Labourers' International Union of North America, Local 183 v. E. M. Carpentry (1982) Limited, 1989 CanLII 3086

Labourers' International Union of North America, Local 183 v. E. M. Carpentry (1982) Limited et al.

[1989] OLRB Rep. August 829

3311-86-R; 0303-87-R; 3365-86-R; 3366-86-R; 3367-86-R; 3368-86-R; 3369-86-R; 3370-86-R; 3372-86-R; 3373-86-R; 3374-86-R; 3375-86-R; 3376-86-R; 3393-86-R; 3454-86-R; 2255-87-U; 2374-87-U; 3525-86-U; 2159-88-U Labourers' International Union of North America, Local 183, Applicant v. E. M. Carpentry (1982) Lim­ited, Respondent v. United Brotherhood of Carpenters and Joiners of America, Local 27 (formerly Local 1190), Intervener; Labourers' International Union of North America, Local 183, Applicant v. Westroyal Carpentry Ltd., Respondent v. United Brotherhood of Carpenters and Joiners of America, Local 27 (formerly Local 1190), Intervener; Labourers' International Union of North America, Local 183, Applicant v. Camo Construction, Respondent; Labourers' International Union of North America, Local 183, Applicant v. B. Bezeau Framing, Respon­dent; Labourers' International Union of North America, Local 183, Applicant v. Pipau Construction, Respondent v. United Brotherhood of Carpenters and Join­ers of America, Local 27, Intervener; Labourers' International Union of North America, Local 183, Applicant v. Joeb Construction, Respondent v. United Brotherhood of Carpenters and Joiners of America, Local 27 (formerly Local 1190), Intervener; Labourers' International Union of North America, Local 183, Applicant v. Lopes Carpentry, Respondent v. United Brotherhood of Carpenters and Joiners of America, Local 27, Intervener; Labourers' International Union of North America, Local 183, Applicant v. Oliveira Carpentry Contractors, Respon­dent v. United Brotherhood of Carpenters and Joiners of America, Local 27, Intervener; Labourers' International Union of North America, Local 183, Appli­cant v. Belmonte Carpentry Ltd., Respondent v. United Brotherhood of Carpen­ters and Joiners of America, Local 27 (formerly Local 1190), Intervener; Labour­ers' International Union of North America, Local 183, Applicant v. Landl Construction, Respondent v. United Brotherhood of Carpenters and Joiners of America, Local 27, Intervener; Labourers' International Union of North Amer­ica, Local 183, Applicant v. Cayouette Framer, Respondent v. United Brother­hood of Carpenters and Joiners of America, Local 27, Intervener; Labourers' International Union of North America, Local 183, Applicant v. Zemars Carpen­ters Ltd., Respondent v. United Brotherhood of Carpenters and Joiners of Amer­ica, Local 27, Intervener; Labourers' International Union of North America, Local 183, Applicant v. Divo Construction, Respondent; Labourers' International Union of North America, Local 183, Applicant v. P & F Carpentry, Respondent v. United Brotherhood of Carpenters and Joiners of America, Local 27 (formerly Local 1190), Intervener; Labourers' International Union of North America, Local 183, Applicant v. M. Lanteigne Construction, Respondent v. United Brotherhood of Carpenters and Joiners of America, Local 27, Intervener; United Brotherhood of Carpenters and Joiners of America, Local 27, Complainant v. Labourers' Inter­national Union of North America, Local 183 and B. M. Carpenters (1982) Ltd., Respondents; United Brotherhood of Carpenters and Joiners of America, Local 27, Complainant v. Labourers' International Union of North America, Local 183, B. M. Carpenters (1982) Ltd., Oliveira Carpentry, Belmonte Carpentry, Lopes Carpentry and Camo Construction, Respondents; United Brotherhood of Carpen­ters and Joiners of America, Local 27, Complainant v. Labourers' International Union of North America, Local 183 and B. M. Carpentry (1982) Limited, Respondents; United Brotherhood of Carpenters and Joiners of America, Local 27 v. Labourers' International Union of North America, Local 183, Respondent

BEFORE: Ken Petryshen, Vice-Chair, and Board Members D. A. MacDonald and J. Redshaw.

APPEARANCES: C. M. Mitchell and C. Detoni for the Labourers; Mauro Angeloni for the respon­dents E. M. and Westroyal; Dave Watson and Joe Almeida for the Carpenters; no one appearing for the other employer respondents.

DECISION OF THE BOARD; August 31, 1989

1. The Board has before it a number of applications for certification pertaining to the con­struction industry. In addition, it has before it a number of complaints under section 89 of the Act.

2. In Board File No. 3311-86-R, Labourers' International Union of North America, Local 183 ("Local 183") applied for certification on March 10, 1987 in an attempt to displace the United Brotherhood of Carpenters and Joiners of America, Local 27 ("Local 27") as the bargaining agent for all carpenters and carpenters' apprentices in Board Area #8 employed by E. M. Carpenters (1982) Ltd. ("E. M."). In addition to this application, Local 183 made a number of applications for certification which have a relationship to the E. M. application. As well, Local 27 has made a num­ber of section 89 complaints which could impact on the success of Local 183's E. M. and related applications. For purposes of this decision, it is unnecessary to set out the details of the other Local 183 applications and Local 27's section 89 complaints. By decision dated May 7, 1987, the Board appointed a Board Officer to inquire into and report back to the Board concerning the list and composition of the bargaining unit in the E. M. application. Pursuant to his appointment, the Board Officer met with the parties on a considerable number of occasions between September 1987 and April 1988 and he called eight persons to give evidence. Local 27 called six persons to give evi­dence and Local 183 called one person to testify. A copy of the Board Officer's Interim Report ("Report I") was sent to each party, together with a (Form 68) Notice of Report of a Labour Rela­tions Officer. The Board notes that, in addition to the E. M. matter, the examinations referred to above were pursuant to the Board Officer's appointment in P & F Carpentry (Board File No. 3393-86-R) and Belmonte Carpentry Ltd. (Board File No. 3372-86-R).

