[1983] OLRB Rep. February 222
1907-82-M Cochrane Temiskaming Resource Centre, Applicant, v. Ontario Public Service Employees Union, Local 664, Respondent
BEFORE: M. G. Mitchnick, Vice-Chairman, and Board Members F. W. Murray and B. L. Armstrong.
DECISION OF THE BOARD; February 15, 1983
- The Board is in receipt of a letter dated January 6, 1983. That letter begins:
Dear Sir:
This is to officially make application to have our Residence Supervisors exempt from the Ontario Public Service Employees Union which has been certified at our Centre since 1976.
We had made application concerning this in October 1980 which was heard and a decision not to exempt the Residence Supervisors at that time was handed down in April 1981 (File No. 1688-80-M).
The letter then goes on to articulate a number of reasons why the Residence Supervisors ought to be excluded from the bargaining unit, including a recommendation to that effect by the Ministry of Community and Social Services, the fact that they are excluded at a number of other Centres, and various arguments relating to the duties which the Residence Supervisors perform.
- The trade union in its reply disagrees that the Residence Supervisors are "managerial", but more particularly states:
In the light of a previous application to the Board on this same issue, we ask that the Board dismiss this application in that it brings nothing further of significance forward that was not considered in the earlier decision.
The trade union's characterization of the applicant's letter appears to the Board to be accurate. A determination by the Board must be made solely on the basis of the actual duties and responsibilities as they exist at a particular place of employment. The situation at other places of employment is irrelevant for the Board, as the precise facts may be different, and indeed do not even provide a basis for comparison unless the Board itself has been called upon the make a determination respecting those other places of employment. Nor does the recommendation of the Ministry have any bearing upon the quasi-judicial determination which the Board is required to make. The applicant does not appear, apart from those references, to put forward any suggestion of changes to the duties and responsibilities of the Residence Supervisors since the time of the Board's prior determination. Indeed, the job description filed with the application in support of the applicant's position was generated February 1, 1978 and shows no amendments of any kind since August of 1979. Rather, the applicant appears to be attempting to present to the Board a stronger argument and, more significantly, better evidence from its point of view, than it chose to do the first time around. But it appears that all of this was available to the applicant during the course of the Board's prior determination, and it was the responsibility of the applicant (and not the Board) to bring any such matters forward in support of its case at that time. The applicant's letter really amounts to a request for reconsideration of the Board's earlier decision. But as the Board has stated, for example, in Canadian Union of General Employees, [1975] OLRB Rep. Apr. 320:
Generally, the Board will not reconsider a decision unless a party proposes to adduce new evidence which could not previously have been obtained by reasonable diligence ... or a party wishes to make representations or objections not already considered by the Board that he had no opportunity to raise previously. (International Nickel Co. of Canada Ltd. [1963] OLRB Rep. 234, 64 CLLC ¶15,493 (Ont. H.C.); Detroit River Construction Case (1962) CLLC ¶16,260). Both legs of this principle depend upon the applicant having been diligent and therefore having had no opportunity to draw the Board's attention to the object of its concern.
No basis for reconsideration exists in the present case.
- Nor will the Board deal with this as a fresh application under section 106(2) of the Act. That section provides:
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 of the Board thereon is final and conclusive for all purposes.
Where a determination of "employee" status has already once been made, the Board has expressed the basis upon which subsequent applications may be brought as follows:
- ... 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) [now 106(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).
Westmount Hospital, [1980] OLRB Rep. Oct. 1572.
Here the parties are in the course of a collective agreement, so that, even if the Board were to find it could entertain a second 106(2) application on the very facts already adjudicated upon, it would not do so at the present time.
- The application is accordingly dismissed.