Retail Wholesale Canada v. Diamond Taxicab Association, 1995 CanLII 9968

[1995] OLRB Rep. June 753

1926-94-R; 1927-94-R; 1928-94-R; 2935-94-U; 3231-94-U; 3299-94-U; 3300-94-U; 3301-94-U Retail Wholesale Canada, Canadian Service Sector Division of the United Steelworkers of America, Local 1688, Applicant v. Diamond Taxicab Asso­ciation (Toronto) Limited, et al, Responding Parties; Retail Wholesale Canada, Canadian Service Sector Division of the United Steelworkers of America, Local 1688, Applicant v. Associated Toronto Taxi-Cab Co-operative Limited, et al, Responding Parties; Retail Wholesale Canada, Canadian Service Sector Division of the United Steelworkers of America, Local 1688, Applicant v. Metro Cab Com­pany Limited, et al, Responding Parties; Toronto Taxicab Owners and Operators Association, et al, Applicants v. Retail Wholesale Canada, Canadian Service Sec­tor Division of the United Steelworkers of America, Local 1688; Diamond Taxi­cab Association (Toronto) Limited; Metro Cab Company Limited and Associated Toronto Taxi-Cab Co-operative Limited, Responding Parties; Retail Wholesale Canada, Canadian Service Sector Division of the United Steelworkers of Amer­ica, Local 1688, Applicant v. Associated Toronto Taxi-Cab Cooperative Limited, et al, Responding Parties

BEFORE: Judith McCormack, Chair.

APPEARANCES: James K. A. Hayes, Jeffrey M. Andrew, Dan Garvey and Guy Havel for the union; Clifford J. Hart, Robert Milkovich, Bruce Bell, Hillel Gudes, Peter Shrive, Abe Bresner and Sandy Brown for brokers Diamond, Co-op and Metro; Richard J. Charney, Stanley Steiner and Andy Reti for Toronto Taxicab Owners and Operators Association on its own behalf and for forty-seven associates; Robert A. Stewart for thirteen associates; Kevin Coon and Daniel Kayfetz on behalf of six associates; R. Sam Ramlall on behalf of Stanley Lefkovitz; Carl Rotman, Mansoor Reihani, Andy Reti, Michael and Anna Carman and Antonia Sciscente on their own behalf.

DECISION OF THE BOARD; June 30, 1995

1. These matters are a number of applications relating to collective bargaining in certain

parts of the taxi industry in Toronto. Board files 1926-94-R, 1927-94-R and 1928-94-R are three applications under section 1(4) of the Act in which the union seeks declarations that some one hun­dred and twenty-eight associates of three taxi brokers, Diamond Taxicab Association (Toronto) Limited ("Diamond"), Associated Toronto Taxi-cab Co-operative Limited ("Co-op") and Metro Cab Company ("Metro") Taxi, together with each of their respective brokers, should be treated as one employer under the Labour Relations Act. The union does not ask to have the three brokers considered as one employer, but rather each broker and its associates. Accompanying relief is requested under section 1(4) as well.

2. Board file 3231-94-U is a complaint filed by the Toronto Taxi Owners and Operators Association representing a number of associates alleging that the brokers and the union violated the Labour Relations Act which has been adjourned sine die. Board files 2935-94-U, 2936-94-U, 3300-94-U, 3301-94-U and 3299-94-U are complaints filed by the union against various brokers and associates which have also been adjourned sine die. As a result, the focus of these proceedings was on the section 1(4) applications.

I. The Parties

3. The brokers in this case are three major taxi companies who provide taxi services to the public. Initially, they opposed these applications, and counsel appeared on their behalf in the hear­ings. As the hearings progressed, an agreement was reached in regard to certain issues between some of the parties on March 3rd, 1995 about which more will be said later. Counsel then withdrew for the remainder of the proceedings in effort to save expense for his clients. Hillel Gudes, Co­Managing Director of Co-op, represented the brokers subsequently, and he indicated that while they did not support the application, they no longer opposed it. Towards the end of the case, Mr. Gudes advised that he could speak only on behalf of Co-op at that point. No spokesperson appeared for the other two brokers.

4. The applicant union was certified to represent taxi drivers of the three brokers in the summer of 1993. The employees in these three bargaining units include drivers who drive a taxi for associates either on a commission or leased daily shift basis and all single plate owners and lessees who also drive and their drivers. The bargaining units do not include absentee single plate owners, all multi-plate owners and lessees and all single (non-operating) and multi-plate designated agents.

5. Associates are defined by the parties to mean taxi fleet owners, operators, lessees, cus­todians or agents who own, control or manage more than one taxi or taxi license or lease, or single taxi license owners who are non-driving owners, and who carry on business in association with one or more brokers.

6. The Toronto Taxicab Owners and Operators Association ('TI'OOA") represented some forty-seven associates during the course of these proceedings and requested standing in its own right. It was not necessary to resolve the issue of standing because the other parties did not pursue their objections to the participation of TTOOA in the applications, although they did not acknowledge that it had any right to do so. A number of other associates also participated in the hearings, either represented by counsel or on their own behalf.

7. Subsequent to the March 3rd agreement referred to above, TTOOA took the position that it neither opposed nor supported the applications. This left approximately twenty-six of the one hundred and twenty-eight associates as the only parties opposing the applications. (I use the word "approximately" because the number of opposing associates fluctuated slightly during the course of the hearings.)

8. Considerable efforts were made by the Board with the assistance of the parties to ensure that all parties entitled to notice of the proceedings received such notice. Among other things, a substantial amount of correspondence was addressed to a plethora of individuals and companies named by the parties, notices were published in the Taxi News, and notice was given over the radio dispatch system. The parties also provided the Board with updated addresses where necessary. In addition, these proceedings were referred to in a variety of communications sent out by 'ITOOA, the brokers and the union. The parties also agreed as a fact that with the assistance of the brokers, T~OOA and counsel for certain associates, the union and the Board had endeavoured to give notice of these proceedings to all persons falling within the category of "associate" of the three brokers, and that through sufficient publication in the media as directed by the Board all associates with each broker were or ought to have been aware of these proceedings.

II. Background

9. In early 1991, the union began to organize drivers who drive taxis for associates affili­ated with the main Toronto brokerages, and applications for certification were filed that summer. The brokers resisted the applications for certification on the basis that the drivers were self-em­ployed independent contractors, and were thus not entitled to engage in collective bargaining. On the basis of the evidence before it, the Board concluded that the drivers were dependent contrac­tors of the brokers. Since the definition of "employee" under the Labour Relations Act includes dependent contractors, the ballots were counted in the representation votes held by the Board and in June, August and September of 1993, the union was certified as the bargaining agent for employees of Co-op, Diamond and Metro respectively.

10. Bargaining took place over a period of time between February and August of 1994. There is little dispute that this first set of negotiations was difficult. Talks were carried on between the union and the brokers, although some associates were in attendance. The negotiations neces­sarily concerned important issues, such as dispatch and rental/lease fees payable by drivers, which touched on the relationships between drivers and associates as well as between drivers and bro­kers.

11. Negotiations eventually broke down and a protracted and disruptive strike commenced

on August 20th, 1994 which the parties agree seriously impaired the provision of taxi service to the public. There was also no disagreement that the disputed status of the associates for labour rela­tions purposes exacerbated the difficulty of both the bargaining process and the strike.

12. The strike was a volatile one which involved demonstrations, litigation before the Board, and criminal charges. At the end of August, the union filed the section 1(4) applications and in September of 1994, the strike came to an end when the parties agreed to have the outstand­ing disputes mediated and if necessary, arbitrated by Senior Mediator Alan Heritage of the Minis­try of Labour and the Board's Alternate Chair R. 0. MacDowell (acting in a private capacity and on apro bono basis).

13. During the course of the mediation and arbitration proceedings, TTOOA became alarmed by the nature of some of the issues which affected associates and sought to intervene and make submissions on behalf of its members. Since such intervention came relatively late in the pro­cess and 'ITOOA had no standing in the existing collective bargaining relationship, the arbitrator refused to entertain its submissions.

14. In November of 1994, counsel representing T~OOA wrote to counsel for the union and the brokers referring to the section 1(4) litigation. In that letter TTOOA asserted that in light of those applications, the associates represented by TTOOA were entitled to participate in the bar­gaining process and to execute any collective agreements which were concluded. Subsequently TTOOA filed its unfair labour practices complaint alleging that the failure to allow its members to participate in the negotiations and the arbitration constituted a violation of the duty to bargain in good faith on the part of the brokers and the union. In that same month, the Board began pre­hearing and mediating these applications and the unfair labour practice complaints.

15. Arbitrator MacDowell issued an award on December 9, 1994 which included, among other things, a fact-finding! contract reopener process on all economic issues. The resulting collec­tive agreements with the three brokers are effective from December 9th, 1994 to December 8th, 1996.

16. The formal hearings on these applications commenced at the beginning of January 1995 before the Chair of the Board, although mediation efforts continued during this period of time with the assistance of the Board's Labour Relations Officers, Alternate Chair and Vice-Chairs. During the course of these efforts, the union, the brokers and 'ITOOA were able to reach agree­ment on the form of relief which should accompany section 1(4) declarations in the event that the Board decided such declarations should issue. This is the agreement which I have referred to as the March 3rd agreement. In essence, it establishes a process and structure for the representation of associates in collective bargaining analogous in some respects to accreditation. Some thirteen asso­ciates represented by Robert Stewart did not join in that agreement and proposed another form of relief. The parties asked the Board to rule on this issue in the form of interim orders and directions to assist them in the mediation process. An interim decision in this regard was issued by the Board on March 22nd, 1995.

III. The Facts

17. It became apparent early in these proceedings that the parties wished to put before the Board a great deal of technical evidence about the taxi industry. Since much of this ground had already been canvassed in the certification and arbitration decisions referred to above, and since it was apparent that it would consume a tremendous amount of hearing time, the Board worked with the parties to enable this evidence to be presented in an expedited manner. This took the form of using a number of documents including the certification and arbitration decisions, the pleadings, the March 3rd agreement and other material as vehicles for arriving at a body of uncontested facts. To facilitate this process, the parties were directed to put in writing all the facts upon which they each relied.

