Canada Labour Code, Parts I, II and III

Reasons for decision

Teamsters Local Union 938,

applicant,

and

Mackie Moving Systems Corporation,

named employer,

and

Adams Services (Division of 1083859 Ontario Ltd.), The Administrative Edge Inc., Advantage Personnel, Excel Highway Support Inc., Interim Personnel, Professional Personnel Ltd., 1269763 Ontario Limited, 113146 Ontario Limited,

interested parties,

and

Direct Driver Personnel, Selective Staffing Services,

interested parties.

CITED AS: Mackie Moving Systems Corporation

Board File: 20266-C

Decision no. 156
January 23, 2002

Application for certification pursuant to section 24 of the Canada Labour Code, Part I.

Certification - Constitutional jurisdiction - The Teamsters Local Union 938 (the union) applied for certification as the bargaining agent for employees of Mackie Moving Systems Corporation (the employer) - The employer argued that certain of its operations were subject to provincial labour legislation and were outside the constitutional jurisdiction of the Board - In an earlier decision, the Board had ruled that two elements of the employer’s business were severable and under provincial jurisdiction - The Board found that the Mackie operation, generally speaking, is a single, integrated and coordinated enterprise - The employer’s organizational structure forms an integrated and interrelated whole such that, from a labour relations viewpoint, it should be viewed as a single indivisible enterprise engaged in the intra and extraprovincial transportation of goods, and its labour relations governed by the Code.

Certification - Employer - Definition - The employer argued that the drivers it obtains from personnel agencies should not be included in the bargaining unit, because the agencies are the employers - The Board found that the employer determined the maximum amount the agencies could pay their drivers, and that all agency drivers received the same rate of pay regardless of which agency they were affiliated with - The employer exercised fundamental control over which agency drivers are retained in employment and over their work while employed - The employer exercised significant control over the working conditions and the performance of work of the agency employees - For the purposes of the Code, it is most appropriate that agency employees be considered as Mackie employees.

Certification - Dependent contractor - Definition - Appropriateness - Community of interest with others - The employer argued that brokers and employees of brokers should not be included in the bargaining unit - The Board found that brokers who were directly under contract with the employer, who work continuously for the employer alone and who do not employ other individuals are entitled to bargain collectively as dependent contractors - Brokers who do not drive themselves, and whose employees generally do not drive for the employer, are not employees of Mackie - The Board found that brokers who employ drivers but themselves, also drive full time for the employer and derive all of their revenue from the employer not only meet the Code definition of “dependent contractor,” but they are in fact economically dependent on the employer and subject to elements of day-to-day control by the employer - The Board found that some drivers who were assigned to drive for the employer by independent brokers were employees, but were excluded from the unit because they shared a somewhat divergent community of interest.

The Board was composed of Mr. J. Paul Lordon, Q.C., Chairperson. A hearing was held on November 22, 24-26, December 17, 21 and 22, 1999, January 10-11, 2000, February 16, 2000, March 7-9, 2000, April 12, 14 and 17, 2000 and May 17, 2000, at Toronto, Ontario.

Appearances
Mr. Anthony F. Dale and Mr. Norman L. Jesin, for Teamsters Local Union 938;
Mr. Arthur P. Tarasuk, Mr. Michael Watson and Mr. William J. McNaughton, for Mackie Moving Systems Corporation;
Mr. Allen V. Craig, for Adams Services (Division of 1083859 Ontario Ltd.);
Mr. Frank Stewart, for The Administrative Edge Inc.;
Mr. Larry Bertuzzi, for Advantage Personnel;
Mr. Bruce Henderson, for Excel Highway Support Services Inc.;
Mr. David M. Chondon, for Interim Personnel;
Mr. Alan Brabender, for Professional Personnel Ltd.;
Mr. Todd Bennett and Mr. Allen V. Craig, for Selective Staffing Services;
Ms. Marilee Marcotte, for certain independent owner-operators and certain Quebec drivers;
Mr. Michael G. Horan, for two independent owner-operators.

These reasons for decision were written by Mr. J. Paul Lordon, Q.C., Chairperson.

[1] The within matter arises as a result of an application for certification by Teamsters Local Union 938 (Local 938) dated April 7, 1999. The application was filed with the Canada Industrial Relations Board (the Board or CIRB) pursuant to section 24 of the Canada Labour Code (Part I - Industrial Relations) (the Code).In its application, the applicant requested certification for a unit described as follows:

All employees of Mackie Moving Systems Corporation working in and out of the Province of Ontario; including but not limited to company drivers, owner-operators*, persons who drive for owner-operators, persons recruited through and/or paid by employment agencies who have a continuing employment relationship with Mackie Moving Systems Corporation and who are otherwise employed on such terms and conditions that Mackie Moving Systems Corporation is their real employer, except dispatchers, supervisors and persons above the rank of supervisor, office, clerical and sales employees, and non-driving owner-operators.

(asterisk added here; emphasis added)

[2] The applicant subsequently, on September 3, 1999, amended the bargaining unit description to insert a further exclusion at the place indicated by the asterisk in the above description. That exclusion read “except for owner-operators in the employer’s household goods moving division.”

[3] Much of the basic information about the operations of Mackie Moving Systems Corporation (Mackie) is set out in an investigation report prepared by Mr. Gordon MacIsaac, Senior Labour Relations Officer of the CIRB, dated September 14, 1999.

[4] In his report, Mr. MacIsaac describes the general nature of Mackie’s business. What is described is a business which transports a variety of goods by truck utilizing drivers from various sources, some company drivers, some provided by agencies and some driving their own trucks or trucks owned by brokers for whom they drove.

5. GENERAL NATURE OF (NAMED) EMPLOYER’S BUSINESS

Mackie Moving Systems (hereinafter referred to as “Mackie” or “the (named) employer”) is a trucking company operating within and between several provinces in Canada and several states in the United States. Mackie has two (2) divisions; one, a freight division, which hauls auto parts, which comprises about ninety percent (90%) of the freight volume, and which involves General Motors or General Motors suppliers, (the other 10% is other assorted freight), and two, a moving division, which moves three (3) categories of items, namely automobiles, high value products (computers, copiers and fixtures), and household goods.

The (named) employer’s employees and/or persons providing services to Mackie fall into the following categories:

(a) Mackie employees working directly for Mackie, not brokers or broker drivers or referred by a personnel agency

i Within Ontario - Moving Division

ii Interprovincially and/or Internationally - Moving Division

iii Within Ontario - Freight Division

iv Interprovincially and/or Internationally - Freight Division

v Warehouse personnel, team leaders and supervisors

(b) Brokers without drivers

i Within Ontario - Moving Division

ii Interprovincially and/or internationally - Moving Division

iii Within Ontario - Freight Division

iv Interprovincially and/or Internationally - Freight Division

(c) Brokers with drivers (some who drive too, some who do not) and their drivers

i Within Ontario - Moving Division

ii Interprovincially and/or internationally - Moving Division

iii Within Ontario - Freight Division

iv Interprovincially and/or Internationally - Freight Division

(d) Drivers referred by an outside personnel agency

[5] The initial report of the investigating officer provided considerable detail with respect to the persons providing services to Mackie. It was supplemented by substantial additional oral evidence, much of which will be discussed below. The original investigation officer’s report indicated that Mackie had only two divisions, a freight and a moving division. The investigating officer’s report indicated that a total of 104 employees worked directly for Mackie as full- or part-time employees at the time of the application [category (a) above]. These employees were variously described as working in either the moving or the Freight Division. Some of these employees worked both within and out of Ontario while others worked exclusively within Ontario. It was generally acknowledged that these individuals were Mackie employees, although it was argued that some were within provincial jurisdiction and thus not within the Board’s jurisdiction.

[6] A second category of individuals providing services to Mackie identified by the investigating officer’s report was the category of “brokers without drivers” [category (b) above]. The report indicated that on the date of the application for certification there were 59 brokers without drivers, individuals who own the equipment they drive. The general position taken by Mackie and by some of those concerned in respect of these individuals was that they were self-employed and not Mackie employees. “Brokers” are sometimes referred to “owner-operators”.

[7] A third identified category was “brokers with drivers (some who drive too, some who do not) and their drivers” [category (c) above]. This category included some brokers who drove and some brokers who, although they supplied trucks and drivers to Mackie, did not drive themselves. There were 33 individuals identified as fitting within this category. Again, with respect to this group, the position was taken that they were not Mackie employees within the provisions of the Code, but that they were self-employed or employed by the brokers. It was contended that these brokers too were independent contractors.

[8] The final category, “drivers referred by an outside personnel agency” [category (d) above], provided their services to Mackie through the agency of a number of outside personnel agencies. In respect of these employees, it was contended by Mackie and the agencies in question, that the employees concerned were employees of the individual agencies themselves and not of Mackie. There were 8 such agencies identified in the investigating officer’s report. One agency, Advantage Personnel (Advantage), referred individuals to Mackie out of two of its offices, one in Oshawa, Ontario and one in Saint John, New Brunswick. Advantage was for purposes of the report included as two separate agencies. The applicant did not include the Saint John office within the scope of the presently requested bargaining unit. The agencies and the number of individuals referred to Mackie through them as of the time of the application are for convenience set out in the table which follows:

Drivers Referred to Mackie from Personnel Agencies

[9] Some elaboration is appropriate here with respect to the agency drivers. On April 15, 1999, the Board received a letter from counsel for Mackie indicating in respect of the outside personnel agencies, that “all persons employed by independent personnel agencies are employed by, and are employees of, the respective personnel agencies and not employees of the employer and ought not to be included in the bargaining unit.”

[10] Subsequently, the Board forwarded a copy of the application to the named outside personnel agencies and requested their response to the application. Advantage Personnel, Interim Personnel, Professional Personnel and Adams Services (a division of 1083859 Ontario Ltd.) then replied to the application.

[11] In addition to the above categories of employees, there were a number of employees in addition to the Saint John, New Brunswick Advantage Personnel who might have fallen within the bargaining unit description but who were excluded by agreement between the affected parties or who the applicant specifically requested be excluded (for various reasons). Of particular note were employees working on the Pitney Bowes Contract, a contract between Mackie and Pitney Bowes, who, it was agreed, were not within the scope of the bargaining unit because they fell within a discreet unit within provincial jurisdiction. As discussed below (see paragraphs 20 and 21) a second group of employees was also found to fall within provincial jurisdiction. This group was comprised of those employees working for Adams Services (1083859 Ontario Ltd.) working on the “Lear Seating Contract.” In addition, in respect of interveners 1269763 Ontario Limited and 113146 Ontario Limited, it was conceded by the applicant that all persons identified as drivers for these interveners should not be included in the bargaining unit sought by the applicant. This group included from 16 to 18 drivers, driving trucks owned by Art Pomeroy. As well, as noted, it was agreed upon between the applicant and Advantage Personnel that the five persons assigned by that agency to the interprovincial transportation of automobiles should fall outside the scope of the bargaining unit as not working “in and out of Ontario.” A further group of individuals, described by the employer as working in its household goods “A,” interprovincial or international division, were sought to be excluded by the applicant and will be excluded for the reasons set out hereinafter. Finally, also for the reasons set out hereinafter the Board is of the view that there is sufficient evidence to conclude that certain other employees of owner-operators or brokers in the situation where the owner-operators or brokers do not themselves drive for Mackie should be excluded from the bargaining unit for definitional reasons on the basis that their community of interest is somewhat different from that of the group being certified here.

[12] In all, the number of individuals in the applicant’s proposed bargaining unit as determined by the investigating officer was 283. The number of members of the applicant within the proposed bargaining unit, as reported confidentially to the Board by the investigating officer, indicated that the applicant represented a clear majority of these 283 individuals on the date on which the application for certification was filed. Following the Board’s decision to exclude the Pitney Bowes employees, the Adams (Lear Seating) employees, the Advantage, New Brunswick employees and the owner-operator employees in situations where their community of interest differed, the Board re-examined the number of employees represented by the applicant. The applicant continued to represent a clear majority of the employees within the defined appropriate bargaining unit.

[13] An examination of Board files disclosed that Teamsters Local Union 938, had previously established its status as a trade union with the Board.

[14] However, the challenges and problems affecting the application outlined above and others which were raised must now be considered by the Board.

[15] First of all, as noted above, Mackie took the position that it was not the employer of the “persons recruited through and/or paid by employment agencies,” but that, rather, such persons were employees of the individual employment agencies and, thus, should not be included in the bargaining unit. The employer also took the position that a number of its employees who worked solely within the province of Ontario or solely within any other province did not fall within the jurisdiction of the Canada Labour Code, but rather under the jurisdiction of the province where those employees worked. In this respect, the employer’s position was that the work performed solely within one province was severable from the work that was performed interprovincially or internationally and thus was not under federal jurisdiction. Thirdly, the employer maintained that all persons designated as brokers and/or broker-drivers were not its employees and should also not be included in the bargaining unit. Further, there were certain pockets of employees whom the applicant union did not seek to include in the bargaining unit because of a lack of community of interest with the other employees, for example, employees working out of locations outside the province of Ontario and broker-drivers within certain of the household goods operations of Mackie, which the applicant union did not seek to include in the applied for bargaining unit.

[16] A number of the agencies listed above supported Mackie’s position and filed representations with the Board to the effect that they were the true employers of the drivers that the agencies provided to Mackie and that these drivers should, therefore, not be included in the bargaining unit. As well, one of the brokers, Mr. Art Pomeroy, filed representations to the effect that the companies operated by him or his wife were independent brokers and not dependent contractors and that any drivers supplied to Mackie by their companies were their own employees and not Mackie’s. As noted, the bargaining agent did not oppose this position. Two other groups of broker-drivers filed submissions along the same lines. One group included six Quebec drivers. Another group of two drivers also made similar submissions. The general submissions of the broker-drivers was that they were independent businessmen and as such did not fall within the definition of “employee” in the Code.

[17] Mackie’s position with respect to the constitutional jurisdiction of the Board acknowledged that while certain elements of the company were clearly within federal jurisdiction, others were not interdependent with those that were and consequently should be viewed as within provincial jurisdiction and excluded from the bargaining unit.

[18] In a written document filed with the Board on November 19, 1999, which significantly modified the view of the employer’s operations set out in the investigating officer’s report of September 14, 1999, which had indicated that Mackie had two operating divisions, Mackie submitted that:

1. Mackie Moving Systems is comprised of nine independent commercial units. Specifically, the units are:

(a) The Warehouse Division.

(b) Household Goods Division (intra-provincial).

(c) Household Goods Division (inter-provincial or international).

(d) Freight Intra-provincial Division (Lear Seating Contract).

(e) Freight Division (inter-provincial or international).

(f) High Value Products Division.

(g) Auto Hauling Division (inter-provincial or international).

(h) Auto Hauling Maritimes Division.

(i) Pitney Bowes Contract Division (intra-provincial).

[19] It was argued that certain of these “independent commercial units” should be viewed as falling within provincial jurisdiction and hence that they should not be included in the bargaining unit to be federally certified.

[20] The parties then agreed that the Board should rule upon the constitutional issues after hearing some initial oral testimony. On January 7, 2000, the Board issued a partial decision (Mackie Moving Systems Corporation, January 7, 2000 (CIRB LD 168)). On the preponderance of evidence based upon the testimony and submissions then before it, the Board decided that the Pitney Bowes Contract Division (intraprovincial) was, as contended, properly severable from Mackie’s other operations, for purposes of constitutional jurisdiction. In that decision, the Board also ruled that the situation of the Freight Intraprovincial Division (Lear Seating Contract) was not distinguishable from that of the Pitney Bowes Division and also fell within provincial jurisdiction. The Board found that the following so-called divisions clearly did fall within its constitutional jurisdiction:

(c) Household Goods Division (inter-provincial or international).

(e) Freight Division (inter-provincial or international).

(f) High Value Products Division.

(g) Auto Hauling Division (inter-provincial or international).

(h) Auto Hauling Maritimes Division.

[21] The constitutional jurisdiction with respect to (a) the Warehouse Division and (b) the Household Goods Division (intraprovincial) remained to be determined. In this regard, it is appropriate to recall certain observations in Mackie Moving Systems Corporation, supra:

It is of critical importance in these circumstances to be aware that it is not at all evident on first examination that Mackie’s operations are in fact distinct and severable. In this connection it should be recalled that the initial Investigating Officer’s Report identified only two divisions, a freight division and a moving division. While it is contended there are in fact nine divisions, none of the units is a separate employer or identified externally as separate from Mackie. There are no separate contracts or other arrangements with the identified divisions. All are under the Mackie umbrella. All are managed from essentially the same location, 933 Bloor Street. Each of the above two operations now identified as being severable constitutionally is consolidated with an operation or division identified as being within federal jurisdiction for profit and loss purposes.

However, the evidence in the present matter does show that there are real differences between the two identified “divisions” considered to be within provincial jurisdiction and those remaining.

(i) The applicant itself concedes the severability of one of the two divisions herein found to be severable from the federal aspect of the Mackie operations.

(ii) The applicant has taken the position that the appropriate bargaining unit should not include two identified divisions, division (h), Auto Hauling Maritimes, and division (c), Household Goods (inter-provincial or international). If certain divisions are sufficiently distinct not to be included in an appropriate bargaining unit, it must be at least some indication that the whole is constitutionally severable.

(iii) While there is certain similarity in the operations of one of the divisions, in that they are all engaged in the transportation of goods, neither of the two above divisions identified as provincial ever serves a clientele other than in the province of Ontario.

(iv) Each of these divisions operates independently in the operational sense, although administratively with respect to the terms of the driver contractual arrangements with Mackie, the Commercial Vehicle Operating Registration under which they operate and other issues of finance, budgeting, insurance and pay and benefits there is a commonality and unity.

(v) The nature and location of the work in respect of the Pitney Bowes and Lear Contracts are severable and different from other divisions. Both are local, specialized work, with specialized equipment for a single local client.

(vi) There is clear evidence of operational separation of the two units and there is no operational interdependence or integration between these units and any other elements of the Mackie operations.

(vii) The work and personnel of these units are not homogeneous with the work of other Mackie units, although there may be some occasional and incidental interchange of personnel. For instance, these operations have their own specialized and dedicated dispatch systems and work forces and their equipment is specialized and unique in the Mackie operational context.

(viii) The management of these two units is integrated with Mackie management only at higher levels. The Lear Contract management is external to Mackie and does not even appear on the Mackie organizational chart.

(ix) Other then with respect to higher level management functions and certain administrative matters of advantage, there is simply no operational integration between these divisions and the rest of the Mackie business.

With respect to the remaining two divisions, Division (a) Warehouse and Division [b] Household Goods, the situation is not as conclusive and the factual circumstances are more in balance. Because of the importance of the detailed factual context in such a situation, the Board does not feel that it is as yet appropriate to rule upon its constitutional jurisdiction respecting these divisions. It is more appropriate to defer this aspect of its decision until all the evidence in the present matter has been submitted. The Board will further detail its legal reasoning respecting the issue of its constitutional jurisdiction at the time when it renders its final decision in these matters.

(pages 5-6)

[22] In the course of the continuing proceedings with respect to the issues that remained in dispute among the parties, the Board therefore considered together with the other matters in dispute the constitutional status of the Warehouse operation of Mackie and of its Household Goods Division.

[23] The Board also considered the status of the brokers and broker-drivers, that of the personnel agency drivers and related issues of bargaining unit definition.

[24] For purposes of clarity and ease of reference, this decision will address each of these four issues in their entirety, including their disposition. For practical reasons, the first issue is divided into two parts, the constitutional jurisdiction applicable to the Warehouse and Household Goods (intraprovincial) Divisions, followed by the issue of severability.

I - Constitutional Jurisdiction re: Warehouse and Household Goods Division (Intraprovincial)

[25] The testimony of Mr. Scott Sullivan, on behalf of the employer, was supplemented by testimony on two further occasions by Mr. Phil Meagher, Mackie’s Operations Manager. The Household Goods Division was described as Mackie’s original activity; Mackie has been an agent of North American Van Lines for some 40 years, and has since branched out into the other activities described above and below. The Warehouse Division was described as having originated to store household goods as part of the moving operation and while it is still used for that purpose, it has also evolved into a warehouse operation for the storage of items not related to the moving operation per se.

[26] The warehouse is situated at 933 Bloor Street in Oshawa, Ontario and measures some 120,000 square feet. The corporate offices are situated at the front of the building. While the transport divisions are to an extent separate, or dedicated, dispatchers are all working from that common location. Testimony revealed that some 8 to 10 full-time employees and 6 to 12 part-time employees directly employed by Mackie work in the warehouse operation; the figures vary according to the season with more being employed in the summer as this is the peak of activity for the household moving business. On the date of the application for certification, the Board’s investigation revealed that Mackie employed 10 Warehouse Operators (6 full-time and 4 part-time), and one Warehouse Supervisor; the Operators are sought for inclusion in the bargaining unit, while the Supervisor is not.

[27] Mr. Sullivan testified that while the warehouse employees occasionally worked on goods that were in interprovincial or international transit, this represented only 4% or even less of their time, and most of their time (96%) was spent on warehousing activities related to intraprovincial household moving. Mr. Sullivan testified that the warehouse survives on its ability to produce a profit, and Mackie introduced in evidence a separate profit and loss statement for the warehouse (see Exhibit 1, page 7).

[28] The warehouse was described as not essential to the survival of any of the other of Mackie’s commercial units. However, the evidence submitted by Mackie also indicated that the warehouse was used from time to time to store material being transported by the High Value Products Division, to the extent of 1% to 2% of the use of the warehouse. The High Value Products Division undertakes extraprovincial transportation and has already been found by the Board to be under federal jurisdiction.

