Ontario Labour Relations Board
4689-97-R Carpenters and Allied Workers Local 27, United Brotherhood of Carpenters and Joiners of America, Applicant v. Concord Kitchens Ltd., Responding Party.
BEFORE: Harry Freedman, Vice-Chair.
APPEARANCES: David Watson, Tim Bartkiw, Carlos Pimentel and Harold Biso for the applicant; Neal E. Sommer, Peter Becker, Klaus Bogner, Anna Scrivo and Sergio Coppola for the responding party.
DECISION OF THE BOARD; March 16, 2000
1The Board, by decision in this application for certification dated December 17, 1998, defined the issue before the Board at this stage of the proceeding as whether the two persons remaining in dispute who cast ballots at the representation vote (Jose Martins and Edmund Cordero) were eligible voters. That issue requires the Board to determine whether either or both of those two persons were employees of the responding party and whether either or both of them performed carpentry work for the responding party on March 6, 1998, the date the application for certification was made. Depending on the Board’s determination of that issue, there may remain outstanding the issue of whether the responding party employed more than one person in the bargaining unit on the application date and the applicant’s request for relief under section 11 of the Labour Relations Act, 1995, S.O. 1995, c. 1 (the "Act"), as well as the application made by the applicant under section 96 of the Act in Board File No. 0002-98-U.
2The hearing into the voter eligibility issue consumed six days of hearing, with the testimony of eight witnesses and the filing of more than 20 exhibits. The testimony given by the witnesses was often contradictory, although I attribute that more to the passage of time and the inherent difficulty in trying to remember what work was being done and who said what to whom many months from the events in question, rather than to an intention to mislead the Board. In making the factual determinations necessary to decide this matter, I considered the oral testimony of the witnesses, the documentary and other objective evidence and the parties’ submissions and took into account such factors as the demeanour of the witnesses during their testimony, the clarity of their evidence, their apparent ability to recall events and to resist the temptation of self interest in their responses to the questions, and what, in all of the circumstances seems most reasonable and probable, having regard to the entirety of the evidence presented.
3The responding party took the position that both Messrs. Martins and Cordero were not employees of the responding party; rather they were independent contractors who had been engaged by the responding party to provide cabinet installation services. The responding party does acknowledge that Mr. Cordero was, in fact, performing carpentry work for the responding party on the application date at the “Trexcon” project in Toronto. Thus, if the Board were to conclude that Mr. Cordero was an employee of the responding party, he properly cast a ballot at the representation vote. The applicant asserts that Mr. Martins actually performed some carpentry work on the application date in either unit 63 or 64 at the “Kerbel Markham” project and reported to work at the Trexcon project for the purpose of doing carpentry work. The applicant and responding party agreed that Mr. Martins did not do any carpentry work at the Trexcon project on the application date, as the elevators had broken down by the time Mr. Martins arrived and he was not prepared to wait until the cabinets were in place for installation.
4After the responding party made its submissions in response to the applicant’s argument and before calling on the applicant to reply, I determined that Mr. Martins was an employee of the responding party, not an independent contractor. Mr. Martins had been initially hired by the responding party to work as a service person to repair deficiencies in the installations carried out by the responding party and to do back order or special order installations. Mr. Martins had approached the responding party for a job in November 1997 because his job with another kitchen company was coming to an end. When Mr. Martins was hired by the responding party, he had been interviewed by Peter Becker, the president of the responding party, and they had agreed that Mr. Martins would be paid $14.00 an hour to do the job of service person. After about two weeks as a service person, Mr. Becker suggested to Mr. Martins that he could make more money working as an installer, for which he would be paid a flat rate for each kitchen installation he did. Mr. Martins worked as an installer exclusively for the responding party from the time he accepted Mr. Becker’s suggestion to move from the service person job some time in late November or early December 1997 to some time after this application had been filed with the Board.
5While working as an installer for the responding party, Mr. Martins used some of his own small hand tools, but also borrowed tools from Sergio Coppola, the responding party’s plant manager and supervisor of installations at the times material to this application, or would also take the responding party’s larger 12 inch mitre saw with him if he needed a saw bigger than the 8 inch saw he owned. Mr. Martins testified that while he worked as an installer he was directed by the responding party from time to time to perform service work. He was paid his hourly rate of $14.00 when doing service work and the piecework flat rate when doing installations. Each day, Mr. Martins called Mr. Coppola in the evening to find out where he should report for work the next day.
