Labourers' International Union of North America, Local 183 v. Wickford Holdings Limited, 1982 CanLII 1028

Labourers' International Union of North America, Local 183 v. Wickford Holdings Limited

[1982] OLRB Rep. October 1578

1054-82-R Labourers' International Union of North America, Local 183, Applicant, v. Wickford Holdings Limited, Respondent

BEFORE: R. O. MacDowell, Vice-Chairman, and Board Members S. Cooke and W. H. Wightman.

APPEARANCES: B. Fishbein and T. Spada for the applicant; G. Grossman and F. Kovacs for the respondent.

DECISION OF THE BOARD; October 25, 1982

1The name of the respondent is amended to read: Wickford Holdings Limited.

2This is an application for certification.

3The Board finds that the applicant is a trade union within the meaning of section l(l)(p) of the Labour Relations Act.

4The respondent employer contends that James Raymond is its only employee and that since there cannot be a "one-man bargaining unit" this application must be dismissed. In the alternative, the respondent asserts that if Mrs. Blanche Raymond is also an employee, she is employed on only a part-time basis and should be included in a separate part-time bargaining unit. Since there are presently no other persons employed by the respondent, the result again would be a dismissal of the instant application. The union argues that Mr. and Mrs. Raymond are a husband and wife team, that both of them are employees of the respondent, and that both should be in the same bargaining unit.

5The relationship between the respondent and the Raymonds is governed by the following contract:

AGREEMENT FOR SUPERINTENDENT

This AGREEMENT made the 1st day of April, 1981

BETWEEN

WICKFORD HOLDINGS LIMITED, hereinafter called the "EMPLOYER"

• and -

MR. & MRS. RAYMOND, hereinafter called the "EMPLOYEE"

WHEREAS WICKFORD HOLDINGS LIMITED, is the owner of a 47 unit apartment building, municipally known as 188 Mill Street South, Brampton, Ontario

AND WHEREAS WICKFORD HOLDINGS LIMITED, has agreed to employ MR. & MRS. RAYMOND as superintendent of the building.

NOW THIS AGREEMENT WITNESSETH THAT in consideration of the mutual covenants and agreements herein contained, and subject to the terms and provisions herein set out, the parties hereto agree as follows:

1. The owner hereby hires the employee as superintendent of 188 Mill Street S., Brampton, Ontario, from and including the 1st day of April, 1981, to and including the first day of April, 1982.

2. The employee shall receive an annual salary of $6,000.00 (Six Thousand Dollars) to be payable in equal monthly installments of $500.00 (five Hundred Dollars) per month on the last day of every month, in cheque, plus a two bedroom apartment (equal in value to $375.00 monthly), plus one parking space (equal to $18.00 monthly) and hydro (equal to $8.56 monthly) making a total consideration of $901.56 (Nine Hundred and One Dollars and fifty six cents) per month.

3. The salary breakdown is as follows; $200.00 for all general cleaning and rental duties and $300.00 for painting of apartments, minor plumbing repairs, minor electrical repairs, repairing door locks, door closures, kitchen cupboards, hinges on kitchen cupboards, closet doors and balcony doors etc. Should this part of the EMPLOYEE'S job not be performed and completed upon a given time period, the EMPLOYER shall have the right to call in outside contractors to complete the work and this stall be deducted from the salary of the EMPLOYEE.

4. The EMPLOYEE hereby agrees that he shall perform all services normally supplied by Superintendents to apartment buildings which services shall include, without limiting the generality of the foregoing:

a) Gardening duties in spring-summer, snow removal from the main entrances in the winter;

b) Cleaning of all areas, including garage and outdoors, collection and removal of garbage;

c) Replacement of bulbs, minor electrical repairs in individual units.

d) Inspect apartments with prospective tenants, and when a lease is terminating to verify for damages etc.

e) Collection of rents and preparing the bank deposits, no later than the third day of each month.

f) Supervise and time check on any other employee working for the EMPLOYER, or any sub-trades called in for repairs to the building or its equipment. The time and material are to be specified and the signature of the superintendent to be obtained prior to payment of the bill.

g) Obtain keys and $100.00 for breaking of the lease, from tenants who are terminating leases, prior to leaving.