3. In Board File No. 0303-87-R, Local 183 applied for certification on April 30, 1987 requesting a pre-hearing representation vote in an attempt to displace Local 27 as the bargaining agent for all carpenters and carpenters' apprentices in Board Area #8 employed by Westroyal Car­pentry Ltd. ("Westroyal"). In a decision dated May 28, 1987, the Board (differently constituted) directed the taking of a pre-hearing representation vote. Given the dispute regarding the composi­tion of the bargaining unit and the list of employees in the bargaining unit, the Board also directed that each ballot cast be segregated and that the ballot box be sealed. The vote was taken on June 10, 1987. By decision dated July 21, 1987, a different panel of the Board appointed a Board Officer to inquire into and report back to the Board concerning the dispute between the parties relating to the composition of the bargaining unit and the list of employees. Pursuant to her appointment, the Board Officer met with the parties and examined four persons. A copy of the Board Officer's Report ("Report II") was sent to each party, together with a (Form 68) Notice of Report of a Labour Relations Officer.

4. Four days of hearing were required to entertain the parties' submissions with respect to the conclusions the Board should reach in view of Reports I and II. The parties agreed that the E. M. and the Westroyal cases be argued at the same time given the similar issues in both files. In this decision, the Board is in a position to resolve all of the outstanding issues between the parties in the Westroyal application. The same cannot be said for the E. M. application. The parties involved in the E. M. matter and the panel members expect that a decision on some key issues will assist the parties in resolving the remaining issues in dispute.

5. The primary issue in the E. M. application, which is also present in the Westroyal appli­cation, can be simply stated as follows. E. M. is a carpentry contractor engaged in the construction of low-rise residential housing. E. M. obtains a contract from a builder and, in turn, it will contract with what we refer to in this decision as "pieceworkers" to perform the carpentry work. A piece­worker may have what we will refer to in this decision as "helpers". Local 27, E. M. and Westroyal take the position that the pieceworkers and their helpers are all employees of the carpentry con­tractor. Local 183 takes the position that once a pieceworker has more than one helper, that piece­worker is an employer and, therefore, the pieceworker and his helpers cannot be found to be employees of the carpentry contractor. In the E. M. application, there is also a dispute between the parties as to whether three persons exercise managerial functions pursuant to section 1(3)(b) of the Labour Relations Act. In both the E. M. and Westroyal applications, the parties cannot agree on whether certain persons performed bargaining unit work on the application date. The Board will first deal with the issue of the status of the pieceworker and helpers and in doing so we note that the material facts relevant to this issue in Reports I and II are the same. In other words, we did not find any material difference in the nature of the relationship between the helper, the piece­worker and the carpentry contractor in Report I and Report II. In setting out the facts and our conclusions relating to the primary issue, any reference to E. M. applies equally to the situation with Westroyal, except where noted otherwise, and the Board will often refer to both respondents as the carpentry contractor.

STATUS OF THE PIECEWORKER AND HELPERS

6. As previously noted, E. M. obtains contracts for the performance of carpentry work from builders. It appears to be the case that over the years a builder will utilize the services of the same carpentry contractors. At any given time, E. M. could have ongoing jobs at a number of sub­divisions in a fairly wide geographic area. A builder will have a supervisor responsible for the con­struction activity at each subdivision. The builder's supervisor will coordinate the work of the vari­ous trades and is usually responsible for supplying the various contractors with materials. It appears that the builders supply the carpentry contractors with the lumber required for the job. The builder's supervisor will supply blueprints to the carpentry contractor as well as advise the car­pentry contractor what and when houses should be constructed.

7. A. Marelli owns E. M. and he is the individual who obtains the carpentry work for E. M. from the builders. It is usually the case that E. M. will have a foreman at each site responsible for the carpentry work who reports directly to Marelli. If the job at a particular site is small, E. M. may not assign a foreman permanently to that site, and if the site is a large one, E. M. may have more than one foreman at the site. It is common in this industry to have the carpentry contractor engage the services of pieceworkers. It is also usual for the pieceworkers to utilize the services of helpers. A pieceworker and his helpers are commonly referred to as a crew. Almost all of the car­pentry work on a low-rise residential construction site is actually performed by pieceworkers and helpers. E. M. does have a small number of employees it pays on an hourly basis. These employees primarily perform repair work which is sometimes necessary as a result of the failure of the piece­worker to perform the job properly.

8. The carpentry work performed by the various crews consists of doing the footings, the framing, windows and doors and work that is described as roughing-in work. It appears that each crew generally performs only one of these aspects of the carpentry work. For instance, one crew will only do framing work, which involves building the wooden frame for the house, while another crew will only do windows and doors. Some crews may engage in the work of more than one aspect of the carpentry work, particularly when work is slow, but this is the exception rather than the rule. It is therefore the case that on any subdivision, one will have some crews doing framing, some doing windows and doors etc. It would be unusual for crews performing different types of carpen­try work to be working on the same house at the same time.

9. The makeup of the crews and their legal status vary considerably. A pieceworker may consist of a single individual, a partnership of two or more individuals, or a limited company with one, two or more principals. These pieceworkers may have no helpers, one helper or a number of helpers. Given the evidence in the Reports, it appears to be quite common to have a pieceworker consisting of a registered partnership utilizing two helpers. The number of helpers used by a piece­worker can vary at any given time depending on a number of factors including the amount of car­pentry work available and the pieceworker's success in finding suitable helpers.

10. In order to appreciate the nature of the dispute between the parties it is useful to set out what the parties are agreed upon. The parties are agreed that the sole proprietor, the partners, irrespective of how many in a partnership, and the principals of a limited company, irrespective of how many, as long as they all do not employ two or more helpers, are employees of the carpentry contractor and should be on the list of employees in the bargaining unit. More specifically, no party has challenged the appropriateness of having both a pieceworker and a single helper on the list of employees. Local 27, E. M. and Westroyal do not make such a challenge since it is consis­tent with their view that all pieceworkers and helpers are employees of the carpentry contractor under the Act. Local 183 does not make such a challenge since it views a pieceworker with one helper as a dependent contractor and considers only the pieceworker with two or more helpers as an independent contractor and not an employee of the carpentry contractor. Accordingly, by their agreement, the parties have not made the status of the pieceworker with a single helper an issue in this proceeding. We note that Local 27 took the position before us that if the Board finds that a pieceworker with more than one helper is an independent contractor and therefore that the piece­worker and helpers are not in the E. M. and Westroyal bargaining unit, it reserved its right to argue in any subsequent proceeding that any pieceworker who employs only one helper cannot be considered to be an employee under the Act. The Board is left then to only decide the status of the pieceworker who has more than one helper. Given the nature of the dispute between the parties, one is required to examine the relationship between the carpentry contractor, the pieceworker and the helpers. Although Local 183 and Local 27 have competed for the support of carpentry employ­ees working in the low-rise residential field since 1980, the time when trade unions began to organize employees in this industry, this is the first occasion that these parties have placed before the Board the issue of the status of the pieceworker who has more than one helper.

