[1986] OLRB Rep. February 189
1622-85-R Sheet Metal Workers' International Association, Local Union 47, Applicant, v. Bell Air Conditioning Inc., Respondent
BEFORE: Thomas S. Kuttner, Vice-Chairman, and Board Members F. W. Murray and H. Kobryn.
APPEARANCES: David Jewitt, Karen Cl4ford and Bob BellevilIe for the applicant; Lynda J. Townsend, Jan Woodend and Daryl Hayes for the respondent.
DECISION OF THE BOARD; February 25, 1986
The name of the applicant herein is amended to read: "Sheet Metal Workers International Association, Local Union 47"; that of the respondent is amended to read: "Bell Air Conditioning mc".
The Board finds that the applicant is a trade union within the meaning of section l(l)(p) of the Labour Relations Act, and further that, within the meaning of section 137(1)(a), it is an affiliated bargaining agent of an employee bargaining agency designated under section 139(1) of the Act, namely, 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.
This is an application for certification made pursuant to the construction industry provisions of the Act and brought by the applicant in accordance with section 144(1). The Board appointed a Labour Relations Officer to inquire into and report to the Board on the composition of the bargaining unit and the list of employees with respect to which this application was brought. As a result of discussions with the Labour Relations Officer, the parties are agreed that the bargaining-unit description should be that normally found appropriate by the Board for the sheet metal trade. Accordingly, the Board finds 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 Board area 15, 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.
The parties are also agreed that the list of persons to be considered for purposes of the count should be limited to the two on whose behalf membership evidence was tendered in support of this application. The respondent however disputes the status of these individuals as employees and asserts that their relationship to the respondent was that of independent contractors. Accordingly, inasmuch as there were no persons in its employ and present at work on the date of the making of this application, the respondent submits that this application should be dismissed.
Daryl Hayes, Director of Marketing for the respondent, testified as to the nature of the respondent's business and as to the circumstances surrounding this application. The principal business of the respondent consists of the servicing and maintenance of heating, air-conditioning and refrigeration units in the general industrial sector. Out of a staff of thirteen, the respondent employs seven refrigeration and air-conditioning technicians on a permanent basis. Three of these are registered and have been in the employ of the respondent for a period of more than 5 years; four have been in the employ of the respondent for a period of less than one year and are currently completing the apprenticeship program for registration as refrigeration and air-conditioning technicians. The respondent does not employ as part of its permanent staff any journeymen sheet metal workers or registered sheet metal apprentices.
The respondent also engages to some degree in the installation of air-conditioning and refrigeration equipment in the construction industry. Such installation may require the performance of sheet metal work. It has been the practice of the company to have such work performed by its refrigeration and air-conditioning technicians. Mr. Hayes estimated that on an average, 25 hours of sheet metal work must be performed each month out of a total number of 1150 hours worked by the staff.
In September 1985 the respondent successfully bid on a contract calling for the installation of variable air volume boxes (VAVs) at the premises of two commercial tenants carrying on business at the St. Laurent Shopping Centre situated in Ottawa. These boxes regulate the amount of air flowing through a forced air system to a specific location serviced thereby. This contract was tendered in conjunction with a construction expansion project being carried on at the St. Laurent Shopping Centre and it called for the performance of sheet metal work. The parties are not in dispute that in the performance of this work the respondent was engaged in the construction industry within the meaning of section l(l)(f) of the Act.
Work on the project commenced in late September, with the installation of the VAVs being performed by two of the respondent's technicians. Approximately half of the work had been completed when, on September 29th, the site supervisor of the St. Laurent Shopping Centre project made representations to the respondent with respect to the performance of the work by its own technicians. Evidence as to the exact nature of those representations was not forthcoming, but the gist was that only unionized contractors could be on site, and further that, if work were to continue, it could be performed by qualified sheet metal workers who were members of the applicant. As a result of these representations, the respondent determined to pull its technicians from the job and to replace them with sheet metal workers referred to the respondent through the hiring hall of the applicant.
It is to be recalled that by virtue of regulation 57 of R.R.O. 1980 under the Apprenticeship and Tradesmen's Qualification Act, R.S.O. 1980, c. 24, the trade of sheet metal worker is one which has been designated as a certified trade for the purposes of that Act. Accordingly, by virtue of the provisions of section 11 of the Act, no person shall work or be employed in the sheet metal trade unless he holds either a subsisting certificate of qualification or one of apprenticeship in the trade, or has satisfied the Director that he otherwise meets the requirements of the Act to work in the trade. See Irvcon Roofing and Sheet Metal (Pembroke) Ltd., [19811 OLRB Rep. Nov. 1594 and Mechanical Installations Roofing and Siding Ltd., [1985] OLRB Rep. Apr. 549. Of the respondent's technician work force, none is in possession of the requisite certificates; members of the applicant hold either a journeyman's certificate of qualification or one of apprenticeship.
