Ontario Public Service Employees Union v. Superior Ambulance Services, 1988 CanLII 3754

[1988] OLRB Rep. October 1129

0649-88-M Ontario Public Service Employees Union, Applicant v. Superior Ambulance Services, Respondent

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

DECISION OF THE BOARD; October 14, 1988

1. This is an application under section 106(2) of the Labour Relations Act in which the applicant is seeking a determination as to whether six named individuals are "employees" within the meaning of the Act. Those persons are: Lorne Hart, Jim Burden, L. Verhegghe, Paul Hansen, Gordon Walton and Doug Waugh, all classified as supervisors by the respondent.

2. In 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:

3. 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 application 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.

4. 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.

5. 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 failed to demonstrate the "mischief' against which section 1(3)(b) is directed. Further, the respondent contended that, ii respect of four of the per­sons (L. Hart, J. Burden, L. Verhegghe and P. Hansen), there is a specific agreement or Board determination that both exercise managerial authority dating from the applicant's certification in 1982 when those four (amongst others no longer holding the position of supervisor) were excluded from the bargaining unit.

6. 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.

7. In the instant case, the Board is satisfied that a "question" exists between the parties as to the "employee" status of the six named persons and that 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 1982. Thus, the application cannot be regarded, on its face, as frivolous or a repeated raising of the issue. Moreover, the applicant asserted that the question of the status of the persons in dispute was raised during the last round of negotiations and that the union reserved the right to seek a section 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 filed by the applicant, 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.

8. In reaching this conclusion, the Board is not ignoring the material filed by the respon­dent regarding the duties and responsibilities of the six persons. It is apparent that there is a dis­pute between the parties as to what the persons in question actually do and whether those func­tions would result in their characterization as managerial within the meaning of section l(3)(b) of the Act. That dispute is what section 106(2) is intended to resolve.

9. Further, in considering the material filed, the Board is not accepting the applicant's sub­missions in its letter of September 28, 1988 that a Board Officer should be appointed regardless of whether the mischief apparently has arisen or ceased. With respect to other matters noted in that letter, the Board comments that the policy set out in The Windsor Star, supra, does not bind the parties indefinitely but, rather, provides a flexible approach which recognizes that positions do evolve over time and directs a section 106(2) examination wherever the applicant's material indi­cates, on its face, that the mischief may well have arisen or have ceased. That is, if the facts asserted are proved through the examination, the facts would likely lead to a different character­ization of the person(s) in dispute, i.e., from "managerial" to "employee" or vice versa. The Board would not direct an appointment under section 106(2) if the applicant's material, of itself, asserts facts as to a person's duties and responsibilities which, if proved true, would not lead to a different characterization as "employee" or "managerial". Despite the applicant's comments in its September 28 letter, its earlier letter of July 18, 1988 does outline the history and duties of the per­sons holding the positions in dispute. Those assertions, if proved true, may well result in the per­sons no longer being regarded as managerial within the meaning of section 1(3)(b). The respon­dent disputes the factual assertions, inter alia.

10. Thus, having regard to the material filed and the principles enunciated in 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 six individuals named in paragraph 1 above.

11. This matter is referred to the Registrar in accordance with the foregoing.