[1993] OLRB REP. OCTOBER 977
0732-93-M Southern Ontario Newspaper Guild Local 87, The Newspaper Guild (CLC, AFL-CIO), Applicant v. London Free Press Printing Company Limited, Responding Party
BEFORE: G. T. Surdykowski, Vice-Chair, and Board Members W. N. Fraser and G. McMenemy.
DECISION OF THE BOARD; October 5, 1993
This is an application, under section 108(2) of the Labour Relations Act, in which the applicant trade union seeks a declaration that certain individuals are "employees" within the meaning of the Act. It is apparent that the real dispute between the parties is whether or not these persons are in the bargaining unit of employees of the responding employer for which the applicant is the bargaining agent.
The applicant asserts that the persons whose "employee" status is in dispute between the parties are Jane Bradley, Alan Bass, Tess Kalinowski, John Miner, James Reaney (all of whom it refers to as "Section Editors"), Paul Gartlan (referred to as a "Production Editor"), Bill McGrath ("Art Director"), Gord Sanderson ("Readers' Advocate") and Norma Beer ("Secretary").
The responding employer submits that the application should be dismissed.
Both parties have filed extensive written submissions with respect to the responding employer's request that the application be dismissed.
There are two bases upon which the responding employer rests its request to dismiss.
First, it asserts that the issue of the disputed "positions" was raised during the recent collective bargaining between the parties in the context of an attempt by the applicant to negotiate changes to the recognition clause in the collective agreement. The employer asserts that in the course of those negotiations the applicant agreed to withdraw that issue (among others) in exchange for certain unspecified concessions from the employer. In effect, the employer asserts that the issue raised in this application has been settled for the term of the present collective agreement between the parties and should therefore not be entertained by the Board.
Second, the employer relies on the Board's decisions in Thomson Newspapers Company Limited (The Globe and Mail Division) (Board File No. 0639-92-M, July 27, 1992 and Oct. 6, 1992 (reconsideration), both unreported), and submits that as in that case, this application relates to persons in positions which have been specifically excluded from the bargaining unit in the recognition clause in the collective agreement between the parties.
The applicant agrees that the issue of whether the persons who are the subject of this application, and the positions they occupied, "should be" in the bargaining unit was raised in the course of the recent collective bargaining between the parties. However, it asserts that it suggested that the parties try to resolve the "exclusions" issue in negotiations, failing which the applicant would bring the section 108(2) application to the Board. The applicant states that when the parties were unable to resolve this issue in collective bargaining, it withdrew the "exclusions" issue from the bargaining table as part of a settlement proposal with respect to several issues but without prejudice to its position and right to bring this application. The applicant submits that there is no merit to the employer's estoppel-like argument and that nothing which the union has done should operate to bar this application.
In response to the second basis asserted by the employer for its dismissal request, the applicant seeks to distinguish this application from the one in Thomson Newspapers, supra, or to bring it within the exceptions it submits the decision in Thomson Newspapers, supra, contemplates.
Section 108(2) of Labour Relations Act provides that:
(2) If, in the course of bargaining for a collective agreement or during the period of operation of a collective agreement, a question arises as to whether a person is an employee or as to whether a person is a guard, the question may be referred to the Board and the decision of the Board thereon is final and conclusive for all purposes.
As the Board observed in Thomson Newspapers, supra, section 108(2) of the Act does not empower the Board to determine whether or not a person or position is or should be in a bargaining unit. The Board has only the much more limited jurisdiction to determine whether a "person" (not a "position" - see Royal Mattress Limited, [1987] OLRB Rep. Dec. 1605) is an "employee" or "guard". The question of whether an "employee" or "position" is in a bargaining unit is an issue for negotiation or arbitration, for which an application to the Board under section 108(2) is not a substitute.
As the Board also noted in Thomson Newspapers, supra, the Board cannot alter or amend an existing bargaining unit except as authorized by the Labour Relations Act (see, for example, sections 7, 64 and 93 - none of which are applicable here). Section 108(2) neither gives the Board any such jurisdiction nor provides a mechanism for dealing with concerns or disputes with respect to an existing bargaining unit.