[29] The Household Goods Division (intraprovincial), also works out of the same facility at 933 Bloor Street in Oshawa. It would employ potentially 10 to 14 groups comprising 15 to 25 or 28 employees directly employed by Mackie. The investigating officer’s report establishes the number on the date of application as 11 full-time drivers, 4 full-time helpers, 2 part-time helpers, 2 full-time packers and 1 part-time packer, for a total of 20 employees, exclusive of brokers or agency drivers. The organization chart filed by the employer shows the Household Goods Division dispatcher as Mr. Cory Salter, reporting to Mr. Keith Dalton, the Operations Supervisor (Moving). Also reporting to Mr. Dalton are, among others, the high value products (HVP) dispatcher and the Auto Transport Dispatcher; the company drivers are shown as one group, undifferentiated as to which of Mackie’s commercial units they work in, as are the helpers and packers.

[30] Mr. Sullivan testified that the trailers used for Household Goods moving are 48 to 53 feet long air-ride trailers, with back and side doors. He said these trailers were also used to a small extent for moving High Value Products (HVP), although most of the vehicles used by the HVP Division were straight trucks, i.e., in which the cab and box are joined. Mr. Sullivan testified that these joined trucks are also used by the Household Goods (HHG) Division; there is thus some overlap of use of the same vehicles by both the HHG and the HVP Divisions.

[31] Exhibit 1, page 1, shows a profit and loss statement for HHG as applicable to both intraprovincial and international hauling; the two activities are not differentiated on separate profit and loss statements. With respect to international moving, Mackie is a franchisee of North American Van Lines, which is dispatched from Fort Wayne, Indiana.

[32] Mr. Sullivan testified that the dispatchers for international moving (HHG), local moving (HHG), and High Value Products (HVP) are interchangeable, although theoretically those three divisions operate independently from each other and HVP has a separate profit and loss statement.

[33] Mr. Sullivan’s testimony indicated that the Commercial Vehicle Operating Registrations for Mackie vehicles are registered to Mackie at the corporate level, rather than to each of the operating divisions, and that Mackie covers the cost of all vehicle insurance including vehicles provided by brokers and agencies, although it is generally reimbursed for insurance costs. He also indicated in cross-examination that Mackie had one single bank account from which all expenses were paid, including payments to brokers, payments to agencies, payments to employees, etc., regardless of the division employed in. All office, clerical and management employees are “at large” employees of Mackie proper and are not assigned to specific operating divisions. None of the separate operating divisions has its own accounting system, and financial statements are centrally kept, although it was alleged that profit and loss were assessed on a divisional basis.

[34] Mr. Sullivan testified in cross-examination that none of the nine “independent” commercial units was registered as a separate employer with Revenue Canada, with the Workplace Safety and Insurance Board, or with respect to Health and Dental Plans; with respect to all of these, the employer was the Mackie Group. Mr. Sullivan was asked why there were only 7 profit and loss statements in Exhibit 1, whereas Mackie claimed to have 9 separate operating divisions. He answered that the Lear Division was included with the Freight Division, that the Household Goods statement combined both extraprovincial and intraprovincial moving, and that High Value Products, extraprovincial and intraprovincial, were combined on one statement.

[35] Mr. Sullivan explained in cross-examination that employees could transfer from one division to another without losing their seniority for benefits and vacation and so forth. He explained that if an employee left one division to go to another division no recognition would be given elsewhere to time already worked, however, in respect of opportunity or preference for obtaining work, driving runs are allocated by seniority within the division. Mr. Sullivan was given the names of a number of specific persons who had transferred from one division to another and asked to confirm whether or not they had kept their seniority for purposes of obtaining job assignments, and he replied that he did not know. He was also asked if employees did work in more than one division on an ongoing basis, and he replied that this occurred from time to time, as Mackie had to do the necessary to satisfy its customers. He explained that there might be some interdivisional mixing on back haul from time to time. In such circumstances, the division to which work was allocated is determined by the lead run. If the lead run was hauling High Value Products, for example, and it made economic sense for the driver not to return empty, he would haul back anything that was available, including freight or whatever. He indicated that the back haul for a division might thereby transport products which might be properly within the ambit of another division, in a manner which ignores the notional separation of the divisions.

[36] On the question of dispatchers, the first line of supervision for the drivers, Mr. Sullivan, confirmed that they sometimes moved from one division to another. He confirmed the example of Mr. Tim Hickie, who had moved from the High Value Products to the Freight Division. He acknowledged that all dispatchers worked within the same physical office space and although they were dedicated at any given time to particular divisions, they were considered to be employees “at large” of the Mackie Moving Systems Corporation rather than employees of the division which they supervise.

[37] Referring to a contract between Mackie and the Lear Corporation which was signed on behalf of Mackie by its President and not by the Profit and Loss (P & L) Manager of Mackie’s Lear Division, Mr. Sullivan explained that the individual P & L Divisions do not enter into contracts nor does Mackie enter into contracts on their behalf as these divisions do not have legal standing to do so. When asked who would cover a deficit if one of the divisions had a deficit in a given year, he answered that the Mackie family would pay it as they owned and ran the company; the loss in one division would hopefully be covered by profits of other divisions, and if the loss exceeded such excess profits, the family would cover it.

[38] With respect to drivers working in more than one division, Mr. Sullivan confirmed that this only happens from time to time. He indicated as an instance that during a strike at General Motors (GM), which is the principal client of the Freight Division, drivers from the Freight Division were invited in writing by Mackie to take part-time work in other divisions when GM was shut down.

[39] Mr. Phil Meagher, Mackie’s Operations Manager, testified on two separate occasions. Because he was ill the first time that he testified, Mackie requested that he be allowed to testify a second time to elaborate upon and clarify certain points. In direct examination, he indicated that he was involved on a day-to-day basis with all of the “moving” divisions of Mackie, including HHG “A” (* see below), HHG “B” (* see below), HVP, enclosed Auto Hauling, open Auto Hauling, Pitney Bowes, etc. He said the warehouse used to report directly to him until the fall of 1998 or the spring of 1999. Part of Mr. Meagher’s testimony had to do with Mackie’s involvement as an agent for North American Van Lines, which is in effect the work of the extraprovincial Household Goods (HHG) Division often referred to as HHG “A”. Some of his testimony in this regard was germane to the determination of the question of the extent to which the intraprovincial Household Goods (HHG “B” Division) was independent and severable from the extraprovincial HHG “A” Division and the rest of Mackie’s enterprise.

[40] In this regard, it is noteworthy that earlier in the proceedings the applicant had amended its initial application to exclude the 8 owner-operators working in Mackie’s Household Goods (extraprovincial) Division, on the basis that some of them resided and worked outside of Ontario, and all of them obtained work and were remunerated in a different manner from the manner in which the brokers working in Mackie’s other divisions were remunerated and had a different community of interest. These brokers, the HHG “A” fleet, are dispatched by North American Van Lines (NAVL) out of Fort Wayne, Indiana and not from Oshawa, as drivers for NAVL. While the HHG “A” Division is not sought for inclusion in the bargaining unit, the HHG “B” division claimed by Mackie to be strictly intraprovincial, is sought for inclusion in the unit by the Teamsters.

[41] With respect to the HHG “B” fleet, Mr. Meagher testified that this Division handles household moving inside of Ontario and the broker-drivers in the “B” fleet are not part of and do not provide service to an outside organization like NAVL; they work strictly for Mackie. They are dispatched as work becomes available by a dedicated Mackie dispatcher in Oshawa. Mr. Meagher did state however, that the dispatchers may look after other divisions temporarily for brief periods, i.e., dispatchers replace each other when one must be away for meetings, etc., but that they generally do not work interdivisionally. He said the equipment used in the HHG Division is distinctive and not used in other divisions as there are significant differences between HHG trailers and others; HHG trailers are sometimes used for High Value Products (HVP), but this is rare as Mackie has dedicated HVP trailers that are specifically equipped for that purpose. As an example of the interdivisional hauling done, Mr. Meagher testified that on at least one occasion, a trailer normally used for closed auto hauling was used for HHG purposes on the lead haul, as a vehicle was being picked up for the back haul; this avoided having to dispatch two separate trailers to that location.

[42] Mr. Meagher also testified about the warehouse operation. He stated the warehouse workers occasionally assisted the Freight Division in the reloading of trailers, although this was very minimal, and also interacts with the HVP Division as Mackie stores some High Value Products in the warehouse. Mr. Meagher initially suggested that work for federal aspects of Mackie operations by the warehouse could represent up to 10% of its work although he did modify his estimate downwards the second time he testified.

[43] Mr. Meagher spoke of Mackie’s “open board” where the company posts runs that are not of a continuous basis. When employees do not show up, customers who do not have regular runs call in or other short-term demands arise, such job runs are posted on the “open board.” Mr. Meagher indicated in cross-examination that drivers from the HHG “B” fleet could seek work on the open board for runs in the Freight Division which generally runs internationally or inter-provincially if there were not a sufficient number of freight drivers available. He stated drivers from any of Mackie’s divisions, in fact, could seek work on the open board. He said the main consideration was for the Mackie Moving Systems Corporation to meet its customers’ expectations. He also confirmed that drivers from the HHG “B” fleet have done deliveries crossing into Quebec and Michigan although the majority of the work is within Ontario. Mr. Meagher said that Mackie would book orders and perform the service with either the “A” or “B” fleet. He admitted the “B” fleet was, therefore, not strictly confined to work in Ontario since they do undertake interprovincial and international work, not frequently, but regularly.

[44] As an instance, during his testimony, Mr. Meagher revealed that Mr. Dave Gilbank, a broker working on the HHG “B” fleet had made 19 trips outside of Ontario in the previous year, usually in the Detroit, Michigan or Sainte-Thérèse, Quebec areas. Mr. Meagher suggested that this represented less than 2% of the work of the HHG “B” fleet. However, the Board was not provided with detailed information concerning the runs that other “B” drivers might have undertaken. Mr. Meagher suggested the runs in question might be to serve their main clients like General Motors and that he felt they did not indicate that HHG “B” provided a general interprovincial service.

[45] Mr. Meagher also testified concerning a letter filed by the applicant on January 17, 2000, giving examples of the mobility of employees and brokers designated as HHG extraprovincial and HHG intraprovincial and their movements back and forth from one of these two divisions to the other. The Teamsters’ letter in question was in fact an analysis of a document filed by Mackie, referred to as “Book One, Issue - Jurisdiction, that Brokers, Agency Personnel and Employees Fall under Provincial Jurisdiction (Book One), and of an appendix (Appendix # 2) that accompanied the employer’s reply to the application. The following is an excerpt from the portion of the Teamsters’ letter of January 17, 2000, that pertains to the two HHG Divisions (intraprovincial and extraprovincial):

3) The second group of documents that the applicant has reviewed since the adjournment of the hearing is the several appendices that accompanied the employer’s reply to the application. Those appendices listed company employees, brokers and broker drivers, and agency drivers. The applicant has reviewed Appendix #2 which lists the persons whom Mackie admits are its own employees. That list describes the position held by each employee. It also identifies each driver, helper or packer as “Ontario”, “Interprovincial” or “International”, corresponding with the geographical range of each employee’s activities. In its submission dated April 15, 1999 (Mr. Tarasuk’s letter to Senior Labour Relations Officer Gordon MacIsaac), the employer took the position that any employee designated as working solely within the province of Ontario was outside of the jurisdiction of the Board.

4) The evidence led by the employer to date has painted a contradictory picture of the relationship or differences between the purported HHG intra-provincial division and HHG interprovincial/international division. Scott Sullivan testified that any extra-provincial household good activity is registered under NAVL and would fall within the latter division. Phil Meagher’s evidence was different. He testified that the HHG intraprovincial division does moves to Quebec and Michigan for Mackie’s corporate accounts, including General Motors, Ontario Hydro and Royal LePage.

5) The applicant believes that there is, in reality, no differentiation between the two purported divisions. In oral argument on the issue, the applicant relied on, among other things, the fact that the divisions operated under the same profit and loss statement.

6) The list of employees in Appendix #2 of the employer’s reply includes approximately 28 helpers and packers in the “Moving” division. There are 12 “Ontario” helpers and 4 “Ontario” packers. There are 12 interprovincial or international helpers. The applicant submits that this employer document ought to be taken by the Board as evidence that this group of helpers and packers work extra-provincially to such an extent that the employer, for its own purposes, considers them to be inter-provincial or international employees. As shown below, the interprovincial or international helpers also work on intraprovincial moves. The applicant submits that this evidence supports our contention that there is a single household goods moving division of the employer’s business. That division is or is a part of an extra-provincial undertaking that is within the Board’s jurisdiction.

7) The applicant has identified the following additional or related matters which it urges the Board to inquire into:

a) Tab 2 of the Employer’s Book One describes a group of documents relating to “Moving Division Mackie Employees - Local”. The first page of documents at that tab is described as an “HHG Planning Sheet” for April 9, 1999. That planning sheet appears to be the first page of a four-page document describing the company’s planned use of HHG personnel to complete various contracts on April 9, 1999.

i) For example, the planning sheet first describes one move from Port Hope Ontario to Surrey, BC in which the designation NAVL appears in the right hand column.

ii) On the same day, a move from Markham, Ontario to Vancouver, BC is similarly described.

iii) Thirdly, a move from Winnipeg, Manitoba to Calgary, Alberta is described in a similar manner.

iv) The fourth entry on the planning sheet at Tab 2 of Employer’s Book One is a move from place to place within downtown Toronto assigned to Ed Pratt, Steve Levigne and Scott Renney. This is clearly an intraprovincial move. Pratt is described in Appendix #2 as an interprovincial driver in the “Moving-HVP” division. Levigne is described in Appendix #2 simply as a helper in the “Moving” division with no geographical designation. Renney is described in Appendix #2 as an interprovincial helper in the company’s “Moving” division. This entry on the HHG planning sheet show therefore that an intraprovincial move was performed by an interprovincial HVP driver (Pratt), assisted by two helpers, one of whom is described by the employer as an interprovincial helper (Renney).

v) The fifth entry on the planning sheet is a residential move from Whitby, Ontario to Orion Township, Michigan. This work was assigned to Bob Fraser. According to Appendix #4 of the employer’s reply, he is an international broker in the company’s “Moving-HHG” division. It would appear that rather than being assigned to the NAVL system, this extra-provincial move was handled as a Mackie move. This is unlike the entries described in paragraphs (i), (ii) and (iii), above. This evidence is an example of Mackie choosing not to put an extra-provincial move into the NAVL system, effectively treating it for reporting and revenue purposes as an intraprovincial move.

vi) The sixth entry on the April 9, 1999 HHG Planning Sheet is another NAVL-registered move from Saskatchewan to Alberta.

vii) The seventh entry on the on the April 9, 1999 HHG Planning Sheet is a move from place to place within the Greater Toronto Area assigned to Tony Becker, Michael Dell, Jamie Crawford and Terry Glover. Becker is listed on Appendix #2 as an Ontario driver in the company’s “Moving - HHG” division. Dell, Crawford and Glover are all identified as interprovincial helpers in the “Moving” division. This intraprovincial move was completed by an intraprovincial HHG driver (Becker) and three interprovincial moving helpers (Dell, Crawford and Glover). The additional documents at Tab 2 relate to this move.

viii) The eighth entry on the April 9, 1999 HHG Planning Sheet is another move from place to place within Ontario. The job was assigned to Michael Hawley and Kevin Grindrod. Hawley is identified on Appendix #2 as an international driver in the “Moving-HHG” division. Grindrod is identified there as an Ontario driver in the “Moving-HHG” division. This intraprovincial move was therefore completed by an international HHG driver (Hawley) assisted by an intraprovincial HHG driver (Grindrod).

ix) The applicant makes no comment about the remaining entries on the April 9, 1999 HHG Planning Sheet.

b) It is apparent that the HHG Planning Sheet applies to both of the purportedly separate and independent HHG divisions. The Planning Sheet refers to intraprovincial moves by Mackie, interprovincial moves registered with NAVL by Mackie and international moves by Mackie that are not registered with NAVL.

...

8) The evidence summarized above shows:

(1) Intraprovincial work may be performed by employees identified by the employer in its reply as interprovincial or international (e.g. Dell, Crawford and Glover and others).

(2) Interprovincial work may be performed by employees identified by the employer in its reply as international (Smith and Edwards).

(3) HHG work may be performed by HVP personnel (e.g. Pratt);

(4) HVP work may be performed by HHG personnel (e.g. Gallant);

(5) HVP personnel may haul freight loads (e.g. Chambers);

(6) HHG work is not in practice distinguishable as having been performed by either the HHG intraprovincial division (the B fleet) or the HHG interprovincial or international division (the A fleet). For example:

(i) interprovincial and international helpers work on intraprovincial moves;

(ii) international drivers may work on intraprovincial moves; and

(iii) international or interprovincial HHG moves are not necessarily registered with NAVL.

[sic]

[46] Testifying in direct examination with respect to this document, Mr. Meagher explained that concerning the move described in item 7(iv) above, the goods being moved were High Value Products, and that there was no distinction in the HVP Division as between local or extraprovincial transport. With respect to the move described in item 7(vii) above, he assumed it was a last minute order and that it was probably “a scramble to do it.” He explained that Helpers from the HHG “A” Extraprovincial Division were used for the HHG “B” Intraprovincial Division probably due to a shortage of available Helpers in the Intraprovincial Division. With respect to the example in item 7 (viii) above, Mr. Meagher said that this was actually an international move for an international shipping company called Victoria International. Notwithstanding this, he also described it as a “B” fleet move, or HHG intraprovincial. Taken together, however, this evidence does show that on a regular basis, the HHG “B” fleet and its support is used to support other Mackie divisions and that it will as Mackie corporate needs dictate, undertake interprovincial transport.

[47] When Mr. Meagher testified the second time, he provided further testimony with respect to the operation of the Warehouse Division. He stated that the warehouse was close to 100,000 square feet in area and of these 35,000 square feet were leased to the Productivity Improvement Centre (PIC). PIC is not part of Mackie’s operation, but a tenant. Of the remaining 65,000 square feet, 35,000 were used for the HHG division. In terms of time spent by warehouse staff working on material from Mackie’s different divisions, Mr. Meagher said he would not be able to give an accurate estimate as to his knowledge the warehouse did not charge the time back to the other divisions, and the warehouse employees did not keep track of time spent handling each division’s material. He estimated approximately 30% of the time was spent on HHG, 40% on HVP, and the balance on other tasks such as cleaning, cross- docking, loading and unloading of PIC trailers and preparing dollies, blankets, straps, boxes, etc. for the next day’s moves. In the summer season, the warehouse handles two to three moves per week originating with North American Van Lines (the HHG “A” extraprovincial Division). The warehouse staff is also involved in packing containers for Martin Steven, an international shipping company partially owned by Mackie; Mackie does not charge Martin Steven for this service.

[48] In re-direct examination, Mr. Meagher estimated that with respect to warehouse work done to support the High Value Products working division, 70% was intraprovincial in nature, 20% interprovincial and 10% international. With respect to these products, the warehouse workers assist in the docking and loading. The HVP Division has previously been determined by the Board to be within federal jurisdiction.

[49] Certain statistics filed with the Board by Mackie concerning the warehouse as part of Exhibit 2 on November 22, 1999, also provide breakdowns of warehouse labour hours. These statistics indicate that in total 2% of the total labour hours in the warehouse are spent on goods in extraprovincial transit, that is, .7% on industrial and commercial products plus 1.2% on household goods, while 98% of the time worked was spent on intraprovincial goods. These estimates, prepared by the employer conflicted to a degree with Mr. Meagher’s original testimony and with Mr. Sullivan’s initial general estimate of up to 4% as well as with certain of the anecdotal aspects of the testimony. If the testimony respecting the HHG “B” warehouse work is considered, the evidence in its entirety would suggest that the proportion of labour dedicated to federal aspects of the employer’s operation is in probability of significance.

[50] The constitutional characterization of the work of the warehouse and of the HHG “B” fleet must therefore be considered. While numerous authorities were cited on the constitutional issue, because of the present facts and circumstances they need not all be referred to. Dealing firstly with the HHG “B” fleet, or the Household Goods (intraprovincial) division, the evidence before the Board reveals that this division does regularly carry out extraprovincial moving activities. While the extraprovincial activity may be a small proportion of the overall activity of this Division, the testimony of Mr. Meagher revealed that the requirements of the customers were the determining factor, and that the employer would not ordinarily hesitate to use the HHG “B” fleet to undertake extraprovincial moves. Evidence also revealed a degree of functional integration in that the “B” fleet, occasionally undertook deliveries for the High Value Products Division, a division which is under federal jurisdiction due to the extraprovincial nature of a significant portion of its transportation activities. The example of Mr. Gilbank, the broker who is part of the “B” fleet who had undertaken 19 extraprovincial trips in the past year, which the employer suggests represents less than 2% of the trips undertaken by the “B” fleet, should also be recalled in this respect.

[51] The Board has dealt with the “regularity” and “continuity” test on numerous occasions, to determine whether a transportation enterprise is constitutionally under federal or provincial jurisdiction. In this case, Mackie suggests that the amount of extraprovincial transportation undertaken by the “B” fleet should be viewed as an insignificant proportion and of a sporadic rather than a continuous or regular nature.

[52] The following excerpt from Acadian Lines Limited (1994), 96 di 41, (CLRB no. 1094), sheds some light on how the concept of regularity and continuity has been applied by the Board and by the courts in recent years:

The main consideration here, as defined by the leading cases, is whether the extraprovincial aspect of a transportation operation that connects provinces or extends beyond the limits of a province within the meaning of section 92(10)a) is regular and continuous. The leading cases clearly establish that the test that must be applied to decide if the extraprovincial aspect of the business is regular and continuous must be qualitative as opposed to quantitative. For example in Re Ottawa-Carleton Regional Transit Commission and Amalgamated Transit Union, Local 279 et al. (1983), 44 O.R. (2d) 560; 4 D.L.R. (4th) 452; and 84 CLLC 14,006 (C.A.), Cory, J.A. (as he then was) had this to say:

“There is a long history of decisions pertaining to the trucking and transportation industry. These authorities have rejected a quantitative approach which would determine the result based upon a comparison of the extraprovincial business to the business carried on within the province. Instead, the decisions have turned upon a finding that the extraprovincial operation was a continuous and regular one. If the extraprovincial operation was found to be continuous and regular, then the undertaking was determined to be one which connected provinces. There is no reason, in my view, to depart from that line of decisions which has for many years governed the transportation industry. The test used in those authorities is a reasonable one and it can be readily applied.

