Ontario Taxi Association 1688 Canadian Labour Congress v. Windsor Airline Limousine Services Limited
[1981] OLRB Rep. March 398
1275-79-R; 1391-79-R Ontario Taxi Association 1688 Canadian Labour Congress, Applicant, v. Windsor Airline Limousine Services Limited carrying on business as Veteran Cab Company, Respondent, v. Group of Employees, Objectors.
BEFORE: M. O. Picher, Vice-Chairman, and Board Members W. G. Donnelly and W. F. Rutherford.
APPEARANCES: Jeffrey Egner for the applicant; Michael Clark and George King for the respondent; on one appearing for the objectors.
DECISION OF M. G. PICHER, VICE-CHAIRMAN AND BOARD MEMBER W. F. RUTHERFORD; March 16, 1981
The Board hereby directs that the above applications be and the same are hereby consolidated.
There are two applications for certification before the Board in this matter. In one application the applicant seeks bargaining rights for a unit for all owner-operators who own and operate a single car under the name of the respondent (hereinafter referred to as Veteran Cab Company). The second application is in respect of the drivers of taxi cabs owned either by owner-operators or others and operating under the name of the respondent. For the purposes of this decision the two groups will be separately referred to as "owner-operators" and "drivers".
An extensive history of litigation between the parties precedes the resolution of these applications. In the fall of 1979 the applicant commenced to organize drivers, owner-operators and dispatchers associated with Veteran Cab Company. Three separate certification applications were filed in September and October of 1979. The campaign also gave rise, at the outset, to three section 79 complaints. On the hearing of the application for certification of the dispatchers the respondent challenged the Board's constitutional jurisdiction in respect of its labour relations, maintaining that it was a federal undertaking. By an oral decision with reasons to follow (see Windsor Airline Limousine Services Ltd., [1980] OLRB Rep. Feb. 272) the Board found, on November 16, 1979 that the respondent was not a federal undertaking within the meaning of section 92(10)(a) of The B.N.A. Act and granted interim certification in respect of the dispatchers. In separate decisions dated February 12, 1980 the Board reserved on the applications respecting the owner-operators and drivers pending an examiners' report and argument both on their status as employees and a final determination of the bargaining unit.
At the hearing the applicant adopted the position that the owner-operators and the drivers were dependent contractors within the meaning of section 1(1)(ga) of The Labour Relations Act and that therefore they were employees under the Act by virtue of section 1(1)(gb). These sections of the Act provide:
1.(1) (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 or services for another person for compensation or reward on such terms and conditions that he is in a position of economic dependence upon, and under an obligation to perform duties for, that person more closely resembling the relationship of an employee than that of an independent contractor;
(ga) "employee" includes a dependent contractor;
The applicant invoked the provisions of section 7a of the Act. In its two decisions herein dated February 12, 1980 the Board found that the respondent had breached the Act in such a way as to deprive the employees of the ability to freely express their choice about union representation. The Board reserved on the third element of section 7a, namely whether the applicant has support among the employees sufficient for the purposes of collective bargaining, pending a final determination of the size and composition of the bargaining unit or units. One other issue remaining outstanding, respecting the employment status of Oliver Holden, an owner-operator.
We deal firstly with the employment status of owner-operators and drivers. To resolve those issues it is necessary to review in some detail the scope of Veteran Cab Company's operations. The parties were agreed that the evidence of owner-operator Mark Dempsey is representative of all single car owner-operators. It should perhaps be noted that in light of the decisions of the Board in Canada Crushed Stone, [1977] OLRB Rep. Dec. 806 and Dominion Dairies Ltd., [1978] OLRB Rep. Dec. 1083 the applicant did not seek to include in the bargaining unit owner-operators who operate more than one vehicle.
Mr. Dempsey owns a taxi which he drives under the name of the respondent Veteran Cab Company in the City of Windsor. He drives his cab for five eight hour shifts per week and obtains the assistance of a driver to operate the vehicle at other times. Some 95% of his fares are obtained through the respondent's radio dispatching facilities.
