[1999] OLRB REP. MARCH/APRIL 199
0343-98-R; 2132-98-U; 3002-98-G; 3004-98-G Shawn Hany Pope, Applicant v. The International Brotherhood of Electrical Workers and the I.B.E.W. Construction Council of Ontario, Responding Party v. Harry Pope & Son's Limited, Intervenor; Shawn Harry Hope, Applicant v. I.B.E.W. Local 804, Responding Party v. Harry Pope & Son's Ltd., Intervenor; International Brotherhood of Electrical Workers, Local 804, Applicant v. Harry Pope & Son's Limited, Responding Party
BEFORE: Jules B. Bloch, Vice-Chair.
APPEARANCES: Richard M. Van Buskirk for Harry Shawn Pope; Harrison Rees for Harry Pope & Son's Limited; L. Steinberg and T Keagan for the International Brotherhood of Electrical Workers, Local 804.
DECISION OF THE BOARD; April 13, 1999
Board File No. 0343-98-R is an application pursuant to section 63 of the Labour Relations Act, 1995 ("the Act") brought by Shawn Harry Pope.
The parties agreed that there was an a priori issue that had to be dealt with prior to dealing with the merits of the applications referred to above in the style of cause. I must decide whether Shawn Harry Pope is an employee for the purposes of the Act and consequently may bring an application pursuant to section 63 of the Act.
The International Brotherhood of Electrical Workers, Local 804 ("I.B.E.W.") asserts that Shawn Harry Pope is an owner and consequently is not an employee under the Act and therefore cannot bring an application for the termination of bargaining rights. The I.B.E.W. asserts that the representations made to the I.B.E.W. by John Pope and confirmed by Shawn Harry Pope should lead the Board to conclude that Shawn Harry Pope is not an employee for the purposes of the Act. Further, Shawn Harry Pope is excluded from the bargaining unit as a consequence of being an owner. Shawn Harry Pope was the only person working on the tools, on the application date. In fact for the last three years he was the only person doing bargaining unit work for the company. In that regard, the Company has availed itself of section 1000(t) of Local 804's Appendix, which allows owner/operators to work on the tools. The benefit accorded the company through section 1000(t) is that the company does not have to pay certain remittances, allowing for a less expensive rate for the owner/operator when doing bargaining unit work.
Shawn Harry Pope through his solicitor asserts that at all material times he was an employee in the bargaining unit and never exercised managerial functions. His ownership in terms of shares represents five shares out of 3,500 outstanding shares and consequently he should not be excluded from the bargaining unit on that basis.
The parties referred to section 1(3)(b) and section 63(2) of the Act which is reproduced below and section 1000(t) of Local 804's Appendix of the collective agreement between The Electrical Trade Bargaining Agency of the Electrical Contractors Association of Ontario and The International Brotherhood of Electrical Workers and The IBEW Construction Council of Ontario representing the following affiliated Local Unions 105, 115, 120, 303, 353, 402,530,586,773, 804, 894, 1687 and 1739 which is also reproduced below:
1(3) Subject to section 97, for the purposes of this Act, no person shall be deemed to be an employee,
(b) who, in the opinion of the Board, exercises managerial functions or is employed in a confidential capacity in matters relating to labour relations
- (2) Any of the employees in the bargaining unit defined in a collective agreement may, subject to section 67, apply to the Board for a declaration that the trade union no longer represents the employees in the bargaining unit,
(a) in the case of a collective agreement for a term of not more than three years, only after the commencement of the last two months of its operation;
(b) in the case of a collective agreement for a term of more than three years, only after the commencement of the 35th month of its operation and before the commencement of the 37th month of its operation and during the two-month period immediately preceding the end of each year that the agreement continues to operate thereafter or after the commencement of the last two months of its operation, as the case may be;
(c) in the case of a collective agreement referred to in clause (a) or (b) that provides that it will continue to operate for any further term or successive terms if either party fails to give to the other notice of termination or of its desire to bargain with a view to the renewal, with or without modifications, of the agreement or to the making of a new agreement, only during the last two months of each year that it so continues to operate or after the commencement of the last two months of its operation, as the case may be.
Clause 1000
(t) Owner/Operators who are signatory to this Agreement and who perform bargaining work shall not be required to contribute to the following funds on their own behalf, unless acting as a Subcontractor signatory to this Agreement: Health & Welfare, Vacation Pay and Pension.