6Counsel for the responding party asserted that Mr. Martins was not an “employee” of the responding party on the basis that he was not actually required to report for work, but was free to either accept or turndown an assignment from Mr. Coppola. In addition, counsel argued that Mr. Martins was not an employee of the responding party but rather was an independent contractor because in the year 1998, Mr. Martins earned far less than one quarter of his earnings for that year from the responding party.
7The evidence indicated that although an installer might refuse to accept an assignment on any given day, that refusal could result in not receiving an assignment the next day. Thus, despite counsel’s argument that Mr. Martins was free to work or not to work, that freedom, in my view, was more illusory than real. Furthermore, while having the choice of not reporting to work is some indication that a person may not be in an employment relationship, the other circumstances clearly established that Mr. Martins was, in fact, an employee of the responding party on the application date. The direction he received to perform work at particular locations, his use of the responding party’s tools and supplies to perform installation work and perhaps most importantly, the ease with which he was moved from installations paid on a piece work rate to service work paid at an hourly rate all suggest that he was in an employment relationship. While the responding party did not make the requisite statutory deductions and paid Mr. Martins according to invoices submitted, it was clear applying the normal criteria used by the Board to determine whether a person performing work for another person is an employee, that Mr. Martins was an employee. See Mo-Mek Systems Limited, [1974] OLRB Rep. Oct. 642 at paragraph 7 in which the Board applied the “four fold” test adopted by the Privy Council in Montreal v. Montreal Locomotive Works Limited, 1946 CanLII 353 (UK JCPC), [1947] 1 D. L. R. 161. The classic criteria (control, ownership of tools, chance of profit and risk of loss) are still applicable in many situations, although the Board has developed other tests to determine whether a person is an employee (including a dependent contractor) depending on the circumstances (Livingston Transportation Ltd., [1972] OLRB Rep. May 488; Adbo Contracting Company Ltd., [1977] OLRB Rep. April 197; Calvano Lumber & Trim Co. Ltd., [1989] OLRB Rep. April 337).
8Here, the evidence established that Mr. Martins was subject to a significant degree of control exercised by the responding party. Furthermore, there was no suggestion of any entrepreneurial activity on the part of Mr. Martins during the period of time he was engaged by the responding party. Simply put, there was neither a chance of profit nor a risk of loss in connection with the work he performed for the responding party. Furthermore, there was no merit to the suggestion that the Board should consider the different sources of a person’s annual income in determining whether that person is an employee. Employees may be engaged in a number of short term, casual jobs and receive employment income from a variety of sources. While that factor may have some relevance in assessing whether someone is an independent contractor or a dependent contractor, it is certainly not a determinative factor even with respect to that issue. Therefore, I was satisfied that Mr. Martins was an employee of the responding party on the application date.
9Edmund Cordero together with his brother Raoul worked together doing installation work for the responding party. While the responding party acknowledged that Edmund performed installation work on the day of application, it asserts that Edmund Cordero was not an employee but rather was an independent contractor engaged by the responding party. Both Edmund and Raoul did the installation work required by the responding party, although it was Edmund with whom the responding party principally dealt. Edmund paid Raoul from the revenues he received from the responding party for their work. Edmund and Raoul came to be engaged by the responding party after Edmund responded to an advertisement for installers which he saw in a newspaper some time in the latter part of 1997. He went to the responding party’s premises for an interview, where he filled out an application form and was asked about his previous experience working as a kitchen installer. Edmund testified that at the time he first began doing work for the responding party, he was asked if he would do service work. Edmund said that he was told that they could use service people, but he said no to the responding party and explained that he preferred the flexibility of being an installer.
