Ontario Labour Relations Board
3050-00-R United Brotherhood of Carpenters and Joiners of America, Local 494, Applicant v. Say Custom Woodworks, Responding Party.
BEFORE: David A. McKee, Vice-Chair.
APPEARANCES: David Watson and Jack McDowell for the applicant; Jonathan Say for the responding party.
DECISION OF THE BOARD; May 22, 2001
This is an application for certification made pursuant to the construction industry provisions of the Labour Relations Act, 1995, S.O. 1995, ch. 1 (“the Act”). The only issue before the Board was whether certain persons who had performed work for which they were paid by Say Custom Woodworks (“SCW”) were employees of SCW or were independent contractors. At the commencement of the hearing, the parties advised that they had agreed that one person, Mr. Steve Auger, was not in the bargaining unit on the date of application. Although the parties’ reasons for reaching this conclusion were different, since they both agreed on the same result for the purposes of this application, the Board did not inquire further into Steve Auger’s status.
SCW is a sole proprietorship of Jonathan Say. Mr. Say obtained a contract from D. Grant & Sons Ltd. to perform certain millwork at the Metropolitan Campus Cancer Clinic addition of the Windsor Regional Hospital. Although he did a considerable amount of carpentry work himself, he could not perform all of it. The terms of the contract were that the primary materials were supplied by the owner or the general contractor. SCW simply installed the millwork, providing only such tools as were necessary to perform the work, and the screws, nails and glue and other fasteners.
In the fall of 2000, Mr. Say entered into an arrangement with several individuals to perform millwork. Their efforts proved unsatisfactory, to say the least, and he determined to terminate that relationship on December 5, 2000.
Mr. Say spoke to a man named “Nick” who was the foreman for another contractor in the Windsor area, Peppe Millwork. He asked Nick if he could refer any workers to him to complete the work in SCW’s contract. Peppe Millwork is bound to the Carpenters’ Provincial Collective Agreement. Ultimately, four persons were referred to him: John Kubis, Joe Rustico, Antoine Basque and Yvon Basque (his brother). These are the four people whose status is in dispute in this application. The four carpenters were members of the Carpenters’ Union and were known by Mr. Say to be members of the Carpenters’ Union when they commenced work on the project.
The terms of work were the same for all four carpenters. All four were paid $23.00 per hour for their labour. The $23.00 was what was offered. Mr. Say testified that there was “no more money in the contract” than that. He agreed that the $23.00 per hour was not the result of negotiations, but a “take it or leave it” offer, since he felt his hands were tied on this particular project.
The four carpenters were required to bring their own hand tools. SCW provided power tools, including screw guns, drills, a table saw, mitre saws, router, jigsaw, belt sander, electric planer, compressor, pneumatic nailer, ladders and a Baker scaffold. SCW also provided the screws, nails and glue necessary to perform the work. Mr. Say showed the four carpenters where the materials were stock-piled.
Mr. Say testified that he did not set the hours of work for the four carpenters. He was aware that all four of them were on site when he arrived between 7:30 and 8:00 each morning. He knew when they left as he remained to work into the evening. He told the four carpenters that they could work as many hours as they wished, take breaks and lunch if they chose to do so or work straight through the day. Although he did not say so explicitly, I infer from Mr. Say’s evidence that he did not pay for time not spent working.
The four were directed to submit invoices for the hours they worked. Initially Messrs. Kubis and Rustico submitted an invoice detailing the hours they worked. Mr. Say refused to accept that invoice and instructed them to submit an invoice showing a single price for which work was performed (although obviously this would be a multiple of $23.00). The two Basque brothers charged (and were paid) GST. There was no formal written contract.
Mr. Say asserted that he exercised no control over the four carpenters while they worked. He testified that he showed the four carpenters the work that had been done by the persons who had performed the work before December 5, 2000. They agreed with Mr. Say that the work was “garbage”. However one chooses to characterize it, this is clearly an example of Mr. Say setting quality standards for the work.
He testified that he did not direct the carpenters’ work. He did agree that he showed them the plans and blueprints and advised them which areas of the clinic to work on next. He agreed that he told the carpenters that they were to minimize the extent of exposed fasteners, and to use glue and “biscuit joint” construction on a long section of the hallways. He stated that he was simply passing on the architect’s specifications to them, rather than giving them instructions. John Kubis said that he had never before seen the “biscuit joint” type of construction and required some instruction in the technique by Mr. Say before he did it.
Initially, the four carpenters were instructed to use glue only on the baseboards in accordance with the architect’s specifications. They found that this was difficult because the wall had been constructed irregularly by another subcontractor. They spoke to Mr. Say, who advised them to use nails and procured the pneumatic nailer from his storeroom for their use.