The ownership of the cab is central to the relationship between the respondent and its own-operators. The evidence establishes that the company initially buys the car, financing its purchase by itself borrowing from a financial institution. By an unwritten agreement it then sells the car to an owner-operator, passing on both the purchase price and the financing charges to the owner-operator, with further interest charged to him by Veteran Cab Company on both amounts.
To safeguard its loan to the owner-operator the respondent retains legal title to the vehicle. Should the owner-operator fall in arrears in his payments to the respondent it has the discretion to repossess the car, which it apparently does without legal process. The car may then be "sold" again on similar terms to another owner-operator. Cars may be transferred from one owner-operator to another, but such arrangements can be made only with the approval of the company.
For example, Mr. Dempsey purchased his car from the company. Apparently it was previously owned by four different owner-operators of Veteran Cab Company. He bought it for a purchase price of $4,100. His down payment of $300 coupled with weekly payments of $50 for 24 months bring the total cost to him to $5,800.00. After seven months of operation Dempsey remained indebted to the respondent in the amount of $4,000. The union submits that the secured financial arrangement between the respondent and its owner-operators is so onerous that ownership is more a matter of form than substance. Counsel for the respondent concedes that the financial terms may be stringent, but submits that these arrangements are nevertheless to the benefit of the owner-operators whose credit rating normally would not allow them to obtain their own bank financing.
The owner-operator has other ties and obligations to the company. The municipal cab license on an owner-operator's car is held by the respondent. All cars operating under the respondent must bear the decals and colours of Veteran Cab Company and must be equipped with a company meter. In addition to his finance payments, Mr. Dempsey must pay the respondent a stand rental of $68.50 per week and $50.50 per week for mandatory insurance on his vehicle, apparently purchased by the respondent. In addition he incurs weekly expenses of approximately $45 for gas, $10 for car washes and has an average weekly maintenance and repair bill of $30. Given his total financial obligations to the respondent, to make money Mr. Dempsey is required to have his car on the road more than eight hours a day. An eight hour shift produces an average total revenue of $60.00. In a five day week an owner-operator's gross earning on that basis would be $300.00. After his weekly overhead of $254.00 is paid, he is left with $47.00. Mr. Dempsey therefore finds it necessary to use the services of a driver. So that owner-operator can earn revenue for more hours than they can drive, the company operates an informal driver brokerage, known as the "bakery lot". Drivers who have been trained, tested and approved by the company can present themselves there on a daily basis and be assigned an owner-operator's car to drive.
An owner-operator can also make his own arrangement with a driver on a more permanent basis. But the driver thus obtained, like the driver from the bakery lot, must first meet a number of conditions established by Veteran Cab Company.
In the employment of Veteran Cab Company there are supervisory personnel who perform a screening process designed to select the most eligible drivers and owner-operators from applications. To qualify for consideration the applicant must provide proof of a valid Province of Ontario driver's license and a City of Windsor taxi permit. Prospective owner-operators are not required to demonstrate that they can obtain the special license plate for the taxi itself. Applicants who meet the minimum conditions set out above are then put through a training program. In this program instructions are given in the use of zone maps and two-way radios. As well, the rules governing the operation of vehicles on duty are explained and the applicant's knowledge of the city's roads is measured. Satisfactory completion of this program nets the applicant the company's authorization to operate a taxi under the name of Veteran Cab Company as either a driver or an owner-operator.
This authorization is revocable by the company without notice. Drivers and owner-operators alike roust abide by certain rules or face possible dismissal. They must report on the air at the start of a shift and keep the respondent's dispatchers accurately advised of their posting or zone location. They must adhere to the company's rules as to the cleanliness of vehicles and its standards of dress and personal appearance. The company's rules are enforced by supervisors who drive the streets in an unmarked car to observe the owner-operators and drivers at work. Both owner-operators and drivers are required to have identification cards issued by the respondent renewable every 3 months.
