United Brotherhood of Carpenters and Joiners of America, Local 1946 v. Reed Atwood Inc.
0243-01-R United Brotherhood of Carpenters and Joiners of America, Local 1946, Applicant v. Reed Atwood Inc., Responding Party.
BEFORE: David A. McKee, Vice-Chair.
APPEARANCES: Mike McCreary and Brian McKnight for the applicant; Christopher M. Little and Gene Willms for the responding party.
DECISION OF THE BOARD; November 29, 2001
This is an application for certification pursuant to the construction industry provisions of the Labour Relations Act, 1995, S.O. 1995 ch. 1 ("the Act"). In this application seven persons cast ballots in the representation vote held by the Board. All the persons who cast ballots in the representation vote had been challenged by one party or the other. The only issue outstanding is the entitlement of each of them to cast a ballot. The parties agreed to bifurcate this examination, and to deal first with the three individuals the applicant (the “Union") says should be on the list: Erik Peterson, Clay Wright and Brian Travis.
The employer has also raised a timely notice under section 8.1 in this application, which it has not waived. The parties therefore agreed that the Board should proceed to determine whether all or any of the three individuals above named were entitled to cast ballots. The Board would then review the possible list after this determination is made and decide whether or not a determination could be made under section 8.1.
The issue is quite simple. The responding party, Reed Atwood Inc. ("Reed") takes the position that these three persons were not their employees. It does not dispute that they were performing carpentry work on the day of the application and would otherwise fall into a bargaining unit of Carpenters and Carpenters Apprentices. Reed simply asserts that they were not, and never have been their employees. The Union asserts that Reed was the employer of these three carpenters.
The union called all three carpenters to testify. While there were minor differences among their testimony, and some degrees of uncertainty about details, the evidence of all three was very similar with respect to their manner of hiring and working.
The local business representatives, Brian McKnight, advised them that there was some "non-union" work that might be available at the Westmont Mall in London. He told each of them to report to Chris Barton in the "SOS Store" at the Westmont Mall at 9:30 PM on Wednesday, April 18th. It was necessary to report at that time as all work was performed in the store at the end of the retail business day. Each of them did report at that time. Each of them understood that Chris Barton "hired" them on behalf of Reed. Each of them worked two shifts (one of seven hours and one of eight hours) and were told on the morning of Friday, April 20th that their services would no longer be required. On the basis of what Barton told them, they believed that they were employed by Reed and expected to be paid by it.
There is one issue which is slightly material and on which there was some dispute. All three carpenters said that Barton spent some time supervising their work and some time working on the tools. Peterson said Barton cut a couple of boards to demonstrate how the work should be done and performed a few other tasks, but spent little time working on the tools. Clay Wright said that Barton did most of the cutting and some installing work. He testified that they all worked together as the team. Brian Travis put Barton's time working on the tools at less than that, but he agreed that all four worked together as the team, indeed to the point where he felt there were too many people for the amount of work and space available. When Barton was asked how much time he spent on the tools, an objection was made on the grounds that his answer (75 percent of his time) had not been put to the other three carpenters. In the circumstances, it is not necessary to rule on this.
The performance of the work described by the three carpenters requires some skill and precision. All three were apprentices and may have required somewhat more careful instruction and supervision than a journeyman carpenter. All agreed that Barton had a hand in the cutting work, presumably because there is less tolerance for error in that aspect of the job. On the other hand, the work is not complex, and involves a certain amount of repetitive performance of tasks which would not require constant supervision or direction. The site was a small site, and it was not necessary to spend time traveling around the site to check on the progress of work at different locations on the site. I find that it is more likely that Barton spent a significant portion of his time performing in the carpentry work, which the other three carpenters also did. There is no doubt that he also directed them and spent a significant amount of time supervising others and not working on the tools. However, a considerable portion of his time was spent working as a carpenter.
The real issue in this case is whether Barton could and did hire the three carpenters. In this respect I heard evidence from Barton (who was summonsed by both parties, and called by Reed) and Gene Willms, project manager of Reed for Ontario. From their evidence, it is clear that Barton had no actual authority to hire the three carpenters. He sought such authority from Willms. Willms said that he would not consider such a request without seeing a resume from anyone that Barton wished Reed to hire. While the ending of this conversation may have been unclear, for reasons that will become obvious, I have no doubt that Barton did not have authority from Willms to hire anyone and he knew he did not. The only question is whether Reed clothed Barton in ostensible authority to hire carpenters.
