Labourers' International Union of North America, Local 183 v. Marchant Property Management
File No.: 1326-81-R Date: October 21, 1981
Before: R. O. MacDowell, Vice-Chairman, and Board Members J. D. Bell and B. L. Armstrong.
Appearances: Brian Yandell, for the applicant; Paula M. Rusak and Wayne Gallier, for the respondent.
Decision of the Board
1This is application for certification.
2The Board finds that the applicant is a trade union within the meaning of section l(I)(p) of the Labour Relations Act.
3Having regard to the agreement of the parties, the Board finds that all employees of the respondent engaged in cleaning and maintenance at "The Guildford", 3380 Eglinton Avenue East, Scarborough, Ontario, including resident superintendents, save and except property manager, office and clerical staff, persons employed for not more than nineteen hours per week and students employed during the school vacation period, constitute a unit of employees of the respondent appropriate for collective bargaining.
4While the parties are in agreement with respect to the description of the bargaining unit, a question has arisen between them concerning the employee status of two of the four individuals appearing on the respondent's employee list. The two disputed individuals are the wives of James Pringle and Calvin Struthers, the superintendent and assistant superintendent respectively.
5The applicant contends that in accordance with the established practice in the industry, the wives of the superintendents should not be considered "employees" within the meaning of the Labour Relations Act. The applicant does not agree with this practice (which, for reasons which will become apparent, may put women at a real economic disadvantage) but the practice is a long-standing one and apparently has been taken into account when collective agreements have been negotiated. However, this issue has not previously arisen before the Board although, on numerous occasions, bargaining units similar to that sought in the instant case have been certified. Apparently, no party has ever considered it necessary to raise it.
6Counsel for the respondent contends that the spouses of the superintendents are properly regarded as "employees" within the meaning of the Labour Relations Act. The couple are hired as a team and both of them perform work for the respondent. Unsatisfactory work performance by either partner can lead to termination. Both husband and wife are under the direction, control and authority of the respondent's management. They share an apartment provided for their use. However, the salary or compensation associated with the work of the team is paid only to the husband. No income tax is deducted on behalf of the wife, nor is she issued a T-4 form. There are no Unemployment Insurance, Canada Pension Plan, or Workmen's Compensation deductions either. It is this latter aspect of the relationship with which the union does not agree and which may place the wife at a severe economic disadvantage in a variety of circumstances beyond her control.
7The essence of an employment relationship is that an individual provides work or services to another for compensation. (See generally Whittaker vs. Minister of Pensions and National Insurance [1966] 3 All ER 531; and the recent review of the indicia of employment in Algonquin Tavern [1981] OLRB Rep. Aug. 1057. In the instant case there is no doubt that the wives of the superintendents perform work or services under the direction and control of the respondent's management. Equally clearly they are not "volunteers", but part of an "employment team" hired to do this kind of work. We do not think the fact that the teams' remuneration is paid to only one spouse is determinative of the character of the relationship; nor, in the circumstances of this case, have we given much weight to the respondent's failure to deduct employee benefits. (The respondent's obligation in this regard depends upon the definition of "employee" in other statutes as does the wives' entitlement to benefits). In our view the respondent's provision of accommodation shared by both spouses is more indicative of the character of the relationship. On the basis of all of the evidence before it, the Board finds that Marylous Pringle and Rita Struthers are employees within the meaning of the Labour Relations Act.
8The Board further finds that not less than forty-five per cent of the employees in the bargaining unit at the time the application was made were members of the applicant on September 25, 1981, the terminal date fixed for this application and the date which the Board determines, under section 1 03(2)(j) of the Labour Relations Act, to be the time for the purpose of ascertaining membership under section 7(1) of the said Act.
9A representation vote will be taken among the employees in the above-described bargaining unit. Employees will be asked to indicate whether or not they wish to be represented by the applicant in their employment relationship with the respondent. Those entitled to vote shall be all employees on the date hereof who do not terminate their employment or who are not discharged for cause between the date hereof and the date on which the vote is taken.
10The matter is referred to the registrar.