N 0 T E: General cleaning duties shall consist of:

1. Clean the front doors and windows daily.

2. Check and clean up the laundry room daily.

3. Check public areas of building and pick up any papers etc. If a mess has been made, this must be cleaned daily.

4. Vaccum hallways a minimum of two times weekly.

5. Buff the floor in the main lobby a minimum of three times weekly.

6. Wash the stairways every second day.

7. Clean elevator floor, walls and door every second day.

8. Clean the interior of apartments prior to occupation of new tenants - the cleaning to include: fridge, stove, kitchen cupboards, floors washed and waxed, cupboards cleaned and repaired. If necessary paint the apartment, sand & refinish floors.

9. Clear out garage area once a week - remove garbage, paper etc.

10. To maintain:

a) recreation area in hygenic condition

b) Lobby room in working order.

c) The garbage area in hygenic condition.

5. The EMPLOYEE hereby acknowledges that the employment as a superintendent is a full time employment requiring the attendance on the premises of either the EMPLOYEE or members of his immediate family at all times in order to deal with any emergencies which may arise. If the EMPLOYEE either personally or through members of his immediate family is not in attendance at all times, the owner may terminate this agreement without notice, notwithstanding anything herein to the contract.

6. The EMPLOYEE shall not on behalf of the owner enter into any contract or agreements with any individuals, firms, corporations or otherwise, which agreements have the effect of binding the owner thereto.

7. As part of his duties as superintendent, the EMPLOYEE shall be required to show any unrented units to prospective tenants, to prepare offers to lease for presentation to the owner, when leases have been prepared by the owner, to obtain signatures of the tenants, collect rents and prepare deposits for the management. The EMPLOYEE shall not have the right to accept any leases or offers to lease on behalf of the owner, nor shall he be entitled to or have the right to alter in any way any existing lease, nor to accept on the owner's behalf any surrender of lease.

8. The EMPLOYEE shall immediately advise the owner of any breaches of leases or regulations by any tenant of their invitees or guests and he shall at all times advise the Landlord of any damages to the premises or to the units or of any deterioration to the building or any parts thereof.

9. The owner may at any time, terminate the employment upon giving the EMPLOYEE two week's notice, or at any time for cause. The EMPLOYEE shall have the same privilege regarding termination of employment with the EMPLOYER. The EMPLOYEE agrees to vacate the occupied apartment unit in 30 days from the date of notice.

IN WITNESS WHEREOF WICKFORD HOLDINGS LIMITED has hereunto affixed its corporate seal duly attested by the hand of its authorized signing officer duly authorized in that behalf.

WITNESS WICKFORD HOLDINGS

LIMITED

______________________ PER "F. F. Kovacs"

F. F. Kovacs, LL.B. President

AND IN WITNESS WHEREOF, Mr. & Mrs. Raymond have hereunto set their hand, this 8 day of April, 1981.

WITNESS “Mr. J. Raymond”

MR. RAYMOND

"Mrs. B. Raymond"

MRS. RAYMOND

It will be noted that the preamble to the agreement indicates that the respondent "has agreed to employ Mr. and Mrs. Raymond as superintendent of the building", that both individuals are referred to in the style of the agreement, and that both of them signed the contract. The respondent maintains, however, that it was only hiring Mr. Raymond.

6Before they were hired, Mr. and Mrs. Raymond attended a pre-employment interview conducted at an apartment building where Mrs. Raymond was then the superintendent. This location was chosen so that Mr. Kovacs, the president of the respondent, could assess the quality of their work there. It was Mrs. Raymond who answered Kovacs' advertisement and arranged for the interview, and both Mr. and Mrs. Raymond took part in the discussions - although it appears that Mr. Kovacs was primarily interested in Mr. Raymond's ability to perform certain semi-skilled maintenance tasks involving plastering, plumbing, electrical work, etc.

