International Union of Operating Engineers Local 793 v. Corporation of the Town of Meaford, 1980 CanLII 937

International Union of Operating Engineers Local 793 v. Corporation of the Town of Meaford

1469-79-R International Union of Operating Engineers Local 793, (Applicant), v. Corporation of the Town of Meaford, (Respondent).

BEFORE: Ian C. A. Springate, Vice-Chairman, and Board Members H. J. F. Ade and O. Hodges.

APPEARANCES: Jack Redshaw for the applicant; Donald F. Hersey and Susan A. Bisset for the respondent.

DECISION OF THE BOARD; May 15, 1980.

1This is an application for certification in which the applicant has applied to be cer­tified to represent a unit of employees of the Corporation of the Town of Meaford. At issue is the question of whether certain employees working at the Lakeview Cemetery and the Meaford and St. Vincent Community Centre, both of which are located in the Town of Mea­ford, are employees of the Town.

2As contemplated by section 68 of The Cemeteries Act the Lakeview Cemetery is vested in, and managed by, the Board of Park Management of the Town of Meaford. The Board of Park Management was established pursuant to the provisions of The Public Parks Act. Section 4 of that Act deems the Board of Park Management to be a corporation. Sec­tion 8 authorizes the Board to "employ all necessary clerks, agents and servants", and also provides that the Board may prescribe the duties and compensation of employees. Section 1(7) of the Act stipulates that when a Board of Park Management ceases to exist, "every offi­cer and employee of the Board of Park Management becomes a municipal employee and continues as such until removed by the Council" (emphasis added). On the basis of these statutory provisions, we are satisfied that so long as it continues to exist, the Board of Park Management is an employer independent of the Town of Meaford, and accordingly, em­ployees of the Board of Park Management working at the Lakeview Cemetery are not em­ployees of the Town of Meaford. In this regard see The Board of Park Management of the City of Belleville, [1974] OLRB Rep. April 219.

3The Meaford and St. Vincent Community Centre is operated by the Committee of Management of the Meaford and St. Vincent Community Centre. The relevant statute here is The Community Recreation Centres Act which empowers a municipality to appoint a committee for the management and control of a community centre. The Act contemplates that actual ownership of the centre will remain with the municipality. The Act does not deem a committee of management to be a corporation, nor does it refer to such a committee as having employees of its own. A reading of the Act as a whole satisfies us that the purpose of a committee of management is simply to manage the day-to-day affairs of a community centre on behalf of a municipality, and that such a committee has no separate legal status as an employer separate and apart from the municipality which creates it.

4The evidence indicates that the Town of Meaford treats the Committee of Man­agement of the Community Centre in much the same way as it does the Board of Park Man­agement. According to Mr. Floto, the Meaford Town Clerk, the Committee alone is re­sponsible for hiring employees and for setting their conditions of employment. To our mind, this situation reflects only the fact that the Town has seen fit to give the committee a Wide de­gree of discretion which, by itself, cannot have the effect of creating the Committee as a sep­arate employer in its own right.

5The Meaford and St. Vincent community Centre is named after the Town of Mea­ford and the nearby Township of St. Vincent. The Town owns the land on which the com­munity centre is located, and presumably is also the sole owner of the centre. The township, however, paid twenty-five per cent of the initial capital cost of the community centre and contributes twenty-five per cent of its operating costs. In return, residents of the Township are entitled to use the community centre, and the Township selects two of the seven mem­bers on the Committee of Management. This type of arrangement between the two munici­palities is contemplated by section 4 of The Community Recreation Centres Act. These facts raise the question of whether the two municipalities might be viewed as joint employers of employees working at the community centre. On the material before us, however, particu­larly Bylaw 4-79, enacted by the Town of Meaford and the terms of the formal agreement entered into between the two municipalities, it appears that the Committee of Management is a creation only of the Town of Meaford and that the Meaford Town Council formally ap­points all seven of its members, albeit that two represent and are selected by the Township of St. Vincent. Apart from selecting two of the committee members to be appointed by the Town of Meaford, the Township's involvement appears simply to be that of making pay­ments towards the capital and operating costs of the community centre in return for ensuring its residents can make use of its facilities. In our view, this is not sufficient to make the Township a joint employer with the Town. Accordingly, we are satisfied that employees working at the community centre are employees only of the Town of Meaford.

6At the hearing, Board Member Hodges twice raised the issue of the applicability of section 1(4) of the Act to the facts of this case. Section 1(4) permits the Board under cer­tain circumstances to treat one or more corporations as constituting a single employer for the purposes of the Act. On both occasions the representative of the applicant stated that he was not seeking to have the Board apply section 1(4).

7Having regard to all of the above, we are satisfied that employees at the Meaford and St. Vincent Community Centre are employees of the respondent, but that persons working at the Lakeview Cemetery are not. The respondent is directed to file an amended list of bargaining unit employees which includes those working at the community centre.```