Mr. Barton was a difficult witness for both counsel, and his testimony is just as difficult for the Board in assessing the truth. His evidence was that he lied to everyone including Mr. Willms, Mr. McKnight, and the three carpenters. He was obviously uncomfortable with saying that on the stand (as well he might be). This discomfort led him, particularly in the face of fairly aggressive cross-examination from union counsel, to seek to blame the Union for the subterfuge he had created. It is worth noting that he made no such statement in chief, and did so only after repeated cross-examination on several points about which he felt very defensive. In each case, I conclude that his attempts to identify McKnight as the originator of his scheme was an attempt to deflect cross-examination which he found uncomfortable. As set out below, I concluded that he was the originator of the details of these events, and that he misrepresented what he was doing and could do to McKnight, as much as to anyone else.
The only evidence I have on the main issue, and indeed the only evidence anyone could have on this issue, is that of Barton and Willms. Much as Barton is untrustworthy in certain respects, much of his testimony was consistent internally, both in chief and in cross-examination, and was consistent with the testimony of Mr. Willms. Much of what he said was also reasonable in the context of the objective events that did occur.
Barton had worked as a carpenter for Reed previously. His work had been satisfactory. When he approached Reed for additional work in the London area, Reed was prepared to hire him. Even though this was a rehiring, Reed required a resume and certain personal information from Barton before he started work. McKnight, as part of his duties as a business representative, heard of the work going on. He ran into Barton and spoke to him about his work.
Barton had been a member of the Carpenters Union. He left in circumstances not described, but it is clear to me that his reinstatement in the Union was only possible at some cost, monetary or otherwise. McKnight was of course interested in certifying any non-union contractor in London area. He asked Barton if he could hire carpenters on the job, in which case McKnight would be happy to supply him with some, and would bring an application for certification. He told Barton that if he were able to achieve this result, he would be the "hero of the Union" (a not inaccurate, if somewhat hyperbolic statement).
Barton told McKnight he had no authority to hire on his own. He said he would seek this authority and see what he could do. To this end he called Willms and told him he was having trouble getting the job completed on time and suggested that he hire "a few of his buddies". Willms said he would not consider this until he had seen their resumes. He asked Barton to fax the resumes before he would consider employing anyone.
On this point Willms testified that company policy was never to hire an individual without a resume and other personal information. For the past three years it has also been a strict policy of Reed never to hire someone and pay him or her in cash. Reed had done so from time to time up until a point three years ago. At that time the Alberta Ministry of Labour found Reed to be doing precisely that and levied a particularly large fine on Reed. Reed had no desire to risk that kind of penalty again. Willms testified that he was surprised that Barton could not finish the job by himself as Willms had foreseen no difficulty in one carpenter doing so. He also indicated to Barton that there was a large expense in setting up the payroll for just a few days' pay.
Barton testified that the conversation ended with Willms saying, "I'll have to get back to you. I have to talk my boss about that". Counsel for the Union suggested that Barton might reasonably have taken this statement as an agreement, subject to checking with Willms' boss, and that that could reasonably assume he had the authority to hire carpenters when he did not hear back that this was not acceptable. In the context of the conversation I disagree. Willms never got back to him. A reasonable person would not have concluded that he had any authority to hire carpenters as a result of that statement.
Barton told McKnight to send him a few carpenters on the night of Wednesday, April 18, 2001. He did not tell anyone at Reed that he had done so. Barton had the three carpenters sign two documents. One was a record of a "toolbox meeting" under the Occupational Health and Safety Act. He had been given this form for use on another job and had kept it. There was no need to use this form on this job. He also photocopied the form on which he kept track of his own time, and had the three carpenters record their time as well on the copies. The time sheet is entitled "Superintendents Semi-Monthly Report". It was not disputed that Barton also had a business card which described him as a construction superintendent. However no witness suggested that he had shown this card to the three carpenters or to McKnight.
The three individuals worked for two nights, seven or eight hours each night. On Friday, April 20th Barton told them there was no more work for them to do and that they would be paid later. The Union filed the application for certification on the same day. On the 25th he faxed his time sheet and that of the three carpenters to Reed in Alberta. The fax cover sheet had written on it: "HOURS SUBMITTED AS PER GENE WILLMS REQUEST. PRIOR TO 04/26/01 FOR PAYMENT ON OR BEFORE 04/30/01." Barton testified that he hoped a secretary would pick up the fax, and assume that Gene Willms had approved the issuance of paycheques. It is possible he believed that, although in terms of what the Board knows about the operation of a payroll, this seems unlikely, particularly as he faxed this document well after the application for certification had been filed. However, no counsel asked Barton how familiar he was with Reed’s payroll practices or the Board's process and what notice Barton believed Reed would have had on April 25, 2001.
