[1981] OLRB Rep. December 1790
2447-80-R United Cement Lime & Gypsum Workers International Union, Applicant, v. Indusmin Limited, Respondents, v. Canadian Union of United Brewery, Flour, Cereal. Soft Drink and Distillery Workers, Local Union 304, Intervener
BEFORE: George W. Adams, Chairman, and Board Members J. A. Ronson and B. L. Armstrong.
APPEARANCES: J. Egner and E. Mattocks for the applicant; N. MacL. Rogers, Q. C., J. D. Douglas, Gaston Berubé A. Morrison, and B.C. Rawley for the respondent; and J. McNamee for the intervener.
DECISION OF THE BOARD: December 4, 1981
This is an application for certification. The Board finds the applicant to be a trade union within the meaning of section 1(l)(p) of the Labour Relations Act.
The Board further finds, on the agreement of the parties, that a unit consisting of all owner-operators of tractor-trailers who are dependent contractors hauling materials from the respondent's Acton Quarry, Acton, Ontario, to job sites, save and except dispatcher, office staff and persons covered by subsisting collective agreements constitutes a unit appropriate for collective bargaining.
By decision dated March 4, 1981 the Board appointed a labour relations officer to inquire into the employment status of persons characterized by the respondent as being independent contractors, and to entertain evidence, where practicable, with respect to the issue of seasonality and to the issue of the intervener's bargaining rights.
The Board was advised at the hearing scheduled to consider the labour relations officer's report that the intervener was not pursuing a claim that it already represented the persons falling within the above-described unit. Before the labour relations officer, it was agreed by the parties that for the purposes of the Board's "thirty-thirty rule", a proper list of employees would include six persons, namely:
J. Bessey,
F. Canino,
D. Green,
S. Grivas,
M. Macaro,
J. Macaro.
It was further agreed that for the purposes of the Board's examination with respect to the employment status of the six persons, that the evidence of Mr. Don Green was to be representative of himself and the other five individuals.
Having regard to the evidence contained in the labour relations officer's report and the representations of the parties, we are satisfied that the six persons in issue clearly constitute dependent contractors within the meaning of section 1(1)(h) of the Labour Relations Act and are employees of the respondents for the purposes of the Act. In coming to this conclusion, we have been influenced by the following factors. One hundred percent of Mr. Green's remuneration comes from the respondent. While he owns his own truck, he is substantially under the control and supervision of the respondent with respect to reporting pay, routes followed and work assignments. Mr. Green's activities exhibit little business or entrepreneurial initiatives. The method of remuneration is straight forward and relatively fixed.
However, it is the respondent's position that the six are not a substantial and representative number of the workforce that would normally compose the proposed bargaining unit. The respondent, therefore, takes the position that a vote should not be held and that the vote should be deferred to a time when a representative group is employed in the quarry. It also submitted that it was necessary to examine all potential members of the proposed bargaining (unit approximately forty) in order to ascertain their employment status. In its decision appointing a labour relations officer, the Board commented on this position in writing:
The respondent also submits that, in any event, the Board ought to defer processing the application pending a build-up of the trailer-tractor owner-drivers affected by the application. The Board was advised that by June there will be approximately 70 such persons utilized on any particular day whereas now only 6 trailer-tractor owner-drives are being used. The utilization of the quarry in question is obviously subject to the seasonal nature of the construction industry and the Board indicated its view that it was this aspect of the industry that the respondent was drawing to the Board's attention and not a classic "build-up" as that term is understood in labour relations before the Board. A "buildup" cannot be dependent on factors beyond the employees control such as market conditions. See Emil Front et al (1957), 57 CLLC 18,057. With respect to the seasonality of work, the Board has taken congnizance of this phenomenon in the canning and tobacco industry in defining bargaining units. See Melnor Manufacturing Ltd., [1979] OLRB Rep. Mar. 1288 and Board of Education for the Borough of Scarborough et al, Board File No. 2003-79-R, December 11, 1980. In the construction industry the Board is specifically freed of these considerations. See Section 108(2).
Counsel for the applicant objected to the procedure proposed by the respondent. Counsel submitted that the Board should confine its decision to the six employees properly on the list in that the proposed procedure was fraught with delay and the respondent had not made out a prima facie case for the inclusion of the seasonal operators.
The respondent called Mr. Alex Morrison, General Manager of its Aggregates Division to give evidence on the "seasonality/buildup" issue. The respondent sells and ships crushed limestone in the Toronto area and virtually all purchasers are connected with the construction industry including road contractors, concrete operators, precast, ready mix, brick and block manufacturers and asphalt producers. The respondent uses various types of trucks including tandems and trailers. Trailers are larger vehicles and generally the rate structure is cheaper than the smaller tandems. Morrison said the sources of most of these vehicles are through broker operations and fleet operators. But, apart from these two sources, there are individual owner-operators that the respondent uses and engages directly.
