1399-99-R International Brotherhood of Painters & Allied Trades, Glaziers Local 1819, Applicant v. Bradscot (MCL) Ltd., Responding Party.
BEFORE: John Morgan Lewis, Vice‑Chair.
APPEARANCES: Joseph Russo, Dermot Lynch and Sime Mitrevski for the applicant; Kristen Lopes, Neil McLellan and Fred Coutts for the responding party.
DECISION OF THE BOARD; July 14, 2000
1This is an application for certification filed under the construction industry provisions of the Labour Relations Act, 1995 (the “Act”). The application was made on August 6, 1999. The parties agreed to extend the time for the filing of the responding party’s (“Bradscot”) materials to October 1, 1999. Bradscot filed its response with the Board within the time to which the parties had agreed.
2In its decision dated November 8, 1999, the Board directed a representation vote to be conducted on November 10, 1999 but ordered the ballot box to be sealed until the parties agreed to count the ballots or the Board ordered otherwise. The vote took place as directed and the ballots were subsequently counted on agreement of the parties. The two individuals who cast ballots voted in favour of the applicant (the “union”).
3The only issue remaining in dispute is whether Sime Mitrevski (“Mitrevski”) and Liberto DiBiase (“DiBiase”), the two individuals identified in the application for certification, were working for Bradscot on the date of application, or whether, as asserted by Bradscot, they were employed by FG Aluminum Inc. (“FG”).
4The Board heard the testimony of Neil McClellan, President of Bradscot (“McClellan”), Fred Coutts, Vice-President of Finance for Bradscot (“Coutts”), Dermot Lynch, Business Manager of the union (“Lynch”) and Mitrevski, one of the two individuals who cast a ballot in the representation vote. In making the findings and reaching the conclusions set forth in this decision, the Board has duly considered all of the oral and documentary evidence, the submissions of counsel, and the usual factors germane to assessing evidentiary credibility and reliability, including the firmness and clarity of the witnesses’ respective memories, their ability to resist the influence of self-interest when giving their version of events, the internal and external consistency of their evidence, and their demeanor while testifying. The Board has also assessed what is most probable in the circumstances of the case, and considered the inferences which may reasonably be drawn from the totality of the evidence.
THE FACTS
5Bradscot is a well-established general contractor operating in the construction industry since January of 1986. As a general contractor, Bradscot either directly employs individuals to perform work or subcontracts out specific packages of work to specialized contractors. In October of 1997, Bradscot was invited to submit a bid for the demolition and reconstruction of the Lord Dufferin Jr./Sr. School located at 303 Berkeley Street in Toronto (the “project”). Portions from the Bidding Requirements for the project were introduced as evidence at the hearing. Article 64 reads as follows:
- LABOUR RELATIONS:
All Contractors and Sub-Contractors doing construction work for the Toronto Board of Education must have good contractual relationship with Unions affiliated with the Building and Construction Trades Council of Toronto and Vicinity affiliated with the Building Trades Department of the American Federation of Labour.
6According to McClellan, it was permissible under Article 64 for Bradscot to perform work on the project even though it was not signatory with all of the construction unions as long as all of its sub-contractors were unionized. Bradscot tendered a price for the project on October 30, 1997. As required under the Form of Tender, Bradscot listed all of the subcontractors it proposed to use in performing the work on the project. Under the work headings for Aluminum Doors and Frames and Glazing, Bradscot identified FG as the subcontractor. Bradscot ultimately used forty-six different subcontractors in completing the project, all of which were bound to a collective agreement for their respective trade.
7Bradscot was awarded the contract for the project and executed a contract with the Toronto District School Board (the “School Board”) on March 24, 1998. This contract contained a labour compatibility clause which was identical to Article 64 of the Bidding Requirments. Bradscot entered into a contract with FG on December 9, 1997. The scope of work under the contract with FG included the supply and installation of a number of items including aluminum doors and windows. Upon signing its contract with Bradscot, FG immediately commenced to prepare shop drawings and pre-manufacture some of the materials to be installed. McClellan dealt with Joe Chung (“Chung”) on behalf of FG in negotiating the terms and conditions of the contract.
