United Brotherhood of Carpenters' and Joiners of America Local Union 27 v. Supreme Carpentry Inc., 1989 CanLII 3019

[1989] OLRB Rep. November 1181

0172-89-R United Brotherhood of Carpenters' and Joiners of America Local Union 27, Applicant v. Supreme Carpentry Inc., Respondent

BEFORE: N. B. Satterfield, Vice-Chair, and Board Members W. N. Fraser and J. Redshaw.

DECISION OF THE BOARD; November 28, 1989

1. This application for certification was made under the construction industry provisions of the Labour Relations Act on April 19, 1989. The application and reply thereto raised issues which required hearing by the Board and a hearing was scheduled for June 9, 1989 to receive the evi­dence and representations of the parties respecting those issues. The parties met with a Board offi­cer on that date and resolved some of the issues and narrowed others. A decision of the Board which issued on June 9th sets out the extent of their agreement and disagreement. The parties agreed that, should the Board find there to be a unit of the respondent's employees appropriate for collective bargaining purposes, it should be a unit of carpenters and carpenters' apprentices described so as to satisfy the requirements of subsection 144(1) of the Act. They were in dispute as to whether there was more than one employee of the respondent who would fall into a unit described in those terms. Paragraph 6 of the decision, which reads as follows, sets out how the Board will deal with the issue:

2. The parties have requested the Board to authorize a Board officer to inquire into and report to the Board respecting those issues. Therefore, having regard to the agreement of the parties, a Board officer is authorized to inquire into and report to the Board on:

(1) whether the respondent is the employer of Manuel Azevedo, Antonio Azevedo and Jose Guimaraes; and

(2) the duties and responsibilities of AIde Panaro. [Aldo Panero]

2. The Board officer held several meetings at which he received the evidence of Manuel Azevedo and Jose Guimaraes respecting the work which they were performing for the respondent and the conditions under which they had been engaged to perform it. The Board was unable to examine Antonio Azevedo because it was unable to summons him to attend the meetings. It was reported to the Board that he was not in the country. During those same meetings the Board also received the evidence of Aldo Panero who was called by the respondent. The applicant and Supreme Carpentry Inc. (hereafter "Supreme") were represented by counsel at the meetings. Fol­lowing the examination of those three persons, the parties agreed to meet with the officer again on August 28, 1989 for the purpose of receiving the evidence of other witnesses to be called by the parties. The Board officer adjourned that meeting at the request of Supreme's counsel and with agreement of counsel for the applicant and, on their further agreement, rescheduled the meeting for September 13th. Counsel for the applicant has advised the Board that the applicant agreed to the adjournment of the meeting on conditions which included the condition that counsel for Supreme furnish applicant counsel with certain documents. Counsel for the applicant has advised the Board further that the documents were not produced.

3. The officer's meeting proceeded on September 13th as scheduled, but Supreme was not in attendance and was not represented at the meeting. The meeting had been scheduled to com­mence at 9:30 a.m. The officer delayed convening the meeting until after 10:00 a.m. and, when Supreme was still not in attendance and was not represented, the Board officer proceeded with the meeting and received the evidence of Luis Camara called by the applicant. When the applicant's examination of its witness was concluded, no one had appeared to represent Supreme and, there being no other evidence to hear, the officer terminated his inquiry. The officer made his report to the Board in writing on October 25, 1989 and copies of the report were sent that same date to the parties together with the Board's "Notice of Report of Labour Relations Officer" in Form 68.

4. The officer's report to the Board contains the following statement on page 2:

I was advised by Counsel for the Applicant at the meeting that he understood that Mr. White would not be attending that morning. I telephoned Mr. White who confirmed this but indicated that he thought that the Respondent would be in attendance. He also indicated that a letter out­lining his position was being sent to the Board and in this letter he would be seeking an adjourn­ment of the examinations on behalf of the Respondent.

Mr. White referred to in the quotation was counsel for Supreme. No request to adjourn the meet­ing scheduled for September 13th was made to the Board prior to that meeting. The Board did receive by ordinary mail on September 13th a copy of a letter bearing the date September 12, 1989 addressed from Mr. White to counsel for the applicant. The Board's copy was addressed to the attention of the officer. The first two paragraphs of the letter state as follows:

Further to my conversation with your secretary on September II, 1989 please be advised that we have been forced to withdraw from acting on behalf of Supreme Carpentry Inc. with respect to this matter.