Infractions of the company's rules can result in discipline being imposed on an owner-operator or a driver. Sanctions range from discharge to a partial withdrawal of privileges. One event is particularly illustrative of the extent of the company's disciplinary authority. It involves a driver who, while under the influence of alcohol, was caught using obscene language on the radio frequency used by his fellow drivers. This driver was summoned into the office and given the option of either being dismissed or undertaking to report to the office at the end of each working day after the staff had left for the purposes of sweeping the floors. He opted for the latter. Others have been released for repeated minor accidents. Another was suspended for not getting a haircut. Perhaps the most rigidly adhered to rule is the one requiring a driver to accept the dispatcher's posting. Apart from trips to grocery stores and to Detroit (for which a driver can obtain an absolute right to refuse so long as he refuses all such trips) a driver is under a duty to accept any trip posted for him by the dispatcher. A concomitant provision is that if, in an effort to avoid a low return short run, a driver claims he is no longer in a particular zone when he is in fact in that zone he is liable to immediate suspension upon detection.
At the hearing the company argued that it was merely enforcing the rules of a committee of owner-operators. This committee was disbanded some years ago; at the time that this application was made the company was the only rule generating force. On the basis of this evidence, and upon our understanding of the necessity of these rules to the respondent's operation, we conclude the respondent has adopted these rules as its own.
A further factor relevant to the issue of employee status is the working relationship between the owner-operators and the drivers. As the Board has noted, they are brought together by the fact that an owner-operator will not make a reasonable living unless he has someone else to drive the car he is paying for and a driver will not make any money unless he has a vehicle to drive. Few elements of their working relationship are outside Veteran Cab Company's control. An owner operator is free to choose which of the available approved drivers he will work with. However he cannot compel a particular driver to drive his vehicle. Neither can he suspend the driver or dismiss him from driving elsewhere within the respondent's organization. If his driver is pulled off the road for a violation of a company rule the owner-operator will not be invited to participate in discussions regarding the discipline to be meted out, even though the loss of a particularly productive driver could significantly affect the owner-operator's income.
The economic relationship between the owner-operator and his driver is simple. They agree between themselves on a split of the revenue generated by the driver. The reality of the industry, however, is that there is little real negotiation on this point. Almost without exception the owner and the driver will opt either for a sixty-forty share of revenue or a fifty-fifty split. Occasionally they may agree on a flat fee. When a driver is assigned a car through the bakery lot the company simply administers the owner's instructions in that regard.
In light of the foregoing evidence we turn to determine whether the owner-operators are dependent contractors within the meaning of the Act. A related issue is whether the drivers, on the other hand, are employees of the respondent or employees of the owner-operators.
We deal firstly with the owner-operators. As was stated in Dufferin Aggregates, [1978] OLRB Rep. Mar. 278:
The Board must examine all of the facts that describe the terms and conditions under which the owner-driver works with a view to determining whether he and the party that has the benefit of his services are in such a relationship as to give rise to a de facto obligation to perform duties because of an evolved economic dependence. The question is whether the overall relationship more approximates the bond between employer and employee than the kind of association normally found where services are provided by an independent contractor.
- As a guideline for the identification of the extent of economic dependence required by the statute the Board has adopted the test set out in Midland Superior Express Ltd. (1974), 4 di 30 where the Canada Labour Relations Board 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.
A number of Board decisions have dealt with the employment status of persons who work in the taxi industry (Seven-Eleven Taxi Ltd., [1976] OLRB Rep. Apr. 134; Blue Line Taxi Co. Limited, [1979] OLRB Rep. Nov. 1056; Niagara Veteran Taxi, [1980] OLRB Rep. Mar. 337). The respondent Veteran Cab Company sought to establish that this case was similar to the Seven-Eleven Taxi Ltd. case where owner-operators were not found to be dependent contractors. However, significant differences as to the extent of control exercised by the respective taxi companies prevent the Board from following the Seven-Eleven Taxi Ltd. in this case. One example is illustrative. As has been noted a driver's or owner-operator's failure to accept a posting from Veteran Cab Company when in fact he was available for that posting renders him liable to immediate suspension and, possible, dismissal. He can be taken off the road for an indefinite period of time which effectively strips him of income. However, from the decision in Seven-Eleven Taxi Ltd., supra, it would appear that a driver of owner-operator would be entitled to a hearing and, if he was found to have refused to take a fare, would only be liable for a three day suspension "off the air" at most. This would not prevent the person suspended from taking a Seven-Eleven cab out to secure fares off the street. Further important differences between the control exercised by Veteran Cab Company and the control exercised in Seven-Eleven Taxi Ltd. include the fact exercised by Veteran Cab Company and the control exercised in Seven-Eleven Taxi Ltd. include the fact that the latter company did not have a right to approve of the drivers used by an owner-operator and did not have a prescribed set of rules similar to those found in this case. For these reasons we find Seven-Eleven Taxi Ltd. to be of little assistance.