7Nor does Mrs. Raymond's name appear on the contract solely as a matter of form. She testified that she spends between twenty and twenty-five hours per week carrying out duties of the kind prescribed in paragraph 4 of the agreement. She has arranged for the renting of apartments, she collects rents and key money, she has made out the required paper-work when a tenant was in default, she cleans the building on a regular basis, she screens prospective tenants, she calls in repairmen where required, she cleans the units when the tenants have vacated, she purchases paint from a local store using a credit card in the company's name (but signing the receipt with her own), and she takes direction from Mr. Kovacs by telephone or otherwise concerning matters related to the building. Her duties are not peripheral or incidental to those performed by her husband.

8For some time Mrs. Raymond has had another full-time job, but in conversations with Mr. Kovacs she was advised that he had no objection so long as the building was kept clean. Some of the telephone calls from Mr. Kovacs mentioned above were directed to Mrs. Raymond at her other place of employment. There is no evidence that her full-time job prevents her from performing the tasks listed in paragraph 4 of the contract, nor would it necessarily detract from her status as an employee of the respondent if she were also employed elsewhere.

9The employee salary specified in paragraph 2 of the contract is in fact paid directly to Mrs. Raymond - an arrangement which she requested and to which the respondent agreed. A cheque is made out in her name for the entire amount. There are no deductions made and no apportioning of payment as between herself and her husband. Of course, she also shares with her husband the two bedroom apartment which is a significant part of the compensation package.

10This is not the first time that a question has arisen concerning the employee status of the spouse of an apartment building superintendent. A similar issue arose in Marchant Property Management, [1981] OLRB Rep. Oct. 1433 - although in that case it was the employer which argued that both spouses were employees. The Board had this to say:

5. The 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 longstanding 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.

6. Counsel for the respondent contends that the spouse 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.

7. The 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. Oct. 1433. 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 share 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 Marylou Pringle and Rita Struthers are employees within the meaning of the Labour Relations Act.

11In our view, the present case is indistinguishable from Marchant Property Management, supra. In both cases the employer hired a couple who were expected to perform certain duties but were paid a lump sum and permitted to divide the work between them. Indeed, the evidence here is even stronger given the form of the contractual relationship between the parties and the payment of remuneration directly to the spouse whom the employer now claims is not an employee. In our view, both the form and substance of the relationship indicate that Mr. and Mrs. Raymond are employees of the respondent company. This is not a case in which Mrs. Raymond's duties can be described as merely helping her spouse out. On the contrary, it is our view that she is every bit as much an employee as her husband.

12The respondent argues in the alternative that it has an established practice of hiring part-time employees and students, and that if Mrs. Raymond is found to be a part-time employee she should properly be included in a separate part-time bargaining unit. However, there were no part-time employees or students employed on the application date, and the respondent's practice of hiring such individuals is irregular or sporadic at best. In the one and a half years that the Raymonds have worked for the respondent, the part-time employees referred to, consisted of two students hired for about a week to paint an apartment, and the Raymonds' son who was hired on one occasion for a few days. Mr. Kovacs testified that some years ago when he was looking after the building, he hired a cleaning women to come in two to three days per week, that a tenant used to work several hours per week helping with the garbage, and that there may have been a student during the school vacation period. However, that is not the respondent's current practice, and even if it was, it is doubtful whether the Board's usual approach to part-time bargaining units should be applied in the unique circumstances of this case. Regardless of the labour relations considerations underpinning the Board's usual practice in respect of part-time employees, it would make no sense to hold that one spousal member of the "employee team" was in one bargaining unit, and the other spouse in a different one. It would certainly be a curious result if the two "partners", sharing the same apartment and dividing the tasks between them on an ongoing basis, were separated into different bargaining units - especially where, as here, the result of such finding would be that for practical purposes, neither individual could engage in collective bargaining.

13Having regard to the foregoing, the Board finds that Mr. and Mrs. Raymond are both employees of the respondent and that the unit of employees appropriate for collective bargaining should be described as follows:

“All employees of the respondent engaged in cleaning and maintenance at 188 Mill Street South, Brampton. Ontario, including resident superintendents, save and except property manager, office and clerical staff, and students employed during the school vacation period.”

14The Board is satisfied on the basis of all the evidence before it that more than fifty‑five per cent of the employees of the respondent in the bargaining unit, at the time the application was made, were members of the applicant on September 15, 1982, the terminal date fixed for this application and the date which the Board determines, under section 103(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.

15A certificate will issue to the applicant.