Retail, Wholesale and Department Store Union, AFL:CIO:CLC v. Maple Leaf Taxi Company Ltd., 1983 CanLII 788

Retail, Wholesale and Department Store Union, AFL:CIO:CLC v. Maple Leaf Taxi Company Ltd.

[1983] OLRB Rep. December 2048

1315-83-U Retail, Wholesale and Department Store Union, AFL:CIO:CLC, Complainant, v. Maple Leaf Taxi Company Ltd., Respondent

BEFORE: Corinne F. Murray, Vice-Chairman, and Board Members R. J. Swenor and P. J. O'Keeffe.

APPEARANCES: Gordon D. Reekie and Bert Scott for the applicant; Louis Pasialis, G. Keramaris and C. Bokolias for the respondent.

DECISION OF CORINNE F. MURRAY, VICE-CHAIRMAN, AND BOARD MEMBER P. J. O'KEEFFE; December 5, 1983

1This is a complaint under section 89 of the Labour Relations Act alleging that the respondent has contravened sections 15 and 43 of the Act.

2There is no significant dispute on the facts. The complainant is the successor to the bargaining rights, privileges and duties held by the Ontario Taxi Association, Local 1688-CLC (hereinafter "CLC"). The CLC was certified by decision of the Board on January 12, 1982 as bargaining agent for:

All owner-operators and drivers employed by Maple Leaf Taxi Company at Toronto, Ontario, save and except supervisors, persons above the rank of supervisor, multiple operators, dispatchers, and office staff.

In view of the nature of the respondent's defense to the current charges, it is necessary to refer to paragraph 3 of the certification decision. This shows that while, initially, the parties were in "substantial" dispute as to the number and status of the individuals in the bargaining unit, ultimately the parties agreed to the above-described bargaining unit. Over 10 months after certification, the respondent applied for reconsideration of the certification decision on the basis that the agreement which formed the basis of that decision was made without the benefit of counsel and, therefore, the respondent could not have been aware of the "fine distinctions" of law and fact which would determine whether or not some or all of the bargaining unit were "independent contractors". The reconsideration request was refused by decision dated October 29, 1982, (application for stay of proceedings dismissed by the Divisional Court December 16, 1982, cf. OLRB 1982-83 Annual Report pp. 59-6; application for judicial review withdrawn, April 1983). The Board in its extensive decision found that the respondent had been represented by legal counsel at the time it filed its Reply to the application for certification and that both in its Reply and through its submissions at the original hearing (October 30, 1981) the respondent's legal counsel had accurately and comprehensively outlined the factual and legal issues which were raised by the application and which would have to be resolved by litigation, if no agreement was reached. The respondent's Reply, reproduced in the Board's decision on reconsideration, was as follows:

"1. The persons for whom the Applicant seeks bargaining rights are not employees of the Respondent within the meaning of the Ontario Labour Relations Act. Rather, the Respondent submits these persons are independent businessmen with whom the Respondent cannot be said to have an employee/employer relationship.

2. Alternately, and apart from the above position, the Respondent submits the Board should not certify the Applicant as it would be an Employer dominated organization as prohibited by Section 13 of the Ontario Labour Relations Act, R.S.O. 1980, Chapter 228.

3. Additionally, the Board should not certify the Applicant due to serious misrepresentations made by the Applicant's collectors during the organization drive. Specifically, the Union's collectors misrepresented to these independent businessmen that the purpose of their organization was to lobby with Metro Toronto in an effort to increase taxi fares. At no time were these independent businessmen told the purpose of the Applicant's organization was to bargain collectively with the Respondent. In this respect, the Respondent submits any membership cards were signed under a false representation and therefore should be disregarded by the Board.

4. As the Respondent is not in an Employer/employee relationship with anyone, the Respondent submits there is no appropriate bargaining unit in the circumstances.

