[1988] OLRB Rep. September 919
1085-88-M Ottawa Newspaper Guild, Applicant v. The Ottawa Citizen, Respondent
BEFORE: S. A. Tacon, Vice-Chair, and Board Members D. A. MacDonald and B. L. Armstrong.
DECISION OF THE BOARD; September 28, 1988
Reasons for Decision
1This is an application under section 106(2) of the Labour Relations Act in which the applicant is seeking a determination as to whether Paul Rainville is an "employee" within the meaning of the Act.
2In The Windsor Star, [1988] OLRB Rep. Apr. 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.
3When 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 submission 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 in 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.
4In the instant case, the applicant contends that Rainville is an "employee" within the meaning of the Act. The facts asserted by the applicant as the basis for the application are such that, if proved true, could well ground a finding that Rainville is an employee. The respondent argues that a Board Officer should not be appointed because the dispute is whether the individual is or is not covered by the collective agreement and, further, takes the position that Rainville is an "independent contractor". That is, the respondent contends the appointment should also be refused on the basis that the issue is not whether Rainville is "managerial" within the meaning of section 1(3)(b) of the Act.
5If the issue which the applicant seeks to have resolved is not the "employee" status of an individual but whether that individual is properly included in or excluded from the bargaining unit, the Board would decline to appoint a Board Officer to conduct a duties and responsibilities inquiry as that question is to be resolved at arbitration: see Nelson Crushed Stone, [1980] OLRB Rep. Oct. 1500; Northern Telecom, [1983] OLRB Rep. July 1134. In the instant case, it is accurate to note that the applicant does assert that Rainville falls within the scope of the collective agreement. However, the dispute is not restricted to that issue. That is, if the applicant and respondent agreed that Rainville is an "employee" under the Act, the Board would decline to direct an examination as the remaining question of exclusion in or exclusion from the bargaining unit should be determined at arbitration. However, the respondent contends that Rainville is an "independent contractor". Most section 106(2) applications involve disagreements as to whether an individual is an "employee" or "managerial" within the meaning of section 1(3)(b). The statutory language in section 106(2), however, addresses the question of the "employee" (or "guard") status of an individual. In the Board's view, this encompasses not just "employee" or "managerial" disputes but "employee" or "independent contractor" disagreements as well. While the decision in The Windsor Star, supra, spoke of mischief in the context of the "employee" versus "managerial" issue, the reasoning applies as well to "employee" versus "independent contractor" disagreements. Independent contractors are not "employees" under the Act and, if included with employees in bargaining units would engender conflicts of interest just as inimical to the parties' collective bargaining relationship as those founding the exclusion of "managerial" persons within the meaning of section 1(3)(b). Thus, the Board rejects the respondent's argument that an examination should be refused because the issue does not involve the "managerial" status of Rainville.
6Having regard to the material filed by the parties and the jurisprudence, the Board is satisfied that this is an appropriate issue for resolution under section 106(2) and that a "question" has arisen between the parties as to Rainville's "employee" status. Accordingly, a Board Officer is hereby appointed to inquire into the duties and responsibilities of Paul Rainville.
7This matter is referred to the Registrar in accordance with the above.