[1989] OLRB Rep. April 337
1207-87-R The United Brotherhood of Carpenters and Joiners of America, Local Union 27, Applicant v. Calvano Lumber & Trim Co. Ltd., Respondent
BEFORE: R. 0. MacDowell, Alternate Chair, and Board Members D. A. MacDonald and J. Redshaw.
APPEARANCES: David McKee and Luis Camara for the applicant; Donald B. Jarvis, Barbara G. Wohl and Antonio Calvano for the respondent.
DECISION OF THE BOARD; April 6,1989
I
- This is an application for certification which was filed on July 11, 1987. The matter first came on for hearing before the Board on September 24, 1987. The respondent did not appear at the hearing and, accordingly, on the basis of the material before it, the Board certified the union as bargaining agent for a unit of employees described as follows:
All employees of the respondent in the City of Mississauga, save and except office, clerical and sales staff, foreman and persons above the rank of foreman.
It appeared to the Board at the time that there were two employees in that unit, and that both had signed union membership cards. Those cards, it might be noted, authorize representation by the union "in all matters pertaining to rates of wages, hours of work, and other conditions of employment" (emphasis added).
Subsequently the employer sought reconsideration of that decision, claiming that notice was inadequate, and raising a variety of arguments which, if accepted, might either preclude the Board from issuing a certificate, or persuade it not to do so. A hearing to entertain those representations took place in Toronto on April 29, 1988. At that hearing, the parties reached an agreement specifying the outstanding issues between them, as well as the order in which they would be litigated. The Board accepted the parties' agreement on the order and manner in which those issues would be addressed.
At a hearing on June 24, 1988, counsel for the union and the respondent employer agreed that the only matter which would be addressed on that date was the allegation that an employee named Comeau had not, on his own behalf, paid at least one dollar in respect of union membership fees, so as to become a "member" within the meaning of section 1(1)(l) of the Labour Relations Act. The Board heard evidence of the circumstances in which Mr. Comeau signed the impugned membership card and concluded (for reasons set out in its decision of August 17, 1988 [[19881 OLRB Rep. Aug. 735]) that the card was valid and that he was both an employee of the respondent and a member of the trade union at the relevant times.
There were two remaining issues:
(1) Was an individual named Luna also an employee of the respondent -because, if he was not, the bargaining unit would contain only one person and therefore could not be certified; and
(2) should the Board segregate full-time and part-time/casual employees into separate bargaining units, with a result, again, that no certificate could issue in respect of either unit even if Luna was considered to be an "employee" within the meaning of the Act.
We note, parenthetically, that by this, the third day of hearing, Mr. Luna had long since departed from the scene, so that the parties' endeavours and those of their counsel were focused upon a bargaining unit which now consists of only one employee. It was for that reason that the Board appointed a Labour Relations Officer to meet with the parties and attempt to effect a settlement of the outstanding issues between them, without the necessity of a further hearing which would inevitably generate additional cost to the parties and to the public as well.
There was no general settlement; however, the parties were able to agree on certain facts which formed the basis of their arguments before the Board on March 14, 1989. Those facts are as follows:
Calvano Lumber & Trim Co. Ltd. (the "Company") is engaged in the business of supplying doors and trim to residential home builders. The Company does not manufacture its product. Installation of the product is performed by sub-contractors. The Company is not engaged in the Construction Industry. The President and owner of the Company is Antonio Calvano ("Calvano").
The Company has always employed a driver or drivers to deliver its product to residential building sites. Drivers work 8 a.m. to 5:30 p.m., Monday through Friday, and receive an hourly wage. The drivers are paid weekly and are subject to all applicable statutory deductions (i.e. unemployment insurance, Canada Pension Plan and income tax). All persons who are or have been employed as drivers appear in the Company's payroll records. Drivers are given vacation time or vacation pay in compliance with the Employment Standards Act.
Russell Comeau ("Comeau") was employed as a driver by the Company on the Application Date of July 30, 1987. The parties disagree as to whether Sergio Luna ("Luna") was a driver-employee of the Company on the Application Date. Apart from Comeau and Luna, there were no other potential members of the bargaining unit on the Application Date.
The specific qualifications, duties, skills and responsibilities of a Company driver are set forth below:
Drivers are responsible for ensuring that their time-cards are punched-in and punched-out of the Time Clock at the start and finish of each work day.
Upon arrival at work, a driver will report to the shop foreman and receive delivery instructions. The foreman will tell the driver what supplies must be delivered to a particular site. The driver has knowledge of where all supplies are stored and is responsible for loading the specified supplies onto his truck. the shop foreman will give the driver copies of the Invoice/Delivery Slip pertaining to each delivery order.
After delivery of the supplies to a particular site, the driver returns to the Company shop to receive new delivery instruclions. The Company trucks do not have radio communication with the Company shop. The work day consists of going back-and-forth between various work sites and the Company shop.
As the drivers are often required to make deliveries to sites they have never been to before, the drivers must be able to read maps and understand instructions given by the shop foreman.