11. We note that the relationships the Board is required to examine exist in the context of mature bargaining relationships. Local 27 has represented those persons covered by its E. M. and Westroyal collective agreements for some time. Report I contains a considerable amount of evi­dence concerning the way in which Local 183 and Local 27 have addressed the status of the piece­worker and helpers in bargaining over the years. Local 27 has consistently signed collective agree­ments which cover all pieceworkers and their helpers. In recent years, Local 183, consistent with its position in this case, has signed collective agreements with carpentry contractors which cover, among others, a pieceworker with one helper but do not cover a pieceworker with two or more helpers. Any pieceworker in this latter category would be covered by the subcontracting clause and would be required to sign an agreement with Local 183. In their submissions relating to this negoti­ating history, Local 183 and Local 27 argued that its particular collective bargaining response to the circumstances of the low-rise residential field best reflect the reality and make the most labour rela­tions sense.

12. The material facts relevant to the status of the pieceworker with more than one helper are as follows. The carpentry contractor determines the number of crews it will utilize on any given project and the amount of money it will pay for the carpentry work required on each house. The carpentry contractor usually prepares a sheet which sets out the amount it will pay for certain car­pentry work on a particular type of home. This amount is based on the square footage of the home. Given the particular style of home, the sheet would indicate that a certain amount (e.g. $4,000.00) will be paid for framing, a certain amount for windows and doors, etc. The evidence in the Reports disclose that there is virtually no negotiation over the rates between the carpentry con­tractor and the pieceworker. If the pieceworker decides that the rate offered by the carpentry con­tractor is acceptable, they enter into an oral agreement to the effect that the pieceworker will be paid the price set out on the sheet upon completion of its performance of certain carpentry work on the house. If the pieceworker determines that the price offered by the carpentry contractor is too low, he will not perform work for that particular carpentry contractor and will attempt to find work somewhere else. The oral agreement between the carpentry contractor and the pieceworker does not include an understanding of how much work the pieceworker will obtain, nor does the pieceworker commit himself to the performance of work on a certain number of houses. In decid­ing whether to work for a particular carpentry contractor, the pieceworker will take into account, among other considerations, the price being paid per house, the amount of work the carpentry contractor has and whether the carpentry contractor pays soon after being invoiced. There is noth­ing preventing a pieceworker from leaving a particular carpentry contractor if he decides he can get a better deal somewhere else. In addition to the flat sums paid per house, the carpentry contractor and pieceworker agree on an hourly rate that will be paid for certain kinds of work. For instance, a pieceworker who is requested to add something not on the original plans or who is asked to per­form repair work will be paid on an hourly basis for the work of the crew.

13. In addition to determining how many and which pieceworkers it will utilize and what it will pay to the pieceworker for the carpentry work performed on a house, the carpentry contractor usually has a person on site who supervises the carpentry work. This person, usually referred to as the carpentry foreman, will assign a pieceworker a particular house to build. The carpentry fore­man will inspect the house to ensure that the pieceworker is performing the carpentry work in accordance with the building plans. If the pieceworker's work is not satisfactory in some way, the carpentry foreman will ask him to correct the problem. If the pieceworker elects not to do this, others will be asked to correct the problem and the pieceworker will be back-charged. Although the lumber is supplied by the builder, the carpentry foreman ensures that the lumber required for each house is brought to the house by means of a forklift that is owned by the carpentry contractor.

14. The carpentry contractor pays the pieceworker the agreed upon amount once the house is completed, without deductions. In other words, the carpentry contractor does not deduct from the amount owing to the pieceworker such items as taxes, U.I.C. premiums, union dues, etc. At the completion of each house, the carpentry contractor pays directly to the pieceworker the full amount it has been invoiced by the pieceworker, less perhaps any backcharges. The Local 27 col­lective agreement with E. M. provides that E. M. will pay 6% of the amount it pays to the piece­worker to Local 27 for benefits for the pieceworker and helpers. The pieceworker is required to provide the names of the crew members to the carpentry contractor, who in turn passes them on to Local 27 along with the 6%. The pieceworker pays the members of the crew from the amount received from the carpentry contractor.

15. The Reports contain a considerable amount of evidence concerning the relationship between the pieceworker and his helpers. The pieceworker decides whether he will have helpers and, if so, how many. The carpentry contractor may on occasion direct a helper to a particular pieceworker, but the decision to hire a helper and which helper to hire is made solely by the piece­worker. Similarly, when it comes to matters such as discharge, discipline and lay-off, it is the piece­worker who decides, not the carpentry contractor. These decisions concerning helpers are undoubtedly influenced by the amount of work a pieceworker is able to obtain from the carpentry contractor. If a pieceworker decides to leave a carpentry contractor, the helpers of that piece­worker leave as well. In other words, the crew is a unit under the control of the pieceworker. There is evidence in Report Ito the effect that helpers in certain crews are not experienced enough to work on their own and would not do so in the absence of the pieceworker.

16. With one exception, the pieceworkers covered in the Reports pay their helpers an hourly rate. The decision to pay an hourly rate, as opposed to a piecework rate, is made by the pieceworker. In addition, the pieceworker decides what the hourly rate will be, when increases will be paid to the helpers and what the size of the increases will be. The Reports disclose that a piece­worker's helpers will be paid different hourly rates depending on the experience of the helper and his length of service with the pieceworker. It is the pieceworker who decides whether overtime will be paid, when overtime will be paid and at what rate. All matters relating to remuneration, such as vacation pay, the pay period etc. are determined by the pieceworker without any input from the carpentry contractor. With respect to a number of these monetary items, the evidence of the piece-workers is that they made their decisions without regard to the collective agreement between E. M. and Local 27. Most of the pieceworkers were unable to say what payment was required by the Local 27 collective agreement.

