Carpenters & Allied Workers Local 27 United Brotherhood of Carpenters and Joiners of America v. Alpa Wood Mouldings Company, a division of Alpa Lumber Inc.

[1992] OLRB Rep. August 891

2208-90-R Carpenters & Allied Workers Local 27 United Brotherhood of Carpen­ters and Joiners of America, Applicant v. Alpa Wood Mouldings Company, a divi­sion of Alpa Lumber Inc., Respondent

BEFORE: Jules Bloch, Vice-Chair, and Board Members W. N. Fraser and 1J. Redshaw.

APPEARANCES: David A. McKee and Luis Camara for the applicant; Roy Filion and John Lewis for the respondent.

DECISION OF THE BOARD; August 11, 1992

1. This is an application made under the construction provisions of the Labour Relations Act ("the Act"). The applicant is a trade union within the meaning of section 1(1) (formerly l(l)(p)) of the Act and is an affiliated bargaining agent of the United Brotherhood of Carpenters and Joiners of America and the Ontario Provincial Council of the United Brotherhood of Carpen­ters and Joiners of America designated employee bargaining agency. The applicant seeks, pursuant to section 146(1) of the Act, to be certified as the exclusive bargaining agent for carpenters and carpenters apprentices employed by the respondent in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario and in all other sectors 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. (Board Area 8).

2. The issues in dispute between the parties can be characterized as follows. The respon­dent Alpa Wood Mouldings Company, a division of Alpa Lumber Inc. ("Alpa") asserts that the applicant Carpenters & Allied Workers Local 27 United Brotherhood of Carpenters and Joiners of America ("the Union") should not be certified as bargaining agent because, on November 21, 1990, the date the application was made, Alpa did not employ any employees in the bargaining unit which the union seeks to represent. Alpa submits that the individuals whom the union added to the list and characterizes as "employees" or alternatively "dependent contractors" were in fact "independent contractors" engaged as subcontractors by Alpa. Further, those individuals whom the union characterizes as "dependent contractors", employed helpers on the date of the applica­tion. Consequently, "dependent contractors", who have employees, are by the operation of law "independent contractors". The Union asserts that the six individuals Alpa added to the list after the first officer's meeting, are either "independent contractors" or were not working on the date of the application. (See the October 3 1991 decision of a differently constituted panel of the Board).

3. By decision of the Board a Labour Relations Officer was appointed to inquire into the list and composition of the bargaining unit. The officer appointed conducted the usual inquiries and examinations and prepared a report for the Board. The Board convened a hearing on Wednesday, May 13, 1992 wherein the parties filed written submissions and made oral representations with respect to the conclusions which the Board ought to reach as a result of that report and on the basis of the relevant jurisprudence.

4. There are twelve persons whose status is in dispute. The list is made up of six individu­als added by the Union and six individuals added by Alpa. The issue of onus was raised and argued before the panel. The panel adopts the test found in E. & E. Seegmiller Limited [1991] OLRB Rep. Oct. 1124 at paragraph 16:

In our view, however, questions such as this are best decided by answering the following ques­tion: “Is it more probable than not, on the evidence, that the person in dispute was an employee in the bargaining unit during the times material to the Board's considerations?" Fashioning an answer to this question may well involve various onuses, but the answer will ultimately depend upon an assessment of the evidence before the Board.

5. Alpa and the Union agree that Aderito Salvador, John Salvador, partners in JA Salva­dore Carpentry Ltd. ("JA Salvadore") Carlos Rodrigues, a helper in JA Salvador, Mauricio San­tos, and Ricardo Ferreira, partners in M.R. Finish Carpentry "M.R." and Antonio Carlos Bravin a helper with MR. were on an Alpa site within Board Area #8, performing finish or trim carpen­try work, on the application date. However the Union challenges the inclusion on the list of John Ridgewell, Robert Martin, Fiore Desantis, the principal in Desan Carpentry ("Desan"), Dave Chew, the owner of Carewood Contracting Inc. ("Carewood") Sam Porco, and Oscar Bazzone partners in Ontario Carpentry Contractors (Ontario Carpentry) on the basis that they were not at work on the application date. For the purpose of this decision it is unnecessary for the panel to make a finding of whether Dave Chew (Carewood), Sam Porco and Oscar Bazzone (Ontario Car­pentry), were at work on the application date. The viva- voce evidence relating to John Ridgewell and Robert Martin is contradictory. Exhibit 37 is an invoice from Ridgewell and Martin to Alpa, regarding first trim completed on two houses. This invoice, is the only invoice adduced in evi­dence, that covers a two week period, ending on November 30, including the application date. The evidence discloses that the pair could complete first trim work on two and one-half houses in a day. Martin could not remember if he worked any days in November. Ridgewell tescified he worked every day in November save one. During the last two weeks in November, which includes the application date, only one day's work was performed. Martin testified he worked every day until the work was finished. Therefore the Board finds that Martin and Ridgewell worked continuously until the 17th of November. They were not at work on the application date. With respect to Fiore Desantis, the evidence shows unequivocally that he was at work on November 21.