8Bradscot employed Ken Williams (“Williams”) as a superintendent on the project to supervise the work of the subcontractors and to direct Bradscot’s own complement of a layout man, three labourers and one carpenter. McClellan attended at the project at least a couple of times each week to monitor whether the subcontractors were complying with the work schedule. According to McClellan, Angelo Forgione (“Forgione”), owner and principal of FG, was responsible for the work being performed on-site on behalf of FG. McClellan testified that Forgione would be on the project at least four times each week as he was responsible for delivering the pre-manufactured window panels.
9FG commenced installing product on the project in March of 1999. FG routinely employed two individuals on-site but that number would increase to five when materials were being delivered to the project. Soon after entering into the contract with Bradscot, howwever, FG began to experience financial difficulties. In December of 1998, officials of FG met with McClellan requesting an early payment under the terms of their contract in order to remain current with their suppliers. McClellan reviewed the amount of work that FG had completed to date in relation to the manufacture of the pre-fabricated panels and agreed to pay FG the amount of $60,000.
10FG’s financial problems continued throughout the spring of 1998 which was causing some concerns relating to the quality of work being performed by FG and in keeping current with its production schedule. FG was also attracting the attention of Fair Wage Officers from the City of Toronto whose responsibilities include verifying that contractors pay their employees a “fair wage” in keeping with the City of Toronto’s Fair Wage Policy. Although the evidence was far from clear at the hearing, it would also appear that the Fair Wage Officers were questioning whether FG was a unionized subcontractor. As will be set out later, it was entirely reasonable for the Fair Wage Officers to be inquiring into the status of FG.
11At around this time, McClellan approached FG demanding that it obtain additional manpower on the project in order to meet its production schedule. Bradscot provided FG with notice under Article IX of their contract that unless the problems on the project were rectified within three days, Bradscot would complete the work and backcharge its costs to FG. Article IX is reproduced as follows:
Article IX. If the Subcontractor at any time refuses or neglects to supply a sufficient amount of labour or materials of proper quality and quantity, or fails in any way to perform the Work according to schedule, or cause stoppage or delay of or interference with the Work of Bradscot or of other Subcontractors, or fails in performance of any agreements herein, or becomes insolvent, Bradscot shall be free to after three day’s written notice to the Subcontractor, to provide through others such labour and materials and deduct cost of same from any money due or thereafter to be due the Subcontractor for said Work and to take possession for purposes of completing Work in this Contract of all materials, tools and equipment, and to employ others to finish the Work and to provide materials therefor. Upon termination no further payment shall be made to the Subcontractor until the said Work shall be wholly finished, at which time, such excess shall be paid to the Subcontractor; but if such expense shall exceed such unpaid balance, then the Subcontractor shall pay the difference to Bradscot. The expense incurred by Bradscot shall include cost of materials, finishing Work and damage resulting from the Subcontractor’s default.
12Soon after giving notice, additional workers arrived on the project. There was such a discrepecancy in the respective testimony of McClellan and Lynch in describing how additional workers came to be employed on the project that I prefer to set out each version separately. I will first summarize McClellan’s testimony and then contrast it with the testimony of Lynch.
13According to McClellan, Forgione’s father assured McClellan that he would obtain more men on the site by dealing directly with the union. McClellan responded that he did not care how the problem was resolved just so long as it was taken of. Following this conversation, McClellan was advised that two additional men had appeared on the site. McClellan then received a telephone call from Lynch who advised him that he was concerned that his members working for FG on the project would not get paid because of FG’s financial difficulties. To avoid that result, Lynch asked McClellan if Bradscot would, as a favour to Lynch, pay those employees directly on a temporary basis until such time as FG resolved its financial difficulties. McClellan agreed to do so but testified that he never intended to employ the workers in question.