5. In an effort to aid the Board in this matter, the Respondent has enclosed a Schedule "A" listing persons whom the Respondent submits are Owner-Shareholders of the Respondent. Many of these persons employ drivers whom the Respondent has no knowledge of and is therefore not in a position to submit those names to the Board."

In dealing with the reconsideration request the Board noted that as a result of this Reply:

9. ... the Board appointed a Labour Relations officer, and it might be noted, that appointment was expressly made without prejudice to the respondent's right to raise the various issues set out in its reply. Moreover, it appears that the respondent continued to be represented by counsel for at least some period of time following the Board decision [to appoint an officer]. Thereafter, it is said that the respondent was without counsel and that it entered an arrangement which was improvident. But there is no indication that the respondent made any effort to secure alternative legal advice at that time. On the contrary, on December 21, 1981, it decided to proceed, without counsel, and settle the substantive issues in dispute - in effect agreeing that a number of individuals whose status was disputed were indeed employees within the meaning of the Act. It was on the basis of that agreement that the Board issued its decision of January 12, 1982.

10. There was no hearing on January 12, 1982. No hearing was necessary. The parties had resolved the matters in dispute, had waived their right to a hearing, and indicated that they were content that the Board issue its decision on the basis of their agreement. Now, ten months later, the respondent seeks to resile from its earlier agreements and bring the matter on before the Board.

11. In proceedings before the Labour Relations Board parties are entitled, but not required, to be represented by lawyers. In the instant case, at the outset, the trade union was not represented by a solicitor and the respondent was represented by experienced labour relations counsel. Counsel on the respondent's behalf raised a number of issues of fact and law which would have to be resolved through litigation if the parties were unable to reach some accommodation short of that. But that is what they did, and we do not think it is now open to the respondent to repudiate its earlier agreement and litigate issues which had been formally resolved. There is no suggestion that the Board denied the respondent the opportunity to secure additional legal advice, nor is there any suggestion that the Board denied the respondent the right to a hearing on the issues which were raised in its reply. On the contrary, the appointment of a Labour Relations Officer was expressly made without prejudice to the respondent's right to do so. If the respondent chose to proceed without counsel to settle the issues in dispute between the parties, it did so at its own peril: moreover, it is a little difficult to understand why it let ten months go by before seeking reconsideration.

12. Nor is it easy to understand how individuals operating a business and possessing ordinary common sense could be under any illusion as to the nature and potential effect of their agreement. Despite the sometimes difficult determination of whether an individual is an "employee" or an "independent contractor" (a problem which the Legislature sought to simplify with the notion of a "dependent contractor" found in section l(l)(h) of the Act) the certification process itself is relatively straightforward. In essence, it is a matter of determining whether a trade union enjoys majority support among a group of employees. The respondent initially claimed that the drivers were not employees but small businessmen. Later it conceded and agreed that certain of them were, indeed, employees. Once the respondent had agreed to the composition of that employee group it must have understood that a certificate would issue if the union could demonstrate the required support. And if there was any misapprehension in this regard why did the respondent wait for ten months before requesting reconsideration? Its second thoughts were rather long in surfacing.

13. The respondent may well have compromised its position in a manner which, in retrospect it considers imprudent, and had it continued to be represented by Mr. Wolfenden or sought other legal advice (as it was entitled and had the opportunity to do) it might not have agreed to settle its case. But it would make nonsense of the settlement process which the Board, like the Courts, seeks to encourage, and it would be patently unfair to the applicant union if the matter were now re-opened. There are literally hundreds of cases before the Board every year which are either settled entirely or expeditiously resolved because of the parties' agreement on certain factual or legal issues. On the basis of such agreements, the Board typically issues a decision which is, by section 106 itself, expressed to be both final and binding for all purposes (see also section 108). To hold that these decisions should be reconsidered, months later, because a party asserts that he acted without adequate legal advice would substantially prejudice the private resolution of industrial disputes and contribute to an escalation of litigation. And, in this case, of course, the respondent was initially represented by experienced counsel who accurately and astutely put the respondent's position to the Board. It was the respondent itself which decided to proceed without counsel and compromise its stated position.

