[1987] OLRB Rep. February 220
3106-85-R International Brotherhood of Painters and Allied Trades - Local Union 1891, Applicant, v. Gilvesy Enterprises Inc., Respondent
BEFORE: G. T. Surdykowski, Vice-Chairman and Board Members W. H. Wightman and R. R. Montague.
APPEARANCES: Murray Gold for the applicant; Mary Ellen Cummings and Oscar Leguin for the respondent.
DECISION OF THE BOARD; January 30, 1987
- The name of the respondent is amended to read: "Gilvesy Enterprises Inc.,".
2, In this application for certification, the applicant seeks to represent a bargaining unit of painters and painters' apprentices employed by the respondent in the industrial, commercial, and institutional sector of the construction industry in the Province of Ontario and in all other sectors in the Counties of Oxford, Perth, Huron, Middlesex, Bruce, and Elgin (that is, Board Area 3), excluding the industrial, commercial, and institutional sector save and except non-working foremen, and persons above the rank of non-working foreman, together with a clarity note specifying that "all painters" in the bargaining unit includes drywall tapers. The respondent asserts that "drywall tapers" should be substituted for "painters and painters' apprentices" in the description (which would eliminate the need for a clarity note).
3, This is an application for certification within the meaning of section 119 of the Labour Relations Act and is made pursuant to section 144(1) of the Act.
On the basis of the information before the Board, we find 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 March 29, 1978, the designated employee bargaining agency is the International Brotherhood of Painters and Allied Trades and the Ontario Council of the International Brotherhood of Painters and Allied Trades.
The respondent filed two replies, the second amending the first, and a list of employees as required by the Board's Rules of Procedure.
The respondent's list as filed contains the names of three employees on Schedule "A". The applicant disputed the correctness of this list and accordingly a Labour Relations Officer was appointed to inquire into and report to the Board with respect to the list and composition of the bargaining unit in order to permit the Board to determine the relationship between the respondent and the persons alleged by either party to be in the bargaining unit. The Officer convened meetings between the parties on April 24, June 10, and June 25,1986. At the applicant's request, the Board heard the representations of the parties with respect to the Officer's report on November 24, 1986.
There are five persons whose relationship to the respondent and inclusion in the bargaining unit is in dispute between the parties. The applicant seeks to have Adrian Spada and Vincenzo Trivisano added to the list. The respondent asserts that these two individuals were independent contractors, not employees. In addition, the applicant seeks to have the individuals identified as Angelo Brum, Larry Poulin and Cecil Simmons deleted from the list on the basis that they were net employees of the respondent or, alternatively, that they do not fall within the bargaining unit applied for. The respondent takes the contrary position.
On the evidence contained in the report of the Labour Relations Officer, it is clear that tIle respondent had the same relationship with both Mr. Trivisano and Mr. Spada. Both men were ei~iployed by Central Drywall, a subcontractor of the respondent on a job site at the Oxford Cpunty Board of Health Building in Woodstock, until that company went into bankruptcy in early March, 1986. Both men remained on the job site after Central Drywall had ceased operating at the request of the respondent which did not then have a sufficient number of employees on the job site t9 complete the work itself. The evidence of its president, Mr. Legein, who did not attend at the job site at any material time, was that the respondent intended to secure the services of Messrs. Trivisano and Spada as independent subcontractors, not employees, and that to that end it obtained no T-1 income tax information forms from them, paid them out of the company's general ledger (as opposed to payroll) account without any of the usual employee deductions or payments and does not intend to issue any T-4 statements of employment earnings for income tax purposes.
However, neither Trivisano nor Spada, nor anyone on their behalf, agreed to continue with the work they had previously done as employees as independent subcontractors. Indeed, the matter was never discussed, directly or indirectly. The only matters that were discussed and agreed to were that the two men would continue to do the same work that they had done as employees of Central Drywall and that they would do so in return for the same "remuneration" as before. From the perspective of Messrs. Trivisano and Spada, neither of whom ever worked as anything other than an employee prior to this, everything continued as before~ except that, beginning March 3, 1986, they were employed by the respondent.
