the Board in that matter, as is Ward Crane Rentals. The union argues further that another panel of the Board having directed Ward Crane Rentals to "cease and desist from sub-contracting work to or engaging… Brian Dwight ...", this panel cannot sit in appeal of the other panel or alter the result.

8. With respect to the alleged breach of section 60a the union argues that it is not engaged in the referral of persons such as Mr. Dwight (i.e. sub contractors) to employment and consequently, section 60a does not apply. The union argues that there is nothing in the particulars to suggest that Mr. Dwight was ever referred or refused referral to employment as would bring his complaint within the ambit of section 60a. The union argues further, that there is nothing in the particulars relating to intimidation or coercion as would found a complaint under section 61 of the Act. Section 136(1) of the Act places a duty upon a certified employee bargaining agency not to act in a manner that is arbitrary, discriminatory or in bad faith in the representation of the affiliated bargaining agents which it represents. The union argues that section 136(1) has no application to this complaint. It is the position of the union that the complaint amounts to an attempt by Mr. Dwight to establish a claim for union membership as a matter of right. The union maintains that there is no such right under The Labour Relations Act or any other statute or at common law. The union asks the Board to accept its submissions and dismiss the complaint.

9. The complainant maintains that as a dependent contractor he is both an employee within the meaning of the Act and an employee covered by the union's recognition. The complainant maintains that the "owner-operators" referred to in article 3.4(b) are independent contractors who are not employees within the meaning of the Act. It is the complainant's position that dependent contractor owner-operators who are employees under the Act are also employees within the meaning of articles 2.1 and 3.5 of the collective agreement. The complainant maintains that the General Concrete case, supra, does not stand for the proposition that dependent contractors and other employees cannot be in the same bargaining unit and asked the Board to remember that the issue before it is whether a prima facie case is made out on the particulars. The complainant maintains that evidence must be heard if the meaning of articles 2.1 and 3.3 is to be ascertained in the context of an agreement which does not distinguish between employees and dependent contractors. The complainant argues, therefore, that the union's treatment of him as a non-employee contractor under article 3.4(b) and its decision to press for his discharge under article 3.4(b) constitutes a breach of the union's duty under section 60. The complainant maintains that the consent order which issued from the Board in the section 112a proceedings does not affect his right to a hearing. The complainant argues that the doctrine of res judicata does not apply because he was not a party to the initial proceedings and, although notice was given, no hearing was held as the grievance was settled contrary to his interests. The complainant argues further, that his status as a dependent contractor was never raised in the initial proceedings. The union was quick to point out in reply that it was not arguing res judicata but the integrity of the Board's procedures in relying on the Board's decision in the section 112a matter.

10. The complainant argues that not only is a prima facie violation of section 60 made out but also a prima facie violation of section 38(2). The complainant maintains that in filing the grievance, pursuing it to arbitration and settling with the company on the basis of the consent order which issued, the union "required" the company to discharge him because he was not a member of the trade union as required by article 3.4(b); a section 38(1) type of clause. The complainant argues that because it is alleged on the particulars that he has been treated differently than other persons in respect of membership in the trade union, a prima facie case of discrimination is made out as would bring the matter within section 38(2) of the Act.

11. The complainant relies upon his submissions in respect of a section 60 violation in support of his contention that section 136(1) has also been violated. The complainant admitted that section 61 is not relied upon as strongly as the other sections but asked the Board to characterize the union's actions in respect of the manner in which it compelled him to refrain from becoming a member of the trade union, as constituting a form of intimidation and coercion as would result in a breach of section 61 if the union's allegations were proven. He admitted that the union did not refer him to employment within the meaning of section 60a but maintains that by its actions the union refused him employment. The complainant asks the Board to find that a prima facie case has been established and to hear the evidence in support of his allegations.

12. The company asks the Board not to allow the complainant to amend his pleadings to include section 38(2). It maintains that it had no notice. The company adopts the union s position in respect of the effect of the Board's order in the section 112a proceedings. Finally, the company takes the position that Mr. Dwight is not an employee covered by the collective agreement and consequently supports the position advanced by the union with respect to sections 60 and 38.

13. Turning to the merits. At the hearing the complainant added section 38 to the sections of the Act relied upon in support of his allegations. In our view neither the union nor the company is prejudiced if we permit the complainant to rely upon section 38 as a section alleged to have been violated. The complainant is relying on the particulars filed in advance of the first day of hearing. There has been no attempt to expand the factual parameters of the complaint. Where, as in this case, the matter is not to be heard but submissions made in respect of the application of rule 46(1), and where the other parties are prepared to argue the application of the section to the facts as particularized, no prejudice exists as would cause the Board to refuse to allow the section to be cited and relied upon by the complainant.

14. The effect, if any, of the Board's order in the section 112a complaint filed by the union is a matter of contention. The submissions of the parties have been set out. The union charged the company with a breach of article 3.4(b) in respect of its use of Mr. Dwight and proceeded to arbitration under section 112a of the Act for enforcement of the section. Mr. Dwight was served with notice but did not attend at the arbitration hearing. The parties settled the matter at the hearing and on consent of the parties the following order issued from the Board:

"(i) Ward Crane Rentals Limited has improperly subcontracted work covered by the provincial collective agreement between the Operating Engineers Employer Bargaining Agency and the International Union of Operating Engineers, Local 793, in effect between June 19, 1978 and April 30, 1980, to James Ingram and/or James Ingham Enterprises Ltd.; Brian Dwight; and Harry Brown and/or H. B. Crane Rentals contrary to the said collective agreement and, in particular, article 3.4 thereof.

