[1988] OLRB Rep. September 886
0648-88-M Ontario Public Service Employees' Union, Applicant v. Fleetwood Ambulance Services, Respondent
BEFORE: S. A. Tacon, Vice-Chair, and Board Members D. A. MacDonald and B. L. Armstrong.
DECISION OF THE BOARD; September 28, 1988
This is an application under section 106(2) of the Labour Relations Act in which the applicant is seeking a determination as to whether five named individuals are "employees" within the meaning of the Act. Those persons are: Barry Duff, Ian Douglas, Doug Vanderveer, Doug Mansell and David Henry, all classified as supervisors by the respondent.
In The Windsor Star, [1988] OLRB Rep. April 427 at paragraph 14, the Board outlined the information which thenceforth would be required in section 106(2) applications:
Therefore, the Board will no longer restrict the evidence to be adduced before a Board Officer with respect to the duties and responsibilities of the person(s) in dispute to "changes" in those duties and responsibilities, as in the past. Section 106(2) applications commonly are initiated through an often sparse letter to the Board merely naming the individual(s) in dispute. Henceforth, the applicant must, in addition, indicate the basis for the application, i.e., the nature of the position, including duties and responsibilities (to the extent known, where the applicant is a trade union), the historical dimension to the position (if any) including any Board determinations and parties' agreements and how the mischief against which sections 1(3)(b) or 12 are directed has arisen or has ceased. The respondent must outline fully any grounds it asserts as to why the Board should not entertain evidence as to the duties and responsibilities of the person(s) in dispute. The Board must be satisfied a "question" has arisen as to the "employee" or "guard" status of the individual(s) in dispute before a duties and responsibilities examination will be directed. Where the individual's status has not been previously determined by the Board in a certification or earlier 106(2) application or by specific agreement of the parties, an examination will generally be directed. Where the Board has previously determined the status of a person in a certification application or prior section 106(2) application or where the parties have reached a specific agreement as to the person's status, the Board will not permit evidence as to the person's duties and responsibilities to be adduced before a Board Officer unless the Board is satisfied, on the face of the application, that it appears the mischief against which section 1(3)(b) or section 12 is directed has arisen or has ceased. Where the Board is not so satisfied, the application may be dismissed without a hearing. In the Board's opinion, this policy does not undermine agreements of the parties as to the person's status and avoids repeated or frivolous examinations, yet provides sufficient flexibility to adequately respond to circumstances where the mischief against which sections 1(3)(b) and 12 are directed has arisen or has ceased.
When an application under section 106(2) is received, the Registrar acknowledges the application, directs the applicant's attention to the relevant passages in The Windsor Star decision, supra, and establishes a deadline for receipt of the required information. The applicant's materials are circulated to the respondent for reply by a specified date and the respondent, as well, is directed to the relevant excerpt from The Windsor Star, supra. Finally, the respondent's reply, if any, is circulated to the applicant for comments, again, with a deadline established. The Board considers the material filed and, in the context of the principles set out The Windsor Star, supra (paragraphs 8 to 15 in particular), either appoints a Board Officer to conduct a duties and responsibilities examination of the person(s) in dispute or declines to do so.
The applicant, in its material filed with the Board, outlined its view of the history of the positions and the duties of the incumbents. The respondent opposed an examination of those named persons on the basis that the applicant has failed to demonstrate the "mischief' against which section 1(3)(b) is directed. Further, the respondent contended that, in respect of two of the persons (Barry Duff and Doug Vanderveer), there is a specific agreement or Board determination that both exercise managerial authority dating from the applicant's certification in 1980 when those two (amongst others no longer holding the position of supervisor) were excluded from the bargaining unit.
In The Windsor Star, supra, the Board indicated (in the passage quoted above) that "where the Board has previously determined the status of a person in a certification application or prior section 106(2) application or where the parties have reached a specific agreement as to the person's status, the Board will not permit evidence as to the person's duties and responsibilities to be adduced before a Board Officer unless the Board is satisfied, on the face of the application, that it appears the mischief against which section 1(3)(b) or section 12 is directed has arisen or has ceased". This approach seeks to balance the interest in upholding prior agreements of the parties and avoiding repeated or frivolous examinations against the need for flexibility to adequately respond to circumstances where the mischief noted has arisen or ceased.
Having regard to the material filed, the Board in the instant case is satisfied that a "question" exists between the parties as to the "employee" status of the five named persons and the mischief against which section 1(3)(b) is directed may well have ceased. This application is the first in respect of the disputed individuals (or the previous incumbents) since certification in 1980. Thus, the application cannot be regarded, on its face, as frivolous or a repeated raising of the issue. Moreover, the applicant submitted that the question was raised during the last round of negotiations and that the union reserved the right to seek a 106(2) determination. The respondent did not dispute that assertion. The decision in The Windsor Star, supra, established informational requirements before the Board would decide whether a "question" had, in fact, arisen between the parties and direct an examination of the duties and responsibilities. As well, The Windsor Star, supra, rejected the artificiality of focusing on the timing of the application as a vehicle for directing a "full" examination or one restricted to "changes". That is, where a Board Officer is appointed, a full duties and responsibilities examination is conducted and the question of "changes" moves to an evidentiary matter where the status quo, the duties and responsibilities of the disputed individual(s) (including any changes thereto) and the historical context become matters of evidence to be given the appropriate weight in each case. In the Board's view, in the circumstances, the previous agreement does not operate to preclude forever a section 106(2) application where, as here, the material, on its face, appears to indicate that the mischief has ceased. Rather, that agreement and the historical context at the time of certification and subsequently are relevant evidentiary matters in addition to the current duties and responsibilities of the persons in dispute.
Having regard to the material filed and the principles enunciated The Windsor Star, supra, the Board is satisfied that a "question" exists between the parties as to the "employee" status of the individuals in dispute. Accordingly, a Board Officer is hereby appointed to inquire into the duties and responsibilities of the five individuals named in paragraph 1 above.
This matter is referred to the Registrar in accordance with the foregoing.