As I informed your secretary on September 11, an adjournment is requested of the meeting scheduled for September 13 so as to allow Supreme Carpentry Inc. to retain new counsel.

5. The Board has received written submissions from applicant counsel respecting the con­clusions the Board should make on the evidence contained in the officer's report. The applicant does not request a hearing of the Board for this purpose. Supreme has neither requested a hearing nor made any submissions on the report within the time limits prescribed in the Board's notice of the report sent to the parties.

6. The applicant's first position was that the Board need not deal with the evidence in the officer's report in order to determine its application because of the conduct of the respondent. In this respect, the applicant takes the position that it was Supreme which was contending that the three persons claimed by the applicant to be in the unit of employees that would be appropriate for collective bargaining were not employees of Supreme; and, further, Supreme had abandoned its claim when it failed to attend the meeting with the Board officer on September 13th. The appli­cant's alternate position is that the Board should find Manuel Azevedo, Antonio Azevedo and Jose Guimaraes to be employees of Supreme employed in the proposed unit on the date of making of the application, and find Aldo Panero not to be an employee within the meaning of the Labour Relations Act on that date and to be excluded from the unit of employees. The Board does not find the applicant's first position tenable in the circumstances of this case and will decide the issues of whether there is a unit of employees appropriate for collective bargaining and, if so, who are the persons who would be included in that unit, based on the evidence contained in the officer's report to the Board.

7. The Board finds it unnecessary to rely at all on the evidence given by Luis Camara at the meeting of the officer on September 13, 1989. The Board's findings of fact herein are based, therefore, on the evidence of Manuel Azevedo, Jose Guimaraes and Aldo Panero as contained in the officer's report having regard to the submissions thereon of applicant counsel and to the Board's assessment of the relevant credibility of the witnesses based on the manner in which they answered the questions put to them by the Board officer and by the parties. On that basis, where the evidence of Aldo Panero conflicts with that of the other two witnesses, the Board prefers the evidence of Manuel Azevedo and Jose Guimaraes.

8. Aldo Panero's wife Maria owns Supreme and is its secretary. Panero is a director of the company and its president. Panero and his son Joe work on Supreme's jobs. They also run its busi­ness and between them decide which contractors will work for it. Joe was not at work on Supreme's job sites affected by this application on the date of its making. Supreme claims that Aldo Panero was. On the facts before the Board, even if he was at work on the date of making of the application, the Board finds that Aldo Panero is not an employee within the meaning of the Act and, therefore, would not be an employee in any unit of Supreme's employees which the Board might find to be appropriate.

9. Manuel and Antonio Azevedo are brothers and partners in a business operating in the style of Azevedo Carpentry, a registered name. They perform finish carpentry work on houses under construction and consider themselves to be self-employed. They started the business in Feb­ruary or March of 1988 and began doing work for Supreme around the same time. With one excep­tion, they worked solely for Supreme until July 1989. The exception was when they performed some work, at the request of Supreme, for DeSouza Carpentry when Supreme had no work for them. The partnership has not solicited work from contractors other than Supreme.

10. The work which the partnership performed for Supreme usually consisted of installing baseboards, wood trim for windows and doors and hanging doors. The materials were supplied by Supreme, but consumable supplies like nails and sand paper were supplied by the partnership. It was paid a pre-determined amount for each house. The price per house was set by Supreme after discussion with Manuel Azevedo, but it is clear from the evidence that Azevedo either accepted the work at Supreme's price or the partnership did not do the work. When the partnership com­pleted an agreed upon number of houses and Supreme had approved the work, the partnership invoiced Supreme for the work at the pre-determined price. It was paid the entire value of the invoice without any holdback. Supreme did not deduct for income tax, Canada Pension Plan, unemployment insurance or Ontario Health Insurance Plan. The partnership paid for supplies and paid Guimaraes for his work out of these payments from Supreme, after which the brothers divided equally the residue of the payment. $600.00 and $800.00 per house were typical prices paid by Supreme to the partnership, out of which the partnership paid Guimaraes $80.00 and $90.00. There is no evidence of the cost of the supplies. The partnership also has an employer number from the Workers' Compensation Board and pays assessments to the Board for the brothers and Guimaraes.

