Technical, Office, Professional, Local 1535 v. Northern Telecom, 1983 CanLII 814

Technical, Office, Professional, Local 1535 v. Northern Telecom

[1983] OLRB Rep. January 95

1574-82-M; Technical, Office, Professional, Local 1535, Applicant v. Northern Telecom, Respondent

BEFORE: R. O. MacDowell, Vice-Chairman, and Board Members B. L. Armstrong and F. W. Murray

DECISION OF THE BOARD; January 14, 1983

Decision

1. This is what purports to be an application under section 106(2) of the Labour Relations Act. The application takes the form of two letters from the union dated November 4, 1982, and November 11, 1982, which read as follows:

November 4, 1982

Dear Sir:

At this point in time we have a point of contention with Northern Telecom, Bramalea.

Our problem is with two (2) non bargaining unit people doing bargaining unit work. We are proceeding through the grievance procedure, however Northern Telecom refuses to bring one of these non bargaining unit people to the grievance hearing.

I hereby request that you send in an impartial referee to resolve this situation.

November 11, 1982

Dear Sir:

I request the Board assign an officer to investigate a violation of the act, namely that the Company has assigned supervisors to perform work of the bargaining unit.

We request this investigation under 106.2 of the act. Supervisors involved were:

D. Champagne

H. Thornicroft

R. Luttrel

Work performed by these individuals is similar in scope to that of members of the bargaining unit. The Company contends that they are supervisors.

Our contention is that they are not supervisors based on the fact that they have no one report to them and do not exercise managerial control.

This letter is being sent to further clarify the letter of November 4, 1982 which was sent by myself.

The relevant provisions of the Labour Relations Act are sections l(3)(b) and 106(2):

l.-(3) Subject to section 90, for the purposes of this Act, no

person shall be deemed to be an employee,

(b) who, in the opinion of the Board, exercises managerial functions or is employed in a confidential capacity in matters relating to labour relations.

106.-(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.

(emphasis added)

2. The purpose of section l(3)(b) is to ensure that persons in the bargaining unit are not faced with a conflict as between their interests as members of the bargaining unit, and such obligations to their employer as may arise from the exercise of managerial responsibilities. Collective bargaining, by its very nature, requires an arm's length relationship between the "two sides" whose objectives are sometimes divergent. This conflict of interest problem is avoided by excluding "managerial" personnel from the definition of "employee" and, therefore, from coverage by the Act or participation in collective bargaining. The line is drawn where, in the opinion of the Ontario Labour Relations Board, an individual exercises "managerial functions". That decision is final and binding for all purposes (see sections 106 and 108).

3. One of the ways in which an employee status issue can come before the Board is under section 106(2), when a question arises between the parties as to whether an individual is, or is not, an "employee" for the purposes of the Act. It is important to note, however, that the issue before the Board under section 106(2) concerns the application of the statute and the statutory definition of the term "employee" — not whether an individual is covered by a collective agreement. This is a somewhat different issue.

4. A collective agreement has no common law foundation. Its legal characteristics are drawn from the Act, and by definition (see section l(l)(e) ), it prescribes the terms and conditions of "employment" for "employees" represented by the union which, in turn, is an "organization of employees". Moreover, (see section 50) it is only binding upon "the employees in the bargaining unit" defined in it. In both cases, the term "employee" must be taken to exclude persons who by virtue of section l(3)(b) are not "employees" under the Act. Indeed, given the array of provisions designed to ensure the separation of employer and employees (see sections l(3)(b), 13, 48, 64 and 106) it would be anomalous if management were in the bargaining unit or covered by the collective agreement. It follows that if an individual exercises managerial functions he is not an "employee" under the Act, and cannot be considered an "employee" for collective bargaining purposes, or to whom the negotiated collective agreement applies. Finally, since employee status under the Act turns on the opinion of the Ontario Labour Relations Board, it is doubtful whether an arbitrator under a collective agreement has any jurisdiction to resolve this issue. It is the opinion of this Board in the exercise of its exclusive jurisdiction which is determinative.

5. For the foregoing reasons, a Board determination that an individual exercises managerial functions and is not an "employee" under the Act may well be determinative of his status under a collective agreement. If, in the opinion of the Board, he exercises managerial functions, then he is not an employee, and the agreement cannot apply. On the other hand, if, in the opinion of Board, he does not exercise managerial functions then he is an employee under the Act to whom the agreement may apply depending on its terms. But it does not necessarily follow that "all employees" will be covered by an outstanding collective agreement. That depends upon the bargaining unit description which the parties have negotiated. It is not at all unusual for certain employee categories to be excluded from a collective agreement. These employees are not covered by the agreement even though they are legally eligible for coverage. Likewise, it is not unusual for disputes to arise between the parties about the application of the agreement to individuals who are clearly employees, but who may nevertheless be beyond the scope of the agreement because the contractual language is not broad enough to cover their job classifications. These are questions which must ultimately be resolved by arbitration, since they involve the interpretation of the collective agreement. Of course, if the dispute centres on a term such as "foreman", "supervisor", or other word intended by the parties to denote managerial status, then the Board decision will probably resolve the interpretation problem and make a resort to arbitration unnecessary. It is unlikely that the parties intended such terms to include persons who are not really "managerial" under the Act.

6. To summarize then:

(a) If the issue between the parties involves the status of an employee under the Act, then the Board has exclusive jurisdiction to determine that issue.

(b) The fact that an individual is an employee under the Labour Relations Act does not necessarily mean that he falls within the negotiated scope of any particular collective agreement.

(c) If an individual is admitted to be an employee under the Act then his inclusion in a negotiated bargaining unit is for an arbitrator to determine.

(d) Where the parties' dispute involves language denoting managerial status, the Board's decision with respect to who is "management" for the purposes of collective bargaining under the Act, will likely be sufficient to resolve the dispute.

7. On the basis of the material before the Board, it is difficult to characterize the issue between the parties. The initial union letter dated November 4, 1982, suggests that the problem involves non-bargaining unit persons doing bargaining unit work. That is not normally an issue which can be resolved under section 106(2). Any restriction on "managerial" persons doing bargaining unit work, must be found in the terms of the collective agreement, and that is a matter of its interpretation, with resort, if necessary, to an arbitrator. If, on the other hand, the union's position is that certain individuals are not managerial at all, because they do not exercise managerial functions and are "employees" under the Act, then that is a matter which the Board can determine. But that decision may or may not determine whether they are covered by the existing collective agreement. As we have already noted, it is quite possible for an individual to be an "employee" under the Act, but still not fall within the language of the scope clause of the collective agreement. We might also note that where an application under section 106(2) is made during the currency of an existing collective agreement, the Board's practice is to confine its enquiry to the changes in the duties and responsibilities of the disputed individuals since that agreement was executed (see Westmount Hospital, [1980] OLRB Rep. Oct. 1572.) Finally, we direct the attention of the parties to the general principles enunciated in Corporation of the City of Thunder Bay [1981] OLRB Rep Aug 1121, and the observations of the Board in Falconbridge Nickel Mines Limited [1966] OLRB Rep. Sept 379 which involves persons performing "mixed" duties some of which are arguably managerial and some of which are not.

8. In the circumstances of this case, as they presently appear, the Board does not consider it appropriate to appoint a Labour Relations Officer. Rather, the Board considers it necessary to solicit further representations from the parties concerning the nature of the dispute between them and, in particular, a brief statement of the duties and responsibilities which they allege the disputed individuals perform. Accordingly, before proceeding further with this application, the Board deems it appropriate to extend to the parties, and particularly the applicant union, an opportunity to particularize their positions and clarify the nature of their dispute.