Canada Labour Code, Parts I, II and III

Reasons for decision

Transport Drivers, Warehousemen and General Workers’ Union, Teamsters Quebec, Local 106 (QFL),

applicant,

and

Les Entreprises Motex Inc., Services de transport Blaintex Inc., Manitoulin Transport Inc.,

employers.

CITED AS: Les Entreprises Motex Inc. et al.

Board Files: 19074-C, 19075-C, 19076-C

Decision no. 133

October 3, 2001

Application for certification filed pursuant to section 24 of the Canada Labour Code (Part I - Industrial Relations).

Application for certification – Bargaining unit – Determination of the real employer – Three unions ask to be certified to represent a bargaining unit composed of essentially the same group of employees, dock workers and warehouse workers employed by Manitoulin Transport Inc. – Manitoulin claims it has no employees in Quebec and that it is in fact a client of Blaintex – The Board finds instead that Manitoulin controls Blaintex – It concludes that the five criteria used to identify the real employer one: (1) the actual employment relationship between the employers shows that even if there is a multiplicity of businesses, Blaintex is only a proxy or representative of Manitoulin; (2) the hiring of regular employees for Manitoulin is regularly done by newspaper advertisements with the Manitoulin logo, even though the hiring is done through Blaintex; – Training, testing and qualifying examinations are supervised by Manitoulin’s Human Resources Services; (3) Blaintex and Motex, while administering Manitoulin’s instructions and directives, recruit and supply person-power as requested by and on behalf of Manitoulin; (4) the day-to-day supervision of work is done by Mr. Couturier, owner of Blaintex and Director of Dedicated Services at Manitoulin; (5) the Board notes that the truck drivers and dock workers consider themselves Manitoulin employees in every respect – In the present case, the Board finds that Manitoulin is the real employer of the dock workers affected by the certification applications.

Application for certification – Bargaining unit – Appropriateness – Practice and procedure – Appropriateness to bargain collectively – Common interests – The Board finds that a unit exclusively comprising the dock workers is an appropriate bargaining unit – The group is made up of people who generally have the same function and have many common interests – The Board reminds the parties of the basic principles of the Preamble to the Code, which promotes freedom of association and the collective bargaining of working conditions – The Board therefore decides to certify the Transport Drivers, Warehousemen and General Workers’ Union, Teamsters Quebec, Local 106 (QFL), as bargaining agent and sole representative of the unit.

The Board was composed of Mr. Edmund Tobin, Vice-Chairperson, Mr. Daniel Charbonneau and Mr. Thomas D. Mullins, Members. A hearing was held in Montréal on March 8 and 9, 2000, and December 18 and 21, 2000.

Appearances
Mr. Jacques Provencher, Counsel for Motex and Blaintex;
Mr. Guy Dussault, Counsel for Manitoulin;
Mr. Stéphane Lacoste, Counsel for the Transport Drivers, Warehousemen and General Workers’ Union, Teamsters Quebec, Local 106 (QFL).

These reasons for decision were written by Mr. Edmund Tobin, Vice-Chairperson.

I – The Facts

[1] Manitoulin Transport Inc. (Manitoulin), operates a trucking company and owns a terminal, located at 1890 Des Sources Boulevard, Pointe-Claire, as well as all its related equipment (trucks, trailers, etc.). Its headquarters is located in Gore Bay, Manitoulin Island, Ontario.

[2] North Channel of Georgian Bay Holdings Ltd. (NCGBH) is the owner of Manitoulin Transport Inc., and of Motor Express Montréal (MEM). NCGBH directors are Messrs. Wayne Schmitz, Doug Smith, Myles McLeod and Harold Beaudry; the shareholders are Smith Manitoulin Holdings Ltd., Messrs. Myles McLeod and Ted Brown.

[3] Manitoulin Transport Inc. rents a part of its terminal to MEM, which in turn sublets to other transportation companies, of which it is the agent in Montréal.

[4] MEM provides pick-up and delivery services in the Montréal area, and operates from its terminal. When the load is delivered outside of Montréal, MEM unloads it at the terminal, where it is then loaded on a truck or trailer, belonging to Manitoulin Transport Inc. or to another carrier or tenant of the terminal, whatever the case may be, to be transported to its destination.