18. Although the union did not contest the material put forward by Mr. Stewart on behalf of some opposing associates in this regard, he indicated that he wished to call viva voce evidence which would involve testimony from fourteen witnesses. The parties were then directed to file "will-say" statements for any witnesses they wished to call. As their name suggests, the statements were to include all the evidence that the party calling those witnesses anticipated from them. After Mr. Stewart furnished those statements, James Hayes on behalf of the union indicated that his cli­ent was prepared to accept those statements as the evidence of the witnesses involved, although he did have comments to make about the weight, relevancy and implications of different aspects of them. Mr. Stewart continued to insist that he wished to call those witnesses to give viva voce evi­dence. The majority of the material contained in the will-say statements was uncontested and repetitive. Mr. Hayes indicated that he did not plan to cross-examine Mr. Stewart's witnesses.

19. As a result, each of Mr. Stewart's witnesses was sworn in and given the opportunity to testify. However, that testimony was limited to adopting the contents of the will-say statements filed. Since there were no restrictions on what counsel could include in those will-say statements, the associates represented by Mr. Stewart had the opportunity to present to the Board any evi­dence they wished the Board to hear. Credibility was not an issue in any meaningful sense in these matters. The Board did hear the viva voce evidence of one witness, Carol Rudell-Foster, the gen­eral manager of the Metropolitan Toronto Licensing Commission, from whom Mr. Stewart indi­cated he had difficulty obtaining a will-say statement.

20. Through this process, a voluminous body of evidence was placed before the Board. The facts set out here represent a synopsis of the more salient aspects of that evidence. However, I have carefully considered all of it, whether it is specifically referred to in this decision or not. In some places, I have excerpted from the uncontested facts verbatim; in others I have summarized the evidence. Parts of the evidence recited are almost identical to that set out in the certification decision, the arbitration award or the March 3 agreement referred to above because the parties agreed that they did not dispute those facts in the form of those documents, sometimes with modi­fications. Almost all the evidence set out here was not contested. Occasionally the evidence pro­vided by Mr. Stewart's clients conflicted with facts which Mr. Stewart had agreed were not in dis­pute. Where this happened, I have relied on counsel's agreement on behalf of his clients.

21. Turning then to the substance of those facts, they reveal a complex matrix of economic relationships among the various players in an industry that is heavily regulated by the Metropolitan Licensing Commission. There are about 3,500 taxis licensed to operate in Metro Toronto. Owner­ship of licenses or plates is not concentrated in that about half are held by persons or corporations having one plate each. The remaining 1700 are probably held by an additional 600 persons or cor­porations. In total there are approximately 2,300 individual entities holding the 3,500 plates. Addi­tionally, there are approximately 9,000-10,500 persons who hold taxi drivers' licenses, or coupled with owners, more than 12,500-15,000 individuals legally entitled to drive the 3,500 taxicabs in Metropolitan Toronto. Most of these plates are associated with one broker or another; approxi­mately 600 are independent of any broker.

22. The origins of the brokers relate to the development of technology in this industry. Prior to the use of the two-way radio becoming prevalent in 1947, there were many family ­operated taxi companies which hired drivers and paid them wages for driving taxis in their small fleets. Since most of those small companies could not afford to operate a radio dispatch system, when it became necessary to use this form of communication to remain competitive they banded together in groups of three or four companies so that they could be dispatched by radio from a single office. However, problems of favouritism developed because the fleet owners who took turns doing the dispatching tended to favour taxis in their own fleets. Taxi brokers such as Diamond came into existence in the late 1940s in order to provide broader coverage, better services and a means of further spreading dispatching costs. Use of brokers resulted in some loss of control by taxi owners over their drivers, as the owners no long knew where their drivers were. Commission payments replaced wages as the means of remuneration for drivers. Problems of favouritism, although not totally eliminated, were reduced by having the dispatching done by full-time dispatch­ers employed by the broker and by having the broker own no plates.

23. Of course, the brokers now have a life of their own as commercial entities which offer taxi services to the public. This is done through advertisements, order-taking, dispatch services and a charge account/collection service. Nevertheless the brokers themselves, as corporate bodies, still do not own taxi plates. These are owned, controlled or managed by associates, who through con­tractual arrangement affiliate with the brokers with the effect of permitting taxi service to be pro­vided to customers under the commercial umbrella of the brokers. The brokers' income is derived mainly from monthly dispatch fees levied on each taxi operating within the brokerage, as well as administration charges on fares paid by charge account. Revenues are derived from these fees and service charges, customer service charges and miscellaneous revenues including the sale of promo­tional items. In addition to providing dispatch and other services, the brokers give some overall structure to the industry. The three brokers in these proceedings are among the largest in Metro­politan Toronto.

24. It is apparent from the evidence that although there are some differences in the compo­sition of the three brokers, those differences are not significant for the purposes of these proceed­ings. In this respect, the evidence in regard to Diamond is useful as a rough guide to all three.

25. Diamond is structured as an association of members which is governed by a Board of Directors. Those members may include persons falling into the categories of either bargaining unit drivers or associates, depending on how many plates they own, lease or manage, and whether they drive or not. For the purposes of this decision, I will address membership in terms of the associ­ates.

26. The associates enter into association with Diamond by applying for membership. This involves signing a contract in which the associate becomes a member of the "association", that is, the broker. The contract is automatically renewed from year to year, but can be cancelled at will by either side. The associate must be a taxicab owner, lessee, or designated agent of a plate. This service contract sets out a flat monthly fee for dispatch and other services. The broker then pro­vides the associate with a computer, although the necessary radio and meter must be provided by the associate. The radio equipment supplied by the associate must be of a nature and kind satisfac­tory to the broker and must be maintained by the associate in good order and condition.

27. In some cases, associates will be principal officers of the broker as well. Diamond has nine directors, all of whom are members of Diamond with the exception of one person who leases to members. In addition, directors of the brokers sometimes act as designated agents for owners of taxicabs, and as such, enter into leasing arrangements with other licensed drivers and owners. They can require that the lessees of these vehicles remain in good standing as members of the broker, and if they terminate their service contract, the vehicle's ownership is transferred back and another lessee is sought. The lease and rental fees from the individual lessees in this arrangement are col­lected by the broker and paid by the broker to the owners.

28. The brokers provide a certain amount of advertising and promotional material to the associates such as roof signs, decals, and receipt cards with the broker's logo on them in addition to

equipment such as a credit card imprinter. Diamond, for example, also spends thousands of dollars annually on promotion and advertising designed to attract both customers and associates. Associ­ates must install and maintain the broker's roof signs, and must not display any other name on or in the cab. The Diamond service contract specifies that the number of the taxi in the broker must also be displayed prominently on both sides of the taxi and the rear portion of the roof. The taxis must be painted in the broker's regulation colours because they serve as "travelling billboards" to attract customers to the broker.

29. Associates submit credit card vouchers to Diamond which submits them to the source of the imprinter. The source issues cheques to broker which in turn issues cheques to the members.

30. The brokers also provide a collection service for taxi passengers who maintain charge accounts. By the terms of the contract between the associate and Diamond, the associate may only extend credit to such persons, firms or corporations as are approved by the broker's Board of Directors. Brokers recruit charge account customers by assuring that reliable drivers will be dis­patched to meet their needs. The broker benefits from this arrangement because business is attracted to the brokerage, which in turn becomes more attractive to the associates and others operating within the brokerage organizations. Similarly the associates benefit from access to charge account customers that the brokerage has been able to amass. Corporate accounts are the back­bone of each brokers' business, providing a solid and reliable revenue base for brokers, associates and drivers.

31. Both Bylaw 20-85 (about which more will be said later) and the service contract which Diamond enters into with its associates require that associates provide public liability and property damage insurance for their plates. Diamond's concern about associates having such insurance is based upon the possibility that someone injured in an accident involving a taxi operating under Diamond's banner may seek to obtain relief from Diamond, as has in fact occurred in several cases.

32. Diamond has a number of policies and procedures designed to protect its good will, maintain a fair and equal distribution of dispatched calls, and fulfil its responsibilities under By-law 20-85, which it communicates to associates through occasional newsletters. It enforces its rules and policies by means of penalties which generally involve suspensions from access to the dispatch sys­tem. Subjects addressed by those rules and policies include the appearance of drivers, the appear­ance of cars, the colour scheme of cars, courtesy to customers, charge account procedures, failure to respond within thirty seconds to a fare offered by dispatch, rejecting a fare, "scooping" a parcel or passenger dispatched to another car, failing to service an order or deliver a parcel promptly, and so forth. Diamond has a system of inspectors which enforce these rules and policies in addition to other means of identifying violations. In cases of serious or repeated infractions or customer com­plaints, drivers may be banned from driving any car under the Diamond roof sign. On occasion, Diamond may notify the owner of the taxicab driven by the offending driver, and may notify sev­eral of its associates having the largest fleets of the identity of the banned driver. An average of approximately ten to fifteen suspensions from the dispatch system occur per shift. If an associate continues to use a banned driver after being directed to refrain from doing so, Diamond may can­cel the associate's service contract.

33. Suspensions from the dispatch system are sometimes imposed at the request of an asso­ciate. In such circumstances, the driver is sent a computer message to call the associate and is then suspended from receiving any dispatched calls until after the associate advises Diamond that the requested contact has been made.

34. Diamond does not generally know who is driving any particular taxi with a Diamond

roof sign at any given time because the drivers are engaged by the associates, or in some cases, other drivers. Although Diamond has the capability of implementing a driver identification system through its dispatch computer, it has not elected to do so.

35. Co-op was originally a breakaway from Diamond. Co-op's relationship with its mem­bers is very similar to that of Diamond and its members, although it does not have a written service contract. However, the application for membership in Co-op requires the member to agree that it will paint the cab in the official colours and affix decals, includes a dress code, prohibits cellular phones, (although this has not been enforced), sets out the terms for the roof sign, stipulates the discipline process not just for drivers but for owners and lessees as well, and includes provisions with respect to charge coupons, credit cards, dues, gas quotas, and so forth. The application also indicates that licensed taxi owners can purchase shares in Co-op after they have operated out of Co-op for six months. Shareholders pay less dues, participate in the profits of the company and have the opportunity to obtain death benefit insurance. Co-op has greater knowledge than Dia­mond of who drives the taxis operating under its roof signs, since drivers must enter their personal identification numbers in order to log on to the dispatch system.

36. There are some minor differences between these operations and those of Metro Cab. For example, the corporate structure of Metro appears to be more traditional, and it imposes a painting requirement only on those taxis operating under the Metro banner, and not the Yellow Cab banner which it also owns. On the evidence before me, however, those differences did not appear to be significant with respect to the issues involved in this application.

37. There are many forms and variances of working arrangements between owners (which may include associates) and drivers. Some of the more common methods used are as follows:

• a single taxi owner owning his own vehicle may allow other licensed drivers to drive his cab for varying periods or shifts for a flat negoti­ated fee.

