Ontario Labour Relations Board
1983-99-R United Brotherhood of Carpenters and Joiners of America, Local 1946, Applicant v. Sloot Construction – Design Ltd., Responding Party.
BEFORE: D. L. Gee, Vice-Chair.
APPEARANCES: Mike McCreary and Brian McKnight for the applicant; Peter Vanderkloet, Dominic R. Sloot and Harm Heuvel for the responding party.
DECISION OF THE BOARD; March 27, 2000
This matter is an application for certification filed under the construction industry provisions of the Labour Relations Act, 1995 (the “Act”) on October 8, 1999. Pursuant to the Board’s direction of October 18, 1999, a representation vote was held on October 20, 1999. Two individuals, Wayne Harrison and Norm Bradshaw, cast ballots. Sloot Construction – Design Ltd. (“Sloot”) asserts that Messrs. Harrison and Bradshaw were employed by one of its subcontractors, namely Adam Clark Company Ltd. (“Adam Clark”) and that Sloot employed no carpenters on the date of application. A hearing was conducted on February 7, 2000 to hear the parties’ evidence and submissions with respect to the issue of whether Messrs. Harrison and Bradshaw were employees of Sloot on the date of application.
Dominic Sloot and Harm Heuvel testified on behalf of Sloot. Mr. Sloot is the owner of Sloot. Mr. Heuvel is a semi-retired construction worker who is employed by Sloot to do general clean-up and site inspection work. The union called Messrs. Harrison and Bradshaw, the two individuals in dispute, and Wayne Crockett, a project manager with Adam Clark, to testify.
Sloot is a general contractor that builds stores in malls and plazas. Virtually all of the construction work performed by Sloot is performed by subcontractors. Mr. Sloot, Mr. Heuvel and a bookkeeper are (subject to the issue in dispute herein) the only employees of Sloot.
On September 10, 1999, Sloot was advised that it was the successful bidder on the Churchills Crossings store located in the Masonville Mall. The project involved the interior renovation of a store. The project was to be completed by October 20, 1999.
All of the work to be performed on the project was contracted out by Sloot to specialty contractors. Sloot entered into subcontracting arrangements with electrical, mechanical, painting, drywall, glass, marble and tile, demolition, sprinkler, carpet and carpentry contractors. The carpentry contractor was DBA W. D. McDonald Construction (“McDonald”). McDonald and Sloot had an oral agreement pursuant to which McDonald was to install the millwork at the store on a time and materials basis.
It became apparent that McDonald was not going to be able to complete the millwork by the October 20, 1999 deadline. Accordingly, Mr. Sloot decided that additional resources would have to be obtained. In the previous 10 years, Sloot had entered into arrangements with Adam Clark for the installation of millwork approximately six times. Mr. Sloot had recently spoken to Wayne Crockett and obtained information from him as to the rates Adam Clark was charging for the performance of such work. Thus, when he determined that additional resources were required in order to install the millwork on time, Mr. Sloot phoned Mr. Crockett and enquired as to whether the rates he had previously been quoted had changed. Mr. Crockett responded that they had not. Mr. Sloot requested that Adam Clark assist with the millwork installation.
Adam Clark asked one of its carpenters on staff if he wanted to go work on the project. The carpenter indicated that he was not a trim carpenter and therefore was not qualified. Adam Clark called the Carpenters’ hiring hall. Adam Clark asked that Norm Bradshaw and a second unnamed carpenter be referred to the project. On October 4, 1999, the applicant referred Mr. Bradshaw and a second carpenter to the project. Sloot had no advance knowledge of the identity of the carpenters who were referred to the job site.
On October 6, 1999 Mr. Sloot once again phoned Mr. Crockett and advised him that the work was not getting completed on time. As a result, three additional carpenters were referred to the job site by the applicant at the request of Adam Clark on October 7, 1999. One of the carpenters referred to the job site on October 7, 1999 was Mr. Harrison.
The arrangement between Sloot and Adam Clark was the same as had been entered into in the past. Sloot was charged $48.75 an hour for regular time and $91.25 an hour for overtime.
When the carpenters attended at the job site they were met by Mr. Sloot who told them what work was to be performed and showed them where the drawings were kept. The carpenters were qualified tradesmen and the work in question was quite simple millwork such that little supervision or direction was required.
A representative of Adam Clark attended at the job site to have the carpenters complete start forms and provide them with safety sheets. The start forms had to be completed in order for Adam Clark to pay the carpenters. Once a week the same representative was to attend at the job site to get the hours worked from the carpenters in order that their pay could be processed. One week the Adam Clark representative was unable to attend at the site and Adam Clark asked Mr. Sloot to obtain the hours worked from the carpenters and phone them into Adam Clark which he did. The carpenters were paid by Adam Clark and not by Sloot.
