[1991] OLRB Rep. March 306
2591-89-R Carpenters & Allied Workers Local 27 United Brotherhood of Carpenters and Joiners of America, Applicant v. Carpino Carpentry Ltd., Respondent
BEFORE: G. T. Surdykowski, Vice-Chair, and Board Members R. W. Pirrie and D. A. Patterson.
APPEARANCES: Michael A. Church and Joseph Almeida for the applicant; Sante Cannarozzi and Dominic Commisso for the applicant.
DECISION OF THE BOARD; March 7, 1991
The applicant is a trade union within the meaning of l(l)(p) of the Labour Relations Act and is an affiliated bargaining agent of a designated employee bargaining agency. Pursuant to the designation issued by the Minister under section 139(1) of the Act on April 10, 1980, that designated employee bargaining agency is The United Brotherhood of Carpenters and Joiners of America and the Ontario Provincial Council of the United Brotherhood of Carpenters and Joiners of America.
This is an application for certification within the meaning of section 119 of the Labour Relations Act which has been made pursuant to section 144(1).
On the basis of the material before the Board, and pursuant to section 144(1) of the Act, the Board was satisfied (and ruled, orally, at the hearing on March 4, 1991) that all carpenters and carpenters' apprentices in the employ of the respondent in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario and all carpenters and carpenters' apprentices in the employ of the respondent in all sectors of the construction industry, excluding 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.
The only real issue between the parties herein was whether there were any employees in the bargaining unit at the time the application was made. The applicant asserts there were two, Manuel Fernandes and Tony Fernandes. The respondent claims that these two persons were, at all material times, independent contractors, not "employees" within the meaning of the Labour Relations Act. The respondent asserts it had no employees at the time the application was made.
The Board (differently constituted) found it appropriate to authorize a Labour Relations Officer to inquire into and report to it with respect to this question. Pursuant thereto a Board Officer convened a meeting of the parties. The Officer examined Manuel Fernandes and both parties were also given the opportunity to examine him (which both did), and to call witnesses of their own (which neither did). The parties agreed that the evidence of Manual Fernandes should be treated by the Board as being representative of the duties and responsibilities of Tony Fernandes and as representative of the relationship between the two men and the respondent.
A copy of the Officer's Report to the Board, which includes a transcript of the testimony of Manuel Fernandes, was provided to the parties for their review and comments. Neither party made written representations but the applicant requested a hearing, which hearing was held on March 4, 1991.
Upon considering the evidence before the Board, and representations of the parties at the hearing, the Board ruled, orally, that Manuel and Tony Fernandes are both "employees" within the meaning of the Act for purposes of this application.
The evidence reveals that Manuel and Tony Fernandes, (together with a third individual who was not material to this application) are equal partners in a registered partnership they have named Valdevez Carpentry. Both are finish carpenters. Together with their third partner, they usually work as a team doing trim carpentry in the residential housing sector. According to Manuel Fernandes, they approached Sante Cannarozzi, a principal of the respondent, at a job site and asked him for work sometime during the summer of 1989. Although Manuel Fernandes seemed to indicate that by the fall of 1989 he and his partners were spending approximately seventy-five per cent of their time working for the respondent and twenty-five per cent working for a company referred to as Nicetrim, there is little evidence which suggests that they worked for Nice-trim on more than an occasional basis in the fall and winter of 1990-91.
The three partners jointly own a van with the name and telephone number of the partnership on it. The partners maintain this van themselves. The partners also own their own carpentry tools. The expenses associated with their van and tools are treated by them as deductions for income tax purposes.
With respect to the work performed for the respondent, the partners are paid by the house. The rate therefor, which is the "going rate" for such work, is fixed in advance between them and the respondent and varies according to the size of the house. The respondent directs them to the houses they are to work on and, other than nails, the respondent provides all the necessary materials. The partners issue an invoice for work they have completed at the end of each month. This invoice is paid in full by the respondent without any deductions or income tax, unemployment insurance, Canada pension plan, or other standard employment deductions, and, significantly, without any holdback under the Construction Lien Act. The partners receive no employment-type benefits from the respondent and carry their own Workers' Compensation coverage. Their work is not closely supervised and they work hours of their own choosing.