[5] Most truck drivers and dock workers employed by Manitoulin Transport Inc. and by MEM are supplied and paid by Blaintex. Prior to February 2000, Motex and Blaintex, belonging at that time to different owners, Messrs. Christian Gendreau and Gilles Couturier carried out that role. Following the purchase, in February 2000, of Motex by Mr. Gilles Couturier (already owner of Blaintex since 1996), the two companies merged to form a single company, namely Blaintex. Said company also provided Manitoulin Transport Inc. and MEM with office personnel and maintenance mechanics services. All employees report for work at 1890 Des Sources Boulevard. Manitoulin Transport Inc. also makes use of other agencies, for instance Dollmo, to fulfil temporary needs for usually short-term support staff, such as drivers, dock workers or office personnel. Mr. Couturier, as Regional Director (now Director of Dedicated Services at Manitoulin Transport Inc.), must give his approval before the services of any personnel agency can be used. Mr. Couturier only retains the services of suppliers who meet Manitoulin Transport Inc.’s standards and criteria.

[6] Mr. Christian Gendreau, Dock Operations Manager, and Mr. Carl Robinson, Terminal Manager, both Blaintex employees, report to Mr. Couturier, who has the overall responsibility, for the Montréal operations. Mr. Couturier reports to Mr. Jack MacDonald, Vice-President, Operations in Gore Bay.

[7] Manitoulin Transport Inc. submits that is has no employees in Quebec and that, in fact, its only employees belong to management, namely:

Mr. Wayne Schmitz, President
Mr. Doug A. Smith, Board President and Operations Manager
Mr. Jack MacDonald, Vice-President, Operations
Mr. Myles McLeod, Finance
Mr. Ted Brown, Operations
Mr. Jeff Smith, Quality
Mr. Gordon Smith, Director General

[8] Every three months, a summit meeting takes place. Manitoulin Venture reunites the Board of Directors of Manitoulin Transport Inc. (under the direction of Mr. Wayne Schmitz), as well as the operations managers for the different regions in Canada (Messrs. MacDonald, Couturier, Côté, Cole, Chatwell, Shoebridge, Archambault and Cavers), security managers, special guests, and now the terminal managers. The objective of the meeting is to assess Manitoulins’s operations in Canada and its recent initiatives in the United States.

[9] Manitoulin Transport Inc. and MEM are Blaintex’s exclusive clients. Blaintex’s single office, for which it pays no rent, is located in Manitoulin Transport Inc.’s terminal. Blaintex’s name appears nowhere. The receptionist answers all three telephone lines, namely those of Manitoulin Transport Inc., MEM and Québec Express.

[10] Manitoulin Transport Inc.’s Human Resources and Benefits Services, supervised by Mr. Michel Lafrance, carries business under the firm name of Moniam Enterprises Inc., in Gore Bay. Moniam provides human resources, benefits and retirement plan services to the Manitoulin group. Moniam’s offices, for which it pays a rent, are located in the same building as Manitoulin Transport Inc.

[11] Moniam provides payroll, insurance claims, and accounting services to Blaintex. Blaintex sends Moniam weekly reports of the hours worked for Manitoulin Transport Inc. and for MEM. Moniam calculates each employee’s pay and makes direct payroll deposit. Subsequently, Moniam invoices Manitoulin Transport Inc. and MEM, in accordance with the fee schedule agreed upon in the service contract.

[12] The service contracts between Blaintex and Manitoulin Transport Inc., and between Blaintex and MEM are renewed annually. The said contracts and the fee schedule are renewed after negotiations were held between Manitoulin Transport Inc.’s head office and Mr. Couturier. In the end, however, the final decision with respect to the fees payable to Blaintex rests with Mr. Wayne Schmitz, following Moniam’s recommendations.

[13] When a Blaintex employee is injured while on the job, Moniam files a notice of compensation claim with the CSST. Blaintex’s name appears as the employer and the compensation is its responsibility.

[14] The insurance plan of the Manitoulin Group – “Vos garanties collectives” [Your collective guarantees] – covers a complete range of benefits (medical expenses, dental, short- and long-term disability, life insurance, accidental death and dismemberment) to Blaintex employees and their dependents. This plan is covered by an insurance contract passed between Moniam and Sun Life.

