[1985] OLRB Rep. July 1173
1657-84-R United Electrical, Radio and Machine Workers of Canada (UE), Applicant, v. Sylvania Lighting Services a division of GTE Sylvania Canada Limited, Respondent, v. Group of Employees, Objectors
BEFORE: Harry Freedman, Vice-Chairman, and Board Members W H. Wightman and L. Lenkinski.
APPEARANCES: Frank Piserchia for the applicant; D. Churchill-Smith and Peter Christie for the respondent; John Belisle and Eddie Deas for the objectors.
DECISION OF HARRY FREEDMAN, VICE-CHAIRMAN AND BOARD MEMBER L. LENKINSKI; June 27, 1985
In this application for certification, the Board, differently constituted, by decision dated October 23, 1984, appointed a Labour Relations Officer to inquire into and report to the Board on the composition of the bargaining unit and the list of employees. Pursuant to that direction, the Officer convened meetings with the parties and issued a report dated February 18, 1985, on February 11, 1985. In accordance with Form 68, Notice of Report of Labour Relations Officer, the applicant filed detailed written submissions with respect to the conclusions the Board should reach in view of the Officer's report, and stated that it did not desire a hearing before the Board. The respondent filed its submission and requested a hearing before the Board in order to permit it to make further submissions to the Board. Accordingly, pursuant to section 67(5) of the Board's Rules of Procedure, the Registrar set this matter down for hearing before the Board on May 17, 1985.
When the hearing of this matter convened, the Board advised the parties that there was no certificate of trade union status on file. During a recess, the applicant obtained a copy of a certificate issued to it by the Board in respect of this respondent in another certification proceeding (Board File No. 2834-84-R). The applicant filed that certificate with the Board when the hearing of this matter resumed. The parties agreed that the Board had found the applicant to be a trade union prior to the hearing before this panel of the Board and further agreed that the Board could rely on that determination in this proceeding. Having regard to the agreement of the parties and pursuant to section 105 of the Labour Relations Act, the Board finds that the applicant is a trade union within the meaning of section l(l)(p) of the Act.
The issue before the Board at this stage of the proceeding is whether certain persons who perform work for the respondent and who are nominally the employees of Manpower Services (Ontario) Limited (hereinafter referred to as Manpower) are, for purposes of the Labour Relations Act, employees of the respondent. The applicant asserts that the persons in dispute are the respondent's employees whereas the respondent and the group of employees submit that the persons in dispute are actually employees of Manpower.
The respondent is engaged in the lighting maintenance business on an on-call and contractual basis. Its need for labour fluctuates a great deal, and for that reason, it has used temporary help agencies, such as Manpower, to supply it with labour on a temporary basis.
The contract between Manpower and the respondent stipulates that the persons supplied by Manpower to the respondent are employees of Manpower. Manpower is responsible for maintaining personnel and payroll records for those employees, computes their wages and withholds the necessary tax and other payroll deductions, remits the amounts withheld to the appropriate agencies and makes the necessary employer contribution to various agencies, pays the employee's wages and fringe benefits, if any, to the employees, provides for liability and fidelity insurance and pays the necessary Workers Compensation Board assessments. Pursuant to that contract, Manpower also undertakes "at the request of customer for any legal reason, [to] remove any of its employees assigned to Customer provided that this arrangement shall in no way affect the right of Manpower, in its sole discretion as employer, to hire, assign, reassign and/or terminate its own employees."
The employees in question are paid by Manpower on cheques issued by Manpower. The employees' wage rate is set out in Exhibit "X', schedule 1 to the contract. The contract provides in Exhibit A:
"SPECIAL CONSIDERATIONS"
After discussion with Customer, Manpower will increase local Light Cleaning Rates in order to maintain competitiveness in local market pay, no more than one increase per market per six months may be considered."
The contract further provides that Manpower's billing rate, which is based on hours worked per employee, will be increased if Manpower is required to increase the wage rates of the employees in dispute.
The hourly billing rate does not contemplate overtime. Where the employees in dispute work authorized overtime, that is, more than eight hours per day or 40 hours in a week, the contract requires the respondent to pay Manpower one and one-half times the hourly billing rate for the overtime hours worked by those employees.