(ii) Ward Crane Rentals Limited shall forthwith abide by all of the terms and conditions of the said collective agreement and, without hinting the generality of the foregoing, the provisions of article 3.4 thereof in respect of the subcontracting of work covered by the said collective agreement.

(iii) Ward Crane Rentals Limited shall forthwith cease and desist from violating the said collective agreement, and, without limiting the generality of the foregoing, shall forthwith cease and desist from subcontracting work to or engaging James Ingham and/or James Ingham Enterprises Ltd.; Brian Dwight; and Harry Brown and/or H. B. Crane Rentals in the manner that is contrary to the said collective agreement."

Both the union and the company argue that in view of the order of the Board in the section 112a arbitration proceedings Mr. Dwight cannot attain the relief he seeks and is estopped from making arguments which he could have made had he attended at the section 112a hearing.

15. In a section 112a application the Board sits as a Board of Arbitration and under section 112a(3) the Board has the "exclusive jurisdiction to hear and determine the difference or allegation raised in the grievance ... and the provisions of subsections 5a, 7, 8, 9, 10, and 11 of section 37 apply mutatis mutandis to the Board and to the enforcement of the decision of the Board." The Board, therefore, is concerned with the interpretation, application, administration or alleged violation of a collective agreement when it sits under section 112a of the Act. In this case the company and the union settled the grievance and, on consent of the parties, the Board issued the order which is set out above. There was no hearing in the matter. In these circumstances, and regardless of whether Mr. Dwight is an employee under the agreement or a contractor who stood to be only commercially affected by the Board's determination in the section 112a complaint, he is entitled to rely upon his rights under the Act. Where a trade union violates section 60 or section 38(2) or any other section of the Act in proceeding to arbitration and in obtaining an order, as in this case, the Board has the authority, under its section 79 remedial authority or under its power of reconsideration, to set aside the section 112a determination and to unravel the legal complexities caused by its earlier determination. The failure of the person affected by the Board's order in the section 112a proceeding to attend at the Board for purposes of the section 112a hearing does not alter this result. Having been served with notice and having failed to attend, Mr. Dwight cannot attack the Board's section 112a decision on the grounds of a denial of natural justice. However, he is entitled to rely upon his rights under the statute.

16. The employee status of persons owning their own vehicle or equipment has long posed difficult labour relations questions with particular relevance to the construction industry where the use of these persons has been and continues to be widespread. Are these persons employees and, if so, should they be represented by the same trade union and be included in the same bargaining units as employees not owning their own vehicles and equipment? Prior to the 1975 "dependent contractor" amendments to The Labour Relations Act the employee status of these persons was determined by an application of the traditional fourfold test used to determine employment status at common law. On the particulars filed it is conceivable that even on a pre 1975 application of these tests that Mr. Dwight may have been found an employee and eligible for union representation within an all-employee bargaining unit. The 1975 amendments brought persons, although supplying a vehicle or equipment, as working under a contract for services, who more closely resemble an employee than a dependent contractor within the meaning of "employee" for purposes of The Labour Relations Act. The statute was further amended to restrict the Board from including dependent contractors in a bargaining unit with other employees unless satisfied that a majority of dependent contractors wished to be included in such a unit.

17. A dependent contractor, as defined in section 1(1)(ga) of the Act, is an employee for purposes of the Act. However, a dependent contractor may or may not be an employee within the scope of a trade union's "all employee" recognition. (See General Concrete of Canada Ltd. and Local 487 United Cement Lime & Gypsum Workers, supra.) It is the intention of the parties which is determinative. The parties may, or may not, intend to include dependent contractor employees in an "all employee" bargaining unit. Mr. Dwight has made out a prima facie case that he is a dependent contractor within the meaning of the Act. In the absence of an express exclusion of dependent contractors from the all-employee unit in this case and in the face of the complainant's claim that he performed services exclusively for, and derived all of his personal income from, Ward Crane Rentals for an approximate two-year period it is our view that the term "employee" in article 2.1 is at least latently ambiguous. Accordingly we are not prepared to dispose of this matter without first permitting the complainant to adduce the evidence which he seeks to adduce in respect of the intention of the parties in framing the scope of the union's recognition. If Mr. Dwight is an employee represented by the union the prima facie violation of sections 60 and 38(2) of the Act has been made out.

18. The Board has a broad discretion in the application of Rule 46(1). The Rule provides:

Where an application or complaint does not, in the opinion of the Board, make out a prima facie case for the remedy requested the Board may dismiss the application or complaint without a hearing and it shall in its decision state the reason for the dismissal.

If Mr. Dwight is a dependent contractor but not an employee represented by the trade union, the requirement that he be a member of the trade union in order to perform work for the company and the particulars as they relate to his dealings with the trade union raise difficult issues with respect to the application of sections 38, 60a and 61 of the Act. The Board has decided that it is not prepared to dismiss the alleged violation of these sections without first hearing full evidence and argument. Accordingly, the Registrar is hereby directed to list this matter for hearing.