(pages 569; 460-461; and 12,030)”

Regina v. Cooksville Magistrate’s Court, Ex parte Liquid Cargo Lines Ltd., [1965] 1 O.R. 84; and (1964), 46 D.L.R. (2d) 700 (H.C.J.), is very instructive on the application of this test where the trips are not made at fixed times in accordance with a predetermined schedule. It states:

“In my view, the fact that many of the applicant’s extraprovincial trips are not made at fixed times in accordance with a predetermined schedule does not compel the conclusion that its activity in that regard is not continuous and regular. Viewed from the point of view of the applicant company, it is clear that its customers are provided with extra-provincial service consistently and without interruption whenever they apply to the applicant for such service. The applicant stands ready at any time to engage in hauls outside the boundaries of the Province of Ontario at the instance of any of its customers, and for that purpose has gone to the pains and expense of acquiring transport permits and licences from a number of jurisdictions. Further, the evidence is clear that it has made such trips frequently during the period for which figures have been provided.

(pages 88-89; and 704-705)”

In our view, the proportion of business test propounded in Re Windsor Airline Limousine Services Ltd., supra, was completely discredited in Re Ottawa-Carleton Regional Transit Commission, supra. If the percentage of business is to be used at all, it can only be used to determine whether the traffic is regular and continuous and not as a test per se. Furthermore, we believe that it is only useful where regularity and continuity of traffic cannot otherwise be readily determined. This is not this case.

In this case, the employer holds itself out to the public as ready, willing and able to provide motorcoach charter service throughout Canada and the United States. It holds extraprovincial operating authorities from the Nova Scotia Utility and Review Board to operate passenger and parcel services. It operates specialty charter route passenger services to all points in Canada and the United States and also holds operating authority issued by the Interstate Commerce Commission in the United States for 13 states along the Eastern Seaboard. While the extraprovincial charter trips are based on demand only, the evidence shows that whenever such a trip is requested, it is made; thus the extraprovincial part of the employer’s business which is integrated in its whole operation appears to us to be of the regular and continuous nature that is necessary to convert Acadian from a provincial undertaking to a federal work, undertaking or business within the scope of section 92(10)(a) of the Constitution Act, 1867 and we so find.

(pages 45-47; emphasis added)

[53] The above description is clearly analogous to Mackie’s Household Goods (Intraprovincial) Division or, as it is otherwise known, the “B” fleet.

[54] While the proportion of extraprovincial activity carried out by this Division is relatively low compared to its intraprovincial activity, it is carried out on a regular, recurrent, and continuous basis, responds to customer needs, and is not such as would be considered to be “casual or exceptional” but, rather, part of the “normal or habitual activities of the business” (see Northern Telecom Limited v. Communications Workers of Canada et al., [1980] 1 S.C.R. 115, page 132). The evidence shows that Mackie’s prime imperative is to meet its customers’ needs, and will not hesitate to use the “B” fleet to carry out extraprovincial activity where necessary. Nineteen trips in one year by one driver only cannot be said to be an indication of irregularity.

[55] Without as yet having delved into the issue of whether Mackie’s Divisions are severable or constitute an indivisible whole for purposes of determining constitutional jurisdiction, the Board finds that Mackie’s Household Goods (Intraprovincial) Division is a federal work, undertaking or business as defined by paragraph 2(b) of the Code, and that its labour relations are thus subject to the Code.

[56] Turning now to the Warehouse Division, the warehouse was described by the employer as having originated to store household goods as part of its moving operation. While the warehouse is now used for other purposes as well, some of which generate outside revenue for Mackie, most of its space is still devoted to the storage of goods in transit. Part of the warehouse, representing approximately 1/3 of its total space, is rented outright to another organization and the Board is not concerned with this portion. What is essential in determining the jurisdiction under which the Warehouse Division’s labour relations are governed is whether the warehouse employees handle material that is in extraprovincial transit, and whether they do this with regularity and continuity.

[57] While the employer maintains that the Warehouse Division is interdependent only with the Household Goods (Intraprovincial) Division (see paragraph [14a] above), the Board heard evidence at various times that the warehouse employees spent 2%, 4% or perhaps even 10% of their time working on goods in extraprovincial transit (see also paragraph [21]). In addition to the HHG Intraprovincial Division, the warehouse is used to store or transfer items in transit by the Freight Division and the High Value Products Division, both of which the employer described as being extraprovincial in nature and both of which have been found by the Board to be under federal jurisdiction. It should be recalled that Mr. Meagher testified initially that this work could represent up to 10% of the work of the warehouse employees, and that their handling of High Value Products alone could represent as much as 40% of their work although his subsequent testimony certainly modified the 10% estimate downwards. The warehouse also handles two or three moves per week in the summer originating with North American Van Lines, for which Mackie is an agent (and to which its Household Goods [extraprovincial] Division) is assigned. This work occurs on a regular basis and clearly supports activities within federal jurisdiction. The warehouse workers also work at least occasionally on containers for Martin Steven, an international shipper partially owned by Mackie. While Mackie charges outside customers for the space they rent in the warehouse, Mr. Meagher testified that the Mackie’s Warehouse Division does not charge Mackie’s other divisions for the work the warehouse employees do on behalf of these divisions nor does it charge Martin Steven. This fact suggests that the Warehouse Division is integrated into Mackie’s broader enterprise.

[58] In argument, the employer nevertheless argued that the warehouse was not essential to the rest of Mackie’s operations, and was entirely severable from the enterprise for purposes of determining federal jurisdiction. However, on the basis of the testimony before it, the Board concludes that there is a regular, if occasional, requirement by all of the Mackie divisions referred to above for storage facilities and warehouse services as an essential part of their transportation operations. Additionally, the evidence of Mackie with respect to the frequency of the use of the warehouse in the support of the aspects of its operations must be taken as a whole. Mr. Meagher’s initial estimate of a 10% use of the warehouse for federal freight must therefore be considered together with the other evidence. Considered together, the employer’s own evidence indicates a somewhat more frequent use of the warehouse for federal purposes than was conceded in argument. Additionally, if Mackie’s warehouse were not available for storage and transfer purposes, obviously Mackie would have to use some other storage and transfer facility, otherwise it would not be able to transport (extraprovincially as well as intraprovincially) those goods that need to be stored while in transit from their point of origin and before reaching their final destination. There was no indication whatsoever that other storage facilities were utilized by Mackie.

[59] The evidence of the integration of the warehouse with the federal operations must be carefully considered in context and in consideration of Mackie’s submissions. The initial written submissions of the employer respecting the nine independent commercial units were supplemented by oral testimony, particularly that of its President, Mr. Scott Sullivan. Mr. Sullivan explained the growth and interrelationships of the enterprise conducted by Mackie. His testimony stressed that for profit and loss purposes, the nine so-called independent commercial units operate as independent centres. The Board must also consider the submissions made by the applicant on September 20, 1999, which set out the applicant’s position on the constitutional issue. It is useful here to refer to a portion of those submissions since they raise certain broader matters which are also of relevance to the constitutional issues.

ISSUE # 1 - THE CONSTITUTIONAL ISSUES

1) The respondent employer has asserted that some or all of its business falls outside of the jurisdiction of the Code. We understand Mackie’s position to be that those parts of its business which are confined to a province are not interdependent with and are severable from the interprovincial and international aspects of its business.

Applicant’s position

2) The applicant replies that with the exception of that portion of the employer’s business relating to its account with Pitney Bowes, the employer’s business is a single integrated business which is a federal work, undertaking or business for the purposes of section 4 of the Code. The employment and labour relations aspects of the employer’s business are governed by the Code.

The correct test

3) The criteria for determining federal jurisdiction in the trucking or transportation industry were correctly stated by the Ontario Court of Appeal in Re Ottawa-Carleton Regional Transit Commission and Amalgamated Transit Union, Local 729 (1983), 44 O.R. (2d) 560. The following passage (at p. 569, with emphasis added by the Board) was approved of and relied on by the Canada Labour Relations Board in I.B.T., Local 880 v. J.I. DeNure (Chatham) Ltd. (1989), 89 C.L.L.C. 16,018 at page 14,187:

“There is a long history of decisions pertaining to the trucking and transportation industry. These authorities have rejected a quantitative approach which would determine the result based upon a comparison of the extraprovincial business to the business carried on within the province. Instead, the decisions have turned upon a finding that the extraprovincial operation was a continuous and regular one. If the extraprovincial operation was found to be continuous and regular, then the undertaking was determined to be one which connected provinces. There is no reason, in my view, to depart from that line of decisions which has for many years governed the transportation industry. The test used in those authorities is a reasonable one and it can be readily applied.”

4) The correct test is whether Mackie is engaged in interprovincial or international transportation on a regular and continuous basis.

The relevant constitutional facts

5) Mackie’s business is the transportation of materials and products, particularly automotive parts and components, household goods, high value products and automobiles.

6) Mackie’s transportation business is divided into at least two broad categories or divisions: the freight division and the moving division. The moving division is further divided into household goods(“HHG”), high value products (“HVP”) and the auto-haul division.

7) Drivers in each of Mackie’s divisions and helpers in its moving division transport freight, household goods, high value products and automobiles from place to place within Ontario, from Ontario to other provinces and the United States and from other provinces and the United States to Ontario. The interprovincial and international aspects of these activities in each of Mackie’s divisions are regular and continuous.

8) Mackie also employs persons classified as packer, warehouse operator and team leader who work in or out of its Oshawa warehouse. These employees are engaged in the handling, processing, storage and retrieval of goods, particularly household goods, which are being transported and/or stored by Mackie for its customers. The goods which are handled at Mackie’s warehouse include goods which have been transported from the United States or from other provinces, and goods which later will be transported to those locations by Mackie’s trucks and drivers. This part of Mackie’s business is an integral and indivisible aspect of its transportation business.

9) The remaining aspect of Mackie’s business is comprised of fourteen brokers and broker drivers who perform services in relation to an account or contract for Pitney Bowes. The applicant understands that these fourteen persons work out of a Pitney Bowes warehouse in Pickering. They deliver photocopiers and similar Pitney Bowes products to that company’s customers in the Greater Toronto Area. The persons so engaged are not integrated into any other aspect of Mackie’s business. They are integrated into the business of Pitney Bowes. The applicant agrees, for reasons outlined above, that these persons are not in the bargaining unit for which it seeks certification.

10) The regularity and continuity of interprovincial and international trips by Mackie employees is illustrated by the distribution of business between intraprovincial trips and interprovincial/international trips in Mackie’s freight division:

i) Filed with these submissions are two documents relating to a freight division bid which was put into place effective April 12,1999.

“See Tab 2.”

ii) The first document is a set of “Bid Rules and Regulations”. The second is a series of charts that outline the available “lanes” or “bids”. Each lane or bid represents a regular job or assignment on which drivers (whether company drivers, brokers or agency drivers) could bid according to his or her seniority. The charts are divided into the following categories:

• Company/Agency Drivers - Local Bids;
• Company/Agency Drivers - Highway Bids;
• Broker drivers (Single) - Highway Bids; and
• Broker drivers (Teams) - Highway Bids.

iii) The applicant makes the following observations about the freight division bid documents.

(a) Only the first category of bids (i.e. those described as “Local Bids”) is entirely intraprovincial.

(b) In the second category, fifteen of the eighteen highway bids for company and agency drivers involve interprovincial or international travel.

(c) In the third category, all of the thirty-nine highway bids for single brokers are interprovincial or international.

(d) In the fourth category, all of the eighteen highway bids for broker teams are interprovincial or international.

iv) Although regularity and continuity rather than volume of out-of-province trips is determinative, the interprovincial and international trips in Mackie’s freight division represent a large volume of work which is performed by Mackie’s employees. In the freight division alone, the bid charts show over two hundred interprovincial or international trips per week.

v) The regularity and continuity of the interprovincial/international trips is evident in the “Comments” column on each chart which lists the days of each week in the coming year on which a trip will be driven in connection with each particular bid. A majority of the bids represent daily runs. Few of the bids involve less than three days per week or work for the employee who obtains that bid.

11) The regularity and continuity of interprovincial and international trips is also illustrated by the documents contained in the books of documents filed by the employer with its reply. In particular, Tabs 3, 4, 5, 6, 9, 11, 12 and 13 of Book One illustrate interprovincial and international trips made by company drivers, brokers and agency drivers in the company’s freight, household goods moving and auto haul division.

12) The regularity and continuity of interprovincial and international trips is also illustrated by the manner in which Mackie has described the individual company drivers on the employee lists filed with the Board (see Appendix 2 of Mackie’s reply). A majority of such drivers are described as “interprovincial” or “international” rather than as “Ontario”.

[60] The key point made here, and it is generally supported by the evidence cited above, as well as the totality of the evidence before the Board, is that the Mackie operation, generally speaking, is a single, integrated and coordinated enterprise. In the case of those elements, which can on the evidence be differentiated, the Pitney Bowes and Lear Divisions, the Board has already done so. However, a similar differentiation of the Warehouse Division and the HHG “B” Division intraprovincial does not appear in fact to exist. These elements of the Mackie operation are more integrated into the broader Mackie enterprise. The Board therefore finds that the Warehouse Division is necessary and integral to those divisions of Mackie that use the warehouse facility, namely, HHG (intraprovincial), HHG (extraprovincial), Freight, and HVP and all are part of the integrated Mackie enterprise. The evidence clearly demonstrates that the use of the warehouse for the storage and transfer of extraprovincial goods is not casual or exceptional, but is recurrent and is part of Mackie’s ongoing business. Given that the Warehouse Division is engaged, along with these other Divisions, in the overall ongoing process of Mackie’s extraprovincial transportation activities, in accordance with the qualitative approach set out in Acadian Lines Limited, supra, the Board finds that the Warehouse Division is under federal jurisdiction for labour relations purposes.

II - Whether Mackie’s Operating Divisions are Distinct and Severable

[61] While based upon the above analysis of Mackie’s operations, it is evident that the two divisions considered, the Warehouse and the HHG “B” Division are integrated, there are other factors and considerations relevant to the contention that the warehouse and HHG “B” Divisions should be considered severable. With the exception of the Lear Seating Contract Division and the Pitney Bowes Contract Division whose situation has been discussed previously, all of Mackie’s operating divisions have been found by the Board to be within federal jurisdiction. If the evidence concerning organization, management, location and operations is considered, there is an additional basis upon which to conclude that the relevant divisions form part of a single, coordinated business enterprise.

[62] The Board has already surveyed the specific evidence submitted in this regard in the foregoing analysis of the Warehouse and HHG (intraprovincial) Division. The employer’s case revolves on the premise that each of Mackie’s Divisions is established as a separate profit and loss (P & L) centre capable of operating autonomously from the others, capable of being severed from the others and capable of surviving on its own (see paragraph 14 above). As mentioned earlier, the Board has already accepted the severability notion with respect to two divisions, Freight Intraprovincial (Lear Seating Contract) and Pitney Bowes. In the case of these two divisions, the Board found that they are capable of and in fact to a degree do operate on their own as outlined previously and while not totally so, can be viewed as virtually independent from Mackie’s other operations. However, it should be recalled that while these divisions can be so viewed because their operations revolve around distinct and separately administered operations, even they are, to a degree integrated in the Mackie enterprise, viewed more broadly.

[63] From a strict operational point of view, the general evidence of management, location organization and operations indicates that the Warehouse Division is interdependent and interrelated to four other divisions of Mackie. The HHG “B” Division operates extraprovincially and internationally and is interrelated with the warehouse and other Mackie divisions.

[64] In addition to operational considerations, other factors and considerations which were brought to light during the proceedings before the Board from a broader perspective would appear to be contra-indicative of a finding of autonomy on the part of the Warehouse Division and the HHG “B” Division. Organizational, administrative, financial, management, supervisory and related factors should be considered.

Common Supervision and Management

[65] Mackie’s organizational chart provided to the Board shows a common dispatcher, Mr. Corey Salter for the two HHG Divisions (intraprovincial and extraprovincial) combined. The dispatchers for the HVP, HHG and Auto Transport Divisions all report to a common Operations Supervisor, Mr. Keith Dalton, for the Moving side of the organization. On the Freight side of the organization, all dispatchers report to a common Operations Supervisor, Mr. Marcel Bélanger. Both of the Operations Supervisors in turn report to the Operations Manager, Mr. Phil Meagher. The Operations Manager and the Warehouse Manager both report to the Vice-President of Operations. Until the spring of 1999, the Warehouse Division used to report directly to the Operations Manager, Mr. Phil Meagher. It is not certain if the change with respect to the reporting relationship of the warehouse took place before or after the filing of the application for certification.

[66] There is a Management Review Team (MRT) that transcends organizational lines and comprises, among others, the Operations Manager; the Human Resources Manager; the Warehouse Manager; the Sales Manager; the Accounting Manager; the Vice-Presidents of Operations, Public Relations, Sales & Marketing, and Finance; and the President. Three of the Vice-Presidents sare members of the Mackie family.

[67] The highest level of supervision/management for each of the separate Operating Divisions is at the dispatcher level, which is contra-indicative of an autonomous self-managing operation. The dispatchers are not on the Management Review Team and report themselves not to Managers but to Supervisors who are also not on the Management Review Team. The one exception is the Warehouse Manager.

[68] With respect to the profit and loss centres, some of the P & L statements for the allegedly autonomous divisions are combined into a common statement, and several of the P & L centres are the responsibility of a common P & L Manager.

Mobility of Employees

[69] The dispatchers are to an extent interchangeable and sometimes replace each other. Drivers may transfer from one division to another without losing their “at large” seniority for benefits and vacation although they may lose seniority for route-bidding purposes. Drivers may be assigned work outside their “home” division according to operational and customer requirements. Warehouse workers assist in loading trailers for the Freight Division. The organization chart shows all drivers involved in moving within a common structure without distinction as to the division they work in. All drivers may seek work on the open board.

Common Use of Equipment

[70] Drivers may on occasion haul for one division on the front haul (for example, HVP), and for another division on the back haul (for example, Freight). There is some overlap of use of the same vehicles between the HVP and HHG Divisions.

Common “Umbrella” Financial and Corporate Control

[71] The Commercial Vehicle Operating Registrations are registered to Mackie at the corporate level rather than at the division levels. Mackie covers the cost of all vehicle insurance; Mackie has a single corporate bank account, from which all expenses are paid. None of the separate divisions has any legal status as an employer with Revenue Canada or with the Workplace Safety and Insurance Board, and the Health and Dental Plans are administered at the corporate level for the organization as a whole. Contracts between Mackie and its clients are signed by the President, and neither the P & L centres nor the operating divisions have standing to enter into contracts. Deficits or losses in one division are covered by excess profits from the other divisions, and if loss exceeds excess profits, the Mackie family would cover it.

Common Administrative and Management Support Services

[72] All office and clerical employees are “at large” employees of Mackie proper. There is only one accounting system covering the organization as a whole. Financial statements and records are centrally kept. There is one Human Resources Department, servicing the entire organization.

Common Location

[73] Employees of all Mackie’s divisions generally work at or from, or are dispatched from, the same location in Oshawa, with the exception of the two divisions which the Board has already found to be severable for constitutional purposes, and the Auto Haul Division operating in the Maritimes. Another exception would be the drivers of the HHG (Extraprovincial Division), or the “A” fleet, who are usually but not always dispatched by North American Van Lines from Fort Wayne, Indiana.

[74] On authority such common supervision and management have been seen as factors relevant to the constitutional characterization for enterprise. Mackie’s corporate and organizational structure closely resembles that of Arnone Transport Limited (1998),106 di 59; and 39 CLRBR (2d) 193 (CLRB no. 1220) although Mackie has more operating divisions than Arnone. In Arnone Transport Limited, supra, the Board found as follows:

The employer’s business is comprised of three sectors of activities: the transportation division which is engaged in the transport of freight both locally and on a regular basis interprovincially; a garage division whose employees service the equipment for Arnone Transport; and the terminal storage division which is primarily involved in storage and in rail and truck transfers.

The evidence reveals that all divisions work hand in hand to carry out the transportation business. There is a centralized direction and coordination at the management level. The controller, maintenance manager, marketing manager, transport manager and terminal manager meet regularly to discuss the global operations of Arnone Transport and to ensure that all operations work together towards a common goal. In particular, capital expenditures and other financial matters as well as issues such as hiring, training, wages, benefits, working hours, disciplinary matters for all divisions are dealt with at these meetings. Furthermore, the administration of Arnone Transport Limited as well as its customer services are carried out at a central office.

In light of the foregoing and in particular the centralization of the company’s decision-making authority, administration, and the provision of customer services, the Board finds that Arnone Transport operates a single integrated trucking company. Given the regular interprovincial transportation that it carries out, the Board concludes that this company constitutes a federal work, undertaking or business within the meaning of section 2(b) of the Code. Consequently, the terminal storage division as well as its labour relations, being unseverable from the rest of the employer’s operations, come within federal jurisdiction.

(pages 62; and 195-196)

[75] In the case of Mackie, the Board is of the view that its organizational structure forms an integrated and interrelated whole such that, from a labour relations viewpoint, it should (subject to the exceptions already made) be viewed as a single indivisible enterprise engaged in the intraprovincial and extraprovincial transportation of goods, and its labour relations governed by the Canada Labour Code. This conclusion supports the Board’s determination that all the divisions not previously excluded fall within its constitutional jurisdiction, the conclusion is also relevant to the issue of the appropriate bargaining unit in the circumstances as will be discussed below. However, the reality of the organizational unity of the enterprise supports its constitutional characterization here and reflects the reality of the Mackie enterprise. That reality demonstrates a high level of common direction and control and common management and administration irrespective of the division which has been identified for profit and loss purposes. The division of the enterprise for profit and loss purposes should not, for constitutional purposes, obscure this reality. In the words of the Supreme Court of Canada in Alberta Government Telephones v. Canada (Canadian Radio-Television and Telecommunications Commission), [1989] 2 S.C.R. 225:

Underlying many of the arguments is an unjustified assumption that by choosing a particular corporate form the various players can control the determination of the constitutional issue. This Court has made it clear in this area of constitutional law that the reality of the situation is determinative, not the commercial costume worn by the entities involved. ...

