[1987] OLRB Rep. June 852
1245-85-R The Carpenters' District Council of Toronto and Vicinity on behalf of Locals 27 and 1304, United Brotherhood of Carpenters' and Joiners of America, Applicant V. Hemco Developments Limited, Respondent
BEFORE: Thomas S. Kuttner, Vice-Chair, and Board Members W. H. Wightman and W. F. Rutherford.
APPEARANCES: David McKee and James E. Smith for the applicant; M. E. Geiger, Steve McArtur, Stan Moneta and Al Sant for the respondent.
DECISION OF THE BOARD; June 11, 1987
This is an application for certification made pursuant to the construction industry provisions of the Labour Relations Act and brought by the applicant in accordance with sections 119 and 144(1) of the said Act.
The Board finds that Locals 27 and 1304 of the United Brotherhood of Carpenters and Joiners of America are trade unions within the meaning of section l(l)(p) of the Labour Relations Act. The Board further finds that they are constituent trade unions of the applicant.
The Board further finds that the applicant is a council of trade unions within the meaning of section 1(1)(g) of the Labour Relations Act.
The Board is satisfied that the constituent trade unions of the applicant have vested appropriate authority in the applicant to enable it to discharge the responsibilities of a bargaining agent within the meaning of section 10(1) of the Labour Relations Act.
5, The Board also finds that the applicant 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 10, 1980, the designated employee bargaining agency is the United Brotherhood of Carpenters and Joiners of America and the Ontario Provincial Council of the United Brotherhood of Carpenters and Joiners of America.
In its decision of September 23, 1985, the Board appointed a Labour Relations Officer to enquire into and report to the Board on the composition of the bargaining unit and the list of erpployees with respect to which the application was brought.
As a result of discussions with the Labour Relations Officer so appointed, the parties are agreed that the bargaining unit description should be that sought for by the applicant and normally found appropriate by the Board for the carpentry trade. Accordingly, the Board further finds that all carpenters and carpenters' 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 carpenters and carpenters' apprentices in the employ of the respondent in all other sectors in1the Municipality of Metropolitan Toronto, the Regional Municipalities of Peel and York, the Towns of Oakville and Halton Hills and that portion of the Town of Milton within the geographic Townships of Esquesing and Trafalgar, and the Towns of Ajax and Pickering in the Regional Municipality of Durham, save and except non-working foremen and persons above the rank of no -working foreman constitute a unit of employees of the respondent appropriate for collective bargaining.
The respondent initially took exception to this application on the basis that it was not an employer in the construction industry within the meaning of section 117(c) of the Act. However, in hg t of its agreement with the bargaining unit description above found and its failure to argue this issue before it, the Board takes the view that this objection to the application has been abandoned. In any event, on the basis of the evidence before it the Board has no difficulty in determining that the respondent is an employer within the meaning of section 117(c) of the Act.
The parties are only partially agreed as to the list of persons to be considered for purposes of the count. It is agreed that T. Walsh and A. Piercy on whose behalf a membership evidence was tendered in support of this application are properly included in the list as persons in the employ of the respondent engaged in carpentry work on site on the date of application. For the respondent, it was also submitted by letter dated October 3, 1985, that one R. ("Bob") Gratto whose name appears on Schedule "D" filed by the employer as an employee not at work on the date of application, ought in fact to have been listed on Schedule "A" as a person so employed and present. However, the parties have since agreed to the deletion of R. Gratto from the list of employees for the purpose of a count.
Left for determination, then, is the status of three individuals whose names appear on Schedule "A" filed by the respondent as among those employees in the bargaining unit described in the application of the applicant, present at work and engaged in the trade on the date of application, August 16, 1985. These are B. Geerlings, J. Gratto and T. Gapp. It was the initial position of the applicant that the three named persons were improperly so listed on three counts: none was at work on the date of application; none was performing the work of the trade; none was an employee of the respondent. In the proceedings before us, the first two of these objections were abandoned and argument limited to the third objection raised. Thus the issue joined before the Board was a limited one: whether for the purposes of the count, B. Geerlings, J. Gratto and T. Gapp, or any one of them, were employees of the respondent on the date of application. In addressing that issue~ the Board notes that the parties are agreed that the evidence adduced by T. Gapp is to be representative of himself and J. Gratto save as disclosed otherwise by the time sheets of the latter.