Upon arrival at a delivery site, the driver will communicate with either the Company's site supervisor or the sub-contractor who has been hired to install the supplies. The driver will unload the supplies and carry them to a location indicated by the site supervisor or sub-contractor. The driver will give a copy of the Invoice/Delivery Slip to the site supervisor or sub-contractor.
Drivers are responsible for the maintenance and up-keep of the Company truck assigned to them. Drivers must ensure that the Company truck has sufficient gas and oil at all times. Drivers are given a Company credit card for the purchase of gas, oil and maintenance services.
All drivers must have at least a Class "G" Driver's License and be capable of operating a standard transmission vehicle. Before drivers are assigned a Company truck, the Company will evaluate the driver's driving skills by having a member of management attend with the driver on his first delivery assignment.
Drivers are responsible for general maintenance and cleaning duties at the Company shop. At least once or twice a week drivers will be required to sweep up the Company shop. Drivers will also be required, on occasion, to unload and put away the supplies delivered to the Company by its suppliers.
During the early part of 1987 (sometime before the end of June), the Company employed a driver named Carlos Del Castillo ("Castillo"). During this part of 1987, Castillo also worked part-time at a Mexican restaurant on Adelaide Street East in Toronto. while employed at the restaurant, Castillo met Luna who frequented the restaurant. Luna was on vacation from Mexico and became an acquaintance of Castillo at the restaurant. Castillo introduced Calvano to Luna at this restaurant sometime before the end of June, 1987.
Subsequent to the time that Calvano met Luna at the restaurant, Luna appeared at the premises of the company with Castillo. A friendship developed between Luna and Calvano. In June, 1987, Castillo left the employ of the Company. However, Luna still attended at the Company after Castillo had ceased his employment.
Sometime after June, 1987, Luna attended at the Cotnpany premises and asked Calvano if he needed any help. Calvano said that Luna could ride around with the Company driver and help unload material. During the months of July, August and September, 1987, Luna appeared at the Company and offered to help a maximum of four times.
On those occasions when Luna appeared at the Company, Luna would ride with the driver and occasionally unload material. Luna neither drove any trucks nor received any instruction in the operation of such vehicles. Luna neither possessed nor was required to possess any of the qualifications, duties, skills or responsibilities listed in paragraph 4, supra.
Those occasions when Luna helped out were determined by Luna: Calvano neither requested nor solicited the assistance of Luna. Both the time and date that Luna would appear at the Company were without notice to the Company: Luna was not a part of any Company work schedule. The period of time that Luna would help out on each occasion varied from two to four hours. After the last time that Luna appeared at the Company to help out, Calvano never heard from or saw Luna again.
Luna never requested compensation of any kind for his assistance. However, Calvano voluntarily provided Luna with either a small sum of money (approximately $30.00) or a meal after each occasion that Luna helped out. On approximately two occasions Calvano bought Luna supper and on approximately two occasions Calvano gave Luna around $30.00. No vacation pay was given to Luna after the last time that he appeared at the Company premises.
Calvano had no intention to enter into an employment relationship with Luna. Luna does not appear in any of the Company payroll records.
It was further agreed that Calvano never asked to see nor was shown a work permit or landed immigrant's visa, that Luna merely told Calvano he was on vacation from Mexico, and that Luna was neither a friend nor an acquaintance of Comeau.
- With those reservations and additions, the argument proceeded without formal evidence.
II
Counsel for the employer maintains that Luna was merely a volunteer who appeared, occasionally, at the business of a friend to "help out"; and, when he did so, received a moderate financial reward, or dinner, in appreciation for his friendly assistance. This reward was in the nature of a gift or a token of appreciation. It was not "compensation" or indicative of an employment relationship. In the alternative, counsel argues that if Luna is not a "volunteer", he is properly characterized for Labour Relations Act purposes as an independent contractor. The employer argues that in either case he is not an "employee" within the meaning of the Act.
The union contends that Luna may not have been in a position to work on a regular basis because of his immigration status, but he was nevertheless an employee - albeit on a casual basis. In the union's submission Luna rendered services for compensation and such services were central to the kind of business operated by the employer. He was doing "work" for the company and each time he appeared and performed such work he was "paid" for it. The union submits that such -'payment" was not a mere '-handout" or "gift", but rather tied in a temporal and functional fashion to the services provided. The union contends that whether Luna "worked" for monetary reward or a meal, there was, nevertheless, the kind of exchange of labour for remuneration which characterizes an employment relationship. The union further argues that Luna cannot realistically be viewed as an "independent contractor" or a "self-employed" individual.
III
The parties put before us quite a number of cases concerning the legal definition of the terms "employee" and "independent contractor", and the "tests" for ascertaining a disputed person's status. Unfortunately, those cases were not very helpful since each turned on its own particular facts and the circumstances here are quite unique. For example; Telkom Corporation, [1986] OLRB Rep. June 892, Regional Municipality of Hamilton-Wentworth, [1982] OLRB Rep. Aug. 1179, and Elizabeth Fry Society of Ottawa, [1985] OLRB Rep. July 1026 all involved individuals working in non-profit organizations whose wages were subsidized by some government program. The Board found them to be employees. In Dewson Private Hospital Limited, [1983] OLRB Rep. Feb. 225 a person who had nominally retired but continued to work to "pay off" an outstanding loan to his employer was also found to be an '-employee" for the purposes of the Act. On the other hand, in York University, [19811 OLRB Rep. May 601 certain promising graduate students were attracted to the university by the payment of cash grants. They performed various tasks, but the payments were not related to the actual work performed by the recipients, the selection was mainly based upon the financial need of the recipient, and the underlying documentation indicated that the grant was not considered employment income. The Board concluded that there was no real employment relationship but simply a program for channeling money to deserving scholars without regard to whether any service was provided to the employer in return.