(page 263; emphasis added)

III - Drivers Provided by Personnel Agencies

[76] As indicated in the report of its investigating officer, Mackie obtains drivers from nine different personnel agencies. The issues that must receive consideration are whether generally these drivers should be viewed as employees of the supplying agency or of Mackie and which of the agency drivers should be included in the bargaining unit. The agencies included:

[77] A number of the above employees were not counted by the investigating Labour Relations Officer as they had quit prior to the filing of the application, or their hours of work did not show sufficient regularity in the period prior to the filing of the application, or the agency in question no longer referred employees to Mackie. Thus, on the date of application, Mackie was considered by the investigating officer to be using the services of 99 agency drivers (see Investigating Officer’s Report). As indicated previously, based on their characterization as provincial those Adams Services drivers working on the Lear Seating Contract were eliminated from this group.

[78] While a number of individuals presented evidence respecting this group of drivers, the Board found the following elements of testimony to be of the greatest value in assessing their situation.

[79] The experience of Mr. Paul Nelson as an agency driver is in general terms typical. He is an agency driver referred to Mackie by The Administrative Edge Inc. (Administrative). He has been driving for Mackie since January 1999. Prior to that he had worked at Canada Bread for 20 years but was laid off when Canada Bread closed and outsourced its transport department. He had worked for Frank Stewart of Administrative in the past and had been invited to call him if he ever needed work.

[80] Mr. Nelson said he called Mr. Stewart and was administered a series of tests, including general knowledge, knowledge of transport, safety and dangerous goods, and a drug test by Administrative. Administrative also investigated his driver’s abstract, his Commercial Vehicle Operating Registration, and did a criminal search. They made arrangements for Mr. Nelson to have a road test with Mr. Cal Murray, a Mackie employee, and he started working at Mackie soon after. (Note: Mr. Murray is shown on Mackie’s organization chart as the Corporate Safety Coordinator, reporting to Mr. Marcel Bélanger, Operations Supervisor, Freight). Mr. Nelson said Mackie also arranged for him to undertake training on dangerous goods and Workplace Hazardous Materials Information System (WHMIS) at Durham College. He said he also participated in a class along with other agency drivers, as well as brokers and company drivers; the class was given by a woman employee of Mackie and touched on Mackie’s paperwork requirements, including the Lead Logistics Provider, Ryder and GM paperwork. (It should be noted here that many Mackie drivers in the “freight” aspect of Mackie’s operations transport car parts from various locations to the General Motors Oshawa and Sainte-Thérèse auto assembly plants. General Motors relies on so-called Lead Logistics Providers to organize its relationships with those who transport its car parts. Mackie and similar companies negotiate with GM through the Lead Logistics Providers (LLPs) who also make sure that the transport companies meet GM needs and requirements. This can involve training by the LLPs with respect to GM requirements).

[81] Mr. Nelson testified that the equipment he operates belongs to Mackie, and the fuel used by the vehicles he drives belongs to Mackie, and the fuel used by the vehicles he drives is supplied by Mackie at its fuel pumps upon his showing his employee and personal identification number (PIN), which is supplied by Mackie. If his vehicle needs repair or parts, he communicates with Mackie`s dispatch and they will direct the repairs.

[82] Mr. Nelson said he works as a city driver for Mackie, delivering primarily to GM. He said he indicated to Mr. Stewart when he first approached him for work that he preferred city work to highway driving. He indicated that he usually did not have to bid for work as there was enough work through Mackie’s dispatch for 40 to 50 hours per week. He is given a starting time by Mackie’s dispatch and is paid by Mackie from the time he punches in until he punches out, including non-driving time, minus half an hour for lunch. He punches in at Mackie’s head office on Bloor Street in Oshawa, along with all the drivers who are paid by the hour, including both agency and drivers directly employed by the company. He said he had had no formal contact with The Administrative Edge Inc. since he had been referred to Mackie.

[83] He said the rules under which he works are set either by Mackie or GM, and not by The Administrative Edge Inc. Drivers, including agency drivers, who break rules would be subject to suspension by Mr. Marcel Bélanger, Mackie’s Operations Supervisor. He testified that when he had been off work due to a lung infection he advised Mackie’s dispatch and not the agency. He said although The Administrative Edge Inc. supplies drivers to companies other than Mackie he never sees such companies or otherwise has any contact with them. He only provides his services to Mackie.

[84] In answer to how his rate of pay was set he answered that he had been told by Frank Stewart of Administrative that Mackie determines the maximum that agencies can pay their drivers. He said he was familiar with the process under which Mackie employees may bid for work, referred to as the Bid Rules and Regulations, and confirmed that they applied equally to agency drivers as well as company drivers. He was referred to a memorandum addressed on February 19, 1999, by Marcel Bélanger to all of Mackie’s drivers, including company drivers, agency drivers, and broker-drivers, and confirmed that these procedures are issued directly by Mackie.

[85] He was shown a document entitled “Mackie Seniority List for Agency Drivers” and stated he had not seen this document before. He confirmed that it was a mandatory condition of employment established by Mackie for all its drivers, including agency drivers, to attend driver training sessions scheduled by Mackie at Durham College. He said agency drivers received all the same company newsletters in their mailboxes as did the company drivers, and were eligible to attend Mackie social events including the Safety Awards Banquet. He stated that his working conditions were controlled by Mackie.

[86] In cross-examination, Mr. Nelson confirmed he was aware of GM’s training requirements for all drivers on GM property and that the same rules applied to both agency and company drivers. He agreed that if a driver had an accident on GM property he would generally not be allowed back.

[87] In re-direct examination, Mr. Nelson testified that all agency drivers, regardless of which agency they were referred from, were treated identically by Mackie. They all received the same training, they all had access to Mackie’s fuel pumps in the same way, they were all dispatched by Mackie, drove similar trucks owned by Mackie, and received the same rate of pay. He said there was no practical difference as to which agency he chose to be referred by as wages would have been the same.

[88] Ms. Catherine Black also provided some evidence on the agency situation. She testified that she drove for Mackie from February 9 to September 3, 1999. Prior to that she was assigned to work as an agency driver with Verspeeten by Advantage Personnel. She asked Advantage Personnel to get her work at Mackie and changed to Professional Personnel when Advantage would not accommodate her. She was tested by Bob Smith at Mackie and started working for Mackie the next day; she worked both highway and city runs. She says she was told by Todd Bradbury at Professional Personnel that the hourly pay rate was set by Mackie. During the time she was assigned from Professional she drove Mackie trucks and was assigned an employee and PIN number. She dealt directly with Mackie dispatch for repairs and her hours of work were controlled by Mackie’s dispatch. She had no further contact or involvement with the agency once she started at Mackie. All her training was given by various people at Mackie. She punched in and out at Mackie every day. She was given a mailbox at Mackie in the same area as Mackie’s agency and company drivers. She recalls receiving the March 9, 1999, issue of “Mackie on the Move” and recalls the article about the agency drivers forming a committee to form a contract negotiation group. She said when required to take time off, the rule of thumb for an agency driver is to call the company he or she is working for rather than the agency. Mackie controlled her working conditions.

[89] In cross-examination she said she left Professional Personnel on April 7, 1999, after seeing a newsletter about a possible shortage of work and lay-offs at Mackie. She worked for a week with a broker, Mr. Brian Snell, on a new team run to Indiana for Mackie, but Snell did not bid on the run when the bidding came up, so she was then approached by Mr. Murray Hammond, another broker at Mackie and was hired by him. She was told by Marcel Bélanger she would lose her agency seniority if she went to work for a broker. She was paid by Hammond and dealt with him in most respects. She worked for Hammond until he was told on September 3, 1999, by Marcel Bélanger of Mackie to take her off the truck. She testified that this occurred as a result of her becoming ill on a run and she called Mr. Hammond to see if he could cover for her. He initially told her he had no problem with this but called her back some 20 minutes later to say Marcel Bélanger had told him to take her out of the truck, permanently. After September 3, she waited two weeks for a meeting with Mr. Bélanger and was told she could drive part time for Hammond and part time for Mackie, but was never approached by anyone about when she could go back. Murray Hammond told her it would be up to Marcel Bélanger to decide if she would continue to be employed. No one ever called her.

[90] She was questioned in cross-examination about the Mackie work she did hauling GM products and asked if it was not GM who told her when to pick up a load; she replied it was Mackie’s dispatch. When pressed that the time window for deliveries was determined by GM she replied it was between GM and Mackie’s dispatch, but that she received her instructions from Mackie. She confirmed that when she worked through an agency she was paid by the agency. While there was a strong challenge to the credibility of Ms. Black, particularly respecting certain aspects of her evidence and attacking her reliability as an employee, in respect of the general particulars of her employment circumstances the Board found her evidence to be generally congruent with the other evidence before it such as that of Mr. Nelson and the evidence of Mr. Phil Meagher. That aspect of Ms. Black’s evidence respecting the circumstances in which she had purchased a Mackie uniform and Mackie’s policy on uniforms was challenged by the employer and found by the Board not to be credible. Additionally, the evidence adduced by the employer indicated that Ms. Black was not an exemplary employee.

[91] For instance, in direct examination, Ms. Black was asked about an incident that occurred while she was working for Murray Hammond driving one of his trucks for Mackie. She was asked by Phil Crozier of Mackie to come in to Mackie to speak to a lawyer concerning the “Randy Clements” incident. Mackie’s dispatch would not cover her load scheduled for the same time so she asked another driver, Mark, to bring the load to GM when he in turn neglected to drop the air ride and chalk the wheels, she received a letter of discipline as a result from Cal Murray of Mackie.

[92] She confirmed, however, that while she worked for Hammond, Mackie still controlled her working conditions, routes, hours of work and dispatch. The paperwork she completed was for Mackie.

[93] She confirmed a conversation with Sharon Dunn, Human Resources Manager at Mackie, concerning an attempt to get a meeting with Mackie management (Sullivan and Meagher) after Murray Hammond told her he had to let her go, and said Sharon Dunn told her any decision about continued employment would be made by Marcel Bélanger, Mackie’s Supervisor of Freight Operations. She said she had subsequently received offers of employment from four brokers and each was told by Marcel Bélanger to stay away from her. The brokers she mentioned were Gerald King, Rick Weiss, Gene or Jean whose last name she could not recall, and Brian Snell.

[94] She testified that she purchased a Mackie uniform at the Moving depot about two weeks after she started at Mackie. She suggested it was Mackie’s policy to require uniforms. She said she was issued a purchase order, and was reimbursed half of the cost by Mackie. As noted, the Board found that her evidence in this respect was not credible.

[95] Mr. Dan Parker also spoke about the conditions under which agency drivers are employed at Mackie although he has been directly employed with Mackie as a company driver since September 1990. He is currently a highway driver but has also worked as a city driver. He testified that when he undertook training with Mackie he trained alongside drivers supplied to Mackie by agencies. He said all drivers complete Mackie trip sheets and are all dispatched by Mackie. In April 1999 all drivers, including brokers and agency drivers were given bid sheets and given the opportunity to submit bids as part of a common process.

[96] Mr. Parker testified about a Mr. Gary Taylor who started work at the same time he did and who told him he was originally paid by Mackie but was advised by Mackie that the would have to shift to an agency. Mr. Taylor’s name is first on the Mackie Seniority List for Agency Drivers. Mr. Parker testified that bids were accepted from highest seniority to lowest and that Mackie’s Bid Rules and Regulations applied to all drivers, including agency drivers. All categories of drivers have mail slots at Mackie headquarters, and generally company drivers and agency drivers receive the same mail from Mackie.

[97] Mr. Parker indicated that he periodically wears a Mackie uniform. He was given a purchase order number by Mackie to purchase his uniform, and half the cost was deducted from his wages. Uniforms are mandatory in the HHG Division but he did not know if there were agency drivers in that division. He indicated that a good percentage of agency drivers wear Mackie uniforms. The evidence indicated that the wearing of Mackie uniforms was generally encouraged by Mackie, but not required.

[98] Mr. Parker testified that Mackie used to have a profit sharing plan that applied to all drivers including agency drivers, but it fell by the wayside. He was asked about a draft proposal by Mackie dated June 1998 to implement a bonus incentive plan that was to apply to all employees including agency drivers and brokers, and he said there had been a meeting (he was not certain when it was held) to discuss the proposal, but it had not been implemented.

[99] He testified that Mackie determines the rules for bidding, the lanes assigned and dispatch times, and that agency drivers and company drivers were treated the same way; they received their day-to-day direction from Mackie, were dispatched the same way by Mackie, drove Mackie trucks. He testified about a series of notices, directives and instructions from Mackie placed from time to time in drivers’ mailboxes that were addressed to all company, agency and broker-drivers, that address such issues as commercial vehicle inspection reports, temporary opening for drivers during a GM plant shutdown, the requirement for all drivers to purchase a mechanical alarm clock, accident reporting, mandatory training sessions, detention time reports, etc.

[100] Mr. Parker testified that it was mostly agency drivers who worked the night runs, probably because of seniority. He said all categories of drivers use Mackie’s lunch-room, and all generally receive invitations to attend company social functions such as dinners and picnics. He said both agency and company drivers were issued employee and PIN numbers to enable them to obtain fuel at Mackie’s pumps.

[101] In cross-examination, Mr. Parker confirmed that there were some bid runs which were restricted to owner-operators and some that were restricted to company and agency drivers. He confirmed that company drivers had first choice to bid on runs, but indicated that this was because they had more seniority than agency drivers.

[102] Mr. Parker also confirmed in cross-examination that his training had been conducted by Mackie and that he recalled seeing brokers at his training session. He indicated that he had no way of distinguishing who was a company driver, agency driver, or broker, unless he asked them.

[103] Mr. Murray Hammond, who is a non-driving vehicle owner who hires a number of drivers also testified. He indicated with respect to his having taken on Catherine Black as a driver, that he did so after she left her position as an agency driver on April 7, 1999. He indicated that contrary to what she testified to in direct testimony, Ms. Black had to be replaced on approximately 16 of her runs, for various personal reasons. Mr. Hammond corroborated her testimony that after she was let go by himself they jointly (himself, Ms. Black and Mr. Bélanger of Mackie) had an unfruitful meeting, and that he, Hammond, suggested to Mr. Bélanger after Black left the meeting that she work half time for Mackie and half time for him. He testified that Mr. Bélanger turned this down, as the Mackie dispatchers were not pleased with her work performance. However, he also said that Mr. Bélanger did not tell him that Ms. Black could not drive for Mackie.

[104] Mr. Hammond also testified concerning the level of direction he provided to Ms. Black during the time she drove one of his vehicles. He acknowledged that he would have no way of knowing if Ms. Black had run out of hours, i.e., exceeded the amount she could legally drive in a given period (over 80 hours in 8 days), as he would not get a copy of her log book. He said Mackie’s dispatch policed drivers in this regard and that agency drivers were generally dispatched in the same way as company drivers.

[105] Mr. Phil Meagher directed a portion of his evidence to agency issues. He testified that agency drivers generally work in the Freight Division and said that the function of agencies is to supply manpower services. He indicated that agencies do background checks on the drivers they supply such as driver abstracts, criminal record, etc. In response to certain documents demonstrating how the agencies billed Mackie for their services, he testified that the agencies supported their invoices with documents showing the work done for Mackie by the agency drivers, but that this information was originally provided to the agencies by Mackie in the form of time-cards and/or trip sheets completed by the drivers.

[106] Mr. Meagher said that Mackie organized all of its runs and put them up for bid. To make it fair to drivers they used the “in-service” date of the drivers such that those having the most service would be at the top of the list. He also testified that any drivers (company, agency, broker) may put their name on a list for extra work. The decision as to who gets the work is based on an order of precedence according to which company drivers have first choice, brokers second, and agency drivers last. The process of allocating work takes place directly between the agency drivers and Mackie, without going through the intermediary of the agencies.

[107] With respect to the memos and directives issued by Mackie to its drivers, including agency drivers, he testified that those instructions that had to do with deliveries at General Motors result from GM requirements and suggested that Mackie is obliged by GM to issue them. The inference from his suggestion was that these job requirements emanate from General Motors as much as Mackie. With respect to uniforms, Mr. Meagher said drivers who work on North American Van Lines runs are required to wear Mackie and NAVL uniforms. The drivers are given purchase orders by Mackie to pay for them and are deducted half the cost from their pay. He said there was no requirement for agency drivers in the Freight Division or for brokers to wear Mackie uniforms, although some did. At the time of the GM strike, some freight drivers worked on NAVL and HVP runs at which time they had been required to wear uniforms.

[108] Mr. Meagher also testified concerning a number of documents having to do with agency drivers that were filed with the Board on November 23, 1999, following a Board Order for production of documents. Mr. Meagher said that proposed bill rates are usually conveyed to Mackie by letter from individual agencies and are subject to negotiation. With respect to a number of directives and instructions issued to drivers, including agency drivers, by Mackie, Mr. Meagher acknowledged they originated from Mackie but explained that most of them did not really reflect Mackie control of the work since most of them are the result of requirements of outside forces, such as government agencies and GM. Certain other Mackie requirements imposed on the agencies he explained as only to ensure that proper paperwork is completed so Mackie can bill its customers. He was asked about a memo dated March 24, 1999, issued by Mackie to its drivers addressing among other things the formation of a committee of agency drivers. He testified that this was a Mackie initiative to hear concerns and ideas from agency drivers, with a view to improving Mackie’s business. He also confirmed that Mackie keeps a seniority list of agency drivers, referred to in the same document as the "Consolidated Agency Service Dates," which is used to allocate successful bids for Mackie runs by agency drivers. The same document also refers to a Quality of Working Life Survey conducted annually by Mackie among all Mackie drivers, including agency drivers. Mr. Meagher explained that the purpose of this survey is to enable Mackie to get a feel from employees of their concerns, on how they feel Mackie is performing as a company, what things Mackie could do to improve.

[109] Mr. Meagher also testified as to a series of letters all dated April 9, 1999, addressed to the staffing agencies advising them of individual drivers, by name, whose services would no longer be required. Mr. Meagher explained that these letters resulted from Mackie losing some business as a result of the bid process.

[110] Mr. Meagher also testified about letters from Mackie dated August 11, 1998, and January 27, 1999, disciplining agency drivers. Importantly, a letter dated February 27, 1998, from Mackie, advised the staffing agencies generally to increase the pay of agency drivers.

[111] Other matters testified to by Mr. Meagher concerned training sessions put on by Mackie for its drivers which included agency drivers, the fact that agency drivers have user IDs and PIN numbers to enable them to fuel up at Mackie’s fuelling facility, and the fact that Mackie’s agency drivers along with its company drivers are invited to an annual safe driver banquet put on by the local Transport Safety Association.

[112] Mr. Meagher also confirmed that all of Mackie’s drivers including agency drivers complete their trip sheets the same way. In the case of agency drivers, as indicated previously, their hours and mileage are recorded in trip sheets provided to Mackie; Mackie in turn turns them over to the agencies to enable them to invoice Mackie for the drivers’ services.

[113] Mr. Meagher suggested that Mackie had no control over or responsibility for hours worked by the agency drivers, nor over payroll costs, benefits, pay, premiums to the Workplace Safety and Insurance Board, drug testing, screening employees prior to hiring, issuing tax information, etc.

[114] In cross-examination, with respect to the letter of April 9, 1999, to the agencies identifying the individual agency drivers whose service they would not require, Mr. Meagher indicated that Mackie decided the reduction would be based on the in-service date. He confirmed that the agencies recruit the agency drivers and do the initial assessment of their qualifications, but agreed that Mackie provides their road tests. If they pass the road test, they are put at the bottom of the service list. He said the practice of using the in-service dates for assignment purposes resulted from a meeting with the brokers committee and was imposed unilaterally by Mackie on the agency drivers, in order to be fair to the agencies. He confirmed that Mackie determined how the working hours were distributed or divided among the work-force, that the way in which runs are assigned by Mackie dispatchers to agency drivers is generally the same as they are assigned to company drivers, that the paperwork completed by agency drivers is the same as by company drivers and brokers and is required to be done for or on behalf of Mackie; it includes trip sheets, Ryder paperwork and bills of lading, signed by the driver as a representative of Mackie.

[115] With respect to disciplining agency drivers, Mr. Meagher confirmed that the process is generally the same as for company and agency drivers, with the exception that the agency is advised by Mackie and the agency then imposes the discipline. He confirmed that agency drivers are generally encouraged to wear Mackie uniforms and that Mackie will pay generally 50% of their cost. With respect to the “Mackie Seniority List for Agency Drivers,” Mr. Meagher confirmed this was the list used for bidding purposes and shows the agency drivers’ in-service date with Mackie (i.e., it is not related to the employees service with the agency). Asked why the list contains telephone numbers and not addresses, Mr. Meagher explained that this was so Mackie could call the agency drivers directly without bothering the agencies.

[116] In argument, counsel for the Teamsters maintained that Mackie is the “real” employer of the agency drivers. Mackie assigns the work, decides on hours worked, decides on routes. It was argued that there was at least some evidence that Mackie set the rates of pay. The agency drivers bid for work based on their seniority at Mackie according to a bidding system implemented by Mackie, they drive Mackie trucks and use Mackie fuel, they use ID and PIN numbers provided by Mackie, in short, Mackie primarily controls their work life and how much they get paid. They are tested by Mackie, attend training courses put on by Mackie, and are subject to discipline by Mackie. Once hired by Mackie, they rarely have contact with the agency, but are in regular day-to-day contact with Mackie and are integrated into its work-force. They receive the same Mackie communications and directives as the company drivers.

