Ontario Association of Weight Counsellors v. Weight Loss Inc., 1980 CanLII 889

[1980] OLRB Rep. December 1841

0176-80-R Ontario Association of Weight Counsellors, Applicant, v. Weight Loss Inc., Respondent.

BEFORE: R. D. Howe, Vice-Chairman, and Board Members F. W. Murray and O. Hodges.

APPEARANCES: B. P. Bellmore for the applicant; W. J. McNaughton and M. Langille for the respondent.

DECISION OF THE BOARD; December 1, 1980

1. By decision dated June 6, 1980, another panel of the Board certified the applicant under section 6(1 a) of The Labour Relations Act as the bargaining agent for a bargaining unit at Hamilton as described therein, pending final resolution of the composition of the bargaining unit. In that decision the Board described the dispute between the parties with respect to the Hamilton and London bargaining units as follows:

"11. There was disagreement between the parties as to exemptions from the bargaining unit claimed by the respondent. The latter seeks to exclude Area Director, Assistant Area Director, office and sales staff and persons regularly employed for not more than 24 hours per week. The applicant agrees to the exclusion of Director, but objects to the exclusion of certain persons as 'sales staff and 24-hour people. The respondent has persons regularly employed for not more than 24 hours per week and the Board grants the request for their exclusion from the units of full-time em­ployees.

12. The persons whose status is in dispute are Sarah C. Bethune, classified as Assistant Director, employed at Hamilton, whose exclusion is sought under section I(3)(b) of the Act, and Sandar [sic] L. McGlynn­McVey, whose exclusion is sought on the grounds that she is a sales person. She is employed at London. A third exclusion was sought for Ricky Wraight as a sales person employed at Burlington. Wraight, how­ever, is in the group of employees regularly employed for not more than 24 hours per week. This group does not have sufficient membership to entitle it to certification or a vote in any event, so that the request need not be inquired into further.

13. Accordingly, the Board appoints Ms. B. McLean, Labour Relations Officer, to inquire into the duties and responsibilities of Sarah C. Bethune and Sandra L. McGlynn-McVey, and report to the Board thereon.

14. The final disposition of the application with respect to the em­ployees at London must await the outcome of the report of the Labour Relations Officer with respect to the duties and responsibilities of Sandra L. McGlynn-McVey."

2. By letter dated June 19, 1980, counsel for the respondent advised the Registrar as follows:

"Re: Ontario Association of Weight Counsellors and Weight Loss Inc.

• Board File No. 0176-80-R

We are in receipt of the Decision of the Ontario Labour Relations Board in the above matter. There appears to be a clerical error in paragraphs 11, 15 and 17 and the Board's Certificate for the Burlington location. The paragraphs and the Certificate both have the exclusion as the 'Area Director, Assistant Area Director,' the exclusion, I believe ought to read 'Director, Assistant Director,' which would be in line with the agreement of the parties, and in line with the Board's statement in paragraph 11, 'The applicant agrees to the exclusion of Director.'

Would you kindly forward the corrected Decision and Certificate at your earliest convenience."

3. It is common ground between the parties that the exclusion intended by them was "Clinic Director" rather than "Area Director", as confirmed by a written Agreement dated November 18, 1980, which was filed with the Board on November 20, 1980 by counsel for the respondent. Accordingly, paragraphs 11, 15 and 17 of the aforementioned decision and the Certificate (for Burlington) dated June 6, 1980 issued pursuant to paragraph 19 of that decision are hereby amended to read "Clinic Director" instead of "Area Director" wherever the latter appears therein. The present decision will also, of course, reflect that Agreement.

4. The report of the Labour Relations Officer reads in part as follows:

"Pursuant to my appointment as Labour Relations Officer, authorized to inquire into the duties and responsibilities of Sarah C. Bethune and Sandra L. McGlynn-McVey, and to report to the Board thereon, I con­vened a meeting of the parties in Hamilton on Tuesday, June 24 and in London on Wednesday, June 25, 1980.

Present and representing the parties were:

For the Applicant

Mr. Weir Milne Counsel Ms. Lucy Morton Employee and President of the Trade Union

For the Respondent

Mr. Steve Harrington Counsel Ms. Erica Foote Area Director

The positions of the parties with respect to the two challenged positions are as follows:

The Respondent seeks the exclusion of Sarah Bethune (Assistant Director, Hamilton), on the basis of the managerial and confidential (with respect to labour relations) aspects of her duties and responsibilities as per section l(3)(b) of the Labour Relations Act. The Applicant how­ever, seeks Ms. Bethune's inclusion into the bargaining unit on the basis of her employee’s status.