10The rates paid by the responding party for installations were fixed by it based on the kind of unit being installed and the project where the installation was taking place. Edmund Cordero (and Mr. Martins) both testified that they did not attempt to negotiate the installation rates with the responding party. As with Mr. Martins, Edmund would call Mr. Coppola to obtain work. If he had not finished an installation by the end of the day, Edmund was expected to return to finish that work the next day before undertaking a new assignment. In order to be paid, Edmund had to submit a form indicating the units that were completed, the code for the particular installation and the price for that unit. All expenses associated with his work, which were for the most part his automobile travel to and from the job sites, were shared by Raoul and Edmund. Edmund was paid by the responding party and shared the revenue he received for the installation work with Raoul, after deducting their expenses. Edmund used materials supplied by the responding party to do the installation work. Items such as fasteners, finishing screws and caulking were picked up by all the installers who did work for the responding party, including Edmund, from the stockroom at the responding party’s premises.
11In addition to being an experienced kitchen installer, Edmund Cordero is also a licensed gas fitter, who was working for an authorized Consumers’ Gas dealer, United Thermal Dynamics, before, during and after working as an installer for the responding party. Edmund explained that he would do his gas fitting work usually at night, but might also do that work during the day. Raoul did not work with Edmund in respect of the gas fitting work done for United Thermal Dynamics, but only in the kitchen installation work Edmund obtained.
12Edmund did not perform carpentry work or kitchen installation work for any one other than the responding party during the period of time he was engaged by the responding party. He did acknowledge that less than ½ of his income during the four month period prior to the application date (the period he was doing installation work for the responding party) resulted from the kitchen installation work he did for the responding party. The balance of the income he received during that period came from other sources, principally as a result of his gas fitter work. He indicated as well that if he were asked to perform service work, he would be paid $15.00 per hour, provided the service work did not result from his errors. Edmund received service work assignments from Mr. Coppola, and was paid for that work based on how much time the job was expected to take. Edmund explained that Mr. Coppola knew how much time a service job should take and he was paid the hourly rate for the time fixed by Mr. Coppola. If service work had to be done that was his fault, he had to do it and would not be paid for that work.
13Edmund moved from the Trexcon job to work at a project for Tridel doing installation work for the responding party shortly after the application was filed. Raoul was injured while working with Edmund at the Tridel job. At the time of the injury, Anna Scrivo, the responding party’s accountant and office manager, sought information from Edmund about the injury because Tridel wanted to have a proper injury report filed and was pressing the responding party for that information. Edmund advised Ms. Scrivo that he would look after the situation with Tridel. In fact, Edmund gave the necessary information to Tridel’s site superintendent, indicating that he (Edmund) was working for the responding party. Because the site superintendent knew both Raoul and Edmund, he did not have to tell him for whom Raoul was working. The responding party did not continue to use Edmund to do installation work after Raoul was injured. Edmund also explained that neither he nor Raoul were registered for workers’ compensation coverage. There was no evidence submitted with respect to whether the responding party took any steps pursuant to section 141 (2) of the Workplace Safety and Insurance Act, 1997, S. O. 1997, c. 16 to ensure that workers’ compensation premiums were paid in respect of Edmund or Raoul. Edmund and Raoul agreed that they would not seek compensation in respect of Raoul’s injury, nor did they pursue further work with the responding party following the injury.
14There are a number of factors that would indicate Edmund does not come within the definition of dependent contractor under the Act. Obviously, having his brother share his work with him for which he paid his brother a fixed share of the revenue received from the responding party is a significant factor. Similarly, being paid a fixed rate for installation work, regardless of how much time it takes to do that work, and receiving a flat rate without any withholding of income tax etc. together with the fact that Edmund during the times material to this application was engaged elsewhere and received more than ½ of his income during that period from other sources all point to a conclusion that Edmund was an independent contractor. Those factors, by themselves, might well lead to the conclusion that Edmund was an independent contractor providing installation services as a subcontractor to the responding party.
15Nevertheless, there are a number of other factors which, on balance, militate against finding that Edmund was an independent contractor. The responding party without charge (and apparently without checking quantities) provided all of the necessary consumable materials, such as fasteners, screws and caulking needed to perform installation work to Edmund and Raoul. Edmund was directed from to time to perform service work for which he was paid an hourly rate. He did not register as a subcontractor for workers’ compensation coverage, did not have business cards or stationery nor did he engage in any promotional activity to obtain work. Simply put, Edmund (with his brother) provided labour only to the responding party. There were no indicia of entrepreneurial activity which is, in my view, an important characteristic of an independent contractor.
