[1983] OLRB Rep. February 289
1913-82-R Tremways Drivers Association, Applicant, V. Tremways (1982) Limited, Respondent
BEFORE: Kevin M. Burkett, Alternate Chairman and Board Members J. A. Ronson and S. Cooke.
APPEARANCES: T J. Flaherty, Jim Machen, Don Campbell, Bill Fish and Alan Speers for the applicant; Robert J. Goodman and Lou Burley for the respondent.
DECISION OF THE BOARD; February 28, 1983
1This is an application for certification.
2In a letter dated January 13, 1983 the Registrar advised the applicant that it appeared from a check of the Board's files that the applicant had not proven its status as a trade union within the meaning of section l(l)(p) of the Labour Relations Act. The applicant was further advised that it must be prepared at the hearing to satisfy the Board that it is a trade union within the meaning of section (l)(l)(p) of the Act. At the hearing evidence was heard with respect to the formation of the applicant organization. The Board hereby confirms the finding made orally at the hearing that it is satisfied that the applicant is a trade union within the meaning of section l(l)(p) of the Labour Relations Act.
3The parties reached a partial agreement with respect to the description of an appropriate bargaining unit in this matter. The applicant seeks bargaining rights for a group which it maintains are dependent contractor truck drivers and for a single employee truck driver of the respondent. The respondent, without prejudice to its position that those referred to by the applicant as dependent contractors are in fact independent contractors, takes the position that the employee truck driver should not be included in a bargaining unit of dependent contractors. With the exception of the disagreement with respect to the inclusion of the employee truck driver in the bargaining unit, the parties are agreed that all dependent contractors engaged as truck drivers working at or out of Guelph, Ontario, save and except dispatchers, persons above the rank of dispatcher and office and clerical staff, constitute a unit of employees of the respondent appropriate for collective bargaining.
4In addition to the dispute between the parties as to whether the bargaining unit description set out above should be amended to include the employee truck driver, the parties are also in dispute as to who falls within the bargaining unit description to which they have agreed. The applicant maintains that all of those who drive their own vehicles for the company and whose names appear on Schedule "A" as contractors are in fact dependent contractors who are employees within the meaning of the Act. The respondent, on the other hand, takes the position that these contractors are independent contractors and therefore, are not employees within the meaning of the Act who would fall within the bargaining unit.
5A dependent contractor is defined in section 1(1)(h) of the Act 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.
Under section l(1)(i) of the Act an "employee" includes a dependent contractor.
6The company operates an over-the-road haulage service out of Guelph. The company utilizes the services of 8 drivers who own their own tractors and 1 driver who does not. These drivers are assigned by the company dispatcher to pick up loads in the Guelph area and to deliver these loads to various destinations. The owner/operator driver is free to determine the route he uses. The owner/operator drivers are responsible for all expenses incurred in the operation of their tractors and are paid a percentage of the tariff charged by the respondent to the customers. These drivers are paid a draw of $150.00 a week against their earnings from deliveries made during the week. The respondent makes no deductions from the monies paid for Canada Pension Plan, Unemployment Insurance premium or Income Tax. In the event the customer does not pay Tremways, the driver is not paid for the delivery. All of the income of these persons is derived from Tremways.
7The eight persons whose names appear on Schedule "A" and who own their own tractors operate under the company's PCV licences. It is estimated that they spend five to six hours per day hauling for the company. Their tractors are used exclusively in making deliveries for the company. The company obtains the customers, sets the rates and assigns the contracts to be handled. The tractors owned by the disputed drivers are painted in company colours and the company name appears on these tractors. The drivers are expected to be at the company's yard on a daily basis and to notify the company in case of absence.
8The company has recently had reason to take back the PCV licences of three drivers who refused to take loads which were assigned to them. These drivers were individually asked to transport a load to Ottawa and refused. The day following the refusal the company asked for its PCV plates back. The company acknowledged that the effect of its action in this regard put the affected drivers on notice that they would no longer be used by the company.
9Having regard to the facts as set out above, it is not surprising that the respondent does not dispute that the persons whose status is in dispute are in a position of economic dependence on the respondent company within the meaning of section (l)(l)(h) of the Act. The respondent takes the position, however, that these persons are not under an obligation to perform duties for the respondent within the meaning of section l(1)(h) of the Act and therefore, are not dependent contractors within the meaning of the Act. The respondent argues that under the definition of dependent contractor set out in section l(1)(h), the persons whose status is in dispute must be both in a position of economic dependence and under an obligation to perform duties for the respondent in order to be dependent contractors within the meaning of the Act.