[15] Manitoulin’s personnel policy booklet, the “Personnel Handbook,” which is supplied to every employee, begins with a preface written by Mr. Wayne Schmitz, President and Operations Manager. The guide describes the following elements: principal policies regarding personnel and human resources management; mission and history of Manitoulin Transport Inc.; details and costs of employee benefits; profit-sharing and pension plan; pay; uniforms; tools; work boots; dental and medical appointments; communications (e.g., meetings, newsletters and notice boards); grievance procedures; committees; antidiscrimination and harassment policies; job descriptions and evaluations; job postings; wage plan; probation period; paid vacations and holidays; jury or witness duty; bereavement leave; parental or maternity leave; drug and alcohol addiction policy.

[16] The guide appeals to its addressee in the following terms: “You and Manitoulin Transport.” Although Manitoulin Transport Inc. submits that it has no employees, under the heading “Temporary Help Agencies,” one reads:

For those individuals hired from an agency, the Company requires a maximum of 3 months of service before assigning a company start date. ...

(page 55; emphasis added)

[17] Blaintex neither has a group insurance plan nor any personnel policy; everything comes under the logo of “Manitoulin.”

[18] Training, testing and selection criteria of all drivers and dock workers assigned to lift trucks and to the handling and/or transportation of dangerous goods are done according to the Manitoulin Transport Inc.’s requirements, criteria and standards.

[19] All employees consider themselves to be employees of Manitoulin Transport Inc. because the latter provides Manitoulin uniforms to the drivers and mechanics. Close to half of the handlers also wear the Manitoulin uniform, which is paid in part by Manitoulin Transport Inc. Employees with two or more years of service are eligible for the profit-sharing plan of Manitoulin Transport Inc. For all practical purposes, the only apparent connection that employees have with Blaintex is their direct deposit forms, which bear the Blaintex’s name. The long-service pins are awarded by Manitoulin Transport Inc.

[20] In all his operational decisions, Mr. Couturier has to follow and ensure compliance with Manitoulin Transport Inc.’s rules and regulations. All hiring to fill a vacancy or new position at Blaintex, as well as wage conditions and related work matters, must be approved and/or authorized by Manitoulin Transport Inc., after a written request, in the form of a PRF (Personnel Requisition Form) is sent to Manitoulin.

II – The Work Environment

[21] The terminal is approximately 350 feet long, and has forty loading/unloading doors or docks, which can be used by Manitoulin Transport Inc., MEM., Québec Express (affiliated to Manitoulin) and the other transportation companies, subtenants of MEM. There are thirteen lift trucks. The dock workers supplied by Blaintex (between thirteen and fifteen) either work with the day team or with the night team; in both cases, their duties consist of loading, unloading and moving the different loads between the receiving and shipping docks or doors, or the storage areas.

[22] The dock workers that Blaintex supplies to Manitoulin Transport Inc. are occasionally required to load or unload trucks belonging to subtenant companies (although some have their own dock workers); these services are charged by Manitoulin Transport Inc. The twenty-three drivers supplied by Blaintex normally begin and end their work day at the terminal, and spend no more than an hour or two per day loading or unloading their truck, if the dock workers are busy elsewhere. Almost half of the twenty-three truck drivers know how to operate a lift truck.

[23] Without changing Manitoulin Transport Inc.’s initial position, according to which it has no employees in Quebec, Manitoulin and Blaintex submit that the drivers and dock workers should belong to the same bargaining unit, given that they work together and perform identical task by loading and unloading trucks.

[24] The union raises that a unit solely comprised of dock workers is viable and appropriate for bargaining and that, moreover, the two groups work together one or two hours per day at the most; the drivers spend most of their work day outside of the terminal.

[25] When Manitoulin Transport Inc. needs regular employees (drivers, dock workers), an advertisement is inserted in this regard in newspapers, under the logo of “Manitoulin,” even though the hiring is done through Blaintex.

[26] The employees can belong to a social club by contributing $1 per payroll; an equivalent amount is paid by Manitoulin Transport Inc.

[27] Approximately three years ago, Manitoulin Transport Inc. formed an executive committee at the terminal, which was made up of office personnel, drivers, dock workers, and mechanics representatives. Mr. Couturier and other Manitoulin Transport Inc. and Moniam representatives organize and chair these meetings, prepare the agendas and the minutes, provide information, and, globally, communicate Manitoulin’s messages and criteria to the employees.

[28] Mr. Couturier has described his position as Regional Director, Operations at Manitoulin Transport Inc. as one that consists of “ensuring Manitoulin’s standards” with regard to quality and procedure by all entrepreneurs, suppliers (labour and other), and brokers, including MEM, Nu-Penn, Quik-X, Trans-X, Meyers (subtenants and users of the terminal).