16The Act defines dependent contractor in terms of a person performing work for another person for compensation on such terms that the person who does the work is in a position of economic dependence upon and under an obligation to perform duties for that other person that more closely resemble the relationship of an employee than that of an independent contractor. Obviously, there are a wide variety of relationships and activities on the spectrum between the two paradigms of independent contractor and employee.
17The Board in Mr. Seamless Eavestroughing Thunder Bay Limited, [1974] OLRB Rep. Dec. 875 found persons who were paid on a piece work basis and who owned their own tools were employees under the Act because of the degree of control exercised by the “employer”. The Board noted that the employer in that case directed those persons to repeat unsatisfactory work and assigned them to the jobs where work was needed to be done. Furthermore, the employer in that case unilaterally set the rate for the jobs that were to be done. Similarly, in Toronto Drywall Services, [1976] OLRB Rep. Oct. 645, the responding party engaged in little “direct” supervision, but told the persons in question where to work at any particular time. Furthermore, those persons owned all of their own tools and were paid based on the volume of work they did each week. The Board concluded, by applying the “four fold” test, that their chance for profit or risk of loss was negligible and as such, they were not independent contractors but rather were employees within the meaning of the Act.
18It is not necessary for the Board to determine with precision whether Edmund Cordero was an employee or a dependent contractor. Rather, the issue is (as it was in Toronto Drywall Services, supra) whether he was an independent contractor on the date of application. The Board in Calvano Lumber & Trim Co. Ltd., supra discussed the nature of the relationships one might find in the construction industry between contractor and sub-contractor or employee at paragraph 15:
Employment relationships may exhibit a variety of forms in different contexts, but the essence of such relationship is the exchange of labour for consideration in some form. Collective bargaining concerns the terms of that exchange and trade union representation permits even small groups of employees to improve them. It does not matter that an individual may not be “employed” or “paid” in a conventional way, nor does it matter that the alleged employee only works sporadically or shows up on the employer’s doorstep and is engaged on a casual basis. Casual or day labour is quite common-especially in the construction industry.
While Edmund Cordero earned less than ½ his total income from the responding party during the period of time he was engaged by the responding party, that is not, in my view, determinative of the issue of whether he comes within the definition of dependent contractor. In Adbo Contracting Company Ltd., supra, the Board at paragraph 28 made the following comment:
…the facts point to the complainants being dependent economically upon the respondent Pasinato. This economic dependence arose because Pasinato, and the other brokers like him, were the almost exclusive source of work for the complainants…. The fact that the relationship between Pasinato and Fidanza may have been more transitory, moreover, does not necessarily put it outside the purview of section 1 (ga) [now section 1 (1)] of the Act. The question is whether the economic dependence is roughly analogous to that of the employee working in the same economic sector. Fidanza, and the other complainants, were all performing work in the construction sector, an area in which employment relationships have always been less permanent than in the industrial sector. Using this analogy, we find that in this case the transitory nature of the relationship between Fidanza and Pasinato does not make Fidanza any less a dependent contractor than the other four complainants.
Edmund Cordero did kitchen installation work only for the responding party during the relevant period of time. His other income was derived from his work as a gas fitter. While that other source of income does suggest that Edmund Cordero was not economically dependent upon the responding party in an absolute sense, the responding party was the sole source of the kitchen installation work he performed. In that sense, he was economically dependent on the responding party “roughly analogous” to an employee in that sector of the construction industry. There was no evidence to suggest that Edmund Cordero was engaged in soliciting kitchen installation work in order to keep himself and his brother busy. I also note that the responding party provided, at no cost to them, the consumable materials used in the installation of kitchens, which is more indicative of an employment relationship than of an independent contractor/client relationship.