17. Although the carpentry foreman supervises in a general sense the work of the crews, the pieceworker supervises the helpers. The pieceworker assigns work to the helper on a daily basis. If a carpentry foreman notices that a helper is not properly performing his work, he will advise the pieceworker of this situation if the pieceworker is present. The pieceworker determines the hours of work for the crew, when it will start and when it will finish for the day. The piece­worker decides whether the crew will work on any given day. Decisions regarding when vacations will be taken and whether a helper can have a day off are made by the pieceworker. The carpentry contractor does not determine these matters.

18. The pieceworker deducts the normal statutory deductions from a helper's pay. For instance, taxes are deducted and remitted. The pieceworker will pay W.C.B. premiums on behalf of his helpers. Some pieceworkers deduct dues from the helpers and remit them to Local 27, while other helpers of some pieceworkers pay their dues directly to Local 27. Most pieceworkers have a bookkeeper, do not advertise their business, although they might advertise for helpers, and do not have a business phone number. Pieceworkers file their tax returns as a business. In other words, they deduct from their income all their expenses, such as monies paid for helpers, fuel, deprecia­tion, etc.

19. The only material the pieceworkers provide is nails. The other materials required for the carpentry work are supplied by either the builder or the carpentry contractor. With respect to equipment, the helpers provide their own hammer and pouch. The carpentry contractor may pro­vide some of the more expensive tools, such as a riveting gun. Most of the tools used by the piece­worker and helpers, such as levels, saws etc. are owned by the pieceworker.

20. It does not appear from the material in the Reports that the carpentry contractor has any rules of conduct which apply to the pieceworker and his helpers. In one instance, a piece­worker was drinking on the job and indicated that E. M. could not prohibit him from doing this and did not have any rule prohibiting such conduct as far as he was aware. This same pieceworker did have rules governing the conduct of his helpers, one of which was that they could not drink during working hours.

21. The number and quality of the helpers has a significant impact on the profitability of the pieceworker's operation. Since the pieceworker is paid on a production basis, the more a piece­worker can produce in a given time frame, the more a pieceworker will make. The more experi­enced and skilful a helper, the more money the pieceworker can make off the helper. The more helpers used, the more production can be supplied by the pieceworker, and therefore the more he will make. A pieceworker with a number of helpers can have a crew working for E. M. and on that same day have two helpers working for someone else. In Report I, there is an example of a piece­worker who made less in 1987 even though the rates for that year were higher than in 1986 because he was able to find more helpers in 1986 and was able to produce more.

22. Local 27 argues that the Board should apply its usual displacement policy and find the pieceworker and helper to be included in the bargaining units. With an application for certification that attempts to displace a bargaining agent in circumstances such as these, Local 27 argues that the Board's general rule is that the applicant must take the bargaining unit of the incumbent and the persons falling within that bargaining unit. Counsel for Local 27 submits that since the collec­tive agreements it has with E. M. and Westroyal cover pieceworkers and their helpers, the applica­tion of the Board's displacement policy should require Local 183 to take all of the pieceworkers and all of their helpers. Alternatively, Local 27 argues that the pieceworkers and their helpers are employees of the carpentry contractor. Counsel for Local 27 submits that the degree of control exercised by E. M. and Westroyal over the pieceworker and their helpers and the extent of the integration of the operations of the carpentry contractor and the pieceworker should lead the Board to find that the pieceworker and the helpers are all employees of either Westroyal or E. M.

23. As we understand it, there is no dispute between the parties concerning the description of the appropriate bargaining units for the E. M. and Westroyal applications. The bargaining units for the Local 183 applications involving E. M. and Westroyal will be described in the same way as they are described in the Local 27 collective agreements with E. M. and Westroyal. In effect then, we are not confronted with a dispute between these parties concerning the Board's policy in defi­ning a bargaining unit in a displacement application for certification. The essence of Local 27's position is that Local 183 is bound by the determinations of the parties to the Local 27 collective agreements with respect to who is included in the unit and who is not. The Board agrees with the submission of counsel for Local 183 that Local 183 is not bound by any agreement between Local 27, E. M. and Westroyal concerning the coverage of their collective agreement. It is open to Local 183 to argue that certain persons are employers and therefore not employees in the bargaining unit for purposes of its applications, even though the parties to the bargaining relationship treated those persons as employees.

24. In determining which of two or more entities is the employer of certain persons for pur­poses of the Labour Relations Act, the Board examines the following criteria set out in York Con­dominium Corporation, [1977] OLRB Rep. Oct. 645 at page 648:

(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 Stores Limited case, [1968] OLRB Rep. Sept. 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, [1972] 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, [1966] 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.

25. After extensively canvassing the jurisprudence, the Board in Sutton Place Hotel, [1980] OLRB Rep. Oct. 1538 explained the manner in which these criteria are to be applied:

26. The weight to be accorded the various indicia of employer status set out in York Condominium cannot be assigned in a vacuum. When one of the factors is combined with another in the hands of one company, the Board may conclude that they accurately identify the employer, though while standing alone or in some other combination they may not. The signifi­cance of each indicator can only be ascertained through an appreciation of how they all fit together within the facts of each case. It is only then that the Board can decide which factors in the particular case most accurately reflect and identify the employer for collective bargaining purposes.

27. A particularly important question answerable through an evaluation of all of the factors set out in York Condominium is who exercises fundamental control over the employees. In some cases control over hiring may reflect fundamental control. In other situations, reminiscent of a hiring hall, it may not. In some cases day-to-day supervision may suggest fundamental control, in others it may not. Similarly with the payment of wages: in the factual mix of some cases the payment of wages may, along with other factors, suggest who holds the fundamental control while in other cases it may be of minor significance. No single factor listed in York Condominium inevitably points to the possession of fundamental control. The Board's ultimate evaluation of who holds fundamental control in any particular fact situation, however, is gener­ally the single most determinative question in identifying the employer. In a word, to find the seat of fundamental control is generally to find the employer for the purposes of The Labour Relations Act.

28. Local 27 argues that the facts disclose that E. M. and Westroyal exercise fundamental control over the pieceworker and helpers. In particular, it emphasizes that the carpentry contractor is the source of the work, that it determines how much and when work will be allocated to a piece­worker, that the carpentry contractor "hires" and "fires" the crew, and that it inspects the work of the crew. Local 27 points out that the facts suggest that the carpentry foreman supervises the work of the pieceworker and helpers.

