[1988] OLRB Rep. May 529
2300-87-R International Brotherhood of Painters and Allied Trades - Local 1824, Applicant v. Sirfran Construction Managers Inc., Respondent
BEFORE: G. T. Surdykowski, Vice-Chair, and Board Members W. Gibson and H. Kobryn.
APPEARANCES: Elizabeth Mitchell and George McMemeney for the applicant; Thomas Pynn and Michael S. Ruddy for the respondent.
DECISION OF THE BOARD; May 9, 1988
The name of the respondent is amended to: "Sirfran Construction Managers Inc."
The applicant is a trade union within 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 a designation issued by the Minister under section 139(1)(a) of the Act on April 4,1978, 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.
This is an application for certification within the meaning of section 119 of the Act and is an application made pursuant to section 144(1) which provides that:
144.-(1) An application for certification as bargaining agent which relates to the industrial, commercial and institutional sector of the construction industry referred to in clause 117(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.
Having regard to the agreement of the parties and pursuant to section 144(1) of the Act, the Board finds that all glaziers and glaziers' 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 glaziers and glaziers' apprentices in the employ of the respondent in all sectors of the construction industry, other than the industrial, commercial and institutional sector, in the Regional Municipality of Waterloo (except that portion of the geographic Township of Beverly annexed by North Dumfries Township), 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 respondent filed a reply and a list of employees in the bargaining unit which has no names on it. At the hearing of the application, the parties agreed that Ted Niescier should be on the list of employees. The applicant submitted that Tom Brombacher, Warren Donald and Gerald Miller were also employees in the bargaining unit on the day the application was made. The respondent argued that those three men were employees of another company, Waterloo Glass, during the material times, or, in the alternative, that Miller was an independent contractor who employed Brombacher and Donald. In the further alternative, the respondent argued that the three persons in dispute were "moonlighting" contrary to Article XIV of the applicant's provincial agreement under which they worked for Waterloo Glass and that, accordingly, it would be inequitable to permit this application to succeed.
The respondent contracted with Waterloo Glass to do some glazing work at the Alexanian Carpets job site in Cambridge. Miller spent part of each of two separate days doing glazing work at the site, prior to November 14, 1987, as an employee of Waterloo Glass. Brombacher accompanied him on one day and Donald accompanied him on the other.
Miller testified that he is a journeymen glazier who has been employed by Waterloo Glass for approximately three years. Brombacher is a journeyman glazier metal mechanic. He has been employed by Waterloo Glass for approximately four years. Donald is a glazier apprentice who was employed by Waterloo Glass for approximately 6 months at the time the application was made. All three worked the entire week before and the entire week after the date of application for Waterloo Glass. Waterloo Glass and the applicant are bound to a collective agreement between the Architectural Glass and Metal Contractors Association and the International Brotherhood of Painters and Allied Trades and the Ontario Council of the International Brotherhood of Painters and Allied Trades. Article XIV of that collective agreement provides that:
ARTICLE XIV - PIECE WORK AND MOONLIGHTING
14.01 All members of the Union expressly agree not to accept employment or subcontracts from any individual firms, co-partnership or corporation unless signature to this Agreement.
14.02 No member of the Union shall work on a piece work basis.
14.03 The employer shall not sub-contract work normally performed by itself under this agreement except to a contractor signatory to this agreement. However, in special cases, alternate arrangements will be made between the employer and the local business agent.
Sometime during the second day that Miller was at the Alexanian job site, J. P. Gravel, the respondent's superintendent, asked him if he was interested in fabricating and installing a wall curtain. Miller indicated that he was and it was agreed that he would be paid $18.00 per hour and that Donald, who would work as his helper, would be paid $10.00 an hour. Because Gravel did not know when the necessary materials would arrive, the date that the work was to be done was left unspecified except to the extent that it was agreed that it had to be done on a Saturday because of Miller's (and Donald's) employment obligations to Waterloo Glass from Monday through Friday of each week.
On Friday, November 13, 1987, Gravel telephoned Miller to advise him that the materials had arrived and that he should come in to install the wall curtain the following day, Saturday, November 14, 1987. Miller decided that he really should not do the work for health reasons. Consequently, he telephone Brombacher and asked him to substitute for himself. Brombacher agreed.
Although he had no intention of staying, Miller reported to the job site at 8:00 a.m. on November 14, 1987 as arranged with Gravel because he had agreed to do so. He arrived in a Waterloo Glass truck which he had borrowed the previous evening. Brombacher and Donald also arrived, each in his own vehicle. Miller told Gravel that he could not stay because he had a service call to do for Waterloo Glass (which was not true) but that he had brought Brombacher as a substitute for himself. Gravel assented to this.