10The Board dealt with the interrelationship between the various components of the statutory definition of "dependent contractor" in Adbo Contracting Company Ltd. [1977] OLRB Rep. Apr. 197. The Board analyzed the definition as follows:
The shift of emphasis is readily apparent from a reading of the definition of dependent contractor. Clearly a person need not be employed under a contract of employment to be considered as a dependent contractor, and provision of tool , vehicles, equipment, machinery is no longer a major consideration. Contractual form and the ownership of tools are no longer essential considerations. The emphasis, instead, is placed upon economic and business factors. Both the type of economic dependence that exists, and the kind of business relationship entered into, determine whether a person more closely resembles an employee than an independent contractor.
Economic dependence must be such that it puts the person in roughly the same economic position as an employee who must face the perils of the labour market. Mere economic vulnerability, however, is not a sufficient basis for a finding that a person is a dependent contractor, since this is a condition that may be experienced by the true entrepreneur, just as much as the individual worker. There must exist, therefore, a type of economic dependence closely analogous to that of the individual worker.
The first requirement of a particular type of economic dependence is closely related to the second requirement of a particular kind of business relationship. In order for a person to be considered a dependent contractor, that person must not only be economically dependent upon another person, but also must be "under an obligation to perform duties for that person" roughly analogous to that of an employee. This reference in the statutory definition requires us to look beyond the factor of economic dependence to the form of the business relationship to determine if it is roughly analogous to that of employer and employee. Such an examination, however, need not result in the identification of a particular contractual obligation since a business relationship may exist, and continue, in the absence of any particular contractual obligation. The Board, therefore, need not confine itself to this very narrow issue but may deal with the wider issue of the nature of the business relationship.
(Emphasis added)
11When we look beyond the economic dependence which is conceded in this case, we discover that the persons whose status is in dispute are under an obligation to perform duties for the respondent roughly analogous to that of an employee. Although there is no contractual obligation the statutory definition does not require one. However, in this case the respondent controls the source of and assigns the work. The disputed persons and their tractors have been integrated into the respondent's business. The integration of the equipment owned by these persons is evidenced by the use of the respondent's PCV licences, the painting of the tractors in company colours and the markings on the tractors identifying them as part of the respondent's operation. The integration of the disputed persons is evidenced by the requirement to advise the company when not reporting for work and to perform the deliveries assigned to them. The nature of the relationship insofar as it pertains to the requirement to perform as directed is evidenced by the decision of the company to ask for the return of the PCV licences from the three drivers who recently refused to undertake the deliveries assigned to them. The only conclusion that can be reached on the evidence before us is that the persons whose status is in dispute are not only in a position of economic dependence upon the respondent but also, having regard to the nature of the business relationship, under an obligation to perform duties for the respondent. In these circumstances, we must find that the relationship between these persons and the respondent is one more closely resembling the relationship between employees and an employer than between independent businesses.
12Having regard to all of the foregoing, we are satisfied that the persons named in schedule "A" to the application who own their own tractors are dependent contractors within the meaning of section l(1)(h) of the Act and, therefore, fall within the bargaining unit.
13The 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 January 21, 1983, 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. Indeed, all of the dependent contractors affected by the application signed applications for membership in the applicant union.
14The final issue to be decided is whether the single employee driver who is not a dependent contractor should be included within a bargaining unit of dependent contractors. Section 6(5) of the Act reads:
A bargaining unit consisting solely of dependent contractors shall be deemed by the Board to be a unit of employees appropriate for collective bargaining but the Board may include dependent contractors in a bargaining unit with other employees if the Board is satisfied that a majority of such dependent contractors wish to be included in such bargaining unit.
The Legislature, by enacting this section, recognized that dependent contractors may not share a community of interest with "traditional employees" and provided, therefore, that dependent contractors may be included in a bargaining unit with other employees only if satisfied that a majority of the dependent contractors affected wish to be included in such a bargaining unit. (See Re Alltour Marketing Support Services Limited, [1982] OLRB Rep. Oct. 1383.) In the face of section 6(5) of the Act, therefore, we are prevented from including dependent contractors in a unit with other employees unless satisfied that a majority of such dependent contractors wish to be included in a mixed unit.
15However, even if the Board is satisfied that a majority of the dependent contractors wish to be included in a mixed unit it would nevertheless be required to exercise its discretion under section 6(1) of the Act to determine if that unit is appropriate for collective bargaining. The Divisional Court in Re Northern Electric Professional Association and Ontario Labour Relations Board et al, (1976), 1976 CanLII 556 (ON HCJ), 14 OR. (2d) 273 made this abundantly clear. In dealing with the effect of then section 6(3) (now 6(4)) which contains language identical to section 6(5) but in respect of a unit of professional engineers, the court said:
The authority to certify a bargaining unit is contained in s. 6(1) and nowhere else. Subsections (2), (3) and (4) of s. 6 are not self-contained grants of power to certify units. There is no power to certify found within them. They are merely guides to or constraints upon the discretion of the Board conferred by s. 6(1). Section 6(1) thus governs all applications. The Board must always consider the appropriateness of a proposed unit, as s-s. (1) requires. When the first part of s.6(3) is found to apply the Board must find a unit falling within it to be appropriate. But this does not exclude s-s. (1). The Board could, without doubt, consider conducting a vote under s-s. (1) in order to determine the wishes of the employees affected by the proposed unit.