29. The factors which Local 27 points to do not in our view indicate that the carpentry con­tractors in these cases exercise fundamental control of the sort which would cause us to find the pieceworkers and helpers are employees of the carpentry contractors. The nature of the contrac­tual relationship between the pieceworker and the carpentry contractor will result in the exercise of some control over the pieceworker and helpers by the carpentry contractor. Those factors empha­sized by Local 27 flow from this contractual relationship which is not dissimilar from the usual con­tractor-subcontractor relationship. When the Board speaks of fundamental control, it is with respect to those matters which are material to the employment relationship.

30. When examining the facts of these two cases in light of the criteria set out in York Con­dominium Corporation, supra, it is difficult to conclude that the helpers are employed by the car­pentry contractors. The pieceworker exercises direction and control over the employees perform­ing the work. Although counsel for Local 27 argued that the carpentry foreman exercised this role, the evidence in the Reports does not support this contention. The pieceworker determines when the helpers start and finish their work day, whether they will work at all and what specific tasks they will perform. Although there is some evidence to indicate that the carpentry foreman on occa­sion does deal directly with a helper, the weight of the evidence supports the conclusion that the general procedure is for the carpentry foreman to raise any concerns he has with the pieceworker and then it is left to the pieceworker to decide what action, if any, he will take. From the helpers' perspective, the party bearing the burden of remuneration is the pieceworker. The pieceworker is paid a lumpsum from the carpentry contractor leading Local 27 to argue that, in essence, the car­pentry contractor bears the burden of remuneration. Since the carpentry contractor is only, in one sense, redirecting money received from the builder, the logic of Local 27's position would lead one to conclude that the builder has the burden of remuneration. The reality is that the pieceworker bears the burden of paying the helpers, not the carpentry contractor. The pieceworker determines how, what and when the helper will be paid. In addition, the pieceworker determines how it will pay overtime, vacation pay, etc. The pieceworker hires, lays off, fires and disciplines the helpers. The carpentry contractor does "hire" and "dismiss" pieceworker crews, but only in the sense that it will determine whether to subcontract work or to continue to subcontract work to a particular entity. The evidence in the Reports reveals that the helpers perceive the pieceworkers to be their employer. Even though E. M., Westroyal and Local 27 agree that the helpers are covered by the Local 27 collective agreement with E. M. and Westroyal, the evidence in the Reports does not dis­close the existence of an intention to create the relationship of employer and employee between the carpentry contractors and the helpers. Other than being obliged to provide Local 27 with the names of the crew members for benefit purposes, the carpentry contractor has little interest in how many helpers a pieceworker has, who they are and what they are paid. There was no doubt in the minds of the pieceworkers who testified that their helpers were their employees. For the most part, the pieceworkers examined did not consider themselves to be employees of the carpentry contrac­tor. An examination of the criteria referred to above and the evidence in the Reports generally points clearly to the conclusion that the pieceworkers working for E. M. and Westroyal who have more than one helper exercise fundamental control over those helpers. Therefore, the Board is satisfied that a pieceworker with more than one helper is the employer of the helpers.

31. Having determined that the helpers are employees of the pieceworkers and not employ­ees of the carpentry contractor, we turn to the issue of whether the pieceworker with two or more helpers should be included in the bargaining unit. All parties agree that the pieceworkers are eco­nomically dependent on E. M. and Westroyal. However, Local 183 takes the position that a piece­worker who employs two or more helpers is not a dependent contractor. E. M., Westroyal and Local 27 oppose this position.

32. A dependent contractor is defined in the Labour Relations Act in the following terms:

1 .-(1)(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;

31. In Canada Crushed Stone, [1977] OLRB Rep. Dec. 806, the Board was required to decide whether an owner and operator of ten trucks who employed drivers to operate the vehicles was a dependent contractor. The Board noted that in addition to considering economic depen­dency, it was necessary to consider the total character of the business in deciding whether a person more closely resembles an employee or an independent contractor in his relationship with an employer and that the employment of others is an important factor in defining the relationship. The Board asked whether the employment of others is a factor which in and of itself colours the character of the business so as to remove its owner beyond the scope of the dependent contractor provision and answered this question in the affirmative. In reaching its conclusion, the Board made the following comments:

32. In seeking to draw the line in such a way as to bring within the Act those dependent contrac­tors who by the nature of their business more closely resemble employees and to exclude those who more closely resemble independent contractors the Board has been struck by the qualita­tive difference between the contractor who derives income from the labour of others and the contractor who does not. The Board takes the view that the line must be drawn so as to exclude from the operation of the Act those contractors who, although economically dependent, are themselves employers deriving income from the labour of others. It must be found that the nature of their business is such that within the meaning of the Act they more closely resemble independent contractors than employees in their relationship with the employer. The exclusion of these persons accords with the statutory definition and also maintains the clear division between employers and employees created by the overall scheme of The Labour Relations Act.

33. If the Board was to extend the benefits of The Labour Relations Act to certain employers simply because of their economic dependency, the result would be to create the very potential for conflict of interest which the Act is designed to prevent. The constitution of the applicant in this matter extends membership eligibility to both dependent contractor-employers and to the employees of these persons conditional upon a finding by the Board that they are "employees" for purposes of the Act. If the applicant were to organize the employees of one of these depen­dent contractor-employers, the anomalous situation of an employer and his employees belong­ing to the same union would exist. (See Dr. George A. Morgan U.A. W. Dental Centre, [1977] OLRB Rep. Jan. 1.) The Act must be interpreted in such a way as to avoid the potential for conflict of interest which might thus develop if dependent contractor-employers were found to be "dependent contractors" within the meaning of the Act.

34. Having decided that the line should be drawn to exclude dependent contractor-employers from the meaning of "dependent contractor" as defined in Section 1(ga) [now 1(1)(h)] of the Act, the Board must emphasize that its decision in this regard is intended to exclude only depen­dent contractors who are employers in substance as well as form. It is this type of dependent contractor who more closely resembles an independent contractor than an employee. A depen­dent contractor with the authority to hire, fire, discipline, and set the terms and conditions of employment in respect of others is not a dependent contractor entitled to the benefits and pro­tections of The Labour Relations Act. If, however, it is found that a dependent contractor does not possess this type of authority, then, notwithstanding the fact that he may be the nominal employer of others, he may still be entitled to bargain collectively under The Labour Relations Act.