[117] Counsel cited the decision in Pointe-Claire (City) v. Quebec (Labour Court), [1997] 1 S.C.R. 1015 and argued that on the present facts the “agency” employees are more directly Mackie employees since the relevant agency drivers are assigned to Mackie on an indeterminate basis. Counsel suggested that on the present facts the agencies only deal with ensuring prequalifications and that they in effect act merely as hiring halls. It was suggested that the relevant employees act as representatives of Mackie and not of the agencies in carrying out their work.

[118] Counsel for Mackie and counsel for the agencies themselves argued that the Board should take a different view of the agencies than it had done in the past. They argued that the current situation was distinct in that the agencies provide a service that is particular to Oshawa. That service it was argued is to provide drivers to all companies that run trucks to General Motors, and, it is argued, such a service is not analogous to that of an agency as was the case in Pointe-Claire (City) v. Quebec (Labour Court), supra. It is suggested that the agencies operate to meet the ever changing demands of the customers, and the allocation of lanes and the availability of work is as much under the control of the customers, particularly that of General Motors, as it is under Mackie’s control.

[119] Mackie’s counsel stressed the concerns that had arisen concerning the testimony of Ms. Black. He suggested that if her evidence was disregarded, there was no evidence that agency drivers were required to wear uniforms, nor any evidence that the work of agency drivers was supervised at all by Mackie in the sense of day-to-day direction and control. As indicated in the above recitation of facts, the Board did disregard certain of Ms. Black’s evidence but cannot completely agree with the suggested assessment of the evidence as is noted below. There was substantial evidence of direction and control from the evidence of Mr. Nelson, Mr. Parker, Mr. Meagher and even Mr. Hammond. Counsel argued that the lanes, the times, the trips, the delivery windows, etc. were decided not by Mackie but by GM He stated that conditions imposed by GM were applied in a uniform fashion by Mackie on all of its drivers without distinction, brokers, company drivers or agency drivers. He argued there was no evidence that Mackie had ever disciplined an agency driver. He stated the road and safety requirements that Mackie had to meet were imposed by the government. He said Mackie had no control over what agencies paid their drivers. With respect to the April 9 list of agency drivers whose services would not be required, he argued this was because the agencies asked to be informed in advance and had nothing to do with Mackie telling the agencies who to hire and fire. Mackie’s position in argument was that when viewed in its entirety, control and direction over the agency drivers did not rest with Mackie but with the agencies, regulating governments, Ryder and GM.

[120] The representative of Professional Personnel argued that Professional was responsible for the selecting, hiring, training and discipline of the relevant employees. He too, suggested there were several different levels of supervision, mostly by GM and government agencies and that in reality, the drivers, who were mostly on the road away from the Mackie premises, supervised themselves. The agencies he contended pay for all employee costs, including statutory holidays. Additionally, the representative of Professional underlined evidence that had been introduced, that to some extent Professional had supplied equipment to Mackie as well as individual employees.

[121] Counsel for Adams Services and Selective Staffing indicated his agreement with the argument put forward by Mackie and Professional Personnel. He reiterated that the agencies were responsible for recruitment, including placing ads and screening employees and issuing Records of Employment for termination. He acknowledged that Mackie offers training updates, but the agencies provide all other human resources services, such as all remuneration, health and welfare plans, etc.

[122] In rebuttal, counsel for the applicant argued that the case had to be determined on the basis of the tests set out in the authorities. Counsel suggested that it was Mackie who had control over the work of the agency drivers. It was not the agencies, nor could it be GM or the government agencies who in fact exercised such control. Counsel stressed that the agencies provided drivers on a long term and not on a casual basis, and that the drivers became economically dependent on Mackie. Employees, it was suggested, punch in their time at Mackie, submit time sheets to Mackie and receive directives and communiqués from Mackie. They are directed and supervised through the Mackie dispatch office.

[123] In the circumstances, the Board must determine who the employer of the agency drivers is for the purposes of the Code. Is the employer, for the purposes of the Code, the agency which refers them to Mackie, or is it Mackie, the company to which they are assigned? It must also be considered whether GM could be characterized as the employer in the circumstances. The relevant provisions of the Code are:

3.(1) In this Part,

...

“employee” means any person employed by an employer and includes a dependent contractor and a private constable, but does not include a person who performs management functions or is employed in a confidential capacity in matters relating to industrial relations;

“employer” means

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

...

16. The Board has, in relation to any proceeding before it, power

...

(p) to decide for all purposes of this Part any question that may arise in the proceeding, including, without restricting the generality of the foregoing, any question as to whether

(i) a person is an employer or an employee, ...

[124] In cases such as this one where there exists a tripartite relationship and there is disagreement as to where the true employer-employee relationship lies in such a context, labour relations tribunals have frequently taken the view that the essential test for determining who the employer is lies in the determination of who has fundamental control and direction over the employees.

[125] This test has generally been endorsed by the Supreme Court of Canada if it is applied in a perspective which takes a somewhat more comprehensive view of the employer-employee relationship in tripartite and other complex relationships and addresses and balances a variety of considerations in identifying the employer with fundamental control and direction. While the predecessor Board to the Canada Industrial Relations Board (the Canada Labour Relations Board), in tripartite circumstances generally concluded that the client (here Mackie) was the temporary employee’s real employer, in some cases the personnel agency or supplier of employees was found to actually have had the attributes of an employer. In the present case it was also seriously argued that GM had many of the attributes of the employer. However, what is clear is that in each case, the Board must take a balanced, comprehensive view of the issue in its consideration of who is the employer with fundamental control and carefully weigh all relevant factors in determining who is the employer for the purposes of the Code. Although the Supreme Court was not considering the Code in the Pointe-Claire (City) v. Quebec (Labour Court), supra, its views in that decision are nevertheless instructive as concerns the appropriate test to apply:

In Vassart, unlike in Centre d’accueil M^gr Coderre, the judge did not reject the notion of actual control or legal subordination. Rather, the Superior Court took a more balanced approach. While acknowledging that the criterion of actual control was relevant, Grenier J. added that any analysis that relied solely on that test to identify the real employer would be an overly narrow approach.

I agree with the more comprehensive approach proposed by Grenier J. in Vassart for identifying the real employer in tripartite relationships. This was also the approach taken by the majority and dissenting judges of the Court of Appeal in the present case. Rousseau-Houle J.A. stated the following for the majority of the Court of Appeal (at p.1674):

“[TRANSLATION] Day-to-day control over the work done is therefore only one factor in determining the employer. The selection process, hiring, discipline, training, evaluation, assignment of duties and the length of time the services are provided are all elements to be considered when it must be determined who the real employer is in a tripartite relationship.”

Deschamps J.A., dissenting in the result, proposed the same type of more liberal approach involving the consideration of a number of factors to determine the real employer in a tripartite relationship (at pp. 1678-79):

“[TRANSLATION] It seems improbable to me that a client using the services of a temporary personnel agency would end up being the employer of the agency’s employees simply because it controls the work that is to be done every day. This reduces the concept of ‘employer’ to insignificance and ignores reality, which calls for a much more comprehensive view. The factors that must be considered include not only recruitment, selection, training, remuneration and discipline, but also integration into the business, continuity of employment and the employees’ sense of belonging. I cannot conceive of an employer-employee relationship that involves none of these aspects.

The concept of ‘legal subordination’, a term that was used by the Labour Court, actually involves, in its view, merely the day-to-day supervision of the performance of work. The concept of legal subordination thus simplified is therefore totally inadequate to characterize the tripartite relationship that exists among the agency, its client and the employee.”

According to this more comprehensive approach, the legal subordination and integration into the business criteria should not be used as exclusive criteria for identifying the real employer. In my view, in a context of collective relations governed by the Labour Code, it is essential that temporary employees be able to bargain with the party that exercises the greatest control over all aspects of their work - and not only over the supervision of their day-to-day work. Moreover, when there is a certain splitting of the employer’s identity in the context of a tripartite relationship, the more comprehensive and more flexible approach has the advantage of allowing for a consideration of which party has the most control over all aspects of the work on the specific facts of each case. Without drawing up an exhaustive list of factors pertaining to the employer-employee relationship, I shall mention the following examples: the selection process, hiring, training, discipline, evaluation, supervision, assignment of duties, remuneration and integration into the business.

(ii) Canadian Cases

In applying collective labour relations legislation that is similar to that in Quebec, Canadian administrative agencies have also dealt with how to identify the real employer in a tripartite relationship. Most of the decisions of those agencies, and specifically the Ontario Labour Relations Board (“OLRB”) and the Canada Labour Relations Board (“CLRB”), have noted that the essential test for identifying an employer-employee relationship in a tripartite context is that of fundamental control over working conditions. The application of the fundamental control test leads to an analysis of which party has control over, inter alia; the selection, hiring, remuneration, discipline and working conditions of temporary employees and to a consideration of the factor of integration into the business. In the final analysis, the application of the fundamental control test involves an examination of a series of factors that are similar to those suggested by the comprehensive approach set out in Vassart and in the Court of Appeal’s decision in the instant case.

In applying the fundamental control test, the OLRB and the CLRB have generally concluded that the client is the temporary employee’s real employer. See, for example: Labourers’ International Union of North America, Local 183 v. York Condominium Corp., [1977] O.L.R.B. Rep. 645; Hotel and Club Employees’ Union, Local 299 v. Sutton Place Hotel, [1980] O.L.R.B. Rep. 1538; United Electrical, Radio and Machine Workers of Canada v. Sylvania Lighting Services, [1985] O.L.R.B. Rep. 1173; National Automobile, Aerospace and Agricultural Implement Workers Union of Canada v. Nichirin Inc., [1991] O.L.R.B. Rep. 78; Labourers International Union of North America, Local 607 v. Grant Development Corp., [1993] O.L.R.B. Rep. 21; International Brotherhood of Electrical Workers, Local 586 v. Dare Personnel Inc., [1995] O.L.R.B. Rep. 935; Nationair (Nolisair International Inc.) (1987), 70 di 44. However, Canadian administrative agencies have not reached this conclusion systematically. In some decisions, the factual situation led the OLRB and the CLRB to find that it was the personnel agency or supplier that actually had the attributes of an employer. See, for example: United Brotherhood of Carpenters & Joiners of America, Local Union 93 v. Templet Services, [1974] O.L.R.B. Rep. 606; United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 819 v. Tower Company (1961) Ltd., [1979] O.L.R.B. Rep. 583; Nolisair International Inc. (Nationair Canada) (1992), 89 di 94.

(pages 1046-1048)

[126] The Nationair decision of the predecessor the Canada Labour Relations Board (Nationair (Nolisair International Inc.) (1987), 70 di 44; and 19 CLRBR (NS) 81 (CLRB no. 630) may also usefully be referred to in taking the required comprehensive approach. That case lists a number of criteria or factors to be examined in the context of a specific case to enable a determination to be made:

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 in fact determines and approves the standards governing the performance of the work? In this regard, who has the last word, the final say? It is 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.

(pages 74-75; emphasis added)

[127] In approaching the current situation and considering the issue of fundamental direction and control from a broad, comprehensive, perspective, an analysis of the facts presented to the Board, by way of documentation and by viva voce evidence, reveals the following:

1. Payment of Wages and Benefits

[128] According to Mr. Meagher’s testimony, Mackie has generally not entered into written contracts with the agencies that refer drivers to it, with the exception of the agency that provides drivers for its auto hauling operation in New Brunswick, Advantage Personnel Ltd. Generally, Mackie negotiates individually with each agency following receipt in writing of their proposed bill rates.

[129] The following may be generally deduced from the information available to the Board. While it is clear that agency drivers receive their wages from the agencies, it is also clear that the cost of these wages is borne by Mackie. Copies of invoices sent to Mackie by the agencies reveal that Mackie is invoiced on a regular basis according to the number of hours worked and/or miles driven by each driver during the billing period, according to the bill rate charged by the agency. The name of each driver who worked during the billing period is shown on the invoice as well as the number of hours worked and/or miles driven by each driver. The bill rate charged to Mackie by the agency covers the wages that will be paid by the agency to the driver, plus the agency’s costs for such things as vacation pay, pay in lieu of statutory holidays, remittances for employment insurance (EI), Workplace Safety and Insurance Board, Canada Pension Plan (CPP), benefit plans, and costs for drug testing, etc. There is also an amount built in to the bill rate to cover the agency’s overhead costs and to provide a profit margin. The arrangement between Mackie and the agencies is what is in substance a “cost plus” arrangement, and the amounts invoiced to Mackie by the agencies are directly proportional to the amount of work performed by the agency drivers which, as will be seen later, is controlled by Mackie.

[130] Evidence was led to the effect that the information on actual hours and miles to be invoiced to Mackie was provided to the agencies by Mackie, which the latter extracts from time-cards or trip sheets completed by the agency drivers and submitted by them to Mackie. Mackie is also charged by the agencies for waiting time above a certain minimum spent by drivers if a load is not ready at the appointed time. This information is also provided to the agencies by Mackie.

[131] Drivers testified that they were paid from the time they punch in at Mackie to the time they punch out, including non-driving time, that Mackie determines the maximum amount the agencies can pay their drivers, and that all agency drivers receive the same rate of pay regardless of which agency they are affiliated with. Although this latter statement was denied by the employer, on balance the Board accepts this evidence. There is documentary evidence which tends to corroborate the testimony of the drivers in the form of a memorandum dated February 27, 1998, from Mackie to four agencies instructing them to simultaneously increase the pay of their drivers by .25 cent per hour and .01 cent per mile.

2. Access to Employment

[132] In Nationair (Nolisair International Inc.), supra, the Board stated that: “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 Board also balanced this statement by saying that: “The lessee who retains or exercises a veto or the equivalent over the selection of personnel is certainly not extraneous to the employment relationship.” To this, the Board would add the exercise of a veto over the retention (in addition to the selection) of personnel.

[133] The evidence revealed that the agencies were responsible for recruiting, screening, initial testing such as ensuring valid commercial drivers’ licenses, current drivers’ abstracts, doing criminal records searches for drivers travelling to the US, medical testing, testing for and issuing Dangerous Goods Handling Certificates, testing for general driving knowledge, reference checks, drug and alcohol testing, etc. While these services do show that certain personnel services were performed by the agencies, there is evidence of control of the working environment by Mackie. Once a potential agency driver is referred to Mackie, he is given a road test by Mackie. A new driver may also be required by Mackie to undergo special training. In this respect Mackie does exercise a significant element of control over the actual employment of those hired. Mackie has the final say as to whether an agency driver will be accepted or not.

[134] Mackie has a clear and apparently dominant role in discipline. Documentary and testimonial evidence reveal that Mackie has issued written warnings and disciplinary letters to agency drivers and has even instructed agencies to terminate the employment of some, and has also instructed agencies that the services of certain named individual employees would no longer be required. It is thus apparent that Mackie exercises fundamental control over which agency drivers are retained in employment and over their work while employed. Were it not so, Mackie would be satisfied so long as the agencies provided its necessary complement of qualified drivers and would be indifferent as to who these drivers were.

[135] In shortage of work situations, it is Mackie that has decided who, among the agency drivers, will be retained and who will be let go, on the basis of a seniority list comprising all agency drivers, established and maintained by Mackie.

3. Establishment of Working Conditions

[136] Oral evidence in this regard was contradictory, the employees testifying that their working conditions were established by Mackie, and certain of the employer’s witnesses testifying that this was the responsibility of the agencies. By working conditions for the purpose of the present analysis, the Board is referring to conditions that are part of the agency drivers’ remuneratory package, such as wages, working hours, vacations, holidays, and other benefits, as opposed to on-the-job working conditions which will be examined below in the analysis of the “control” factor.

[137] We have already seen above that Mackie exercises a strong degree of influence, if not outright control, over the agency drivers’ rate of pay. As to hours of work, the evidence reveals this is controlled by Mackie’s dispatch system. Drivers are given a starting time by dispatch and are paid for the hours scheduled by Mackie. The drivers have no contact with the agencies in this regard. Mackie determines the rules for bidding, the lanes assigned to individual drivers, and their dispatch times. Drivers may sign up for extra work, and this process is controlled by Mackie’s dispatch system and takes place directly between Mackie and the agency drivers without the involvement of the agencies.

[138] Testimony revealed that Mackie once had in place a profit sharing plan that applied to all drivers including agency drivers. Mackie had also proposed the implementation of a bonus incentive plan that would have applied to all employees including agency drivers.

[139] Evidence revealed that the only other benefits received by the agency drivers are vacation pay and statutory holiday pay, both of which are required by statute, and some agencies provide group health and dental insurance plans the cost of which is borne by the agency up to a certain level of coverage and by the driver over that level. In the absence of written contracts between Mackie and the agencies, it is not known if all agencies have such plans and if they provide the same level of coverage. All of these costs to the agencies are built-in to the bill rates charged to Mackie and are ultimately borne by it.

4. Performance and Control of Work

[140] The decision in Nationair (Nolisair International Inc.), supra, identifies a number of criteria that should be examined under this heading, including who assigns the work, who determines and approves the standards of performance governing the work, what expertise does the agency have with respect to the work performed, what is the degree of similarity with the work performed by direct employees, etc. To these criteria, the Board includes the two elements of (i) direct control over the work performed, and (ii) ownership of equipment used by the employees in the performance of the work.

[141] We have already determined above that Mackie controls the assignment of work through its dispatch system and communicates directly with the agency drivers in this regard; the agencies are not involved in this process to any extent whatsoever. Employees receive all their instructions having to do with the performance of their duties from Mackie, both written and verbal. The Board has examined a series of written directives issued by Mackie to all drivers including agency drivers, covering such matters as mandatory training sessions; the completion and routing of a variety of paperwork including vehicle inspection reports and trip sheets; the placement of service tags on their vehicles; occurrence reports; instructions concerning New York State E-Z pass tolls; disciplinary notices; etc., and including a notice instructing drivers that they were required to have a mechanical alarm clock in their truck failing which they would not be dispatched. Agencies play no significant role in the direction of the day-to-day performance of the work and the Board heard testimony to the effect that once assigned to Mackie, some drivers will have no formal contact with the agency for months on end. All communications, including breakdowns, accidents, delays are with Mackie. The agency drivers generally, with a few exceptions in the case of Professional, drive trucks owned by Mackie and the trucks are equipped with satellite communication systems provided by Mackie which enable the drivers to keep in communication with Mackie’s dispatch. Fuel for the trucks is provided by Mackie. The cost of uniforms is generally paid for by purchase orders issued by Mackie, although drivers must reimburse 50% of their cost; such reimbursement applies to all drivers, including drivers directly employed by Mackie. There is no difference in the manner in which work is assigned and controlled as between the agency drivers and the drivers directly employed by Mackie, the only exception being that Mackie drivers have priority over bidding for runs.

[142] Although the Board was told that contracts between Mackie and the agencies governing the assignment of the Ontario drivers were generally not available, it does have a copy of the contract between Mackie and Advantage Personnel Ltd. governing Mackie’s operation in New Brunswick. This contract does shed some light on the degree of control exercised by Mackie on the agency drivers in that operation, and in that it may be presumed that at least the document is generally reflective of the level of control which Mackie would wish to maintain.

[143] Article 1.01 of that contract provides that “Advantage undertakes to supply from its approved list, the number of drivers required.” The word “approved” implies that Mackie would generally wish to exercise some kind of final choice over which drivers it will accept in its service.

[144] Article 1.07 states that “the Customer (Mackie) shall have the right to demand at all times ... to examine and inspect Advantage’s employee records in respect to a driver provided pursuant to this Agreement.”

[145] Article 2.00 specifies that “the Customer (Mackie) shall remain solely responsible for maintaining operational control over the transport operation performed by the drivers provided pursuant to this Agreement ... the Customer shall bear ultimate responsibility for scheduling and dispatching.”

[146] Article 2.02 provides that “Advantage shall terminate the assignment of a driver supplied by it to the Customer after receipt of a Notice in writing from the Customer.”

[147] Article 2.03 provides that “the Customer agrees to hold harmless Advantage for any and all loss, damage or liability arising out of the operation of the Customer’s vehicles or cargo contained therein.”

[148] Article 2.04 provides that vehicle insurance is provided by Mackie.

[149] Article 2.05 provides that “The Customer (Mackie) will assume responsibility for driver’s [sic] compliance with various Transport Boards.”

[150] Article 3.01 specifies that “The Customer will pay the contractor for the services provided in accordance with ... schedule ‘A’.” Schedule “A” was not attached to the copy of the contract made available to the Board.

[151] The Board has no reason to believe that even in the absence of written contracts with the agencies providing drivers for its Ontario operation, Mackie would exercise less control than that provided in the contract governing its New Brunswick operation. In fact, the evidence generally indicated that the contract provisions cited reflect the degree of control that Mackie generally does exercise.

5. Other Criteria

[152] Other pertinent factors would include the employees’ identification with the company, their degree of integration, the temporary or permanent nature of their employment, etc.

[153] The Board heard testimony that agency drivers are treated identically by Mackie to its directly employed drivers. They all receive the same training, they are all given ID and PIN numbers to access Mackie’s fuel pumps, they are dispatched the same way, drive trucks owned by Mackie, receive the same instructions and directives, use the same lunch-room, and are occasionally invited to attend company social functions. Some of them choose to wear Mackie uniforms even though this is not a requirement, an indication of their identification with Mackie. The continuity of employment with Mackie is also important. The seniority list maintained by Mackie for agency drivers indicates that some of them have been with Mackie since 1993 and one part-time driver has been with Mackie since 1982. Of the total complement of 99 agency drivers considered to have been employed on the date of application, more than half have an in-service date preceding January 1998. It is clear to the Board that the body of work to which the agency drivers are assigned resides permanently with Mackie, and not with the agencies.

[154] It should be recalled that Mr. Phil Meagher of Mackie testified that the primary function of the agencies was to supply manpower services. Drivers testified as to the recruiting and screening functions performed by the agencies, and one of the agencies, Adams Services, described its functions as follows in paragraph 5 of its reply to the application dated May 14, 1999:

(i) The Intervenor manages and administers to all advertising for employees, recruitment, screening, reference checks, interviewing, hiring, offers of employment, orientation, training, assigning to runs, supervising while on runs, counselling, discipline, preparing letters of recommendation, preparing confirmation of employment and employment status letters, controlling of sick leave requests, personal leaves of absence, vacation and driver absence replacement, on a regular and consistent basis.