Notwithstanding that he did not intend to stay, Miller fabricated the wall curtain with Brombacher. During the approximately one and a half hours it took them to do so, Donald was engaged in installing glass which was part of Waterloo Glass' contract with the respondent. Brombacher subsequently spent approximately ten minutes checking that work.
Having completed the fabrication, Miller, Donald and Brombacher, with the assistance of Gravel, another of the respondent's employees (presumably Niescier), and three employees of the landscaping contractor on the site at the time, raised the wall curtain in order to begin affixing it to the building. In the process, a 2 x 4 fell and struck Miller and he left the site shortly thereafter.
Brombacher and Donald completed the erection using Brombacher's tools and screws that Brombacher and Miller had brought to the site, some of which screws had been supplied to them by Waterloo Glass. This took between five and five and a half hours. When they finished, Brombacher pointed out some cosmetic shortcomings in the material which had been supplied to the respondent. In addition, Gravel gave him a personal cheque for the entire amount due Miller, Donald, and himself, which amount included payment for the Waterloo Glass work the latter two had done. Brombacher testified that, at Gravel's request, he wrote out a receipt stating that he had "received so much money for doing work for Sirfran Construction".
Miller and Brombacher both testified that they thought they were employed by the respondent on November 14, 1987. Donald did not testify.
After learning that he was to install the wall curtain for the respondent on November 14, 1987, Miller telephoned George McMemeney, a business agent for by the applicant, to advise him that he was going to do so. He testified that McMemeney told him to go ahead.
While it may be true that no one can be employed by more than one employer at any one instant in time, there is nothing to preclude an individual from being employed by more than one employer in the course of the same week, or even during the same day. Indeed, in Ontario, it is not uncommon for individuals to have several part-time jobs, or a full-time job and a part-time job, which may result in them being employed by more than one employer on the same day from time to time. Because of the often transient nature of employment in the construction industry, it has long been the Board's practice to require that individuals be at work for the respondent employer on the day the application is made in order to be counted as employees in the bargaining unit for purposes of the Board's consideration of the application (see for example, Smiths Construction Company Arnprior Limited, [1984] OLRB Rep. March 521). However, there is no requirement that such individuals be so engaged on any day other than the date of application. In this case, the respondent does not dispute that Miller, Brombacher, and Donald were present on the job site and engaged in work of which the respondent was the beneficiary on the date of application. However, it asserts that none of them were employees of the respondent on that day.
In determining whether or not an individual is an employee and, if so, by whom s/he was employed during the material times, the Board has concentrated on the substance rather than the form of the relationship, especially since 1975, when the Legislature enacted section 1(1)(h) and (i) of the Labour Relations Act to include dependent contractors as employees for purposes of the Act. In determining whether an individual is an employee or an independent contractor for labour relations purposes, the Board has applied the fourfold test set out in Montreal v. Montreal Locomotive Works et al 1946 CanLII 353 (UK JCPC), [1947] 1 D.L.R. 161 in the context of the overall organization of the work in question (the organization test being one applied in Meyer v. J. P. Conrad Lavigne Ltd. (1980) 1979 CanLII 2088 (ON CA), 27 O.R. (2d) 129 (Ont. C.A.); and see also Brantwood Manor Nursing Homes Limited [1986] OLRB Rep. Jan. 9. Babco Plumbing Services Ltd. [19851 OLRB Rep. Dec. 1693; K-Mart Canada Ltd. [1983] OLRB Rep. May 649 among others) and also having regard to the purpose of the Labour Relations Act. Ultimately, the question becomes whether an individual's economic position is more like that on an employee than like that of a self-employed entrepreneur, when viewed from the collective bargaining perspective and the mischief which the Act is designed to remedy (see McDonald-Ronald Limousine Service Limited, operating as Airline Limousine, [1988] OLRB Rep. March 225; Adbo Contracting Company Ltd., [1977] OLRB Rep. Apr. 197; Nelson Crushed Stone, [1977] OLRB Rep. Feb. 104.
Glaziers commonly own the tools they use. Consequently the fact that Miller and Brombacher owned the tools that were used to do the installation of the wall curtain does not mean that they were not employees of the respondent on November 14, 1987. The fact that they, and Donald, performed work directly for the respondent for only one day and were otherwise regularly employed by Waterloo Glass does not, given the nature of employment in the construction industry, mean they were not employees of the respondent on that one day.