[29] Mr. Couturier described the “Manitoulin system” as being “an operational system where, in general, the rules are established by Manitoulin.”

[30] Regarding the pervasive presence of Manitoulin’s logo, Mr. Couturier describes it as a “symbol” that groups several corporations or companies. Mr. Gordon Smith (Director General of Manitoulin Transport Inc., Vice-President, Operations of Manitoulin Venture and Director General of NCGBH) describes the Manitoulin logo as being “a collective – a trademark/brand name... We try to market under the Manitoulin umbrella.” He adds that “all companies use ‘Manitoulin’ for marketing.”

[31] Mr. Smith described “the Montréal family of Manitoulin” as an entity composed of:

• Manitoulin Transport Inc.
• Motor Express Montréal – MEM
• Québec Express

[32] Mr. Smith described Manitoulin Venture as an activity that combines:

• Manitoulin Transport Inc.
• Manitoulin International
• Manitoulin Logistics

[33] “Manitoulin Venture” neither exists officially nor has any employees; Mr. Smith’s salary is paid by Manitoulin Transport Inc. Mr. Smith reaffirmed that “Manitoulin Transport Inc. operates without employees – it operates through third party service providers.” The applicant union questions the fact that a company can operate without employees.

[34] Manitoulin Transport Inc. invoices its clients for the delivery of their merchandise everywhere in Canada. When the goods are transported by other carriers, Manitoulin pays them the amount corresponding to the services provided.

[35] The relationship between the different Manitoulin components and the other entities’ key players is summarized in the table below.

[36] The entities are:

1. NCGHB
2. Blaintex
3. Motex (merged with Blaintex since March 2000)
4. Manitoulin Transport Inc.
5. Motor Express Montréal (MEM)
6. Québec Express
7. Moniam Enterprises Inc.
8. Manitoulin Venture
9. Dollmo

[37] The check mark (✓) indicates a current, active participation or involvement; the letters “A.D.” indicate that there has been, at one point in time, some form of participation or involvement.

[38] The evidence filed before the Board indicates that numerous meetings of the Board of Directors took place at the Montréal terminal (Montréal Board).

[39] The November 23, 1998 meeting (two weeks after the application for certification) was intended to answer employees’ questions regarding the three applications for certification.

[40] Attended the meeting, among others: Messrs. John Van Every, Gilles Couturier and Roger Roy.

[41] Attended the August 20, 1999 meeting: Messrs. Bob Chatwell, Richard Fredette and Roger Roy.

[42] Received a copy of the minutes: Messrs. Wayne Schmitz and Terry Olmstead.

[43] Attended the September 13, 1999 meeting: Messrs. Bob Chatwell, Richard Fredette and Roger Roy.

[44] Received a copy of the minutes: Messrs. Wayne Schmitz, Gordon Smith, Gilles Couturier and Terry Olmstead.

[45] Attended the October 28, 1999 meeting: Messrs. Bob Chatwell and Roger Roy.

[46] Received a copy of the minutes: Messrs. Wayne Schmitz, Gordon Smith, Gilles Couturier and Terry Olmstead.

[47] Attended the December 9, 1999 meeting: Messrs. Bob Chatwell, Roger Roy and Ed Vallée.

[48] Received a copy of the minutes: Messrs. Wayne Schmitz, Gordon Smith and Terry Olmstead.

[49] Attended the January 27, 2000 meeting: Mr. Carl Robinson.

[50] Received a copy of the minutes: Messrs. Wayne Schmitz, Gordon Smith, Bob Chatwell, Terry Olmstead and Roger Roy.

[51] The Complaints Committee’s description and role, following a disciplinary measure, were prepared by Mr. Roger Roy, and are posted at the terminal.

III – The Applicable Law

[52] We will reproduce the sections of the Code, which are applicable to the present case:

3.(1) In this Part:

...

“employer” means:

(a) any person who employs one or more employees, and

(b) in respect of a dependent contractor, such person as, in the opinion of the Board, has a relationship with the dependent contractor to such extent that the arrangement that governs the performance of services by the dependent contractor for that person can be the subject of collective bargaining;

...

24.(1) A trade union seeking to be certified as the bargaining agent for a unit that the trade union considers constitutes a unit appropriate for collective bargaining may, subject to this section and any regulations made by the Board under paragraph 15(e), apply to the Board for certification as the bargaining agent for the unit.

