Ontario Labour Relations Board

[1985] OLRB Rep. December 1693

2973-84-R Local 47 Sheet Metal Workers' International Association, Applicant, v. Babco Plumbing Services Limited, Babco Heating and Air Conditioning Division, Respondent

BEFORE: N. B. Satteijield, Vice-Chairman, and Board Members J. Wilson and H. Kobryn.

APPEARANCES: B. Fishbein and R. Belleville for the applicant; Jacques A. Emond for the respondent.

DECISION OF THE BOARD; December 18, 1985

1. The name of the respondent is amended to read: "Babco Plumbing Services Limited, Babco Heating and Air Conditioning Division".

2. This is an application for certification made pursuant to the construction industry provisions of the Labour Relations Act.

3. The Board finds that the applicant is a trade union within the meaning of section l(l)(p) of the Labour Relations Act and is an affiliated bargaining agent of a designated employee bargaining agency. Pursuant to the designation issued by the Minister under section 139(1) of the Act on April 12, 1978, the designated employee bargaining agency is the Sheet Metal Workers' International Association and The Ontario Sheet Metal Workers' Conference consisting of Locals 30, 47, 235, 392, 397, 473, 504, 537, 539, 562 and 629 of the Sheet Metal Workers' International Association.

4. The Board further finds that this is an application for certification within the meaning of section 119 of the Labour Relations Act and is an application made pursuant to section 144(1) of the Act which provides that:

An application for certification as bargaining agent which relates to the industrial, commercial and institutional sector of the construction industry referred to in clause 1 17(e)shall be brought by either,

(a) an employee bargaining agency; or

(b) one or more affiliated bargaining agents of the employee bargaining agency,

on behalf of all affiliated bargaining agents of the employee bargaining agency and the unit of employees shall include all employees who would be bound by a provincial agreement together with all other employees in at least one appropriate geographic area unless bargaining rights for such geographic area have already been acquired under subsection 3 or by voluntary recognition.

5. Having regard to the agreement of the parties, the Board further finds pursuant to section 144(1) of the Act that all journeymen sheet metal workers and registered sheet metal apprentices in the employ of the respondent in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario and all journeymen sheet metal workers and registered sheet metal apprentices in the employ of the respondent in all other sectors in the Regional Municipality of Ottawa-Carleton, and the United Counties of Prescott and Russell, save and except non-working foremen and persons above the rank of non-working foreman, constitute a unit of employees of the respondent appropriate for collective bargaining.

6. The parties were in dispute as to which employees were at work in the bargaining unit on the date of making of the application. Therefore, the Board authorized a Board Officer to inquire into and report to the Board on the list of employees filed by the respondent. The Board Officer conducted the inquiry and a copy of his report was sent to the parties. The Board subsequently listed the application for hearing in order to receive the submissions of the parties as to the conclusions the Board should reach based on the evidence in the Officer's report. The parties were in agreement at the conclusion of the Officer's inquiry that there was one employee, Andre Maillet, at work in the bargaining unit described above on the date of the application. They were in dispute whether two other persons, Roger Guitar and Georges Parent, were also at work on that date and were employees of the respondent. The respondent contended that they were not at work and that they were not employees of the respondent, rather they were independent contractors. The applicant took the contrary position on both points. By the time the matter came before the Board for hearing, respondent counsel acknowledged that the respondent had been unable to disprove that Guitar and Parent had performed work for the respondent on the date of the application.

7. They performed two jobs for the respondent over a period of four days. The first job was in Vanier and involved work on an underground heating system for a swimming pool. They completed their work in one day. The other job was referred to as the Kent Street job. It involved the installation of sheet metal ducting for a heating installation in a house which was being converted to an office and residence. That job was performed during the remaining three days, although there were times when Parent was not on the job. Both jobs involved labour only. All materials were supplied by the respondent.