• a multiple taxi owner owning vehicles may allow other licensed driv­ers to drive for varying periods (i.e. weekly, daily, or pre-determined daily shifts) for a negotiated fee, or for posted, pre-set established prices.

• single or multiple cab owners may directly enter into leases with driv­ers or other owners where only the plate is attached to a vehicle owned by the lessee. The vehicle is registered in the name of the owner for the purposes of operating as a taxi.

• single or multiple cab owners may designate an agent, or agents to oversee the operation of their plates. Agents so designated must themselves be licensed as either a taxi driver or a taxi owner by the Metropolitan Licensing Commission. The designated agent would then have the same powers of the owner to enter into various forms of leases as referred to above.

38. There may be personal, commercial or family connections between the larger associates and those who run the brokerages. Groups of plates may also be effectively controlled by the bro­kerage if the owner or principal of the broker (directly or indirectly) is the designated agent for plate owners who choose not to manage the plate themselves. For example, the spouse of a plate owner might inherit a plate and turn it over to an agent to manage, having little to do with it thereafter. If that designated agent is a broker, or an employee of the brokerage or a relative of the owners of the brokerage, the broker may have considerable influence over that particular plate. On the other hand, plate acquisition or ownership may also be a form of investment for individuals with knowledge of the industry. That kind of plate owner is much more sophisticated, independent and mobile, even if he or she also employs a designated agent.

39. Although brokers are not themselves plate owners, they may be able to influence own­ers through family or business relationships or simply because it is in the associate's interest to maintain a satisfactory relationship with the brokerage. While ownership and control of the plates may be separated, the brokers do have a degree of leverage even if they do not own the asset or have total control over its owner. That is especially so in the case of plates for which a broker is the designated agent. And associates within a brokerage do have to work together in what all the asso­ciates hope will be a profitable business association, hence, for example, Diamond's name.

40. Associates may be affiliated with more than one broker in respect of different plates, and may operate cars within both unionized and non-unionized brokerages. However, most multi-plate owners have all their cars under a single banner. Among other things, the parties agreed that the fact that associates work out with the drivers matters concerning hours of work, starting and quitting times, days off, rental fees, and the application of seniority in such things as staff reduc­tions or better shifts was not in dispute. Drivers pay daily and weekly shift fees to associates for the right to drive the car during the chosen shift in the hope of earning more than what they have paid plus the cost of fuel.

41. The drivers in these three bargaining units predominantly include licensed taxi drivers who, through various rental and lease arrangements, operate taxis or leases owned or operated by associates under the commercial umbrella of the brokers. These drivers also include individuals who own one licensed taxi which they drive themselves, and who have affiliated directly with a broker. The income of drivers is the excess, if any, of the fares paid to them by taxi patrons beyond the fees and charges payable by them to the brokers and associates. The parties were not in dispute that just as drivers are employees or dependent contractors of the brokers, so too many of the driv­ers are directly engaged at the same time by some of the associates and are also in a relationship of dependence upon them for access to key assets in the taxi industry as well as access to work. It was not contested that the associates have to different degrees, control, whether shared or otherwise, over these key assets in the taxi industry. Such assets included, but was not limited to, taxi plates rented or leased to drivers and in some cases vehicles, dispatch receiving equipment and garages.

42. In reaching its conclusions with respect to the dependent contractor status of drivers in relationship to the brokers, the Board noted in the certification decision that drivers regularly and consistently derive a substantial portion of their income from a combination of fares dispatched by the broker under whose banner they drive and flagged fares paid by means of that broker's corpo­rate account chits. The broker exercises detailed control over the performance of their work by means of an elaborate system of written or unwritten rules and disciplinary responses which effec­tively penalize anyone failing to meet its standards. Although drivers are free to change brokers, this merely shifts their dependency from one to another. The Board concluded (and the parties agreed that it was not disputed in these proceedings) that the drivers were an integral part of the broker's operating organization, subject to substantial control by the broker who imposes disci­pline for improper conduct.

43. As a result, the Board found that the drivers were dependent contractors within the meaning of section 1(1) of the Act as they were persons who perform work or services for the bro­ker for compensation on such terms and conditions that they were in a position of economic depen­dence upon and under an obligation to perform duties for the broker more closely resembling the relationship of an employee than that of an independent contractor. In reaching this conclusion, the Board stipulated that it was not expressing an opinion as to whether the drivers were also employees of anyone else. That, said the Board, is a matter for determination under section 1(4) of the Act.

44. It was not disputed that issues relating to the associates created some serious difficulties in bargaining. One of the more obvious examples involves the income of bargaining unit members, a traditional subject of negotiations. Since the drivers do not receive wages, their earnings amount to what remains after they pay their costs. Accordingly, in order to raise a driver's earnings, one has to regulate or reduce those costs (or perhaps increase fares). To be effective, there was no dis­pute that collective bargaining must address those costs as this is one of the few ways that the union can bring about a wage increase or even stabilize the drivers' income. Since in many cases it is the associates who are charging the rental and shift fees, addressing those costs in the absence of a for­mal role for the associates in bargaining is at the very least, problematic. In the course of the inter­est arbitration, the union asked the arbitrator to regulate rental and shift fees as a means of addressing driver income. The arbitrator declined to accede to the union's proposals, citing among other things that the effect would be to regulate the return on assets owned or managed by third party plate holders, including associates. In the case of shift fees, the arbitrator noted that the cuts or restructuring proposed by the union might be pursued when the information base had been expanded and the role of the associates clarified.

45. Similarly, in the course of negotiations, the union sought a provision restricting the transfer of plates to another dispatch system without the union's consent, a proposition which has significant implications for the stability of the collective bargaining relationship. However, as the arbitrator pointed out in declining to award such a provision, the brokers do not own the plates, and again, it would result in regulating the assets of third parties, which included associates. The union also proposed that the brokers and associates should contribute to a health and benefit pack­age, a proposal the arbitrator rejected for a number of reasons, including the fact that the associates' status was subject to these proceedings.

46. In other words, the associates' role in the industry and their lack of legal status in the collective bargaining process was a persistent issue in negotiations.

47. In some cases, the brokers and the union agreed upon collective agreement provisions affecting the associates. The collective agreements provide for dues to be collected by associates in the following manner:

6.02 It is the duty of all the Associates to ensure that each dependent contractors' monthly dues and/or assessments are properly collected and recorded.

6.03 Each multi-plate Associate shall collect from all dependent contractors driving one of his vehicles by the 20th day of each month all union dues, assessments and initiation fees and shall submit to the Company [the broker], by the 1st day of the following month, a cheque payable to the Union in the said amount along with a list containing the names, addresses, telephone num­bers and taxi driver's license number of such drivers. The Company agrees to submit to the Union, by the 15th day of the month, the cheques and driver lists received from the Associates. Any dependent contractor fraudulently using another dependent contractor's identification number will be dismissed.

All lists provided to the Company shall contain the following declaration signed by the person who prepared the list:

"This list was prepared by me or under my instructions and I hereby confirm its accuracy."

The Company shall collect dues, assessments, and initiation fees for single car owners/lessees, who pay dispatch fees directly to the Company, and their drivers and submit to the Union with a list at the same time. All lists provided to the Company shall contain the following declaration signed by the person who prepared the list:

"This list was prepared by me or under my instructions and I hereby confirm its accuracy."

6.04 It is acknowledged that in collecting and recording Union dues, assessments and initiation fees the following will apply:

(a) any dispute arising out of the collection of dues, assessments and/or initiation fees shall be taken up with the individual Associate. The Company will use its best efforts to assist the Union in attempting to resolve such disputes. Any unresolved disputes may be dealt with pursuant to the grievance procedure. The Associate agrees for any NSF cheque payable to the union here­under or for each business day a cheque payable to the Union hereunder is late or insufficient, the Associate will pay a penalty of fifty dollars to the Union. For any NSF cheque, the Union shall have the right to demand certified cheques in the future from such defaulters.

(b) In the event of overpayment of dues, assessments or initiation fees by the Associate, the Associate shall deal directly with the Union.

(c) The Company does not accept any liability for errors, accuracy or corrections of any of the information supplied by the Associates.

6.05 The Union agrees to give the Company one (1) month's notice, as follows, in writing, of any changes to the prevailing Union dues, assessments and/or initiation fees. The Union will provide one hundred (100) copies of any such notice to the Company for distribution to the Associates.

48. The parties to the collective agreements are recited as the union, the broker, and the associates, although the agreements are signed only by the union and the brokers. The agreements also contain provisions in attached schedules with respect to time off which commence "The Com­pany and the Associates agree that time off will be governed by the following:". One collective agreement lists the associates of that broker.

IV. The Law

49. Section 1(4) provides as follows:

Where, in the opinion of the Board, associated or related activities or businesses are carried on, whether or not simultaneously, by or through more than one corporation, individual, firm, syn­dicate or association or any combination thereof, under common control or direction, the Board may, upon the application of any person, trade union or council of trade unions concerned, treat the corporations, individuals, firms, syndicates or associations or any combination thereof as constituting one employer for the purposes of this Act and grant such relief, by way of declara­tion or otherwise, as it may deem appropriate.

50. The Board has noted on a number of occasions that there are three elements to section

1(4):

(a) there must be more than one corporation, individual, firm, syndicate or association involved;

(b) these entities must carry on associated or related activities or busi­nesses, whether or not simultaneously; and

(c) the associated or related activities or businesses must be carried on under common control and direction.

51. The language of these provisions indicates that a measure of discretion has been given to the Board in this regard. Firstly, the conclusions with respect to whether the required elements exist are "in the opinion of the Board". Secondly, the use of the word "may" with respect to the Board's powers to treat the entities as one employer and grant relief reflects that even where these conditions exist, the Board has the power to decline either to make declarations or direct other remedies.

52. In Industrial Mine Installations Ltd., [1972] OLRB Rep. Dec. 1029, the Board observed that the purpose of section 1(4) was to address the problems arising from being unable to define the employment relationship:

Section 1(4) is obviously contemplated to cure the mischief that results from being unable to properly define and tie down the employment relationship. In many situations where companies have a close relationship an employee may be shifted from one company to another so that his employment relationship, at any given period, is difficult to define in terms of one employer. So too, the number of employees employed by one of those companies at any given time may be impossible to ascertain.

Prior to the enactment of section 1(4), where such situations existed, it was difficult to define the employment relationship and to determine the proper employer for certain purposes under the Act. For example, in certification proceedings it was necessary to determine the proper employer in order to determine whether the union had sufficient membership among the employees to be certified.

