Canadian Union of Public Employees Local 1997 v. Eastern Ontario Health Unit, 1991 CanLII 6027

[1991] OLRB Rep. January 14

1953-90-M Canadian Union of Public Employees Local 1997, Applicant v. Eastern Ontario Health Unit, Respondent

BEFORE: G. T. Surdykowski, Vice-Chair, and Board Members W. N. Fraser and P. V. Grasso.

DECISION OF THE BOARD; January 4, 1991

1. By letter dated October 23, 1990, which though addressed to the "Ministry of Labour" was no doubt intended to be to this Board, the applicant trade union requested "... the appoint­ment of an officer pursuant to section 106(2) of the Ontario Labour Relations Act to examine the positions of Consultant." [sic]. The applicant's letter goes on to provide the name of the respon­dent employer, the name, address and telephone number of the "Employer contact", and the names of thirteen individuals whose employee status the applicant asserts is in dispute between the parties.

2. The Registrar has treated the applicant's letter as an application, under section 106(2) of the Labour Relations Act, for a determination as to whether the thirteen named individuals are "employees" within the meaning of the Act, which is no doubt what it was intended to be. By let­ter dated October 29, 1990, the Registrar advised the applicant that the Board would be unable to process its application further until the applicant provided the addresses of the thirteen individuals and the information which the Board's decision in The Windsor Star, [1988] OLRB Rep. Apr. 427 indicated are necessary in order for the Board to process applications like this one. At paragraph 14 of The Windsor Star, supra, the Board observed that:

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 adduce 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 a person's status and avoids repeated or frivolous examina­tions, yet provide 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.

3. By letter dated November 13, 1990, the applicant advised the Registrar that "... the addresses for the persons whose employee status is in dispute will have to be submitted by the employer." We take this to mean that the applicant does not have that information. Further, by letter dated November 21, 1990, the applicant advised the Board that:

Further to my letter of November 13, 1990, and in compliance with the Board's request we offer the following:

During the term of the present collective agreement, the Medical Officer of Health has reorgan­ized the workplace.

The individuals whose status is in dispute were formerly "Directors". Inherent in these positions were authoritative responsibilities and were excluded from the Union. With the reorganization, the Medical Officer has removed the authoritative lines of authority from these individuals as welt as it relates to previous positions.

The Employer has not submitted any job descriptions to the Union, thus it is not possible to state further changes.

Hoping the foregoing meets with your approval.

Yours truly,

“A. Lamoreux"

Andre Lamoreux

Representative

4. By letter dated December 3, 1990, the respondent has requested particulars from the applicant pursuant to section 72(3) of the Board's Rules of Procedure. The respondent asserts that the applicant has failed to provide the information which the Board has indicated must be provided before an application under section 106(2) can be processed, either as requested by the Board or otherwise, and that, as a result,the respondent is hampered in its ability to respond to the applica­tion.

5. There are a significant number of applications under section 106(2) of the Act filed with the Board each year (for example, between January 1 and December 28, 1990 the Board received 53 such applications). For many matters which come before the Board there is a specific form for making the complaint or application, as the case may be. Unfortunately, there is no such form for applications under section 106(2). It appears that the only guidance available to a party wishing to make such an application is in the Board's jurisprudence. This is no doubt one reason why, in alto­gether too many cases, the parties and the Registrar spend several months exchanging correspon­dence before an application can be processed even to the point of a Labour Relations Officer being appointed to inquire into the duties and responsibilities of the person(s) whose "employee" status is in issue. The Board is presently reviewing the situation for the purpose of determining what, if anything, can be done to expedite such applications. In the meantime, the parties would do well to take heed of the Board's comments in The Windsor Star, supra, as aforesaid. The Board's com­ments in that decision were intended to indicate to the community that it is necessary to particular­ize the basis for an application under section 106(2) of the Act. Such information enables the Board to determine whether there is an issue between the parties which is the proper subject mat­ter of an application under section 106(2) at an early stage. And, if it is, it also serves to define the issue(s), which tends to facilitate settlement discussions or, if a settlement cannot be achieved, a more structured and expeditious litigation of the dispute.

6. The parties could also do themselves (and this Board) a favour by responding properly to the Registrar's request for further information. In the Board's experience, much of the delay which occurs in the processing of section 106(2) applications is a direct result of the failure of an applicant to provide the necessary information as requested in a timely manner, or sometimes at all.

7. Although sparse in detail, the information provided by the applicant in this case reveals that the persons whose "employee" status is an issue between the parties were previously classified as "Directors" and are now classified as "Consultants", and that the applicant alleges that as a result of the reorganization of the workplace by the respondent, these persons no longer exercise managerial functions. In our view, the applicant has provided sufficient information to define the issue between the parties and to enable the respondent employer to respond to the application (particularly since the respondent employer is probably in the best position to provide a compari­son of what "Directors" did to what "Consultants" do).

8. Consequently, the Board finds it appropriate to authorize a Labour Relations Officer, to be designated by the Board's Manager of Field Services, to inquire into and report to the Board with respect to the duties and responsibilities of the persons named by the applicant in its October 23, 1990 letter.

9. We do wish to remind the parties that, in an application under section 106(2) of the Act, the Board does not determine whether or not a person with respect to whom such an applica­tion has been made is or is not an employee in a bargaining unit. The issue before the Board is whether or not such a person is an "employee" within the meaning of the Labour Relations Act. Although a determination of a person's "employee" status may, for practical purposes, go some way toward resolving an issue with respect to whether or not that person is in a bargaining unit, the two issues are not necessarily congruent. A finding that a person is an "employee" will not neces­sarily mean that the person is in the bargaining unit or vice versa. Whether or not a person is an employee in the bargaining unit is a question for a Board of Arbitration to determine (see Re Miller et al and Algoma Steelworkers Credit Union Ltd., et al., (1974) 1974 CanLII 860 (ON HCJDC), 6 O.R. (2d) 676 (Ont. Div. Ct.); Nelson Crushed Stone, [1980] OLRB Rep. Oct. 1500; Northern Telecom, [1983] OLRB Rep. Jan. 95; The Windsor Star, supra). Consequently, a determination of the "employee" status of the thirteen individuals named by the applicant will not necessarily mean that they, or any of them, are or are not in the bargaining unit covered by the collective agreement between the parties.