11. Supreme decides which of its houses the partnership will work on, when the work will begin and when it must be completed. It requires that the partnership do its work on the houses at the same time that other trades are at work on the project. If the partnership and Guimaraes are not going to be able to work on a particular day, Supreme expects to be advised of that fact before­hand. When Manuel Azevedo does not work, Guimaraes does not work.

12. The brothers and Guimaraes supplied the tools with which they worked. These were tools typical of the carpentry trade and commonly owned and supplied by carpenters who are paid by the hour worked. There is no evidence that the partnership or Guimaraes relied on Supreme to supply any tools or equipment, or that they used tools or equipment supplied by Supreme.

13. Guimaraes receives his work from the partnership, in particular Manuel Azevedo. Gui­maraes works with the Azevedo brothers, particularly with Manuel, on the same houses on which they work. He installs baseboards at a fixed price per house. That is the only kind of work he does on the houses. He does not perform work for anyone other than the partnership and when it does not have work Guimaraes does not have work. He needs little or no direction in the performance of this work, but when any is required, it is clear that it comes from Manuel Azevedo and not from Supreme. Guimaraes is paid a fixed amount per house based on the number of feet of baseboards to be installed and the price the partnership has accepted from Supreme. He has no influence on the price the partnership charges Supreme. He is paid for his work when the partnership receives payment from Supreme. He is paid by cheque from Azevedo Carpentry. No deductions are taken from his pay for income tax, Canada Pension Plan, unemployment insurance or the Ontario Hospi­tal Insurance Plan.

14. While the Board has no submissions before it from Supreme, its position from the out­set was that Manuel Azevedo, Antonio Azevedo and Jose Guimaraes are independent contractors. The applicant disputes that they are independent contractors and claims that they are employees of the respondent in the ordinary sense of that term, or, in the alternative are dependent contractors within the meaning of clause (h) of subsection 1(1) of the Act. As such, the applicant contends that they are included within the definition of employee in clause (i) of subsection 1(1) of the Act. Since that is the nature of the dispute, in the Board's view, it is appropriate to examine the status of those three persons under the dependent contractor provisions of the Act. The clauses of subsec­tion 1(1) of the Act just referred to state:

1.-(1) In this Act,

(h) "dependent contractor" means a person, whether or not employed under a contract of employment, and whether or not furnishing his own tools, vehi­cles, equipment, machinery, material, or any other thing, who performs work or services for another person for compensation or reward on such terms and conditions that he is in a position of economic dependence upon, and under an obligation to perform duties for, that person more closely resembling the relationship of an employee than that of an independent contractor;

(i) "employee" includes a dependent contractor;

15. The Board will consider first whether Manuel and Antonio Azevedo are independent contractors as contended by Supreme, or are employees of Supreme, as claimed by the applicant. They consider themselves self-employed and expect or hope to "profit" by undertaking with Supreme to install carpentry trim in houses at a pre-determined price per house. Apart from that, there is little evidence of an independent contractor relationship between them and Supreme. They have little influence on the price which they are paid for each house, having to accept the price set by Supreme or forgo the work. They have no significant control over the circumstances under which they perform the partnership's work for Supreme. Supreme determines when they are to do the work. They do supply their own tools, but these are nothing more than the tools which a car­penter employed for an hourly wage would supply. They also provide at their cost some consuma­ble materials; not an uncommon practice where employees work at a piece rate in residential con­struction. It appears to the Board that Manuel and Antonio Azevedo are doing little more than supplying their own labour through their partnership to Supreme at a fixed price per unit.

16. There is little opportunity of making a profit or risk of suffering a loss in that arrange­ment. It is merely a matter of whether the partnership can complete a house in fewer or more hours than those the brothers may have calculated in deciding to accept Supreme's price. All of the partnership's income, and consequently that of the brothers, during the period from February or March, 1988 to July, 1989 was derived from this kind of arrangement with Supreme. Clearly, Supreme's control over the conditions under which the partnership performs finish carpentry for Supreme and the partnership's dependence on Supreme for its source of income place the partner­ship in a position of economic dependence upon and under an obligation to perform duties for Supreme that makes the partnership's relationship with Supreme resemble more that of employer and employee than that of a client and independent contractor.