Following telephone discussions between representatives of the applicant and of the respondent, two members of the respondent, Paul Tessier and Vincent Patry, one of whom was a qualified journeyman sheet metal worker and the other a registered sheet metal apprentice, were referred to the respondent for employment. These two individuals completed the installation of the VAVs at the St. Laurent Shopping Centre on September 30th to October 1st. The two were not processed by the respondent's personnel office as would be the ordinary employee engaged on its permanent staff. There was no pre-job interview, no discussion of terms and conditions of work, no review and transmittal of the respondent's employee handbook, indeed no personnel file opened whatsoever. Rather, the two members of the applicant presented the respondent's payroll officer with a table of applicable wage rates and authorized deductions and contributions, which had been excerpted from the current province-wide collective agreement governing between Ontario Sheet Metal and Air Handling Group AND Sheet Metal Workers' International Association and Ontario Sheet Metal Workers' Conference and advised that they were to be paid in accordance therewith. Payment at this rate rather than at the rate which the respondent set for its technicians had been agreed to between the representatives of the respondent and the applicant during their initial discussions. In addition, the respondent made the deductions and contributions required by the terms of the agreement. The employees themselves worked with their own tools, and although the work was performed without direct supervision by the respondent, there was at all times a representative of the respondent at the project in the capacity of supervisor to ensure that the contract was completed per the specifications. In point of fact the work was completed to the satisfaction of the respondent within two days.
On the basis of that evidence, counsel for the respondent argues that the two members of the applicant performing the sheet metal work in the installations at the VAVs in the St. Laurent Shopping Centre were engaged not as employees but as independent contractors. She stressed the transitory nature of their relationship to the respondent; that they were placed at the respondent's project by the applicant acting as a 'broker' or 'agent'; that the respondent did not participate in a formal sense in their selection, hiring or termination, nor did it set their wage rates or other terms and conditions of work; that they worked with their own tools, independently and not under direct supervision and control. Reference was made to the Algonquin Tavern case, [1981] OLRB Rep. Aug. 1057 and to the Board's extensive review there of the jurisprudence on the distinction between the status of an employee and that of an independent contractor. Counsel argued that by any of the traditional tests applied - that of 'control', the 'four-fold test', the 'integration test', or the 'statutory purpose test' - the two sheet metal workers who performed the work in question could only be classified as independent contractors. Their relationship with the respondent was not one of employment. Nor could it be asserted that these were dependent contractors within the meaning of the Act, for their relationship with the respondent was much too transitory to found that degree of economic dependence inherent in the concept of the dependent contractor articulated by the Board in Craftwood Construction Company Limited, [19801 OLRB Rep. Nov. 1613. Finally, it was submitted that even if the Board were to find an employment relationship, it would nevertheless be inappropriate to grant this application inasmuch as the respondent is involved in only a transitory and fleeting manner in construction work of this nature, which is ancillary to its principal servicing and maintenance business.
For the applicant it was argued that the extent to which the respondent may engage in construction work requiring the skills of a qualified sheet metal worker is irrelevant to the question of whether the applicant is entitled to the bargaining rights which it seeks here. The fact of the matter is that at the time in question the respondent was engaged in construction work requiring such skills and determined to employ members of the applicant to perform the work in question admittedly after representations were made to it by the on-site construction supervisor. The referral of the two members of the applicant through its hiring hall to meet the requirements of the respondent for this project reflects the normal practice of the construction industry, and within the context of that industry the relationship between the two members of the applicant and the respondent could only be termed as one of employment.
As indicated in the brief oral decision given at the conclusion of the hearing herein, the Board is of the view that this application must be granted. Interesting as the analogy may be between the booking of burlesque dancers through agents to perform at various establishments in the hotel industry, and the referral by a craft trade union of its members to exercise their skills on behalf of employers in the construction industry, the Board finds the conclusions reached in the Algonquin Tavern case, supra, as to the status of the burlesque dancers there under consideration as independent contractors of no application to the situation here before it. This is a case arising in the construction industry in which the referral to employment of members of a craft trade union to meet the particular requirements of a specialty contractor carrying on business within the industry is characteristic. The cyclical and seasonal nature of the industry combined with the changing needs and requirements for different skills at any particular job site militate against the long-term stable employment relationship found in the industrial sector.
