Vernon John Hermer v. Canadian Union of Public Employees, 1988 CanLII 3629

[1988] OLRB Rep. February 152

1237-87-M Vernon John Hermer, Applicant v. Canadian Union of Public Employ­ees, Respondent

BEFORE: S. A. Tacon, Vice-Chair, and Board Members D. A. MacDonald and B. L. Armstrong.

DECISION OF THE BOARD; February 11, 1988

1. The applicant's name in the style of cause is hereby changed to "Vernon John Hermer

2. This is an application under section 106(2) of the Labour Relations Act.

3. The applicant is an individual seeking a 106(2) determination for the following reasons:

July 29, 1987

Ontario Labour Relations Board,

400 University Avenue,

4th Floor,

Toronto, Ontario,

M7A 1V4

Attention: The Registrar

Dear Sir:

Re: Vernon John Hermer

Section 106 (2) Reference

Pursuant to Section 106 (2) of the Labour Relations Act, Mr. Vernon Hermer is referring to the Board the question of whether he was an employee of the Frontenac County Board of Education and not an independent contractor for the period from September 1, 1985 to Decem­ber 4, 1986. Mr. Hermer was the caretaker/custodian at Clarendon Central Public School for that period of time, and during that time custodians/caretakers employed by the Frontenac County Board of Education were governed by a collective agreement with the Canadian Union of Public Employees.

Mr. Hermer performed certain set tasks daily as required and recorded this in a log book at the Clarendon Central Public School. His work was regularly checked by the Principal of the school, and all cleaning equipment and supplies were provided for Mr. Hermer.

Mr. Hermer is referring this question to the Board at this time, although his position was terminated by the Frontenac County Board of Education as of December 4, 1986, because it was only recently that Revenue Canada Taxation denied an appeal from the Frontenac County Board of Education and upheld the decision that Mr. Hermer was an employee of the Frontenac County Board of Education for purposes of the Canada Pension Plan and the Unemployment Insurance Act. If Mr. Hermer were found to be an employee by the Ontario Labour Relations Board, he would then be in a position to take advantage of some of the terms of the grievance procedure under the collective agreement.

Mr. Hermer did not previously apply to this Board for a determination that he be found to be an employee, as he was not aware of this procedure. He advises that on two occasions he inquired from the Supervisor of Operations and Caretaking Services for the Frontenac County

Board of Education if he could join the union, but on both occasions was advised that he could not because he was an independent contractor.

Mr. Hermer has retained me to act for him in this matter, as you will note from the enclosed authorization. We would ask that a Labour Relations Officer be appointed to make inquiries in this reference.

If you have any questions, please do not hesitate to contact me.

Yours very truly,

"Mary M. McCormick"

Barrister and Solicitor

MM:er

End.

c.c. Vernon Hermer

4. It is also useful to set out the position of the respondent trade union:

January 19,1988.

Ontario Labour Relations Board,

400 University Avenue,

Toronto, Ontario,

M7A Ff7

Attention: Ms. V. Robeson, Registrar

Dear Ms. Robeson:

Re: Board File # 1237-87-M

Frontenac County Board of Education

and

The Canadian Union of Public Employees

Section 106(2) of the Act

We acknowledge receipt of your letter dated January 8th, 1988 and received in this office Janu­ary 12th, 1988.

We wish to advise the Board that we are opposed to the assignment of an Officer under Section 106(2) of the Act in this particular case. In the bargaining relationship between the Frontenac County Board of Education and the Canadian Union of Public Employees a small number of schools were contracted out to private contractors. Claredon Central Public School was one of the schools that was cleaned by private arrangement thus, Mr. Hermer was never a member of the bargaining unit

Since Mr. Hermer is no longer a contractor with the Frontenac County Board of Education it is the position of CUPE that Section 106(2) should not be used for determining whether or not Mr. Hermer was an independent contractor.

As there is no dispute between the Employer and the Union as to employee status there is therefore no need for an investigation of status under Section 106(2) of the Act.

Yours truly,

"Helen O'Regan"

HELEN O'REGAN

National Representative

CANADIAN UNION OF PUBLIC EMPLOYEES.

5. Section 106(2) of the Act reads:

(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.

