United Food and Commercial Workers International Union v. Almonte Nursing Home, 1987 CanLII 3063

Ontario Labour Relations Board

File No.: 1625-85-R Date: July 29, 1987 Citation: [1987] OLRB Rep. July 945

United Food and Commercial Workers International Union, Applicant v. Almonte Nursing Home, Respondent

BEFORE: M. G. Mitchnick, Vice-Chair, and Board Members F. W. Murray and B. L. Armstrong.

DECISION OF THE BOARD

1. This is an application filed by the employer under the provisions of section 106(1) of the Labour Relations Act, asking the Board to reconsider and amend a certificate issued by it on Octo­ber 18, 1985. Section 106(1) provides:

The Board has exclusive jurisdiction to exercise the powers conferred upon it by or under this Act and to determine all questions of fact or law that arise in any matter before it, and the action or decision of the Board thereon is final and conclusive for all purposes, but nevertheless the Board may at any time, if it considers it advisable to do so, reconsider any decision, order, direction, declaration or ruling made by it and vary or revoke any such decision, order, direc­tion, declaration or ruling.

2. The variation now sought is specific exclusion from the bargaining unit of the position of "secretary/clerk", whom the employer asserts is a member of management. The bargaining-unit description in the certificate itself was an agreed-upon one, coming to the Board by way of the "waiver-of-hearing" process. The employer points out that, while it agreed to the bargaining-unit description ultimately contained in the certificate, the position of "secretary/clerk" was left off the Schedule of employees it filed with the Board entirely, and that the position has always in fact been treated as an excluded one. From these assertions, we take the employer to be saying that it does not and did not consider the "secretary/clerk" to be someone who would be included in an "all­ employee" description of a bargaining unit, and that that description ought now to be varied by the Board to more accurately reflect that exclusion.

3. The employer does not deny the trade union's assertion that the parties have, since the certificate, entered into a collective agreement to cover the bargaining unit in question. That is a fact of some significance, because it has always been the position of this Board that it will not reconsider a certificate or vary its terms once the parties have entered into a collective agreement. The rationale for this is that once a collective agreement is entered into, the certificate ceases to be the controlling document in defining the scope of the bargaining rights held by the trade union. As it was put by Chief Justice Laskin in Terra Nova Motor Inn Ltd., 74 CLLC ¶14,253: "once a collec­tive agreement is negotiated, the certificate has served its purpose and is, for all practical purposes, spent". See Gilbarco Canada Ltd., [1971] OLRB Rep. March 155; Public Service Alliance of Canada, [1987] OLRB Rep. Feb. 265. The bargaining unit is defined from that point by the collec­tive agreement, and any question of exclusion from the coverage of the collective agreement is a matter for negotiation (or arbitration) between the parties.

4. That question, it should be noted however, is distinct from the question of whether an individual occupying a particular position is an "employee" for the purposes of the Labour Relations Act. Most frequently material in that regard is section 1(3)(b) of the Act, which provides:

(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.

As the Board attempted to explain and separate these two issues in, for example, Nelson Crushed Stone, [1980] OLRB Rep. Oct. 1500:

2. Once a collective agreement has been entered into, a subsequent dispute as to whether or not a particular person is a member of the bargaining unit often involves two questions. The first question is whether the person is an "employee" within the meaning of The Labour Relations Act. That is the only question to which the Board addresses itself under section 95(2). and usu­ally involves an assessment of whether the person "exercises managerial functions or is employed in a confidential capacity in matters relating to labour relations" within the meaning of section 1(3)(b) of the Act. It is, unfortunately, not as clear as it might be whether this is a question which, in the context of a collective agreement, can only be brought before the Ontario Labour Relations Board for determination. See Canadian Industries Ltd., 1972 CanLII 483 (ON CA), [1972] 3 OR. 63; Re Miller et a! and Algoma Steelworkers Credit Union, 75 CLLC ¶14,289; Re General Concrete, (1978), 1978 CanLII 2178 (ON HCJDC), 22 OR. (2d) 65. In any event, if it is determined that the person is an "employee" within the meaning of The Labour Relations Act, the second (and ultimate) question is whether the person is covered by the collective agreement itself, having regard to the language of the "Scope" clause and any factors relevant to its interpretation. That question may be determined by the parties pursuant to the grievance and arbitration provisions of the collective agreement. It might be further noted, as an incidental matter, that once a collective agreement is entered into, the Board itself (in normal circumstances) considers the effect of its own certificate to have been "spent", in the sense that it is the language of the collective agreement negotiated by the parties which then governs as to the extent of the bargaining unit currently represented by the trade union. See Gilbarco Canada Ltd.,[1971] OLRB Rep. March 155.

Section 106(2) [previously 95(2)] of the Act itself 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.

If the Board finds the person not to be an "employee" for the purposes of the Act, it does not mat­ter whether the person appears on the face of a collective agreement to fall within its scope or not: a person who is not an "employee" for the purposes of the Act cannot be represented by a trade union in collective bargaining under that Act, nor covered by a "collective agreement" as that term is defined by the Act. See, e.g., Northern Telecom, [1983] OLRB Rep. Jan. 95.

5. However, in interpreting and applying section 106(2) of the Labour Relations Act, the Board has adopted certain estoppel-like principles which bring a measure of stability to a given col­lective-bargaining relationship over the issue of inclusions or exclusions, and which the Board sum­marized in another decision of October 1980, Westmount Hospital, reported at page 1572 of the monthly reports:

1. This is an application under section 95(2) of The Labour Relations Act, requesting the Board to determine whether the Head Nurses employed at the applicant hospital are "employees" within the meaning of the Act.

2. The respondent Ontario Nurses' Association asks the Board to dismiss the application on the ground that the Head Nurses have already been determined, by a decision of the Board dated February 3,1976, to be "employees" within the meaning of the Act. The respondent takes the position therefore that the issue is res judicata.

3. The Board does apply a doctrine analogous to res judicata to situations of this kind. See Central Park Lodges, Board File No. 2049-79-M, released March 12, 1980. That doctrine does not, however, preclude a fresh application where the duties and responsibilities have changed in a material way from those before the Board in its prior determination. That is precisely what is alleged by the applicant in the present case. The Board would, therefore, normally appoint a Labour Relations Officer limited to inquiring into the changes in duties and responsibilities since the date of the prior application.

4. 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 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). 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.

6. To summarize, the Board does not, as the applicant has requested, exercise its jurisdic­tion under section 106(1) of the Act for the purpose of varying a certificate it has issued, partic­ularly once a collective agreement has been entered into by the parties to that collective-bargaining relationship. The Board does, however, retain the jurisdiction under section 106(2) to determine questions which may "arise" as to whether a person is in any event an "employee" for the pur­poses of the Act, but that jurisdiction is exercised in accordance with the principles set out in Westmount Hospital, supra.

7. The request by the employer for the Board to reconsider and vary the terms of the certi­ficate issued by it on October 18, 1985, is accordingly denied.