35. The applicant in Dominion Dairies Limited, [1978] OLRB Rep. Dec. 1083 sought a bar­gaining unit of persons who were engaged by the dairy to deliver its products as contractors or franchised dealers. One of the positions advanced by the respondent was that the persons whom the applicant sought to represent were independent contractors. Of the twelve drivers examined, eleven drove one truck, while one owned two trucks. The Board in this case applied the general principle in Canada Crushed Stone, supra, and determined that the person owning two trucks was an independent contractor. For our purposes, the following comments of the Board are worth not­ing:

36. The exception from the Board's finding is Mr. Leo Lanoue. Mr. Lanoue owns and operates two trucks. The trucks are used to service separate routes on a full-time basis. Normally he drives one and his son drives the other, but at the date of examination he was not active on the trucks, and both were being driven by persons employed by Mr. Lanoue. In its decision in Canada Crushed Stone [1977] OLRB Rep. Dec. 806, the Board noted that the dependent con­tractor provisions of The Labour Relations Act do not extend the protection and benefits of col­lective bargaining to persons who are themselves sufficiently entrepreneurial as to be substan­tially engaged in deriving profit from the labour of others. While the Act has been extended to protect persons in a position of economic dependence whose whole endeavour is analogous to wage earning, it does not extend to give the added strength of collective bargaining to contrac­tors who are substantially engaged in an entrepreneurial undertaking with a view to the pursuit of greater profit through the employment of others.

37. The circumstances of Mr. Lanouc, however, take him outside the principles which apply to a contractor who uses a helper to lighten his load. At the time of the examinations he performed no work and apparently derived all of his income as a profit from the labour of two employees who drove his two trucks. And while he normally drives one of his trucks, he employs his son on a permanent basis to drive the other, thereby substantially increasing the volume of his sales and the resulting profit to himself. Those facts cause the Board to view Mr. Lanoue as more closely resembling an independent contractor or distributor than an employee in his relationship with the respondent. The Board therefore finds that he is not a dependent contractor within the meaning of The Labour Relations Act.

38. In reviewing the evidence in the Reports concerning those pieceworkers with two or more helpers, the Board is satisfied that these pieceworkers are engaged in an entrepreneurial activity of the sort which more closely resembles that of an independent contractor rather than that of an employee. The more helpers a pieceworker has, the greater the opportunity to increase his profitability. The pieceworker in this situation is clearly profiting from the labour of others and is very much the master of his own business. To use the language in Canada Crushed Stone, the pieceworkers with two or more helpers are employers in substance as well as form. Their power to hire, fire, discipline and to set the terms and conditions of employment of their helpers, even though the pieceworkers are economically dependent on a carpentry contractor, indicate that the pieceworkers with more than one helper more closely resemble an independent contractor and are entities which are not entitled to the benefits and protections of the Act. Accordingly, for the reasons set out above, the Board finds that a pieceworker with more than one helper working for E. M. or Westroyal is an employer and independent contractor and that these pieceworkers and their helpers are not employees falling within either the E. M. or Westroyal bargaining unit for purposes of the E. M. and Westroyal applications.

39. Before moving on to the other major issues, one other matter requires resolution. Local 183 argued that in deciding whether a pieceworker is a dependent or independent contractor, the Board's focus should only be on the situation as it exists on the application date. Since all parties agreed that the pieceworkers are economically dependent and that the only factor which is deter­minative of the issue is whether or not the pieceworker employs more than one helper, Local 183 in effect argues that what should determine the status of the pieceworker is the number of helpers, if any, that worked on the application date. If a pieceworker regularly employs five helpers but for certain reasons only the pieceworker and one helper worked on the application date, Local 183 submits that the Board should consider that pieceworker to be a dependent contractor and include both the pieceworker and helper in the bargaining unit. E. M. and Westroyal agree with Local 183 while Local 27 disagrees. Local 27 takes the view that one must look beyond who actually works on the application date in order to determine whether an entity is an independent or dependent con­tractor.

40. As counsel for Local 183 noted, the Board has developed a number of rules that it applies in the context of certification applications. For instance, the Board has a 30-30 rule which determines who is employed in the bargaining unit in an industrial application for certification. With respect to such applications, the Board also uses a four out of seven week rule to determine whether an employee is employed on a part-time or full-time basis. Rules of this sort are necessary in order to guide the conduct of the parties and to assist in the processing of applications expedi­tiously. Counsel for Local 183 suggests that without the rule which Local 183 is advocating, appli­cants will be faced with uncertainty, have difficulty organizing and become involved in unnecessary extended litigation.

41. In construction industry applications for certification, the Board determines who is an employee by concentrating only on whether an individual is engaged in bargaining unit work on the application date. An employee engaged in carpentry work on the date of the application will be included in the bargaining unit even though that employee never previously performed carpentry work and is unlikely to ever again engage in such work for a respondent. We do not intend to detail the reasons why the Board adopts this rule since the reasons can be found in other decisions. The following cases explain the Board's approach in focusing on the application date in the con­struction industry rather than on a representative period: Gilvesy Enterprises Inc., [1987] OLRB Rep. Jan. 220; and Runnymede Development Corporation Limited, [1988] OLRB Rep. Sept. 976. We note that the Board has often indicated that it will look to other criteria to assist it in determin­ing whether an individual is an employee in the bargaining unit on the application date when there is no conclusive evidence concerning the work being performed on the application date. The appli­cation of the day of application rule in the above example will still only result in carpenters being included in the bargaining unit on the application date. In other words, although the temporal framework which the Board utilizes in construction industry applications for certification is very short, the application of the rule will not result in persons falling within the bargaining unit descrip­tion who are not in the bargaining unit on the application date. The same cannot be said for the rule which Local 183 asks us to adopt.

42. Local 183's rule for determining whether a pieceworker is a dependent contractor in essence is based only on the number of helpers that work on the application date. If a pieceworker regularly employs five helpers but for some reason only the pieceworker works on the application date, the effect of applying Local 183's rule would be not to treat such a pieceworker as an employer and to include the pieceworker in the bargaining unit. However, the fact that no helpers show up at work on the application date does not change in any material way the pieceworker's status as an employer. Employer status questions cannot reasonably be determined by whether or not any employees are at work on a given day. Applying the rule proposed by Local 183 would result in employers being included in a bargaining unit. To adopt a rule which would lead to such a result appears to us to be inconsistent with the general scheme of the Act. We agree that the Board should focus on the application date. In doing so, however, the Board finds it would be inappropri­ate to limit the focus on that day simply to the number of helpers who worked, as suggested by Local 183, rather than on inquiring into how many helpers a pieceworker employs, whether at work on the application date or not.