...

27.(1) Where a trade union applies under section 24 for certification as the bargaining agent for a unit that the trade union considers appropriate for collective bargaining, the Board shall determine the unit that, in the opinion of the Board, is appropriate for collective bargaining.

IV – Analysis

[53] Let us recall that the three applications refer to the same group of employees, namely “all employees, warehouse workers, within the meaning of the Canada Labour Code,” which amount to fifteen.

[54] Although there were originally three separate employers (Motex, file no. 19074-C; Blaintex, file no. 19075-C; and Manitoulin, file no. 19076-C), and later, two others (Motex, which merged with Blaintex in February 2000), the union’s evidence intended to show that these employers were, in fact, a single entity, namely Manitoulin Transport Inc., which was the real employer of the aforementioned dock or warehouse workers.

[55] As previously mentioned, Manitoulin Transport Inc. held that it had no employees in Quebec. Moreover, Manitoulin submits that, in any event, a unit comprised of dock workers would not be appropriate for bargaining, if the drivers were not part of that unit.

[56] Consequently, two questions arise:

• Who is the real employer of the dock workers?
• What unit is appropriate for bargaining?

Who is the Real Employer?

[57] The key decision used to determine the real employer in an application for certification is Nationair (Nolisair International Inc.) (1987), 70 di 44; and 19 CLRBR (NS) 81 (CLRB no. 630). In its decision, the Board established the applicable test, to which it will abide in such applications. Having reviewed the decisions involving a single employer issue (pages 68-73), the Board outlined the applicable test:

1. The Board will assess the factual situation but will not give decisive weight to agreements where they are not confirmed by the facts.

Thus, in our jurisdiction, significant weight cannot be given to the payment of wages. The Canada Labour Code speaks of an employee (employé) and makes no reference to remuneration in the definition of this term, contrary to the Quebec Labour Code, for example, which gives a salaried employee (salarié) freedom to associate. More significant will be the identification of the person who does the paying, who ultimately bears the cost, and the impact this has on the employment relationship.

2. Another indicator will surely be the person who controls access to employment: the person who hires or who gives the work to be performed. Here, regard must be had to the selection process and the criteria used. The person who in fact has the power to approve the selection and influence it decisively is more akin to an employer than a mere occasional user. The lessee who retains or exercises a veto or the equivalent over the selection of personnel is certainly not extraneous to the employment relationship.

3. A third criterion concerns the actual establishment of working conditions. Who actually establishes working conditions? An agency that is merely a disguised employment office, a kind of clearing house with a title, could hardly be termed an employer. In this situation, it would merely be an agent acting on behalf of the employer, the equivalent of the personnel department of a company of which it is an integral part and whose wishes it carries out as an employee.

4. Another criterion concerns the actual performance of work. How is the work performed on a day-to-day basis? Who assigns the work? Who is fact determines and approves the standards governing the performance of the work? In this regard, who has the last word, the final say? Is it the person who evaluates, who decides, who determines that an employee will work or be terminated because of his performance? What expertise does the agency have with respect to the work performed? What is the degree of similarity between the duties performed by regular employees and those performed by employees from outside?

5. Other criteria may also assist the Board in its determination: the employees’ perception, their identification with the company, their degree of integration into the company, the fortuitous, temporary or permanent nature of their employment with the leasing company.

Finally, it is essential that these criteria, whose significance may vary from case to case, be weighed without losing sight of the purpose of the legislation, namely, to promote access to collective bargaining: ...

(pages 74-75; and 110-111)

V – Implementation to the Present Case

[58] The first criterion invites us to assess the actual relationship between the parties. We can therefore observe that Mr. Gilles Couturier was Director General of Manitoulin Transport until March 2000, after which time he became the Director of Dedicated Services.

[59] Mr. Couturier was the owner of Blaintex since 1996. In February 2000, he also became Motex’s owner, and has since operated both as one and single business, Blaintex. It should be noted that the previous owner of Motex, Mr. Christian Gendreau, did not testify, and that no evidence was filed to show that the existing relationship between Motex and Manitoulin Transport was different from the one that existed between Blaintex and Manitoulin Transport. The Board understands that these relationships were identical.