19The circumstances of Edmund and Raoul Cordero were similar to the circumstances of persons who were found by the Board to be dependent contractors in Supreme Carpentry Inc., [1989] OLRB Rep. Nov. 1181. The Board described the relevant circumstances of their situation at paragraphs 15 and 16:
They consider themselves self-employed and expect or hope to “profit” by undertaking with Supreme to install carpentry trim in houses at a pre-determined price per house. Apart from that, there is little evidence of an independent contractor relationship between them and Supreme. They have little influence on the price which they are paid for each house, having to accept the price set by Supreme or forgo the work. They have no significant control over the circumstances under which they perform the partnership’s work for Supreme. Supreme determines when they are to do the work. They do supply their own tools, but these are nothing more than the tools which a carpenter employed for an hourly wage would supply. They also provide at their cost some consumable materials; not an uncommon practice where employees work at a piece rate in residential construction. It appears to the Board that [they] are doing little more than supplying their own labour through their partnership to Supreme at a fixed price per unit.
There is little opportunity of making a profit or risk of suffering a loss in that arrangement. It is merely a matter of whether the partnership can complete a house in fewer or more hours than those the brothers may have calculated in deciding to accept Supreme’s price. All of the partnership’s income…was derived from this kind of arrangement with Supreme. Clearly, Supreme and the partnership’s dependence on Supreme for its source of income place the partnership in a position of economic dependence upon and under an obligation to perform duties for Supreme that makes the partnership’s relationship with Supreme resemble more that of employer and employee than that of a client and independent contractor.
See also Carpino Carpentry Ltd., [1991] OLRB Rep. March 306. While Edmund Cordero alone obtained income as a gas fitter, both he and Raoul derived their joint income from the responding party. It was not clear whether Edmund “employed” Raoul or whether he and Raoul were “partners” when they worked for the responding party. Edmund characterized their relationship as a partnership in which they shared the revenue and the expenses. Whether Raoul was Edmund’s partner or employee does not, in my opinion, determine the result. In either case, Edmund’s situation did not move past the mid point in the spectrum of relationships between employee and independent contractor. Thus, I am persuaded by the applicant that Edmund Cordero was not an independent contractor and therefore, whether he was a dependent contractor within the meaning of the Act or an employee at common law, he was, on the application date, an employee within the meaning of the Act who performed bargaining unit work on that date.
20There was a serious factual dispute between the parties over whether Mr. Martins, who I have already determined was an employee of the responding party, performed carpentry work on the application date. There was ample evidence that Mr. Martins had been engaged to perform work on units 63 and 64 at the Kerbel Markham site during the week ending March 7, 1998. Mr. Martins testified that he started doing the kitchen installations at those two units the day before March 6th, a Thursday, finished one unit on that day and went back to finish the second unit on the Friday, the day the application was filed with the Board. Mr. Martins was adamant that he had not been at the Kerbel Markham site on March 3 or 4 (the Tuesday and Wednesday of that week) and had been sent there by Mr. Coppola on the Thursday. Despite a rigorous cross-examination by counsel for the responding party, Mr. Martins denied having been at the site earlier and denied being mistaken about the dates he worked at that site that week, even with counsel suggesting that John Semon, the site superintendent for Kerbel Markham and Hans Zender, another installer engaged by the responding party would say that Mr. Martins was seen on March 3 and 4 and was not seen on March 6. Ultimately, Mr. Zender was not called as a witness and Mr. Semon confirmed having seen Mr. Martins on Friday March 6th at the Kerbel Markham site, although Mr. Semon could not confirm that Mr. Martins had done any work on that day.
21Carlos Pimentel, the applicant’s director of organizing described the conversation that he had had with Mr. Martins on March 5th. Mr. Pimentel had been active in organizing a number of kitchen cabinet companies and because he was on the verge of making an application, wanted to stay in touch with the employees who had been contacted. He testified that he spoke with Mr. Martins on the evening of March 5th. Mr. Martins told Mr. Pimentel that he was going to be back at Kerbel Markham in the morning to finish off some work and then he would leave to go elsewhere. Mr. Pimentel also saw Mr. Martins at the Trexcon site on March 6 and had a brief conversation with him to confirm that he had been at the Kerbel Markham site. Butch Biso, an organizer for the applicant, also testified that he had seen Mr. Martins at the Kerbel Markham site on Friday morning March 6. Mr. Biso said he had seen Mr. Martins in the kitchen of one of the units, but did not recall what Mr. Martins was doing when he saw him, because he was not paying attention to what Mr. Martins was actually doing. Mr. Biso said he spoke to Mr. Martins to tell him that the application for certification was going in on that day. Mr. Biso did recall asking Mr. Martins what he was doing. He recalled Mr. Martins saying that he was just finishing up.