The carpenters considered the terms and conditions of their employment to be governed by the terms of the Carpenters Provincial ICI Collective Agreement. They determined their own start and stop times as well as their break and lunch times based on when the job site was opened and closed by one of the subcontractors on site and according to the provisions of the Carpenters Provincial ICI Agreement. They were not advised of their start and stop times or break times by Sloot.
While Mr. Crockett testified that he considered Adam Clark to be nothing more than a payroll company, his evidence does not support such a conclusion. Mr. Crockett testified that Adam Clark, pursuant to its standard arrangement, would have been responsible if one of the carpenters referred to the job site at its request had caused damage to the site. When Mr. Sloot phoned him to complain about the productivity of one of the carpenters, Mr. Crockett personally attended at the job site to view the work in question. Following viewing the work, Mr. Crockett agreed that the carpenter had not been productive and told Mr. Sloot that it was up to Mr. Sloot as to whether the Carpenters would be laid off or not. Mr. Crockett stated that, in the event a carpenter was unable to report to work due to illness, he would have expected the carpenter to notify Adam Clark accordingly. Mr. Crockett, put his mind to the fact that, as of October 7, 1999, there were five carpenters referred to the site and, according to the terms of the Carpenters Provincial ICI Collective Agreement to which Adam Clark is bound, a foreman should have been appointed. While Mr. Crockett did not get around to appointing one, he recognized the requirement and fully expected to hear from the applicant about it. When Mr. Sloot felt that the work was nearing completion such that three of the carpenters were no longer required, Mr. Sloot phoned Mr. Crockett. Mr. Crockett informed him that the carpenters could not be laid off without paying them one hour lay-off notice. Mr. Crockett informed Mr. Sloot to tell the men to go to Adam Clark’s shop. Mr. Crockett testified that prior to asking the carpenters to work overtime, Mr. Sloot had to call and ask Mr. Crockett. According to Mr. Crockett, Adam Clark was responsible for safety on the job site.
Mr. Sloot testified that none of the subcontractors on site had supervisors. The job was simply too small. Sloot considered Adam Clark to be a subcontractor and required proof of liability insurance. Sloot did not check the qualifications of the carpenters or keep track of the hours they worked in any way. When Mr. Sloot was dissatisfied with one of the carpenter’s work he called Mr. Crockett to complain. When Mr. Sloot was upset that one of the carpenters was leaving work early to attend a doctor’s appointment he complained to Mr. Crockett.
The evidence of Mr. Harrison and Mr. Bradshaw establishes that it was Mr. Sloot who told them what to do when they attended at the site. On one occasion Mr. Sloot pointed out an error to Mr. Bradshaw and Mr. Sloot once asked Mr. Bradshaw to place some plywood on top of the change rooms to facilitate other trades who had to perform work in the ceiling. Both Mr. Harrison and Mr. Bradshaw agreed that the work to be performed was simple and, considering their years in the trades, they required little supervision.
In my view, the evidence establishes that Mr. Bradshaw and Mr. Harrison were employed by Adam Clark and not by Sloot on the day of application. Mr. Bradshaw was name hired by Adam Clark. Thus, at least one of the carpenters was chosen by Adam Clark. None of the carpenters were selected by Sloot. The carpenters were paid by Adam Clark. While they stated that they considered Sloot to be their employer their conduct does not support their evidence. They considered the terms and conditions of their employment to be governed by the Carpenters Provincial ICI Collective Agreement. Adam Clark is signatory to such agreement. Sloot is not. The only way their employment could be governed by the terms of the Carpenters Provincial ICI Collective Agreement is if they were employed by Adam Clark.
While Sloot may have directed the carpenters on the initial morning of their attendance at the job site, the carpenters were all qualified tradesmen who required little supervision. The direction that Sloot gave the carpenters is completely consistent with communications a general contractor might have with the trades employed by subcontractors on a small job site.
Adam Clark required advance notice before the men could be asked to work overtime, and expected to be informed by the carpenter himself if a carpenter was unable to report to work due to illness. When productivity issues arose Mr. Crockett personally attended at the job site to view the work in issue. When lay offs occurred, Sloot was required by Adam Clark to provide notice of lay-off pursuant to the terms of the Carpenters Provincial ICI Collective Agreement. The carpenters were told to return to Adam Clarke’s shop.
On the basis of the facts before me, it is my determination that both Mr. Harrison and Mr. Bradshaw were employed by Adam Clark and not by Sloot on the date of application. Accordingly, there were no employees at work in the bargaining unit on the date of application.
This application is hereby dismissed.
“D. L. Gee”
for the Board