[60] The Board finds that Manitoulin Transport, through its representative, Mr. Gilles Couturier, operates Motex and Blaintex. In light of the evidence filed before the Board, it is obvious that Motex and Blaintex are part and parcel of Manitoulin. Mr. Couturier’s testimony is meaningful. In commenting Mr. Schmitz’ duties as President of Manitoulin Transport Inc., he uses the following terms: “he’s the boss,” thereby identifying the highest authority within Manitoulin, to whom Mr. MacDonald reports, who in turn supervises Mr. Couturier.

[61] A glance at the table – outlining how the companies of the Manitoulin group are connected, who are the individuals who run them or have run them and the different roles they play or have played – shows the link between them and places the decision-making center at the top of the pyramid. Only the work-related orders, given on the premises by Messrs. Couturier, Gendreau and Robinson to the dock workers, do not come from or are not predetermined by the Manitoulin hierarchy.

[62] Although Mr. Couturier describes himself as the owner of Motex and Blaintex, he does not act as a real owner, who would feel free to make his own decisions and to determine the direction of his own business. In fact, the Board finds that Mr. Couturier operates Motex and Blaintex as the proxy or representative of Manitoulin Transport Inc. and the Manitoulin group. It is therefore clear that the real employer is Manitoulin. One must remember that the Board will look beyond the corporate structures in arriving at a decision, as mentioned in Newfoundland Steamships Ltd. (1981), 45 di 156; and 2 CLRBR (NS) 40 (CLRB no. 331):

... In our opinion, we must look beyond appearances and identify the real employer of the employees who are asking us to recognize their rights under Part V. ...

(pages 162; and 48)

[63] Further, in the same decision, the Board said:

... We have decided on several occasions that we must look beyond corporate garb, examine the structures of a company in order to identify the real employer, and declare that the employer in question may not use this means to avoid the responsibilities imposed on it by the Code. In this connection, the courts and this Board have consistently held that when the employer of employees must be identified for the purposes of collective bargaining, the Board must look beyond the appearance of the facts and determine who is really the employer...

(pages 162-163; and 49)

[64] Incidentally, the Manitoulin Personnel Handbook excerpt is instructive:

Temporary help agencies – For those individuals hired from an agency, the Company requires a maximum of 3 months of service before assigning a company start date. ...

(page 55; emphasis added)

[65] That date is important because it marks the starting point, not only for salary increases but also for eligibility, after two (2) years of service, for the profit-sharing plan of Manitoulin Transport Inc.

[66] Besides that, Manitoulin awards the long-service pin and also contributes half of the membership funds to the dock workers’ social club. Manitoulin Transport Inc. also put together an employees’ board at the Montréal terminal (Montréal Board), the members of which are responsible for organizing and chairing the meetings. Incidentally, the main objective of the first meeting (November 23, 1998 – two weeks after the three applications for certification) was to answer employees’ questions about these applications, despite the fact that Manitoulin submits that it has no employees in Quebec.

[67] Additionally, the terminal and all its related equipment are used and owned by Manitoulin. Finally, Manitoulin (and not Motex and Blaintex) bears a part of the dock workers’ uniforms cost and manages the group insurance plan and the personnel policies (Motex and Blaintex do not have any).

[68] Mr. Couturier is Manitoulin Transport’s senior representative at the terminal. All those who are assigned to operations at Manitoulin’s terminal ultimately report to him. On the other hand, Mr. Couturier, reports to Mr. Jack MacDonald, Vice-President, Operations at Gore Bay.

[69] With respect to the second criterion, the hiring of regular employees for Manitoulin’s operations is done through Mr. Couturier (under Manitoulin’s umbrella), who forwards a Personnel Requisition Form to Moniam, in Gore Bay, indicating the positions and classifications to be filled. Once the requisition has been authorized, the job is either posted internally or an advertisement is inserted in the newspapers. Motex and Blaintex consider each application, in order to select and hire candidates; the salaries of new employees must be consistent with the wage schedule of Manitoulin, Motex and Blaintex (ultimately determined by Manitoulin, according to Moniam’s advice). When training is required, either dealing with lift trucks or the handling of dangerous materials, it is provided by Manitoulin’s training services and the costs are paid by Moniam.

[70] In addition, training, testing and qualifying examinations, according to Manitoulin’s criteria, are provided by Moniam’s personnel, being Manitoulin’s Human Resources Service.

