0788-01-R Carpenters and Allied Workers Local 27, United Brotherhood of Carpenters and Joiners of America, Applicant v. Tri-Can Contracting Incorporated, Responding Party.

BEFORE: David A. McKee, Vice-Chair.

DECISION OF THE BOARD; September 10, 2001

1This is an application for certification brought pursuant to the construction industry provisions of the Labour Relations Act, 1995, S. O. 1995 ch.1 (the "Act"). It presents many of the typical difficulties in dealing with an application for certification when the persons who are the focus of the Board’s inquiry are alleged to be independent contractors, or alternatively dependent contractors. The purpose of this decision is to deal with as many of the issues raised by the pleadings as possible, and to set up an orderly process of conducting what are likely to be burdensome hearings into the remaining issues.

Section 8.1 issue

2The applicant argues that the responding party has not given a proper notice under section 8.1. The response, which was filed in a timely fashion, gives notice under section 8.1. As well as checking the appropriate box, the responding party explained at paragraph 11 that its primary position is that it had no employees at work on the application date, or in the alternative it had 25 employees.

3Counsel for the applicant is correct in one respect. An employer who asserts that it has zero employees is not giving a valid notice under section 8.1. If there are no employees in the bargaining unit, the application will be dismissed for that reason which has nothing to do with section 8.1. The mischief to which section 8.1 was directed was a perceived problem of trade unions which filed applications for certification knowing full well that they lacked the requisite level of support for making the application but hoping to win the vote in any event. It was to prevent that type of use of the procedures under the Act that section 8.1 was introduced. If, on the other hand the union is incorrect in its assessment of the legal status of the persons it seeks to organize, the consequence is simply a dismissal of the application. This was true both before and after the passage of section 8.1. That section has no impact on this type of dispute.

4However, it is not in any way improper for a party to plead in the alternative. Given the potential for legitimate disagreements about the legal status of certain types of workers in the construction industry, and the very detailed kind of factual analysis necessary to answer this question, there is nothing wrong or vexatious about pleading in the alternative. The responding party does not plead alternative facts (or many facts at all) but rather asserts a primary position about the legal effects of these facts (to which section 8.1 does not apply). That is presumably how it believes it has structured its affairs. It concedes that it may be proved wrong at the end of the day, and if that is the case, it asserts that is wrong with respect to a number of employees and, in that context, gives a notice under section 8.1. Provided it specifies the number of persons it alleges, in the alternative, are employees and gives their names, it is entitled to do just that.

Alleged agreements with respect to the list

5It is possible to reconstruct at various points in time, situations where the primary positions of some parties and the alternative positions of other parties were all identical with respect to certain employees. Even if the parties were in complete agreement, that is not necessarily the end of the matter: see Martha’s Gardens Inc., [1977] OLRB Rep. Sept./Oct. 891. Generally, of course, where parties have signed an agreement with respect to the status of certain employees the Board will not allow them to resile from that agreement. Where the agreement is simply the result of one party deciding, for whatever reason, to accede to the position of another party, the other may, in the light of that, change its position too. That was the situation in Martha’s Gardens. Here, however, there was no point in time where all parties had only one position with respect to any one employee. Therefore there was no agreement of any sort from which the Board might not permit the parties to resile. Accordingly, and with some regret about the practical consequences of this decision, the Board finds that the status of all the persons who cast ballots and (potentially) Nos. 6, 15 and 21 on the voters’ list is in issue.

6The fact that certain persons may have denied that they were employees of the responding party at the time they cast their ballots is evidence, but it is not determinative at this stage of the proceedings.

Order of proceedings

7There is too little information in the Board’s file, or in the possession of all of the parties to enable the parties or the Board to determine which individuals it will examine in what order. It does seem to the Board that the proper place to begin is with the status of the intervenors. Their right to intervene is challenged by the applicant. They may only do so if they are employees in the bargaining unit. If they are independent contractors they presumably have no status to participate in the proceeding. It does appear to be necessary to determine whether or not the intervenors have the right to participate first, since their right to cross-examine any other witness or make submissions depends on their right to be there in the first place. However, it is not possible to be definitive until the documents identified below are available.

Production

8In order that parties may be better able to assess their positions, certain documents must be produced. From the responding party, the Board wishes to see essentially all documents relating to the work performed by the individuals listed on the sites identified. These may be in the possession of the responding party or of an intermediary sub-contractor. The responding party is to make its very best efforts to obtain these documents from any other party which is in possession of them. If it is unable to do so, the Board will schedule a day of hearing in order that the necessary documents may be produced pursuant to a summons.

9The responding party is to produce all documents relating to the work performed, and the remuneration paid, to the persons whose status is in dispute, including all documents between the responding party and any subcontractor or sub-subcontractor who stands in between the responding party and the individual. These documents should include, but are not limited to:

All contracts between the owners of the premises or the general contractors from whom the responding party obtained the work performed by the individuals.

All records of the responding party with respect to the progress of the work including any reports to the owner/general contractor, internal minutes, orders to subcontractors of to the individuals directly or any other form of record.

All records of monies paid out by the responding party to any third party in respect of the work performed. All records of monies paid out by subcontractors of the responding party to any other third party and so on down the line to the individuals who actually performed the work. These records shall include invoices, purchase orders, cheque requisitions, demands for payment, cheque registers, copies of cancelled cheques, and any other record of whatever sort. Again the responding party is to make its best efforts to obtain copies of these documents from subcontractors of other third parties. At the end of the day the Board will wish to see a chain of documents which ends with a cheque to the individual.

All other records kept internally by the responding party or by any third party with respect to the performance of work on the projects or by the individuals in dispute.

10These documents are to be produced to the other parties on or before September 28, 2001 or such other date as the parties may all agree on. The Board is not to be provided with copies of these documents at this point. If the applicant asserts that the documents produced are deficient, and the responding party is unwilling or unable to produce these documents, the applicant should advise the Board what it wishes to do. As noted, a hearing may be scheduled at that point.

11Following that exchange the intervenors and the applicant are to produce all of the documents in their possession, or in the possession of their clients or members, which form part of the chain of documents specified above. They (and the responding party) shall also produce any other documents on which they intend to rely at any stage of the hearing. These documents shall be produced to the other parties on or before October 19, 2001. They are not to be produced to the Board at that time.

12If there are further submissions to be made with respect to the order of proceedings, the parties are to address their comments to the Board at that time. If it is necessary to refer to some of the documents already produced at that time, they should be included with the parties’ submissions to the Board. The Board would appreciate completeness in the production of the first party making submissions so that it is not necessary to refer to three piles of documents.

13If no party wishes to make submissions, the applicant should advise the Board of this fact on November 2, 2001. On that date the intervenor shall advise the Board of how many persons it seeks to put forward as having status to intervene, and the number of days it will take to hear the evidence and argument with respect to each one. The intervenor is directed to file a complete set of documents with respect to each person within 10 days of these submissions. It would be the Board’s intention to hear all evidence and argument regarding the status of the intervenors first, and to render a decision on their status, and then move on to the other individuals on the list, beginning with the persons asserted by the applicant to be employees. Dates for a hearing will be set at that time.

14I will remain seized of any pre-hearing procedural matters. I am not seized of the merits of this application.

“David A. McKee”

for the Board