The Union asked me to consider that written statement as evidence of an agreement between Willms and Barton to permit Barton to hire the three carpenters, notwithstanding the denial of this fact by Barton and Willms. I cannot accept that argument. The statement is ambiguous (as it was no doubt intended to be). The word "request" does not indicate an instruction or direction by Mr. Willms and does not necessarily indicate an agreement. But for the period after "request" (if it is indeed a punctuation mark) one might read it to refer to the deadline for submitting information, rather than the submission of timesheets themselves. In any event, there is no other evidence which suggests an agreement. Even if I were to discount the evidence of Mr. Willms (which I do not) and Barton (who is consistent on this point), the fax itself is not sufficient in this context to demonstrate that there was an agreement. At most, it might be confirmatory of some other evidence proving an agreement, but there is no such other evidence in this case.
Barton's evidence about his expectations was inconsistent. In chief, he suggested that he expected Reed to pay the carpenters and then immediately revised that statement to say that he hoped Reed would pay them, but he did not think that was going to happen. In cross-examination, he gave several versions of both answers.
On the facts as I have found them, Barton clearly had no actual authority to hire the three carpenters. There is no evidence that he had such authority, to the contrary there is evidence that he sought it and it was denied. There was no subsequent ratification by Reed of the employment, i.e. it did not pay the three individuals for the work they did. The only question is whether the carpenters or the Union were entitled to rely on any ostensible authority of Barton to employ the carpenters.
The doctrine of ostensible authority is described in Kvaerner Jaddco, [1999] OLRB Rep. November 1023 at paras. 47 through 50 as follows:
Even though an agent may lack actual authority, he or she may be clothed with ostensible authority by the principal such that the Agreement is binding on the principal. Such ostensible authority does not require further ratification by the principal: it is effective as of the date the agreement is made. Indeed the principal may not later revoke it. Again Fridman defines this type of agency as follows:
First there must be some statement or conduct on the part of the principal which can amount to a representation that the agent has authority to act on his behalf in the way he is acting. It was made clear by the Court of Appeal and the House of Lords in Armagas Ltd. v. Mundogas SA [[1985] 3 All ER 795 and [1986] 2 All ER 385 at 389] that the relevant representation must come from the principal: it cannot come from the agent himself. Ostensible authority is created by a representation by the principal to the third party that the agent has the relevant authority: and the representation, when acted upon by the third party, operates as an estoppel, precluding the principal from asserting that he is not bound. ( Agency op. cit. p.114)
- The doctrine is summarized in Distribulite v. Toronto Board of Education Staff Credit Union (1988) 1987 CanLII 4162 (ON HCJ), 62 O.R. (2d) 225 (S.C.J., Campbell J.) at pages 279-280 and 282:
The classic requirements for ostensible authority were set out by the House of Lords in Freeman & Lockyer v. Buckhurst Park Properties (Mangal) Ltd., [1964] 2 Q.B. 480, per Lord Diplock, at pp. 505-6, [1964] 1 All E.R. 630 at p. 646:
If the foregoing analysis of the relevant law is correct, it can be summarised by stating four conditions which must be fulfilled to entitle a contractor to enforce against a company a contract entered into on behalf of the company by an agent who had no actual authority to do so. It must be shown:
(1) that a representation that the agent had authority to enter on behalf of the company into a contract of the kind sought to be enforced was made by the contractor;
(2) that such representation was made by a person or persons who had “actual” authority to manage the business of the company either generally or in respect to those matters to which the contract relates;
(3) that he (the contractor) was induced by such representation to enter into the contract, that is, that he in fact relied upon it; and
(4) that under its memorandum or articles of association the company was not deprived of the capacity either to enter into a contract of the kind sought to be enforced or to delegate authority to enter into a contract of that kind to the agent.
The judgment was referred to with approval by the Supreme Court of Canada in Canadian Laboratory Supplies Ltd. v. Engelhard Industries of Canada Ltd. (1979), 1979 CanLII 44 (SCC), 97 D.L.R. (3d) 1, [1979] 2 S.C.R. 787, 6 B.L.R. 235, and in Rockland Industries Inc. v. Amerada Minerals Corp. of Canada Ltd.(1980), 1980 CanLII 188 (SCC), 108 D.L.R. (3d) 513, [1980] 2 S.C.R. 2, [1981] 1 W.W.R. 110.