None of these cases is at all like the one currently before us.
The decisions of referees under the Employment Standards Act are not particularly helpful either. They are dealing with a different statutory regime where, it might be noted, one can be an employee for the purpose of that statute without any wages or remuneration in the ordinary sense at all (see section 1(c)(i) of the Act and compare section 1(c)(iii)). Thus, a referee held that an individual who regularly attended at an employer's premises for the purpose of gaining experience and learning about the business was not truly a "volunteer" even though he received no monetary payment; while an individual who gratuitously resided in a cabin and sporadically helped the owner and his friends build a house was not that owner's employee.
From the employer's perspective the closest case is an Employment Standards reference involving Yamaha Keyboard Centre (unreported) there the company took pity on a student who was a former employee. The student was allowed (in the referee's words) to "hang around" after his employment was terminated, helped out from time to time, and was the beneficiary of what the referee described as "charity" in the form of money, food, clothes, rent (for a room at the YMCA) and pocket money. If the student happened to be at the company's premises (which was not required nor requested) he might have occasionally helped in moving a piano, but the bulk of his time was spent either sitting around or playing an organ. The referee found that the student did not consider himself to be "working" and concluded that there was no etnployment relationship.
None of these cases are on all fours with the one at hand.
IV
Employment relationships may exhibit a variety of forms in different contexts, but the essence of such relationship is the exchange of labour for consideration in some form. Collective bargaining concerns the terms of that exchange and trade union representation permits even small groups of employees to improve them. It does not matter that an individual may not be "employed" or "paid" in a conventional way, nor does it matter that the alleged employee only works sporadically or shows up on the employer's doorstep and is engaged on a casual basis. Casual or day labour is quite common - especially in the construction industry. Finally, we do not think that Mr. Calvano's personal views determine the legal character of the relationship, even if he did not consider Luna to be an employee, did not engage or pay him on the same basis as Comeau, and thought he was merely helping out a friend. And, of course, we do not know Luna's view of the situation. All that we know is that he signed a document which speaks to representation in an employment relationship.
In our view, the essential elements of the equation are these: Luna appeared, asked if he could help out, was engaged for various periods of time and was paid, in one way or another, for the services provided. In our opinion the facts establish that, on the days in question, Mr. Luna was a casual employee of the respondent.
V
- We will not here review the common law distinction between "employees" and "independent contractors", nor the way in which the Board has dealt with that issue since the passage of section 1(1)(h) of the Act. (However, see generally G. Sack and M. Mitchell "Ontario Labour Relations Board Practice" at pages 71-78, and cases such as Algonquin Tavern, [1981] OLRB Rep. Aug. 1057 which analyzes that distinction at some length.) It suffices to say that, in our view, Mr. Luna is not an independent contractor. He owns no tools or equipment. He is not engaged in any entrepreneurial activity. He does not sell his services to the market generally. He has no specialized skills expertise or creativity. He carries on no business as such. He is not reasonably regarded as "self employed". He merely performed the manual work available to him in the manner directed by the respondent and in conjunction with the driver with whom he rode from time to time. He was simply a visitor to Canada who was augmenting his income from time to time, by a little casual labour provided to the respondent and for which the respondent paid in one way or another. We repeat: in our view, he was a casual employee.
VI
The respondent further submitted that even if we were to conclude that Luna was an "employee" for the purposes of the Act, we should find that in a situation where one employee was, at best, "casuallpart-time" and the other was --full-time", two bargaining units should be fashioned in such manner as to put the full-time employee in one bargaining unit, and the pan-time employee in another bargaining unit. The result of that, of course, is that neither would be entitled to engage in collective bargaining even though, as here, both employees have signed union membership cards.
The Board has made full-time/part-time distinctions in the past, but the Board has never made full-time/part-time distinctions in such manner as to prevent collective bargaining altogether. For example, where there is only one pan-time employee so that there is no legally available part-time bargaining unit, s/he will be included with the "full-time" unit where, s/he has indicated a desire for collective bargaining. Likewise, in Wickford Holdings Limited, [1982] OLRB Rep. Oct. 1578 the Board declined to divide a two-employee cleaning team employed by an apartment block, because the husband worked full-time hours and the wife worked part-time. That is the practice which, in our opinion, should inform the exercise of our discretion in the instant case.
The Board finds that the unit described in paragraph 1 above is appropriate for collective bargaining.
The Board is satisfied on the basis of all the evidence before it that more than fifty-five per cent of the employees of the respondent in the bargaining unit, at the time the application was made, were members of the applicant on August 17, 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 said Act.
A certificate will issue to the applicant.