Section 1(1)(i) of the Labour Relations Act provides that "dependent contractors" are "employees" for purposes of the Act. Section 1(1)(h) defines "dependent contractor" as follows:
(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;
The purpose and history of the "dependent contractor" provision has been well summarized in previous Board decisions (see, for example, Atway Transport Inc., [1989] OLRB Rep. June 590, at paragraphs 44 and 45). We find it unnecessary to review that history in this case. As the Board's jurisprudence demonstrates, it can be quite difficult to distinguish between "dependent" and "independent" contractors. This is particularly true in the construction industry which, in Ontario, is very craft or trade oriented. It is essential that an assessment of whether an individual is a dependent or an independent contractor be made having regard to the context of the craft or trade in the sector of the construction industry in which the individual is engaged.
There have been many previous cases before the Board in which it has been alleged that persons who considered themselves to be self-employed were "independent contractors". In circumstances where such persons were essentially "labour only" subcontractors paid on a piece work basis to install someone else's materials on someone else's job site(s), they have been found to be dependent contractors (see: for example, Mr. Seamless Eavestroughing Thunder Bay Limited, [1974] OLRB Rep. Dec. 875, Mo-Mek Systems Ltd., [1974] OLRB Rep. Oct. 642, Toronto Drywall Services, [1976] OLRB Rep. Oct. 645, Ofira Construction, (Board File No. 1051-81-R, July 19, 1982, unreported), Supreme Carpentry Inc., [1989] OLRB Rep. Nov. 1181, GM Finishing Inc., (Board File No. 1611-89-R, February 28, 1990, unreported) among others). In that respect, the circumstances before the Board in Supreme Carpentry Inc. and GM Finishing Inc., supra, were very much like those of Manuel and Tony Fernandes in this case.
The tools owned by Manuel and Tony Fernandes are the tools of their trade in the residential sector of the construction industry. Vehicles, such as the van which they own are also typical. Nor is the fact that they provide their own nails significant. It is not uncommon for employees working at a piecework rate in residential construction to provide some consumable materials at their own cost. In effect, Manuel and Tony Fernandes were doing no more than supplying their labour, through their partnership, to the respondent, as a fixed price per unit. Supplying labour is what employees do.
Although the partners engage in work as it is available and are not restricted to working for the respondent alone, this sort of mobility is common in residential construction. Nor do they advertise or otherwise seek business as such. In addition, the evidence reveals that Manuel and Tony Fernandes spent a substantial portion of their time working for the respondent at the material times. There was little real bargaining between Manuel and Tony Fernandes and the respondent. In effect, they receive the "going rate" of remuneration and work under conditions typical of construction in the residential sector.
Because they are paid on a piece work basis Manuel and Tony Fernandes' working hours are very much driven by the economic relationship. The fact that they are paid at the end of each month for the houses they have completed also suggests a dependency relationship. The fact that they deduct certain expenses for income tax purposes does not, by itself, indicate they are independent contractors. On the evidence before the Board, such expenses could as easily be legitimate employment expenses as they could be business expenses. It is not surprising that Manuel and Tony Fernandes receive little supervision from the respondent. Being skilled workers, they require no real supervision in a traditional sense. The manner in which Manuel and Tony Fernandes obtain work suggests that they are pursuing employment rather than business opportunities. Finally, there is no real opportunity for Manuel and Tony Fernandes to make a profit in a business sense and no real risk of loss for them in their relationship with the respondent.
On the basis of the evidence, and whatever they might be for income tax or other purposes, the Board was satisfied that Manuel and Tony Fernandes were in a position of economic dependence on the respondent such that the relationship between them was more like that of employee and employer than of client independent contractor at the material times.
The Board therefore ruled, orally at the hearing, that Manuel and Tony Fernandes are dependent contractors within the meaning of the Labour Relations Act and therefore employees for the purposes of this application. There was no dispute that they were performing bargaining unit work at the material times and the Board was therefore satisfied that they were employees in the bargaining unit for purposes of this application.
The Board was also satisfied, on the basis of 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 February 6,1990, the terminal date fixed for this application and the date which the Board determines, under section 103(2)(j) of the Labour Relations Act, to be the time for the purpose of ascertaining membership under section 7(1) of the Act.
Therefore, pursuant to section 144(2) of the Act, a certificate will issue to the applicant affiliate bargaining agent on its own behalf and on behalf of all other affiliated bargaining agents of the employee bargaining agency named in paragraph 1 above in respect of all carpenters and carpenters' apprentices in the employ of the respondent in the industrial, commercial and institutional sector of the industry in the Province of Ontario, save and except non-working foremen and persons above the rank of non-working foreman.
Further, and also pursuant to section 144(2) of the Act, a certificate will issue to the applicant in respect of all carpenters and carpenters' apprentices in the employ of the respondent in all sectors of the construction industry, excluding 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 the rank of non-working foreman.