Commencing in spring, 1985, the respondent was engaged in the construction of a shopping plaza located in Maple, a project whose estimated net worth was in the area of three million dollars. Included in the work was a certain amount of demolition of existing structures in order to accommodate the building and expansion of the shopping plaza. Hemco retained A.J. Sant Developments Limited~ a residential builder situate in Barrie, Ontario, to perform management services at the Maple site. Al Sant, a principal of Sant Developments had undertaken to act as project manager at the Maple site. His involvement as such arose because of a family relationship with the respondent Hemco - his father is, together with Max Moneta a principal of Hemco. Sant is himself a graduate engineer who has been involved in the construction industry for the greater part of his life, working with a variety of general contractors and with his own father as a home builder and developer. The terms of the agreement between Sant Developments and the respondent called for the payment of four thousand dollars monthly for management services rendered and this is reflected in the invoices submitted in evidence.
In late spring, the respondent experienced some difficulty in retaining general carpenters for the work required at the Maple site. Sant Developments was itself engaged in a housing project in Midhurst and had in its employ several persons engaged in general carpentry work including B. Geerlings, a journeyman, T. Gapp and J. Gratto, the latter two being apprentices and working as carpenters assistants. Geerlings has worked on a seasonal basis for Sant Developments since 1981 and Gapp likewise since 1984. In light of the difficulty being experienced by Hemco, Sant suggested that carpenters from the Midhurst housing project be used at the Maple site. He stated in evidence:
"There were odds and ends of carpentry work that needed doing, and I attempted to get a carpentry contractor, and was unsuccessful. Max [Moneta] also tried, and I believe Mike [Delbuono, site supervisor] as well, and we then attempted to hire some carpenters locally, individuals, and, again, without much luck and I had a few carpenters on staff up in Barrie, you know, we said. In other words they were available to Hemco to use." (Examiner's report p.761.5- 10)
As both Geerlings and Gapp testified, Sant approached them at the Midhurst site and suggested that they could perform carpentry work at Hemco's project in Maple. The carpenters were amenable to the suggestion. Thus, throughout the summer months, the great bulk of the time of the three carpenters was spent on the Hemco site engaged both in demolition and in general carpentry work.
There was some question as for whom the carpenters would be working. The evidence is inconclusive, although there was a perception on the part of both Geerlings and Gapp that they were working for Hemco inasmuchas both Max Moneta and Mike Delbuono directed their work at the site on a daily basis, particularly in the absence of Sant himself, who was not present at Maple on such a basis. However, at no time were any of the carpenters laid off by Sant Developments nor was their employment otherwise terminated. Indeed no formal application for employment was ever processed for the three individuals by Hemco, nor was a T.D. 1 Income Tax Form for Revenue Canada submitted. Further, throughout this period, both Geerlings and Gapp testified that on occasion they were assigned by Sant to work at the Midhurst housing project site which was simultaneously being carried on by Sant Developments, rather than at the Maple shopping plaza site being developed by Hemco. Throughout this time the employees were instructed by Sant to fill out their time sheets for Sant Developments in the ordinary manner i.e. indicating hours worked per project site and to submit same either to himself or to one Bob Leech at the offices of Sant Developments in Barrie. Each of the employees continued as in the past to receive a pay cheque from A.J. Sant Developments Limited for work performed whether at the Maple (Hemco) or Midhurst (Sant) site.
The three carpenters reside in the Barrie area. Accordingly, Sant arranged for their transportation to their Maple site from the Barrie offices of Sant Developments in a Sant Developments vehicle. In addition, Sant Developments provided the carpenters with the skilled carpentry tools required for work at the Maple site and not there available. It has been noted that managerial personnel of Hemco together with Sant supervised the work of the carpenters at the Maple site. Sant testified that in the case of two other employees supplied through Sant Developments, complaints were directed to him, as a result of which he removed each from the site and returned them to work at the Midhurst housing project.
Were the carpenters employed by Sant Developments or by Hemco while at this site? Sant himself responded to questions in this regard as follows:
"Q. These carpenters that were brought down, were they ever told they were going to continue as A.J. Sant employees at the site?