(ii) The Intervenor is also solely and unilaterally responsible for the managing and overseeing of the currency and status of, for example, employee commercial licences, employee driver abstracts, employee criminal record searches, pre-employment medical authorizations, pre and post-employment drug testing, testing and all issues with respect to transportation of dangerous goods, client specific training as, for example, necessary in response to ISO9, 002.

(iii) In addition, the Intervenor negotiates with drivers their pay rates (on an hour/kilometres basis), and manages and administers all aspects of each employee’s payment and benefits program, is responsible for and co-ordinates all source deductions and remittances of a both a statutory and court ordered nature together with the issuing of all relevant taxation information including but not limited to T4's as well as the issuing of records of employment. Also, the Intervenor is responsible to all of its employees with respect to payment for hours worked and/or kilometres driven by the employee and in this regard appropriately bills each of its respective corporate clients with respect to same.

(iv) The Intervenor also is registered with the appropriate government agencies for the purpose of, for example, GST, employer health tax, the Workplace Safety and Insurance Act, as well as Revenue Canada;

(v) The Intervenor is managing and directing its employee group provides drivers with Intervenor business cards, pens, and further sponsors Christmas and recognition programs such as annual Christmas draws and the provision of gift certificate vouchers.

[sic]

[155] The functions described above closely parallel those described in the reply of Professional Personnel dated May 6, 1999. The Board is of the view that these functions are typical to a lesser or greater degree for all of the agencies that assign drivers to Mackie, and are analogous to those that would normally be carried out in-house in most organizations by a Human Resources or Personnel Department. As has been demonstrated, the more immediate control and direction over the day-to-day performance of work by the agency drivers rests with Mackie.

[156] In Northern Television Systems Ltd. (1976), 14 di 136; and 76 CLLC 16,031 (CLRB no. 64), the Board reiterated that the identity of the real employer will depend upon who is found to exercise control over the various elements essential in constituting an employer-employee relationship. This was further emphasized in MacCosham Van Lines Limited (1979), 34 di 716; and [1979] 1 Can LRBR 498 (CLRB no. 177), where the Board said:

There are legal responsibilities which devolve upon an employer under the Code regardless of the existence of any bargaining relationship but which increase or become more intensely focused where an attempt is made to establish such a relationship ... The Board, in its determination of the identity of the employer, attaches less weight to documents, declarations, statements and arrangements made for purposes unrelated to the formation and maintenance of an employment relationship than evidence of actual control over the employees.

We conclude that the employees’ involvement with Temp. Core Ltd. has few of the appearances and none of the realities of an employer-employee relationship. The respondent is clearly the employer in this case. It has merely assigned some of its administrative functions in the payroll area to a contractor for business reasons. It has assigned none of its managerial authority and maintains actual control over all of the criteria required to establish and maintain the relationship. In particular, the respondent remains the decision making entity for the purposes of collective bargaining. The identity of the person to whom a bargaining agent must look for a response to its proposals or an answer to its grievances is basic to the determination of who is the employer. As a practical matter collective bargaining should be carried on between a bargaining agent, and an employer who possesses both authority and knowledge with respect to the activities of the employees in the bargaining unit. In this case the respondent exercises control over all significant matters relating to employment of the members of the proposed bargaining unit and is their employer.

(pages 721; and 502; emphasis added)

[157] The same rationale was used by the Board in Economy Carriers Limited et al. (1991), 86 di 209 (CLRB no. 910):

... Our problem here is that a group of employees have indicated a desire to participate in collective bargaining and it is our task to determine who, if anybody, is to sit on the other side of the bargaining table. This is why the Board has developed the criteria set out in Northern Television Systems Ltd., supra, and Nationair (Nolisair International Inc.), supra. It is to identify the real employer to ensure that the collective bargaining will be meaningful. ...

(page 218; emphasis added)

[158] In Nationair (Nolisair International Inc.), supra, the Board reiterated that the underlying purpose of Part I of the Canada Labour Code, as stated in its preamble, is to facilitate access to collective bargaining. The following excerpt from that decision is worth repeating:

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:

“The Board cannot be satisfied with cosmetic solutions; the consequences of certification are far-reaching. It would be harmful and contrary to the spirit of the Code if the Board were to certify a group of employees who would never be able to create a balance of forces in their relations with their real employer. There is an old civil law maxim to the effect that one cannot give someone something and at the same time keep what one has given. The Board has trouble accepting the fact that the services of employees could be contracted out permanently to a third party and at the same time be considered to have been retained when these employees seek certification. The Board finds it even harder to accept that this could occur without creating some significant employment relationship between this third party and the contracted out employees. To accept such an argument without positive proof that no such relationship exists would, in the Board’s opinion, offend against the spirit of the Code. ...

(Maska Manpower Inc., supra, page 204; emphasis added)”

(pages 75; and 111; emphasis added)

[159] In Pointe-Claire (City) v. Quebec (Labour Court), supra, then Chief Justice Lamer speaking for the majority also stated considering the facts of that case:

Judge Prud’homme acknowledged that the agency recruited, assigned positions to, evaluated, disciplined and paid the temporary employees. However, by focusing on the question of which party had control over the temporary employee’s working conditions and the performance of her work, he concluded that the City was Ms. Lebeau’s real employer.

...

In addition to considering the criterion of control over Ms. Lebeau’s day-to-day work and her general working conditions, the Labour Court looked at other aspects that define the employer-employee relationship, namely wages, discipline and the feeling of integration into the business.

With respect to wages, the judge noted that although Ms. Lebeau’s wages were paid by the agency, they were entirely dependent on the number of hours she actually worked for the City. Moreover, Ms. Lebeau’s wage rate varied depending on her position with the City. According to the judge, the City therefore had a role to play in determining her wages, which correspondingly lessened the impact of the agency’s authority over that traditional element of the employer-employee relationship.

I shall add two important elements that show that the criterion of remuneration was not determinative in this case. First, according to the evidence, a temporary employee was not paid unless he or she was assigned to work for one of the agency’s clients. Thus, between her two work assignments with the City, that is, during the 1990 holiday season, Ms. Lebeau was not paid at all by the agency. Second, the definition of “employee” in the Labour Code does not specify who must pay the employee. The source of remuneration is therefore not conclusive in identifying the employer, because the statute does not mention it. To be covered by the Labour Code, the employee need only receive financial compensation in the form of wages. This was the position taken by the Labour Court in Messageries dynamiques, supra, at p. 435; Syndicat des fonctionnaires provinciaux du Québec Inc., supra, at . p. 355; and Syndicat des professeurs du Québec, supra, at p. 318. In actual fact, the City bore the financial burden of Ms. Lebeau’s wages even though the agency actually paid those wages to the temporary employee. Thus, both entities, the agency and the City, could be seen as the employer since the former paid Ms. Lebeau’s wages directly while the latter bore the cost of those wages by fully reimbursing the agency for them on the basis of the hours she worked and paying an additional amount for the agency’s services. Whenever the legislature has wanted to make the paying of remuneration to an employee probative in identifying the employer, it has made this intention explicit. Thus, the definitions of “employer” in the Act respecting the Québec Pension Plan, R.S.Q., c. R-9, and the Taxation Act, R.S.Q., c. I-3, both specify that the employer is the person who pays the wages:

...

It is therefore not patently unreasonable that the Labour Court did not give predominant weight to the fact that the agency paid the temporary employee’s wages. Since both parties had a role to play with respect to Ms. Lebeau’s wages, those wages could not be a decisive criterion for identifying the real employer.

With respect to discipline, Judge Prud’homme acknowledged that the City had to inform the agency if it had any grounds for complaint against Ms. Lebeau. However, the judge also noted that the only possible disciplinary action would have been for the agency to remove Ms. Lebeau from her work assignment. The agency did not have a system involving a continuum of penalties or a disciplinary system such as is normally found in businesses. Moreover, Judge Prud’homme noted that the agency would not have taken disciplinary action in a vacuum: since it had no authority over Ms. Lebeau’s day-to-day performance of her work, the agency would have had to be notified first by the City that there was some problem with the employee. Once again, the City was not uninvolved in this additional component of the employer-employee relationship. For these reasons, the Labour Court did not give predominant weight to the criterion of discipline.

...

In my view, the Labour Court’s reasoning is not patently unreasonable. It used a comprehensive approach by not basing its decision solely on the criterion of legal subordination. The approach taken is not inconsistent with the analytical framework set out in Vassart or in the Court of Appeal’s judgement in this case. Judge Prud’homme certainly gave greater probative value to working conditions and the criterion of legal subordination, but he also considered other factors that define the employer-employee relationship, such as the role of the agency and the City with respect to remuneration and discipline, and the specific facts of Ms. Lebeau’s case. Nor did Judge Prud’homme ignore the agency’s role in recruiting, training and evaluating Ms. Lebeau. However, he justified giving predominant weight to working conditions and the legal subordination test by relying on the ultimate objective of the Labour Code. According to the judge, working conditions are [TRANSLATION] “essential aspects of an employee’s experience” and not “trivial matters” (p. 10). Indeed, the purpose of certification is to promote bargaining between the employer and the union in order to determine the employees’ working conditions. Moreover, the Labour Court is a highly specialized agency with expertise in labour law, and is protected by a privative clause. For these various reasons, I conclude that the approach taken by the Labour Court was not patently unreasonable and that the Court of Appeal did not err in reaching a similar conclusion.

...

I am aware that the arrangement is not perfect. However, it must not be forgotten that the relationship in question here is not a traditional bipartite relationship but a tripartite one in which one party is the employee and the other two share the usual attributes of an employer. In such a situation, it is natural that labour legislation designed to govern bipartite situations must be adjusted in some ways. The Court is dealing with a decision of a highly specialized tribunal that has significant labour law expertise. Like the Court of Appeal, I cannot unjustifiably override the private clause, which protects the Labour Court’s decision, in order to interfere in the world of labour and its organization and checks and balances unless there has been a patently unreasonable error. After analysing the facts of this case, the legislation and the cases, I conclude that there is a basis for the Labour Court’s decision in the Labour Code and the evidence and that it is therefore not patently unreasonable.

Unfortunately, tribunals and courts must often make decisions by interpreting statutes in which there are gaps. The case at bar shows that situations involving tripartite relationships can cause problems when it comes to identifying the real employer if the labour legislation is incomplete in this regard. The tripartite relationship does not fit very easily into the classic pattern of bilateral relationships. The Labour Code was essentially designed for bipartite relationships involving an employee and an employer. It is not very helpful when a tripartite relationship like the one at issue here must be analysed. The traditional characteristics of an employer are shared by two separate entities - the personnel agency and its client - that both have a certain relationship with the temporary employee. When faced with such legislative gaps, tribunals have used their expertise to interpret the often terse provisions of the statute. In the final analysis, however, it is up to the legislature to remedy those gaps. The Court cannot encroach upon an area where it does not belong.

(pages 1049-1055; emphasis added)

[160] The Board is of the view that the case Pointe-Claire (City) v. Quebec (Labour Court), supra, contrary to the suggestions in argument is analogous to the aspect of the current case that deals with agency drivers, and finds, taking a comprehensive view and considering the relevant factors from a broad perspective, that the employer exercising fundamental control with respect to the agency drivers assigned to it is Mackie. The facts are clear: Mackie inter alia has the effective final say in hiring; it determines if an agency driver will be let go or retained; it effectively determines their level of remuneration; importantly, Mackie determines and controls all of the day-to-day elements that surround the performance of their work: the number of hours they work, how their work is to be performed, the location for pick-up and delivery and all of the many aspects noted above. Mackie generally owns the equipment used by the drivers to carry out their functions and all communications during the work day are with Mackie. The employment with Mackie is generally indeterminate and the employees identify with Mackie. Taking a balanced view of these and the other relevant factors outlined previously above, the employer exercising fundamental control of the employees in question on a careful consideration of all the circumstances is Mackie.

[161] The suggestion that GM or some other governmental body might equally be said to be a true employer of the agency employees, because they too exercise control over working conditions should also be considered. The control of GM or government over these employees is of a general regulatory nature and indirect. It is carried out by rules or statutory or regulatory instruments of a broad and general application. The direct, particular and continuous relationship of these individuals to Mackie is in sharp contrast to the incidental and functional control exercised by the relevant government agencies and to that exercised by General Motors whose rules apply only through a contractual and arm’s length relationship. The employees in question have a direct, indeterminate, flexible and continuous relationship with Mackie. They do not perceive that they are employed in the production of cars for General Motors, but see themselves as transporting car parts for a transportation company, Mackie. For the purposes of the Canada Labour Code, it is most appropriate that such employees be considered as Mackie employees. Since the same argument was made in respect of the owner-operators, brokers and their drivers, the point should here be made that in respect of them as well, Mackie, as will be discussed, exercises fundamental control and hence it cannot be said that General Motors or some governmental body is the true employer.

(iv) Whether Brokers are Dependent or Independent Contractors

(Note: In the following, the terms “broker” and “owner/ operator” are used synonymously and interchangeably.)

[162] The next group of issues to be addressed oncern the status of the brokers or “owner-operators” providing services to Mackie. The issues surrounding brokers may be divided into a number of subcategories, depending on the structure of their relationship with Mackie:

1. Broker-drivers under contract directly with Mackie and who do not employ drivers, although they personally drive vehicles.
2. Brokers who employ drivers and who do not normally drive themselves.
3. Brokers who employ drivers and who also drive regularly.
4. Drivers employed by brokers.

[163] Each of these issues will be examined separately.

1. Broker-drivers Under Contract Directly With Mackie and Who Do Not Employ Their Own Drivers

[164] The report of the Board’s investigating officer tells us that on the date of application, there were 59 “brokers without drivers” under contract to provide services to Mackie. The Board heard from a number of witnesses respecting this aspect of the case including Mr. Scott Sullivan, Messrs. Brian Snell and Charles G. Waterhouse, two of the broker-drivers falling within this category, Mr. Marc Fortin, also falling within this category but operating out of Quebec, Mr. Robert Fraser, also falling within this category but operating as a North American Van Lines driver dispatched by NAVL from Fort Wayne, Indiana, and Mr. Phil Meagher, Mackie’s Operations Manager.

[165] Although the Board heard many witnesses over several days of hearing, the facts are basically uncontested, for the most part. The Board heard that most of the brokers work in Mackie’s Freight Division doing extraprovincial hauling, most typically, GM auto parts, and are party to identical contracts with Mackie. Brokers own their own tractors and haul trailers owned by Mackie. The Commercial Vehicle Operating Registrations (CVORs) are held in Mackie’s name, as is insurance on the vehicles. License plates on the brokers’ tractors are generally also in Mackie’s name as these must be registered in the same name as the CVOR. License plates cost $1500, and most brokers reimburse Mackie in equal payments over the year. The brokers also reimburse Mackie for their insurance costs which are paid by Mackie, on the basis of 4% of their revenue. Insurance costs are deducted by Mackie from their pay. Brokers who use Mackie’s gas pumps reimburse Mackie for the gasoline used. The same general approach is followed in all of Mackie’s Operating Divisions where brokers are used. Brokers may bid for specific steady runs, and the bidding system operates on the basis of seniority. Almost all of the steady broker runs deliver car parts on a regular basis from various locations to the GM Oshawa plant. These runs are bid periodically and awarded to brokers based upon seniority with Mackie. Brokers are entitled to bid for work on the open board if they did not have a steady bid run. Bidding on some runs is restricted to brokers who live in Quebec; these involve hauling cars from GM’s plant in Sainte-Thérèse, Quebec. There are six Quebec brokers and they also report to and are supervised by Mackie’s dispatch system in Oshawa. The license plates on the brokers’ tractors are registered in Mackie’s name and the vehicles are insured by Mackie. Brokers are paid by the mile by Mackie and if they are detained at a customer, they are paid an extra hourly amount for waiting time. The brokers are required to drive for Mackie as their first priority. Although in theory they are free to work elsewhere, almost none have except when the occasion has arisen that GM was on strike. When GM is operating normally most brokers in this group work exclusively for Mackie. During the GM strike in 1996, Mackie found work for a number of brokers with other customers; these customers however were invoiced by Mackie, and the brokers were paid for the outside work by Mackie and not by the customer. Brokers’ tractors have to display Mackie’s name and logo, and the permit and unit numbers; if brokers wish to display their name as well, the letters must be no higher than two inches which is in height, somewhat smaller than Mackie’s name.

[166] Brokers are required to attend mandatory training sessions put on by Mackie along with agency drivers and directly employed drivers. They are paid by the hour for attending training sessions; schedule “A” of the broker agreement in effect at the time the application was filed set the rate for attending training sessions at $14.00 per hour.

[167] With respect to back hauls, a broker is paid a $50.00 bonus if he can find a return load when Mackie is unable to. The broker contract stipulates however that Mackie’s dispatch must be consulted. He is paid by the mile by Mackie and Mackie deducts certain expenses such as insurance, permit and plate fees, heavy user fees, and fuel consumption. In addition, the broker must pay his own truck expenses such as maintenance and repairs, and truck payments.

[168] With respect to deliveries to GM, it is GM which dictates the timing of deliveries. Brokers pay their own premiums for coverage under the Ontario Workplace Safety and Insurance Board, and Mackie provides Health and Welfare benefits. A broker receives a bill of lading from Mackie telling him where to pick up the trailer; in other instances Mackie’s dispatch will tell the broker what trailer to take. The Board heard in testimony that even though the broker contract with Mackie specifies that brokers are responsible for lost or damaged products, brokers have never been charged for this. Brokers were asked in testimony if they ever tried to get other business and all replied that their work with Mackie kept them too busy to do anything else.

[169] The Board heard of the existence of an Owner-operator Committee whose purpose was to negotiate rates with Mackie. It had been in existence since the fall of 1997 and the last time the committee met with Mackie was in December 1998. The owner-operators pooled their ideas and the committee met the company. The committee was unsuccessful in negotiating a mileage rate increase, however it succeeded in getting brokers’ satellite fees reduced by half, obtaining a fee for waiting at the border, and a $125 layover fee if on the road for over 36 hours. The committee was elected in the fall of 1997 and every owner-operator had the opportunity to vote.

[170] The Board heard testimony concerning the manner in which the bid system works at Mackie. All drivers, including brokers, are allowed to bid on preferred lanes, on the basis of their seniority with Mackie. The Bid Rules and Regulations specify that lanes are designated by driver type, i.e., company driver, agency driver or broker-driver, and only those designated as such may bid those lanes. Most brokers prefer to bid lanes and do highway work, and very few brokers bid for work on the city board which comprises mostly company drivers. If two brokers compete for the same bid, the driver with the lower unit number would get the bid; unit numbers are assigned by Mackie when a broker is taken on and thus reflect seniority. Under the bidding process brokers are only allowed to reserve one lane. The opportunity for brokers to work for others is very limited because after they are finished their work week with Mackie they generally have few hours left; maximum hours are regulated by the Ministry of Transport. Brokers purchase fuel using Mackie’s card system and reimburse Mackie by deduction from their pay. They are entitled to a rebate on fuel tax for the portion of a run outside of Ontario, and Mackie does that calculation for them, and charges them a fee of $35.00. Brokers have to use Mackie’s satellite system for communications, for which they are charged a fee.

[171] In case of accident brokers are required to communicate with Mackie’s dispatch by satellite. In cases of a discrepancy in parts or part number being picked up at a vendor they generally communicate with the Lead Logistics Provider, Ryder. If a broker is unable to do a run he has to communicate with Mackie’s dispatch, who would find someone to replace him.

[172] The Board heard testimony from one of the brokers who operate out of Quebec, Mr. Marc Fortin, and he confirmed that he operates under the same conditions as Mackie’s other brokers, including being dispatched and directed by Mackie’s dispatch office in Oshawa. The parties agreed during the proceedings that Mr. Fortin’s testimony would be representative of the other five Quebec brokers. Mr. Fortin testified that although the Quebec brokers bid only on Quebec runs that originate at GM’s Sainte-Thérèse plant, there was nothing to prevent him from bidding on Mackie runs originating in Ontario or elsewhere. This was confirmed by testimony from the employer. Mr. Fortin said he thought he would not be prevented from taking advantage of other work opportunities but already had enough work. He works for Mackie six days per week and does a total of approximately 75 hours a week. He testified that a driver could not bid on more than one lane as it would be too much work for one driver. Mr. Fortin’s bid run originates at Sainte-Thérèse and goes to Indiana, via Windsor. He frequently visits Mackie’s office in Oshawa. He signed his broker agreement at a one-on-one meeting at Mackie on a return trip, and he accepted the contract “as is,” without proposing changes to it. Quebec brokers are also allowed to place themselves on the open board, along with all other Mackie drivers, including brokers, company drivers and agency drivers. Mr. Fortin indicated that he had various other businesses, including a truck rental business and felt that he was not economically dependent on Mackie.

[173] All brokers directly under contract with Mackie are signatory to the same standard contract, only some parts of which were negotiated between Mackie and the Broker Committee. Clauses in the contract that were not agreed to by the Broker Committee were unilaterally imposed by Mackie, and all of the brokers who testified stated that they signed the contract “as is,” without attempting to negotiate further changes. Brokers do not compete with each other by attempting to negotiate lower rates and “undercutting” the other brokers.