The employees in dispute were referred to the respondent by Manpower. The employees were required to fill in forms and were offered jobs by Manpower. Upon being accepted by Manpower, they were referred to John Caputi, a manager employed by the respondent who is responsible for assigning the employees to work.
The respondent uses both its own employees and employees assigned to it by Manpower to perform the work required by its business. Their working conditions are the same and they occasionally work together. All of the employees wear uniforms supplied by the respondent, are dispatched by the same person, Mr. Caputi, and perform the same type of work. Indeed, one of the employees in dispute worked as a group leader supervising both the respondent's own employees and the employees supplied to the respondent by Manpower.
The employees supplied by Manpower are fully integrated into the respondent's operations. Their day to day work supervision is done by the respondent, not Manpower. The respondent has a significant degree of control over what hours those employees will work, where they will work, and indeed even if they will work for it. The respondent, in our view, is actually responsible for the direct cost of those employees' wages since their wages are charged back to the respondent based entirely on hours worked. While the employees in dispute may be referred to other employers by Manpower, and the respondent and Manpower have in both their contract and in the way the employees are paid made it clear to the employees that the respondent and Manpower treat those employees as employees of Manpower, the Board is required to examine, not just the legal form of the arrangement, but the actual way in which the arrangement is carried out.
Numerous cases were cited to us in argument, including Templet Services, [1974] OLRB Rep. Sept. 606; Kennedy Lodge Inc., [1984] OLRB Rep. July 931, Don Mills Foundation (1984), 1984 CanLII 5257 (ON LA), 14 L.A.C. (3d) 385 (P. Picher), Sutton Place Hotel, [1980] OLRB Rep. Oct. 1538, York Condominium Corporation, [1977] OLRB Rep. Oct. 645 and K-Mart Limited, [1983] OLRB Rep. May 649. In our view, the principal concern of this Board in determining which one of two or more persons is the employer of employees for purposes of the Labour Relations Act is who is the person that exercises "fundamental control over the working lives and working environment of those in dispute." (See Sutton Place, supra).
The respondent submitted that its arrangement with Manpower was based on very practical business considerations in order to permit it a great deal of flexibility in its use of labour. Nothing before us suggested that the arrangement was made for any purpose that would circumvent the Labour Relations Act or affect the rights of the employees in question under the Act. Our determination in this case must rest on our assessment of the factors that assist us in deciding which entity is the employer under the Act. While we recognize the real utility of the respondent's arrangement with Manpower whereby a pool of temporary labour is available to it, our decision should not focus on the purpose of the arrangement, but rather on what the arrangement is.
In this case, it is not necessary for us to review in detail all of the facts elicited by the parties. We are satisfied that the day to day control of the employees' working lives rests with the respondent, and not Manpower. The respondent decides where those employees will work, who they will work with, what work they will perform and whether they will work overtime. Manpower is primarily a payroll service for the respondent, who pays Manpower a rate calculated on the hours worked by the employees it supplies to the respondent. The respondent must also pay a premium for employees who work overtime and must also pay any increase in the wage rates that Manpower pays to those employees. Manpower does not supervise, train or evaluate the employees' performance. The employees in dispute are fully integrated into the respondent's operations. Their work responsibilities and reporting procedures are indistinguishable in all material respects from the respondent's other employees. We are therefore satisfied that the respondent is, for purposes of the Labour Relations Act, the employer of the persons who are supplied to it by Manpower.
This matter is hereby referred to the Registrar to be re-listed for hearing at the earliest possible date to deal with all outstanding issues, including the agreed-upon bargaining unit description which appears to apply to locations not originally described in the Board's Notice to Employees, the degree of membership enjoyed by the applicant among the employees in the bargaining unit and the effect, if any, of the statement of desire ified by a group of employees who are opposed to the applicant.
This panel of the Board is not seized with this matter.
DECISION OF BOARD MEMBER W. H. WIGHTMAN;
On the basis of the report of examination by the Labour Relations Officer which contained the evidence of one of the affected individuals, John Belisle, I disagree with the finding of the majority and would instead find the sixteen persons in dispute to be employees of Manpower Temporary Services.