All other funds must be paid for a minimum of one hundred forty-four (144) hours per month in the amounts and manner described in Clauses 900 J. 1 through 1001 inclusive.
The issue before me crystallized at a meeting that was held sometime near the end of 1994 or at the beginning of 1995 to deal with a remittance grievance. The union alleged that the company failed to remit the proper remittances for Shawn Harry Pope. That grievance was settled and in the context of the grievance meeting, John Pope, Shawn Harry Pope's father, raised an issue about saving money. In his view he should not have had to pay the pension contribution for Shawn, because Shawn was a shareholder and owner of the company and consequently the company would be his pension. Mr. Keagan the Business Representative involved said that if Shawn was an owner of the company then the company could avail itself of section 1000(t) of Local 804 Appendix. That section creates an exemption for owner/operators in respect of health and welfare, pension, and vacation pay remittances.
After meeting with John Pope, Tom Keagan asked for a meeting with Shawn. Shawn Harry Pope met with Tom Keagan to discuss the situation about section 1000(t). At that meeting Tom Keagan explained that John Pope, Shawn's father, had raised with him Shawn's status as an owner in the company and that as a consequence of that status the company could avail itself of section 1000(t). At that meeting Shawn Pope did not dispute that he was an owner but remained silent about that. Towards the end of the meeting Tom Keagan asked Shawn whether he was comfortable with the change. Shawn indicated that he was comfortable and from that time forward Shawn and the company availed themselves of section 1000(t).
The union takes the position that they relied on the assertions of John Pope and Shawn Pope and on that basis applied section 1000(t). In the union's view, at all material times, Shawn was an owner and consequently he cannot bring an application for termination of bargaining rights. During the time in question Shawn Pope was the only person that was working on the tools, doing bargaining unit work. The union asserts that the normal functionality test in regard of the 1(3)(b) exemption cannot apply in a situation where there is only one person working on the tools and that person is an owner.
Shawn Harry Pope asserts that at the time in question he was 22 years old and did not have a complete understanding of what was asked of him in respect of the meeting with Mr. Keagan. In particular he participated in saving money for the company and did not realize that the questions about remittances and the resulting savings would in fact take him out of the trade union or change his status. He knew that he was an owner in the company because he had a small amount of shares. As well he knew he would inherit the company, however, that does not in his view change his status.
This case presents a unique factual underpinning for the question about employee status. Shawn Harry Pope for the previous four years has been the only individual in this company who performed bargaining unit work. At all material times he performed this work as an owner/operator pursuant to Local 804's Appendix.
Shawn Harry Pope asserts that whether or not the collective agreement confers on him a characterization of owner/operator, the Board must look behind that characterization and apply a functionality test to determine whether or not he is an employee. (See Hamilton Automatic Vending Company Limited, [1991] OLRB Rep. Dec. 1354; Tradesmen Fabricating Ltd., [1984] OLRB Rep. Aug. 1141; Northern & Central Gas Corp. Ltd., [1987] OLRB Rep. June 887; F Causarano Fishery Ltd., [1988] OLRB Rep. Jan. 23; Reynolds-Lemmerz Industries, [1995] OLRB Rep. Jan. 59; as well as other cases asserting the same proposition.)
It is true that a functionality test is helpful to the Board in deciding who is an employer under the Act. However, the test is of limited assistance when there is only one person doing bargaining unit work and that person is conferred with an owner/operator status by operation of the collective agreement. In effect, this agreement allows an owner/operator to do bargaining unit work, and allows the company to save on remittances. It is very difficult to apply the functionality test in a context where there is only one person doing bargaining unit work. This difficulty is exacerbated when there is no evidence of who hires, fires, gives time off or any of the other indices of managerial activity.
The company has represented to the union that Shawn Harry Pope is an owner, and that status was not contradicted by Shawn Harry Pope at the meeting with Tom Keagan. It would be inappropriate for the Board to find that Shawn Harry Pope is an employee. The company represented to the I.B.E.W. that Shawn Harry Pope was an owner. Shawn Harry Pope acquiesced in that characterization. The company availed itself of section 1000(t) for the past three or four years. At all material times, Shawn Harry Pope owned shares in the company. I find that Shawn Harry Pope is an owner and consequently cannot bring an application for termination of bargaining rights pursuant to section 63 of the Act.
I find that Shawn Harry Pope is not a person who can bring an application for terminating bargaining rights.
I would dismiss this application.