[1985] OLRB Rep. October 1467
2099-84-R Syndicat Quebecois De L'Imprimerie Et Des Communications, Local 145, Applicant, v. Journal Le Droit, division du groupe UniMedia Inc., Respondent
BEFORE: S. A. Tacon, Vice-Chairman, and Board Members W H. Wightman and S. O 'Flynn.
DECISION OF THE BOARD; October 4, 1985
By decision of the Board dated September 6, 1985, the Board found that the ten drivers examined by the Board Officer were dependent contractors within the meaning of section 1(l)(h) of the Labour Relations Act. Although the respondent conceded that the general trend of any examination of the remaining sixteen drivers would be the same, the respondent nonetheless sought those further examinations. In the September 6, 1985 decision, the Board directed that the parties make written representations by September 20, 1985, as to whether additional examinations should be conducted.
It is appropriate to here set out in full the submissions of the parties, in the order received.
LAW OFFICES OF NELLIGAN/POWER
September 12, 1985
This letter is written as a result of the Board's direction and its Decision on this matter that the parties make representations as to whether additional examinations should be conducted.
The Applicant's position on this matter is that no further examinations are required. As even the Respondent has conceded the general trend of any examination of the remaining drivers would be the same. All of the points which the Board found significant in arriving at its Decision are found throughout the evidence given by the ten witnesses already called, For this reason, it is submitted that no useful purpose could be served by holding further examinations.
In our Submission the only purpose that could be served in the holding of further examinations would be to delay the Board's final determination on this very important issue. To date, through no fault of anyone, almost a full year has past since the Application was first submitted to the Board. This is extremely unfortunate from a Labour Relations point of view. The employer, the Union and more importantly the employees who will ultimately be in the bargaining unit have been in this "in between" state for far too long.
It is for this reason that we would ask that the matter be relisted as early as possible in order that a final decision can be rendered.
Yours Sincerely,
"Catherine H. MacLean"
cc: D. Desautels
Gilles LeBlane
GOWLING & HENDERSON
September 17, 1985
We wish to advise that we have been retained to represent the Respondent in the above matter and we would ask that you amend your records accordingly.
In its decision dated September 6, 1985, the Board directed the parties to submit written representations as to whether additional examinations should be conducted in this matter. In this report, we note that although the Respondent has acknowledged that the general trend of the testimony of the remaining 16 drivers would be similar to that given by those who have already testified, it has indicated that there would be some variation with respect to the number of hours worked and to additional employment. The Respondent proposes that the remaining drivers be examined and that the examination of Francois Belanger be resumed. These examinations will touch upon certain matters which, it is submitted, will have a significant bearing on some of the Board's factual determinations in its interim report as well as on the ultimate decision to be made on the matters at issue. The substance of the additional facts and evidence which should be put before the Board directly bear upon three of the factors which according to the Board, favoured a finding of a dependency relationship, namely, entrepreneurial activity and economic mobility, the selection and use of substitutes and the financial arrangements between the Respondent and the subject drivers.
With respect to the factor of entrepreneurial activity and economic mobility on the part of the drivers, 10 additional drivers will testify that they have other employment in addition to the work which they perform for the Respondent. This evidence will also deal with the nature of such additional employment as well as with the consistency and the hours of the work performed by these drivers for other employers.
In addition, the Board should be made aware of a detailed survey of the hours spent by all of the drivers with respect to the work which they performed for the Respondent during the weeks of July 15th and July 22nd of this year. In this respect, during 9 working days in this period, the Respondent recorded the time of departure of each driver from its premises and the time each driver completed his route. This survey will provide a representative sample of the time taken by each driver to complete his route or routes and will largely contradict the evidence of the drivers who have already testified as to these matters. It will be our submission that this evidence should be preferred to that of these drivers.
The Board should also be made aware of evidence which will clearly demonstrate that all drivers with out-of-town routes also perform the function of delivering papers directly to subscribers while completing their assigned route thereby extending the time taken to complete their route. It will be submitted that such additional time should not he counted in the total time taken by these drivers to complete their respective routes and this evidence will have a significant bearing on the Board's findings in this respect.
In addition, the Board should be made aware of certain evidence having a direct bearing on whether, in cases where a given driver covers two routes, the time spent in completing each route should be considered separately and not in combination as the Board has apparently concluded in its interim report (see paragraph 20). This evidence will relate to the policy and the practice of the Respondent in granting more than one route to a given driver as well as to its reasons for doing so.
It is submitted that the thrust of the evidence outlined above will demonstrate that the performance of the duties of the drivers in question cannot be viewed as an impediment and in fact is not an impediment in the majority of the cases, to the drivers' pursuing other financial opportunities.