17. Therefore, on the totality of the evidence, the Board finds that Manuel Azevedo and Antonio Azevedo are dependent contractors within the meaning of clause (h) of subsection 1(1) of the Labour Relations Act and, by operation of clause (i) of that subsection, they are employees of Supreme for purposes of the Act.

18. The Board has found, at paragraph 3 of its decision which issued June 9th, that this application has been made pursuant to subsection 144(1) of the Act. That subsection restricts somewhat the Board's broad general authority under subsection 6(1) of the Act to determine the unit that is appropriate for collective bargaining purposes. Ninco Construction Ltd., [1982] OLRB Rep. Nov. 1692, at paragraph 5. Nothing in subsection 144(1), however, alters the statutory pre­scription in subsection 6(1) that "...in every case the [appropriate] unit shall consist of more than one employee...". Therefore, the Azevedo brothers would satisfy the mandatory minimum num­ber of employees in the unit described at paragraph 4 of the Board's June 9th decision. The unit is described in terms of the carpenters and carpenters' apprentices employed by Supreme. The par­ties consider the unit to be appropriate for collective bargaining. The description satisfies the man­datory provisions for a bargaining unit set out in subsection 144(1). Whether or not Guimaraes is found to be an employee or dependent contractor of Supreme, would not affect the description of the unit. The effect of including the Azevedo brothers in that unit would be to include them in a provincial unit of employees who are not solely dependent contractors. Subsection 6(5) of the Act, on the other hand, deems a bargaining unit consisting solely of dependent contractors to be a unit of employees appropriate for collective bargaining. The subsection is worded to allow the Board to include such employees in a unit with other employees, but before doing so it must satisfy itself that a majority of dependent contractors wish to be included in such a unit. That provision would seem to preclude the Board from including dependent contractors in a unit of employees who are not dependent contractors except with the consent of a majority of the dependent contractors con­cerned. However, the Board has found subsection 6(5) of the Act to be in conflict with the provi­sions of subsection 144(1) and, pursuant to section 138(1) of the Act, has held that subsection 144(1) will prevail over subsection 6(5). See Lay-All Drywall Ltd., [1988] OLRB Rep. March 308. The Board herein adopts the Board's reasoning in that decision and applies it to the circumstances of this application.

19. Accordingly, the Board 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 in all other sectors of the construction industry 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, 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.

20. Having settled the description of the appropriate bargaining unit and found that Manuel and Antonio Azevedo are employees in that unit, the Board is satisfied on the basis of all the evi­dence before it that, whether or not Guimaraes is ultimately found to be an employee in the unit, 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 May 11, 1989, 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.

21. Where, as here, the Board is satisfied that the description of the appropriate bargaining unit has been settled and the Board can say with certainty that more than fifty-five per cent of the employees in that unit on the date of making of the application were members of the applicant at the material time, the Board has jurisdiction to issue a final certificate. See Robin Hood Multifood Inc., [19851 OLRB Rep. July 1159 at paragraphs 6 to 12. In that case, a question remained as to whether certain persons were employees within the meaning of the Act and, therefore, whether they were in the bargaining unit. The Board was satisfied that the resolution of the question could not affect either the description of the unit or the applicant's right to be certified. The Board was satisfied also that, if the parties could not resolve the issue in collective bargaining, it was a ques­tion which could be resolved under subsection 106(2) of the Act which provides:

If, in the course of bargaining for a collective agreement or during the period of operation of a collective agreement, a question arises as to whether a person is an employee or as to whether a person is a guard, the question may be referred to the Board and the decision of the Board thereon is final and conclusive for all purposes.

The circumstances in the instant application are quite analogous. If the applicant and Supreme are unable to resolve in bargaining the issue of whether Guimaraes is an employee or an independent contractor, they can bring an application under subsection 106(2) of the Act.

22. Accordingly, final certificates will issue to the applicant pursuant to section 144(2) of the Act which states in part as follows and 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 of the Board's decision dated June 9, 1989 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.

23. Further, pursuant to section 144(2) 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 all sectors of the construction industry 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.