6. The parties agree that there were five distinct entities or groupings working for Alpa in and around the application date. Each of these entities can be loosely defined as a piecework crew. These piecework crews were contracted by Alpa to do first and second trim carpentry on various houses on sites in Board Area #8. Each piecework crew has a different relationship with Alpa. The relationship between Alpa and the various piecework crews, when analyzed, form the indicia necessary to determine whether the relationship is one of dependence or independence.

7. The Act defines a dependent contractor in the following manner:

dependent contractor" means a person, whether or not employed under a contract of employ­ment, and whether or not furnishing tools, vehicles, equipment, machinery, material, or any other thing owned by the dependent contractor, who performs work or services for another per­son for compensation or reward on such terms and conditions that the dependent contractor 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 Board in Adbo Contracting Company Ltd. [1977] OLRB Rep. April 197 reviewed the policy reasons behind the Legislature's decision to create the category of "dependent contractor":

17. This case requires us to explore the outer limits of the Labour Relations Act. The purpose of this statute, as set out in its preamble, is to "further harmonious relations between employers and employees by encouraging the practice and procedure of collective bargaining between employers and trade unions as the freely designated representatives of employees". The Act itself provides a structure for the organization of individual workers into combinations. Collec­tive action by workers, once regarded as amounting to an illegal conspiracy, has been legiti­mized, the underlying rationale being the need to protect the individual employee from the worst extremes of the labour market. The countervailing power of collective bargaining can now be used by workers to obtain improved wages, hours of work, and other working conditions.

18. The Labour Relations Act, however, was never intended to insulate entrepreneurs from eco­nomic competition by allowing that class of person to act in combination. Such combinations not only fall outside the purview of collective bargaining legislation, but they are also expressly restricted by the federal Combines Investigation Act. Collective bargaining policy, thus, expressly encourages combinations, while competition policy operates in the opposite direction. Given these two quite different policies, it then becomes important to identify the outer limits of our own statute, the Labour Relations Act.

19. The task of distinguishing between the individual worker and the true entrepreneur has never been easy. There exists an economic spectrum - coloured at one end by the true entrepre­neur and at the other end by the individual worker. These two points of the spectrum can be identified clearly. The businessman who sells goods, and employs others to produce these goods, is clearly not entitled to use the Labour Relations Act for the purpose of forming a com­bination with other businessmen. On the other hand, it is clear that the worker who supplies only his own labour to an employer is entitled to organize with other workers under the Act. At the shaded area toward the middle of the economic spectrum, however, it becomes difficult to draw a distinction.

20. The problem of drawing a distinction in this area is not a new one for this Board. The case of Livingston Transportation Ltd., [19721 OLRB Rep. May 488 provides a good example of the difficulties faced by the Board when determining the outer limits of the Act. The question before the Board was whether certain truck owners were employees or independent contractors. In answering that question, the Board alluded to no less than four approaches that might be taken:

1. resort to the control test used for determining the vicarious liability of an employer;

2. use of the four-fold test adopted by Lord Wright in Montreal v. Montreal Locomotive Works Ltd., et al 1946 CanLII 353 (UK JCPC), [1947] 1 D.L.R. 161, a case concerning liabil­ity for municipal taxation;

3. simply asking the question of whose business is it;

4. application of what was referred to as "the statutory purpose test".

The multiplicity of approaches that emerged in the Livingston case is some evidence of the prob­lems that then faced the Board when identifying the outer limits of the Act. Fortunately, there is now a new point of departure for distinguishing between the individual worker and the true entrepreneur.