With respect to the selection and use of substitutes, there are additional facts which are not included in the interim report of the Board Officer which will show that during the last five years, the instances where the Respondent actually intervened to find a substitute constitute a minor percentage of the total substitutions which occurred during this period. This evidence will demonstrate that in effect, the general rule is that the driver is solely responsible to find and pay his own substitute. In cases where the substitute has completed a particular route on a given day, the Respondent nevertheless pays its driver unless otherwise specifically directed by that driver. It will be submitted that the Board's determination with respect to this factor in its interim report (see paragraph 18), was based on minor exceptions to the general rule and that the above additional facts will weigh quite significantly in determining whether this factor points more towards a finding that the drivers in question are independent contractors.
As to the last factor set out above, that of financial arrangements, the Board should be aware, in greater detail, of the manner in which increases in remuneration are determined for [sic] time to time. The facts relating to this matter will show that although an increase in the price of gasoline may serve to initiate such a process and also be a factor which is taken into account during such a process, the determination of a given increase is based upon other factors which are evaluated individually for each route and each driver resulting in variations in the amounts of increase in remuneration granted to each driver at any given time. It is submitted that these additional facts will point strongly to a finding that rate increases are to some extent '~negotiated" in the case of each individual driver.
We should note that most of the above additional evidence would be best presented through the witness Francois Belanger who has the most direct knowledge of these matters. The facts as to other employment held by drivers will become apparent from the examination of the remaining drivers. We realize that Mr. Belanger has already been examined in this matter. However, we submit that the facts presently before the Board on the above matters are insufficient to allow the Board to properly and accurately determine the matters at issue and to arrive at a determination which is consistent with the realities of the Respondent's operations and those of its drivers.
Should the Board accede to the Respondent's request, we are of course at its disposal in determining the time and manner in which further examinations can be conducted most expeditiously and conveniently.
"Robert W. Cote"
cc.: Ms. Catherine Maclean Nelligan Powers Barristers and Solicitors
LAW OFFICES OF NELLIGAN/POWER
September 24, 1985
This letter is in response to the letter sent by Robert Cote to the Board on September 17th, 1985.
I would ask you to convey to the Board that we object in the strongest possible terms to the course of action that Mr. Cote is proposing.
I was disappointed at the suggestion that we needed to hear from the balance of the members of the bargaining unit, particularly in view of the Board's questioning of the employer's former counsel Mr. White prior to the commencement of our argument. It was clear in my submission, from his statement that the desire on the part of his clients to hear from more witnesses was made for the record only (which he repeated on several occasions) that there was no serious wish to hear the balance of the evidence. As the Board noted Mr. White went so far as to concede that the general trend of the evidence would be the same for all of the remaining employees in the bargaining unit with some small variations. The employer was so confident of being successful in the arguments which it had to make in view of the Citizen case that there was nothing more than a pro forma expression of a desire to hear from more employees.
There was no indication at that time that the parties had additional evidence from Mr. Belanger which for some reason they had not brought out during his lengthy examination as the Respondent's witness. The detailed survey of the hours of work sent by the drivers referred to on page 2 of Mr. Cote's letter had already been underway for more than a week by the time we argued our case before the Board, yet Mr. White gave no indication that the Respondent felt additional evidence concerning the hours of the employees was important. No representations were made concerning the need for further evidence despite the fact that the Respondent had been aware since February 7th, 1985 when the hearings ended and certainly since the interim report was received in May of 1985 exactly what testimony had been given by the individual drivers concerning their hours of work. If the Respondent felt it necessary to do so, the survey could have been conducted long before preliminary argument was made on the basis of the report. I would note that Mr. Wheatley suggested calling a halt to the examinations only insofar as other members of the bargaining unit were concerned. The employer never indicated that it had any other evidence from any other person nor even any further evidence from Mr. Belanger at any time until they realized that they had not been successful before the Board on the preliminary question.
I indicated that I was disappointed by the Respondent's approach in requesting examination of the rest of the bargaining unit but I cannot say that I was surprised. The delay that will be caused by the further ten examinations and the time required for the preparation of another extremely lengthy interim report will delay the certification of my client.
I was amazed, however, by the suggestion that the Respondent should be permitted to bring witnesses other than the remaining members of the bargaining unit to testify on its behalf. Not only, as I pointed out earlier, was this never requested at any time prior to the issuance of the interim report but it is clear that there is only one reason to re-open Mr. Belanger's evidence and that is to have him specifically refute each fact as found by the Board after consideration of the evidence overall. Prior to the Board having written its decision, Mr. Belanger simply gave evidence like everyone else in responding to questions posed to him. Now that the Board has considered the matter and the employer has had a chance to see the areas of weakness in its case, it is asking for this extraordinary opportunity to buttress its case.
