IWA Canada Local 1-1000 v. Madawaska Hardwood Flooring Inc.

[1995] OLRB Rep. December 1451

4402-94-M IWA Canada Local 1-1000, Applicant v. Madawaska Hardwood Flooring Inc., Responding Party v. Bruce Lepine, Intervenor

BEFORE: Brain Herlich, Vice-Chair, and Board Members W. H. Wightman and B. L. Armstrong.

APPEARANCES: Michael Gottheil, Michael McCarter, Brian Brohart, Lori Gibson and Mark Thompson for IWA Canada Local 1-1000; Chris White, Dan Palayew, Laurence Prystawski, Ross Staples and Denis Staples for Madawaska Hardwood Flooring Inc.; Bruce Lepine for the Intervenor.

DECISION OF THE BOARD; December 13, 1995

1. By decision dated December 7,1995 the Board, in a "bottom-line" decision, dismissed the union's application under section 114(2) of the Labour Relations Act, 1995 (the "Act") (formerly section 108(2) of the Labour Relations Act (the "old Act")) in this matter. These are the reasons for that dismissal.

2. As a result of a prior ruling of the Board (differently constituted) dated August 2,1995, this matter was listed to be heard together with two other related matters (Board File 4643-94-R, an application for a declaration terminating the union's bargaining rights brought by Bruce Lepine, one of the four persons who are the subject of the union's instant application under section 114(2); and Board File 0585-95-U, an application under section 96 of the Act (formerly section 91 of the old Act), in which the union has alleged that the responding party (also referred to as the "employer" or the "company") has committed various violations of the Act).

3. Despite that ruling, the parties indicated in writing and confirmed at the commencement of the scheduled hearing that they had agreed to a different manner of proceeding. More specifically, they agreed that the Board ought to hear the employer's motion to dismiss the instant application in a preliminary fashion. They had also agreed (although precise positions on this point were subject to some variation both at and, apparently, subsequent to the hearing of the employer's motion) that the Board adjourn some of the scheduled hearing dates in order to allow for a decision on the employer's motion prior to the continuation of the hearing in this or the other enumerated Board Files, as the case may be.

4. The following facts were agreed to by the parties, but only for the purposes of the employer's motion:

5. The trade union was certified on May 31, 1993 for a bargaining unit which excluded, amongst others, "... forepersons, persons above the rank of foreperson ...". For the purpose of establishing the list for the count in the Application for Certification it was not challenged that the persons who were Lead Hands fell within the bargaining unit description.

6. Eventually, the Employer and the trade union commenced bargaining for the collective agreement. That collective agreement contained as Article 2.01 a bargaining unit description which reflected the Certificate issued by the Board.

7. During the bargaining for that collective agreement, the trade union raised concerns about the status of Lead Hands as "employees" within the meaning of the Labour Relations Act and took the position that the Lead Hands be excluded from the bargaining unit.

The employer took the position that the Lead Hands were employees within the meaning of the Act. The trade union Representative advised that if the matter was not resolved in collective bargaining the trade union would make an Application under the Act to determine this issue.

4. The issue of the status of the Lead Hands was discussed again after the parties had completed negotiations but prior to the Ratification and signing of the collective agreement.

The employer spokesperson, Brian Smeenk, asked the trade union Representative, Michael McCarter, what the trade union intended to do about the Lead Hands. McCarter replied that either the Lead Hands were excluded or the trade union would bring an Application.

Smeenk responded that the parties had just concluded a 14-month collective agreement and the trade union should wait to see how the matter worked out (i.e. with the Lead Hands in the bargaining unit). McCarter indicated he would speak with his bargaining committee.

After doing so, McCarter advised Smeenk that the trade union would not pursue the issue at that time but that they remained unhappy and that, if they continued to be so, the issue of the Lead Hands' status would be raised in the next round of bargaining and an Application brought, failing resolution.

5. At all times subsequent to the execution of the collective agreement the Lead Hands have had their terms and conditions of employment governed by the collective agreement.

For the purposes of this preliminary objection, the trade union is not making its Application on the basis that the Lead Hands were formerly employees within the meaning of the Act (i.e. at the time of Certification) and are now managerial by virtue of substantial change to their duties and responsibilities.