8. Applicant counsel argues that, when the fourfold test enunciated in R. v. The City of Montreal and Montreal Locomotive Works Limited, (1947) 1946 CanLII 353 (UK JCPC), 1 D.L.R. 161, is applied to the facts derived from the evidence in this case, it establishes Guitar and Parent as employees of the respondent and not independent contractors. Furthermore, the facts respecting the relationship between the respondent, Guitar and Parent, make this case indistinguishable from the Board's decisions in Baron Dry Wall Ltd., 65 CLLC 16,029; Deane & Warren Limited, [19701 OLRB Rep. Nov. 816; Mo-Mek Systems Ltd., [1974] OLRB Rep. Oct. 642; and, Mr. Seamless Eavestroughing Thunder Bay Limited, [1974] OLRB Rep. Dec. 875. In all four cases, the Board applied the fourfold test and found the persons at issue to be employees and not independent contractors. The method of payment in evidence in all four cases was for an amount of money per unit of work. For example, in Baron, it was a rate per 1000 square feet; in Deane and Mo-Mek, it was a predetermined price per unit installed; and in Mr. Seamless, it was a predetermined price per 1000 square feet. In all four cases, the Board found that the method of payment to be a piecework form of incentive rate. It also found that these prices were not prices on which the persons performing the work had a chance of making a profit or took a risk of making a loss, in the sense of those two factors of the fourfold test. To put it another way, the Board found that the persons at issue were piece workers and not independent contractors.

9. Counsel for the respondent contends that the instant case is readily distinguishable from the four decisions on which applicant counsel relies, particularly when the conditions under which Guitar and Parent were engaged to perform work for the respondent are compared with the conditions under which Maillet, an acknowledged employee, is engaged. He has scheduled hours of work, including specific starting and quitting times; reports to the shop instead of the job and uses the respondent's vehicles for transportation to job sites; uses the respondent's equipment and tools~ other than the tools which a sheet metal worker traditionally supplies himself; is paid at an hourly wage for work performed and receives overtime when he works beyond his normal quitting time; all of the normal deductions for income tax, unemployment insurance and Canada Pension Plan are made from his pay by the respondent; and, there is a history of an on-going employment relationship between him and the respondent. By contrast~ Guitar and Parent were engaged on vastly different terms. The price per job of work was negotiated between Parent and the respondent. They were paid for the work by single cheque issued to Parent for the sum of the agreed prices. The only deduction from the payment was for a Workers' Compensation assessment, they supplied their own tools and were responsible for their own transportation directly to the job. Guitar and Parent have a history of working together, receiving payment in the form of a single cheque issued to one or the other of them and splitting the payment on a previously agreed share. Parent, who is a journeymen sheet metal worker usually receiving a larger share than Guitar, who is an apprentice. When the prices were negotiated for the jobs, Parent said he would have refused them had they been unsatisfactory.

10. The Board does not find that contrasting the terms under which Maillet has been engaged with those under which Guitar and Parent were engaged to perform work for the respondent to be probative of an independent contractor relationship between the respondent and Guitar and Parent. The fact that they were paid on a different basis than Maillet, chose their own hours of work and had no scheduled starting and quitting time may simply be a reflection of the different kind of working conditions which may exist when they are not determined by collective bargaining. The refusing of an unsatisfactory price is no different than the refusing of an unsatisfactory wage. The fact that Guitar and Parent only worked for the respondent for four days is not unusual in the construction industry and is of no assistance in deciding whether the work relationship is one of an employer/employee relationship or an independent contractor relationship. There is no difference in the kind of tools which the three persons supply, they are the hand tools common to a sheet metal worker. While Maillet drives the respondent's truck instead of his own vehicle to go from the shop to job sites, the respondent performs jobs on a supply and install basis, so it may be inferred that a truck is needed to carry supplies and materials to the job sites. Whereas Guitar and Parent were supplying labour only and Parent's truck was used simply for their personal transportation to the jobs. There is no conclusive evidence that Maillet always reports to the shop instead of going directly to the job. Some of these differences might be confirmatory of an independent contractor relationship when other factors do not point conclusively in one direction or another, but the Board does not find them conclusive of the existence of an independent contractor relationship between the respondent and Guitar and Parent.

11. Respondent counsel emphasized also the fact that the price for the two jobs performed by Guitar and Parent had not been predetermined by the respondent, as was the situation in the four cases on which applicant counsel is relying. Rather, they were negotiated with Parent who testified that, had he not liked the prices, he simply would have walked away from the jobs. The agreed price for the Vanier job was a lump sum amount. The Kent Street job ended up being paid as a lump sum amount, but Guitar and Parent began the job on the basis of a unit price of $7.00 per run of ducting and $5.00 per fitting. Part way through the job, Parent ran into a problem with some joists in the way of the runs. He and Guitar did not have to remove the joists because the respondent arranged for a carpenter who was on the job to do that. By then, however, Parent knew that there was more work to the job than he had calculated and asked for a higher price. As a result, the respondent agreed to pay a little more than what the price per run and fitting would yield. When the job was finished, the respondent paid a lump sum greater than what would have been yielded under the original terms. Guitar and Parent also ran into a problem on the Vanier job. They encountered an obstruction which they and the respondent had not foreseen. In order to help them out, the respondent loaned them a shovel and a set of cutting torches in order to remove the obstacle.

