[1981] OLRB Rep. November 1607
2226-80-R Canadian Union of Public Employees, Applicant, v. Owen Sound Public Utilities Commission, Respondent
BEFORE: R. O. MacDowell, Vice-Chairman, and Board Members M. J. Fenwick and J. A. Ronson.
APPEARANCES: W Brown and G. 0. McPhee for the applicant; J. A. Gurnham and G. M. Fairfield for the respondent.
DECISION OF THE BOARD; November 3, 1981
This is an application under section 106(2) of the Act. In view of the nature of the dispute which has arisen, it may be useful to briefly review the course of these proceedings to date.
A certification application was filed on January 19, 1981. There was no dispute between the parties concerning the description of the bargaining unit, and the union submitted documentary evidence of membership on behalf of well over fifty-five per cent of the employees in that unit. Apparently, there was a dispute between the parties concerning the exclusion of "foremen" from the bargaining unit, however, the parties decided that they would not put that issue to the Board and waived their right to a formal hearing in the matter. By decision dated February 13, 1981, — and without any mention of the foreman issue of which it was then unaware, — the Board issued a certificate to the applicant embodying the bargaining unit description to which the parties had apparently agreed. That bargaining unit description, it will be observed, excludes "foremen".
There is no dispute that at the time the above mentioned certificate was issued, there remained an outstanding issue between the parties concerning the status of certain foremen; however, the parties were content to deal with this matter at the bargaining table and by letter dated February 16, 1981, a representative of the applicant wrote to the respondent as follows:
"Dear Sir:
As you are aware, we expect to receive certification shortly from the Ontario Labour Relations Board, for a certain group of your employees.
In a telephone conversation with Mr. J. MacDonald of the Ontario Labour Relations Board, I indicated the classification "Foreman" was a classification we could not agree to exclude or at least not on the basis of the duties and responsibilities that are presently being performed by the persons in that classification.
Mr. MacDonald relayed to you that we were prepared to try to resolve the matter of Foremen during negotiations and if the matter was still outstanding at the conclusion of negotiations between the parties, we would then apply to the Labour Board to assist in resolving the matter.
I was assured by Mr. MacDonald that this arrangement was acceptable to you.
I wish to thank you for your co-operation in this matter. It is appreciated."
Bargaining was conducted by Gerald McPhee, another union representative. He told the Board that on the basis of the certificate, he assumed that the foremen were excluded and so instructed the local bargaining committee. While he did not agree with that exclusion, he accepted it and negotiated a collective agreement on that basis. He did not think he was entitled to address the matter.
The foreman issue came up at several points in the bargaining. At one meeting, the respondent raised the possibility of adding a further exclusion of temporary employees, and McPhee responded that the union was not prepared to agree to any alteration of the terms in the recognition portion of the Board certificate. McPhee acknowledged the respondent's concern about the temporary employees, but noted that the union was equally concerned about the exclusion of foremen. For the time being, he said, both parties would have to live with the status quo of the Board certificate. Later, McPhee agreed to a minor alteration of the recognition clause which the parties were then discussing, by substituting the term "foremen" for "foreman". McPhee told the Board that this alteration was "academic" because, in his view, foremen were excluded and he was negotiating on that basis. The recognition clause in its present form, excluding foremen, was initialed by McPhee as "OK". The foreman question did not appear on a list of "items remaining in dispute" prepared at the request of a conciliation officer. McPhee admits that, as far as he was concerned, the matter was settled and there was no need to put it on this list of outstanding or unresolved issues.
On or about June 29, 1981, following the intervention of the conciliation officer, the parties were able to reach an accommodation, and a formal collective agreement was executed. This agreement contains a recognition clause excluding foremen, but on September 23, 1981, a representative of the applicant wrote to the Board seeking the appointment of a Board officer to inquire into the "employee status" of three named foremen. Not surprisingly, the respondent objected to the appointment on the ground that this issue had been resolved or abandoned, and it was too late to claim that there was any question remaining between the parties. The sections of the Labour Relations Act relevant to this matter are as follows:
1(3) Subject to section 90, 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.
106(2) 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 to the Board and the decision of the Board thereon is final and conclusive for all purposes.
- In Westmount Hospital [1980] OLRB Rep. Oct. 1572. the Board had this to say about the timeliness of applications under section 106(2) (formerly section 95(2)):
"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 Hidro, [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."
Thus, where the employment status of a person has been settled by a collective or other form of agreement, the Board will not permit one party to unilaterally repudiate that agreement by an application under section 106(2). If the parties have resolved the status issue by their agreement, neither can claim that a "question" has arisen between them so as to trigger section 106(2). This bar is not absolute, of course, nor would it be applicable where either party has expressly reserved its right to have an outstanding issue determined under section 106(2). This is what the applicant has done by its letter of February 16, 1981, and if there were no other evidence before the Board, the Board would give effect to it, and accede to the union's request. However, it is clear from McPhee's evidence that, despite this reservation, the union subsequently engaged in negotiations and concluded a collective agreement on the basis that the foremen would not be included in the bargaining unit. Indeed, McPhee was quite clear and candid on this point. As far as he was concerned, the issue was resolved. There was no outstanding "question" between the parties, and none was suggested until the union's section 106(2) application almost three months later.
In view of the evidence before it, the Board is of the view that it should adopt the approach taken in Westmount Hospital and decline to appoint a Board officer. It cannot be said that, in the circumstances, there is any "question" between the parties which must be resolved at this time. The issue has been settled (for the time being at least) by the parties themselves and section 106(2) can have no application.
The application is dismissed.