14. Section 106 gives the Board an extraordinary authority to reconsider its earlier decisions. But for the foregoing reasons we do not think this is an appropriate case for reconsideration. Nor is it necessary or appropriate to schedule a new hearing in this matter as requested by the respondent's new solicitors. The application for reconsideration is therefore dismissed.

3Prior to the requested reconsideration, the respondent and the CLC on July 14, 1982 had entered into a collective agreement, the term of which was for one year from July 13, 1982. Sometime in early 1983, the complainant applied under section 62 of the Act for a declaration that it had acquired the rights, privileges and duties of the CLC. Formal notice of such application was given by the Board to all the interested parties (including the respondent) and no objections were raised to such application. Therefore, a declaration under section 62 was granted on March 14, 1983 (see Board File No. 2270-82-R).

4On May 4, 1983, Bert Scott, Assistant to the Canadian Director of the Retail, Wholesale and Department Store Union, wrote on behalf of Local 1688 to the respondent giving official notice that it would be requesting amendments to the existing collective agreement and would be forwarding the amendments in the "near future". On June 6, 1983, the proposed amendments were forwarded by registered mail to George Keramaris, then President of the respondent. Simultaneously Mr. Scott suggested June 20, 21, 22, 23, 28 and 29 for the commencement of negotiations and requested that Mr. Keramaris contact him as soon as possible regarding such dates. Mr. Scott telephoned Mr. Keramaris on June l4th and left a message that Mr. Keramaris call him. Mr. Keramaris spoke with Mr. Scott by telephone shortly thereafter and indicated that he would call Mr. Scott at the beginning of the week of June 20, 1983 to set a time to commence negotiations. Mr. Keramaris testified that he questioned Mr. Scott as to the urgency for meetings to negotiate a new collective agreement in view of the fact that the current collective agreement had almost a month to run. When Mr. Scott did not receive a call back from Mr. Keramaris on June 20th, he called him on June 21st and left a message that Mr. Keramaris could reach him in his office. Mr. Scott never received a call or message from Mr. Keramaris and, therefore, he applied for conciliation on June 23rd. A conciliation meeting on July 27th was the first occasion upon which the parties met face to face and the first time there was discussion between them regarding the amendments proposed by the applicant in June. It immediately became apparent that there was a threshold blockage to the negotiations. This blockage arose from the respondent's response to one of the proposed new provisions namely:

The Company agrees to collect as a condition of employment from each and every employee on the 1st day of each month and to remit to the union no later than the 8th day of each month, along with the employee's name, address and social insurance number, $11.00 for union dues — effective July lst, 1984 — $12.00. It is understood and agreed that the employer shall only be required to remit those union dues actually paid to him, as per the constitution. The membership may increase these amounts and the employer agrees to deduct.

The applicant claims it proposed this amendment as a request pursuant to section 43 of the Act. Section 43 provides:

43.-(1) Except in the construction industry and subject to section 47, where a trade union that is the bargaining agent for employees in a bargaining unit so requests, there shall be included in the collective agreement between the trade union and the employer of the employees a provision requiring the employer to deduct from the wages of each employee in the unit affected by the collective agreement, whether or not the employee is a member of the union, the amount of the regular union dues and to remit the amount to the trade union, forthwith.

(2) In subsection (1), "regular union dues" means,

(a) in the case of an employee who is a member of the trade union, the dues uniformly and regularly paid by a member of the trade union in accordance with the constitution and by-laws of the trade union; and

(b) in the case of an employee who is not a member of the trade union, the dues referred to in clause (a), excluding any amount in respect of pension, superannuation, sickness insurance or any other benefit available only to members of the trade union.