What Mr. Cote is suggesting amounts to nothing more than a move to reconsider the Board's decision on the basis of evidence that was all available at the time the initial hearing took place. In view of the pro forma request by Mr. White to hear from more members of the bargaining unit I wholly committed our case before the Board. My argument was based on the evidence as it had been presented. So was Mr. White's. Now Mr. Cote in this unprecedented move is seeking to be in a position to "correct" the findings of fact that were made by the Board. This is not only contrary to the Board's practice if this were an application for reconsideration but would also be grossly unfair to my clients in their attempt to present their arguments to the Board and have them adjudicated upon.
Yours sincerely,
"Catherine H. MacLean"
cc: Gilles LeBlane
cc: Denis Desautels
cc: R. Cote
- The Board's decision of September 6, 1985 did not invite submissions as to the correctness of the findings of fact and law contained in that decision. In the Board's view, several of the respondent's representations address matters which can only be raised in a request for reconsideration. And, of course, any such reconsideration request would be considered in accordance with the Board's usual practice with respect to such requests. That is, as stated in K-Mart Canada Limited (Peterborough), 11981] OLRB Rep. Feb. 185 at ¶4:
To avoid abuse of the reconsideration provision and bring some finality to its adjudicated decisions the Board has adopted principles not unlike those of the courts. The Board will not normally accede to a request to reconsider unless the party requesting reconsideration intends to adduce new evidence which was not previously available to them by the exercise of due diligence, and then only where such additional evidence, if proved, would be likely to make a substantial difference to the outcome of the case. Reconsideration is therefore generally restricted to allowing a party to adduce evidence or make representations which it did not have a previous opportunity to raise. The Board may also consider such factors as the motives for the request for reconsideration in light of a party's conduct, and the resulting prejudice to another party if the case is reopened. (See, generally, International Nickel Company of Canada, 63 CLLC 16,284; The Detroit River Construction Limited, 63 CLLC 16,260; National Steel Car Corporation Limited, [19661 OLRB Rep. Apr. 55; Canadian Union of General Employees, [1975] OLRB Rep. Apr. 320; York University, [1976] OLRB Rep. Apr. 187 affirmed, sub. nom. Jordan v. Ontario Labour Relations Board, York University Faculty Association, York University, 78 CLLC 14,132, (Ont. Div. Ct.).)
What the Board was requesting were submissions as to why the sixteen remaining drivers should be examined, as to why the ten already examined should not be considered representative of the twenty-six drivers. Those further examinations cannot be used as an opportunity for the respondent (who is seeking those examinations) to split its case or repair deficiencies with respect to the ten examinations already conducted or to reopen its examination of the witnesses already heard. The respondent called Belanger during the initial examinations and was afforded full opportunity to question that witness and Belanger's evidence was fully completed at that time. Thus, the Board is not prepared to permit the respondent to recall Belanger, even if further examinations should be directed.
In the Board's view, the proper scope for any examinations of the remaining sixteen drivers would be to establish that the ten drivers already examined are not fully representative of the drivers in the bargaining unit for which the applicant seeks certification. The Board is prepared to permit the respondent the opportunity to detail for each individual all the facts which it wishes to prove in respect of each of the remaining drivers which the respondent wishes to have examined but only insofar as those facts are different from the circumstances of the ten drivers already examined. To give but one example, facts concerning the financial arrangements between any of the sixteen drivers and the respondent cannot be detailed if such arrangements do not differ from the financial arrangements between the ten drivers already examined and the respondent. In the Board's view, this direction permits the respondent to assert facts unique to any or all of the sixteen drivers but precludes further examinations as a substitute for reconsideration or as a vehicle for relitigating matters already heard and determined by the Board.
The Board hereby sets October 21, 1985 for receipt of the facts which the respondent intends to prove (as circumscribed by paragraph S above) together with complete representations as to why, even assuming those alleged facts were true, the Board should reach a different conclusion with respect to the status of any of the remaining sixteen drivers as dependent or independent contractors. A copy of the material filed with the Board pursuant to this direction shall be forwarded concurrently to counsel for the applicant. The applicant shall have a further period of two weeks to respond to that material, including any agreement on fact, again with a copy to counsel for the respondent.
If the Board directs that further examinations should be conducted with respect to any or all of the sixteen drivers, the respondent will be confined to eliciting those facts alleged in the material submitted.
This matter is hereby referred to the Registrar.