6. In it appropriate at this juncture to set out the following passage from Central Park Lodges of Canada, [1980] OLRB Rep. Oct. 1373 wherein the Board rejected an application by persons whom the employer (by virtue of its position in an earlier Board proceeding) and the trade union agreed were employees within the meaning of the Act:

7. The contention of the applicant in the present case has been considered and rejected in at least three previous Board cases. In Wallace Barnes Limited 61 CLLC ¶16,198, an employee claimed that she had been improperly discharged and that by virtue of section 1(2) of the Act [which provides that a person does not cease to be an employee by reason of a discharge con­trary to a collective agreement] and 95(2), the Board has jurisdiction to determine whether she was still an employee. In dismissing the application the Board commented:

"In sum, then, it appears to us that when the Legislation is looked at as a whole sec­tion 68 [now section 95] subsection 2, is designed to deal with questions which may arise between the parties who are negotiating a collective agreement and between the parties to a collective agreement during its operation. Moreover, in our view, it was never intended that employees should be able to refer a question under section 68(2) to the Board but rather this was to be left to one or more of the parties to the agree­ment. While in a sense employees in the bargaining unit are parties to a collective agreement, since a trade union acts as their bargaining agent, having chosen that agent to act on their behalf they are bound by its actions and, if a collective agree­ment exists, by the terms of that collective agreement."

In Indusmin Limited [1975] OLRB Rep. March 184, a request by individual employees for a determination of their status was also rejected. Finally, in York University [1978] OLRB Rep. August 790, the Board dealt with a situation in which a group of employees alleged that they were "guards", and thereby excluded from a bargaining unit because of section 11 of The Labour Relations Act. As in the present case, neither the union representing them, nor their employer regarded them as "guards" and it was acknowledged that they had been treated as employees by the parties' collective agreement. In dismissing the application, the Board had this to say:

"In our view there must be a present question arising between the parties to the col­lective bargaining relationship before there can be a section 95(2) referral. Certainly, it is clear that for a question to arise "in the course of bargaining for a collective agreement" it could be necessary for such question to be raised in the "bargaining forum" and must therefore be a question between the parties to that bargaining rela­tionship i.e. the bargaining agent and the employer; we are of the opinion, that it is no less implicit in the language of the section that the question which must arise dur­ing the period of operation of the agreement must also be a question between the par­ties to that agreement."

16. In York University, the Board found that the "guard's exclusion" was intended to protect the interests of the employer, since the inclusion of guards in the bargaining unit might generate a conflict of interest with respect to the protection of the company's property. Section 95(2), in turn, was "intended to promote the stability of labour relations by making available a forum for the settlement of particular questions, where there [sic] are interfering with the general collec­tive bargaining relationship". Where the parties had agreed that the employees in question were not "guards"~ there was no interference with the collective bargaining relationship; and where the company itself had treated the alleged guards as ordinary employees, the Board saw little likelihood of subverting the interests which section 11 was designed to protect. In the result, the Board found that section 95 was restricted to question which arose between the parties, at the bargaining table, or pursuant to the administration of the collective agreement.

17. In our view, the scheme of the Act, the decided cases, and the ramifications of an alternative interpretation, all support the inference that section 95(2) was only intended to resolve disputes between the immediate parties to the bargaining relationship. Section 1(3)(b) is designed to pro­tect the institutional interests and integrity of the bargaining parties; but no such interests are at issue here, and it is unlikely that the mischief to which section 1(3)(b) is directed would arise where the company and the union have mutually agreed on the distribution of "managerial" authority, the composition of the "managerial team", and the scope of the bargaining unit. Indeed, if the parties have been able to reach such agreement, there are good policy and practi­cal reasons why it should not be disturbed. It would not further a stable collective bargaining relationship if the parties could be plunged into litigation on matters which they have already settled - even though an individual employee may be dissatisfied with that settlement. More­over, it seems strange, from a practical point of view, to suggest that the Board should be enter­taining applications brought for the purpose of demonstrating that a company has more (or fewer) managers than either it or the employees' bargaining agent think it has. We agree with the view expressed by the Board in York University, supra that it is implicit that a "question" arising during the negotiation of a collective agreement must involve a question between the bar­gaining parties which must be resolved in order to assist them to reach a collective agreement; and that it is also implicit that a "question" arising during the operation of the collective agree­ment, is intended to refer to disputes between the parties who have a responsibility for adminis­tering that agreement (i.e. the trade union and the employer). Having carefully considered the various submissions of the parties, we are satisfied that section 95 was only intended to resolve issues between the bargaining parties; and was not intended to provide a forum in which employees could question their status when that status was not a matter of dispute between their employer or their trade union. In our view, it is implicit that the "question" to which section 95 refers must involve a question arising between the bargaining parties during the negotiating or operation of the collective agreement.

[Section 95(2) of the Act referred to above is now section 106(2).]

7. The instant case deals not with the contrast between an "employee" and the "manage­rial" exclusion but between the applicant's status as an "employee" or "independent contractor". The applicant, however, is an individual; no "question" has arisen between the bargaining parties. The Board affirms the rationale expressed in Central Park Lodges, supra, and the cases cited therein with respect to the purpose of the statutory provision. Accordingly, the Board finds that the procedure in section 106(2) is not available to the applicant.

8. For the foregoing reasons, then, this application is dismissed.