[1987] OLRB Rep. December 1605
1021-87-M United Food and Commercial Workers International Union, AFL:CIO-:CLC, Applicant v. Royal Mattress Limited, Respondent
BEFORE: Robert Herman, Vice-Chair, and Board Members G. O. Shamanski and R. R. Montague.
DECISION OF THE BOARD; December 24, 1987
In a prior decision in this application under section 106(2) of the Labour Relations Act (1987 OLRB Rep. October 1302), the Board appointed a Board Officer to enquire into the duties and responsibilities of the disputed individual, Norman Tremblay, and to report back to the Board. That appointment had been opposed by the respondent employer on the basis that the applicant had agreed during the certification process that Tremblay was not an "employee". Notwithstanding that submission, the Board appointed an officer.
Subsequent to the issuance of the prior decision, the respondent forwarded further submissions to the Board, raising a new ground of objection to the Officer's appointment, submitting that Tremblay had been terminated on May 20, 1987, approximately one month prior to the filing of the instant application. In these latter submissions, the respondent asked that the application be dismissed, as no "question arises as to whether a person is an employee ..." within the meaning of section 106(2) of the Act in circumstances where the individual in question was not employed by the respondent on the date of the application.
In response to these submissions, the applicant union noted that Tremblay was terminated by the respondent on May 20, 1987, for alleged theft. The applicant submits that the Board ought to determine Tremblay's duties and responsibilities as of the date of filing of the application for certification, not the instant application, which occurred on April 2, 1987. The union also takes the position "Mr. Tremblay is temporarily removed from the company payroll until such determination is made in the Counts surrounding his alleged theft. It is also the applicant's position that should Norm Tremblay be found innocent, he should be reinstated with full compensation and seniority which would then mean that Mr. Tremblay would not have been out of the employment of Royal Mattress Manufacturing Company." The submissions forwarded by the union indicate that no collective agreement has yet been negotiated between the parties. In subsequent correspondence, the union also argued "that the Board should not allow employers the opportunity to terminate employees and then take the position that on the date of application they were not employed by the respondent".
Section 106(2) of the Act reads as follows:
(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.
In order to appoint an officer to conduct an inquiry and report back to the Board, with the attendant costs to the parties and drain on Board resources, the Board must be satisfied that "a question arises as to whether a person is an employee ...", within the meaning of the Act. In the instant case, at the time this application was filed the individual in question was not an employee of the respondent. It may well be that an adjudicative decision, or a negotiated resolution between the parties, may determine that Tremblay was an employee of the respondent when this application was filed. Until that time however, there does not appear to be any question with respect to Tremblay's status as an "employee", as both parties agree that at the time of filing of this application Tremblay was not employed by the Company. In these circumstances, the Board considers it appropriate to cancel the Board Officer's appointment as set out in our prior decision, and to adjourn this matter sine die for a period of one year from the date of this decision. Should Tremblay's status as an employee of the respondent be resolved within that period, either panty can forward a request to the Board that it further consider this matter. Although we need not decide at this stage, if Tremblay is not ultimately found to have been an employee of the respondent on June 18, 1987, the date on which this application was filed, the Board will likely dismiss this application. Alternatively, if Tremblay is found to have been such an employee on that date, the Board will likely appoint an officer to inquire into his duties and responsibilities.
If no request to further consider this matter is received within the one year period as set out above, this matter will be automatically terminated.