22Mr. Coppola testified that he remembered Mr. Martins working at the Kerbel Markham site on March 3and 4, the Tuesday and Wednesday of that week. He said that Mr. Martins had done one unit on the Tuesday and a second unit on the Wednesday. Mr. Coppola referred to a page from his installer book (exhibit 11) which indicated that the cabinets had been delivered on Tuesday, March 3rd to the units where they were to be installed. The cabinets were placed in the dinette areas of the units and are generally installed the next day. Mr. Coppola testified that he had sent Mr. Martins to do installations at Kerbel Markham on March 3rd, which is the same day that the cabinets were delivered. Mr. Martins had testified that the cabinets he installed were delivered the day before they were to be installed by him. Mr. Coppola testified that the common procedure was for kitchen cabinets to be delivered for installation on the following day.
23Ms. Scrivo testified that she had marked down Mr. Martins having done the installations at the Kerbel Markham site on March 3 and March 4 on an invoice form she had prepared (exhibit 6) based on the information she had received from Mr. Semon. The invoice Mr. Martins had submitted for that work (exhibit 3) did not show the date he did the work at the Kerbel Markham site, although it does indicate that the invoice was submitted to the responding party for the “week ending March 10”, a Tuesday. Ms. Scrivo explained that the date should have been March 7 because the responding party’s week finished on a Saturday. However, Mr. Coppola explained that the “week ending March 10” was the date used by the responding party. That is, installers submit their invoices from the previous week by the Tuesday of the next week to be paid for the work done that previous week. I note in that regard that Mr. Martins’ invoice for the following week (exhibit 7) shows a week ending March 17, a Tuesday and the invoices submitted on behalf of both Tom Probislo (exhibit 15a) and Cyril Pereira (exhibit 14b) show a week ending on a Tuesday. Ms. Scrivo also acknowledged that she had placed the call to Mr. Semon about the date Mr. Martins had installed the kitchens at the Kerbel Markham site the week following the delivery of the application and conceded that she did not know when she had spoken with Mr. Semon.
24Mr. Semon testified that he had signed the installation completion certificates for the two units in which Mr. Martins had installed kitchen cabinets the week ending March 7th (exhibits 4a & 4b) but did not date them. Mr. Semon’s notes for the week of March 3 to March 6 (exhibits 17 (i) & (ii)) indicate that some kitchen work was done on March 3 and on March 4 in units 63 and 64. The kitchen floors had not been finished when Mr. Martins did the cabinet installation in units 63 and 64 that week. Mr. Semon indicated that he thought that the kitchen work had been completed by Mr. Martins by March 4th, but acknowledged in cross-examination that on Friday March 6th, he saw and spoke with Mr. Martins at about 9:30 that morning. Mr. Semon testified that Mr. Martins had said to him that he had installed the kickplate, light valence and hardware for the cabinets and he wanted the completion certificates signed. Mr. Semon did not think that Mr. Martins had done any work that morning because he did not recall letting Mr. Martins into the unit. Mr. Semon conceded that it was entirely possible that someone else may have let Mr. Martins into the unit or that the unit would be open if other trades were working in the unit that morning. Mr. Semon also conceded in his cross-examination that the installers seek to have the completion certificates signed as soon as their installations are done and that Mr. Martins had asked Mr. Semon on that Friday morning to sign the completion certificates for the units 63 and 64, the two units he had done at the Kerbel Markham site that week.