The respondent submits that the owner-operators are entrepreneurs. In essence, this claim denies the existence of any dependence. On the evidence we cannot accept this view. Like the owner-operators, in Niagara Veteran Taxi, supra, these owner-operators are dependent for their livelihood on the goodwill developed by the company and not by themselves. By strictly controlling their access to this goodwill through a financing arrangement in respect of which they have no real choice and working conditions that involve an extensive code of rules Veteran Cab Company has put the owner-operators in a position of economic dependence giving rise to a de facto obligation to perform duties in a relationship more closely resembling that of an employee than an independent contractor.
In the alternative the respondent argues that the owner-operators must be excluded from the protections of the Act because they are employers. The following passage from Canada Crushed Stone (at p. 812) was cited:
The Board takes the view that the line must be drawn so as to exclude from the operation of the Act those contractors who, although economically dependent, are themselves employers deriving income from the labour of others.
- We note, however, that in the same decision (at p. 813) the above exclusionary rule is qualified so as
to exclude only dependent contractors who are employers in substance as well as form... A dependent contractor with the authority to hire, fire, discipline, and set terms and conditions of employment in respect of others is not a dependent contractor entitled to the benefits and protections of The Labour Relations Act.
In the instant case it is clear that the owner-operators are employers in form only. The meaningful lines of accountability run from the drivers to the respondent, and not to the owner-operator. For example, in one incident related to the Board an owner-operator discontinued the payment of his driver's $5 weekly insurance fee when he was told that the company could not give him a receipt for the sum because it was not his responsibility to make the payment. On the evidence few elements of the working relationship between owner-operator and driver remain outside the scope of Veteran Cab Company's authority. Moreover, what little is left to be set by the owner-operator and his driver, namely the percentage of split of the fares and the hours to be worked, is determined in large part by the unremarkable nature of the exchange. The driving of a taxi cab and the provision of a cab for driving are not so unique a skill and opportunity as to cause a great deal of bargaining over terms. In the final analysis, the arrangement between the owner-operator and the driver is very much circumscribed by their economic conditions and by the fact that they are both dependent on providing services in a system closely controlled by the respondent and designed to channel the ultimate financial benefit into its hands.
If it were necessary to conclude, as for reasons elaborated below we expressly do not, that the drivers are employees of the owner-operators of single cars, that would not of itself preclude the owner-operators from falling within the definition of "dependent contractors" within the meaning of the Act. The Board has noted that when a contractor employs others in such a way as to himself become an entrepreneur in the sense that he substantially profits for the labour of others he may fall outside the scope of section 1(1)(ga) of the Act. (Canada Crushed Stone, supra.) When, however, a contractor who is otherwise dependent makes use of a helper as an integral part of making the best use of his equipment to earn his living, he does not by that fact alone become an entrepreneur to be excluded from the protection of the Act. (Dominion Dairies, supra; Comfort Guard Services, [1978] OLRB Rep. Oct. 905.)
In the instant case the owner-operator with a single car uses a driver not as a means of expanding a personal business, but rather as the only apparent way to make ends meet within the respondent's operations. A multiple cab owner with no indebtedness to the respondent profiting from the work of a number of drivers might arguably be an employer precluded from collective bargaining for the reasons elaborated in Canada Crushed Stone. The single car owners in this case however, clearly do not come within that capacity. Their use of a driver springs from financial necessity. Therefore if the owner-operators were found to be employers of the drivers of their car, they would not on that basis be excluded from the category of dependent contractor.
