[1989] OLRB Rep. August 827
1297-89-M Tracy Castellan, Applicant v. Chatelaine Villa Nursing Home, Respondent
BEFORE: S. A. Tacon, Vice-Chair, and Board Members D. A. MacDonald and B. L. Armstrong.
DECISION OF THE BOARD; August 28, 1989
This is an application under section 106(2) of the Labour Relations Act in which the applicant, Tracy Castellan, is seeking a determination as to whether Linda Sacco, whom the applicant asserts is classified as "ward clerk" or "unit co-ordinator", is an employee for purposes of the Act. It is the position of the applicant that Linda Sacco is not an employee by virtue of section 1(3)(b) of the Act.
It is appropriate at this juncture to set out the following passage from Central Park Lodges of Canada, [1980] OLRB Rep. Oct. 1373 wherein the Board rejected an application by persons whom the employer (by virtue of its position in an earlier Board proceeding) and the trade union agreed were employees within the meaning of the Act:
The contention of the applicant in the present case has been considered and rejected in at least three previous Board cases. In Wallace Barnes Limited 61 CLLC ¶16,198, an employee claimed that she had been improperly discharged and that by virtue of section 1(2) of the Act [which provides that a person does not cease to be an employee by reason of a discharge contrary to a collective agreement] and 95(2), the Board has jurisdiction to determine whether she was still an employee. In dismissing the application the Board commented:
"In sum, then, it appears to us that when the Legislation is looked at as a whole section 68 [now section 95] subsection 2, is designed to deal with questions which may arise between the parties who are negotiating a collective agreement and between the parties to a collective agreement during its operation. Moreover, in our view, it was never intended that employees should be able to refer a question under section 68(2) to the Board but rather this was to be left to one or more of the parties to the agreement. While in a sense employees in the bargaining unit are parties to a collective agreement, since a trade union acts as their bargaining agent, having chosen that agent to act on their behalf they are bound by its actions and, if a collective agreement exists, by the terms of that collective agreement."
In Indusmin Limited [1975] OLRB Rep. March 184, a request by individual employees for a determination of their status was also rejected. Finally, in York University [1978] OLRB Rep. August 790, the Board dealt with a situation in which a group of employees alleged that they were "guards", and thereby excluded from a bargaining unit because of section 11 of The Labour Relations Act. As in the present case, neither the union representing them, nor their employer regarded them as "guards" and it was acknowledged that they had been treated as employees by the parties' collective agreement. In dismissing the application, the Board had this to say:
"In our view there must be a present question arising between the parties to the collective bargaining relationship before there can be a section 95(2) referral. Certainly, it is clear that for a question to arise "in the course of bargaining for a collective agreement' it could be necessary for such question to be raised in the "bargaining forum" and must therefore be a question between the parties to that bargaining relationship i.e. the bargaining agent and the employer; we are of the opinion, that it is no less implicit in the language of the section that the question which must arise during the period of operation of the agreement must also be a question between the parties to that agreement."
In York University, the Board found that the "guard's exclusion" was intended to protect the interests of the employer, since the inclusion of guards in the bargaining unit might generate a conflict of interest with respect to the protection of the company's property. Section 95(2), in turn, was "intended to promote the stability of labour relations by making available a forum for the settlement of particular questions, where there [sic] are interfering with the general collective bargaining relationship". Where the parties had agreed that the employees in question were not "guards", there was no interference with the collective bargaining relationship; and where the company itself had treated the alleged guards as ordinary employees, the Board saw little likelihood of subverting the interests which section 11 was designed to protect. In the result, the Board found that section 95 was restricted to question which arose between the parties, at the bargaining table, or pursuant to the administration of the collective agreement.
In our view, the scheme of the Act, the decided cases, and the ramifications of an alternative interpretation, all support the inference that section 95(2) was only intended to resolve disputes between the immediate parties to the bargaining relationship. Section 1(3)(b) is designed to protect the institutional interests and integrity of the bargaining parties; but no such interests are at issue here, and it is unlikely that the mischief to which section 1(3)(b) is directed would arise where the company and the union have mutually agreed on the distribution of "managerial" authority, the composition of the "managerial team", and the scope of the bargaining unit. Indeed, if the parties have been able to reach such agreement, there are good policy and practical reasons why it should not be disturbed. It would not further a stable collective bargaining relationship if the parties could be plunged into litigation on matters which they have already settled - even though an individual employee may be dissatisfied with that settlement. Moreover, it seems strange, from a practical point of view, to suggest that the Board should be entertaining applications brought for the purpose of demonstrating that a company has more (or fewer) managers than either it or the employees' bargaining agent think it has. We agree with the view expressed by the Board in York University, supra that it is implicit that a "question" arising during the negotiation of a collective agreement must involve a question between the bargaining parties which must be resolved in order to assist them to reach a collective agreement; and that it is also implicit that a "question" arising during the operation of the collective agreement, is intended to refer to disputes between the parties who have a responsibility for administering that agreement (i.e. the trade union and the employer). Having carefully considered the various submissions of the parties, we are satisfied that section 95 was only intended to resolve issues between the bargaining parties; and was not intended to provide a forum in which employees could question their status when that status was not a matter of dispute between their employer or their trade union. In our view, it is implicit that the "question" to which section 95 refers must involve a question arising between the bargaining parties during the negotiating or operation of the collective agreement.
[Section 95(2) of the Act referred to above is now section 106(2).]
In the instant case, the applicant is an individual requesting a determination as to the employee status of another individual. No "question" has arisen between the bargaining parties. The Board affirms the rationale expressed in Central Park Lodges, supra, and the cases cited therein with respect to the purpose of the statutory provision: see also Vernon John Hermer, [1988] OLRB Rep. Feb. 152. Accordingly, the Board finds that the procedure in section 106(2) is not available to the applicant.
For the foregoing reasons, this application is hereby dismissed.