21. The Labour Relations Act, having been amended in 1975, now provides a single, and less confusing, approach to the problem. Section 1 of the Act has been amended to provide that the term "employee" includes a "dependent contractor". That same section defines dependent con­tractor as "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 independent contractor". Section 6 of the Act, moreover, has been amended to provide that "[a] bargaining unit consisting solely of dependent contractors shall be deemed by the Board to be a unit of employees appropriate for collective bargaining but the Board may include dependent contractors in a bargaining unit with other employees if the Board is satisfied that a majority of such dependent contractors wish to be included in such bargaining unit".

22. We do not construe the inclusion of these provisions in the Act as merely amounting to a legislative attempt to codify the Board's existing jurisprudence, such as Livingston Transportation. In those cases, the question had to be framed in terms of whether a person was an employee or an independent contractor. The Board, as a result, placed emphasis on the four­fold test as set out in Montreal Locomotive Works. The appropriateness of this test for deter­mining the outer limits of a collective bargaining statute was always questionable. This concern has been best put by Dean Arthurs in his perceptive article, "The Dependent Contractor: A study of the Legal Problems of Countervailing Power" (1965), U.T.L.J. 89. At page 94, he com­ments:

Whether the "control" or the "fourfold" test is the more appropriate for identifying the "master-servant" relationship is not here material. The pertinent question is whether the factors in an employment relationship which invoke vicarious liability bear any relation to those which invite a regime of collective bargaining. The very ter­minology - "master" and "servant" - evokes a nostalgic Victorian image of authoritar­ianism which is collective bargaining's antithesis. More important, any rationale of vicarious liability focuses ultimately on the allocation of loss as between employer and injured third party, and not on the rights and duties of employers and employees, inter Se. The control test and its modern successor, the fourfold test, are thus intended to identify those features of the employment relationship which will permit the employer to escape liability if he falls outside the rationale of vicarious liability. Con­trol may be important if vicarious liability is based on a desire to discourage negligent work practices; use of the employer's tools or financial independence upon him may be important if vicarious liability is based on a desire to reach the employer's "deep­pocket," or on a "loss-spreading rationale. But the relevance of any of these consider­ations to situations where no third party is present is purely fortuitous. The rationale of labour relations legislation is that the public interest is best served by the promo­tion of collective bargaining between employers and their employees. Surely any meaningful definition must be formulated in the light of this statutory purpose. Indeed, the Ontario Board in the Telegram case recognized this fact: "[T]he elements to be considered are not alone those that were established for the purpose of deter­mining whether an employer is vicariously responsible for the tortious acts of his ser­vants, but those as well that have a bearing on the labour relations aspects of the rela­tionship...~" Yet the Montreal Locomotive test was adopted by the Ontario board in the Telegram case, and has been followed ever since.

23. The question that must now be answered by the Board is, not whether a person falling within the shaded area on the economic spectrum is an employee or an independent contractor, but whether that person is a dependent contractor. This new point of departure does not mean that considerations formerly taken into account are now totally irrelevant. The statutory defini­tion of dependent contractor clearly requires some reference to the employee-independent con­tractor distinction. A shift of emphasis has occurred, however, as this new definition recognizes that persons in an economic position closely analogous to that of the employee should also enjoy the benefits of collective bargaining. The determination of who is a dependent contractor is now a comparative exercise that requires reference to a much broader range of labour relations con­siderations.

24. This redefinition of the limits of the Labour Relations Act serves two purposes. First, it rec­ognizes that, as a matter of fairness, persons in economic positions that are closely analogous should be given the same legislative treatment. A second purpose, and one no less important, is to protect existing collective bargaining rights from being eroded by arrangements that differ only in form, but not in substance, from the employment relationship. These two considerations provide the justification for the shift of emphasis.

25. The shift of emphasis is readily apparent from a reading of the definition of dependent con­tractor. Clearly a person need not be employed under a contract of employment to be consid­ered as a dependent contractor, and provision of tools, vehicles, equipment, machinery is no longer a major consideration. Contractual form and the ownership of tools are no longer essen­tial considerations. The emphasis, instead, is placed upon economic and business factors. Both the type of economic dependence that exists, and the kind of business relationship entered into, determine whether a person more closely resembles an employee than an independent contrac­tor.

