Canadian Union of Public Employees Local 1000 v. Ontario Hydro, 1981 CanLII 3549

Ontario Labour Relations Board

File No.: 2620-80-M Canadian Union of Public Employees Local 1000, Applicant, v. Ontario Hydro, Respondent, v. London Monenco Consultants Limited, Intervener.

BEFORE: R. D. Howe, Vice-Chairman, and Board Members B. L. Armstrong and J. A. Ronson.

APPEARANCES: Jeffrey Egner for the applicant; Janice A. Baker and Marjorie Chatland for the respondent; Martin Addario and J. Turner-Bone for the intervener.

DECISION OF R. D. HOWE, VICE-CHAIRMAN, AND BOARD MEMBER B. L. ARMSTRONG;

1. This is an application under section 95(2) of The Labour Relations Act in which the applicant requests the Board to determine whether or not certain persons are employees of the respondent. The application, which was filed on March 3, 1981, names forty-two persons whom, it is alleged, are employed by the respondent at its Thunder Bay thermal generating station in various classifications.

2. In its March 13, 1981 letter of reply to the application, the respondent denied that the persons set out in the application are employees of the respondent, and reserved the right to make further comments at any subsequent hearings or examinations inquiring into the matter.

3. On March 25, 1981, the Board endorsed the record in this matter as follows:

"The Board appoints Mr. J. Bowman, Labour Relations Officers, to inquire into the changes in duties and responsibilities of the individuals named in the application, since the date of entering into the current collective agreement between the parties."

The appointment was limited to "Changes in duties and responsibilities" in accordance with the Board's general practice as set forth in Westmount Hospital, [1980] OLRB Rep. Oct. 1572, in which the Board stated, at paragraph 4:

"...... 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. 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 the 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 Hvdro, [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."

4. On March 18, 1981, the intervener contacted the Registrar to request details as to the contents of the application. In its written request for that information, the intervener stated that it had reason to believe that its employees had been identified in the application. In the intervention which it subsequently filed in this matter, the intervener states, inter alia, that several of its employees are identified in the application, and "admits" that those persons are "employees" for purposes of the Act.

5. At a meeting convened by the Labour Relations Officer on June 10, 1981 pursuant to his aforementioned appointment, the respondent raised an objection to any further proceedings by way of examination in this matter on the ground that there is no "question" between the applicant and the respondent as to whether any of the specified persons was an "employee" pursuant to section 95(2) and that, accordingly, the Officer had no jurisdiction to embark upon an examination.

6. The Board subsequently scheduled a hearing for the purpose of providing the parties with an opportunity to make representations with respect to that objection.

7. Counsel for the respondent contends that, with the exception of one person named in the application (W. Steasiw), the persons listed in the application were not employees of the respondent on the date of this application. Implicit in her submissions is the suggestion that prior to and at the time of the application, most of the persons in question were employees of the intervener which (it is submitted) supplied and performed engineering services for the respondent with regard to an extension of the respondent's Thunder Bay generating station. She advised the Board that it is the respondent's position that although the persons in question are employees within the meaning of The Labour Relations Act, they are not employees of the respondent. She further argued that since the respondent has conceded that the persons in question are "employees" within the meaning of the Act and would have been considered and treated as such by the respondent if they were employed by the respondent, there is, therefore, no "question" between the parties pursuant to section 95(2). Accordingly, she submitted that the Board Officer has no jurisdiction to enter into an inquiry and that this application should be dismissed. Counsel also submitted that the real question in dispute between the applicant and the respondent is whether the employees in question are covered by the Collective Agreement between the applicant and the respondent. That Agreement dated November 12, 1980, provides that it shall be effective as of April 1, 1980 and shall remain in effect until March 31, 1982. However, she conceded that (with the exception of certain persons who perform clerical duties) most of the persons in question would be covered by that Collective Agreement if they were employed by the respondent. She also expressed the view that the matter should be resolved by arbitration under that Collective Agreement and undertook on behalf of the respondent that it would not raise a jurisdictional objection if the application pursued that avenue of potential redress.

8. Counsel for the intervener submitted that the question in issue is the identity of the employer of the persons in question. It was his position that although the Board may have jurisdiction to deal with that issue in other proceedings, such as a certification application, an application for a declaration under section 1(4) or jurisdictional dispute proceedings under section 81, it does not have jurisdiction to do so under section 95(2).

