[1980] OLRB Rep. October 1572
1030-80-M Westmount Hospital, Applicant, v. Ontario Nurses' Association, Respondent.
BEFORE: M. G. Mitchnick, Vice-Chairman, and Board Members F. W. Murray and B. L. Armstrong.
DECISION OF THE BOARD; October 6, 1980
This is an application under section 95(2) of The Labour Relations Act, requesting the Board to determine whether the Head Nurses employed at the applicant hospital are "employees" within the meaning of the Act.
The respondent Ontario Nurses' Association asks the Board to dismiss the application on the ground that the Head Nurses have already been determined, by a decision of the Board dated February 3, 1976, to be "employees" within the meaning of the Act. The respondent takes the position therefore that the issue is res judicata.
The Board does apply a doctrine analogous to res judicata to situations of this kind. See Central Park Lodges, Board File No. 2049-79-M, released March 12, 1980. That doctrine does not, however, preclude a fresh application where the duties and responsibilities have changed in a material way from those before the Board in its prior determination. That is precisely what is alleged by the applicant in the present case. The Board would, therefore, normally appoint a Labour Relations Officer limited to inquiring into the changes in duties and responsibilities since the date of the prior application.
The parties, however, are currently bound by the collective agreement entered into on May 12, 1980. Where parties have by virtue of their collective agreement or other form of agreement settled upon the employment status of a person, the Board at one time refused to let either party at any time withdraw unilaterally from that agreement by means of an application under section 95(2) of the Act. (See, for example, Belleville General Hospital, [1975] OLRB Rep. June 487.) The basis for this policy is that a party having entered into an agreement on the status of a particular person, cannot, in the absence of a material change in duties and responsibilities, come before the Board and claim that a "question" exists as to the status of that person. More recently, the Board has liberalized this policy so as to permit an application to be brought during negotiations for the renewal of a collective agreement, after the collective agreement has expired. Parties therefore are no longer bound indefinitely to the terms of an initial agreement. The Board will not however, permit an application (other than one relating to changes in the duties and responsibilities) to be brought during the first set of negotiations following agreement upon the status of the person in question (Collingwood General Marine Hospital, [1975] OLRB Rep. Jan. 18). Nor will it permit a full application to be brought during the term of a collective agreement, unless it is satisfied either that the position is a new one arising during the term of the collective agreement, or that the applicant prior to entering into the collective agreement expressly reserved its right to bring a subsequent section 95(2) application on the person in dispute. Otherwise the applicant will be taken to have acquiesced in the position of the other party, and to have accepted it at least for the term of that collective agreement. The Board upon receipt of an application under section 95(2) during the term of a collective agreement therefore automatically limits the appointment of a Board Officer in inquiring into changes in the duties and responsibilities since the date the agreement was entered into (e.g. Ontario Hydro, [1975] OLRB Rep. July 560). If the applicant feels that the appointment should not be limited to "changes", it may write to the Board setting out its reasons, and the Board may hold a hearing to deal with the proper terms of the appointment.
In the present case, as noted, the parties are in fact covered by an existing collective agreement. The Board accordingly appoints an officer to inquire into changes in the duties and responsibilities of the Head Nurses since the date the collective agreement was entered into, and to report to the Board thereon.