Mr. Say usually worked on a different floor of the clinic from the four carpenters. He testified that he did not give them instruction with respect to the performance of their work, but if they asked questions, he provided guidance. He did not stand over them or supervise them on a constant basis. This answer, however, is somewhat disingenuous. Mr. Say had a contract with the general contractor. He was responsible for performing the work as specified by the architects. Thus, he was setting standards for work and would expect the carpenters to perform according to those standards. It does not matter that these standards originated with the architect rather than in his own thoughts.
This application was filed January 18, 2001. On that day, Mr. Say learned something which he said caused him to doubt the honesty of the four carpenters. He advised them to finish working that day but, after that, there would be no further work for them. On January 22, after speaking to the business representative of the applicant, he determined that it would not be inappropriate to permit the four carpenters to continue work, and he advised them to return to work. They did so and continued to perform work until the carpentry work was completed under Mr. Say’s contract a few weeks later.
SCW paid the premiums necessary to provide coverage for the four carpenters under the Workplace Safety and Insurance Act (“WSIA”). Mr. Say did not specify the status of the four individuals in respect of those payments. SCW is required to obtain a “clearance certificate” from the Workplace Safety and Insurance Board (“WSIB”) to present to Grant & Sons before receiving payment on each draw. Mr. Say testified that he had been advised by a representative of the WSIB that he was responsible for the payment of premiums for all persons supplying labour to him. He believed that the four carpenters “could not take out coverage themselves”. SCW’s premiums do not cover Mr. Say himself.
John Kubis presented Mr. Say with a business card. He asked if there was any work for his “partner”, Joe Rustico. No explanation was given of the use of the word “partner”. Mr. Say assumed that Joe Kubis meant a business partner. Mr. Kubis said he used the word in the sense that construction workers often used the phrase, that is, persons who work together and assist one another in their work.
Decision
- Section 1 of the Act provides the following definitions:
"dependent contractor" means a person, whether or not employed under a contract of employment, and whether or not furnishing tools, vehicles, equipment, machinery, material, or any other thing owned by the dependent contractor, who performs work or services for another person for compensation or reward on such terms and conditions that the dependent contractor is in a position of economic dependence upon, and under an obligation to perform duties for, that person more closely resembling the relationship of an employee than that of an independent contractor;
"employee" includes a dependent contractor.
The definition of “employee” encompasses more persons than would be defined as employees at common law. The concept of “dependent contractor” thus defined is one which is not found in other Ontario statutes. Although section 9(5) provides is that a bargaining unit consisting solely of dependent contractors is deemed to be appropriate (but not mandatory), this provision is of little consequence in an application for certification in the construction industry under section 158 of the Act: Lay-All Drywall Ltd., [1988] OLRB Rep. Mar. 308.
The Board accepts that the common law tests for determination of employee status are those set out in Montreal v. Locomotive Works Limited 1946 CanLII 353 (UK JCPC), [1947] 1 DLR 161 ( the “four-fold test” of control, ownership of tools, chance of profit and risk of loss) and Performing Rights Society Limited v. Mitchell and Booker (Palais de Dance) Limited [1924] 1 KB 762 (which focussed primarily on the nature and degree of control over the person alleged to be an employee). The statute, however, expands this definition to include persons who do not meet the tests articulated in those cases, but whose status is more like that of an employee than of an independent contractor in respect of two issues: economic dependence and an obligation to perform duties.
For the purposes of this application then, the term “employee” includes dependent contractors. Accordingly, as well as examining whether or not the four carpenters meet the common-law definition of employee, the Act directs the Board to look at whether, in terms of economic dependence and an obligation to perform duties, the person’s relationship to the responding party more closely resembles that of an employee than that of an independent contractor.
As analyzed in that expanded context, it is beyond argument that these four carpenters were employees. The details of their relationship are clearly more typical of the employees in the construction industry than of independent contractors. They were paid hourly, although some collective agreements outside the ICI sector of the construction industry provide for piecework rates. The carpenters provided their own hand tools, as construction tradespersons almost invariably do, whether working under a collective agreement or not. They did not, however, provide their own power tools. The nails, screws, glue and other materials necessary for the performance of work were supplied by SCW. The carpenters provided no materials other than their own labour.
JWC paid the premiums under the WSIA. Mr. Say argued that the payment of these premiums was not an indication of an employee relationship. However, he was extremely vague with respect to what he paid and on what basis. The WSIA contains a definition of “independent operator”. It does not contain a definition of dependent contractor. That is, persons are either employees or independent operators. If the carpenters were not employees, he could have required them to provide him with a certificate of clearance from the WSIB in the same manner that he was required to present such a clearance certificate to D. Grant & Sons Ltd. Indeed, certain collective agreements in the construction industry do provide that dependent contractors are responsible for their own WSIB premiums, although the employer makes payments to them specifically, earmarked for those premium payments (e.g. the collective agreements between certain locals of the United Brotherhood of Carpenters and Joiners of America and various shingling contractors, and of certain locals of the Labourers' International Union of North America and other shingling contractors, or the collective agreement between the United Brotherhood of Carpenters and Joiners of America Local 675 and the International Union of Painters and Allied Trades Local 1891 and the Interior Systems Contractors Association). Mr. Say chose to pay for these carpenters directly. On the very little evidence that I was given, I must conclude that they were treated as employees for the purposes of the WSIA.