14Lynch described a very different set of circumstances in relation to the hiring of the additional employees. According to Lynch, it is inconceivable that he would have approached McClellan expressing concern regarding the financial condition of FG and whether it was able to pay its employees. Lynch explained that in April of 1998, the union and the applicant were involved in a termination application before the Board. A vote was conducted and upon counting the ballots cast, more than fifty per cent were marked against the union. In its decision dated September 23, 1998, the Board (differently constituted) declared that the union no longer represented the employees of FG for whom it had been the bargaining agent. As a result of that decision, FG was no longer bound to the collective agreement between the Architectural Glass and Metal Contractors Association and the International Brotherhood of Painters and Allied Trades and the Ontario Council of the International Brotherhood of Painters and Allied Trades (the “collective agreement”). Further, Lynch maintained that FG had not employed any members of the union since the Board’s decision of September 23, 1998.
15According to Lynch, it was McClellan who contacted him requesting that the union provide Bradscot with two individuals to work at the project. In response to this request, Lynch referred DiBiase to Bradscot on May 18, 1999 and Mitrevski on May 19, 1999. Copies of their referral slips were introduced as evidence. The referral slips indicate that Mitrevski and DiBiase were being referred to Bradscot at the project. There is no mention of FG. Lynch testified that McClellan made no mention of FG nor that the employees would be working for FG at the project. It was Lynch’s understanding that Mitrevski and DiBiase were to be employed by Bradscot.
16On May 27, 1999 the union faxed to Bradscot the wage and benefit rates under the collective agreement applicable to Mitrevski and DiBiase. Bradscot remitted benefits to the union’s benefit funds on behalf of Mitrevski and DiBiase in accordance with the terms of the collective agreement. The union produced copies of remittance sheets issued by Bradscot commencing for the work month of May 1999. Bradscot remitted benefits on behalf of Mitrevski up to and including the work month of November 1999. Bradscot submitted benefits on behalf of DiBiase up to and including the work month of March 2000. Coutts testified that Bradscot took over the entire payroll administration in relation to DiBiase and Mitrevski. Coutts also confirmed that Bradscot paid the Workplace Safety Insurance Board premiums on behalf of DiBiase and Mitrevski. According to Coutts, for the purposes of payroll administration, there was no distinction between DiBiase and Mitrevski and other individuals employed by Bradscot.
17Mitrevski was laid off on November 9, 1999. Bradscot provided Mitrevski with a Record of Employment indicating that his first day of work was May 19, 1999 and that his last day of work was November 9, 1999. The Record of Employment also indicated that Bradscot was Mitrevski’s employer.
18Mitrevski has been a member of the union for approximately two years and is regularly employed as a glazier. Mitrevski testified that he was always under the impression that he was working for Bradscot at all material times. Bradscot paid Mitrevski each week. Mitrevski testified that he was supervised by Williams or his assistant by the name of Frank, both of whom worked for Bradscot. Either Williams or Frank would direct Mitrevski and DiBiase and would determine their hours of work. According to Mitrevski, no other individual supervised him on the project.
19McClellan testified that Bradscot did not employ an assistant supervisor on the project but that he did think that one of the labourers on the project was named Frank. McClellan denied, however, that a labourer would be authorized to give instructions to the two glaziers on the project. According to McClellan, Forgione would leave instructions for the installation of the window and door panels with Williams who would then communicate those instructions to the employees of FG. This relative lax form of supervision was sufficient, according to McClellan, because DiBiase and Mitrevski were experienced workers who required very little in terms of instruction. McClellan also testified that if there were disciplinary issues in relation to DiBiase and Mitrevski that he would notify FG who would be responsible for resolving any problems which may arise. McClellan was not aware of any instances when either DiBiase or Mitrevski were disciplined when working on the project.
20Mitrevski testified that he had never previously worked for FG and had never heard of the company. Further, Mitrevski could not identify the names of Forglione or Chung and claimed that he had never met anyone by either of those names. Mitrevski identified other factors which lead him to believe that he was working for Bradscot while on the project. The job trailer belonged to Bradscot, as did the job box which stored a number of power tools used on the project. Mitrevski assumed that the power tools being used at the project belonged to Bradscot because they were stored in its job box, McClellan denied that Bradscot owned any of the power tools used on the project and asserted that they belonged to FG. Mitrevski also claimed that it was Bradscot which rented the scaffolding used on the project.