9. Counsel for the applicant argued that the issue of whether the persons in question are employees of the respondent can and should be decided by the Board pursuant to section 95(2) of the Act, and cited several decisions in support of that submission. On the basis of those authorities, he contended that the respondent's "platonic" admission that the persons in question are employees within the meaning of the Act is meaningless and does not preclude the Board from entertaining this application. He further submitted that the terms of reference of the Board Officer's appointment should be amended to reflect the true issue between the parties. He argued that the issue before the Board is separate and distinct from the issue of whether the persons in question are covered by the applicant's Collective Agreement with the respondent or by any other collective agreement. It was his position that the determination of the threshold issue of whether they are employees of the respondent would serve a useful purpose. He further submitted that the Board's inquiry process through a Board Officer offers practical advantages over arbitration procedures. In response to a concern raised by Board Member Ronson that the applicant might be attempting to use section 95(2) to, in effect, obtain a section 1(4) declaration that the respondent and the intervener constitute one employer for the purposes of the Act, counsel for the applicant advised the Board that he is not asking it to "pierce any corporate veils" or to otherwise apply section 1(4) since it is his position that "section 1(4) would not be appropriate" as the persons in question are "in fact and in law" employees of the respondent.

10. Section 95(2) provides:

"If, in the course of bargaining for a collective agreement or during the period of operation of a collective agreement, a question arises as to whether a person is an employee or as to whether a person is a guard, the question may be referred to the Board and the decision of the Board thereon is final and conclusive for all purposes."

11. As indicated by the Board in Nelson Crushed Stone, [1980] OLRB Rep. Oct. 1500, once a collective agreement has been entered into, a subsequent dispute as to whether or not a particular person is included in the bargaining unit often involves two questions: (I) whether the person is an "employee"; and (2) whether the person is covered by the collective agreement itself, having regard to the language of the "scope” clause of that agreement and any factors relevant to its interpretation. (See also Rio Algom Mines Limited, [1975] OLRB Rep. Jan. 46, and Douglas Aircraft of Canada Limited, [1972] OLRB Rep. Nov. 942.) Under section 95(2), the Board determines only the first question. the second question is a matter for determination by the arbitration procedures specified in the collective agreement, in section 37a of the Act or in section 1 12a of the Act (if applicable), not by a section 95(2) application. As noted by the Board in Nelson Crushed Stone, the first question "usually involves an assessment of whether the person in question 'exercises managerial functions or is employed in a confidential capacity in matters relating to labour relations"'. However, in some cases, it involves the more fundamental issue of whether any employment relationship whatsoever exists between the person in question and the employer which is a party to the collective agreement (i.e., "whether a person is an employee, within the general meaning of that term, of a particular employer": see Hydro-Electric Power Commission of Ontario (1971), 23 L.A.C. 111, at 1 12 (Weatherill). The Board has held in several cases that it has jurisdiction to determine that fundamental issue under section 95(2).

12. In Central Supermarkets Limited, [1967] OLRB Rep. June 299, the Board was presented with an argument similar to that submitted to the Board in the instant case by the respondent and the intervener, namely, that "while there was no agreement as to the identity of the employer the respondent agreed that the persons in question were employees for the purposes of the Act and, therefore, no question could arise within the meaning of section [95(2)]." In rejecting that argument, the Board stated:

"5. The Board is of the view that it is empowered not only to decide whether a person is an employee but whether or not the person is an employee of the employer who is a party to the collective agreement referred to in section [95(2)] of the Act. It is not the Board's function to determine the question of the employment status of a person in space, because such determination would be impossible. The employment status of a person can only be determined with relation to a specific employer. The admission by the respondent that the persons in question are employees for the purpose of the Act is a meaningless admission unless the identity of the employer is also agreed to.