The respondent took the position in bargaining that section 43 cannot apply to any persons in the bargaining unit because none are "employees". The respondent claims that a portion of them are "shareholders" or "members" of the respondent because they are "brokers" (this segment of the bargaining unit will be referred to hereinafter as either "brokers" or "owner-operators"). The balance of those in the bargaining unit are drivers to whom the "brokers" rent their licenced cars (this segment of the bargaining unit will be referred to hereinafter as "drivers"). This rental fee is payable to the brokers. The respondent claims there is no connection between itself and these drivers. The complainant led evidence through one such driver which establishes that one of the respondent's officers did require that the driver's employment be authorized by the respondent and he was required to fill out a "form" that gave the respondent information about him which could be used in case of emergency. No moneys are payable directly to them from the respondent. The respondent's evidence disclosed that the only money "brokers" receive from the respondent is through reimbursement for "coupons" or charge slips, which are the means by which some of the respondent's customers pay their fares. This fact was not contradicted by the complainant's evidence. The brokers pay the respondent a certain amount which presumably is that broker's share of the cost of dispatching and office services provided by the respondent. In some cases the brokers rent their taxis to drivers and the drivers pay a rental fee to the brokers in advance. All the moneys received by the brokers or drivers from customers would then be retained by the brokers or drivers, as the case may be.

5The complainant's evidence regarding bargaining, aside from the respondent's position outlined above, establishes that the respondent wanted a number of clauses in the expired collective agreement removed, namely:

(1) ARTICLE 6

6.01 The money owed to the company by way of Maple Leaf charge accounts or other charge slips shall be paid by the company not more than 40 days after they have been submitted to the company.

(2) All of ARTICLE 7, i.e.,

7.01 UNION MANAGEMENT COMMITTEE

A labour/management committee shall be appointed consisting of equal representatives from the union and the employer. The committee shall meet at the request of either party for the purpose of discussing all matters of mutual concern.

7.02 The union and the company undertake that they will establish a Rules Committee and that no changes will be made which effect [sic] the working conditions of the members without the rules committee first negotiating the same. The Rules Committee aforesaid shall be made up of two representatives of the company and two representatives of the union.

(3) ARTICLE 8 - GRIEVANCE PROCEDURE AND ARBITRATION

8.03 Step II

If the reply to the grievance is not satisfactory to the grievor, then a meeting to discuss the grievance will take place within 5 (five) days of the receipt by the company. The grievor and a union representative and a company representative will be present at this meeting. Failure to resolve the grievance at this step may result in it being processed to arbitration.

8.06 Nothing in these rules and regulations shall deprive the members of the right to challenge a penalty through the regular grievance machinery.

(There appears to be no Article 9 in the collective agreement.)

(4) ARTICLE 10

10.01 (paragraphs 2 and 4)

In the event of any technological change the company shall notify the union not less than three months before the introduction of such changes.

The company further agrees that it will not impose any additional fee or otherwise as a result of technological change without first negotiating the same with the union.

(5) ARTICLE 11

11.03 The company agrees to acquaint new drivers with the fact that a collective agreement is in effect, and the company agrees to advise the new drivers as to the identity of the union representatives so that the new drivers may be advised of the terms and conditions as set out in this agreement.

11.05 Officers of the union shallbe entitled to leave their work during working hours in order to carry out their function under the agreement including investigation and processing of grievances, attendance at meetings with management, participation in negotiations, conciliation, mediation and arbitration proceedings.

