[1980] OLRB Rep. October 1500
1047-80-M Local 494 United Cement Lime & Gypsum Workers International Union, Applicant, v. Nelson Crushed Stone Division of Flintkote Canada Ltd., Respondent.
BEFORE; M. G. Mitchnick, Vice-Chairman, and Board Members F. W. Murray and B. L. Armstrong.
DECISION OF THE BOARD; October 6, 1980
This is an application filed under section 95(2) of The Labour Relations Act in which the Board is requested "to appoint an Officer to investigate the following names as to whether these people should be members of the bargaining unit or not according to our Collective Agreement." [Names omitted]
Once a collective agreement has been entered into, a subsequent dispute as to whether or not a particular person is a member of the bargaining unit often involves two questions. The first question is whether the person is an "employee" within the meaning of The Labour Relations Act. That is the only question to which the Board addresses itself under section 95(2), and usually involves an assessment of whether the person "exercises managerial functions or is employed in a confidential capacity in matters relating to labour relations", within the meaning of section 1(3)(b) of the Act. It is, unfortunately, not as clear as it might be whether this is a question which, in the context of a collective agreement, can only be brought before the Ontario Labour Relations Board for determination. See Canadian Industries Ltd., 1972 CanLII 483 (ON CA), [1972] 3 O.R. 63; Re Miller et al and Algoma Steelworkers Credit Union, 75 CLLC ¶14,289; Re General Concrete, (1978), 1978 CanLII 2178 (ON HCJDC), 22 O.R. (2d) 65. In any event, if it is determined that the person is an "employee" within the meaning of The Labour Relations Act, the second (and ultimate) question is whether the person is covered by the collective agreement itself, having regard to the language of the "Scope" clause and any factors relevant to its interpretation. That question may be determined by the parties pursuant to the grievance and arbitration provisions of the collective agreement. It might be further noted, as an incidental matter, that once a collective agreement is entered into, the Board itself (in normal circumstances) considers the effect of its own certificate to have been "spent", in the sense that it is the language of the collective agreement negotiated by the parties which then governs as to the extent of the bargaining unit currently represented by the trade union. See Gilbarco Canada Ltd., [1971] OLRB Rep. March 155.
In the present case, as can be seen, the question put to the Board is whether the named persons are members of the bargaining unit or not "according to our Collective Agreement". This raises a suspicion that the issue between the parties is not the one which the Board considers under section 95(2). The Board has now received written confirmation from the respondent that it does not dispute that the contested persons are employees for the purposes of The Labour Relations Act. Accordingly, no purpose would be served by an inquiry by the Board into the question. The only issue that exists between the parties is whether the contested persons are covered by the terms of the collective agreement and that, as noted, is properly a matter for private arbitration.
The application before the Board will therefore not be proceeded with and is hereby dismissed.