21McClellan and Coutts testified to the ongoing relationship Bradscot maintained with FG throughout the duration of the project. Coutts supplied a number of financial records indicating that the contract with FG remained in place and that FG continued to supply pre-fabricated window and door panels which were installed by DiBiase and Mitrevski. The financial records further indicate that Bradscot, pursuant to Article IX of the contract, backcharged to FG the costs associated with DiBiase and Mitrevski.
22There was a great deal of testimony regarding the delivery of the window panels to the project. Mitrevski testified that the panels were delivered in a dark blue or black truck with the name “Bradscot” on the side. McClellan maintained that FG delivered the window panels to the project and that Bradscot did not own either a dark blue or black truck.
23This is an appropriate point to deal with an issue which arose with respect to the ownership of the truck delivering materials on the project. After the parties had closed their respective cases and the hearing had been concluded, the Board received correspondence from counsel for the union dated May 5, 2000. The union was seeking to introduce a number of photographs which, in the submission of the union, would contradict the testimony of McClellan that Bradscot did not own a dark blue or black truck. Counsel for Bradscot wrote to the Board on May 17, 2000 objecting to the photographs being admitted as evidence. I am in agreement with counsel for Bradscot that the photographs should not admitted. In order to admit the photographs, the union would have to prove the photographs through a witness. This would require reopening the hearing and allowing Bradscot to cross-examine that witness and to lead rebuttal evidence through its own witnesses including McClellan who would have to be recalled.
24The Board is not prepared to re-open the hearing. The union closed its case on April 25, 2000. It could have sought leave of the Board, prior to closing its case, to adjourn the hearing in order to obtain rebuttal evidence but it did not do so. The parties not only completed their cases but also presented their final argument in this matter. The introduction of the photographs at this stage in the proceedings would be highly prejudicial and unfair to Bradscot. The Board declines to exercise its discretion to reopen this case and finds the photographs to be inadmissible.
THE LAW AND THE DECISION
25Counsel referred to the following cases in argument: York Condominium Number 46, [1977] OLRB Rep. October 645; Hemco Developments Ltd., [1987] OLRB Rep. June 852; and Esso Imperial Oil Limited, [1997] OLRB Rep. September/October 849. A concise summary of the factors the Board considers in determining “who is the employer” is found in the following comments of the Board in Esso Imperial Oil Limited, supra beginning at paragraph 12:
- Although the Board is always prepared to consider any factor which is relevant, as a general matter, the factors which the Board has considered when faced with a “who is the employer” issue are the ones first compiled in the York Condominium, supra decision:
(1) who exercises direction and control over the employees when they are performing the work;
(2) who bears the burden of remuneration;
(3) who has the power to impose discipline;
(4) who does the hiring;
(5) who has the authority to discharge;
(6) who do the employees perceive to be their employer;
(7) the intention to create an employment relationship.
- None of these factors is necessarily determinative, and the relative significance of any individual factor will depend on the circumstances of the particular case. Having said that, it is apparent that the object of the exercise is to assess the various factors, both individually and in the context of all the other factors, in order to ascertain who has fundamental control over the employment relationship, particularly where the factors point in different directions. In making the assessment and determination, the Board is more concerned with substance than with form; that is, the Board will not permit commercial form to obscure labour relations.
26Before proceeding to apply the aforementioned factors to this case, it is necessary to first review the contradictory evidence and determine what is most likely to have occurred. When Bradscot was awarded the project, FG was a unionized subcontractor as required under the terms of the contract. Soon thereafter, however, the Board declared that the union no longer represented the employees of FG. At that point, Bradscot was no longer in compliance with the labour compatibility clause in its contract with the School Board. FG’s changed status would not have necessarily come to the attention of Bradscot until FG started to perform work on-site and the Fair Wage Officers began to inquire into whether FG was unionized. The Board finds that the non-affiliation of FG with the union, coupled with its failure to meet quality standards and its inability to meet its production schedule, led Bradscot to give FG written notice under Article IX of the contract.
27Having considered the evidence of Lynch and McClellan, I prefer Lynch’s version in describing how DiBiase and Mitrevski came to be working on the project. Clearly Lynch would not have initiated DiBiase and Mitrevski being hired by Bradscot as the financial condition of FG would not have been a concern to Lynch. It is much more plausible that McClellan, upon realizing that FG was no longer a unionized subcontractor removed FG from the project and contacted the union in order to obtain qualified workers.