Having regard to the totality of their relationship with Veteran Cab Company we must conclude that the owner-operators are dependent contractors within the meaning of the Act. Their financial obligation to the respondent through its legal ownership of their cars, its effective control of their access to work by association with its taxi licences and its goodwill, and the controlled conditions under which they work combine to create a relationship more like that of employer and employee than client and contractor.
We turn to consider separately the employment status of the drivers. Who, as between the owner-operators and the respondent, is their employment for the purposes of the Act? In a system of complex economic relationships there is nothing unusual about a fact situation that calls into question the identity of the true employer. That issue has been addressed in a number of previous Board decisions. The factors to be considered and principles to be applied in answering that question were exhaustively canvassed in York Condominium Corporation [1977] OLRB Rep. Oct. 645 and Sutton Place Hotel, [1980] OLRB Rep. Oct. 1538.
Seven criteria to determine the seat of employment authority were listed in York Condominium (at p. 645) and Sutton Place (at p. 1545):
(1) The party exercising direction and control over the employees performing the work. See the Municipality of Metropolitan Toronto case, 61 CLLC ¶16,214; the Sentry Department Stores Limited case, [1968] OLRB Rep. Sept. 540; 546; the Beer Precast Concrete Limited case, [1970] OLRB Rep. May 224, 227-8; the Belcourt Construction (Ottawa) Limited case, [1971] OLRB Rep. June 321, 324; and the Reid's Holdings (Belleville) Limited case, [1972] OLRB Rep. July 753, 761.
(2) The party bearing the burden of remuneration. See the Municipality of Metropolitan Toronto case, supra; the Goldlist Construction Limited case, [1966] OLRB Rep. Oct. 487; 488; the Kel Truck Services Ltd. case, 1972 CLLC ¶16,068; and the Templet Services case, [1974] OLRB Rep. Sept. 606.
(3) The party imposing discipline. - See the Reid's Holdings (Belleville) Limited case, supra; and the Templet Services case, supra.
(4) The party hiring the employees. - See the Municipality of Metropolitan Toronto case, supra; the Sentry Department Stores Limited case, supra; and the Reid's Holdings (Belleville) Limited case, supra.
(5) The party with the authority to dismiss the employees. - See the Municipality of Metropolitan Toronto case, supra; and the Templet Services case, supra.
(6) The party which is perceived to be the employer by the employees. -See the Sentry Department Stores Limited case, supra.
(7) The existence of an intention to create the relationship of employer and employees. - See the Belcourt Construction (Ottawa) Limited case, supra.
- The cases have not assigned any order of priority to these factors, and the weight to be given to each must obviously depend upon the facts of each particular case. The fundamental question, however, most frequently is "who exercises fundamental control of the employment relationship?" As the Board commented in Sutton Place Hotel at pp. 1552-53:
The weight to be accorded the various indicia of employer status set out in York Condominium cannot be assigned in a vacuum. When one of the factors is combined with another in the hands of one company, the Board may conclude that they accurately identify the employer, though while standing alone or in some other combination they may not. The significance of each indicator can only be ascertained through an appreciation of how they all fit together within the facts of each case. It is only then that the Board can decide which factors in the particular case most accurately reflect and identify the employer for collective bargaining purposes.
A particularly important question answerable through an evaluation of all of the factors set out in York Condominium is who exercises fundamental control over the employees. In some cases control over hiring may reflect fundamental control. In other situations, reminiscent of hiring hall, it may not. In some cases, day-to-day supervision may suggest fundamental control, in others it may not. Similarly with the payment of wages; in the factual mix of some cases the payment of wages may, along with other factors, suggest who holds the fundamental control while in other cases it may be of minor significance. No single factor listed in York Condominiums inevitably points to the possession of fundamental control. The Board's ultimate evaluation of who holds fundamental control in any particular fact situation, however, is generally the single most determinative question in identifying the employer. In a work, to find the seat of fundamental control is generally to find, the employer for the purposes of The Labour Relations Act.