Also, in some situations where a union had been granted bargaining rights for the employees of one employer, the employees could be shifted to another associated or related employer with the result that the bargaining rights which had been earned by the trade union for the employees was lost.

So too, in the case where associated or related employers joined in a common enterprise and used one work force, which was shifted and transferred from time to time, the certification with respect to one employer only was, in effect, a certification of a segment of the total enterprise, and could seriously impair the totality of the business operations by inhibiting the shifting of employees between union and non-union segments of the enterprise. It was also possible in situ­ations where associated or related companies carried on a single enterprise that employees of the separate legal entities could be represented by different trade unions so as to cause the bar­gaining rights within the single enterprise to be unduly fragmented. An example of the type of situation where section 1(4) was applied is found in Walters Lithographing Company Limited, et al., [1971] OLRB Rep. July 406.

It is in these types of situations that the interests of the parties in having the Board treat sepa­rate employers as constituting one employer for the purpose of the Act became apparent, and it is for that reason that section 1(4) was enacted.

53. Subsequently in Brant Erecting and Hoisting, [1980] OLRB Rep. July 945, the Board commented that section 1(4) allowed it to pierce the corporate veil so that bargaining rights would attach to a definable commercial activity rather than the legal vehicles involved:

Section 1(4) was enacted in 1971 and deals with situations where the economic activity giving rise to employment or collective bargaining relationships regulated by the Act, is carried out by, or through more than one legal entity. Where such legal entities carry on related business activi­ties under common control or direction, the Board is empowered to pierce the corporate veil. Section 1(4) ensures that the institutional rights of a trade union, and the contractual rights of its members, will attach to a definable commercial activity, rather than the legal vehicle(s) through which that activity is carried on. Legal form is not permitted to dictate or fragment a collective bargaining structure; nor will alterations in legal form undermine established bargaining rights. In this respect the purpose of section 1(4) is similar to that of section [63] which preserves the established bargaining rights and collective agreement when a "business" is transferred from one employer to another. Section [63] has been part f the scheme of the Act since the mid 1960's. Neither remedial provision requires a finding of anti-union animus; their primary appli­cation is to bona fide business transactions which incidentally undermine or frustrate established statutory rights. Since the two sections are complementary, it is not unusual, as in the present case, for an applicant to rely on both.

54. More recently, in KNK Limited, [1991] OLRB Rep. Feb. 209 the Board noted that sec­tion 1(4) modified common law and commercial law assumptions to preserve the labour relations identity of businesses in contrast to their legal envelopes:

55. Section 1(4) of the Act was enacted in 1971. It deals with situations where the commercial activities which generate employment relationships regulated by the Act, may be carried on through more than one legal entity. Where those legal entities are engaged in related economic activities under common control or direction, the Board is empowered to "pierce the corporate veil" and declare them to be one employer for the purposes of the Act.

56. Section 1(4) clearly and specifically modifies both the common-law notion of "privity of con­tract" and commercial law assumptions based upon the separate legal identity of the corporate shell. As a result of section 1(4), collective agreement rights need not be co-extensive with the legal framework of the business. To this extent, labour law insulates collective bargaining from disruption should the exigencies of the market prompt an employer to change the number or form of the legal vehicles through which it carries on business. As a result of a 1975 amendment, section 1(4) no longer requires that related business activities be carried on simultaneously. The Legislature has recognized that the identity of the business (as opposed to its legal envelope) may be preserved even though the legal vehicles through which it is carried out may change from time to time.

57. The Board also observed in that case that section 1(4) is not a fault-oriented provision requiring anti-union animus:

58. It is important to note that section 1(4) is not an unfair labour practice provision. Although some commercial dealings which trigger section 1(4) may constitute an unfair labour practice, section 1(4) itself does not require a finding of "anti-union animus". It is not limited to commer­cial "schemes" designed to escape from the union. It can also apply to bona fide business trans­actions which only incidentally frustrate established statutory rights. Section 1(4) is not a "pen­alty" provision. It merely allows the Board to consider such business transactions from a labour relations perspective rather than common or commercial law rules.

59. The underlying purposes of section 1(4) were addressed in Etobicoke Public Library Board, [1989] OLRB Rep. Sept. 935 where the Board summarized the objectives set out previ­ously in the Board's jurisprudence. There the Board said that section 1(4) is designed:

(a) to preserve or protect from artificial erosion the bargaining rights of the union,

(b) to create or preserve viable bargaining structures, and

(c) to ensure direct dealings between a bargaining agent and the entity with real economic power over the employees.

57. The condition that there must be more than one entity does not necessarily mean they must be legal or corporate entities. In Metroland Printing, Publishing & Distributing, [1991] OLRB Rep. Sept. 1069, the Board found in this regard that divisions of the same company should be treated as one employer under section 1(4), noting that they were sufficiently distinct so as to per­mit, yet sufficiently related so as to warrant the application of this provision.

58. In considering what constitutes associated or related activities or businesses, the Board

has taken a broad approach. For example, the Board has found that companies serving the same market meet this condition, (Valdi Inc., [1979] OLRB Rep. Aug. 833) as do activities or businesses that are functionally coherent or integrated (J. H. Normick, supra, and Walters Lithographing Co. Ltd., [1971] OLRB Rep. July 406).

59. Similarly, the Board has noted that common direction or control over the activities or businesses are not limited to common ownership or principals. As the Board observed in Penmarkay Foods Limited, [1984] OLRB Rep. Sept. 1214, construing this criterion as requiring a nexus through ownership would preclude the fulfilment of the statutory objectives of section 1(4). Moreover, the language of section 1(4) makes it clear that common control or direction can be exercised over related or associated activities, and not just businesses (J. H. Normick, supra). As a result, the Board has found common direction or control where the principal of a company directed the affairs of another company owned by a friend (Evans Kennedy Construction Limited, [1979] OLRB Rep. May 388), where one company used the skills and expertise of another in directing the activities which gave rise to employment (J. D. S. Investments Limited, [1981] OLRB Rep. Mar. 294), in subcontracting situations (J. H. Normick Inc., [1979] OLRB Rep. Dec. 1176 and Brantwood Manor Nursing Homes Limited, [1986] OLRB Rep. Jan. 9) and in franchise cir­cumstances (Penmarkay Foods, supra, RPKC Holding Corporation, [1986] OLRB Rep. June 828 and The Second Cup Ltd., [1993] OLRB Rep. Oct. 1060). Even where the corporate vehicles may have separate spheres of control in which they are each their own masters, the functional interde­pendence of separately controlled activities may lead to a conclusion of common control or direc­tion over the activities as a whole (Penmarkay Foods, supra).

60. In J. H. Normick, supra, the Board observed that where two employers are nominally independent but functionally and economically integrated, the community of interest between them may make it appropriate to treat them as one employer for collective bargaining purposes:

61. Section 1(4) recognizes that the business activities which give rise to the employer-employee relationships regulated by the Act, can be carried on through a variety of legal vehicles or arrangements; and it may not make "industrial relations sense" to allow the form of such arrangements to dictate, and possible fragment, the collective bargaining structure. In order to have orderly and stable collective bargaining, the bargaining structure must have some perma­nence and accord with underlying economic and industrial relations realities. Where two employers are nominally independent but are functionally and economically integrated, the essential community of interest between them and the employees employed by one or both of them may make it appropriate to treat them as one employer for some or all collective bargain­ing purposes. This is not to say, however, that common economic control of related business activities will automatically cause the Board to issue a section 1(4) declaration. The Board, hav­ing satisfied itself that the businesses or activities before it are under common control or direc­tion, is given a discretion as to whether or not to issue a section 1(4) declaration. If the scheme of the Act would be better served or the collective bargaining structures placed on a sounder footing by refusing to make a section 1(4) declaration the Board will exercise its discretion accordingly. (See Zaph Construction Ltd., [1977] OLRB Rep. Nov. 741 and Eliwall and Sons Construction Limited, [1978] OLRB Rep. June 535.)

62. In making a section 1(4) declaration in that case, the Board noted that the failure to do so would result in an entity with economic and de facto control not having a legal relationship within the ambit of the Labour Relations Act with employees:

In this case the relationship between Turgeon and Normick Inc. is such that if the Board does not exercise its discretion in favour of issuing a section 1(4) declaration the employer party to the employment relationship (if one exists) and to the collective bargaining structure which will result if the union is certified, will be the employer in name only. If the Board does not issue a declaration, the entity possessing both economic and de facto operational control would not have a legal relationship within the ambit of The Labour Relations Act with those employees who are the subject of its control. The potential labour relations weakness of this result is self-evident.

62. This jurisprudential approach retains its vitality in a climate where employees in diverse sectors of the economy have expressed interest in collective bargaining. In some of these sectors, the organization of commercial activity or employment may not be an easy fit with the more tradi­tional employer-union labour relations model. The construction sector, for example, is often char­acterized by the fluidity of available work, its lack of fixed assets and the consequent employer mobility. In other areas, commercial activity may have evolved in such a manner that the economic and labour relations components normally concentrated in one employer are fragmented among different legal entities. Increasing specialization or market niche positioning may also influence the organization of enterprises. Other sectors may be experiencing transitions to new and emerging forms of economic and work arrangements.

63. The Board's caselaw reflects the fact that section 1(4) provides the flexibility to make collective bargaining viable in the face of a spectrum of commercial and organizational arrange­ments through which business activities are carried on and work is performed. Among other things, it may stabilize the labour relationship by facilitating bargaining rights which flow through sequential or contemporaneous corporate structures. In some circumstances, it may prevent nego­tiations from turning into an elaborate fiction by bringing the real locus of power into the appropri­ate forum. Where employer functions are distributed among different legal entities, section 1(4) may permit their assembly so that meaningful collective bargaining can be carried on.

64. In one sense, this provision provides a rough corollary to the Board's jurisprudence on shaping appropriate bargaining units or their subsequent combination. Just as the Board considers what configurations of employees will result in viable and sensible bargaining structures, these con­siderations may also inform the exercise of the Board's discretion when it examines the employer side of the table within the parameters of section 1(4).

V. The Decision

65. Returning to the three criteria set out in section 1(4) with this jurisprudential context in mind, there is no dispute that the associates and their respective brokers constitute more than one corporation, individual, firm, syndicate or association. As a result, the first condition for the appli­cation of this section has been met.

66. The Board has observed previously that there is considerable overlap between the crite­rion of associated or related activities or businesses, and the requirement that they be carried on under common control or direction. In this case, many of the facts relevant to these criteria are common to both and thus it is convenient to address them together.