In addition, the respondent wanted a "Letter of Intent", which had been proposed by the complainant, inserted in the body of the collective agreement. The Letter of Intent was essentially a list of obligations of the complainant. The respondent also proposed a 1-year term for the collective agreement in response to the complainant's demand for a two-year term. The respondent also stated there should be no amendments to the collective agreement except those that the respondent itself suggested. The complainant felt that the respondent's position as a totality amounted to "all take and no give". It was conceded by the complainant that the respondent ultimately said it would "negotiate" Article 8 and Article 11.03 but, beyond this, the respondent's alternate position was never made clear to the complainant. It should be noted that the demands which the complainant delivered to the respondent on June 6, 1983, and which formed the basis of their negotiations included a mixture of Articles from the old collective agreement which were unchanged, together with those for which changes were proposed, and of proposals for additional Articles or terms. Notwithstanding the fact that the respondent was taking the position that it had no "employees" in the bargaining unit, there is no indication that it formally requested deletion of Article 2 - Union Recognition. In this connection, this panel asked both parties whether Article 2's bargaining-unit description changed the composition of the bargaining unit as described in the certificate. Both parties said there was no change, notwithstanding the different language used in Article 2.01. Article 2 provides:

ARTICLE 2

2.01 UNION RECOGNITION

The company recognized that only those members who are licensed as taxi owners and drivers by the City of Toronto are members of the Union and excluding foremen, dispatchers, assistant dispatchers, mechanics, garage staff, office staff and other parties designated as management, the Company recognizes this union as the sole and exclusive bargaining agent for those members who are licensed as taxi owners and drivers by the City of Toronto.

Mr. Pasialis testified on behalf of the respondent that he and the other negotiators on behalf of the respondent, Messrs. Keramaris and Bokolias, interpreted the reference to "members" in Article 2 to mean members (i.e. brokers) of the respondent, not members of the union. Mr. Pasialis, who was secretary of the respondent both at the time of the certification and the signing of the old collective agreement, claimed not to have been aware that the certification meant that both owner-operators and drivers were considered employees. He said the certification was handled by a former President and that he did not discuss it with him.

6The initial negotiating meeting held under the auspices of the conciliation officer on July 27, 1983, ended after approximately an hour and a half of communication through the conciliation officer. The complainant claimed that the respondent's position of having no employees was a "hurdle" which was insurmountable that day and on August 24, 1983. The September 13, 1983 mediation meeting did not come about because of the failure of the complainant's bargaining committee to attend on time. However, it is clear from the position taken by the respondent before us that the "hurdle" erected by the respondent's claim to have no "employees" undoubtedly would not have been surmounted on that day either.

7We have concluded that the respondent's position that it has no "employees" amounts to a violation of its duty under section 15. Section 15 provides:

The parties shall meet within fifteen days from the giving of the notice or within such further period as the parties agree upon and they shall bargain in good faith and make every reasonable effort to make a collective agreement.

The Board has on numerous occasions pointed out that the bargaining duty under this section has two broad connecting purposes when applied to an employer. The first purpose is that the employer has a duty to "recognize" the certified bargaining agent of its employees. The second purpose is to make all reasonable efforts to arrive at a collective agreement (see, for example, De Vilbiss (Canada) Limited, [1976] OLRB Rep. Mar. 49 and Fotomat Canada Limited, [1980] OLRB Rep. Oct. 1397). Bargaining designed to undermine the trade union and avoid a continuing collective bargaining relationship is subject matter of the first purpose. The respondent's position that there are no "employees" in the bargaining unit is a direct assault on the complainant's bargaining rights and is a failure to recognize it as the bargaining agent for persons in the bargaining unit set out in the certificate and the old collective agreement. We interpret this as a resurrection of the failed attempt, via its reconsideration application in October of 1982 and subsidiary court applications to retreat from the effects of its own agreement to the certificate issued by this Board. In view of the respondent's indication to us that the description of those in the bargaining unit in the certificate is essentially the same as the recognition clause of the collective agreement, there can be no doubt that its position in bargaining amounts to a denial of the certificate and that its alleged interpretation of the recognition clause as only covering "brokers" or "members" cannot be believed. Even if the respondent honestly held the belief that drivers "employed" by owner operators of the taxis were not covered by the collective agreement, it also took the position that the brokers were not employees. In view of the fact that only brokers appear to remain after "drivers" are eliminated from the unit, the unit would disappear. We are also not convinced that the respondent was simply rejecting the union's demand for check-off of dues pursuant to section 43 simply because of the lack of any "wages" payable from the respondent to the brokers. The respondent's bargaining position went deeper than that, i.e., to claiming that the brokers and the drivers had no status as employees notwithstanding the certificate. While it is true that the respondent did formulate a response to the complainant's demands, this represented an extensive gutting of the existing collective agreement and cannot be considered as evidence that the respondent's claim of having no employees was simply an answer given in the course of bargaining to the complainant's demand pursuant to section 43 of the Act.