When the foregoing principles are applied to the drivers who work within the respondent's enterprise, there can be little doubt who is the employer for the purposes of the Act. Drivers are recruited by Veteran Taxi. It checks their qualifications, gives them basic orientation and issues them an identification card. It subjects them to an elaborate code of rules which are enforced through its supervisory staff. It assigns them to drive the cars of owner-operators and imposes discipline upon them for breaches of the rules up to and including dismissal, without consultation with the owner-operator.
The economic relationship between the owner-operator and the driver is largely limited to agreeing on the split of the revenue generated by the driver or on a flat fee and the hours of work to be covered by each of them. At the end of the shift the driver turns in a trip sheet to the respondent, although on occasion it maybe relayed through the owner-operator. He likewise remits his gross earnings less his percentage. The respondent deducts 3% of the remaining gross by way of Unemployment Insurance Premiums and Canada Pension Plan contributions from the owner-operator to cover the driver. It issues a T4 slip to the driver, in the name of the owner-operator, reflecting these deductions.
Owner-operators must pay a fixed weekly amount to the respondent to participate in an insurance plan covering their vehicles. That plan is apparently purchased and administered through the company. Drivers are also required to participate separately and must pay a fee of one dollar a day to the respondent for insurance. If they do not, they can't drive no matter what the owner-operator's wishes might be.
The respondent's control over the work performed by the driver is maintained by its code of rules and disciplinary supervision. Its control of the driver's income is no less direct. Like the owner-operator, the driver derives income from the name and goodwill of the respondent, from its ownership of vehicles and taxi licences and from the radio dispatched calls which the respondent passes on to them. If the driver fails to perform to the necessary standard he can be taken off the air or off the road. For example, the evidence is that if a supervisor in a patrol car sees a vehicle that is dirty, the radio dispatchers will instruct the driver to have the car washed. Until the car is washed no further calls will be dispatched to that driver.
The drivers earn money to the extent that the respondent's business allows them to. It hires them, fires them and controls their day-to-day work in a way that the work of employees is controlled. The ownership of the vehicle by the owner-operator, an ownership that in any event is more a matter of form than of substance, and his or her income spliting arrangement with the driver do not materially alter that reality. The driver is an integral part of an economic structure directed and controlled by the respondent. By keeping the owner-operator's car on the road, adhering to company rules and driving a cab to service the respondent's calls the driver plays an essential part in advancing the respondent's goodwill and its ultimate profits. Like the owner-operator, the driver has no real economic existence apart from the respondent's business organization. Having examined the lines of authority and control within that organization we must conclude that for the purposes of the Act the drivers are employees of the respondent and not of the owner-operators.
The final person whose employment status remains to be determined is Oliver Holden whom it is alleged, should be excluded from the bargaining unit because he exercises managerial functions. Mr. Holden has been associated with Veteran Cab Company for some thirty years as an owner-operator. His testimony before the examiner revealed a considerable loyalty to the company and a firm belief that what one driver does reflects on all drivers. Out of these feelings has arisen a concern on Mr. Holden's part that the rules relating to speeding, car cleanliness and personal hygiene be followed. To this end he has on several occasions encouraged drivers to abide by the rules. However there was no evidence that he at any time was given any special authority or received any compensation for these, and other, "supervisory" services. Absent such evidence there is no need to review the Board's jurisprudence on this issue. Accordingly, the Board finds that Mr. Holden is an employee of the respondent.
The parties are agreed that the owner-operators and the drivers should constitute separate bargaining units. The Board therefore finds that all owner-operators employed by the respondent in Windsor, save and except supervisors and persons above the rank of supervisor, constitute a unit of employees appropriate for collective bargaining (hereinafter referred to as bargaining unit #1). For the purposes of clarity the Board notes the agreement of parties that Peter Codarian, John Falk, Ambrose Power and Nelson Vincent are excluded from the bargaining unit.