67. The picture that emerges from the evidence is one of extensive personal, corporate and family connections between the larger associates and those who run the brokerages. Indeed, the evidence indicates a significant degree of overlapping ownership and principals as well. The fact that associates can be and are also directors of Diamond and Co-op and can hold shares in Co-op provides increased emphasis to the degree of interrelationship. The common principals between Metro and Active Taxi~ and individuals and companies related to Active Taxi which include a number of Mr. Stewart's clients adds to this picture, which is further reinforced by the ability of those who run the brokerages to act as designated agents and effectively control groups of plates in this manner.

68. However, since the evidence falls short of establishing that all associates named in these applications share these personal, family or corporate relationships with the brokers, my conclu­sions are not based on these relationships. Rather, the focus of this decision is on the economic and functional relationship with the brokers which all the associates have in common, although in vary­ing forms and degrees.

69. There can be little doubt that the commercial activities of the brokers and the associates involve a very high degree of functional integration. The brokers supply the advertising, promo­tion, dispatch services, charge account services, computers, roof signs, credit card imprinters and the commercial umbrella and structure which enable them to deliver customers to the business. The associates supply the plates, cars, meters, radios and drivers necessary to provide the taxi ser­vice to those customers. Both sets of functions and assets are critical to the activities or businesses carried on. Through the advertising, promotion, roof signs, regulation car colours, receipt cards with the broker's logo and so forth, the business is represented as an integrated whole to the pub­lic, that is, Diamond Taxi, for example, rather than the various names of the associates.

70. It is also clear that the brokers can have considerable influence over the associates, sim­ply because it is in the associate's interest to maintain a satisfactory relationship with the source of customers, a critical component of the associate's business. The commercial arrangement reflected in the service contracts or the applications for membership includes a substantial set of obligations on the part of the associate which can be enforced by the cancellation of the service contract at will. While the associate can move to another brokerage, as the Board noted in the certification decision with respect to the dependency of drivers, this merely transfers the associate's dependency from one broker to another. It does not minimize or vitiate that economic dependency.

71. The extent of the brokers' control over the drivers who are engaged by the associates also reflects the degree of influence the brokers have over a major component of the associates' business activities. The Board's finding that such control was so extensive as to make the drivers dependent contractors of the brokers speaks for itself. It is also worth reiterating, however, that the brokers exercise detailed control over the performance of the drivers' work through rules, poli­cies and disciplinary responses which effectively penalize anyone failing to meet the brokers' stan­dards. The fact that the Diamond service contract can be cancelled if an associate continues to use a banned driver highlights another example of the brokers' influence over one of the most funda­mental aspects of the associates' business activities.

72. At the same time, there is no question that the associates may also exert considerable influence over the brokers. The origins of the brokers as creations of associates and their continu­ing structure which allows associates to affiliate to the brokers reinforces this fact. And while not all associates are in the same position as the larger fleet owners who are sometimes closely involved in the brokerages as directors or otherwise, it is obvious that the associates as a group provide essential components without which the brokers could not carry on business. The inability of the brokers to own plates brings this into even sharper focus.

73. The diffusion between the brokers and the associates of the economic elements nor­mally associated with the employer side of the bargaining table is matched by the division of the labour relations functions in this regard. It is the associates who engage the drivers and who deal with issues such as hours of work, starting and quitting times, days off, seniority, and so forth (at least to the extent now that these matters are not addressed in the collective agreements). Some of the brokers, such as Diamond, do not even know the identity of the drivers. Indeed, the fact that the union and the brokers have agreed in their collective agreements that it is the associates who are to collect the dues from drivers reflects to some extent the more intimate working relationship between drivers and associates. Another indication of that relationship is contained in the written

submissions of some of the associates which contain references to "our drivers" whom they hire and fire. On the other hand, as noted previously, the brokers set comprehensive standards and rules for work performance by drivers ranging from their appearance to various kinds of conduct, and enforce those standards by inspectors and discipline procedures.

74. This distribution of both the economic and the labour relations functions between the associates and the brokers surfaces in some of the thornier problems which arose in bargaining as well. Driver income through the regulation of costs, the mobility of plates and health and welfare benefits are examples of issues that it is difficult to meaningfully address in the absence of a formal role for the associates in negotiations.

75. Perhaps the most startling indication of the pivotal nature of the associates in this col­lective bargaining relationship is the fact that the brokers and the union have actually recited them as parties to the collective agreements and agreed upon provisions imposing significant obligations upon the associates, for example, with respect to the collection of dues. Under the circumstances, it is not surprising that some of the associates demanded a formal role in negotiations through TTOOA, a role that was denied to them because they had no legal status in that process. In other words, it is not simply that the associates are critical to this collective bargaining relationship; in addition, the associates themselves are severely disadvantaged by not having a legal voice in the process.

76. The parties did not dispute that the collective bargaining impact on the associates is a necessary consequence of the current collective bargaining arrangement between the union and the brokers in a situation where the brokers and the associates are connected by direct contractual or business dealings, and/or derive direct economic benefit at the same time from the employment of the drivers. The drivers directly perform duties for some of the associates and brokers together in the form of driving taxis, which results in the provision of revenue to these associates and brokers. From a labour relations point of view, these are also the services that may be withdrawn in the event of a lawful strike or lockout.

77. A number of the opposing associates represented by Mr. Stewart describe themselves in a manner that suggests that they are merely middlemen between plate owners (or lessees or desig­nated agents), the drivers and the brokers, and that their function is essentially managerial rather than proprietorial. They also argue that to the extent that they pay dispatch fees to the brokers, they are merely acting as conduits from the owners. Several assert that they do not pay dispatch fees for certain plates because those fees are paid by the owners to the brokers. A related argu­ment they raised was to the effect that the Metropolitan Licensing Commission was the true owner of all taxi plates.

78. The fact that some of the associates do not own plates, but merely act as lessees, desig­nated agents or designated custodians does not appear to be a significant distinction in the overall landscape presented by the evidence. There is no dispute that they at least manage the plates on behalf of the owners (or their lessees or agents as the case may be). The point is that they are the suppliers of the plates and cars to the businesses or activities which are the subject of these applica­tions and the precise legal manner in which they obtain or hold those assets is not as important as the critical nature of those assets, the associates' role in providing them and the integration of those assets with those of the brokers'. The same is true for those who do not own some of the cars, meters and radios. They nevertheless provide these items to the operations which are the sub­ject of these applications and the fact that others such as drivers may in turn provide them to the associates does not lessen the functional interdependence between the brokers and the associates. Their assertions in this regard did not suggest a disavowal of the kind of business activities on their part with respect to keeping the plates and cars in operation. As the Board has observed in the jurisprudence set out above, the effect of section 1(4) is to modify the kind of commercial and cor­porate structures identified in the common law and other legal frameworks so that bargaining rights attach to a definable commercial activity rather than to the legal vehicles involved. This effect is given added emphasis in an industry which operates through a myriad of informal and for­mal commercial arrangements. Despite such diversity, it is also apparent that for the associates, affiliation with a brokerage is likely to be the dominating feature with respect to the actual opera­tion of the taxis. Moreover, in light of the evidence about the issuance and purchase of plates, the argument with respect to the Metropolitan Licensing Commission's ownership is a highly theoreti­cal notion which sheds little light on the kind of functional relationship the Board may examine under section 1(4).

79. The role of non-associate plate-owners is also featured in the argument that the owner may be the one selecting the brokerage, and may also cancel the lease or the designated agent or custodian arrangement which places the plate in the associate's hands at any time. The fact that the owner can select the brokerage does not appear particularly compelling, since only those plates managed by the associates in connection with the responding brokers are the subject of these appli­cations. The issue of what happens when an owner (or for that matter an associate) moves plates to another brokerage is not before me. Presumably to the extent that the union appears to be pursu­ing restrictions on plate mobility in collective bargaining, the problem of plate mobility initiated by non-associate owners may have to be addressed in that forum.

80. The fact that an owner can cancel the lease or designated agent arrangement with the associate are not conditions which should dictate the Board's approach while the arrangement is in operation. The same is true with respect to the service contract between the associate and the bro­ker which can be cancelled as well, and the assertion that an associate is not obliged to continue on with a certain broker. As the Board noted in RPKC Holding Corporation, supra, the Board looks at the control or direction that exists while the agreement (in that case, a franchise agreement) is in operation, rather than the control that might or might not exist if the agreement is terminated.

81. Several associates represented by Mr. Stewart also expressed more general concerns about the role of the owners who are not associates. The involvement of non-associate owners, where it exists, does not preclude the application of section 1(4) to the associates and the brokers. To put it simply, the participation of other players does not suggest that the associates and the bro­kers are not carrying on activities under common control or direction. There may indeed be others exercising some degree of control and direction in the industry, but neither the nature nor the extent of this involvement reduces the functional integration of the associates and the brokers.

82. This is true as well, for the role of the Metropolitan Licensing Commission. There is no doubt that the evidence indicates that this is a heavily regulated industry, and Bylaw 20-85 touches on a wide variety of matters involved in the operation of a taxi business in a detailed and exhaus­tive manner. Again, this does not suggest that the Board should not assemble the appropriate eco­nomic and labour relations entities on the employer side where they are the subject of an applica­tion. Without commenting on the size of the role of either the non-associate owners or the Commission, the existence of other parties playing a part in the activities which are the subject of a section 1(4) case does not preclude its application to only some of them.

83. A high degree of regulation is not in itself necessarily inconsistent with collective bar­gaining, as some associates seemed to suggest. It is worth noting that there are other heavily regu­lated industries in which collective bargaining has taken hold such as the health care sector. There is no question that negotiating parties in such sectors have to come to terms with that regulation in their labour relations, but this does not mean that a section 1(4) declaration is not appropriate, particularly in a situation such as this where collective bargaining is already in motion. Nor is the role of the Metropolitan Licensing Commission inconsistent with the proposition that the kind of infrastructure provided by section 1(4) is necessary to support collective bargaining in the circum­stances before the Board.

84. Some of the opposing associates asserted that they were not the employers of the driv­ers. It appeared that these assertions rested to some extent on factors such as the non-payment of tax, unemployment insurance and pension deductions and were made in the absence of an under­standing of the role of the dependent contractor in the scheme of the Labour Relations Act. On balance, the evidence as a whole makes it clear that the drivers are at least dependent contractors of the associates as well as the brokers. If anything, it appears that the employment relationship between the associates and the drivers bears a somewhat closer resemblance to the traditional employee/employer model than that between the drivers and the brokers.