The Respondent seeks the exclusion of Sandra L. McGlynn-McVey (Consultant, London), on the grounds that she is employed in a 'sales' capacity. Conversely, it is the Applicant's position that Ms. McGlynn­-McVey is not employed as a 'sales' person and should properly be in­cluded in the proposed bargaining unit.

Following the examination of Sarah Bethune, the Applicant called one witness in reply — namely;

Ms. Lois Davidson Director, Hamilton Clinic

The parties were afforded full opportunity to be heard to examine and cross-examine witnesses and to introduce evidence bearing on the issues before me.

Dated at TORONTO this 25th day of July, 1980.

(signed) "B. McLean"

B. McLean,

Labour Relations Officer"

A copy of that report was forwarded to the parties together with Form 11 on July 25, 1980.

5. On August 5, 1980, the Board received a registered letter from counsel for the respondent which included the following:

Please be advised that it was the Respondent's position at the original hearing and was the Respondent's position at the time of the examina­tions that with regard to Sarah Bethune, the exclusion was sought both with regard to the managerial and confidential aspects of her duties (Section l(3)(b) and on the basis that she lacks a community of interest with the other employees.

Please be advised that the Respondent requests a hearing to make representations on the conclusions the Board should reach in view of the Report. On behalf of the Respondent, we undertake to appear at a hearing in the above matter.

Counsel for the applicant was not provided with a copy of that letter.

6. At the hearing before this panel of the Board on November 14, 1980 held at the request of counsel for the respondent for the purpose of hearing the oral representations of the parties as to the conclusions which the Board should reach in view of the aforementioned report, counsel for the respondent candidly conceded that the respondent is "on shaky ground" with respect to its contention that Ms. Bethune "exercises managerial functions or is employed in a confidential capacity in matters relating to labour relations" within the meaning of section l(3)(b) of the Act. Thus, the main thrust of his argument was that Ms. Bethune should be excluded from the Hamilton bargaining unit as, in his submission, she is employed in a "sales" capacity and does not share a community of interest with the other employees in that bargaining unit.

7. Counsel for the applicant submitted that the issue before this panel with respect to Ms. Bethune's inclusion in or exclusion from the bargaining unit was defined by the previous panel in paragraph 12 of its decision dated June 6, 1890 as set forth above. Accordingly, he contended that unless counsel for the respondent could satisfy the Board that the functions performed by Ms. Bethune are within the ambit of section l(3)(b), she must be included in the bargaining unit. Thus, it was his position that the applicant was precluded from converting the issue with respect to Ms. Bethune from a section l(3)(b) issue to a community of interest issue.

8. Having regard to the submissions of the parties with respect to this matter, the Board is of the view that in the circumstances of this case, Ms. Bethune must be included in the bargaining unit unless the Board is of the opinion on the basis of the Labour Relations Officer's report that she exercises managerial functions or is employed in a confidential capacity in matters relating to labour relations. The delineation of the scope of the issues to be inquired into and reported on by a Board Officer is not merely a technical matter. If that process is to be viable, it is essential that the Officer and the parties appearing before the Officer know with certainty in advance of the examination the precise scope of the issues which are to be dealt with; otherwise, it would not be possible for the representatives of the respective parties to properly prepare for and participate in the examination process. Thus, principles of fairness and natural justice require that each party know a reasonable time prior to the examination the nature and scope of the issue or issues to which the examination will pertain. A number of the questions asked by a Board Officer in an examination in which section l(3)(b) is in issue are different than those asked in an examination in which the issue is that of community of interest. Furthermore, the questions asked and additional evidence introduced by the respective parties could also differ materially depending upon which of those matters was in issue. Indeed, the respective questions put to Ms. Bethune by the representative of the applicant and the representative of the respondent following her initial examination by the Labour Relations Officer confirm that the representatives of both parties understood the issue with respect to the inclusion or exclusion of Ms. Bethune to be confined to section l(3)(b).

