[1982] OLRB Rep. October 1383
1109-82-R; 1128-82-R Teamsters Union Local 938, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Applicant, v. Alltour Marketing Support Services Limited, Respondent
BEFORE: M. G. Mitchnick, Vice-Chairman, and Board Members J. Wilson and C. A. Ballentine.
APPEARANCES: Ken Petryshen and Jim O'Donnell for the applicant; G. Grossman and L. Robinson for the respondent.
DECISION OF THE BOARD; October 15, 1982
These are two consolidated applications for certification.
The Board finds that the applicant is a trade union within the meaning of section l(l)(p) of the Labour Relations Act.
There is no dispute that at least the "warehouse foreman" forms a part of the management of the respondent, and accordingly, the parties may be said to have reached partial agreement on the appropriateness of the following bargaining unit:
All employees of the respondent in Mississauga, save and except warehouse foremen, persons above the rank of warehouse foreman, office and sales staff, persons regularly employed for not more than twenty-four hours per week, and students employed during the school vacation period.
The applicant takes the position that the "managerial" exclusion ought to proceed one level further; that is, that "assistant warehouse foreman", and persons above that rank ought not to form part of the bargaining unit. The applicant points to B. Fagel as the "assistant warehouse manager" it has in mind. The respondent takes the position that it does not have an "assistant warehouse manager", and that Mr. Fagel is simply a driver included within the appropriate bargaining unit. The applicant takes the position that C. Alarie, G. Moss, and P. Pento also exercise "managerial functions", and ought to be excluded from the bargaining unit. The applicant adds that Mr. Moss ought to be excluded from the bargaining unit in any event, as is the case with respect to M. Doherty, on the grounds that these two individuals working in the dispatch office would fall into the exclusionary category of "office and sales staff'. The respondent takes the position that all of the above-named persons are properly included within the bargaining unit.
The Board ruled at the hearing that sufficient factual and material disputes existed between the parties to justify the appointment of a Labour Relations Officer with respect to these individuals. The Board accordingly appoints an Officer to inquire into and report to the Board on the duties and responsibilities of B. Fagel, C. Alarie, G. Moss, P. Perito and M. Doherty.
The Board also entertained at the hearing the statements of fact and representations of respective counsel with respect to the inclusion or exclusion of the persons who carry out deliveries for the "Speed Service" division of the respondent's operation. There is no dispute over the fact that these individuals fall within the broad definition of "employees" under the Labour Relations Act. Indeed, the respondent employer takes the position that they are persons who properly fall within the scope of the appropriate bargaining unit. The applicant, however, takes the position that these "employees" are truly "dependent contractors", and that they, therefore, are not properly included within the present bargaining unit, unless the majority of them elect to be so. Alternatively, the applicant argues that the same attributes which make these individuals fit the definition of "dependent contractor" under the Act give them a community of interest sufficiently distinct from the bargaining unit it has sought to organize as to justify their exclusion in any event.
Comparing the submissions of both parties, the Board finds sufficient commonality on the facts which are material to enable the Board to dispose of this issue without the further assistance of a Labour Relations Officer. The respondent is essentially engaged in the warehousing and delivery of travel documents to the various agencies of the travel industry. The operation has two branches. One consists of regular "runs" to customers on a daily basis, and the other consists of responding to rush orders from customers on an as-requested basis. The latter branch is the "Speed Service" operation which is now in dispute. The company has a president, Mr. Robinson, and a general manager, Mr. Doherty. The "regular run" branch receives its directions from and is supervised by the warehouse foreman, Mr. Mason. The Speed Service operation has its own supervisor, Mr. Connolly, and operates through the dispatch office housing Mr. Connolly as well as Mr. Moss and Ms. Doherty, the two "dispatchers" also in dispute. Both Mr. Connolly and Mr. Mason report to Mr. Doherty, the general manager. It is agreed that the individuals who perform the driving function for the first branch of the company's operations, that is, the regular route-drivers, are employees falling within the appropriate bargaining unit of the applicant. These were referred to in argument as the "company drivers". They drive vehicles belonging to the company, either cars, trucks, or vans, and these vehicles have the company's name printed on the side. They report with their vehicles to be loaded at the warehouse dock each morning at approximately 7:00 a.m. The loading is performed in conjunction with the warehouse crew (which form part of the applicant's bargaining unit). Company drivers are generally on the road by 8:30 at the latest. It is understood that when they complete their daily run, they are free to go home. They are paid by salary, and of course are subject to the normal payroll deductions. They have neither lockers nor locker room at the respondent's facility, as they are present there only for loading in the morning.