26. Economic dependence must be such that it puts the person in roughly the same economic position as an employee who must face the perils of the labour market. Mere economic vulnera­bility, however, is not a sufficient basis for a finding that a person is a dependent contractor, since this is a condition that may be experienced by the true entrepreneur, just as much as the individual worker. There must exist, therefore, a type of economic dependence closely analo­gous to that of the individual worker.

27. This first requirement of a particular type of economic dependence is closely related to the second requirement of a particular kind of business relationship. In order for a person to be con­sidered a dependent contractor, that person must not only be economically dependent upon another person, but also must be "under an obligation to perform duties for that person roughly analogous to that of an employee. This reference in the statutory definition requires us to look beyond the factor of economic dependence to the form of the business relationship to determine if it is roughly analogous to that of employer and employee. Such an examination, however, need not result in the identification of a particular contractual obligation, since a busi­ness relationship may exist, and continue, in the absence of any particular contractual obliga­tion. The Board, therefore, need not confine itself to this very narrow issue but may deal with the wider issue of the nature of the business relationship.

28. In the instant case, the facts point to the complainants being dependent economically upon the respondent Pasinato. This economic dependence arose because Pasinato, and the other bro­kers like him, were the almost exclusive source of work for the complainants. Four of the com­plainants, moreover, had relied upon Pasinato almost exclusively to supply them with work dur­ing the year prior to the events giving rise to this complaint. The fact that the relationship between Pasinato and Fidanza may have been more transitory, moreover, does not necessarily put it outside the purview of section 1 (ga) of the Act. The question is whether the economic dependence is roughly analogous to that of the employee working in the same economic sector. Fidanza, and the other complainants, were all performing work in the construction sector, an area in which employment relationships have always been less permanent that in the industrial sector. Using this analogy, we find that in this case the transitory nature of the relationship between Fidanza and Pasinato does not make Fidanza any less a dependent contractor than the other four complainants.

8. The Board in Carpino Carpentry Ltd. [1991] OLRB Rep. March 306, reviewed at para­graph 12 through 16 the relevant case authorities and indicia to be applied in a case respecting the finish carpentry industry:

12. 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 59t), 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.

13. 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 s meone 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.

14. 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.

15. 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.

16. 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.

9. In reviewing the evidence in the reports concerning the "dependence" or "indepen­dence" of the five entities working for Alpa on or about the application date, the Board finds that Carewood, Ontario Carpentry and JA Salvador were at all material times independent contractors. All three entities had relationships with other builders such that they were not dependent on Alpa for their work. An example of this is that JA Salvador left another job site with another company B&T trimming to take the contract with Alpa because it paid more. As well, both Ontario Carpen­try and Carewood had other job sites on the go with other builders in Board Area #8.

10. The Board is satisfied that the principal of "Desan" fits the criteria of "dependent con­tractor" as set out in the above noted jurisprudence. The relationship between Alpa, and the part­ners and employee of "M.R.", on its face fit most of the indicia of the dependent contractor test. However, when looking at the indicia, one of the factors that must be reviewed is the impact of M.R.'s "helper" on the relationship between Alpa and the partners of M.R. M.R. was formed at the request of Larry Trottier of Cadillac. Alpa took the job sites over from Cadillac for reasons which do not affect this application for certification. Alpa continued to use Cadillac's crews, and part of Cadillac's management team including Larry Trottier. There was no negotiation about prices. Houses were assigned by Alpa on a piece-work basis. Richard Ferreira and Maurizio San­tos, partners in M. R., and Carlos Bravin their helper worked on a piece-work remuneration basis. They supplied their own tools, nails and glue. Alpa supplied the lumber. Alpa directed them to work on certain houses. Alpa directed them to fix deficiencies. Invoices were prepared by Alpa. Alpa paid the WCB premiums, which included the coverage of their "helper". There were no employee deductions or holdbacks pursuant to the Construction Lien Act. M. R. has no phone list­ing or business card. M.R.'s partners and helper worked exclusively for Cadillac and then Alpa, when Alpa, took over the sites. They did not have either real opportunity for profit or risk of loss. This relationship was one of economic dependence. The relationship, at all material times, was more like employee and employer rather than that of client independent contractor. In all other respects, save and except the impact of the "Helper" analysis on the relationship between Alpa and the partners of "M.R.", Richard Ferreira and Mauricio Santos would be found to be depen­dent contractors. The Board finds, that with respect to the economic dependence criteria there is no substantial factual basis on which to distinguish the relationship between Alpa and Richard Fer­reira and Mauricio Santos and Alpa and Fiore Desantis the only principal in Desan. In conclusion, at all material times, the relationship between Fiore Desantis and Alpa was more like employee and employer rather than that of client independent contractor.