5. In addition to these agreed facts certain other background facts were asserted and undisputed; for the most part these facts emerge from the Board's record in relation to the three files in question. The collective agreement negotiated between the union and the employer commenced its operation as of February 15, 1994 and was to continue until its contemplated expiry date of March 31, 1995. An initial termination application was filed by Mr. Lepine on or about February 7, 1995 (Board File 3953-94-R). Subsequent to the dismissal of that application the union filed the instant section 114(2) application on March 13, 1995 (to repeat, Mr. Lepine was among the four persons the union, in that application, claimed were not employees within the meaning of the Act). On March 21, 1995 Mr. Lepine filed a second termination application. The parties in the termination application met with a Labour Relations Officer on April 19, 1995 and entered into a written agreement in respect of that file. In particular, the union, subject to its specific challenge to the inclusion of the four persons subject of the 114(2) application on either the list for purposes of the count or the voters' list, agreed to the voluntariness of the petition and to the consequent holding of a representation vote. Pursuant to a decision of the Board (somewhat differently constituted) dated April 19, 1995, that vote was held on May 4, 1995. The margin of difference in respect of the ballots counted was less than the number of segregated and yet uncounted ballots. The vote therefore remains inconclusive and is likely to remain so at least until the relevant challenges in that file are disposed of. Indeed, the finality of the vote in the termination application is further called into question as a result of the union's section 96 application which asks, at least alternatively, that the Board direct a new representation vote in the termination application.

6. This decision, however, while it clearly arises in the context of the facts and various applications just outlined, is, by definition and given the parties' agreement as to the nature of the motion being made and considered, limited to the instant application.

7. The employer, after reviewing some of the facts we have just adverted to, advanced two separate though related arguments to support its motion to dismiss the application. The first argument springs directly from the Board's jurisprudence regarding these types of applications; the second proceeds within the framework of the equitable doctrine of promissory estoppel, the principles of which it is said are or ought to be applied explicitly or implicitly in the Board's interpretation of section 114(2). In view of our ultimate conclusion with respect to the first argument we have not found it necessary to plumb the depths of questions of promissory estoppel and the applicability of the doctrine in relation to the exercise or protection of statutory rights.

Section 114(2) of the Act provides:

114. . . .

(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.

The parties referred us to quite a number of authorities in support of their respective positions. The cases we have found most helpful to our deliberations include The Windsor Star, [1988] OLRB Rep. Apr. 427; Fleetwood Ambulance Services, [1988] OLRB Rep. Sept. 886; Superior Ambulance Services, [1988] OLRB Rep. Oct. 1129; and London Free Press Printing Company Limited, [1993] OLRB Rep. Oct. 977; we have also considered CAA Northeastern Ontario Auto Club, [1994] OLRB Mar. 208.

8. Both the Windsor Star and the London Free Press cases pointed the Board's section 114(2) jurisprudence in new directions. Prior to Windsor Star the scope of the Board's examination (usually effected through a Labour Relations Officer) into the duties and responsibilities of the relevant persons varied depending on when and in what circumstances the question arose. Without purporting to exhaust or comprehensively detail the caselaw which preceded and was, to some extent, overtaken by Windsor Star, we can point out that, for example, formerly if a 114(2) status question arose during the period of operation of a collective agreement, the Board's examination was generally limited to new duties and responsibilities or changes to pre-existing ones. Where, however, the question arose in the course of bargaining for a collective agreement, the scope of the Board's inquiry would not be so limited. The Windsor Star decision ended that variation in the scope of the Board's inquiry which is no longer limited to "changes". That innovation, while undoubtedly significant, is of little direct relevance in the instant case.

9. A number of other aspects of the Board's jurisprudence were affirmed in the Windsor Star decision. And while the Board no longer distinguishes between a "full" inquiry and one restricted to "changes", some of the Board's pre-Windsor Star jurisprudence will be of assistance in determining whether and how a "question" has "arisen" within the meaning of section 114(2) such that the Board will inquire into the status issue on the application of one of the collective bargaining parties. In Westmount Hospital, [1980] OLRB Rep. Oct. 1572 (cited in Windsor Star) the Board had also liberalized its approach to section 114(2) (then 95(2)) applications and observed as follows:

10. The parties, however, are currently bound by the collective agreement entered into on May 12, 1980. Where parties have by virtue of their collective agreement or other form of agreement settled upon the employment status of a person, the Board at one time refused to let either party at any time withdraw unilaterally from that agreement by means of an application under section 95(2) of the Act. (See, for example, Belleville General Hospital, [1975] OLRB Rep. June 487). The basis for this policy is that a party having entered into an agreement on the status of a particular person, cannot, in the absence of a material change in duties and responsibilities, come before the Board and claim that a "question" exists as to the status of that person. More recently, the Board has liberalized this policy so as to permit an application to be brought during negotiations for the renewal of a collective agreement, after the collective agreement has expired. Parties therefore are no longer bound indefinitely to the terms of an initial agreement. The Board will not however, permit an application (other than one relating to changes in the duties and responsibilities) to be brought during the first set of negotiations following agreement upon the status of the person in question (Collingwood General Marine Hospital, [1975] OLRB Rep. Jan. 18). Nor will it permit a full application to be brought during the term of a collective agreement, unless it is satisfied either that the position is a new one arising during the term of the collective agreement, or that the applicant prior to entering into the collective agreement expressly reserved its right to bring a subsequent section 95(2) application on the person in dispute. Otherwise the applicant will be taken to have acquiesced in the position of the other party, and to have accepted it at least for the term of that collective agreement. The Board upon receipt of an application under section 95(2) during the term of a collective agreement therefore automatically limits the appointment of a Board Officer in inquiring into changes in the duties and responsibilities since the date the agreement was entered into (e.g. Ontario Hydro, [1975] OLRB Rep. July 560). If the applicant feels that the appointment should not be limited to "changes", it may write to the Board setting out its reasons, and the Board may hold a hearing to deal with the proper terms of the appointment.

11. Again, while the Board in Windsor Star did away with the artificiality associated with distinguishing "full" from "restricted" examinations, it did affirm some aspects of the analysis of the Westmount Hospital case. For example, at paragraph 14, the Board offered the following:

……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) [now 114(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 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 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.

11. That kind of approach has been affirmed in subsequent Board decisions such as the two ambulance service cases cited above. In both cases, which are factually quite similar to each other, the Board was satisfied that a "question" arose between the parties and, consequently, appointed a Labour Relations Officer to inquire into the matter. Both cases concerned individuals who had been excluded from the bargaining unit at the time of certification some 6-8 years earlier. Despite the apparent history of that exclusion, the Board relied, inter alia, on the undisputed fact that in each case the applicant had raised the issue during the last round of negotiations and had explicitly reserved its right to seek a determination under (the predecessor to) section 114(2).

12. The decision of the Board in London Free Press can also be characterized as a further liberalization of the Board's approach to section 114(2) applications. Unfortunately, there is a continuing lack of understanding within some quarters of the labour relations community regarding the relative scope and adjudicative functions of arbitrators and the Board in respect of certain issues of employee status and inclusion in the bargaining unit. Under section 114(2) the Board is limited to determining whether or not an individual is an employee (or a guard) within the meaning of the Act. Where the "real issue" between the parties is whether the person in question is included in the bargaining unit, the Board's determination may not conclusively decide that issue which may have to be referred to arbitration. Prior to the London Free Press decision, the Board was inclined to decline to inquire into such applications where it doubted the value in proceeding, e.g. where it appeared that the real issue necessitated an arbitration hearing. In London Free Press the Board acknowledged that its legislative mandate is to make a determination as to whether the subject person is an employee or a guard whether or not that finding is likely to solve the real issue between the parties.

13. The Board may be seen in that case to be suggesting that it should not shirk its statutory mandate to decide an issue the Legislature has conferred on it out of some paternalistic sense (however warranted) that it is better placed to know what determinations will serve the parties' interests and solve their labour relations problems. (Indeed, we note that there may well have been similar sentiments at play in this case where the Board permitted the parties to alter the manner of proceeding, despite a previous ruling directing a different procedural route.) But even if that is a fair characterization of the London Free Press decision, the Board felt compelled (at paragraph 14) to make clear 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 114(2) of the Act. The responding party in that case asserted that the issue of the disputed "positions" had been raised and withdrawn by the applicant in the most recent round of negotiations and that, as a consequence, the issue raised in the 114(2) application had been settled for the duration of the collective agreement between the parties and should therefore not be entertained by the Board. The Board was sufficiently troubled by this assertion that it set the matter down for hearing on that issue before making an Officer appointment. It did so because of its view that if the responding party's assertion was correct, there may have been no "question" within the meaning of section 114(2) to be determined by the Board thus necessitating the dismissal of the application.