85. More than one opposing associate also referred to the fact that the drivers themselves

engaged other drivers for their cars, and asserted that the associates had little relationship to these others. There is no dispute that the latter drivers are included in the bargaining unit as well. While some associates may occasionally be less familiar with some of the drivers recruited by other driv­ers, there still remains a basic economic relationship between these secondary drivers and the asso­ciates. Indeed, it would be difficult to say that their relationship is more remote in character than the one between these drivers and the brokers which was the subject of the Board's dependent contractor finding.

86. In any event, it is not a condition of section 1(4) that the all the entities involved each be employers. Rather, the language of the section refers to a "corporation, individual, firm, syndi­cate or association". Since the word "employer" is used elsewhere in the same section to describe the Board's powers, the implication is that the Legislature did not necessarily intend that all the entities involved must directly employ the employees in the bargaining unit at issue. Indeed, this is the approach the Board has taken in its jurisprudence (see, for example, the franchise and sub­contracting cases described above). Of course, at least one of the bodies subject to a 1(4) declara­tion must be an employer because the result of the application of the section is to treat them as one employer, a result which would be absurd in the absence of some employer-employee relationship. This does not however mean that a corporation, individual, firm, syndicate or association cannot be the subject of a 1(4) application if it does not itself directly employ the bargaining unit employ­ees. In this case, there is no dispute that the brokers, at least, employed the bargaining unit driv­ers.

87. Vigorous assertions about the independence of their businesses were made by some opposing associates, at times supported by claims to a particular cultural identity or client base. Because of the manner in which the Board has addressed the issue of common control or direction, section 1(4) declarations do not require a finding that the brokers are controlling the associates' businesses or vice versa. Separately controlled elements of certain activities may be so intertwined in operational terms as to lead to a conclusion of common control or direction over the activities as whole (Penmarkay Foods, supra).

88. Some of the opposing associates argue that because drivers obtain customers from off the street by "flagging" as well as the dispatch system, this means that their relationship with their broker is something less than that which would give rise to a section 1(4) declaration. While this is a relevant factor to consider, the parties agreed in these proceedings that they did not dispute the findings of the Board in the certification decision with respect to the proportion of revenue from customers from the street and the dispatch system. Those proportions do not lead to the conclusion that so much work is obtained from the street that it diminishes the operational interrelationship of the activities of the associates and the brokers to any significant degree. It was also not in dispute that many of the flagged fares are paid for by the brokers' corporate account chits.

89. Looking at the evidence as a whole, I conclude that the brokers and the associates are carrying on associated or related activities or businesses under common control or direction. In coming to this conclusion, I have examined the facts put before me with respect to individual asso­ciates in addition to those common to all. As a result of that scrutiny, Dial Taxi, which it was not disputed no longer operates or manages any taxis, is excluded from this finding.

90. However, as the Board has observed in its jurisprudence, even where an applicant can satisfy the conditions under section 1(4), the Board has the discretion to decline to make declara­tions or grant relief. In KNK Limited, supra, the Board indicated as follows:

91. In our view, where a trade union has established the legal requirements for a section 1(4) declaration, as well as the "mischief' which such declaration was designed to prevent, a declara­tion should ordinarily be made unless there is either particular prejudice or compelling policy reasons for not doing so. Those policy reasons should be rooted in labour relations rather than commercial law considerations, and the alleged prejudice should involve something more than having to apply a collective agreement which the related employer has disregarded in the past. If that were the test, the purpose of section 1(4) would be undermined, and the related employer could plead, in reply, the very "mischief' upon which the union relies and for which section 1(4) is a remedy.

92. In this context, I turn to some of the other arguments advanced by opposing associates. Several of them expressed concerns related to the impact of unionization in a variety of ways on their competitive market positions. In some cases their apprehensions were connected to their position with respect to obtaining or retaining leases or designated agent or custodian arrange­ments with owners; in others, their ability to recruit and retain drivers. In still others, their concern was that reduced flexibility with respect to costs would work to their economic disadvantage in contrast to associates affiliated with non-unionized brokers. References were also made to the effect of some of the goals the union was pursuing in collective bargaining, and to the problems of an industry that is only partially unionized.

93. There seemed to be considerable misunderstanding in this regard about the impact of these proceedings. The drivers of the associates are already unionized, although it is evident that the preliminary stage of this relationship, the fragmented nature of the industry and the enforce­ment problems related in part to the ambiguity of the associates' status have meant that the collec­tive bargaining relationship is less visible than it might otherwise be. Section 1(4) declarations would not extend collective bargaining to the drivers; they would simply make it meaningful in the sense that the drivers would now be dealing with the two primary components of the employer side of the table rather than one. The same can be said for the assertions by associates that "their" driv­ers did not want to be unionized. That is not the issue before the Board. These employees are already in a collective bargaining relationship. The applications before the Board would only have the effect of bringing the associates into that forum.

94. It may also be that the application of section 1(4) would provide associates with a for­mal role in negotiations through which some of these apprehensions might be addressed. For the associates to be operating with unionized drivers but excluded from a legal voice in collective bar­gaining seems the worst of all possible worlds from their point of view. This dilemma is reflected in the ironic position of those of the associates who opposed these applications but objected to being excluded from negotiations.

95. This is also an answer to the arguments advanced by the associates that section 1(4) relief should not issue because these applications amounted to certification applications which should have been brought at the time the brokers were certified. The union at that time obtained the bargaining rights to represent the associates' drivers because they were also dependent contrac­tors of the brokers. Again, the effect of these applications would only be to include associates in the collective bargaining process; the drivers are already involved in it. In any event, I would refer the parties to the Board's comments in KNK Limited, supra, where the Board examined more gen­erally the argument that section 1(4) was being used as a substitute for certification and found that it did not stand up to closer scrutiny as a general proposition.

96. The most cogent difficulty cited by several of the associates with respect to these appli­cations was the fact that some of their businesses include other operations. These can range from car washes and garages to plates and cars affiliated with non-unionized brokerages. It was argued that particularly in the latter case, the associate would have both unionized and non-unionized drivers working side by side with resulting dissension.

97. Any declarations or relief in these matters would be limited to that part of the associ­ate's operations involving plates, cars or drivers affiliated with the broker in question. In other words, operations such as car washes would not be subject to the application of section 1(4) in these proceedings. This limitation goes some distance to ensuring that such other activities are not inadvertently swept into the collective bargaining relationship. Just as it is important that all the necessary parties are at the bargaining table, so too it is critical to draw a clear boundary around that relationship to prevent section 1(4) relief from spilling over into unintended areas.

98. The fact that the associates may be carrying on other activities or businesses does not in itself preclude relief. As the Board noted in Frank Plastina Investments Ltd., [1986] OLRB Rep. June 720, section 1(4) may apply not only where an entity may have carried on other businesses or activities, but even where those other activities are its main or principal business concern:

99. Given the remedial thrust of section 1(4) and the broad language chosen by the Legislature ("associated" or "related", "activities" or "businesses:), it is apparent that the section was intended to apply to a wide variety of commercial activities, even when an employer's main or principal business concern may be something else. That was the opinion of the Board in Elmont Construction Limited, [1974] OLRB Rep. June 342 (application for judicial review dismissed, sub nomine, Elmont Construct Limited and Bruce N. Huntley Contracting Limited v. Toronto Building and Construction Trades Council et at., 75 CLLC ¶14,270), and it is one with which we respectfully agree. The fact is, that a firm engaged in the construction business can, with relative ease, become involved, from time to time, in various sectors, subdivisions, phases, or special­ized kinds of construction work, depending largely upon the business opportunities which present themselves, and we do not think we should readily hold that those activities are "unre­lated" - particularly if they are being undertaken at the same time and involve common manage­rial or employee skills.

100. It is true that to the extent that the application of section 1(4) in this case means that drivers engaged by the same associate but driving for different brokers may have differential work­ing conditions, this may be problematic. However, it must be remembered that drivers do not work together in the sense employees in a plant are performing their responsibilities in close prox­imity to each other. Rather, drivers are alone in their cars during their working hours. It is also worth noting that there are many instances where employees work side by side under differing working conditions, for example, when full-time employees are unionized and part-time are not. While this may not necessarily be a desirable situation, in the absence of any specific facts in this case neither is it so volatile as to suggest on balance that section 1(4) relief should not be forthcom­ing. And the extent of the differential in working conditions with respect to matters such as shift fees may be at least partly in the control of the associate.

101. Some of the associates have also taken the position that the union delayed in bringing these applications, and that this should preclude the Board making declarations or ordering relief under section 1(4). They suggested that they had been misled because the union did not name them in the certification applications. In fact, it is not apparent that there has been any delay in the usual sense of the word. The certificates were issued by the Board in the summer and fall of 1993. The union and the brokers then engaged in bargaining between February and August of 1994 and the union filed these applications at the end of August. In an industry where collective bargaining is relatively new, it does not seem unreasonable that the union would attempt to bargain with the brokers alone. When it became clear that negotiations had broken down, and had broken down in part because of issues relating to the associates, the union brought these applications. It is not apparent that they should have filed them at any earlier point.

102. But even if there was some delay in these matters, KNK Limited, supra, again provides some useful observations in this regard. There the Board noted the difficulties of linking the Board's discretion under section 1(4) to a due diligence test, and indicated that any consideration of delay should be focused on the actual prejudice suffered by an employer. As the Board com­mented in the excerpt set out above, such prejudice must amount to more than having to now apply a collective agreement, as otherwise the purpose of section 1(4) would be undermined.

103. In this case, no prejudice was cited other than that the associates did not have the opportunity to oppose the certification applications, and would now have to apply the collective agreements. The evidence does not suggest that the associates had legal grounds for opposing the certification applications; rather, this sentiment appeared to have more to do with the difficulties the opposing associates were having reconciling themselves to the fact of unionization.

104. Several of the opposing associates suggested that applying section 1(4) to these circum­stances could result in declarations with respect to almost any commercial activity. One likened the situation to a finding that buying a General Motors car was tantamount to carrying on related activities under common control or direction with General Motors. In this case, however, the func­tional integration of the activities of the associates and the brokers goes far beyond the mere pur­chase of dispatch services by the associates, and the diffusion of economic and labour relations functions between the brokers and associates distinguishes these circumstances from more discrete forms of commercial activity. The fact that the associates are so critical to the collective bargaining relationship that they are already addressed in the collective agreements, their own objections to being excluded from the bargaining process and the lack of opposition from most of the associates in these applications also highlight the unique nature of this case.