It is important to note that no attempt has been made to characterize the arrangement entered into between the Respondent and Manpower Temporary Services as anything other than a pragmatic and practical solution to the problem of fluctuating staffing needs. The Respondent employs a core group of people and supplements this group with temporary personnel in a fashion which is "not uncommon in the industry" according to evidence of the general manager, Mr. Christie. The arrangement with Manpower Temporary Services has been in place about four years but indeed from the outset of the enterprise, some ten years ago the Respondent has had similar arrangements with one or another company offering temporary help services on a similar basis.
This arrangement is operative not only in Toronto but, as well, in the Municipalities of London and Peterborough.
With references to fluctuations in staffing requirements Mr. Christie testified as follows:
..... Our industry is fairly dynamic in the sense that it is relatively young, and as such we have have highly volatile cyclical patterns in our sales development. We have seasonal patterns that have not as yet been developed to a strong point; we have cyclical patterns within three-month, four-month period of time. We hire part-time assistants ranging from one day to three months depending on the projects that we have acquired."
On any given day there may be as many as sixteen or as few as two temporary personnel required. The arrangement with Manpower allows for some continuity in the persons assigned and this is desirable not only from this standpoint of having "experienced" personnel available but also because it has provided the Respondent with an accessible pool of individuals to which the Respondent has turned with offers of employment to replace or add to its cadre. The evidence is that five such offers have been extended and accepted.
John Belisle, one of the four disputed persons who was examined submitted at our hearing that while he enjoyed being assigned by Manpower to the work at Sylvania he particularly appreciated the fact that he could refuse that assignment and still expect Manpower to offer him alternative assignments. He also recognized that assignment to work other than at Sylvania might come at the suggestion of his employer, Manpower, and indeed at least one such suggestion or invitation has been extended to him.
Thus the arrangement, while having clear business benefits for the Respondent company, also has its appeals to those persons who choose, for whatever reasons, to be employed by Manpower Temporary Services. This mutually beneficial arrangement results in an effective deployment of human resource skills and it seems to me should be encouraged as a matter of public policy.
On other occasions the Board has laconically observed that employees should not be the last to know who their employer is. This is not a case of that genre. The applicant union and some of the disputed persons may perceive it would be in their interest for the Board to find that they are employees of Sylvania but all who were examined knew from whence their pay cheques came, (Manpower) and who it is that pays, or co-pays, their fringe benefit package (again Manpower).
Belisle asserted unequivocally before us that he is an employee of Manpower. At that juncture it seems to me it becomes incumbent upon anyone who disagrees with Mr. Belisle's assertion to prove it. Such a case was not made out in my view.
The question of determining who is the employer was canvassed thoroughly in Sutton Place Hotel [1980] OLRB Rep. Oct. 1538, where at para. 29 of the decision the Board begins to illustrate how the indicators used for making such a determination have pointed in different directions in numerous cases. In my view, the first case cited, Templet Services [1974] OLRB Rep. Sept. 606, is on all fours with the case before us even to the point of involving the same entity as the provider of temporary help. The specific words quoted from para. 14 of Templet Services, supra are worthy of restatement here:
"While the immediate direction of these persons is undertaken by Mr. Hoppe, the overriding control of their work clearly resides in Manpower. In addition, there is no evidence before the Board of any intention between the respondent and the persons affected by this application to create the relationship of employer and employee. Manpower provides a service which the respondent has evidently found some occasion to use. The fact that the persons affected by this application are in close physical proximity to the respondent does not obscure the underlying nature of the relationship between them and Manpower. It is to Manpower that they work for setting the rate for the job, payment of wages, assignment to jobs, overall control and to whom they, in reality, render their services".
For a thoughtful discussion of the social policy implications of decisions which may frustrate the efficient deployment of human resources in a society which, if not in transition is at least dynamic and changing, I commend the decision of Board Member, J.P. Wilson at page 972 of Kennedy Lodge Inc. [1984] OLRB Rep. July 931.
Whatever impact this decision will have on the application for certification is unknown to me but, more important, it is irrelevant to the issue before us which I consider to be of a threshold nature and of significant importance in terms of its social policy implications. For the reasons adumbrated above I would find the disputed persons to be employees of Manpower and not appropriate for inclusion for purposes of collective bargaining with persons who will have an on-going interest and relationship with the Respondent company.