14. It is the application of the Board's approach in the cases just canvassed that leads us to the conclusion that at the time the application was filed, no "question" had arisen between the employer and the union regarding the status of the persons who are the subjects of the application.

15. First, we must clarify that the parties have agreed that, at least for the purposes of the instant motion, the union is not suggesting that there have been any significant changes to the duties and responsibilities of the lead hands which, in turn, give rise to the kind of mischief a section 114(2) application can cure. Neither, of course, has there been any suggestion that it has been the creation of new positions which has given rise to the application. To return briefly to the issues dealt with in the Windsor Star case, the distinction between "change" and "status quo" based applications will still have some significant residual importance. Where a person occupies a newly created position or type of position or where it is significant and important changes to a person's duties and responsibilities which give rise to the application, it is much easier to imagine that a "question" has "arisen" between the parties. On the other hand where some status quo has been established as a result of the history of dealings between the parties regarding the relevant persons and where no specific change or innovation gives rise to the application, it may be more difficult to conclude that a "question" has "arisen". The instant case clearly falls into the latter category of "status quo" applications.

16. At the time of certification the persons in question were included on the list of employees for the purposes of the count (although there may have been only three rather than the current four lead hands). The parties having effectively agreed that these persons were employees (and in the bargaining unit), it is difficult to see how any question regarding the status of those persons could have arisen in the context of the certification application (in this regard see the CAA case, cited above). Similarly, had a section 114(2) application followed on the heels of the certification, it is equally difficult to see how (in the absence of any indication during the certification process that a live issue remained - as is often the case when, for example, the Board, following the precedent established in Robin Hood Multifoods Inc., [1985] OLRB Rep. July 1159, certifies an applicant and leaves any outstanding status issue to the parties' negotiations and a possible return to the Board under section 114(2)) one might suggest that a question had arisen between the collective bargaining parties (see again the CAA case as well as Collingwood General Marine Hospital, [1975] OLRB Rep. Jan. 18, cited in the Westmount case, supra).

17. The parties' agreed facts indicate quite clearly that the question of the exclusion of lead hands from the bargaining unit (though not necessarily by means of an alteration to the scope clause) was an issue raised by the union in the negotiations which culminated in the first collective agreement. And although the union may have been unhappy with the result, the issue was ultimately resolved in those negotiations. Further, not only did the union not specifically reserve any right to file an application with the Board (as had been done in a number of cases reviewed earlier in our decision), rather, it explicitly acknowledged that it would not pursue the issue any further but if the union remained unhappy the status issue would be raised in the next round of bargaining and failing resolution at bargaining an application under section 114(2) would be brought.

18. There is simply nothing in the parties' agreed facts or in the argument advanced by the union to suggest that the next round of bargaining had begun, that the issue of the lead hands' status had been raised and not resolved, and that the union had, consequently, brought the instant application. That, simply put, was not the basis of the union's argument before us. Indeed, when pressed on when the parties contemplated that the status issue could arise, the union boldly asserted that it ought to have been entitled to bring its section 114(2) application as early as the day following the execution of the collective agreement. In the circumstances described, such an assertion is clearly inconsistent with the Board's jurisprudence and with any notion of finality or reliability which must be associated with parties' settlements, an absolutely fundamental building block of any functioning collective bargaining regime.

19. Finally, we deal briefly with a further argument advanced by the union. The union's agreement that a vote be held in the termination application was predicated, it is argued, on the union's express right to pursue its 114(2) application. The facts do not bear out this assertion and certainly not to the extent suggested by the union.

20. The document signed by the parties at the conclusion of their meeting with the Labour Relations Officer lists four persons challenged by the union as "managerial". Attached is an asterisk leading to the notation "'p see IWA's 108(2) application #4402-94-M". The parties agreed that the ballots marked by challenged individuals would be segregated. The report concludes with the parties acknowledging that they "consent to the Board issuing a decision without any need for the Board to consider at a hearing the matters dealt with above which are not in dispute but recognize however, that a hearing will be required to deal with certain outstanding matters, namely: the challenges raised by the responding party concerning the list."

21. Thus, while the union's consent to the taking of the vote was certainly not unconditional, the parties did not expressly agree that the section 114(2) application would proceed or that if it did the employer would be precluded from advancing any possible defence or preliminary objection.

22. It was for these reasons that we concluded that, in view of the history of the dealings between the union and the employer regarding the persons who are the subject of the union's application, no question had arisen within the meaning of section 114(2) and the union's application was consequently dismissed.