[1991] OLRB Rep. July 930
2712-90-M York University Staff Association, Applicant v. York University, Respondent
BEFORE: G. T. Surdykowski, Vice-Chair, and Board Members J. A. Rundle and R. R. Montague.
DECISION OF THE BOARD; July 5, 1991
This is an application under section 106(2) of the Labour Relations Act. By decision dated March 26, 1991, the Board wrote as follows:
In this case, the dispute between the parties is whether or not the persons named in paragraph 1, above~ are employees in the bargaining unit covered by the collective agreement between them. However, it is also evident that the root of the dispute with the respect to at least some of those persons is whether or not they exercise managerial functions within the meaning of section 1(3)(b) of the Act.
Consequently, and notwithstanding the misgivings we have about the utility of proceeding with this application, we find 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 in paragraph 1, above. This authorization is restricted to those persons. The applicant's January 16, 1991 letter suggests that it may seek to add others to this application. In our view, because of the number of people already named in the application, it would not be appropriate to permit the applicant to do so. Accordingly, if either party wishes a determination by the Board under section 106(2) of the Act with respect to persons other than those named herein, a separate application must be made. Further, our decision to proceed with this matter is without prejudice to the respondent's right to raise, at a hearing before the Board, the estoppel issue raised in its March 5, 1991 letter, or an argument that some of the persons are otherwise not properly the subject of this application.
If either party considers that it would be appropriate for the Board to deal with the estoppel issue or with an argument that some of the persons herein are not properly part of this application, prior to an Officer beginning an inquiry as authorized herein, that party should so request in writing, together with full particulars of the basis for its request.
Although some three months have passed, it appears that a formal inquiry by the Officers designated to conduct it has not yet begun. By letter from counsel dated June 10, 1991, the respondent wrote to the Board as follows:
At a meeting held on June 6, 1991 with representatives of the University, the Union and the two Labour Relations Officers assigned to this case, it was agreed that examinations into duties and responsibilities of the disputed positions would commence and we understand that Ms. Bucik will be contacting the parties to schedule same in the near future.
We wish to advise you that the University agreed with the foregoing on the express condition that it was reserving its right to argue the estoppel issue and to request the Board to hold a hearing into that issue, if that should be necessary.
- By letter from counsel dated June 14, 1991, the applicant responded as follows:
We have received a copy of Ms. Bisset's letter to you dated June 10, 1991. We understand that the Respondent wishes to begin the examinations, but wants to reserve its right to later make its estoppel argument.
We are anxious to begin the examinations as well. However, it appears that these examinations will be lengthy, given the number of persons to be examined. If the Respondent later makes its estoppel argument, and is successful, the parties will have wasted a lot of time and money. This is a result that should be avoided, if at all possible. In our submission, it makes far more sense to have a determination of the Respondent's estoppel argument (which really is in the nature of a preliminary objection) before the examinations begin. We note the Board's decision dated March 26, 1991, which provided:
"If either party considers that it would be appropriate for the Board to deal with the estoppel issue or with an argument that some of the persons herein are not properly part of this application, prior to an Officer beginning an inquiry as authorized herein, that party should so request in writing, together with full particulars of the basis for its request."
In accordance with the Board's direction, we hereby request that the Board deal with the estoppet argument prior to the Officer beginning her inquiry.
In subsequent correspondence, the respondent objected to the Board proceeding to deal with its estoppel argument at this stage of the application on the basis that it should be up to the respondent to decide if and when this argument is to be made, that the estoppel argument may never in fact arise and to argue it as a preliminary matter could result in unnecessary expenditure of time and resources, and that the estoppel argument is such that hearing it could be a lengthy process.
The applicant, on the other hand, submits that the Board's authorization of a Labour Relations Officer to inquire into and report to it with respect to the duties and responsibilities of the persons whose "employee" status is in dispute herein does not extend to the factual basis for any estoppel argument, that it is for the Board and not a party to determine the manner in which a matter before it is to proceed, and that the Board should hear the evidence relating to any estoppel issue directly.
We appreciate that speed can be a relative thing. However, there appears to have been a distinct lack of speed in this case, regardless of ones perspective and despite the expressions of interest in it. We would have thought that the first question to which the parties would have addressed themselves would have been whether there was a need to have any preliminary matters dealt with by the Board, particularly since they were specifically invited by the Board to do so.
Nevertheless, in our view, it is preferable for the Board to hear and determine any estoppel issue both directly and as a preliminary matter. It seems to us that it is more likely than not that it would be more expeditious to proceed in that manner than by having it be a part of the Officer's duties and responsibilities inquiry and report to the Board.
Accordingly, the Board finds it appropriate to direct the respondent to advise the Board within twenty-one (21) days of the date hereof, in writing, whether it intends to pursue an estoppel argument in this matter, and, if it does, to provide full particulars thereof, together with its estimate of the number of hearing days required to deal with the issue. If the respondent fails to do so, it will be deemed to have abandoned any estoppel argument with respect to this application and will not be permitted to raise it thereafter. If the respondent advises the Board that it does wish to pursue an estoppel argument, the applicant is also to file with the Board a fully particularized statement of the facts upon which it intends to rely with respect to the estoppel issue(s) identified by the respondent, and the Registrar shall schedule a hearing for the purpose of hearing the evidence and representations of the parties with respect to the estoppel issue(s). Except with leave of the Board, neither party will be permitted to adduce evidence with respect to any estoppel argument of any fact not disclosed in its statement of particulars in that respect.
The Board also finds it appropriate, in the circumstances, to direct the parties to identify within twenty-one (21) days of the date hereof, in writing and with full particulars, any other preliminary matter or issue which they intend to raise, together with their estimates of the number of hearing days it will take to deal with each. If any such other preliminary matter is raised in accordance with this direction, the Registrar will also schedule it for hearing. Any preliminary matter which is not raised in accordance with this direction will be deemed to have been abandoned and will not be subsequently entertained by the Board.