43. Having rejected the position advocated by Local 183, the Board is satisfied that the abil­ity of trade unions to organize employees in this industry will not be significantly more difficult. Given the rules agreed to by these parties, an organizer is faced with a fairly complicated task. We note in passing that the organizer's task is certainly not simplified when a distinction must be made between a pieceworker who employs one helper and a pieceworker who employs more than one helper. If confronted with a four-person crew, the organizer must ask questions so as to determine whether the four persons are partners, whether they are principals in a limited company, whether there are two partners and two helpers, whether there are three partners and one helper, etc. Only with such an inquiry will the organizer be able to determine who is an employee and who are employers. By rejecting Local 183's rule, the organizer will only have to ask, in situations where only one or no helpers are working on the application date, whether there are any helpers not working on that day.

44. In applying the general conclusions set out above and the agreement of the parties with respect to the pieceworker with a single helper to the material facts disclosed in Reports I and II, the Board has made the following findings concerning the persons that were examined:

E. M.

1. The pieceworkers in the following crews were independent contrac­tors at the relevant time (in other words, the pieceworkers employed two or more helpers) with the result that the pieceworker and their helpers do not fall within the E. M. bargaining unit:

(a) P & F Carpentry

(b) Joeb construction (later known as Barbosa Construction Limited)

The Board is satisfied that Jose Barbosa, the pieceworker, employed helpers at the relevant time. In our view, the fact that Barbosa paid his helpers on a pieceworker basis rather than on an hourly basis does not alter the nature of the rela­tionship between Barbosa and those persons he hires to per­form carpentry work.

(c) A. Lopes Carpentry Contractor

(d) 496089 Ontario Limited c.o.b. as T. Carpentry

(e) Belmonte Carpentry Limited.

2. The pieceworkers in the following crews were dependent contractors at the relevant time (in other words, the pieceworker employed no more than one helper) with the result that the pieceworker and helper would fall within the E. M. bargaining unit (assuming they worked on the application date):

(a) Divo Construction

(b) J & J Carpentry

(c) Marzio Carpentry

(d) Ray's Carpentry. Westroyal

1. The pieceworker in the following crew was an independent contrac­tor at the relevant time (it employed two or more helpers) with the result that the pieceworker and helpers do not fall within the Wes­troyal bargaining unit:

Scorpio Carpentry.

2. The pieceworkers in the following crews were dependent contractors at the relevant time (the pieceworker employed no more than one helper) with the result that the pieceworker and helper would fall within the Westroyal bargaining unit (assuming they worked on the application date):

(a) G & B Carpentry

(b) P. Z. Carpentry.

SECTION 1(3)(b) ISSUE IN E. M.

40. The parties were unable to agree on the status of O. Prosdocimo, G. Clausi and G. Biagioni. Local 183 argues that these three individuals do not exercise managerial functions within the meaning of section 1(3)(b) of the Act. Local 27 argues just the opposite. The parties agreed that the evidence of G. Prosdocimo would be treated by the Board as representative of the duties and responsibilities of G. Clausi and G. Biagioni.

41. As noted earlier, A. Morelli owns E. M. The evidence in Report I does not suggest that Morelli spends any significant amount of time on the job site. He selects persons to be in charge of a job site and this is a general description of what Prosdocimo does. In his evidence, Prosdocimo indicates he is a foreman and that he is paid a weekly salary. In a general sense, Prosdocimo super­vises the pieceworkers and their helpers and in a more direct sense, he supervises the hourly employees of E. M. With respect to the few hourly employees of E. M., he is in complete charge of where they will work, what they will do and he ensures that they perform the carpentry work properly. He checks the weekly time sheets of these employees to ensure their accuracy. With respect to the pieceworkers, Prosdocimo advises them what house to work on and ensures that the houses are ready for inspection.

42. Prosdocimo indicated in his evidence that he spends approximately two-thirds of his time bringing lumber to the pieceworker crews by means of a forklift. His remaining time is spent inspecting the houses. If changes are required to be made, he will direct the pieceworker to make them. Rarely will Prosdocimo work with the tools.

43. Prosdocimo does not have the ultimate authority to decide to hire, to fire or to deter­mine rates of pay. That authority rests with Morelli, the owner. However, it is clear from the evi­dence in Report I that Prosdocimo has an effective recommendation power. If the work of a subdi­vision requires one or more additional crews, Prosdocimo will advise Morelli accordingly. If Morelli decides to "hire" another crew, which would likely be the case, Prosdocimo will proceed to find another crew. His recommendation to Morelli that E. M. take on a particular crew would likely be accepted. It is not uncommon for crews to approach the carpentry foreman for work. In these circumstances, Prosdocimo, being the person most familiar with what is taking place on the job site, will make recommendations to Morelli concerning taking on an additional crew. Although the pieceworker rates and hourly rates are determined by Morelli, Prosdocimo will have a signifi­cant input into whether Morelli will adjust the rate. This would particularly be the case for the hourly employees E. M. hires directly who work under Prosdocimo's supervision. The two hourly employees of E. M. who were examined perceived Prosdocimo as having authority to hire and fire.

