[1996] OLRB REP. MARCH/APRIL 331
1192-94-M Southern Ontario Newspaper Guild Local 87, The Newspaper Guild, Applicant v. Thomson Newspapers Company Limited (Guelph Mercury Division), Responding Party
BEFORE: Roman Stoykewych, Vice-Chair, and Board Members Orval R. McGuire and K. Brennan.
DECISION OF THE BOARD; April 3, 1996
- This is an application pursuant to what is presently section 114(2) of the Labour Relations Act, 1995, which provides as follows:
114(2) If, in the course of collective 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 applicant trade union asserts that Mr. Gavin Fletcher, who is engaged in the "Weekend Editor" position with the responding party employer, is an "employee" within the meaning of the Act and seeks a declaration from the Board to that effect. In its reply materials filed with the Board, the responding party employer contends that Mr. Fletcher is properly excluded from the provisions of the Act on the basis of his performance of managerial functions, and further, takes the position that, for reasons relating to the circumstances in which the present application was filed, the Board should exercise its discretion and not entertain the application.
Although there is a significant dispute on the facts with respect to the duties and responsibilities performed by Mr. Fletcher, there appears to be little disagreement with respect to those factual matters underlying the employer's request that the matter not be entertained by the Board. The applicant was issued a final certificate with respect to the full-time unit of employees on September 10, 1991. At this time, the Weekend Manager position was not yet extant and, of course, the exclusion of the position was neither contemplated nor discussed by the parties during the certification process. The position was created - and designated by the employer as managerial - in April, 1992, during the course of organizational changes in the employer's operations.
It is agreed that, shortly thereafter, the union advised the employer that it was of the view that the position was properly within the scope of the bargaining unit. Although the employer continued to take the position that the Weekend Editor was properly excluded as managerial, the parties agreed to defer the further discussion of the matter until after the first collective agreement was settled by means of the interest arbitration proceedings that were commencing at the time. However, the first agreement was not finally settled until May, 1994 and contained a recognition clause that, in relevant part, provides as follows:
1.01. 2. This Agreement covers all employees of Thomson Newspaper Company Limited employed in the editorial department of the Daily Mercury Division, in the County of Wellington, save and except city editor, managing editor, wire editor, regional editor, and persons exercising managerial functions or employed in a confidential capacity in matters related to labour relations within the meaning of section 1(3) (b) of the Act.
1.03 (sic) In the event the employer creates a new position the parties shall discuss the issue of inclusion or exclusion from the bargaining unit. If the parties cannot agree as to the issues of inclusion or exclusion from the bargaining unit, the issues will be referred to the Ontario Labour Relations Board for "determination of employee status".
As can be seen, the Weekend Manager position was not expressly excluded from the terms of the agreement in the arbitrator's award. Shortly thereafter, the union again raised the issue of the Weekend Manager position, and, again, no agreement could be reached. Within two weeks, the present application was filed with the Board.
Bearing in mind these circumstances, we are not persuaded by the employer's arguments that the Board ought to exercise its discretion and not process this application in light of the union's delay in bringing the application and because the union has not, in its pleadings, demonstrated any "changes" in the job functions of the Weekend Manager. In particular, the Board notes that the employer was advised of the union's position that the Weekend Manager ought to be included in the bargaining unit immediately upon that position's creation, and that, at that time, the parties agreed to defer the matter until the terms of the collective agreement were determined. The union then promptly raised the matter and, failing agreement, immediately filed the present application. Simply put, there is no agreement by the union with the employer's position in this matter, nor is there a course of conduct by it that could reasonably give rise to the inference that the present applicant had acquiesced to the employer's position. (See The Windsor Star, [1988] OLRB Rep. Apr. 427) Indeed, the opposite appears to have been the case and the issue of the "employee" status of the person working in the Weekend Editor position can be fairly seen as outstanding between the parties throughout the entire period.
The employer further argues that the Board ought to decline to hear this matter because it would serve no useful labour relations purpose since the underlying issue, i.e., whether Mr. Gavin is properly included in the bargaining unit, would be resolved in the employer's favour at an arbitration of that question. In this regard, the employer has set out certain arguments which, were they to be raised at arbitration, it asserts, would be practically dispositive of the underlying "inclusion/exclusion" issue before the arbitrator.
Even assuming that the arguments advanced by the employer would prevail at arbitration (a matter over which we decline to express an opinion), we are not persuaded that these are circumstances in which the Board ought to refuse to consider the application. While the Board is mindful that questions concerning "employee" status and those of inclusion in a bargaining unit frequently overlap to a considerable degree in practical terms, they are nevertheless neither identical nor coextensive. For that reason, the Board has been reluctant to exercise a discretion not to hear an "employee" status application simply because the "underlying issue" might be resolved at arbitration in a particular manner. In London Free Press Printing Company Limited, [1993] OLRB Rep. Oct. 977, a case in which the positions occupied by the persons whose employee status was in question were specifically excluded by the provisions of the collective agreement, the Board explained:
We agree that there must be a "question" between the parties regarding the 'employee" status or "guard" status of a person before the Board has jurisdiction to deal with the matter. 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 when 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 London Free Press, supra, the Board noted that while a determination that a person is an "employee" under the Act would not resolve the further issue of whether that employee is covered by the terms of a collective agreement between the parties, nonetheless a determination that a person is not an "employee" would be of utility to the parties in that it would effectively resolve the collective agreement issue since, under the statute, only "employees" may be covered by the terms of a collective agreement. In any event, a determination by the Board, even where it results in a finding that the person in question has "employee" status, could be of substantial assistance to the parties during the course of further collective agreement negotiations or in resolving related issues at arbitration. In this respect, it must be considered that the negotiation of issues concerning "employee" status is constrained by the prohibition against bargaining the scope of the unit to impasse and, as a result, an application under subsection 114(2) provides a uniquely authoritative and peaceful method of resolution of the difficult issues regarding one aspect of the ongoing scope of the union's bargaining rights. In light of these considerations, and in view of the circumstances of the present application outlined above, we are satisfied that the applicant has raised a "question" related to the employee status of Mr. Fletcher and, further, we are not persuaded that no labour relations purpose would be served by inquiring into his duties and responsibilities.
Finally, we are not persuaded that Article 1.03 of the collective agreement, which sets out a procedure for the determination of the "employee" status of the incumbents of "new positions", is of assistance to the employer. Even were the Weekend Editor position not to be considered a "new position" within the meaning of that provision (which, once again, is a matter over which we expressly decline to express a view), we do not see that in any way affecting our capacity or ability to hear the present application. In the Board's view, the collective agreement provision serves a facilitative, rather than restrictive, function and cannot be seen as obstructing the applicant's ability to seek relief under the provisions of the statute.
Having regard to the foregoing, then, the Board finds that it is appropriate to enquire into the question of the "employee" status of Gavin Fletcher. Accordingly, the Board authorizes 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 Mr. Fletcher.