11. The Board's jurisprudence is replete of situations which analyze the labour relations impact of a "dependent contractor" hiring a helper. 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 trucks was a "dependent contractor". The Board noted that the issue of economic dependence was not the only indicia of dependence, in some cases, the employ­ment of others is as important a 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. In reaching its conclu­sion, the Board made the following comments.

20. 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.

21. 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.

22. Having decided that the line should be drawn to exclude dependent contractor-employers from the meaning of "dependent contractor" as defined in Section l(ga) 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.

The Board, in Hamilton Yellow Cab Company Limited [1987] OLRB Rep. Nov. 1373, found a fill-in driver in the taxi industry, not to be an entrepreneurial endeavour which on its own would change the status of the "dependent contractor" relationship:

52. The use of a helper or 'fill-in worker" to lighten the load of a person alleged to be a depen­dent contractor has never been considered, by itself, to be an entrepreneurial endeavour which would create a situation more closely resembling an independent contractor than an employee or would preclude involvement in collective bargaining. (See: Comfort Guard Service Ltd., [1978] OLRB Rep. Oct. 905, Dominion Dairies Limited, [1978] OLRB Rep. Dec. 1083, Niagara Veteran Taxi, [1981] OLRB Rep. Feb. 198, and Windsor Airline Limousine Services Limited, [1981] OLRB Rep. March 398.) In Dominion Dairies Limited the Board put the problem this way:

The line between contractors whose activities are more closely analogous to those of a wage earner, so as to make them dependent contractors, and contractors who are suf­ficiently entrepreneurial as to be excluded from that definition is not easy to draw. It can only be drawn in the light of the facts of each particular case. In Canada Crushed Stone the Board found that a contractor who owned 10 trucks which were driven by seven employees in an aggregate material hauling business that grossed $250,000 per year was not, by virtue of the entrepreneurial nature of his business, a dependent con­tractor within the meaning of the Act. In a more recent decision, Comfort Guard Ser­vices Ltd. (Board File No. 2007-77-R, as yet unreported, Oct. 6, 1978) the Board found that a heating equipment service contractor was not deprived of status as a dependent contractor merely because he sometimes made use of a helper on his ser­vice calls. In that case the Board determined that the use of a helper merely to lighten the serviceman's load was to be distinguished from the use of an employee hired on a regular basis to drive a second vehicle and make separate service calls, thereby sub­stantially increasing the contractor's capacity for profit.

When the Board is faced with the question of the effect of the use of paid help by a contractor it must determine whether, in the light of all of the evidence, the person or persons used merely assist the contractor in the performance of his work or in fact perform work that is separate and beyond the work done by the contractor, so that the contractor may fairly be characterized as master of a business that profits in a sub­stantial way from the labour of others.

In this case the Board is satisfied that the contractor-drivers who make use of a single helper, whether occasionally or regularly, do not cease to be dependent contractors by virtue of that fact. The use of a young helper to lighten the load during the summer season, to shorten the hours worked on a Saturday or to eliminate the burden of stairs on a daily basis does not thrust the contractor-driver into an entrepreneurial under­taking that can be meaningfully described as deriving profit in any substantial way from the work of others. The contractor-drivers examined used helpers when they were employed as milkmen and represented for collective bargaining purposes by the applicant prior to 1970. At that time the Board had recognized that the use of a helper did not of itself deprive an individual on his status as an employee under the Act. (Automatic Fuels Limited, [1966] OLRB Rep. Apr. 22).

12. In E. M. Carpentry (1982) Limited [1989] OLRB Rep Aug. 829 the Board found that a pieceworker with more then one employee is an employer and independent contractor. In that case the parties had agreed that pieceworkers, with only one employee, would be considered as "depen­dent contractors" and consequently their employee would be on the list in respect to the carpentry contractor. The Board in reaching its conclusion made the following comments:

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 piece-worker. 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 he 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 pieceworkers 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 skillful 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. 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 B. M. or Westroyal is an employer and independent contractor and that these pieceworkers and their helpers are not employees falling within either the EM. or Westroyal bargaining unit for purposes of the E.M. and Westroyal applications.