6. This issue has been previously dealt with by the Board in the Loblaw Groceterias Co. Limited case, Board File 9845-64-M, in its decision of March 2nd, 1965, wherein the Board stated as follows:

As a preliminary objection to the Board's jurisdiction to enter­tain this application, counsel for the intervener argues that the issue raised by the applicant is outside the subject-matter of inquiry authorized by section [95(2)] of the Act. He maintains that the inquiry authorized by this section is restricted to the issue of whether a persons's particular kind of employment qualifies him as an employee for purposes of the Act. In other words, whether, for example, a person is or is not employed in a managerial capacity or in a confidential capacity in matters relating to labour relations or in any other capacity which, by virtue of section 1(3) (a) or (b) or section 2, disqualifies him as an employee within the meaning of the Act. It is his argument that, apart from any other section, if any, which might be available to the applicant for the determination of the issue raised in this application, section [95 (2)] does not empower the Board, at least where the employment status of the person concerned is admittedly in the sense above indicated that of an employee for purposes of the Act, to inquire into and decide whether such a person is an employee of a particular employer. He contends that the section does not confer any jurisdiction upon this Board to adjudicate upon the real question being raised, which, as he argues, is not whether a person is an emloyee as stated in the section but whether a person, here the respondent company, is an employer. Counsel on behalf of the respondent Loblaws supports the intervener's position that the section is not applicable to the issues being raised in this case.

The manifest object and purpose of section [95 (2)] is to provide the parties, while they are bargaining for, or during the operation of a collective agreement between them, with an effective and expeditious procedure by which they can obtain a final and con­clusive adjudication, binding on all interested persons, of any differences likely to arise between them concerning the question as to whether a person is an employee or a guard. It is self-evident that a very important and obvious question which may arise in such circumstances is, of course, whether a person is an employee of the employer concerned in the bargaining or in the collective agreement or whether such person is an employee of an employer who is not concerned in the matter.

It need hardly be stated that the existence of an employment relationship with the employer for whose employees a union has bargaining rights is basic to any obligation on the part of the employer to bargain under section [14] of the Act. It is equally obvious that unless employees have an employment relationship with the employer who is party to a collective agreement, they cannot, by virtue of section [42] of the Act, be bound by such an agreement. A dispute which involves the question as to whether an employment relationship exists between an employee and the employer concerned or with another employer who is a stranger to the bargaining or collective agreement may well, if it continues unresoved, leave the parties in a difficult stalemate, involving consequences detrimental to good industrial relations. Apart from any other consideration, therefore, we find it difficult to believe that the Legislature was unmindful of this kind of problem arising between the parties when it enacted the section.

It cannot be doubted that the first and indispensable prerequisite of an 'employee' for purposes of the Act is an employment relation­ship with the 'employer' sought to be affected by the particular provision of the Act under consideration. Moreover, no considera­tion of the meaning of the word 'employee' in section [95 (2)] can be meaningful without reference to the other sections of the Act where the word is clearly used in the sense of indicating the existence of an employment relationship as well as denoting the kind of employ­ment relationship needed to qualify the person as an employee for purposes of the Act (see e.g. section 1(2), 5,6, 7, 8 and 9). We are, therefore, at a loss to appreciate how the question of whether a person is an employee for purposes of the Act can properly be con­sidered apart from his employment relationship with a particular employer. Employees as such do not exist in space but only by virtue of an employment relationship with their employer.

In our view, it is more consistent with the language of the section and with the sense in which the word 'employee' is used throughout the Act and with the remedial procedure sought to be afforded by the section, to construe the words whether a person is an employee in section [95 (2)] as conferring plenary jurisdiction on this Board to inquire into all questions relating to the status of a person as an employee for purposes of the Act including the identity of the employer with whom the person has the employment relationship than to adopt the restrictive, and we think, narrow-guaged inter­pretation advocated by the intervener and the respondent Loblaws.

In the result, we are impelled to find that the present application and the issues raised therein come within the subject-matter of inquiry authorized by section [95 (2)].

7. While the Board is of opinion that it has jurisdiction to entertain an application under section [95 (2)] in the instant case, its determination of whether or not the persons in question are employees of the respondent for the purpose of the Act does not include a determination of whether or not the persons are employees of the respondent falling within the bargaining unit described in the collective agreement binding upon the applicant and the respondent. We are of opinion that the question of whether or not such persons are employed within the geographic area of the collective agreement is a matter to be determined by a board of arbitration, constituted pursuant to the provisions of the collective agreement.~~"

Similarly, in the more recent case of Sunnybrook Hospital, Board File No. 0874-77-M, dated April 24, 1978, unreported, the Board held that it is within its jurisdiction under section 95(2) of the Act to determine whether certain persons are employees of the respondent employer. That decision reads in part as follows:

"1. This is an application under Section 95(2) of the Act. In its letter of September 23, 1977 the applicant characterized the issue as 'whether S.H.U.T.C. secretaries are in fact employees of Sunnybrook Hospital or some other organization.'