105. The Board has noted in RPKC Holding Corporation, supra, that its discretion under section 1(4) means that "slippery slope" arguments are less compelling. Each case will be decided on its merits with regard to not only the existence of the elements of section 1(4) but whether it falls within the labour relations objectives of this provision as well:

With respect to the "slippery slope" argument inherent in a number of the submissions that were made before us by counsel for the franchisor and counsel for the franchisee, we would note that in determining whether or not to declare that two (or more) corporations constitute one employer for the purposes of the Act, the question whether the discretion to do so exists in the circumstances of a particular case, and the question whether such a declaration ought to be made in those circumstances, are two distinct questions. Since the Board has a broad discretion under section 1(4) of the Act, a finding that associated or related activities are being carried on by more than one legal entity under common control or direction does not automatically result in the Board granting relief under section 1(4). Thus, as the Board noted in its recent decision in Brantwood Manor Nursing Homes Limited, [1986] OLRB Rep. Jan. 9, at paragraph 102, "it is not particularly helpful to test the reasonableness of a proposed interpretation of the phrases 'associated or related activities or businesses' and 'common control or direction' by asking whether that interpretation could embrace circumstances in which a declaration ought not to be made. In giving the Board a discretion whether to make or not to make a declaration when the preconditions it specified had been made out, the Legislature recognized that there could well be circumstances in which 'associated or related activities or businesses' are carried on by two or more entities 'under common control or direction' without there being any valid labour relations reason for treating the two entities as constituting one employer for purposes of the Act." (See also Harley Transport Limited, supra, and Ethyl Canada Inc., [1982] OLRB Rep. July 998.)

104. The objectives of section 1(4) include the creation or preservation of viable bargaining structures and ensuring direct dealings between a bargaining agent and an entity with real eco­nomic power over employees. In this case, the absence of a formal legal role for associates is undermining the viability of the collective bargaining relationship and the parties, with the excep­tion of a small minority of associates, have created an alternative bargaining structure which requires the application of section 1(4) to be successful. Such application would also have the effect of bringing associates within the ambit of the labour relationship who exert considerable economic control over the drivers both with respect to costs (and therefore driver income) and in regard to the engagement and termination of drivers. Declining to exercise the Board's discretion in this regard would mean that both the brokers and the union would be dealing with ghosts at the bar­gaining table, and the associates would have a unionized workforce but no legal status in negotia­tions.

105. Some of the associates argued that they were prejudiced because the Board required them to make submissions about relief at the same time they addressed whether section 1(4) should apply at all. They felt that the Board would be influenced by these remedy submissions to the disadvantage of their position in opposition to these applications generally. I wish to reiterate, as I did at the hearing, that the Board has extensive experience in considering arguments in the alternative, and the associates' submissions on relief did not result in any prejudice to them in my consideration of their arguments on the application of section 1(4) in the first place.

106. I conclude that the conditions for the application of section 1(4) have been met and that its application to the circumstances before me is consistent with the objectives of this provision.

VI. Relief

107. This brings me to the question of the nature of the relief. In addition to declarations, the union has requested orders and directions in accordance with the March 3rd agreement. It is fair to say that the scope of the relief sought is unusual in both its breadth and nature. In addition, the complexity and variability of the activities before the Board gives rise to some hesitations in considering the effect of such relief.

108. There is no doubt, however, that the Board has the power to "grant such relief, by way of declaration or otherwise, as it may deem appropriate", and the parties unanimously agreed that the Board had the jurisdiction to direct relief of the sort requested. Moreover, so me of the more obvious concerns about the sweeping nature of section 1(4) orders in these circumstances are alle­viated by the March 3rd agreement, in which the brokers, the associates represented by TI'OOA and the union were able to agree upon a specific bargaining structure. Indeed, considerable credit is due to these parties for creating a new system for negotiations which is tailored to the unusual features of this industry.

109. As noted above, there were some associates who did not join in that agreement and proposed another model instead. What follows are my reasons not only for directing as final relief the contents of the March 3rd agreement, but also my reasons for the interim order as well.

110. The March 3rd agreement sets up a bargaining arrangement which ensures that the associates have a formal role in the negotiating process. At the same time, it reflects the recogni­tion that it is not possible to have such a large number of associates participating individually in bargaining. The agreement provides for the representation of associates in each brokerage either by an elected three person bargaining committee representing small, medium and large fleets or by a representative organization such as TTOOA, and sets out provisions for the commencement and termination of that representation. TTOOA has an advisory role as well. It is evident from the agreement that the brokers, associates and the union who are familiar with the taxi industry have turned their minds at some length to creating a stable bargaining infrastructure designed to meet the special circumstances of this sector.

111. The associates represented by Mr. Stewart advanced two main objections to the negoti­ating framework contained in the March 3rd agreement. First, they argued that there should be two committees or organizations representing associates in bargaining rather than one. Secondly, they expressed the view that the voting process was not completely clear, and may exclude associates where dispatch fees are paid indirectly rather than directly to the brokers. Generally speaking, however, they were in accord with the majority of the provisions contained in the March 3rd model.

112. The configuration of bargaining in the March 3rd agreement is one union, one broker, and one committee or organization representing associates. If the parties conduct joint negotia­tions with all three brokers, obviously these numbers will by multiplied, but the basic model is tri­partite. No cogent reason was advanced for having two bodies represent the associates except to say that they are a diverse group who may play overlapping roles in the industry. That is undoubt­edly true, but the same may be said of the individuals in the bargaining units and those directing the brokerages. It is not apparent that such diversity and overlap cannot be accommodated within one elected organization. Indeed, if they cannot be accommodated, neither is it apparent that one more organization would necessarily resolve these problems.

113. Moreover, there are a number of practical difficulties associated with the opposing model. Two organizations or committees representing associates raises the chances of disagree­ment between them at the bargaining table, increasing the possibility of the kind of factionalization which can weaken the associates' impact in negotiations and pose problems for the other parties. Multiplying the number of bodies at the bargaining table may also decrease the possibility of settle­ment, and perhaps the likelihood of a strike or lockout. It seems apparent that there is some diver­sity between associates, but the format of collective bargaining generally presumes that disputes in this regard will be resolved within the confines of a bargaining party, which then speaks with one voice at the table. In addition, the model proposed by Mr. Stewart's clients is no more democratic than that contained in the March 3rd agreement, and more likely to lead to problems for all par­ties. No party identified problems in the March 3rd structure in relation to the backdrop of either the industry or the circumstances of this case which suggest that Mr. Stewart's clients are particularly disadvantaged by it, or shut out from participation.

114. At this point, there is also no evidence before the Board from which I can evaluate the likelihood of the scenarios posited by Mr. Stewart arising from the voting process. I note, however, that there is a dispute resolution mechanism involving arbitration for conflicts of this nature built into the March 3rd model. For the benefit of the parties in addressing any disputes in this regard, I wish to make it clear that my intention in directing this relief is that each associate covered by it will have at least one vote, regardless of the manner in which dispatch fees are paid.

115. This does not mean that the structures created on March 3rd are foolproof. On the contrary, they represent broad brush strokes painted on a canvas of considerable intricacy, variety and nuance. Some of the provisions of the agreement are not free from ambiguity as well. All parties agreed that the new system was only a beginning, and that it was likely to need adjustments and refinements as the parties gained more experience with the provisions they have developed. On the other hand, there is no reason to think that the model advanced by Mr. Stewart was any more sen­sitive or responsive to these complexities than that created on March 3rd. And the fact that the brokers, the union and a large group of associates were able to agree on these provisions suggests that there is a reasonable chance that they are a sound starting point.

116. On behalf of Co-op, Mr. Gudes also expressed reservations about the aspect of the March 3rd model which involves a division of issues between the associates and the brokers. His concern was that although the brokers might reach agreement with the union on the broker issues, the associates might not come to an understanding at the table on the associate issues. The result would be a strike, despite the fact that the brokers had reached agreement, and against the bro­kers' wishes. He conceded, however, that Co-op had signed the March 3rd agreement, but he wished the Board to direct the parties to reopen discussions on this issue.

117. It is true, as I mentioned previously, that adding another seat at the bargaining table increases the possibility of disagreement. At this point, however, it is difficult to know whether this arrangement will work overall to the advantage or disadvantage of the brokers or even both. It is worth noting that some associates expressed concern that section 1(4) relief might consolidate the power of the brokers over the associates, particularly with respect to the issue of plate mobility. In other words, these concerns tend to reflect the fact that the March 3rd structure takes the parties into new territory, and that there are a number of potential difficulties that may arise. On the other hand, none of these problems are inevitable as a result of section 1(4) relief, or even so inherently likely to result that they lead to the conclusion that such relief should not be granted. I note as well that there is nothing to prevent the parties from reopening discussions if they so desire. Although the Board is acutely aware that it must not be cavalier about the impact of relief under section 1(4), neither should it shrink from reasonable remedies even where they cannot be guaranteed problem-free. Indeed, in this situation, little can be guaranteed about anything except that the cur­rent situation is not working.

118. Turning next to the effective date of relief, TFOOA, Co-op, and the opposing associ­ates argue that any orders should date only from the time of the Board's decision, rather than the date of these applications. Diamond and Metro took no position in this regard. The union was of the view that the Board's practice in this regard was reflected in J. D. S. Investments, [1981] OLRB Rep. March 294, where the Board indicated that section 1(4) declarations normally had effect from the time the associated or related activities or businesses commenced, rather than from the date of the Board declaration. In that case, the Board relied on its own jurisprudence and on Caledonia Lands Ltd., [1979] 3 Can L.R.B.R. 12, where the British Columbia Labour Relations Board found that if a determination of this nature was effective only as of the time of the declaration, an employer could wholly avoid collective bargaining obligations for a significant period of time with the result of dramatically reducing the effectiveness of such determination. Here, however, the union requested that the relief date from the time these applications were filed in August of 1994.

119. The primary concern of the parties opposing this view was the liability for collection of dues by the associates. In response, the union emphasized that neither the associates nor the bro­kers were liable for the actual payment of the dues, since those were to be paid by the drivers, but only for their collection.

120. There is no doubt that the Board's normal practice is reflected in J. D. S. Investments, supra. At the same time the facts before the Board are an awkward fit with those which gave rise to that practice. Given the unusual situation presented by this case, my inclination is to approach this issue on the practical basis of the concrete problem identified by the parties in this regard, that is, the payment of dues.