8With respect to the complainant's argument that the respondent's "all take and no give" demands amounted to a breach of section 15, we have concluded that the extensiveness of these demands, in conjunction with its position that there are no employees in the bargaining unit displays a lack of willingness to conclude a collective agreement. While it is true that the Board does not normally concern itself with the content of collective bargaining proposals when administering the duty to bargain in good faith, there are occasions when the content of bargaining proposals must be assessed. Thus, the Board has found that specific bargaining proposals constitute a breach of the duty to bargain in good faith because they are illegal or inconsistent with the Act's scheme (see, for example, O.P.S.E.U. v. Cybermedix Ltd., [1981] OLRB Rep. Jan. 13; Graphic Arts International Union and Toronto Star Newspapers Limited, [1979] OLRB Rep. May 451), or because, even if lawful in other circumstances, they are being used to avoid reaching a collective agreement (see United Steelworkers of America and Radio Shack, [1979] OLRB Rep. Dec. 1220, application for judicial review dismissed (1980) 1980 CanLII 1738 (ON HCJ), 30 O.R. (2d) 29, 80 CLLC ¶14,017, (1980) 115 D.L.R. (3d) 197 and Fotomat Canada Limited, 111981] OLRB Rep. Feb. 145). The respondent's proposals as a totality are an attempt to stymie the conclusion of a collective agreement. The effort seems to have been to throw up as many issues and road blocks as possible. These negotiations are not for a first contract, which could entail conflict over clauses which appear in a great number of other collective agreements. These are negotiations for a second collective agreement. The only difference in this second set of negotiations is that the employees in the bargaining unit have a new bargaining agent. It may be that the respondent saw this change as a fresh chance to negotiate a collective agreement which it could not achieve with the prior bargaining agent. If this is so, the respondent is under a misapprehension as to the effect of this change on its duty to bargain. Our assessment of the respondent's bargaining proposals in this context should not be construed as a finding which prohibits legitimate concession bargaining. There may well be instances where demands for concessions or deletions of clauses from the collective agreement are properly made. Each such case must be weighed on the particular facts and we do not wish to be taken to be deciding prospectively that all such demands are breaches of section 15.

9In connection with its section 43 demand, the complainant claims that both section 43 and section 15 have been breached by the respondent's refusal to agree to this demand (see paragraph 4 above). It is incontestable that if an employer refuses a legitimate demand pursuant to section 43, the employer can be found to have breached not only section 43 but also section 15. Section 43 was added to the Act in 1980 to remove a frequent stumbling block in collective bargaining negotiations. Its purpose was to put beyond any doubt the right of an authorized bargaining agent to receive, through the employer's control over an employee's remuneration, financial support from all the employees in the bargaining unit regardless of whether they are members of the union or not. "Check-off" ceased to be a bargainable issue. A bargaining agent need only make the request that a provision be included in a collective agreement requiring the employer to deduct from employees' wages amounts equivalent to regular union dues and to remit them to the bargaining agent and the employer cannot refuse such request. The facts of this case raise the question of whether a section 43 demand can be made in connection with dependent contractors or other employees who do not receive "wages" (as that word is normally understood) from the employer.