Rather, one finds an extremely mobile work force and a series of employment relationships of greater or lesser duration, some of which, as here, may be of a transitory nature. This is so because the skilled tradesman is only engaged by various specialty contractors to meet the particular manpower requirements of the moment. The labour force of the individual contractor expands and contracts in proportion to the degree to which the contractor has been successful in bidding for the limited work available. The long-term stability which one finds elsewhere in the employment relationship is found in the construction industry in the relationship between the skilled tradesman and his craft trade union. Among its varied activities, the craft trade union fulfills a personnel function for the contractors in any particular sector of the industry, by referring to them for employment, through the hiring hall, sufficient skilled tradesmen to meet their particular manpower requirements. The Board has little difficulty in concluding that in this case, as is common throughout the construction industry, skilled tradesmen were referred to the respondent for employment, and were in fact engaged as employees to perform the sheet metal work required at the St. Laurent Shopping Centre project.
Does the fact that the respondent agreed with the applicant, to engage two of its members as employees onterms and conditions of employment identical to those obtaining under the applicable collective agreement in the sheet metal trade, have an impact on the outcome of this case? The Board finds that this is a case in which the general principles first adumbrated in Nicholls-Radtke, [1982] OLRB Rep. July 1028, and further developed in JenRy Utility Contracting Company Limited, [19851 OLRB Rep. Aug. 1243 are applicable. In Nicholls-Radtke, the Board found that the requirement imposed by a trade union upon an employer, that it enter into a collective agreement voluntarily recognizing it as a condition precedent to the supplying by the trade union of men to the employer for work, did not attract the application of section 13 of the Act. In Jen-Ry, the Board held that the selection by an employer of a particular trade union to supply it with men as required for employment and the deduction of dues from those employees authorizing such deduction prior to the entry into a collective agreement or other agreement of voluntary recognition likewise did not attract the application of that provision of the Act.
Here, the issue of employer support and possible violation of section 13 of the Act has not been raised. Indeed, it is the position of the respondent that it is, and has continuously been, opposed to the obtaining of members of its work force through the auspices of the applicant, and that it was obliged to do so only by force of circumstances. The relevance of Nicholls-Radtke and Jen-Ry to these circumstances lies in the extent to which both show that the 'selection' by an employer of a particular trade union as the source of supply for its manpower requirements, is a common and accepted feature in the construction industry. Such selection does not negate the validity of subsequent bargaining rights otherwise properly obtained. As noted earlier, almost no evidence was led with respect to the circumstances surrounding the determination by the respondent that it would turn to the applicant as a source of manpower. What little evidence there was, was directed solely to the issue of the employment status of the members of the applicant referred to the respondent, which is dealt with above. There is no evidence whatsoever that either the site supervisor at the project or any other person acting on behalf of the applicant engaged in any activity prohibited by the Act in making representations to the respondent that members of the applicant could be obtained in order to perform the work in question. Had there been evidence of such conduct, it may well have vitiated application of the principles articulated in Nicholls-Radtke and Jen-Ry.
At the time that that project supervisor made his representations to the respondent, it had several courses of action open to it. It could have ignored the representations and proceeded to continue with the performance of its contract using its technician work force, although at the risk of some action being taken against it by parties adverse in interest. It could have heeded them and arranged for the subcontracting of the work in question to a unionized sheet metal contractor. Or, alternatively, it could have acted as it did here. The Board is satisfied here, in light of all of the evidence before it, that the respondent, for its own commercial reasons, determined to continue its participation in the construction project at the St. Laurent Shopping Centre by engaging members of the applicant as employees to perform the work in question. It is with respect to those employees that this application for certification is now brought.
As to the further submissions made on its behalf, it may well be, that the principal business of the respondent is not in the construction industry at all but rather in the industrial sector engaged in the servicing and maintenance of refrigeration, air-conditioning and heating equipment. Nevertheless on the day and at the time in question the respondent was operating a business in the construction industry within the meaning of section 117(c) of the Act and as such was an employer with respect to which the construction industry provisions of the Act apply. See Windsor Board of Education [1983] OLRB Rep. May 831. The fact that the respondent simultaneously carries on business outside of the construction industry cannot affect this application, and likewise, this application cannot have an effect on the business of the respondent to the extent that it falls outside of the construction industry. This indeed is the answer to the concerns raised by the respondent as to the economic consequences which the grant of this certificate would have upon its business. Its concerns have no foundation, presuming of course that it maintains its current profile of heavy involvement in the industrial sector and minimal involvement in that of construction. The Board hastens to note that however real those concerns might be, they cannot have an effect upon the question of whether or not a certificate is to issue.
At paragraph 3, the Board has already found the bargaining unit sought by agreement of the parties to be a bargaining unit appropriate for collective bargaining. On the basis of all of the material before it, the Board is satisfied that more than fifty-five per cent of the employees of the respondent who were in the bargaining unit at the time the application was made, were members of the applicant on October 11, 1985, 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 Act.
In accordance with the provisions of section 144(2) 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 2 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. Further, in accordance with the same provisions 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 construction industry 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.