A. Yes in the sense that they would be reimbursed for their time down there by A.J. Sant Developments, yes.
Q. Did you tell them that they would be working for Hemco?
A. Yes in the sense that they were working on that site, yes. (Examiner's report p. 771.10- 20)."
The labour costs of the three carpenters was billed back to the respondent Hemco by Sant Developments. As is indicated in the representative's invoices submitted in evidence, such work was indicated as "extra to demolition contract". The demolition contract refers to the work required to demolish the existing structures on the shopping plaza site. In his testimony Sant indicated that a separate agreement had been reached between himself and Max Moneta with respect to the demolition contract which was to be undertaken by Sant Developments at cost:
Going back to the project, there is an existing plaza which we are building a new one around, and parts of the existing building have to be demolished at certain stages before you could build the new building, so initially I took on the demolition as well. (Examiner's report p.86, 1.10- 12.
And further when asked as to the significance of the notation "extra to demolition contract" and whether it was being added to that contract he stated:
"No. The demolition work was very specific. In other words, obviously what it refers to, and there was an understanding between Max and myself that we would use my forces to do that. And this extra to demolition is basically the carpentry work. It's something that we didn't plan on doing from the outset. And that's why it was structured that way."
Q. What you are saying then is that the $4,816.50 recorded against this extra to demolition contract represents the invoice from Sant Developments to Hemco for the labour of Bert Geerlings, Tom Gapp and others?
A. And other labour, yes.
Q. Labour supplied by Sant Developments?
A. Right. Excuse me that may also include some materials as well.
- Does the evidence support a finding of an employment relationship between Hemco and the three carpenters in question as asserted by the respondent~ or of such a relationship between the three and A.J. Sant Developments Limited as argued by the applicant? The Board has in the past been faced with similar situations in which incompatible claims for the existence of an employment relationship have been urged. In Thunderhawk Developments, [1983] OLRB Rep. Aug. 1378, the Board articulated the principles governing where such a determination is required as follows:
Whenever the Board has the task of determining which of two or more companies is the employer of a group of employees for purposes of the Act, it must look beyond the form and appearance of the relationships involved to their realities. The Board has adopted certain criteria to assist in this kind of determination. Those criteria and the manner in which they have been applied by the Board were extensively canvassed in the Board's decision in Sutton Place Hotel, [1980] OLRB Rep. Oct. 1538. That decision adopts seven criteria which were set out in another Board decision, York Condominium Corporation, [1977] OLRB Rep. October 645. They are:
(1) The party exercising direction and control over the employees performing the work. See the Municipality of Metropolitan Toronto case, 61 CLLC ¶16,214; the Sentry Department StoresLimited case [1968] OLRB Rep. Sept. 540, 546; the Beer Precast Concrete Limited case, [1970] OLRB Rep. May 224, 227-8; the Belcourt Construction (Ottawa) Limited case, [1971] OLRB Rep. June 321, 324; and the Reid's Holdings (Belleville) Limited case, [19721 OLRB Rep. July 753, 761.
(2) The party bearing the burden of remuneration. See the Municipality of Metropolitan Toronto case, supra; the Goldlist Construction Limited case, [19661 OLRB Rep. Oct. 487, 488; the Kel Truck Services Ltd. case, 1972 CLLC ¶16,068; and the Templet Services case, [1974] OLRB Rep. Sept. 606,608.
(3) The Party imposing discipline. See the Reid's Holdings (Belleville) Limited case, supra; and the Templet Services case, supra.
(4) The party hiring the employees. See the Municipality of Metropolitan Toronto case, supra; the Sentry Department Stores Limited case, supra; and the Reid's Holdings (Belleville) Limited case, supra.
(5) The party with the authority to dismiss the employees. See the Municipality of Metropolitan Toronto case, supra; and the Templet Services case, supra.
(6) The party which is perceived to be the employer by the employees. See the Sentry Department Stores Limited case, supra.
(7) The existence of an intention to create the relationship of employer and employees. See the Belcourt Construction (Ottawa) Limited case, supra.
The Board in Sutton Place, supra, observed that those criteria were applied to the particular facts in York Condominium without being given any particular priority by the Board. Rather the Board came to a decision on the preponderance of evidence. The same approach was followed by the Board in Sutton Place to sort out the intricate corporate relationships and to decide which of several corporate entities was the employer. In contrast to Sutton Place, the instant case is simple and straightforward. Consequently, the task of applying the criteria to the facts is a considerably simpler and more straightforward one.