- In a subcontract arrangement one would expect to find some stipulation with respect to the supply of materials, the period within which the work subcontracted for is to be completed, and the amount to be paid for the completed work. In this case, there were none of those things. Instead, Trivisano and Spada were engaged to complete the work they had been doing for the same remuneration as before, namely $17.41 plus $2.50 in "benefits" and 10% vacation pay for each hour worked. There seems to have been little actual bargaining in fixing this hourly rate which was established in discussions between the respondent's project superintendent and, interestingly, a business agent of the applicant and which represents the "union rate" for the job. In this case, the absence of real bargaining resulted from the lack of alternatives available to the respondent. In any event, there was no "chance of profit" or "risk of loss" to either Trivisano or Spada in the commercial sense of those phrases. Further, there is no cogent evidence to suggest that the respondent's power over Trivisano and Spada was in any way limited. On the contrary, the evidence disclosed that the respondent exercised a significant measure of general control over the two men. Trivisano and Spada worked the same regular hours as Gilvesy employees on the job site and the respondent expected and received continuous and uninterrupted production from them. The hours worked and payments due to them were recorded by the respondent's project superintendent on "invoices" which are headed "Gilvesy Construction Limited". Blank "invoices" were presented to Trivisano and Spada and they filled in their name, designation "drywall taper", sometimes their social insurance number, signed the document and returned it to the superintendent who filled in the balance of the information. Further, what work was to be done by Messrs. Trivisano and Spada was directed in a general way by the respondent although, as one would expect with experienced tradesmen, there was little direct supervision of the actual work performed by them. In addition, unlike true independent contractors, Trivisano and Spada were not free to hire another person to do the work they were allegedly "subcontracted" to do as indicated by the evidence of Mr. Leguin who, when asked if they could have done so, replied in the negative as follows:
Not really, because they were subcontracted to do the work. They could have suggested names, and we may have subcontracted with these other people.
Trivisano and Spada do own the hand tools they use to do drywall taping. However, these are minor in nature and the evidence suggests that most drywall tapers own such tools whether they are employees or not. On the other hand, and unlike the situation with subcontractor Central Drywall, other equipment, such as scaffolding and ladders, was supplied by the respondent and though the actual source of the materials that they used is obscure, this too was obtained from the respondent as opposed to being supplied by Trivisano or Spada. Finally, the unilateral termination of Trivisano and Spada by the respondent when there was still drywall taping work to be done is inconsistent with an independent subcontract relationship and indicates the degree of power wielded over them by the company.
It was also suggested that because Trivisano and Spada knew what the arrangements were and that the respondent considered them to be independent contractors, the applicant is precluded from suggesting that they were not in this proceedings. The applicant was, in law, a stranger to the relationship between the two men and the respondent and is neither estopped nor otherwise precluded from raising the issue. In any case, the uncontradicted evidence of both Messrs. Trivisano and Spada is that each of them raised the matter with the respondent's superintendent. We are satisfied from the evidence that neither man indicated any acceptance of the respondent's characterization sufficient to ground an estoppel or other like doctrine even if it would otherwise apply.
In determining whether a person is an employee or an independent contractor for labour relations purposes, the Board concerns itself with the substance of the working relationship and not its mere form or label. In assessing the true nature of the relationship, the Board applies the fourfold test set out in Montreal v. Montreal Locomotive Works Ltd. et al. f 1946 CanLII 353 (UK JCPC), 1947] 1 D.L.R. 161 (a~ 169) in the context of the overall organization of the operation in question, the organization test being one that was applied in Meyer v. J. P. Conrad Lavigne Ltd. (1980), 1979 CanLII 2088 (ON CA), 27 O.R. (2d) 129 (Ont. C.A.) at page 132-133 (see also Brantwood Manor Nursing Homes Limited [1986] OLRB Rep. Jan. 9; Babco Plumbing Services Limited, [1985] OLRB Rep. Dec. 1693; K-Mart Canada Ltd., [1983] OLRB Rep. May 649 among others). In our view, an application of both the "fourfold" test and the organizational test to the circumstances of Messrs. Trivisano and Spada yields the same result and we are compelled to conclude that both men were employees of the respondent at all material times, including the application date, March 18, 1986. Consequently, both are properly included on the list of employees, regardless of which bargaining unit description is the correct one.
