[1985] OLRB Rep. September 1347
0943-85-R Hotel Employees Restaurant Employees Union Local 75, Applicant, v. The Ambassador Building Maintenance Limited, Respondent, v. Cleary Auditorium and Memorial Convention Hall, Intervener, v. Group of Employees, Objectors
BEFORE: M. G. Mitchnick, Vice-Chairman, and Board Members R. Swenor and H. Kobryn.
APPEARANCES: B. P. Wilson and Ray Fourchette for the applicant; R. D. Perkins and K. J. Fitzpatrick for The Ambassador Building Maintenance Limited; Patrick Brode and David Tinning for Cleary Auditorium and Memorial Convention Hall; no one appearing for the objectors.
DECISION OF THE BOARD; September 18, 1985
This is an application for certification.
The respondent Ambassador takes the position that it is not the employer of the employees in question, but rather is performing nothing more than a "payroll service" for the actual employer, Cleary Auditorium and Memorial Convention Hall.
The respondent has entered into a contract with Cleary Auditorium with respect to the the provision of janitorial services at the auditorium. That contract is not in the respondent's standard form, but rather was drafted by Cleary Auditorium, and provides in particular:
The Committee [of Trustees of the Cleary Auditorium] hereby covenants and agrees that the Supplier [Ambassador] will have the right to supply labour for janitorial services, window cleaning and furnishings placement as authorized by Auditorium Management...
The Supplier hereby covenants and agrees to provide janitorial service within the hours and conditions as set by the Manager of the Cleary Auditorium and Memorial Convention Hall hereinafter referred to as the Manager, and to provide the number of employees and hours of labour as directed by the Manager, together with supervision as may be required, and to maintain the premises of the Cleary Auditorium and Memorial Convention Hall to the complete satisfaction of Management, all in accordance with the terms of this Agreement.
Notwithstanding paragraph 5, however, the facts are that Ambassador has at no time provided either employees or supervisors with respect to the performance of janitorial work at the Cleary Auditorium. Rather, all employees have been hired directly by Cleary, through application forms on the letterhead of the Cleary Auditorium, and all aspects of the employees' working conditions, including supervision of the employees themselves, have rested solely with management of the Cleary Auditorium. Every second Thursday Ambassador receives a telephone call from the Cleary Auditorium advising them as to which employees are to be paid for that pay period, and how much. Ambassador then prepares the payroll cheques, subject to the usual payroll deductions, and makes them available for pick-up by Cleary Auditorium, who then distributes them to the employees. At the request of Cleary, the employees are also subject to a benefit plan which Ambassador has established, not for its own cleaning employees in the city, but rather for its management personnel. Ambassador has no other involvement with the employees being employed to perform the janitorial work at the Auditorium, nor has it ever had any direct contact with those employees. In light of those facts, disclosed before the Board, the applicant acknowledges that it would appear to be the Committee of Trustees of the Cleary Auditorium and Memorial Convention Hall with respect to whom it ought to have applied for certification.
The Board agrees. We note, to begin with, that paragraph 1 of the contract simply provides for the "right" of the supplier to supply labour for janitorial services "as authorized by Auditorium Management", without indicating that it in fact has ever been authorized or required to do so. That unusual wording, together with the broad overriding powers granted to the management of the Cleary Auditorium in paragraph 5, appears to raise an ambiguity with respect to this point on the face of the document itself. But whether or not that is the case, the Board has made clear in innumerable cases, in dealing with the issue of the "true employer"~ , that ~ must govern over ~ and that the two potential employing parties cannot, by virtue of the form of the contract between them, bind a third party to the determination of who the "true employer" is. See, e.g. Kennedy Lodge, [1984] OLRB Rep. July 931. In this case the question of who the true employer is for the purposes of an application for certification is unequivocally determined by the actual manner in which employees have been hired, supervised, and had their working conditions set, and that employer is Cleary Auditorium and Memorial Convention Hall.
The application brought with respect to Ambassador Building Maintenance Limited is accordingly dismissed.