As noted above, Mr. Say set quality standards, even if only by showing the four carpenters what was unacceptable. The reasons skilled tradespersons in the construction industry command wages like $23.00 per hour to start is because they bring certain skills and standards of workmanship with them to the job from the first day. Thus, the fact that Mr. Say provided little instruction or training is not an indication of an independent contractor status. However, he did provide some training (such as the biscuit joint manner of joining baseboards). This is typical of an employment relationship rather than of an independent contractor relationship. Further, it was Mr. Say who determined that it was not possible to follow the architect’s instructions with respect to the hallway baseboards, and that nails rather than simply glue and bracing could be used to affix the baseboards to the wall.
Mr. Say argued that he provided little or no direct supervision and worked in a different area of the building, except for approximately one half hour per day. This is perhaps less direct supervision than a typical building project, but not unheard of. Again, skilled tradespersons are expected to be able to work productively and efficiently on their own. The lack of constant supervision is very typical of work by construction employees.
Certainly, some factors do suggest an independent status. No deductions for income tax, Canada Pension or employment insurance were made from the $23.00 per hour, nor were any employer contributions made in respect of CPP or EI. The Basque brothers (but not the other two individuals) charged and were paid GST. Although these facts do point to independent contractor status, (assuming they are not simply a failure to comply with certain federal statutes) they are vastly outweighed by the other factors.
Mr. Say argued that, notwithstanding certain characteristics of the relationship between SCW and the four carpenters, they fell outside the definition of employee (including dependent contractor) on two grounds. First, they were not in a position of economic dependence on JWC. Second, SCW did not exercise employer-like control over them and they were not integrated into SCW’s organization. In my view, both of these factors point to employee status.
It is true that the four carpenters were not solely dependent on SCW for their livelihood for one or more years of their lives. On the other hand, when they worked for SCW, it was their exclusive source of income during that time. They engaged in no other contracts or ventures. The work for SCW was of relatively short duration, but this too is typical of the construction industry. This is reflected in the statute. What is now section 128(2) was added to the Act in 1960, reflecting the temporary nature of employment in the construction industry. After all, once the project is constructed, the entire workforce disperses to other sites or to work for other employers. In this context, the relationship of the four carpenters to SCW was exactly like that of an employee.
Mr. Say argued that he had no control over these employees and that they were not part of the organization of SCW. This was not borne out by the evidence. When the quality of work of his first crew of carpenters failed to meet his standards, he terminated the relationship. With respect to these four carpenters, he terminated the relationship on something less than one day’s notice and reinstated it the following week. That is, there was no contractual relationship between them beyond the work that they performed for SCW from one day to the next. The level of “control” in the sense of the direction of the work or direct supervision was limited, but typical of the direction and supervision received by any skilled tradesperson in the construction industry. This factor points directly to an employment relationship.
They were as much a part of the SCW organization as any employee would be. They all worked full-time on the job. They provided labour, which was the essence of SCW’s contract with D. Grant & Sons Ltd. While certainly a significant component of the services that SCW provided for by way of subcontract to D. Grant & Sons Ltd. was the expertise of Jonathan Say himself, this was primarily a construction labour contract. The four carpenters were an integral part of the organization that supplied that service. They did not represent a service purchased from another supplier for which that other supplier was responsible.
Persons in a relationship with a contractor similar to that of these four carpenters have been found consistently by the Board to be employees: Mo-Mek Systems Ltd. [1974] OLRB Rep. Oct. 642, Mr. Seamless Eavestroughing Thunder Bay Limited [1974] OLRB Rep. Dec. 875, Toronto Drywall Services [1976] OLRB Rep Oct. 645, Carpino Carpentry Ltd. [1991] OLRB Rep March 306 and Alpa Wood Mouldings Company [1992] OLRB Rep. Aug. 891, app. for jud. rev. dismissed [1993] OLRB Rep. Feb 154.
Having regard to the evidence, I find that John Kubis, Joe Rustico, Antonio Basque and Yvon Basque were employees of Jonathan Say c.o.b. as Say Custom Woodworks on the application date and that Steven Auger was not an employee in the bargaining unit on that date. I direct the Manager of Field Services to arrange a meeting for the counting of ballots of the four individuals noted above. The ballot of Steven Auger is to be destroyed without counting it.
I remain seized of this application.
“David A. McKee”
for the Board