44. The Board does not propose to engage in a lengthy review of the Board's section 1(3)(b) jurisprudence. In Ottawa General Hospital, [1984] OLRB Rep. Sept. 1199, the Board describes the purpose of section 1(3)(b) as follows:

45. The purpose of section 1(3)(b) is to ensure that persons who are within a bargaining unit do not find themselves faced with a conflict of interest as between their responsibilities and obliga­tions as managerial personnel, and their responsibilities as trade union members or members of the bargaining unit. Collective bargaining, by its very nature, requires an arm's length relation­ship between the "two sides" whose interests and objectives are often divergent. Section 1(3)(b) ensures that neither the trade union, nor the employer and its management team, need be con­cerned that its members will have "divided loyalties

After commenting that the Act does not contain a definition of the term "managerial functions" nor any specified criteria to guide the Board, the Board stated in paragraph 9 that:

The task of developing such criteria has fallen to the Board, and in recognition of the fact that the exercise of managerial functions can assume different forms in different work settings, the Board has, over the years, evolved various general approaches to assist it in its inquiry. In the case of so-called "first line" managerial employees, an important question is the extent to which they make decisions which affect the economic lives of their fellow employees thereby raising a potential conflict of interest with them. Thus~ the right to hire~ fire, promote, demote, grant wage increases or discipline employees are all manifestations of managerial authority, and the exercise of such authority is clearly incompatible with participation in trade union activities as an ordinary member of the bargaining unit. In the case of more senior managerial personnel whose decision-making may have a less direct or immediate impact on bargaining unit employ­ees, the Board has focused on the degree of independent decision-making authority over impor­tant aspects of the employer's business. It is evident that persons making significant executive or business decisions should be considered a part of the "management team" even though they do not exercise the kind of direct authority over employees which is characteristic of a first line foreman.

45. Prosdocimo, in effect, represents E. M. on the job site. The supervisory role he per­forms and his authority to make effective recommendations concerning a number of significant matters, leads us to find that Prosdocimo, Clausi and Biagioni exercise managerial functions within the meaning of section 1(3)(b) of the Act. They exercise the kind of direct authority which leads us to conclude that their inclusion in the bargaining unit would place them in a position of conflict of interest as between their managerial responsibilities and obligations and their responsibilities as union members or members of the bargaining unit.

WERE CERTAIN PERSONS EMPLOYED ON THE APPLICATION DATE?

46. With respect to both the E. M. and Westroyal applications, the parties were unable to agree on whether certain persons worked on the date of the application. Our conclusions with respect to this issue are set out below. Before setting out our conclusions, we note the following. The Board entertained submissions concerning which party has the onus in disputes of this sort. It is unnecessary for us to decide this issue, since we did not find the evidence with respect to any of the persons in dispute to be equally balanced. We note as well that in deciding this issue insofar as the Westroyal application is concerned, the Board did not give any weight to Exhibit #6 filed by Local 27. Exhibit #6, a certified copy of a statement from the Ontario Weather Centre for April 1987, was merely filed at the examination by Local 27. The Board agrees with the submission of Local 183 that this document was not properly proved. Finally, it is unnecessary for the Board to decide whether some of the persons in dispute worked on the application date since these persons would be excluded from the bargaining unit in any event given the Board's finding that a piece­worker with more than one helper is an independent contractor and therefore is excluded from the bargaining unit.

47. The parties could not agree at the examination stage on whether C. Gomez, a partner in Divo Construction, was at work on March 10, 1986. In argument, Local 27 conceded that C. Gomez did not work on the application date. The Board is satisfied that C. Gomez was on vacation on March 10, 1986 and, therefore, is not a person who performed bargaining unit work on the application date. Local 183 takes the position that no member of the J & J Carpentry crew worked on March 10, 1986. The Board is satisfied that all members of that crew, namely I. Desousa, F. Martins and J. Martins, performed bargaining unit work on the application date. Local 183 argues that R. McKinnon, a helper for Ray's Carpentry, did not work on March 10, 1986. The Board is satisfied that R. McKinnon did work on the application date. McKinnon worked 26 hours in the week the application was filed and then sustained a work-related injury which kept him off work for some time. Given the evidence and the fact that March 10, 1986 was a Tuesday, the Board is satisfied that McKinnon probably worked in the bargaining unit on March 10, 1986.

WESTROYAL

48. Local 183 took the position that the partners in G. B. Carpentry, namely A. Barrasso and G. Gentile, and certain persons associated with P & Z Carpentry, namely R. Zambito and L. Zambito, did not perform bargaining unit work on April 30, 1987, the application date.

49. Report II contains evidence from both A. Barrasso and G. Gentile. The parties agreed that the testimony given by Gentile coupled with the testimony given by Barrasso will be represen­tative of the full testimony for Gentile on all questions and issues related to this matter. Gentile was certain he worked with Barrasso on March 10, 1986. After reviewing the evidence of Gentile and Barrasso and the parties' submissions, the Board is satisfied on the balance of probabilities that Barrasso and Gentile performed bargaining unit work on the application date.

50. The parties agreed that the testimony of P. Zambito is representative of L. Zambito. P. Zambito was quite certain he worked on April 30, 1987. The evidence concerning L. Zambito is that he worked 54 hours during a three-week period within which the application was filed. In reviewing the evidence of P. Zambito and the parties' submissions, the Board finds that P. Zam­bito did work on the application date but that L. Zambito did not.

SUMMARY

51. As noted at the outset, the Board's determinations concerning the E. M. application will not finalize the matter. The parties to that application are directed to continue to meet with a Board Officer in an attempt to resolve the outstanding matters in dispute between them.

52. With respect to the Westroyal application, having regard to the agreement of the par­ties, the Board hereby finds that all carpenters and carpenters' apprentices in the employ of the respondent in all sectors of the construction industry, save and except the industrial, commercial and institutional sector, 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.

53. In its decision of May 28, 1987 where it directed the taking of the pre-hearing represen­tation vote, the Board found that it appeared that Local 183 had the requisite degree of member­ship among the employees whom all parties agreed were in the voting constituency at the relevant time as required by section 9(2) of the Act. At that time, the Board did not make any decision with respect to the issues that must be determined under section 9(4) of the Act. Given our findings referred to above with respect to the six persons in dispute, and the agreement of the parties with respect to certain persons, the Board finds that the following persons were employed by and per­formed bargaining unit work for Westroyal on the application date: F. Gallipi, D. Gandolfi, P. Gentile, D. Rossi, V. Rossi, P. Rucella, A. Whelan, A. Barrasso, G. Gentile and P. Zambito.

54. Local 183 filed membership evidence on behalf of three employees who were employed by Westroyal and in the bargaining unit on the application date. The Board is satisfied that less than thirty-five per cent of the employees of Westroyal in the bargaining unit were members of the applicant at the time the application was made. Accordingly, Local 183's application for certifica­tion in Board File No. 0303-87-R is dismissed.

55. The votes cast in the pre-hearing representation vote will not be counted and the Regis­trar will destroy the ballots cast following the expiration of 30 days from the date of this decision unless a statement requesting that the ballots should not be destroyed is received by the Board from one of the parties before the expiration of such 30-day period.