10Section 43 was added to the Act five years after the Act had been amended to provide that "dependent contractors" were employees for the purposes of the Act (see, S.O. 1975, c. 76, s. 1(1) and S.O. 1980, c. 34, s.2(1)). The definition of "dependent contractor" in section l(l)(h) contemplates that he performs work or services for "compensation or reward". This is a broad description of how this type of employee can be remunerated, and was intended to include economic or business relationships where payments for services do not fit the usual employee/employer paradigm, (see, for example, Niagara Veteran Taxi, 111981] OLRB Rep. Feb. 198 and cases cited therein) i.e., payments flowing directly from the employer to the employee performing such services. In view of the broadness of section l(1)(h), can it be said that by using the word "wages" in section 43, the Legislature intended to have this obligation only arise when there are moneys physically flowing from the employer to the employee which can be identified as wages in the narrow sense and from which a deduction could be made? Put another way, did the Legislature intend to exclude from the benefits of section 43 those bargaining agents who represent dependent contractors who do not receive wages in the traditional sense?

11There is no definition of "wages" in the Act. The Act makes varying references to moneys employees earn through their work. References to "wages" are found in section 46(l)(b), and section 79(1) and (2), while section 89(4)(c) refers to "compensation". Section 46 sanctions various provisions in collective agreements which could perhaps otherwise be found to be unfair labour practices by either the bargaining agent or the employer or both. One such provision sanctioned by section 46(1)(b) is one permitting employees to be absent from work to attend to union business without deduction of wages in respect to the time during which the employee is so occupied. Subsections (1) and (2) of section 79 establish the so-called "freeze periods" following notice to bargain and an application for certification. Both subsections forbid the alteration of "the rates of wages or any other term or condition of employment or any right, privilege or duty" of the parties until the specified procedures have been fulfilled. Section 89(4) outlines the orders the Board may grant where a contravention of the Act has been found. It is interesting to note that section 89(4) empowers the Board to not only grant compensation but also "earnings or other benefits" lost as a result of the contravention. Therefore, in reviewing the Act as a whole, there is no discernible pattern of usage which would allow us to conclude that "wages" was used in section 43 to have meaning only in connection with employees who directly receive money from their employers.

12As had already been stated, inclusion of section 43 in the Act was intended to remove a common bargaining obstacle and bestow a right on an authorized bargaining agent to utilize the employer's economic relationship with employees to ensure receipt of financial support from the whole bargaining unit (subject to provable religious objections) regardless of membership in the union. Section 43 is undoubtedly a remedial provision and, in accordance with the well-known canon of statutory construction, ought to receive a broad and expansive interpretation. If there could be any doubt, section 10 of the Interpretation Act, R.S.O. 1980, c. 219 provides that:

Every Act shall be deemed to be remedial, whether its immediate purport is to direct the doing of anything that the Legislature deems to be for the public good or to prevent or punish the doing of any thing that it deems to be contrary to the public good, and shall accordingly receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit.

In view of the fact that prior to the introduction of section 43 it was contemplated that dependent contractors could be employees for the purposes of the Act, and the fact that the rationale behind or the spirit of section 43 is equally applicable to a bargaining agent certified to represent these sorts of employees, we have chosen to interpret "wages" in an expansive way to include the compensation. or reward which a dependent contractor can receive for his work or services. We can think of no reason why section 43 would be made inapplicable to "dependent contractors" or indeed any other person who fulfils the criteria of being an employee under the Act but who does not receive "wages" in the narrow sense. While an argument can be made that the employer cannot "deduct" from moneys that never pass through its hands, (in this case the fares are paid directly to bargaining unit members), it cannot prevail when it is recognized that this is an arrangement of a particular industry which allows for direct receipt by the employee of his remuneration from someone other than the employer. Under this arrangement the owner-operators/drivers pay in advance a monthly rate which entitles them to collect fares from customers and to keep them. This does not take away from the essential fact that they have access to these customers and are allowed to pocket these fares because of prior arrangements with the respondent. The situation could easily be one where the owner-operators/drivers collect the fares, return them to the employer, with the employer taking the appropriate share, and remitting to the owner-operators/drivers the balance. The employer could "deduct" dues in that situation. We are not persuaded that the existence of a different arrangement where there is a pre-payment of the monthly rate to the respondent, which permits the owner-operators/drivers to retain fares from customers, and the attendant necessity for the respondent to require additional money over and above this monthly fee from employees for union dues, changes the fact that the source of the dues is the employees. While we recognize that drivers do not directly pay the respondent their rental fees, there is nevertheless indirect payment via the owner-operators. In instances where there are drivers, the amounts paid to owner-operators would include their union dues and in turn the amounts paid to the respondent would include dues for both owner-operators and drivers. In those cases the owner-operator is a conduit for the payment of union dues by the drivers. Therefore, we have concluded that section 43 is applicable to dependent contractors generally and to this bargaining unit in particular.