In Thomson Newspapers, the Board also stated that in cases in which it appears that the real dispute between the parties is whether or not the person(s) with respect to whom a section 108(2) application is made is in a bargaining unit, there is an onus on the applicant to satisfy the Board that there is a real issue between the parties with respect to "employee" (or "guard") status of the person(s) in question and that a determination by the Board in that respect will have some labour relations value.
We agree that there must be a "question" between the parties regarding the "employee" or "guard" status of a person before the Board has jurisdiction to deal with the matter under section 108(2) of the Act. However, once the Board is satisfied that an application under section 108(2) raises a real "employee" or "guard" issue, the Board will proceed with it, even where the "real" issue is whether that person is or should be in a bargaining unit, unless there is a cogent reason not to. It is not apparent that section 108(2) gives the Board a discretion to refuse to entertain an application on the basis that the "real" issue is something else. Further, the parties, not the Board, are in the best position to assess the labour relations value of a section 108(2) determination by the Board.
In that latter respect, we note that the Board's section 108(2) jurisprudence makes it clear that a determination by the Board under section 108(2) will not necessarily be determinative of a bargaining unit issue regarding the person(s) whose "employee" (or "guard") status has been determined by the Board. However, to the extent that some Board decisions seem to suggest that a determination by the Board that a person is not an "employee" does not necessarily mean that that person is not in the bargaining unit, we disagree. Under the Labour Relations Act, only persons who are "employees" within the meaning of the Act can be in a bargaining unit. Persons who are not "employees" may be entitled to benefits under a collective agreement as a result of having been an employee or having some connection with an employee in the bargaining unit covered by the collective agreement (including, for example, persons who have been laid off, retirees, spouses or other family members). However, the scheme of the Labour Relations Act is such that only persons who are "employees" can actually be in a bargaining unit. Accordingly, a determination by the Board that a person is not "employee" will also be dispositive of a dispute with respect to whether such a person is in a bargaining unit. That is not necessarily so where the Board finds that the person in question is an "employee". Further, a determination by the Board that a person is an ''employee'' may be of assistance to the parties dealing with the bargaining unit issue in collective bargaining, or may be of assistance or necessary before such a dispute can be arbitrated.
In addition, the decisions in Thomson Newspapers, supra, were based in large part upon the Board's interpretation of the language in a collective agreement between the parties. As the Board itself has noted, disputes concerning the application or interpretation of a collective agreement are matters for arbitration, and it therefore seems to be inappropriate for the Board to enter into that arena in a section 108(2) application.
In the result, it is not at all clear that the Board should dismiss a section 108(2) application merely because it does not see the value of it, or because the collective agreement between the parties may specifically exclude the persons who are the subject of the application. Further, in this case, it is apparent that the workplace has undergone some reorganization and there is a dispute between the parties with respect to whether or not the persons with respect to whom this application has been made occupy new or different positions from those which the employer asserts are excluded from the bargaining unit, or whether they have different duties and responsibilities within positions which the employer asserts are excluded. That is, there is a dispute between the parties with respect to whether or not the persons who are the subject of this application occupy positions which have been specifically excluded from the bargaining unit. The dispute between the parties therefor appears to raise issues of collective agreement interpretation which may have to be arbitrated. However, with the possible exception of Gord Sanderson, the application does raise an issue, or "question" with respect to whether the named persons are "employees", which issue the Act provides may be referred to the Board.
But for the responding employer's assertion that the Board should not proceed with the application because it has been "settled" (see paragraph 6, above), the Board would authorize a Labour Relations Officer to inquire into and report to the Board with respect to the duties and responsibilities of the persons named by the applicant. However, if the employer's assertion in that respect is correct, it may be that there is no "question" within meaning of section 108(2) to be determined by the Board and that this application should be dismissed. In our view, that issue cannot be dealt with without a hearing.
The Registrar is therefore directed to schedule a hearing in this matter. The purpose of the hearing is to hear the evidence and representations of the parties with respect to the responding employer's request that this application be dismissed because the "question" raised in it has been settled in the sense described above.
Since a hearing is required in that respect, and because (as this decision indicates) there may be reasons to doubt the correctness of the approach taken in Thomson Newspapers, supra, the Board will entertain further submissions on the "specifically excluded in the recognition clause" issue if the parties wish to address further argument in that respect. (We note that it is neither necessary nor appropriate for either party to repeat the written submissions already made in that respect.)