12. Even if the Board were to agree with respondent counsel that Parent had negotiated a single price for each job, it could not be construed on the facts herein as being a fixed price typical of a true sub-contracting relationship. Nor could it be construed as a price on which there was a chance of profit, or to be more to the point, a risk of loss. The more usual arrangement in a sub-contracting relationship is for the sub-contractor to agree to do a job for a specific price, whether or not the price is arrived at as a result of competitive bidding. After the price has been set, if the sub-contractor is asked to do extra work, a specific price is usually negotiated for the extras. The evidence is clear in this case that it was not extra work which Guitar and Parent were asked to do. On the Vanier job, they encountered an unforeseen obstruction. On the Kent job, it was Parent's own evidence that he had misjudged the amount of work to be done. Normally when a sub-contractor encounters these kinds of circumstances, he is responsible for dealing with them at his own cost. That did not happen here. The respondent supplied Guitar and Parent with the tools needed to help them out of their dilemma on the Vanier job. On the Kent job, Parent asked for a higher payment and received it. There is no "risk of loss" in those kinds of arrangements. Therefore, even if the Board were to find that the manner in which the price was set for the jobs herein was different than the fact situations in the four cases cited by applicant counsel, the difference would still not establish Guitar and Parent as risk takers in the profit and loss sense of the fourfold test.

13. The fact that Guitar and Parent were paid by a single cheque issued to Parent is not determinative of an arms length, contractor/sub-contractor relationship between the respondent and Parent. While the evidence supports a conclusion that the respondent thought it was only dealing with Parent, there is no evidence to support a conclusion that Guitar's relationship with the respondent was any different than that of Parent, except for the fact that payment was made to Parent. Parent and Guitar have worked as a team before, although not for the respondent, and some times they are paid by cheque issued to Parent and other times by cheque issued to Guitar. There is no evidence that one is the employer of the other, rather the evidence points more to the fact that they work as a journeyman and apprentice team. The respondent was aware of Guitar's presence and in fact testified that he thought Guitar was Parent's employee. There is no evidence, however, that they are in an employer/employee relationship. To the contrary the evidence supports the conclusion that they work as a team whenever either one of them can find jobs for them to do, either as extra work when they are employed at an hourly wage by a contractor, or as a substitute for that kind of employment. Consequently, the Board is satisfied that when the respondent entered into an arrangement with Parent to perform the Vanier and Kent Street jobs, it was in fact entering into an arrangement with both Parent and Guitar to do that work.

14. In the result, the Board finds very little on which to distinguish the instant case from the Board's decisions in Baron Dry Wall; Deane & Warren; Mo-Mek Systems and Mr. Seamless Eavestroughing, supra. For the same reasons given by the Board in those decisions, the Board finds that Roger Guitar and Georges Parent are employees of the respondent who were paid on a piecework basis for the work which they performed for the respondent at the times material to this application.

15. The Board finds, therefore, 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 February 14, 1985, the terminal date fixed for this application and the date which the Board determines, under section 103(2)6) of the Labour Relations Act, to be the time for the purpose of ascertaining membership under section 7(1) of the said Act.

16. Section 144(2) of the Act, which states in part as follows, provides for the issuance of more than one certificate if the applicant has the requisite membership support:

the Board shall certify the trade unions as the bargaining agent of the employees in the bargaining unit and in so doing shall issue a certificate confined to the industrial, commercial and institutional sector and issue another certificate in relation to all other sectors in the appropriate geographic area or areas.

(emphasis added)

17. Therefore, pursuant to section 144(2) of the Act, a certificate will issue to the applicant affiliated bargaining agent on its own behalf and on behalf of all other affiliated bargaining agents of the employee bargaining agency named in paragraph 3 above in respect of all journeymen sheet metal workers and registered sheet metal apprentices in the employ of the respondent in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario, save and except non-working foremen and persons above the rank of non-working foreman.

18. Further, pursuant to section 144(2) of the Act, a certificate will issue to the applicant trade union in respect of all journeymen sheet metal workers and registered sheet metal apprentices in the employ of the respondent in the Regional Municipality of Ottawa-Carleton, and the United Counties of Prescott and Russell, excluding the industrial, commercial and institutional sector, save and except non-working foremen and persons above the rank of non-working foreman.