121. The parties did not dispute that there was a significant degree of driver turnover, which may make it difficult to implement declarations which have the effect of backdating an obligation to collect dues. The scope and complexity of the accompanying relief requested also suggests prob­lems for retrospective implementation. It is instructive as well that the March 3rd agreement does not contain any provision about retrospectivity, and indeed stipulates that certain events must take place within specific future time frames. It also seems to me that a retrospective order in these cir­cumstances may impose significant stress on a unique bargaining relationship which is still rela­tively fragile. In this regard, I am particularly concerned about the operation of the penalty clause in Article 6.04 of the collective agreements for the non-remittance of dues. The union argued that this was a matter before arbitrator Norman Wilson in the form of grievances under the dues provi­sions of those agreements, and that in any event, the penalty was subject to the discretion of the arbitrator.

122. While I have no desire to intrude on the territory of the arbitrator in this regard, it appears that the Board has at least concurrent jurisdiction with respect to this issue. There was no suggestion that the arbitrator's mandate has ousted the Board's ability to fashion remedies suited to the specific contours of this case, and on reading the clause, it is not apparent that the arbitrator has the discretion the union cites. In other words, it seems likely that if the Board makes declara­tions which would have the effect of binding the associates to the collective agreements, there is at least the possibility that the arbitrator's hands will be tied by the language of those agreements. Since there is no question that the Board has the power to determine the effective dates of the relief it orders, it seems more appropriate to address it in this forum where there is greater discre­tion to shape remedies specific to the situation and sequence of events before me. In these unusual circumstances, my primary concern is to try and ensure that this innovative collective bargaining structure has been given the best possible chance of succeeding. As a result, the declarations and relief ordered below will be effective as of May 1, 1995.

123. TTOOA and some of the opposing associates requested that the Board modify the dues collection provisions in the collective agreement at this time on the basis that they were unclear, a request which was opposed by the brokers and the union. In addition, they were of the view that the collection of dues should be carried out by the brokers rather than the associates.

124. The provisions set out in the collective agreements are quite detailed and aside from the proposal that the brokers collect the dues, any amendments necessary were addressed only by a simple request for greater clarity. Nor is it obvious what tangible problems have arisen and why. Some of the confusion at this point may also relate to the ambiguity of the associates' status until now. It is possible, too, that the grievances before arbitrator Wilson will provide another forum in which the meaning of these provisions may become clearer. And presumably once the associates are entitled to participate in negotiations, a future opportunity to pursue their views in this regard is also available. At this point, then, amending the provisions appears both unwise in terms of the lack of information before me and somewhat premature. As a result, I decline to make any changes.

125. In the March 3rd agreement the parties (aside from the opposing associates) have requested that the Board remain indefinitely seized. Having regard to the innovative nature of the structures created by the parties to the March 3rd agreement, the scope of the section 1(4) declara­

tions and the complexity of this industry, it seems likely that refinements may be necessary. In addition, certain aspects of the agreement require ongoing Board involvement. On the other hand, at some point the parties will have to manage this collective bargaining regime themselves without depending on the Board. As a result, at this point, the Board will remain seized. After a period of one year from this date, which will take the parties through a mini-cycle of bargaining provided by the contract reopener, the Board will entertain submissions from the parties as to whether it should continue to remain seized or not, and the implications of this for the representation provisions set out below.

126. I therefore declare, order and direct that:

(1) Diamond and its associates shall be treated as constituting one employer for the purposes of the Labour Relations Act, and these associates are bound by the collective agreement between Diamond and the applicant.

(2) Co-op and its associates shall be treated as constituting one employer for the purposes of the Labour Relations Act, and these associates are bound by the collective agreement between Co-op and the appli­cant.

(3) Metro and its associates shall be treated as constituting one employer for the purposes of the Labour Relations Act, and these associates are bound by the collective agreement between Metro and the appli­cant.

(4) Dial Taxi is not included in these declarations.

(5) These declarations do not extend to business activities of the associ­ates which are not related to the operation of taxis under the banner of Diamond, Co-op or Metro.

127. In light of the March 3rd, 1995 agreement, I further declare, order and direct that:

(6) TTOOA, any Associate Committee or their successors selected pur­suant to this order are employer organizations within the meaning of subsection 1(1) of the Act.

(7) Within seven (7) days of the date hereof, each of the Brokers shall send out written notice to all Associates within its brokerage advising them of the terms of this order.

(8) Said notice shall be published in the media and shall also advise said Associates that they have the opportunity of nominating in writing three (3) individuals for the formation of a voters' ballot (one from each of a small, medium and large fleet) to form part of the Associ­ate Committee, within thirty (30) days of any Board order pursuant to subsection 1(4) of the Act.

(9) Within a further thirty (30) days the Brokers shall advise the Associ­ates of the list of nominated Associates representing small, medium and large fleets, and that within a further thirty (30) days an election shall be held within each brokerage to elect the three (3) person bar­gaining committee.

(10) The selection process for an Associate Committee shall be super­vised by a Board Officer. Any dispute concerning the selection pro­cess will be resolved through mediation/arbitration in accordance with the applicable collective agreement by Norman Wilson or any other person named as arbitrator in such collective agreement, with expenses to be shared equally by the Broker and the party opposite in interest in the dispute.

(11) For each subsequent round of collective bargaining, provided that the Associate Committee has not been displaced pursuant to para­graph 19 below, a similar procedure will occur.

(12) Any representative organization is entitled to act as the exclusive bargaining representative on behalf of associates and it shall engage in collective bargaining and representational activity on behalf of the associates with respect to the relevant collective agreement for the brokerage concerned, in accordance with the terms hereof and the requirements of the Act.

(13) The bargaining authority granted herein to the representative organi­zations, selected pursuant to this Order, and/or the Brokers is irrevo­cable unless terminated in accordance with paragraph 19 below.

(14) The union shall serve any notices to bargain, or any other notices required under the Act or similar notices, upon the Brokers and the representative organization separately, with copies to the TI'OOA, and any such notices served shall constitute effective notice upon the associates.

(15) One appointee of the TTOOA shall be entitled to participate in col­lective bargaining involving the Brokers as an advisor to the Associ­ate Committees.

(16) The representative organization is entitled to execute collective agreements on behalf of the Associates, together with the Brokers.

(17) It shall be a continuing condition of membership and/or participation with each brokerage that each associate shall consent to be bound by all of the terms hereof.

(18) The union, the Brokers and the associates shall recognize the repre­sentative organization's collective bargaining status indefinitely, unless terminated in accordance with paragraph 19 below, and that the union shall bargain collectively only with the representative orga­nization and the Brokers according to the terms hereof and the requirements of the Act and shall not bargain with any associate indi­vidually.

(19) The right to represent the associates afforded by this Order to the representative organization may be terminated, displaced or replaced by the TTOOA or any other employers' organization of associates, only by order of the Board, which shall remain seized for that purpose, and only upon the occurrence of one of the following events and/or as may be otherwise directed by the Board:

(a) an application by a group of associates bound by a collective agreement with the union, for a declaration that the repre­sentative organization no longer represents the associates in the brokerage;

(b) an application by another organization of associates seeking to displace or replace the representative organization chosen pursuant to this Order, but only if such organization dis­charges an onus of clearly proving to the Board that the existing representative organization is no longer the majority representative of the associates for collective bargaining pur­poses and that the other organization is;

(c) abandonment by the representative organization of its bar­gaining rights; or

(d) accreditation legislation has been passed with respect to the taxicab industry which by its terms prevails over this Order.

(20) Upon the filing of an application under paragraphs 19(a) and (b) above, the Board shall only grant an application to terminate, dis­place or replace if it is satisfied that the application is supported by the associates within the brokerage, in accordance with paragraph 22, and only if said application is made during the last two months of the operation of the relevant collective agreement.

(21) If the bargaining rights of the representative organization are termi­nated pursuant to paragraph 19 and not replaced, the Broker shall have the exclusive right to negotiate and execute binding collective agreements on behalf of the common employer, until such time as an organization of associates, including but not limited to the TTOOA, demonstrates to the Board, in a manner satisfactory to the Board, that it represents a majority of associates within the brokerage affected so long as said application is made in a timely manner during the last two months of operation of any collective agreement.

(22) For all representational purposes, including the selection of Associ­ate Committees pursuant to paragraph 9 and any application pursu­ant to paragraph 19(a) and (b), voting shall be based on the principle of one vote per taxicab plate, it being understood that an associate who pays dispatch fees to the Broker will cast the vote but, in the event that a dispute arises as to whether this is appropriate in any particular case or cases, said dispute will be determined in accor­dance with paragraph 10 above.

(23) The Associate Committees' role in collective bargaining shall com­mence with the "Contract Reopener" provisions found in the current collective agreements.

(24) The union, the Brokers, and the Associate Committees shall execute collective agreements which amend certain terms of the subsisting collective agreements, subject to the Board remaining seized to determine any matter which may be in dispute.

(25) This Order is binding on the heirs, successors and assigns of all par­ties and representative organizations and if any part of this Order is later declared to be invalid, it shall be severable and shall not affect the validity of the remainder, to the fullest extent possible.

(26) Board files 2935-94-U, 2936-94-U, 3300-94-U, 3301-94-U and 3299-94-U are adjourned sine die subject to the terms of the decision of the Board dated January 13, 1995.

(27) Leave to withdraw Board file 3231-94-U is hereby granted.

(28) In these declarations, orders and directions, the terms listed below have the following meaning:

(a) "Act" means the Ontario Labour Relations Act, R.S.O. 1990, c. L.2 as amended;

(b) "Associate" means a taxi fleet owner, operator, lessee, cus­todian or agent who owns or controls more than one taxi or taxi licence, or a single taxi licence owner who is a non-driving owner, and who carries on business in association with one or more Broker;

(c) "Board" means the Ontario Labour Relations Board;

(d) "'Broker" and "brokerage" means a person who accepts calls in any manner for taxicabs used for hire and which are owned by persons other than the broker and means Dia­mond Taxicab Association (Toronto) Limited, Associated Toronto Taxi-cab Co-operative Limited and Metro Cab Company Limited;

(e) "Bylaw" means Municipality of Metropolitan Toronto bylaw 20-85 or its successor.

(f) "'Representative Organization" means an Associate Com­mittee within each Broker or any successor, as selected by Associates pursuant to this order;

(g) 'TTOOA" means the Toronto Taxicab Owners and Opera­tors Association;

(h) "Union" means Retail Wholesale Canada, Canadian Service Sector Division of the United Steelworkers of America, Local 1688.

(29) The Board shall remain seized to deal with the implementation and administration of these declarations, directions and orders, including for the purpose of such modification, amendment and clarification of these declarations, directions and orders as the interests of labour relations may require. After a period of one year from the date hereof, the Board will entertain submissions from the parties as to whether it should continue to remain seized.