[174] The employer attempted to demonstrate during the testimony of the witnesses that brokers were free to accept or refuse work from Mackie, and did not have to call in to advise dispatch if they were not available to do their assigned run. The facts, however, do not support this claim. Testimony revealed that the only way in which a broker was effectively free to refuse work would be to remain on the open board. A broker on the open board who refuses work that comes up is simply placed at the bottom of the board and the work is assigned to the next driver on the board. Once a broker has signed a contract and successfully bid on a specific run, he is contractually obligated to do that run. If he is not available, clause 17 of the contract specifies that he must notify Mackie’s dispatch before 6:00 a.m. A broker who does not keep his regular contract with Mackie is assumed to have terminated the contract. A broker who bids on a lane and books off on a regular basis would be subject to serious discussion with the company and could not realistically expect his contract to be continued. Clause 20 of the broker agreement specifies a progressive discipline series up to and including dismissal for such incidents as: misconduct towards Mackie staff and customers, failure to report for work, failure to deliver loads, improper paperwork, mistreatment of equipment, driving outside legal requirements, etc. The Board heard testimony from Mr. Phil Meagher that a Quebec broker (Mr. Lapierre) had been suspended under clause 20 of the agreement for missing his delivery window at GM and causing Mackie to lose a lane.

[175] If a broker bids on a lane and the available work on that lane decreases, he could supplement his earnings by going on the open board. Another option would be for the broker to give up the lane and work exclusively on the open board until another lane came up for bidding. If the open board were not available, some of the brokers would leave Mackie. This system enables Mackie to keep its turnover rate down to 15%-20%, compared to 40% in the rest of the industry. Mr. Meagher explained there was a shortage of drivers in the industry perhaps as a result of the involvement of Logistics Lead Providers (LLPs) acting as intermediaries between GM and the transporters to keep shipping costs low. As a result of the organization of auto haul parts transport by the LLPs, most of the transporters pay their owner-operators a fairly consistent rate from one company to another. As an incentive to attract owner-operators, Mackie charges them only 50% of the satellite fees and pays the rest itself. Mackie turns down 10%-15% of potential brokers and tries to keep the cream of the crop in order to ensure it retains its CVORs, which it could lose if its drivers incurred too many violations. Mr. Meagher indicated that the LLPs would not deal with individual brokers preferring to deal with larger operators.

[176] The Board also heard testimony from one of Mackie’s brokers, Mr. Fraser, who works in its long distance household moving division, or the “A” fleet. These brokers are party to the same broker agreement as the brokers in Mackie’s freight Division, but are remunerated according to schedule “B” of the contract, rather than schedule “A” which applies to the freight brokers. Unlike the freight brokers, the “A” fleet brokers get their work from and are dispatched by North American Van Lines (NAVL) from Fort Wayne, Indiana. They are assigned by NAVL in accordance with their availability and their position on the NAVL rotation. The rotation is controlled by NAVL. Mackie is an agent for NAVL and although the “A” fleet brokers get their work from NAVL, they are paid by Mackie. These brokers are paid for a move by the NAVL customers by cheque once the move reaches its destination; the broker sends the cheque to NAVL, NAVL sends a percentage to Mackie as its agent, and Mackie retains a portion and pays the remaining portion to the broker, as per the contract’s schedule “B”. Like the freight broker, the “A” fleet brokers use Mackie’s insurance because it is cheaper for them to pay Mackie 4% of revenue for insurance than to buy insurance themselves. Also like the freight brokers, they pay their own operating costs and Mackie does not deduct CPP or income tax from their pay. Unlike the freight brokers on bid runs, however, they do not bid for runs, have the right to decline loads, and do so. Also unlike the freight brokers, “A” fleet brokers do not communicate with Mackie’s dispatch system in Oshawa, but with NAVL’s dispatch in Fort Wayne, Indiana. Mr. Fraser said he considered himself as working for NAVL, even though he is paid by Mackie. Mackie had eight “A” fleet brokers at the time of the application, and five of these are based outside of Ontario, i.e., in Saskatchewan, Alberta and British Columbia. If they need help, instead of communicating with Mackie they deal with NAVL in Fort Wayne, Indiana. Mr. Fraser said that NAVL agents such as Mackie overlap, and he could hire on with any of them and still continue to do the same work. The applicant indicated that because of the working condition differences in this group, they requested that they not be included in the bargaining unit. The Board agrees that this group is sufficiently distinct that in view of the applicant’s request it should not be included in the bargaining unit.

[177] With respect to insurance coverage, testimony was consistent that all brokers in this category preferred to use Mackie’s insurance and reimburse it 4% of their earned revenue, as this was cheaper than paying for their own insurance. Also, because the employer is contractually obligated by GM and the Lead Logistics Providers such as Ryder to carry $20 million insurance coverage on the trucks, if Mackie allowed brokers to have their own insurance, it would have no way of ensuring that brokers maintained this level of coverage at all times and did not let their insurance lapse. The broker contract, therefore, provides with respect to insurance, in clause 28:

28. By terms of this agreement the Independent Contractor hereby authorizes the Company to charge the following services and products against the Independent Contractors revenue account:

(a) Premium payments for fleet insurance coverage.

[178] and in clause 31:

31. Insurance: The company will provide on behalf of the Independent Contractor the required public liability, fire, theft, collision, comprehensive, property and cargo insurance. This will be charged back to the Independent Contractor based upon Schedule “A” attached hereto and Schedule “B” attached hereto.

[179] Both schedules “A” and “B” are silent on the charge back to brokers for Mackie’s fleet insurance, but testimony revealed this to be 4% of the broker’s gross revenue in respect of those brokers doing one driver runs. There are some two driver runs and in respect of them a small adjustment may be made.

[180] Testimony revealed that brokers were generally uniformly subject to many conditions of employment, including the same directives and memos issued by Mackie as its directly employed drivers and the agency drivers. They have to comply with Mackie’s sexual harassment policy. They are required to take certain mandatory training arranged and/or provided by Mackie. They are subject to scales of progressive discipline up to and including the dismissal of the contract. Brokers in Mackie’s HVP and HHG (“A” and “B” fleet) Divisions are required to wear uniforms, others encouraged to do so. Brokers are required to supply Mackie with copies of maintenance reports on their vehicles. They are required to maintain contact with Mackie’s dispatch. This they do to a large extent through a Satellite Tracking Communication System in their truck which Mackie owns and on which brokers pay a charge back fee. When they are required to undertake mandatory training provided by Mackie, they are paid a uniform hourly rate for attending. They all have a mailbox at Mackie in which they receive company directives and other mail. They are required to have Mackie’s name on their truck. They submit their trip sheets to Mackie and all of their paperwork, including log books, trip sheets, bills of lading, maintenance reports, etc. are supplied by Mackie.

[181] Although brokers are paid by the mile (generally at the rate of $1 per mile), the miles are calculated by Mackie by a program called P.C. Miles rather than on the basis of what the brokers actually drive. If they deviate from the P.C. Miles route they risk being paid for fewer miles than actually travelled.

[182] The employer’s position was that brokers are free to work elsewhere provided Mackie agreed to let them pay Mackie 4% of revenue earned elsewhere to maintain their insurance coverage. However, Mr. Meagher in testimony for the employer was unable to demonstrate from Mackie’s financial statements that any broker had declared outside revenue on which the 4% could have been levied as a charge back, during the period from April 1998 to April 1999.

2. Brokers Who Employ Drivers

[183] The Board heard testimony from a number of brokers under contract to Mackie to provide trucks and drivers to Mackie. Some of these brokers do not normally drive, while some drive on a regular basis. Testifying in this regard were Mr. Murray S. Hammond, Mr. Art Pomeroy, Mr. D. Hill, all brokers who employ drivers.

[184] Mr. Murray S. Hammond testified that he operates an incorporated trucking business (M&D Hammond Systems) out of an office in his home. He has his own CVORs for some of his trucks. He started hauling in 1993 when he rented a tractor and hauled for Sunoco. In 1996 he signed a contract with Mackie. In 1998 he put on a second truck hauling for Sunoco and switched it to another company, Bartlett, in August 1999, hauling dry goods. He derives approximately 70% of his revenues from hauling for Sunoco and approximately 30% for Mackie; Bartlett is insignificant. He has done some marketing of his services to get work with other companies, e.g., Chem Oil, Molson. He finances the purchase of his tractors through the bank. As of April 1999 he had 5 full-time and 2 part-time drivers. Prior to April 1999 he had personally driven for Mackie approximately 10 to 12 times.

[185] Mr. Hammond testified concerning his participation in the lane bid that Mackie held in April 1999. He indicated that he negotiates rates of pay and terms and conditions of employment with the drivers he employs, and is responsible for supervising their work. He is responsible for the operating costs and maintenance of his vehicles, including fuel and license plates. With respect to insurance coverage on his trucks, he pays his own insurance on the trucks hauling for Sunoco, but goes through Mackie for insurance on the truck hauling for Mackie as it is cheaper and more convenient. Mr. Hammond testified he is free to offer his services to other companies and could for instance offer his Mackie tractor to Sunoco. He is free to assign the drivers in the truck that services Mackie. He said Mackie does not deduct UIC, etc. from the pay he receives from them. Mackie is not involved in the financing of his trucks. He can accept or decline Mackie trips. He is responsible for recruiting his drivers. The truck he has assigned to Mackie has a satellite communication system. He considers himself to be an independent businessperson and his business makes a profit.

[186] In cross-examination, Mr. Hammond confirmed that he recruits his own drivers by placing ads and asking around at Mackie. He determines if a driver is qualified by interviewing him/her, takes them for a test drive, verifies their driver’s license and driver abstract. He personally trained the drivers he has assigned to Sunoco with respect to driving, delivery, paperwork. Mr. Hammond testified that although he had trained his Sunoco drivers, and had trained one of his Mackie drivers, Mr. John Dolan, who had had previous Mackie experience, Mackie too had trained certain of his drivers, in particular he indicated Mr. Ronald Marchand. With respect to his drivers assigned to Mackie, Mackie does the WHMIS training, the dangerous goods training, and the drug and alcohol screening. He has never been required to pay a fee to Mackie for this training, although he does pay Mackie a fee of $80 for road-testing his drivers prior to Mackie agreeing to take them on as drivers.

[187] Mr. Hammond testified that he usually drives three or four days a week for Sunoco and does not normally drive for Mackie, himself.

[188] Mr. Hammond indicated that he gets paid $1 per mile by Mackie, out of which he pays his drivers. His current agreement with Mackie is for a two-year period. He said he signed the broker agreement exactly as it was presented to him by Mackie, without attempting to negotiate. Although Mr. Hammond owns his own CVORs for his Sunoco trucks, his Mackie truck operates under Mackie’s CVORs. Mackie’s name is on the tractor he assigns to Mackie in large letters, his own name is in smaller letters. He picks up run sheets twice a week at Mackie. He has never used the truck he has under contract to Mackie for other business as Mackie keeps it busy for 15 hours a day 5 or 6 days per week; he has no opportunity to use the truck elsewhere. If the driver he has assigned to Mackie cannot work he either covers the run himself or has a part-time driver cover it. He pays his drivers to attend Mackie driver training sessions, and attends them himself. Mr. Hammond stated he thought the majority of brokers driving for Mackie drove vehicles on a regular and continuous basis. He said it was worthwhile for him to have a truck and driver on the Mackie run in addition to his Sunoco work because it provides him with another source of income.

[189] Mr. Hammond testified that he thought the terms of the contract he signed with Mackie were acceptable to him. On all of his evidence his operations seemed more independent and discreet than those of the majority of brokers who drive only for Mackie. Mr. Hammond indicated that if the terms of the contract had not been satisfactory, he would have looked for work elsewhere. He said he normally acquires work by word of mouth; he does not feel his operation is large enough to place advertisements. Because a significantly large proportion of the work of Mr. Hammond’s operations is for clients other than Mackie and because of the other differences in his operations, his situation is sufficiently different that the Board is of the view that he and his drivers should not be included in the bargaining unit. His business is more discrete, independent and distinguishable from the other operations of Mackie than most other brokers and in this respect may be seen as a more discrete operation, somewhat similar in that respect to the HHG “A” operations. Although his work is federal, his community of interest is therefore sufficiently different to exclude his employees from the bargaining unit certified here.

[190] Mr. Art Pomeroy, another broker, testified with respect to two businesses he and his wife own and operate, 1269763 Ontario Limited and 1131464 Ontario Limited. It should be recalled that the bargaining agent has suggested that Mr. Pomeroy and his drivers should not be included in the bargaining unit. His wife’s business is 1269763 and 1131464 is Mr. Pomeroy’s. His company 1131464 was incorporated on November 1, 1995 and his wife’s, 1269673 on July 15, 1998. The 1131464 company leases trucks to 1269763, which in turn holds contracts with Mackie or another company, Verspeeten. Mr. Pomeroy now owns eight trucks, and has 16-18 drivers; one truck runs single, the other seven run teams; six trucks are contracted to Mackie and two to Verspeeten. Some of Mr. Pomeroy’s drivers are working part time only. Mr. Pomeroy operates the trucks doing Mackie runs under Mackie’s CVOR. He said to haul for another company, a broker had to get permission from Mackie to do a haul using Mackie’s CVOR and insurance. Mr. Pomeroy gets paid slightly more than the other brokers by Mackie. Mr. Pomeroy testified that Mackie had been willing to lower the insurance fee of 4% to 2.5% for team runs but the Owner-operator Committee did not agree. Mackie then decided to leave the insurance fee at the same level but increase the rate per mile paid to team runs by 1.5 cents per mile. Mr. Pomeroy stated that he felt he operated his own business. While he started hauling for Mackie as an owner-operator in June 1993, he now drives only occasionally. He now drives himself only when a driver is sick or on holidays, this gives him the opportunity to check how the trucks are driving. He has driven approximately 30 times in the year between April 1998 and April 1999.

[191] Mr. Pomeroy testified that he participated in Mackie’s bid system and has six runs at Mackie assigned by seniority. He does not now have his tractors on Mackie’s open board, but did have one on the open board prior to the last bidding process, as the lane it was assigned to was not that busy it did open board work when not running the bid lane. Mr. Pomeroy pays the Workplace Safety and Insurance Board premiums for his employees. Mackie does not deduct for CPP, EI, or income tax for his drivers, this is done by Mr. Pomeroy.

[192] Mr. Pomeroy testified that every owner-operator driving at Mackie, in his view has the opportunity to increase the number of tractors he/she runs. Once an owner-operator becomes a proven commodity Mackie will give such a chance an owner-operator to increase the member of trucks. He said his drivers negotiate their wage rates and conditions of employment with him, and their recruitment and supervision rests with himself. He is responsible for the maintenance of his trucks, and for fuel costs and other operating costs. Mackie provides him with a monthly statement of earnings.

[193] Mr. Pomeroy’s trucks are equipped with the standard satellite communications systems required by Mackie on GM work. Mr. Pomeroy is responsible for ensuring that the requirements of the customers whose loads are being carried are met. Mr. Pomeroy is responsible for granting time off to his drivers, to discipline and terminate them. The vehicles Mr. Pomeroy has under contract to Mackie carry the Mackie name only; neither his name nor any other name appears on his trucks. He determines the wage rates of his drivers himself without any involvement from Mackie. He confirmed, however, that he paid his drivers on the basis of Mackie trip sheets. He visits Mackie’s yard in Oshawa at least twice a week to handle paperwork and ensure everything is functioning correctly. He and his drivers attend Mackie’s Sunday training sessions, and they are paid $14.25 per hour for attending, in such circumstances; his drivers are paid by him but he in turn gets compensated by Mackie for the full cost of their attendance at the training sessions.

[194] Mr. Pomeroy was asked if he was aware of other brokers who supply vehicles to Mackie similarly to the way he did and he mentioned Murray Hammond, Bill Wellman, Bill Robinson and others whom he could not recall. Because the applicant has not asked that Mr. Pomeroy and his drivers be in the bargaining unit, because he exercises more independent control over his employees and because his operations, like those of Mr. Hammond, do not have the level of dependence on Mackie of the other brokers, the Board is of the view that these employees too may be excluded from the appropriate bargaining unit.

[195] Mr. D. Hill is a broker whose company, D.A. Hill Trucking Ltd. is engaged in closed auto hauling for Mackie. He owns three trucks, two of which are under contract with Mackie and one with a Nova Scotia company. Mr. Hill’s other business activities include snow clearing. He employs four full-time and two part-time drivers. He does not have his own CVOR but uses the CVORs of the companies he is under contract with. He confirmed the type of contract he is under is the same as the other brokers who have a contract with Mackie. He personally drives for both Mackie and a Nova Scotia company. His Mackie trucks are dispatched by Mackie in Oshawa through the satellite system, but he also does some work for Mackie out of Dartmouth, Nova Scotia, delivering Audis to dealers all over Canada. Mr. Hill testified that unlike many of the other drivers he does work for other parties than Mackie with the trucks that he has under contract to Mackie. Mr. Hill drives Monday to Friday, as part of a team. In respect of the drivers he employs he recruits them, negotiates the rate of pay and other conditions of employment with them and supervises them. He carries Mackie’s insurance because it is cheaper than getting his own, for the trucks assigned to Mackie. He carries his own insurance for certain other vehicles. He pays his own operating costs, maintenance, fuel, permits, plates. Mackie does not deduct income tax or CPP from the pay he receives in respect of his employees. He is free to accept or decline trips from Mackie and has done so. He considers himself an independent business person.

[196] He recruits drivers through newspaper ads or through Human Resources Development Canada, gives them a road test, verifies their license and driver’s abstract. He provides training in dangerous goods. Drug and alcohol testing is provided through Mackie for which he pays a fee. He signed his contract with Mackie on a one-on-one basis and not with a group. He accepted the contract as offered, without proposing changes to it, and is not involved with the Broker Committee. His name as well as Mackie’s is on his trucks. He generally visits Mackie to do his paperwork but can do it by post or carrier. His drivers are on the payroll of his company. Neither he nor his drivers have attended Mackie’s Sunday training sessions.

[197] Mr. Hill testified he had no bid lanes, his company gets its work through Mackie’s dispatch on the satellite system. A normal run would begin with a pickup in Dartmouth, and would include dropping cars off in Quebec, Ontario, perhaps in Vancouver. Generally, the unit is then reloaded and returned to Dartmouth. There is a mailbox at Mackie in the name of D.A. Hill Trucking Ltd.

[198] Mackie deducts costs for fuel, licenses and insurance from Hill, and he would have to reimburse further insurance costs if he were to use his truck to haul for someone else. He pays his own license plates and maintenance costs. He could decline trips for Mackie, if it were not possible to do them, if he did not have a driver, or the truck was not available; he would not decline because he had booked a trip for someone else. He gets paid 1.00-1.10 per mile plus $15 for each car he loads. He is expected by Mackie to do back hauls after delivering a lead haul. He would be notified by satellite system about a back haul, usually for dealers or private individuals. He can decline a trip if he does not think he can get in to pick up a load or if he thinks it might damage his equipment. He uses Mackie trip sheets and log books and turns them in to Mackie. He testified a new driver would have to be approved by Mackie, in accordance with schedule “C” of the broker contract. Mr. Hill testified that Mackie’s warehouse in Oshawa is the pickup and drop-off point for goods from anywhere in Canada and the US and vice-versa; customers could be anywhere.

[199] Mr. Hill confirmed in cross-examination that he buys gas with cards issued by Mackie and Mackie is reimbursed by deducting this amount from his monthly statements. The only time he ever attended a Mackie training session was when he was first hired; the training consisted of how to securely fasten cars being moved to the trailer. He receives mail, memos and directives from Mackie at his mailbox at Mackie in Oshawa. He said he has never used the Mackie trailers to haul freight. If he decided to used it to haul for someone else, he would have to pay Mackie extra for the insurance. He clarified that his tractors were specified in writing according to the contract to haul for Mackie. Deductions from his pay include 4% of his mileage earnings to cover insurance provided by Mackie, 12 monthly installments to cover the use of Mackie’s CVOR license, and reimbursement for fuel purchased with Mackie’s card. He said if his vehicle broke down he would be able to refuse runs for Mackie until it was fixed. He said nothing prevented him from taking his vehicles to haul for someone else, except his contractual obligations to live up to his agreement with Mackie, or close the contract.

[200] Like Mr. Hammond and Mr. Pomeroy, Mr. Hill and his drivers appear to operate somewhat more at arm’s length from Mackie. While the Board is of the view that the greater independence of Hill’s operations might not necessarily mean that he and his employees should not be viewed as Mackie employees, it does appear that their community of interest is somewhat different and on this basis they are not included in the bargaining unit.

3. Drivers Employed by Brokers

[201] In addition to the testimony of the brokers who employ drivers, which is summarized in section 2 above, the Board heard testimony from Ms. Catherine Black respecting her employment by brokers. Ms. Black has worked for Mackie both as an agency driver and as a driver for two different brokers, Messrs. Brian Snell and Murray Hammond. Ms. Black testified that when she worked as a driver for Murray Hammond, she received instructions from Mackie’s dispatch as to her pickup and delivery times for GM. Even though the time windows for delivery are established by GM, these are transmitted to the drivers by Mackie. Mackie also controlled her working conditions, routes, hours of work, the paperwork she completed was for Mackie and she turned it over to Mackie. She also testified she received a letter of discipline from Cal Murray of Mackie as a result of mistakes made by a driver who substituted for her on one occasion. She was told by Murray Hammond that he was instructed by Marcel Bélanger, Mackie’s Supervisor of Freight Operations, to let her go. She also testified that she subsequently received offers of employment to drive for Mackie from four other brokers, who were all told by Marcel Bélanger not to hire her. While as noted above, some witnesses had presented testimony which discredited some aspects of Ms. Black’s testimony on other matters, the testimony referred to above was not contested.

[202] In argument, counsel for Teamsters referred to the definition of dependent contractor in the Code in respect of the situation of the brokers. Counsel suggested that the Brookville Transport case (Brookville Transport Limited (1991), 84 di 146; and 15 CLRBR (2d) 128 (CLRB no. 856)) should be applied by the Board as the best and most recent authority in applying the relevant Code provisions. Counsel for the applicant argued Mackie’s policies and procedures apply to dependent brokers, and are mandatory. Drivers had to be tested, and approved by Mackie. Contracts may be severed after 30 days notice. Brokers have to attend mandatory training. Brokers do not work elsewhere.