As there, so here the Board is of the view that the task of applying the accepted criteria to the facts presented is a straightforward and simple one. First it cannot be over emphasized that here, in contradistinction to the cases noted, an ongoing and long standing employment relationship between A.J. Sant Developments Limited and the three carpenters in question is admitted. That relationship predated the work on the respondent's Maple project, coexisted simultaneously with the ongoing work on that project and persisted subsequent to the departure by the carpenters in question from that project. Thus, if the respondent is correct in asserting that while engaged at its shopping plaza project at Maple the individuals in question were employees of it and of none other (and in this regard it is of note that the parties are agreed that the provisions of section 1(4) of the Act are not here engaged) then the finding to be made must be one of an intermittent employment relationship between the three carpenters and the respondent on the one hand i.e. while these were engaged at Maple, and by the three carpenters and Sant Developments on the other while engaged at its projects at Midhurst and elsewhere. But such a finding flies in the face of common sense and common practice in the construction industry.
It may well be that Al Sant himself might at any one time act as owner, developer, contractor and project manager - but such a multiplicity of function does not necessarily convert employees of Al Sant Developments Limited into employees of the main businesses with which Al Sant wishes to associate in one capacity or another. These are tradesmen who ply their trade as skilled workmen at those sites at which their employer, a developer principally engaged in the residential sector of the construction industry, is active. Here the employer is active at a site in the ICI sector, principally providing the services of a project manager, but on request those as well of a carpentry subcontractor. It does not do to parse the facts here present and strain to interpret them in such a manner as that, when measured against the seven-fold test traditionally applied, they reveal an employment relationship between the three carpenters and the respondent.
Thus, counsel for the respondent made much of the exercise of direction and control over the carpenters by Max Moneta and Mike Delbuono. But their authority was clearly a deleigated one subordinate to that of Sant - and of that delegation the employees were advised. Never was discipline imposed by anyone associated by Hemco. Rather, as is common for any owner, complaints were directed to the employer of the unsatisfactory employees - A.J. Sant Developments Limited. There was never any question of Hemco hiring these carpenters, determining a wage rate or remunerating them for services rendered. That was all times a function of A.J. Sant Developments Limited. There was on the part of neither Hemco nor the employees an intention to create a relationship of an employer and employee and any perception on the part of the employees to the contrary was one misconceived and rooted in the rather garbled information transmitted to them by Sant when he first approached them to work on the project. It is to be recalled, that these were carpenters traditionally engaged in the residential housing sector for whom work in the ICI sector was an anomaly. Throughout this time period only A.J. Sant Developments Limited exercised the authority to dismiss employees so supplied to the respondent. That Hemco bore the burden of remuneration for the labour provided reflects nothing other than that the carpentry work was performed, as were all services supplied by A.J. Sant Developments Limited on a cost basis. Certainly that burden does not create the relationship of employer and employee.
Any lingering doubts which may remain as to the existence of such an employment relationship are dispelled by the clear existence of such a relationship as between the respondent and the two other carpenters included on the list - T. Walsh and A. Piercey. These were hired following upon an inquiry made to the offices of the applicant to provide carpenters to Hemco at its Maple site. The two were placed on the Hemco payroll and received their remuneration directly from the respondent. Theirs was a hiring typical within the industry - the supply of labour by a trade union through its hiring hall to an employer requiring the services of a skilled tradesman. Once those services were rendered the relationship was terminated. Very different was the case of Geerlings, Gratto and Gapp all of whom, at the direction of their employer, A.J. Sant Developments Limited carried on carpentry work at the respondent's shopping plaza project in Maple for such time as was required and until directed to report elsewhere and to other projects at which their employer was engaged.
Accordingly, and in view of the foregoing, the Board declares that neither B. Geerlings, J. Gratto nor T. Gapp were employees of the respondent, Hemco Developments Limited on the date of application, or at any time.
On the basis of the materials before it, the Board is satisfied 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 one or other of the constituent trade unions of the applicant and therefore, pursuant to section 10(3) of the Labour Relations Act, are deemded to be members of the applicant on August 27, 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 said Act.
In accordance with the provisions of 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 S above in respect of all carpenters and carpenters' 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. And further, in accordance with the same provisions of the Act, a certificate will issue to the applicant trade union in respect of all carpenters and carpenters' apprentices in the employ of the respondent in the Municipality of Metropolitan Toronto, the Regional Municipalities of Peel and York, the Towns of Oakville and Halton Hills and that portion of the Town of Milton within the geographic Townships of Esquesing and Trafalgar, and the Towns of Ajax and Pickering in the Regional Municipality of Durham, excluding the industrial, commercial and institutional sector, save and except non-working foremen and persons above the rank of non-working foreman.