9. If it was the respondent's position at the original hearing that the exclusion of Ms. Bethune was sought both on the basis of section l(3)(b) and on the basis that she lacks a community of interest with the other employees at Hamilton, it was open to counsel for the respondent to notify the Board prior to the examination that the Board's decision of June 6, 1980 did not in his view accurately reflect the respondent's position. It is apparent from the aforementioned letter dated June 19, 1980 that counsel for the respondent was aware that a letter is an appropriate vehicle by which to notify the Board that a portion of a decision does not accurately reflect a particular position asserted or agreed upon at the Board hearing which preceded the decision.

10. For the foregoing reasons, the Board concludes that the only issue properly before it with respect to Ms. Bethune is whether or not she should be excluded from the bargaining unit under section l(3)(b) of the Act.

[Reasons for finding that Ms. Bethune is not excluded under section l(3Xb) omitted]

15. As noted above, the respondent contends that Sandra L. McGlynn-McVey, who is employed by the respondent in London as a "Consultant", should be excluded from the London bargaining unit on the grounds that she is a "sales" person who comes within the "office and sales staff' exclusion.

16. The respondent's London operation is a clinic which assists overweight persons in reducing their weight through nutritional guidance and counselling. As of April 25, 1980, the date of this application, the respondent employed five persons at London the Clinic Director, Ms. McGlynn-McVey (hereinafter referred to as the "Consultant") and three nurses. When a prospective client telephones the clinic, the Consultant, the Clinic Director or one of the nurses ("Whoever gets to the phone first") answers and attempts to arrange for an appointment (referred to as a "consultation") for the person. Consultations were described by the Consultant in the following words: "That's when you bring someone in who is interested in the programme and explain it to them, tell them all about it and what we're doing here and hope that they'll join the programme during the clinic." Three-quarters of the consultations are done by the Clinic Director with the remaining quarter being done by the Consultant. The Consultant devotes approximately 25% of her total working time to consultations. About one-third of the Consultant's working time is devoted to telephoning and mailing letters and brochures to "NSR's" ("No Sale Returns"), who are persons who have attended the clinic to hear about the programme but have decided not to join. Those calls, brochures and letters are part of the respondent's sales programme and are designed "to try to get the people back in and join the programme". The remainder of the Consultant's working time is spent doing office work such as re-booking appointments which clients have either cancelled or failed to attend (which accounts for approximately 20% of her working time); preparing bank deposits and balance sheets, attending at the bank to "pick up the receipts" and to make deposits, and sending receipts and other information to "Home Office" (which accounts for 5 to 10% of her working time); and "covering for the nurses" by taking a client "in for a daily". Ms. McGlynn­-McVey provided the following explanation of a "daily": "Our clients come in on a daily basis for the weight loss period of their programme. So if the nurses — we do have three nurses — but if they're very busy, if we have a lot of clients waiting, then I'll take them in and that's just getting them weighed, giving them their vitamin, finding out how they're doing in the programme... It was her evidence that she spends only about 5% of her time covering for the nurses.

17. The Consultant receives a base salary plus a bonus for each consultation which results in a client joining the program. The bonus is $3.00 for each person who joins the programme and elects to pay by installments and $5.00 for each person who joins the programme and pays the full cost in advance. By way of contrast, the nurses (whose responsibilities include taking patients' medical histories, giving classes to patients and meeting with clients for their "dailies") receive a higher base salary than the Consultant but do not receive bonuses with the exception of the minimal sums which they receive for "extensions" (clients who, after having gone through their programmes, decide to extend their programmes for a further period).

18. Thus, the evidence as a whole discloses that, although there is some overlapping of duties and responsibilities as might be expected in this relatively small operation, the Consultant spends the vast majority of her time performing sales and office functions which are separate and distinct from the functions for which the nurses are responsible. Accordingly, having regard to all the evidence and the submissions of the parties, the Board finds that Sandra L. McGlynn-McVey is within the purview of the "office and sales staff' exclusion and is, therefore, excluded from the London bargaining unit which is described as follows:

All employees of the respondent at London, save and except Clinic Director, persons above the rank of Clinic Director, office and sales staff and persons regularly employed for not more than 24 hours per week (hereinafter referred to as "bargaining unit #2").

20. A formal certificate will now issue the applicant with respect to bargaining unit #1. [All employees of the respondent at Hamilton, save and except Clinic Director, persons above the rank of Clinic Director, office and sales staff and persons regularly employed for not more than 24 hours per week (to as #1".]

21. A certificate will issue to the applicant with respect to bargaining unit #2.