[203] The applicant’s counsel conceded that some of the brokers, independently incorporated, such as Pomeroy who hire drivers to drive their trucks are independent business people and not employees and should not be included in the bargaining unit. It was conceded that Pomeroy’s drivers should also be excluded from the bargaining unit. In respect of Mr. Hammond it was conceded that he should be excluded as he is a non-driving owner-operator. However, it was argued by the applicant’s counsel that Mr. Hammond’s employees who drive for Mackie should be included.

[204] On the basis of the evidence, brokers who do not drive for any other company or who do not have a realistic prospect of driving for other than Mackie appear without exception, on the basis of the evidence before the Board, to be economically dependent upon Mackie. Their expectations, so far as the testimony revealed, are that the relationship will be an enduring one. Most of such brokers are kept busy full time by Mackie and realistically could not work elsewhere. If they wished to work elsewhere they need to book time off from Mackie, which would not be feasible in the long term in view of their contractual obligations to perform the runs which they have bid upon. Generally, such brokers do not work elsewhere. Mr. Charles Waterville, for instance indicated that while for a time he tried to run his truck on weekends, this had not proved feasible. Brokers are generally appropriate to bargain collectively as there is already a Broker Committee which has tried to do so and the relationship is capable of collective bargaining.

[205] Counsel for the intervening owner-operators (Ms. Marcotte) argued that the definition of employee in the Code which includes “dependent contractor” should be interpreted as requiring an element of economic dependence. She argued that the degree of control of Mackie was not such that it should be considered as the employer and that since Murray Hammond had testified that he controls the drivers who work for him in his case he should be viewed as the employer. Ms. Marcotte suggested that the agreement reflects the need to satisfy both customers requirements and statutory requirements and is not reflecting control by Mackie. She stressed that brokers are responsible for their own assets. In the alternative it was suggested that if brokers are dependent, they should be in a separate bargaining unit as they have a different community of interest from the other drivers.

[206] Counsel for Mackie argued that brokers make independent choices on how they will utilize their assets and how much they want to work and earn. He suggested that the Mackie brokers were more independent than was the case in Brookville Transport Limited, supra, where the brokers became indentured servants once they signed on. This argument was echoed by Mr. Michael Horan, counsel for two independent brokers, who suggested they were not in fact economically dependent.

[207] Counsel for Mackie also suggested that there is an aspect of economic dependency in the Code definition of “dependent contractor,” even in respect of the aspect of the dependent contractor definition set out in paragraph (a) of the definition. Counsel suggested that it was a lack of choices that makes individuals in the contemplation of the section economically dependent.

[208] Under the Code definition of “employer,” it was suggested the test has not been satisfied that drivers of owner-operators are employees of Mackie. The tests which should be applied include who hires them, controls them, negotiates and establishes their wages. It was argued that Mackie has nothing to do with the relationship between the brokers and their drivers. In fact, since in reality the real conditions are set by governments and GM, and not by Mackie.

[209] In final argument, counsel for the applicant union argued that the statutory definition of “dependent contractor” set out in part (a) of the definition precludes the need to inquire further concerning the trucking industry. It is sufficient to apply the criteria in the definition and if they are present it is implicit that an element of economic dependency exists.

[210] Concerning the Quebec brokers, Teamsters’ counsel argued that they are different from the HHG “A” fleet brokers who are dispatched by NAVL from Fort Wayne, Indiana, in that the Quebec brokers are dispatched and supervised from Oshawa and regularly pass through and attend at Mackie’s Oshawa office. While the applicant union seeks to exclude those who do not work “in and out of Ontario,” the Quebec brokers fall within the definition of working in and out of Ontario and their inclusion is sought.

[211] Concerning the argument that the brokers are independent because they may exercise choices, the applicant’s counsel indicated that they do not really have any choices, with respect to insurance, satellites, customers, their daily mode of working and that there are any number of things specified in the broker agreement that do not flow from statutory or GM requirements. For example, there was no evidence that GM required disciplinary action for a third offense of mistreating equipment. Counsel argued that the terms of the statute and its interpretation as set out in Brookville Transport Limited, supra, should apply.

[212] Attention must first be directed to the provisions of the Code. The applicable provisions are the definitions of “dependent contractor,” “employee” and “employer” as set out in section 3.

3.(1) In this Part,

...

“dependent contractor” means

(a) the owner, purchaser or lessee of a vehicle used for hauling, other than on rails or tracks, livestock, liquids, goods, merchandise or other materials, who is a party to a contract, oral or in writing, under the terms of which [he is]

(i) required to provide the vehicle by means of which [he] perform[s] the contract and to operate the vehicle in accordance with the contract, and

(ii) entitled to retain for [his] own use from time to time any sum of money that remains after the cost of [his] performance of the contract is deducted from the amount [he is] paid, in accordance with the contract, for that performance,

(b) a fisherman who, pursuant to an arrangement to which [he] is a party, is entitled to a percentage or other part of the proceeds of a joint fishing venture in which [he] participates with other persons, and

(c) any other person who, whether or not employed under a contract of employment, performs work or services for another person on such terms and conditions that [he is], in relation to that other person, in a position of economic dependence on, and under an obligation to perform duties for, that other person;

...

“mployee” means any person employed by an employer and includes a dependent contractor and a private constable, but does not include a person who performs management functions or is employed in a confidential capacity in matters relating to industrial relations;

“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; ...

[213] While a number of authorities were cited to the Board with a view to assisting it in interpreting and applying these provisions, they need not all be cited here. Certain recent decisions of the Board’s predecessor, the Canada Labour Relations Board deal directly with the concept of dependent contractor as it may apply to brokers or owner-operators in the trucking industry and interpret and apply these specific provisions. The most recent and directly applicable decisions, therefore are Brookville Transport Limited, supra; and Transport Damaco International Ltée (1991), 84 di 84; and 92 CLLC 16,055 (CLRB no. 853). In addition, a recent decision of the present Board, the Canada Industrial Relations Board (CIRB) has considered these provisions. In Maritime-Ontario, Parcel Division, [2000] CIRB no. 100, the present Board noted:

[50] Carefully considering this section, the Board notes that the individuals in question, as contended by the applicant, were required by contract in writing to provide the vehicle by means of which they performed the contract and to operate it in accordance with the contract.

[51] The individuals in question, if the contract in question is analyzed in the context of all the evidence, are in accordance with their contract, in a position of being entitled to retain for their own use from time to time sums of money remaining after the cost of their performance is deducted from the amount they are paid. Having satisfied these conditions, it is apparent that the individuals in question must be considered to be dependent contractors within the meaning of the Code, however they are described in the relevant contract. As stated in Brookville Transport Limited (1991), 84 di 146; and 15 CLRBR (2d) 128 (CLRB no. 856):

“Provided these criteria are met, there is a prima facie presumption of economic dependence and thus dependent contractor status.

(pages 155; and 136)”

[52] Additionally, the Board notes that it also carefully reviewed the submissions of the employer and the union on behalf of the relevant employees concerning the circumstances and conditions of their work. In the Board’s experience, individuals operating vehicles for the delivery or shipment of goods in circumstances where these goods are delivered exclusively or almost exclusively for a single shipper and in accordance with precisely defined conditions, such as is the case in the present circumstances, very frequently become in fact dependent on such contractual and business arrangements. In the present circumstances, this possibility is reinforced by the evidence of the bargaining agent on behalf of a large block of these individuals within the relevant bargaining unit, who indicate that they in fact have become dependent upon the employer in all circumstances.

[53] In view of this evidence and considering all the details of the contract set out above, including the non-solicitation, non-competition clauses, even if the individuals did not clearly fall within paragraph (a) of the definition of “dependent contractor” as set out above, the Board would, in view of its experience, on the basis of all the evidence, be of the view that these individuals were indeed in a position of economic dependence on and under an obligation to perform duties for Maritime-Ontario sufficient to bring them within the definition of “dependent contractor” in paragraph (c) of the definition.

(pages 22-23)

[214] In Brookville Transport Limited, supra, a panel of the CLRB reviewed the evolution of the federal scheme of legislation that touches on the concept of dependency of a contractor and agreed with previous findings of the CLRB that the traditional common law tests of control to determine an employer/employee relationship were no longer particularly relevant to the issue, given that the definition of dependent contractor in the Code, in instances where the criteria included therein are present, establishes a prima facie presumption of economic dependence and thus unless contradicted “dependent contractor” status and, flowing from that, “employee” status.

[215] In Transport Damaco International Ltée, supra, the Board expressed the same viewpoint. In referring to the classic four-fold test enunciated by Lord Wright in Montreal v. Montreal Locomotive Works Ltd. et al., [1947] 1 D.L.R. 161 (P.C.), the Board stated:

This Board has already established that the provisions of the Code that it must interpret and apply confer upon it obligations and powers that exceed this common law test.

(pages 116; and 14,444)

[216] However, in Transport Damaco International Ltée, supra, the Board concluded that the drivers in question in that case did not qualify as independent contractors.

[217] While in Brookville Transport Limited, supra, the Board confined itself to a finding that the owner-operators met the criteria in the Code definition of “dependent contractor,” in Transport Damaco International Ltée, supra, the Board undertook an item-by-item analysis of the conditions under which the owner-operators worked, and concluded that those concerned were dependent contractors.

[218] In the case at hand, the employer has argued that the Board’s reasoning in Brookville Transport Limited, supra, was not sound and that there is no legislated presumption of economic dependency in the Code definition of “dependent contractor.” The Board does not agree with this argument, and is of the view that if upon the application of the Code definition all of the criteria set out are met, this is sufficient to establish at least a presumption of economic dependency. Further, although the matter is not in the Board’s view in issue in the present case, the present Board notes that reading and applying the Code provisions in their context, there does not appear to be a requirement of economic dependency at all if an individual meets the statutory criteria set out and, therefore, fits within the statutory definition set out in paragraph (a).

[219] In the case at hand, with respect to the broker-drivers directly under contract to Mackie who themselves drive and who do not themselves employ drivers, there is no doubt in the Board’s view considering the evidence, that all of the criteria enunciated in the Code definition as set out in each of clauses (a) and (c), including a situation of economic dependency are present. The owners of the vehicle (the brokers) are party to a written contract; they are required under the terms of the contract to operate the vehicle to haul goods in accordance with the terms thereof; and they retain the amount that remains after Mackie has deducted the amounts to which it is entitled under the terms of the contract. Additionally, on the facts, all of the individuals who own and drive their vehicle for Mackie without exception appear to be economically dependent on Mackie, they derive all their revenue from Mackie.

[220] Specifically, the facts reveal that:

• brokers are party to identical or nearly identical contracts imposed by Mackie; there is no individual negotiation and whatever “collective” negotiation took place under the umbrella of the Broker Committee resulted in a contract that was largely unilaterally imposed on individual brokers by Mackie;
• the trailers hauled by the brokers are owned by Mackie, as are the Satellite Communications System the brokers are required to have and use; brokers are required to pay a fee for use of the Satellite Communications System (article 25 of the contract);
• the brokers generally use Mackie’s CVOR and fleet insurance and reimburse Mackie for their costs. Although the employer attempted to convince the Board that this was optional, the facts demonstrate that this is in fact a contractual requirement imposed by Mackie (articles 28 and 31 of the contract);
• the license plates on the brokers’ tractors are generally in Mackie’s name as these must be registered in the same name as the CVOR;
• the brokers are required to reimburse Mackie for the cost of the plate;
• Mackie’s bidding system operates on the basis of seniority within Mackie rather than being truly competitive (article 34 of the contract);
• brokers may opt to be placed on Mackie’s open board if they do not have a bid run;
• the employer attempted to convince the Board that brokers were free to drive for other companies, but the facts are that the brokers do not drive for anyone else and derive all of their income from Mackie; the employer was unable to prove otherwise; during the GM strike when the brokers did some work for other companies, they were largely dependent upon Mackie to find the work for them and they worked through and were paid by Mackie for this work;
• the brokers’ tractors are required to display Mackie’s name (article 23 of the contract);
• brokers are required to attend mandatory training sessions put on by Mackie, and are paid by Mackie for attending (article 24 of the contract);
• brokers are dispatched by Mackie, must maintain communication with Mackie, and their pickup and delivery times are scheduled by Mackie, and their mileage and often hours of work and the amount of their remuneration are determined by Mackie;
• a broker may locate a back haul on his own if Mackie dispatch is unable to find one, but only retains a $50.00 bonus and not all of the revenue derived from the back haul;
• brokers are generally subject to the same rules, regulations and directives as are Mackie’s salaried drivers and its agency drivers;
• brokers are screened and tested by Mackie before they are given a contract (schedule “C” of the contract);
• brokers are subject to progressive discipline imposed by Mackie, including termination (article 20 of the contract);
• brokers do not have the right to determine their itinerary, and are paid only for predetermined mileage imposed by Mackie;
• some brokers are required to wear Mackie uniforms, the others encouraged to do so;
• brokers are required to use Mackie’s paperwork system, and submit all paperwork to Mackie;
• article 4 of the broker contract provides that if a broker offers its services to another business (even though the evidence before the board was that none had) he is to provide the line-haul revenue to Mackie; the same article requires the brokers to obey and carry out all reasonable orders and directions given by Mackie;
• article 17 requires the broker to have a regular starting time, notify the company if he is unable to report; maintain regular contact with Mackie dispatcher, and never return to the warehouse without first notifying the dispatcher;
• article 21 requires the broker to keep and maintain his equipment in good condition and to subject the equipment to company inspection;
• brokers may qualify for safety and performance bonuses paid by Mackie (articles 32 and 35);
• Mr. Meagher testified that it would not be realistic for individual brokers to expect that the Lead Logistic providers and GM would contract directly with them.

[221] All of the above demonstrate beyond any doubt that the brokers are not only economically dependent upon Mackie, but also under its direct control in the day-to-day performance of their duties. The Board finds that the brokers directly under contract with Mackie who work continuously for Mackie alone and who do not employ other individuals are Mackie’s employees and are entitled to bargain collectively as dependent contractors under the provisions of the Code.

[222] There are two other groups of brokers, some drive for brokers who also work only for Mackie. Others drive for brokers who derive their revenue from at least two sources.

[223] Concerning Mr. Pomeroy and the other brokers and who do not drive themselves, the applicant union has indicated that it does not wish to represent them, as in its view they are business people and not employees. The evidence presented to the Board confirms this, and the Board finds that these persons are not employees. These individuals generally do not drive exclusively for Mackie on a continuous basis.

[224] The fact that they may occasionally replace their drivers when they are not available does not confer upon them the status of employees. The evidence has established that there are three such brokers, Messrs. Murray Hammond, Art Pomeroy and D. Hill. These individuals supply tractors and drivers not only to Mackie but also to other companies, Verspeeten in the case of Mr. Pomeroy, Bartlett and Sunoco in the case of Mr. Hammond, and Trimack in the case of Mr. Hill; thus it cannot be said that they are economically dependent on Mackie to the degree of those who derive their income exclusively from Mackie, as they derive only a portion of their income from that contractual relationship. The evidence established that Mr. Pomeroy, Mr. Hammond and Mr. Hill also employed a number of drivers, some of whom worked for Mackie.

[225] There are also certain other brokers whose situation is distinguishable from that of Mr. Hammond, Mr. Hill and Mr. Pomeroy and their drivers. These brokers employ drivers but they themselves also drive full time for Mackie and derive all their revenue from Mackie. Some of these individuals, indeed most of them, fall under category (a) of the dependent contractor definition. In the Board’s view, the above analysis concerning brokers without drivers also applies to them. Not only do these brokers meet the Code definition of “dependent contractor” under section (a) of the definition, but they are in fact economically dependent on Mackie and subject to all of the elements of day-to-day control by Mackie that are enumerated above. The Board finds that all brokers who derive all of their income from Mackie and are their employees of Mackie are entitled to collective bargaining under the Code. The drivers from Quebec, based upon Mr. Fortin’s evidence fall within section (a) of the definition. On the evidence all are economically dependent on Mackie. Additionally, their degree of independence and operational distinctiveness is not such that they should be excluded. Therefore, they are included.

[226] With respect to the drivers of brokers who are not clearly so economically dependent such as Mr. Pomeroy, Mr. Hammond and Mr. Hill, the Board is guided by the findings of the Canada Labour Relations Board in Brookville Transport Limited, supra:

Turning now to the drivers of owner-operators, we see no valid reason why these people should be treated differently from the owner-operators for the purposes of Part I of the Code. They are certainly just as economically dependent on Brookville as the owner-operators. They operate vehicles which are under contract to Brookville, on Brookville’s behalf and in Brookville’s name just as the owner-operators do. The difference is, of course, that they are not direct parties to the contract and they do not supply the vehicles which they operate. They still are, however, an integral component of Brookville’s operations. Once they have been approved by Brookville to drive in its name, these drivers are obligated to operate the vehicles and to transport Brookville’s customers’ goods under terms which are stipulated in the owner-operator contracts as well as in the numerous directives from Brookville which come out periodically in the form of memoranda. Clearly, it is Brookville that these drivers should be negotiating with regard to the terms and conditions under which they operate. The owner-operators who purportedly hire them have little to do with them once they are assigned to a vehicle. Except for the occasional reporting of mileage and other such paperwork, it is really Brookville that drivers of owner-operators deal with on a day-to-day basis.

Prior to the amendments in 1984, the Board took the position on more than one occasion that drivers of owner-operators were in reality employees of the trucking company for which they were providing the services under the contract. (See K.J.R. Associates Ltd. (1979), 36 di 36; and [1979] 2 Can LRBR 445 (CLRB no.193); and Mercury Tanklines Limited (1984), 55 di 99 (CLRB no. 453).) What is unclear from these decisions, which both pre-date the 1984 amendments, is whether the drivers of owner-operators were to be considered to be employees of the trucking companies in the traditional sense. There is no need to seek the answer to that question now as, with the additional powers given to the Board in 1984 vis-à -vis dependent contractors, the authority is clearly there for the Board to find that drivers of owner-operators are dependent contractors and thereby employees of an employer for collective bargaining purposes. Under paragraph (c) of the definition, which we will repeat for the sake of emphasis,

“(c) any other person who, whether or not employed under a contract of employment, performs work or services for another person on such terms and conditions that he is, in relation to that other person, in a position of economic dependence on, and under an obligation to perform duties for, that other person;”

there are no prerequisites to be an owner, purchaser or lessee of a vehicle or to be employed under a contract of employment to qualify as a dependent contractor. All that is necessary is that the person performs work or services for another person under such terms and conditions that renders the person economically dependent and under an obligation to perform the work or services for the other person. In the circumstances here, where drivers of owner-operators virtually sit in the same seat as the owner-operators, they undoubtedly fall into this category. We find them to be dependent contractors and employees of Brookville under Part I of the Code.

(pages 156-157; and 137-138)

[227] Not only do these employees meet the definition of “dependent contractor,” but their situation is analogous to that of the agency drivers examined earlier in this decision. The Board therefore finds that the only drivers of these brokers who are in fact assigned by the brokers to drive for Mackie are Mackie’s employees.

[228] However, that does not conclude the matter for present purposes. The applicant requested that not only Mr. Pomeroy, but all of his drivers be excluded from the bargaining unit on the basis that their situation was not the same as the other brokers. The basis for such a distinction is that these drivers work for brokers whose level of economic dependence on their Mackie work is not as significant as it is for those who work only for Mackie or almost exclusively for Mackie and the fact that Mackie’s control over their working conditions is somewhat less direct. The Board has evidence that Mr. Pomeroy, Mr. D. Hill and Mr. Hammond also work significantly for other employers and consequently their drivers would appear to be working for enterprises less directly and completely dependent on Mackie. Additionally, their evidence disclosed that Mackie’s control over the work of their employees work was somewhat less direct. Because of the applicant’s request that such drivers not be included in the case of Mr. Pomeroy, the Board is of the view that those driving for Mr. Hammond and Mr. Hill, although employees under the relevant test, share a somewhat divergent community of interest and should, therefore, also be excluded from the defined appropriate bargaining unit.

[229] Also in respect of the issue of the configuration of the bargaining unit, the Board heard in argument from the applicant that it did not wish to include in the bargaining unit the HHG brokers who drive for Mackie under the North American Van Lines banner. This position was not contested by the employer. The applicant took a similar position with respect to Mackie’s Auto Hauling Division that operates in the Maritime provinces. Neither of these two groups of employees is dispatched from Oshawa, and they rarely interact with Mackie’s other drivers. For these reasons, inter alia, these employees are not included in the bargaining unit here defined as appropriate.

[230] The Board also notes here that it received certain posthearing submissions on the part of the employer dated September 22, October 6 and October 23, 2000. These submissions referred to certain additional evidence that the employer sought to introduce respecting negotiations conducted on behalf of the National Truckers Association in which certain of the broker members of the proposed bargaining unit had had a role. It was suggested that the evidence to be introduced would confirm the status of such individuals as independent contractors not subject to the provisions of the Canada Labour Code.

[231] The Board has carefully reviewed these submissions. However, it is not of the view that further oral proceedings need be convened. Based upon its assessment and understanding of these submissions in the context of the relevant Code provisions and a careful consideration of the evidence already before it and the industrial relations context, the Board is of the view that the evidence sought to be introduced is of only marginal relevance in comparison to the evidence cited in this decision and upon which the decision is based.

[232] The Board therefore determines that the appropriate bargaining unit will comprise:

all employees of Mackie Moving Systems Corporation working in and out of the provinces of Quebec and Ontario, including directly-employed drivers, drivers referred by employment agencies working for Mackie and in respect of whom Mackie exercises fundamental control, owner operators and/or brokers, drivers for owner operators and/or brokers who provide transport services only to Mackie, excluding employees in the Pitney Bowes Contract Division, the Lear Seating Contract drivers referred to Mackie by Adams Services, brokers and their drivers whose operations or situation are found by the Board to be more discreet and who do not fully share a community of interest with employees in the bargaining unit, the Auto Hauling Maritimes employees, the Household Goods “A” (Extra provincial) Division employees, and also excluding dispatchers, office and sales staff, supervisors and those above.

[233] Teamsters Local Union 938 is certified for the appropriate unit. In view of the complexity of the facts and issues discussed herein the Board expressly retains jurisdiction in this matter.