[1988] OLRB Rep. October 1020
0702-88-M London and District Service Workers' Union, Local 220, S.E.I.U.A.F.L.-C.I.O.-C.L.C., Applicant v. The Freeport Hospital, Respondent
BEFORE: S. A. Tacon, Vice-Chair, and Board Members D. A. MacDonald and B. L. Armstrong.
DECISION OF THE BOARD; October 24, 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 a number of individuals are "employees" within the meaning of the Act. It is convenient to list those persons here, together with their titles, according to the respondent: Susan Klein, personnel secretary; Marion Mueller, executive secretary, human resources; Susan Diehl, office manager; Patricia KaNe and Denis Brand, dietetic technician; June Weiler, executive secretary, patient care services; Debbie Wall, supervisor, central communications; Barb Howell, patient librarian; Joan Ginn, staff librarian; Gloria Baker, coordinator, staff education; Marion Chiapetta, executive secretary, community relations.
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 l3oard 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 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.
In this instance, the applicant's correspondence with the Board is dated June 15, July 11, July 18 and October 3, 1988. The first two letters merely give the incumbents of the positions in dispute. The July 18 letter indicates that the individuals, in the applicant's view, are in the bargaining units apparently because positions are not exempted in the certificate issued by the Board in 1984 and/or because the persons are neither supervisors nor are employed in a confidential capacity in matters relating to labour relations. The respondent's letter of August 2, 1988 outlines its view of the duties and responsibilities of the persons referred to in paragraph 1 above, in considerable detail, its assertions with respect to the status of each, and submits the application should be dismissed given its material filed and/or because the applicant has not complied with the information requirements in The Windsor Star, supra. In its final letter of October 3, 1988, the applicant disputes the respondent's assertions as to the duties and responsibilities of the individuals, generally and individually, and implies that the job titles and descriptions do not accurately reflect the actual functions.
The Board, as noted in The Windsor Star, supra, will not appoint a Board Officer to conduct a duties and responsibilities examination unless the material before the Board, on its face, appears to indicate that the mischief against which section 1(3)(b) is directed has arisen or ceased. When the applicant's material is taken together, the Board considers that the informational requirements have been satisfied. In making this assessment, the Board must be sensitive to the position of a trade union applicant which may not have as complete a view of the duties and responsibilities as a respondent. However, an application may well be dismissed or not processed further whether the initial material filed by the applicant fails to provide the necessary information, as noted in The Windsor Star, sup ra.
In its application, the applicant asserted that the disputed persons should be included in the bargaining unit because those individuals did not fall within either branch of section 1(3)(b) and because the exclusions in the certificate were inapplicable. The respondent asserted several of the individuals were "managerial" within the meaning of section 1(3)(b) (i.e., Susan Diehl, Patricia Kahle, Denis Brand, Debbie Wall and Gloria Baker). In addition, all but Wall and Baker were to be excluded as "supervisors" or "persons above the rank of supervisor". With respect to Susan Klein, Marion Mueller and June Weiler, the respondent contended they should be excluded on the second branch of section 1(3)(b) relating to confidentiality and based on the exclusion in the certificate. Marion Chiapetta was to be excluded on the "confidential" branch of section 1(3)(b) as well. Finally, with regard to Barb Howell, the respondent contended that she had held the position for many years and as she was excluded at the time of certification, that exclusion should continue. Joan Gin should be excluded as more senior to Barb Howell, i.e., if the later was not in the bargaining unit, the former should likewise not be covered.
In the Board's view, both parties have, to some extent, confused the issue which is before the Board in a section 106(2) application. Specifically, the Board is to determine the "employee" (or "guard") status of the person in dispute. The question as to whether the person falls within the scope clause of the collective agreement (and the scope clause supersedes the original certificate) is for an arbitrator to determine: see Nelson Crushed Stone, [1980] OLRB Rep. Oct. 1500; Northern Telecom, [1983] OLRB Rep. July 1134. In some circumstances, a Board determination of the individual's status as an "employee" or otherwise implicitly will resolve an issue of the extent of the collective agreement's scope clause. Where, however, the issue solely involves the inclusion in or exclusion from the bargaining unit, the Board will decline to direct an examination in a section 106(2) application. It appears to the Board on the material filed that the dispute between the parties with respect to Barb Howell, patient librarian, and Joan Gin, staff librarian, is restricted to their inclusion in or exclusion from the bargaining unit - an issue which should be resolved at arbitration. Hence, given the jurisprudence noted, the Board declines to direct an examination of those two persons and, in respect of those two, the application is dismissed.
With reference to the other positions, having regard to the material filed, the Board is satisfied that a "question" exists as to their "employee" status and the mischief against which section 1(3)(b) is directed may no longer exist. In The Windsor Star, supra, the Board 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. Accordingly, a Board Officer is hereby appointed to inquire into the duties and responsibilities of the individuals named in paragraph 1 above except Barb Howell and Joan Ginn.
This matter is referred to the Registrar in accordance with the foregoing.