[1986] OLRB Rep. April 564
2451-85-M London and District Service Workers' Union, Local 220, (The "Union"), v. St. Mary's General Hospital (Kitchener), (The "Employer")
BEFORE: S. A. Tacon, Vice-Chairman, and Board Members I. M. Stamp and B. L. Armstrong.
DECISION OF THE BOARD; April 4, 1986
By letter dated November 22, 1985, the union requested a determination of the employee status for some twelve individuals, pursuant to section 106(2) of the Act. Prior to and subsequent to that request, there have been discussions between the parties, including an arbitration hearing adjourned on consent before completion, concerning these individuals. The Board need not recount these matters in detail except to state that, apart from one individual (B. Weber) who is agreed to be in the relevant bargaining unit, the dispute has not been resolved. The Board notes that a second person challenged (J. Ginns) was terminated on November 8, 1985.
The collective agreement between the parties expiring June 1, 1984 concerning the "full-time" unit was filed with the Board. At the time of the application, the union indicated the parties were negotiating a renewal; the employer has not contested that assertion. Further, the union also represents a "part-time" unit.
On February 12, 1986, the Board appointed Mr. C. Robicheau, Labour Relations Officer, to inquire into the duties and responsibilities of the disputed individuals and the identity to their employer (if any). With respect to this latter aspect, there appears to be no dispute that the hospital is the employer; the issue is whether the persons are employees within the meaning of the Act and, if so, are they covered by the relevant collective agreements. For the reasons set out in Northern Telecom, [1983] ORLB Rep. July 1134, the Board determines the first issue and that determination may or may not be conclusive as to the second issue. If it is not, the dispute over the scope of the collective agreement is properly determined at arbitration.
It is appropriate to refer at this point to the following passage from Westmount Hospital, [1980] OLRB Rep. Oct. 1572 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 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."
The meeting with the Labour Relations Officer was adjourned pending determination by the Board of an issue raised by the employer as to whether the status of certain of the individuals and/or classifications in dispute had been determined by a prior agreement between the parties. The parties forwarded written submissions to the Board in this regard. It is not necessary to set out those submissions except to note that, inter alia, the employer requested a hearing to present evidence of the parties' intention as to the "exclusion" agreed to by the parties in regard to the bargaining units.
With respect to the employer's position that the union is precluded from requesting a determination pursuant to section 106(2) because of the "prior agreement", the Board does not agree. As is stated in the passage referred to above, the Board permits an examination of the duties and responsibilities (in contrast to "changes" in those duties and responsibilities) during negotiations for renewal of a collective agreement notwithstanding a prior agreement as to status. In view of the basis for the examinations, the employer's request to introduce evidence as to intention, as set out in paragraph 5 above, is refused as irrelevant to the matter to be determined. The Board also notes that the examinations, again on the reasoning in Westmount, supra, should not be limited as sought by the employer in items (16), (17) and (18) of its written submissions. Finally, given the foregoing ruling, the Board need not respond specifically to the arguments raised by the union in its submissions.
Accordingly, the Board hereby confirms its appointment of the Labour Relations Officer to inquire into the duties and responsibilities of the individuals noted in the union's request of November 22, 1985, except as regards B. Weber, whom the parties have agreed is in the bargaining unit, and J. Ginns, whose employment terminated on November 8, 1985.