28In applying the factors enumerated above, the Board finds that on balance, they identify Bradscot as the employer of DiBiase and Mitrevski. In reaching this conclusion, I reject Bradscot’s argument that it was merely facilitating the payroll responsibilities of FG. I accept that Bradscot’s contract with FG was not terminated and that it continued to manufacture and supply the pre-fabicated window and door panels to the project. I also accept that Bradscot backcharged to FG the costs associated with employing DiBiase and Mitrevski. Those factors, however, are not determinative in establishing the identity of the company with whom DiBiase and Mitrevski were employed.
29Representatives of FG were virtually absent from the project. DiBiase and Mitrevski had never previously worked for FG and Mitrevski did not know any of the principals associated with FG. I find that FG did not supervise or direct DiBiase and Mitrevski on the project. I also find that they were supervised, albeit in a minimal fashion, by Williams. Mitrevski perceived that Bradscot was his employer. That is not surprising given that he was referred to Bradscot and that Bradscot: paid his wages and benefits; paid his WSIB premiums; issued a T-4 slip to him; and, provided a Record of Employment when he was laid off.
30Having considered the evidence, both oral and documentary, and the submissions of counsel, I find that Bradscot was the employer of DiBiase and Mitrevski on the date of application.
31In its decision of November 8, 1999, the Board found the following bargaining unit to be appropriate for collective bargaining:
all glaziers and glaziers’ apprentices in the employ of Bradscot (MCL) Ltd. in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario and all glaziers and glaziers’ apprentices in the employ of Bradscot (MCL) Ltd. in all other sectors of the construction industry in the City of Toronto, the Regional Municipalities of Peel and York, the Towns of Oakville and Halton Hills and that portion of the Town of Milton within the geographic Townships of Esquesing and Trafalgar, and the Towns of Ajax and Pickering in the Regional Municipality of Durham, save and except non-working foremen and persons above the rank of non-working foreman.
32On the taking of the representation vote directed by the Board, more than fifty per cent of the ballots cast by employees in the bargaining unit were cast in favour of the union.
33Section 160(1) of the Act, which states as follows, provides for the issuance of more than one certificate if the applicant has the requisite support:
- (1) The Board shall certify the trade unions on whose behalf an application for certification is brought as the bargaining agent of the employees in the bargaining unit if more than 50 per cent of the ballots cast in the representation vote by the employees in the bargaining unit are cast in favour of the trade unions. The Board shall issue one certificate that is confined to the industrial, commercial and institutional sector and another certificate in relation to all other sectors in the appropriate geographic area or areas.
Therefore, pursuant to section 160(1) of the Act, a certificate will issue to the union on its own behalf and on behalf of all other affiliated bargaining agents of the International Brotherhood of Painters and Allied Trades and the Ontario Council of the International Brotherhood of Painters and Allied Trades in respect of all glaziers and glaziers’ apprentices in the employ of Bradscot (MCL) Ltd. in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario, save and except non-working foremen and persons above the rank of non-working foreman.
34Further, pursuant to section 160(1) of the Act, a certificate will issue to the union in respect of all glaziers and glaziers’ apprentices in the employ of Bradscot (MCL) Ltd. in all sectors of the construction industry in the City of Toronto, the Regional Municipalities of Peel and York, the Towns of Oakville and Halton Hills and that portion of the Town of Milton within the geographic Townships of Esquesing and Trafalgar, and the Towns of Ajax and Pickering in the Regional Municipality of Durham, excluding the industrial, commercial and institutional sector, save and except non-working foremen and persons above the rank of non‑working foreman.
35The Registrar will destroy the ballots cast in the representation vote taken in this matter following the expiration of 30 days from the date of this decision unless a statement requesting that the ballots should not be destroyed is received by the Board from one of the parties before the expiration of such 30-day period.
36The responding party is directed to post copies of this decision immediately, adjacent to the “Notice of Vote and of Meeting” posted previously. These copies must remain posted for a period of 30 days.
“John Morgan Lewis”
for the Board```