25Mr. Becker testified that he attended at the Kerbel Markham site on Wednesday March 4 and spoke with Mr. Martins, who was doing kitchen installations on that day. Mr. Becker referred to his diary, in which he had noted that he was to check the two units at that job site that day. Mr. Becker said that he saw Mr. Martins packing up his tools after finishing his work. He found the work Mr. Martins had done unsatisfactory and told him that he had to finish that work properly. Mr. Becker provided some explanation as to why he had a note of those two kitchens in his diary, but no notes of any other job sites he had visited that week. He did say that he goes out to job sites several times a week. Mr. Becker also testified that he had understood that Mr. Semon had called the responding party to complain about the work of Mr. Martins and that Mr. Coppola had been instructed not to send Mr. Martins there again. Mr. Coppola, according to Mr. Becker, had sent Mr. Martins to the Kerbel Markham site that week contrary to the instructions he had received. I note that Mr. Coppola, according to his installer book, had sent Mr. Martins to Kerbel Markham the following week as well.
26The evidence about whether Mr. Martins worked at the Markham Kerbel site is in conflict. It is clear that the cabinets were delivered to the job site on Tuesday, March 3rd. Everyone appeared to agree that installers put the kitchens in usually the day after they are delivered. There is therefore little doubt that Mr. Martins did work in one or both of the units at the Kerbel Markham site on Wednesday. Mr. Becker says that Mr. Martins had finished doing that work on Wednesday. Mr. Martins said that he had not finished all of his work, but went back on Friday to finish off what he had done. Mr. Semon agrees that he saw Mr. Martins on that Friday when he signed the completion certificates. Mr. Semon also agreed that the installers would seek to have their certificates signed as soon as their work is completed. Mr. Becker was adamant that Mr. Martins completed the two kitchens at Kerbel Markham on Wednesday, yet I am satisfied on the evidence of Mr. Semon that the completion certificate was not signed for Mr. Martins until the Friday.
27It was clear that Mr. Martins did not work at the Trexcon site on Friday. It was also clear from the evidence that the applicant chose Friday, March 6, 1998 as the date for filing its application because, among other reasons, Mr. Martins had told Mr. Pimentel in the evening of March 5th he would be going to finish off some work at the Kerbel Markham site on March 6th. It is, in my opinion, more likely that Mr. Martins would specifically remember what he was doing on March 6th because he had been told by Mr. Biso that the application was going to be filed on that day. Furthermore, Mr. Martins’ testimony was consistent with the evidence of Mr. Semon in respect of what had taken place on that day. Mr. Coppola did not dispatch Mr. Martins to work at Kerbel Markham, rather he had been sent to Trexcon. But, as an installer, Mr. Martins could finish the work he had started at a time he determined so long as the work was completed by the time required by the builder. It may be that, in Mr. Becker’s opinion, Mr. Martins had finished the work on the two units by Wednesday afternoon. Mr. Martins says that he still needed to complete a few things that Friday. On balance I am persuaded that Mr. Martins did, in fact, perform bargaining unit work on that day. Whether he had been instructed or assigned by the responding party or simply decided to go there to finish the work on his own is not relevant since Mr. Martins was engaged as a piece worker. The actual hours he worked doing installation was not ordinarily significant to the responding party because the responding party did not control the actual work hours of its kitchen installers who were paid a flat rate for their installation work. Indeed, it may well have been that Mr. Martins deliberately waited until Friday to attend at Kerbel Markham to finish his work in one of the two units he had been assigned because he knew that the application was going to be filed that day. I note parenthetically that it is not unusual for construction trades people to “go back” to a project to “finish” their work to ensure, for example, that their construction lien rights are not defeated.
28Since I have concluded that Mr. Martins did, in fact, perform carpentry work on the application date at the Kerbel Markham site, I need not determine whether simply reporting for work at the Trexcon site with the intention of doing bargaining unit work, but not actually doing any bargaining unit work there, is sufficient, in the construction industry, to find that Mr. Martins was employed in the bargaining unit on the application date.
29The Board has determined that both Mr. Martins and Mr. Cordero were employees in the bargaining unit on the application date. Therefore, this matter is referred to the Registrar to have a Labour Relations Officer forthwith convene a meeting with the parties in order to attempt to resolve the remaining issues in dispute in this application. Should the parties not resolve the outstanding issues in this application, this matter, together with the application in Board File No. 0002-98-U is to be listed for hearing before this panel of the Board.
30This panel of the Board remains seized with this matter and with the application in Board File No. 0002-98-U.
“Harry Freedman”
for the Board