- On the other hand, there is no reason not to apply the doctrine of ostensible authority in this context. The Board has applied that the doctrine in many circumstances: Inspiration Limited [1967] OLRB Rep Sept. 561, Collegiate Sports Ltd., [1977] OLRB Rep. Aug. 487, Vic Sturchuk and Associates Inc., [1980] OLRB Rep. April 516 and Hussey Seating Company, supra.
The essence of this doctrine is a representation by the principal (in this case Reed) to the third party (the three carpenters or the Union) that Barton had the authority to enter into a contract of employment. That is, it does not matter what Barton did or said, since he had no actual authority. The question is whether Reed made a representation by its conduct that would induce a third party such as the carpenters to perform work in expectation of payment.
I find that there was nothing Reed did which could constitute such a representation. Leaving a person in charge of the job with the keys to the area where tools and materials were locked up, is consistent with employment as a carpenter to perform carpentry work and perhaps to coordinate the work schedules of other trades. This is, after all, what Barton did before April 18, 2001. He also performed a significant amount of work on the tools even when the others were working, and needed access to the locked area for tools and material, and control of the site to do that. The business card was not something the union or the carpenters relied on and the time sheet does not identify Barton himself as the "superintendent". The fact that Barton kept "toolbox meeting" form from the previous job is not a representation by Reed, since there is no evidence that Reed was careless in letting those forms be distributed. There is nothing else that Reed did that could be called a representation.
Therefore Barton had no ostensible authority to hire the three carpenters. I find that he could not hire them and his purported employment of the three carpenters was not effective to create a contract of employment, or any form of employment relationship between Reed and the three carpenters.
Counsel for the Union argued that this was not the only issue that the Board should, or typically does, focus on in these types of cases. He referred to a line of cases which begin with and rely on York Condominium Corporation, [1977] OLRB Reports October 645. That case listed seven criteria that the Board has often used in determining certain issues about employment relationships. Only one of these issues was "the existence of an intention to create an employment relationship". Counsel suggested that the Board ought to look to the other seven criteria to determine whether or not for the three carpenters were employees of Reed.
With all due respect, I disagree that these cases are applicable in this case at all. York Condominium Corporation lists the seven criteria at paragraph 10. The paragraph commences with the words:
In determining which of two or more parties is or are the employer(s) of certain employees, the Board has applied a number of criteria which are listed below: …
In this context, the seventh criterion focuses on the word "employment". That is, the question is "the intention to create an employment relationship", not the intention of any party to do or not to do something. In Sutton Place Hotel, [1980] OLRB Reports October 1538 paragraph 26 again refers to the determination of "which of two or more entities is the employer for the purposes of the Labour Relations Act".
The other cases cited by the applicant do not expand much on this focus. In Gorf Contracting Limited, [1992] OLRB Reports July 800, the general contractor, Gorf, wanted the electricians on the site doing the work and was even prepared ultimately to be responsible for the wage costs. It just did not want to be their employer. In Axor Group Inc. (unreported, Sept. 7, 2001, Board File No. 1980-99-R.) the same was true of Axor and the drywallers on that job. In Esso Imperial Oil Limited, [1997] OLRB Reports October 849, there was no issue as to the fact that the persons in question were employees of someone, and were doing what they were being asked to do by both Esso and Best Personnel Services. The question was whether they were employed by Esso or by Best Personnel Services. Finally in Sirfran Construction Managers Inc., [1988] OLRB Reports May 529 the issue is whether the glaziers, who were employees during the week, were employed as employees or independent contractors when they were "moonlighting" on the weekend, performing work at Sirfran’s request.
These cases are not of assistance here. No one suggested that the carpenters were employed by Barton. The only question is whether they were employees of Reed. Reed had not authorized their employment and had not authorized the performance of any work by them on the SOS Store job site, or indeed any other site. It had no knowledge that they were on the site at all, or of who they were.
I find therefore that the three carpenters were not employees of the responding party Reed, and were not entitled to cast ballots in the representation vote.
Returning to the responding party’s section 8.1 issue, on the basis of reviewing the remaining list it is clear that the Union could not demonstrate membership evidence on behalf of 40 percent of any bargaining unit that could be created from this list. No matter how the voters’ list is configured, the objection under section 8.1 is valid. Accordingly, this application is dismissed pursuant to section 8.1(5) paragraph 7.
The 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 time period.
Given that all of the job sites that were in operation on April 20, 2001 have since been completed by Reed, there is no need to post a copy of this decision.
“David A. McKee”
for the Board