It is inappropriate to speak of an application as falling under s. 6(3) instead of s. 6(1): all applications fall, in the first place, under s. 6(1). When an application is made by professional engineers for a "pure" unit, i.e., a bargaining unit consisting of professional engineers, and the Board is satisfied that is in accordance with the employees' wishes, the Board may allow no other. But when an application is made for a mixed unit, the Board must decide if it is appropriate. In the first case, it must be satisfied that the persons who will comprise the proposed unit are professional engineers within s. l(l)(l) of the Act and that the employees affected desire it. This will require evidence or some investigation.
In the second case the Board must be satisfied that the proposed unit will be appropriate. This will require evidence or some investigation. Just what kind of evidence, and how much, the Board will require in any given case is for the Board to decide.
16Where dependent contractors with substantial investment in equipment or vehicles and concerned with maximizing the return on investment (hallmarks of the dependent contractor) are placed in a bargaining unit with "traditional employees" there will be a marked divergence in the collective bargaining interests of the two groups of employees and, where questions arise with respect to the assignment of work between the two groups an inherent strain will develop between them. In our view, this divergence in interest would invariably result in mutually exclusive bargaining units on an application of the Board's normal community of interest criteria. However, the Legislature, although recognizing the conflict of interest when it enacted section 6(5), envisaged that dependent contractors and other employees could bargain together where a majority of the dependent contractors desire to do so and the Board finds the mixed unit to be appropriate. The difficulty, therefore, in the face of the obvious inapplicability of the standard community of interest criteria, is to determine the basis upon which to exercise our discretion under section 6(1) to determine the appropriate unit.
17Section 6(5) focuses on the wishes of the dependent contractors and allows for a mixed unit only where the majority of the affected dependent contractors wish to bargain as part of a mixed unit. Given the inapplicability of our standard community of interest tests and the focus of section 6(5), it is our view that in the exercise of our discretion under section 6(1) to find an appropriate bargaining unit, we should test the wishes of the "traditional employees" who stand to be affected. It is our view that "traditional employees" should not be swept into a mixed unit against their will but should put their minds to the question and make a majority decision in this regard. Accordingly, where a majority of the "traditional employees" have signed membership cards in the applicant but the Board is not satisfied on the evidence before it at the hearing that a majority of these employees wish to bargain in a mixed bargaining unit, the Board will conduct a vote under section 6(1) to determine whether or not a majority of the "traditional employees" wish to bargain as part of a mixed unit. Where, in addition to a majority of dependent contractors, a majority of the other employees also desire to bargain within a mixed unit, the Board, in the knowledge that the duty of fair representation applies, will be prepared to exercise its discretion under section 6(1) to find the mixed unit to be appropriate. It is to be observed that under the British Columbia statute, where dependent contractors must bargain within an established bargaining structure, it is envisaged that the inherent conflict between the two groups can be accommodated.
18Given the potential for tension between dependent contractor employees and traditional employees of the same employer doing essentially the same work, as in this case, we are not prepared to conclude that the posting of a unit description of "all truck drivers being supplied with goods and materials by the employer" coupled with the signing of membership cards and a failure to intervene at the hearing, as in the case of both the dependent contractor truck drivers and the employee truck driver in this matter, constitutes evidence upon which the Board can reasonably infer that either the dependent contractor truck drivers or the employee truck driver wish to bargain in a mixed unit. There was no cogent evidence going to the wishes of employees in this regard put before us at the hearing. Accordingly, we hereby exercise our discretion under section 6(1) of the Act to direct the taking of two representation votes. In the first, the dependent contractor truck drivers employed by the respondent and listed on Schedule A to the application are to be asked whether or not they wish to be included in a bargaining unit with other employees. In the second, the preconditions to the taking of such a vote among the non-dependent contractor employees, as enunciated in the previous paragraph, having been satisfied, the single employee truck driver is to be asked whether or not he wishes to be included in a bargaining unit with the dependent contractor truck drivers employed by the respondent. The Registrar is directed to make the necessary arrangements in respect of each of these votes.
19The result of the aforementioned votes cannot affect the applicant's ultimate entitlement to certification. Accordingly, even though the inclusion or exclusion of the single employee truck driver from the bargaining unit is unresolved, we hereby certify the applicant pursuant to section 6(2) of the Act as bargaining agent for all dependent contractors engaged as truck drivers working at or out of Guelph, Ontario, save and except dispatchers, persons above the rank of dispatcher and office and clerical staff. The final description of the bargaining unit must await our ultimate determination as to whether or not the single employee truck driver is included or excluded from it.
20This matter is hereby referred to the Registrar.