(emphasis added)

13. This panel is faced with a different factual underpinning then the facts found by the panel in E.M Carpentry (supra). However, the question which this panel must answer remains the same: By using a helper, have the partners of M. R. engaged in an entrepreneurial activity, such that they more closely resemble independent contractors rather than dependent contractors?

14. Antonio Carlos Bravin was assigned by the partners in M. R. Carpentry to perform the job of second trim carpentry, which included attaching the door hardware and placing the quarter round. He only worked when the partners were required to meet a deadline set by Alpa. He was paid by the house on a piecework basis. There were no employee deductions taken off the checks he received. He did not pay WCB premiums, and in fact was covered by the premium paid by Alpa. He received instructions from Larry Trottier, and also from the partners of M. R. Carpen­try, however for the most part he worked as a skilled tradesperson and was not in need of much direction. On a percentage of work done basis, the partners of M. R. Carpentry passed through the amounts of money they received from Alpa to Bravin without making a profit from his labour. There is no conclusive evidence about who had the power to discipline or set working conditions.

M. R. Carpentry was concerned with efficiency and deadline issues rather then a desire to profit off of their "helper". When deadlines for houses completed were pushed back and the partners were not under "deadline" stress, they performed the tasks of the second trim themselves. The Board finds that, employment of a helper in these circumstances was directly related to Alpa's deadline requirements.

15. Under these circumstances, the partners of M. R. Carpentry were no less dependent on Alpa than if they did not have a helper. In effect, Alpa by controlling the deadlines, and the amount of houses to be trimmed also controlled the decision about whether or not M. R. Carpen­try needed a helper. Consequently for the purposes of the Act, Alpa is the employer of Ricardo Ferreira, Mauricio Santos, and Antonio Carlos Bravin.

16. Having settled the description of the appropriate bargaining unit (see the decision of October 3, 1991, of a differently constituted panel of the Board) and finding that for the purposes of the Act Richard Ferreira, Mauricio Santos, Antonio Carlos Bravin and Fiore Desantis are employees of Alpha and are properly on the list, the Board is satisfied on the basis of all evidence before it that more than fifty-five per cent of the employees of Alpa Wood Mouldings Company, a division of Alpa Lumber Inc. in the bargaining unit, at the time the application was made, were members of the applicant on December 27, 1990, the terminal date fixed for this application and the date which the Board determines, under section 103(2)(j) of the Act, to be the time for the purposes of ascertaining membership under section 7(1) of the said Act.

17. Section 146(2) of the Act, provides for the issuance of more than one certificate if the applicant has a requisite membership support:

. . .the Board shall certify the trade union as the bargaining agent of the employees in the bargaining unit and in so doing shall issue a certificate confined to the industrial, commercial and institutional sector and issue another certificate in relation to all other sectors in the appro­priate geographic area or areas.

Therefore, pursuant to section 146(2) of the Act, a certificate will issue to the applicant affiliated bargaining agent on its own behalf and on behalf of all other affiliated bargaining agents of the employee bargaining agency named in paragraph 1 above in respect of all carpenters and carpen­ters' apprentices in the employ of Alpa Wood Mouldings Company, a division of Alpa Lumber Inc., in the industrial, commercial and institutional sector of the construction industry in the Prov­ince of Ontario, save and except non-working foremen and persons above the rank of non-working foreman.

18. Further, pursuant to section 146(2) of the Act, a certificate will issue to the applicant trade union in respect of all carpenters and carpenters' apprentices in the employ of Alpa Wood Mouldings Company, a division of Alpa Lumber Inc., in all sectors of the construction industry in the Municipality of Metropolitan Toronto, the Regional Municipalities of Peel and York, the Towns of Oakville and Halton Hills and that portion of the Town of Milton within the geographic Townships of Esquesing and Trafalgar, and the Towns of Ajax and Pickering in the Regional Municipality of Durham excluding the industrial, commercial and institutional sector, save and except non-working foremen and persons above the rank of non-working foreman.