[1981] OLRB Rep. November 1638
1267-81-M Service Employees Union, Local 268, Applicant, v. St. Joseph's General Hospital, Respondent.
BEFORE: M. G. Mitchnick, Vice-Chairman, and Board Members F. W. Murray and B. L. Armstrong.
DECISION OF THE BOARD; November 24, 1981
This is an application pursuant to section 106(2) of the Labour Relations Act, requesting the Board to determine whether certain named persons are "employees" within the meaning of the Act. The first correspondence from the applicant was received by the Board on September 8, 1981.
The respondent employer was sent a copy of the application by the Board on October 15, 1981, once all of the necessary information had been obtained from the applicant. The employer then replied by letter of October 28, 1981, which read in its material respects:
The persons whom the Union contends are "employees" under the Act are employed in positions which have been specifically excluded under the provisions of the Collective Agreement and have been so excluded since the first agreement.
The previous Collective Agreement expired March 31st, 1981 and the parties have on October 1, 1981 concluded a new agreement running from April 1, 1981 to May 31, 1982.
The Hospital's position in respect of the Union's Application under Section 106(2) is that Board policy set in previous cases precludes the Union from referring such a question to the Board on the following grounds:
(1) Where the parties have entered into a Collective Agreement without reservation of an issue relating to section 106(2), the Board treats the parties as having accepted the status quo at least for the term of that Agreement.
(2) The Union did not reserve an issue relating to Section 106(2) and a Collective Agreement has been duly entered into as stated above on October 1, 1981.
The applicant was sent a copy of the employer's letter by the Board on November 2, 1981, but has filed no reply.
- The Board's policy in regard to matters of this sort was discussed in Westmount Hospital, [1980] OLRB Rep. Oct. 1572, particularly 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. 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 to 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).
There is nothing in the material before the Board to suggest that the applicant placed the respondent on notice prior to entering into the new collective agreement that it was reserving its right to dispute the status of certain persons before the Board, or even that the status of such persons was an issue. In these circumstances, the Board has difficulty saying that a question has even "arisen" between the parties in the
courseof negotiations, as those words are used in section 106(2). While it is clear from the two parties' correspondence that a question exists now between the parties, that question can fairly be said to have arisen only qfter the consummation of the new collective agreement. Pursuant to its normal policy, therefore, the Board appoints an officer to inquire into and report to the Board on any material changes in the duties and responsibilities of the following persons since the new collective agreement was entered into on October 1, 1981:Joan Cuff Secretary & Clerk to Medical Director 2. Jeanette Langilla Confidential Payroll Clerk 3. Lois Riddell Secretary to Radiology 4. Jim Poulin Storekeeper 5. Joyce Bourke Secretary to Rehabilitation 6. Lorana Deluca Secretary to Pathologists 7. Maire Kelly Assistant Medical Records Librarian.