The evidence discloses that Larry Poulin was hired to do and did do drywall taping work at the Oxford County Board of Health job site for the ten days, up to and including March 18, 1986. During that time he did nothing but drywall taping work at a special hourly rate of $12.00 (bping $1.00 per hour more than a labourer's rate and $1.00 per hour less than a carpenter's rate for that job site). He had previously been employed by the respondent from October, 1979 to 1982 during which time he divided his time evenly between drywall work and labourers work.
Angelo Brum has been employed by the respondent since late May 1980. Over the years he has done a variety of jobs including form work, pouring concrete, finishing cement, carpentry, cleaning, general help, and drywall taping. On the date of application, Mr. Brum was working at a Bell Canada job site in London at the labourer's rate of $11.00 per hour. Although the evidence is less than clear, Mr. Brum's uncontradicted evidence is that the week in which this application was made was at the beginning of a two to three month period that he spent on that job. On the evidence before us, we are satisfied that, prior to and on March 18, 1986, Mr. Brum spent the majority of his time at the Bell Canada job site doing drywall taping work.
Cecil Simmons was hired by the respondent some eight or nine years ago. Prior to working on the Oxford County Board of Health job, he spent ninety to ninety-five percent of his time doing traditional labourer's work, such as stripping forms and digging holes, although he did do some drywall taping as well, usually on small jobs. On the Oxford County Board of Health job, however, on which he spent three to four weeks (including the date of application), he spent his time prior to and on the date of application doing drywall taping work. He was paid the labourer's rate of $11.00 per hour.
In applications for certification in the construction industry, a person must be at work on the date of application in order to be included in the bargaining unit for purposes of "the count" (see for example, Smiths Construction Company Arnprior Limited [1984] OLRB Rep. March 521). In addition, an individual must be doing bargaining unit work in order to be included in it. In the past, the Board has determined whether an employee is in the bargaining unit by looking at the work that an employee did during the majority of the time on the date of application (see for example O.J. Gaffney Limited., [19641 OLRB Rep. Aug. 233; McNamara Construction of Ontario Limited, [1964] OLRB Rep. Dec. 419; Nedan Forming Company Limited., 119651 OLRB Rep. May 100; Clairson Construction Company Limited, [1968] OLRB Rep. Apr. 126; Deer-Mine Services Limited, 119711 OLRB Rep. June 336; George and Asmussen Limited, [1971] OLRB Rep. Oct. 683). Even when an employee was doing the work of one classification or craft on the date of application but has previously been engaged in doing the work of several trades or crafts but at the same wage rate, the Board has long been willing to examine a representative period of time prior to the date of application to ascertain what work an individual spends the majority of his time doing and whether or not he/she is properly included in the bargaining unit. (See for example, Johnson-Keiwit Subway Corporation, [1966] OLRB Rep. June 182; Mal-Nicholson Limited, [1970] OLRB Rep. March 1448; Heath Construction Inc., [1977] OLRB Rep. Oct. 691; Watcon Inc., [1981] OLRB Rep. Dec. 1840; Des-Build Development Limited., [1983] OLRB Rep. Nov. 1793; Dufresne Piling Co. (1967) Ltd., [1984] OLRB Rep. July 924; Di Marco Plumbing & Heating Company Limited, [1985] OLRB Rep. May 659). It is evident from the decided cases that the "representative period" will vary in length according to the circumstances. For example, the Board has looked at periods of ten days (Heath Construction Inc., supra); fifteen days (J. M. Chartrand Realty Ltd., [1978] OLRB Rep. May 423), two weeks (Di Marco Plumbing & Heating, supra) and one month (Des-Build Developments Ltd., supra). It has also be suggested that the Board may look to the primary reason for which the employee was hired to determine his classification (Pre-Con Murray, 11965] OLRB Rep. Jan. 1003) although this test has only been applied in limited circumstances where the evidence of what the employee was doing prior to and on the date of application was inconclusive of the issue. (See, Des-Build Development Limited, supra and Dufresne Piling Co. (1967) Ltd., supra).