By comparison, the individuals performing delivery functions for the Speed Service operation are required to provide, entirely at their own expense, their own mode of transportation. In this regard, the bulk of these individuals employ their own automobile, bearing no insignia of the company. Two of these delivery personnel carry out their function by way of public transit, using a Metro pass which they purchase themselves. The applicant refers to the Speed Service group as "brokers". All of these individuals report to the company's dispatch office each morning, generally between 8:30 and 9:00 a.m. Once sent out on a call, they either remain in their area for a further order, or return to the dispatch office. They receive no salary or hourly rate, but rather split the customer's fee with the respondent company on a 60/40 basis (the "broker" keeps the "60"). The company makes no deductions whatever from these commission payments. The "brokers" generally report in the morning to an area different from that of the "company drivers", being a side door through which the "brokers" have access to the dispatch office. They are required to report to the warehouse dock for loading only on isolated occasions. As with the "company drivers", the "brokers" have no need for lockers or a locker room at the respondent's premises.
Considering the above facts, the Board finds it unnecessary to render an opinion on the applicant's argument that the members of the Speed Service operation are "dependent contractors". The Legislature in 1975 introduced into the Labour Relations Act the concept of a "dependent contractor" as follows:
"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.
In doing so, the Legislature was undoubtedly turning its mind to the situation where an individual is contended to be an independent contractor, and hence not an "employee" for the purposes of the Act. Where, as here, it is common ground that the persons in dispute are in fact "employees", it is questionable whether the test of "dependent contractor" as set out in the statute really has any probative value. While the individuals in question here do exhibit attributes of the persons found to be "dependent contractors" in other cases of the Board, those cases were decided in the context of the normal independent versus dependent-contractor inquiry. See, e.g. Mount Nemo Truckers Association, [1977] OLRB Rep. Feb 104, at paragraphs 12 and 13. In its treatment of these "dependent contractors", however, the Legislature does appear to recognize the distinct community of interest from "traditional" employees which these special attributes tend to produce. In particular, the legislation in section 6(5) makes provision for a separate bargaining unit of dependent contractors only, unless a majority of such contractors determine otherwise. The Board finds that the present case can be decided on the basis of community of interest as well.
- The respondent employer points to the fact that both groups of employees work roughly the same hours and out of the same location, service generally the same industry and geographic area, and are subject to the same general manager in terms of ultimate responsibility and authority for formal discipline. From this the respondent argues that the Speed Service employees are "just another department of the company". Were the Board to arrive at the same conclusion, it would indeed be reluctant to split Speed Service employees off from other employees of the company. For the Board's policy in this regard, see Westeel-Roscoe Limited, [19791 OLRB Rep. Nov. 1125, especially at paragraph 10. The Board does not conclude, however, that these employees are "just another department of the company". Rather, the Board finds the Speed Service employees, or "brokers", to be in a fundamentally different working relationship with the company than are the drivers which service the other branch of the company's operations. The whole emphasis of bargaining priorities of the "brokers", who derive their income in the form of commissions from the use of their own vehicles or other mode of transportation, is likely to be significantly different than that of the drivers who stand in the traditional employment relationship with the company. In addition, the whole structure of the Speed Service employees' working day is different from that of the company drivers. The direct supervision and instruction for the two groups are entirely unrelated, and there is not the slightest degree of functional interchange between the two branches of employees, apart from the isolated occasions on which the Speed Service driver is required to report to the warehouse dock for loading. Indeed, the difference in starting times, quite apart from the difference in normal reporting areas, virtually ensures that the drivers from the two types of operations will rarely meet. On all the facts, there simply is no compelling reason for the Board to depart from the pattern of organizing adopted by the applicant and its supporters in this campaign. In K-Mart Canada Limited, [1981] OLRB Rep. Sept. 1250, e.g., the Board observed at paragraph 18:
“… the Board recognizes that there may be more than one appropriate unit in any given case. Where there is more than one appropriate unit, the Board will attempt to accommodate the desire of the employees on whose behalf the application has been filed to bargain collectively. It follows that in doing so the Board takes into account the pattern of organization.
In the present case, it is questionable whether the combining of both branches of the respondent's operation would be found, on a contested basis, to be an appropriate unit in any event.
- On the basis of the foregoing, the Board finds that the nine delivery persons staffing the respondent's Speed Service operation are to be excluded from the bargaining unit sought by the applicant. Further processing of this application will await the report of the Labour Relations Officer referred to in paragraph 4.