The Board further finds that all drivers employed by the respondent in Windsor, save and except supervisors and persons above the rank of supervisor, constitute a unit of employees appropriate for collective bargaining (hereinafter referred to as bargaining unit #2).
We turn to consider whether there is adequate membership support within each of the bargaining units within the meaning of section 7a of the Act. On the date of application there were sixty-four employees in bargaining unit #1. Nineteen of them have indicated their support for the applicant through membership of evidence filed with the Board. The applicant's minimum strength in the bargaining unit is therefore 29.6 per cent. Having regard to the severity of the unfair labour practices found to have been committed by the respondent that a number must be seen as representing a dedicated core of supporters. As the Board stated in its recent decision in K-Mart Canada Ltd. [1981] OLRB Rep. Jan. 60:
The Board must examine all of the facts that describe the terms and conditions under which the owner-driver works with a view to determining whether he and the party that has the benefit of his services are in such a relationship as to give rise to a de facto obligation to perform duties because of an evolved economic dependence. The question is whether the overall relationship more approximates the bond between employer and employee than the kind of association normally found where services are provided by an independent contractor.
In approaching its discretion to grant certification under section 7a of the Act the Board must make some prognosis as to the future viability of bargaining. In so doing it does not necessarily view the membership strength which the applicant has on the date of certification as a static and immutable figure. Where the evidence establishes that a work place has been subjected to the chilling effect of unfair labour practices and tend to suppress any expression of pro-union sentiment, it is not unreasonable to expect that the granting of a Board certificate, with or without the assistance of other remedies under The Labour Relations Act will in some degree restore the legitimacy of the trade union in the eyes of the employees. The Board therefore takes into account the potential for union support to grow among employees who beforehand might have been afraid to associate themselves with the union. With the granting of a certificate, assuming that all unfair labour practices will end, there is little reason to doubt that the union's base of support will grow and that more and more employees will come forward to participate in the endeavours of their bargaining agent.
In determining whether a union has support adequate for collective bargaining purposes within the meaning of section 7a of the Act the Boards concern is whether there is a number of employees sufficiently representative of the employees in the bargaining unit, with the ability to negotiate with their employer on the content of collective agreement. In this regard bargaining ability is to be distinguished from bargaining power. The question is not whether they can mount a successful strike, or whether they will eventually realize substantial gains at the bargaining table. Rather, it is whether they have the core of support sufficient to negotiate with the employer. A section 7a certificate, like any certificate, is only a beginning and need not be seen as anything more.
(see also, Skyline Hotels Limited, [1980] OLRB Rep. Dec. 1811)
In this instance the Board is satisfied that the applicant's membership support among the owner-operators is sufficient to permit meaningful and representative bargaining with the respondent. It would not be unreasonable to expect that with unfair labour practices at an end greater numbers of owner-operators will come forward to participate in the efforts of their bargaining agent. A further factor in this case is the support which the union enjoys among the drivers. The fact that in a section 7a application the union has membership support of almost 50 per cent in the drivers' bargaining unit gives it a strong presence in the workplace generally. In these circumstances the nearly 30 per cent of the owner-operators who support the union will not stand alone. They gain considerable support, albeit indirect, form the union's presence among the drivers. In light of these factors the Board is satisfied that the applicant has membership support adequate for the purposes of collective bargaining in bargaining unit #1. A certificate will issue in respect of bargaining unit #1.
According to the material filed, on the date of application there were 149 employees in bargaining unit #2. Membership evidence was submitted on behalf of 74 of them. We are satisfied that with membership support of 49 per cent the applicant has adequate support for the purposes collective bargaining. A certificate will issue in respect of bargaining unit #2.
DECISION OF BOARD MEMBER W. G. DONNELLY;
For reasons already expressed, I do not agree that the Board has jurisdiction to entertain these applications. Subject to that reservation, however, I agree with the decision of the majority on the employment status of the owner-operators and drivers and on the disposition of the applications under section 7a of the Act.