13This does not mean, however, that we can conclude from the evidence that the complainants' proposal is necessarily an appropriately-worded demand under section 43. We note that the demanded language includes reference to both the employer "collecting" and "deducting". We have not been satisfied that this is a clear articulation of what is the nature of the employer's obligation. In view of this, we refrain from directing the respondent to approve the proposal as drafted. Nevertheless, we find that the respondent's position that it had no employees in the bargaining unit amounted to a failure to bargain in good faith and a failure to find appropriate language to fulfill its obligations under section 43.

14In order to remedy these violations, we therefore order that the respondent:

(1) cease and desist from taking the position that there are no employees in the bargaining unit;

(2) cease and desist from refusing to negotiate an appropriate provision to respond to the complainants' demand pursuant to section 43;

(3) commence bargaining forthwith and make every reasonable effort to conclude a collective agreement with the complainant.

15In view of the fact that section 43 presents, in these circumstances, potential bargaining difficulties in the formulation of appropriate language, the parties may wish to have the assistance of a Labour Relations Officer for this limited purpose. Upon request of either party, an Officer will be made available.

DECISION OF BOARD MEMBER R. J. SWENOR;

1. I can see that the peculiar nature of the bargaining unit and employer/employee relationship in this case will lead to difficulties in collective bargaining for an acceptable and workable agreement.

2. However, I must agree with the majority position that the respondent cannot, in the face of the Board's previous decisions regarding certification, continue to take the position that there are no employees in the bargaining unit without breaching section 15 of the Act.

3. I must therefore agree with the remedies included in (1) and (3) of paragraph 14 of the majority decision. I cannot agree with the order contained in paragraph 14(2) and paragraph 15. I would find that there is no contravention of section 43 for the following reasons.

4. The proposed amendment by the complainant was not an appropriately worded demand under section 43 since it called for the employer to "collect" dues from employees. Section 43 provides for mandatory acceptance of a provision "requiring the employer to deduct from the wages of each employee ... union dues". In this situation, there are no wages. In fact, remuneration all flows the opposite way with owners paying the respondent a monthly service fee, drivers paying owners a weekly "rental" fee, and fares being paid to and retained by drivers.

5. I am not necessarily concluding that dependent contractors should be excluded by section 43 simply because they do not receive "wages" defined in a narrow sense. It may be appropriate to find section 43 should apply where dependent contractors receive payments for their services from the employer which are not "wages" in the usual sense of the word. This, however, does not happen in this situation. The only monies passed "downward" by the respondent are reimbursement for "chits" used by some fares. I liken this more to cheque cashing than payment for services.

6. While I do not wish to review the earlier Board decisions regarding certification in detail, it is clear from the facts brought out in those proceedings that the complainant and its predecessor were aware of the monetary arrangements involved in the respondent's business and there is no evidence that check-off provisions were even contemplated let alone that they represented a stumbling block in the first collective agreement. We do not have here a situation where the respondent concocted an artificial system to avoid the provisions of section 43.

7. I believe we cannot give section 43 such a broad expansive interpretation as to require employers to go out and collect union dues in cases where there are no "wages", defined in the broad sense, from which to deduct.