Morrison stated that the respondent does very little business in the first three or four months of the year but from June to the end of November business is "pretty well [on a] plateau". A chart was prepared for the Board's use breaking out the respondent trailer business for 1979 and 1980. It is based on the tonnage of shipments for those years as a percentage by month. The chart shows low activity for January, February, March and April; pronounced activity for May and June; a much lower level of activity July to October; increased activity in November; and a falling off of activity in December. Morrison estimated that fifteen vehicles were utilized in the low activity months and about forty in the heavier activity months. This seasonality reflects the construction industry and weather conditions.
Morrison thought that trucks obtained through a broker could spend up to fifty percent of a work week at the Acton quarry and that some of the individual operators could spend up to eighty percent of their time servicing Indusmin. Morrison produced a list of trucks for June 15, 1981. It included twenty-three owner operators any of whom might have been referred through a broker or contracted on an individual basis. Another twenty-three were owned by fleet operators employing drivers.
On cross-examination, Morrison agreed that the chart depicted seasonal fluctuations over which the respondent had no control. He estimated that fifteen to twenty percent of the quarry tonnage was picked up by owner-operators engaged directly by the respondent and that the six operators subject to the applicant would handle approximately ten percent of the quarry's tonnage or one-half to two-thirds of the individual operators tonnage.
Against this evidence, the applicant takes the position that the tractor-trailers driven by employees of fleet operators and the owner-operators connected with any brokers are unaffected by this application. The Board was referred to Indusmin Limited, [1977] OLRB Rep. Sept. 552 and Adbo Contracting Company Ltd., [1977] OLRB Rep. April 197 as authority for the latter contention. The applicant therefore sought to be certified for all owner-operators engaged by the respondent directly. In the alternative, the applicant requested the Board to certify it for the six owner-operators engaged at the time of the application, in effect treating all other owner-operators directly engaged by the respondent as seasonal employees. Counsel for the respondent contended that, having regard to the Board's decision in A. Cupido Haulage Limited, [1980] OLRB Rep. May 679, it was by no means clear that the owner-operators obtained by the respondent through brokers were not employees of the respondent if they obtained a substantial portion of their income from the Acton quarry. And if they proved to be employees of the respondent along with other owner-operators engaged by the respondent directly during the more active period of the year, the respondent submitted that the six owner-operators currently on the lists submitted in this application would not constitute a "substantial and representative number of employees at work on the date of application". See Peter Austin Manufacturing Co., [1967] OLRB Rep. May 144. On this basis, the respondent requests that a vote be directed when such a substantial and representative number of employees was engaged as in Dufferin Aggregates, [1978] OLRB Rep. Mar. 278. The respondent further submitted that the Board should reconsider the application of its "30 day rule" in the facts before it as was argued in Dufferin Aggregates, supra, and Sherman Sand and Gravel Ltd., [1978] OLRB Rep. May 460.
Having reviewed the thoughtful submissions of counsel and the facts as established before us, we do not think this is a case justifying a review of the "30 day rule" other treatment of certain owner-operators as seasonal employees. We are also of the view that the direction of a representation vote at some time in the future is not appropriate. The applicant takes the position that it is not seeking to represent owner-operators engaged by the respondent through brokers and the respondent itself does not take the position that such owner-operators are its employees for the purposes of the Labour Relations A ct. It merely indicates that the situation it finds itself in is unclear. Given the consequences of delay to those now interested in collective bargaining, the matters raised by the respondent are too speculative to warrant a deferral of this application. On the other hand, based on Mr. Morrison~ s evidence, it would appear from his tonnage "guesstimates" that the owner-operators engaged by the respondent at the time of this application account for over fifty percent of the tonnage handled by all owner-operators engaged by the respondent directly. On that evidence, we are satisfied that the six persons constitute a substantial and representative number of employees assuming, but not deciding, that the owner-operators engaged directly by the respondent at other times are dependent contractors or conventional employees. Any doubts that we may have in this regard are outweighed by the Board's reluctance to characterize an industry as seasonal. Indeed, the Board has specifically refrained from so treating the construction industry and the respondent's activities are functionally related to that industry.
The Board is satisfied on the basis of all the evidence before it that more than fifty-five percent of the employees of the respondent in the bargaining unit at the time the application was made, were members of the applicant on February 20, 1981, the terminal date fixed for this application and the date the Board determines, under section 103(2)0) of the Labour Relations Act, to be the time for the purpose of ascertaining membership under section 7(1) of the said Act.
A certificate will issue to the applicant.