2. In a decision dated September 30, 1977 the Board ruled that 'the issue raised by the instant application is one which falls to be determined upon an application of the recognition clause in the subsisting collective agreement between the applicant and respondent and accordingly, it is a matter which must be referred to arbitration under the grievance and arbitration provisions of the subsisting collective agreement.' The applicant by letter dated October 20, 1977 requested reconsideration of the Board's decision under Section 95(1) of the Act. In a decision dated January 24, 1978 the Board advised the parties that the matter would be put on for hearing in order to allow all interested parties to make representations.

3. The Board has considered the representations of the parties and is satisfied that its initial decision in this matter was in error. The question as to whether the persons who have been challenged are employees of the respondent, is within the Board's jurisdiction to determine, under section 95(2) of the Act. (See re Loblaw Groceterias case, 66 CLLC para. 16,078, Central Supermarkets, [1967] OLRB Rep. June 299.) The Board said in the latter case that:

'... it is empowered not only to decide whether a person is an employee but whether or not the, person is an employee of the employer who is a party to the collective agreement referred to in section 79(2) (now 95(2)) of the Act. ...'"

Accordingly, the Board appointed a Board Officer in the Sunnybrook case to "inquire into whether the [persons in question] are employees of [the respondent] and to report to the Board." (See also Nick's Haulage Limited, [1970] OLRB Rep. Nov. 871 and 873.)

13. The Board's practice of appointing a Board Officer to inquire into matters such as those raised by the present application and then considering the submissions of the parties with respect to the Officer's report, provides an effective and efficient procedure for resolution of such issues. Particularly where, as in the present case, a relatively large number of employees are involved, the Board's procedures may be more expeditious and less expensive than arbitration as a means of obtaining a determination concerning whether or not certain persons are employees of a particular employer who is a party to a collective agreement.

14. The respondent does not dispute that most, if not all of the persons named in this application, other than those who perform clerical functions, are covered by the aforementioned Collective Agreement between the parties if they are employees of the respondent. Thus, the issue in dispute clearly goes beyond the interpretation of their Collective Agreement to the more fundamental issue of whether any employment relationship whatsoever exists between the persons in question and the respondent; indeed, that fundamental issue is not dependent upon the existence of a collective agreement at all. Accordingly, there is nothing which makes arbitration the particularly appropriate forum for resolving that issue. The Board's determination of the employment status of the persons in question will serve a useful purpose for the applicant and the respondent, in that it will resolve most, if not all of the matters in dispute between them. Moreover, if they are unable to resolve any remaining dispute as to whether one or more of those persons is covered by the Collective Agreement in force between them, the Board's section 95(2) finding may be a relevant fact for consideration in arbitral proceedings initiated to resolve such dispute (see Re Canadian Industries Ltd., [1972] 3 OR. 63 (C.A.), but see also Re General Concrete of Canada Limited [1978], 22 OR. (2d) 65 (Div. Ct.)). Counsel advised the Board that arrangements have already been made with the Labour Relations Officer with respect to a number of dates for the continuation of his inquiry, which dates will be used in the event that the Board rules that he has jurisdiction to proceed. The existence of those scheduled dates is a further factor which makes it desirable for this application to proceed, as it is important from a labour relations perspective that the employment status of the persons in question be determined as expeditiously as possible.

15. It was not suggested by any of the parties that the issue of whether or not the persons in question are employed by the respondent was settled by the current Collective Agreement or by any other form of agreement between the applicant and the respondent, nor was it suggested that the applicant had in any way acquiesced in the position taken by the respondent on March II, 1981 that the persons in question are not its employees. Thus, the Board is satisfied that this is an appropriate case in which to revise the terms of the Board Officer's appointment to more accurately reflect the issue in dispute between the applicant and the respondent.

16. For the foregoing reasons, the aforementioned endorsement of May 25, 1981 in this matter is hereby revised to read as follows:

"The Board appoints Mr. J. Bowman, Labour Relations Officer, to inquire into and report to the Board on whether the individuals named in the application are employees of the respondent."

17. The matter is referred to the Registrar.

DECISION OF BOARD MEMBERS J. A. RONSON:

The dissent of Board Member J. A. Ronson will issue at a later date.