[71] Although Blaintex is the identified employer’s name at the CSST, Moniam is the one that takes care of the payroll, makes direct deposit, keeps the files, prepares employees’ claims to be sent to the CSST, etc.

[72] Moniam also prepares Blaintex’s invoices for services rendered to Manitoulin, therefore acting as Blaintex’s accounting department.

[73] With respect to the third criterion, the Board finds that the functions of Motex and Blaintex is to recruit and supply person-power and to control the terminal operations, as requested by and on behalf of Manitoulin, while respecting its directives and instructions.

[74] The fourth criterion has to do with the day-to-day supervision of work. Mr. Couturier, as senior representative at the Manitoulin Transport terminal, supervises the employees. All those who are assigned to operations at Manitoulin report to him. On the other hand, Mr. Couturier reports to Mr. Jack MacDonald, Vice-President, Operations at Gore Bay.

[75] For example, the dock workers predominantly load and unload Manitoulin’s trucks. However, when they load and unload other companies’ trucks, they follow Manitoulin’s orders (via Messrs. Gendreau, Robinson or Couturier) and their services are billed by Manitoulin.

[76] As for the final criterion, the dock workers recognize Manitoulin as being their real employer in every respect. Incidentally, it is not surprising that they consider themselves as Manitoulin employees, given the fact that advertisements inserted in newspapers are all prominently identified with Manitoulin’s logo. How can a company, purporting to be independent, make such advertisement on behalf of another company, with which it is only supposed to have contractual relationships? It is certainly unusual to see a company advertising employment under another company name, for the purpose of hiring what it claims to be its employees. Furthermore, Motex and Blaintex are almost invisible entities; the offices are unidentified; they pay no rent, have no telephone line, and no physical or corporate presence. Only the employees’ direct deposit forms bear its name. The name of Motex and that of Blaintex appear nowhere other than on the pay check stubs and on the CSST compensation claim forms.

VI – Conclusion on the Real Employer

[77] Manitoulin Transport argues that it has no employees in Quebec. On the other hand, the applicant union questions the fact that a company can operate without employees. It is the Board’s view that it is possible to operate in this manner, provided that the employees who perform the duties have a genuinely independent employer, who directs and supervises their work and controls the evolution and direction of its own business.

[78] In the present case, for the purposes of the three applications for certification, the Board concludes that Manitoulin Transport Inc. is the real employer of the dock workers, affected by these applications.

VII – What Unit is Appropriate for Bargaining?

[79] The three employers’ counsels argue that a single unit composed of dock workers and truck drivers is appropriate, and they point out that this is the standard in the trucking industry. The applicant union’s counsel maintains that, especially in the case of an initial application, an “appropriate” bargaining unit is sufficient, and not necessarily “the most appropriate” bargaining unit.

[80] In Glengarry Transport Limited (1990), 81 di 64 (CLRB no. 803), the Board stated the criteria to be considered in determining whether or not the unit is appropriate for bargaining:

... Among these criteria, we would note those that are involved in the present case: common interests, viability of the bargaining unit, employee wishes, and territorial scope of the employer’s activities. From these decisions, and from other decisions that followed, it is also clear that the Board does not have to determine the most appropriate unit, but rather a unit that is appropriate. ...

(page 75)

[81] Is a unit exclusively comprising the dock workers viable? The Board considers that it is. There clearly exists common interests. The Board recognizes that a bargaining unit comprising dock workers handlers would likely have less emphasis than a unit also including truck drivers. However, one must keep in mind the basic principles of the Preamble to the Code, which promotes freedom of association and the collective bargaining of working conditions. It must be noted that, in section 27 of the Code, the legislator grants the Board the discretion to decide what constitutes an appropriate bargaining unit in any given situation, without setting any guidelines.

[82] The Board considers that a unit of dock workers, employed by Manitoulin Transport Inc., constitutes an appropriate bargaining unit, in this case.

[83] The Board’s investigation and the confidential material on file determined the majority status of the applicant union. The Board therefore certifies the Transport Drivers, Warehousemen and General Workers’ Union, Teamsters Quebec, Local 106 (QFL) as the bargaining agent and representative of a unit comprising:

all employees, warehousemen, within the meaning of the Canada Labour Code, employed by Les Entreprises Motex Inc. (file no. 19074-C), Services de transport Blaintex Inc. (file no. 19075-C) and Manitoulin Transport Inc. (file no. 19076-C).

[84] This is a unanimous decision of the Board.