In summary, the previous decisions of the Board indicate that the Board has considered the following criteria in making its determinations:
(a) whether the person was employed by the respondent and at work on the date of application; and
(b) if so, the work that that person spent the majority of his/her time doing on the date of application; or
(c) where the person has previously been engaged in the work of more than one trade or craft and the work performed by him/her on the application date does not accurately reflect the work that he/she normally spends the majority of his/her time doing, the work done by the employee during an appropriate representative period prior to the date of application; or
(d) where there is no conclusive evidence with respect to the work in which an employee has been engaged, any other relevant factor, including the primary reason for hire.
The applicant's position is that none of Messrs. Poulin, Brum and Simmons should be included in the bargaining unit applied for because they were originally hired as labourers and that, notwithstanding the work that they may have performed on the date of application, they did not spend a majority of their time doing bargaining unit work.
It is clear that all three men were employed by the respondent and at work on the application date. All three spent a majority of their time on that date doing bargaining unit (that is, drywall taping) work. In addition Mr. Poulin did nothing other than drywall taping work during the period of his employment by the respondent. Though the evidence with respect to Messrs. Brum and Simmons is less satisfactory, we are satisfied that, during any period that could be said to be representative prior to the date of application, both men were doing drywall taping work during a majority of the time. In the result, whether one examines only the date of application or some representative period prior to that date, all three are properly included in the list of employees in the bargaining unit.
In summary, the Board finds that the list of employees, for purposes of the count, and regardless of the proper bargaining unit description, consists of the following persons who were employed doing drywall taping work on the date of the making of this application for certification, namely:
Angelo Brum,
Larry Poulin,
Cecil Simmons,
Adrian Spada,
Vincenzo Trivisano.
- In making our determination, we considered the work performed by the persons whose status was in dispute in these proceedings both on the date of application and during a period prior to that date. However, it appears to us that recourse to a "representative period" has made the certification process in the construction industry less consistent, certain, and expeditious than it might be. The use of any such period is inconsistent with the requirement that a person be both employed by the respondent and at work on the date of application. The very nature of a "representative period" is such that its length will vary according to the circumstances of the particular application and creates uncertainty. Looking to a "representative period" overlooks the fact that once a trade union has been certified as bargaining agent for a bargaining unit of employees of an employer in the construction industry, any collective agreement to which that employer becomes bound, whether a provincial agreement or not, will apply to persons doing the work covered by that agreement. Consequently, whether or not an employee is covered by a particular collective agreement and represented by a particular bargaining agent depends on the work that s/he is doing at the time and is in no way dependent upon the work that s/he performed during any previous period. Further, the use of a "representative period" has tended to result in protracted and expensive proceedings before the Board. Because it is important that the Board's policies and tests be consistent and create, as certain, equitable, and expeditious a means as possible for ascertaining which persons are in a bargaining unit, and having regard to the nature of applications for certification in the construction industry, we take the view that the Board should eliminate its use of a ''representative period'' and restrict itself to the following criteria:
(a) whether the person was employed by the respondent and at work on the date of application; and
(b) if so, the work that that person spent the majority of his time doing on the date of application; or
(c) where there is no conclusive evidence with respect to the work that the employee performed on the date of application, any other relevant factor, including the primary reason for hire.
In this application for certification the applicant filed documentary evidence of membership consisting of two combinations applications for membership and receipts. The combination applications for membership contained the original signatures of two individuals and indicate that a payment of $1.00 has been made within the six month period immediately preceding the terminal date established for this application. The cards and money were collected by one person. The applicant also filed a duly completed From 80, Declaration Concerning Membership Documents, Construction Industry, which attests to the regularity and sufficiency of the membership evidence. The form and content of the applicant's membership evidence are consistent with the requirements of the Act.
The Board finds that the applicant filed evidence of membership on behalf of two of the persons referred to in paragraph 19.
The Board is satisfied, on the basis of all the evidence before it, that less than forty-five percent of the employees of the respondent in any bargaining unit that the Board might find appropriate, at the time the application was made, were members of the applicant on March 27, 1986, 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.
The application is dismissed.