[1989] OLRB Rep. December 1221
1292-89-M Ontario Nurses' Association, Applicant v. Hotel lieu of St. Joseph's Hospital of Windsor, Respondent
BEFORE: S. A. Tacon, Vice-Chair, and Board Members D. A. MacDonald and B. L. Armstrong.
DECISION OF THE BOARD; December 21, 1989
- This is an application pursuant to section 106(2) of the Labour Relations Act in which the applicant seeks a determination as to whether persons working as Critical Care Instructor, namely, Susan Elliott, Margaret Blazer, Concepcion Jimenez, and Cheryl Boudreau, are employees for purposes of the Act.
2, 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 so 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 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 its initial application, the applicant named the incumbents in the position of Critical Care Instructor, noted the position has been in existence for some time and enclosed a job description. The respondent submitted that the applicant had failed to comply with the informational requirements set out in The Windsor Star, [1988] OLRB Rep. April 114, particularly with respect to the historical dimension of the position and how the mischief against which section 1(3)(b) is directed has arisen or ceased. In a subsequent letter, the respondent asserted that the position of Critical Care Instructor, in existence since 1981, was an outgrowth of the In-Service Instructor position in place since prior to certification in 1972 and, further, that the applicant has never contended that the Critical Care Instructors should be included in the bargaining unit. The respondent maintained its view that the application should be dismissed for non-compliance with the criteria in the The Windsor Star, supra, and, in the alternative, requested a hearing to determine whether a "question" has arisen within the meaning of section 106(2). Finally, in its reply, the applicant asserted, in some detail, that the Critical Care Instructor is quite distinct from the In-Service Instructor and reiterated its position that a "question" has arisen and a Board Officer should be appointed.
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 had 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. In the instant case, it does not appear that the persons classified as Critical Care Instructors have had their status determined in a certification application, prior section 106(2) application or in a specific agreement of the parties. The parties are in dispute as to the relationship between the Critical Care Instructor and the In-Service Instructor, the latter category having been in existence at the time of certification.
Nonetheless, the Board 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. 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. When the applicant's material is taken together, the Board considers that the informational requirements have been satisfied. It may well be that the applicant's position is ultimately not successful. However, in the Board's view, the factual assertions of the parties, in the context of the other material filed, are sufficient to persuade the Board that a "question" has arisen between the parties as to the status of the persons classified as Critical Care Instructors. The historical context at the time of certification and subsequently may well be relevant evidentiary matters in addition to the current duties and responsibilities of the persons in dispute. In these circumstances, the Board is not persuaded by the respondent's argument in the alternative that a hearing should be convened to determine whether a "question" has arisen.
For the foregoing reasons, 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 persons named in paragraph 1 above.
This matter is referred to the Registrar.