Employers in the construction industry, when using employees who are union members, will commonly select the number of employees they require but not which ones they are to be. Instead, some or all of the employees will be designated by the union in accordance with the hiring hall procedures established for that purpose. Further, an entity may, for labour relations purposes, be the employer notwithstanding that it was not the actual hirer (see Sentry Department Stores Limited (operating under the name G.E. M. Stores (1965), [1968] OLRB Rep. Sept. 540; AIwell Forming Limited, [1978] OLRB Rep. Aug. 709; Sutton Place Hotel, [1980] OLRB Rep. Oct. 1538). Nor does the fact that an entity did not intend to enter into an employment relationship mean it is not the employer (for labour relations purposes) where it keeps its intentions (or lack thereof) to itself (see Sentry Department Stores Limited, supra; Welland County Roman catholic Separate School Board. [1972] OLRB Rep. Oct. 884; Ralston-Purina Canada Inc., [1979] OLRB Rep. June 552). In this case, the respondent, acting through its superintendent Gravel, selected Miller and agreed that he and a helper (Donald) who was suggested by Miller and accepted by Gravel, would fabricate and erect the wall curtain. When Miller decided that he did not want to do the work after all, he selected Brombacher to take his place. He discussed this with Gravel upon arriving at the job site on November 14, 1987 and by his conduct, Gravel, on behalf of the respondent, assented both to that and to all three men working on the wall curtain. In the circumstances, we are satisfied that the respondent played a significant role in the hiring of Miller, Brombacher and Donald and that it retained an overall power to direct what they did on November 14, 1988.
Further, the respondent supplied all of the materials for the fabrication of the wall curtain. We attach no significance to the fact that Brombacher and Donald used screws belonging to either Brombacher, Miller, or Waterloo Glass to actually affix the wall curtain to the building. Further, it had been agreed that those working on the wall curtain would be paid at an hourly rate regardless of the amount of time they spent on it and it appears that Miller, Brombacher and Donald were all so paid. Accordingly, the chance of profit or risk of loss lay entirely with the respondent. Finally, although Donald did not testify, Miller and Brombacher assumed they were employees of the respondent on November 14, 1987, and there is no cogent evidence before the Board which suggests either that the respondent gave them any indication that they were not, or that it was unreasonable for them to make that assumptton.
In the result, having regard to the circumstances and the purpose of the Labour Relations Act, we find that Miller, Brombacher and Donald all were employees in the bargaining unit on the day this application was made. Accordingly, there were four persons in the bargaining unit on the date of application.
The respondent's final argument was that it would be inequitable to allow the applicant to benefit from finding that Miller, Brombacher, and Donald were employees on the date of application. It is clear that in working for the respondent on that day, they did breach Article XIV of the collective agreement which governed their full-time employment with Waterloo Glass. It is also evident that the applicant was aware of and even encouraged that breach. Assuming, without finding, that an administrative tribunal such as the Board, which is entirely a creature of statute, has the jurisdiction to apply equitable principles, and assuming that it would be appropriate to consider such principles in determining who was employed in a bargaining unit at the relevant times, we observe that it is a well established principle that he who seeks equity must do equity. The respondent is, in law, a stranger to the applicant's provincial agreement and there is no evidence to suggest that the respondent was aware of the existence of Article XIV of the applicant's provincial agreement until after November 14, 1987. However, it was clearly aware that Miller, Brombacher and Donald were full-time employees of a company to which it had sub-contracted work. In addition, although the evidence does not establish that the installation of the wall curtain was part of the work that had been sub-contracted to Waterloo Glass, Donald and Brombacher both spent some time on November 14, 1987 installing windows which was a part of that work, and the evidence suggests that Brombacher and Donald were paid for that work by the respondent and that Waterloo Glass was not. Accordingly, even if we were satisfied that the conduct of the applicant and of Miller, Brombacher and Donald was such that it would be inequitable, we are satisfied that the respondent's own "hands" are not "clean" and it is therefore not entitled to any equitable relief.
The applicant filed documentary evidence of membership, in the form of three Certificates of Membership in support of the application. The certificates are signed by the member to whom they refer and indicate that each paid monthly dues of $12.50 for at least one month within the six-month period immediately preceding the terminal date for the application. The certificates have been checked and certified correct by an officer of the applicant. The applicant also filed the requisite Form 80, Declaration Concerning Membership Documents, Construction Industry, attesting to the regularity and sufficiency of its membership evidence. We are satisfied that the membership evidence meets the requirements of the Act.
In the result, the Board is satisfied, on the basis of all the evidence before it, that more than fifty-five percent of the employees of the respondent in the bargaining unit, at the time the application was made, were members of the applicant on December 3, 1987, 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.
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]
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 2 above in respect of all glaziers and glaziers' 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, pursuant to section 144(2) of the Act, a certificate will issue to the applicant trade union in respect of all glaziers and glaziers' apprentices in the employ of the respondent in the Regional Municipality of Waterloo (except that portion of the geographic Township of Beverly annexed by North Dumfries Township), excluding the industrial, commercial and institutional sector, save and except non-working foremen and persons above the rank of non-working foreman.