[1983] OLRB Rep. November 1835
1534-83-M International Association of Machinists and Aerospace Workers Riverside Lodge No. 939, Applicant, v. Fleet Industries, A Division of Ronyx Corporation Limited, Respondent
BEFORE: R. 0. MacDowell, Vice-Chairman, and Board Members W. H. Wightman and S. Cooke.
DECISION OF THE BOARD; November 28, 1983
- This is a request made pursuant to section 106(2) of the Labour Relations Act for a Board determination of the employee status under the Act of a number of individuals, more particularly identified and listed in the applicant union's submission received by the Board on October 5, 1983. That submission was circulated to the respondent employer which, by its counsel, submits that the Board should not entertain the union's request. Section 106(2) reads as follows:
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.
Certain provisions appearing in the parties' current collective agreement may also be relevant:
2.02 The employees covered by this Agreement shall be all office and clerical employees of the Company save and except persons at present represented by Frontier Lodge 171 of the International Association of Machinists and Aerospace Workers for collective bargaining purposes, Supervisors, Assistant Foremen and persons above that rank. Personnel Division staff, Registered Professional Engineers and certain persons mutually agreeable to the Company and Union as occupying positions which are deemed to give them access to material of a confidential nature. Such positions are listed in Appendix B hereto.
APPENDIX "B"
The following positions are considered to be of a confidential nature, and therefore, employees occupying these positions are declared to be ineligible for participation in this Collective Agreement.
The Union will be supplied the names of people occupying positions noted in Appendix "B" together with a summary of their respective duties, and such list will be kept up to date at all times.
Secretaries of Officers of the Company and Department Heads
All Contract Administrators, Salesmen and Trainees
The Senior Payroll Clerk (until replaced)
The Chief Ledger Posting Clerk (until replaced)
The Senior Contract Estimator (until replaced)
The Chief Cost Analysis Clerk (until replaced)
Project Engineers.
In order to preserve the arm's length relationship between labour and management necessary for orderly collective bargaining, section l(3)(b) of the Act excludes from its ambit persons who, in the opinion of the Board, exercise managerial functions or are employed in a confidential capacity in matters respecting labour relations. These individuals - clearly "employees" at common law - are deemed not to be "employees" for industrial relations purposes. However, it is not always easy to determine where the line should be drawn; moreover, organizational change, the evolution of job functions, or the creation of new job classifications may raise questions between the parties as to the precise parameters of the bargaining unit. When such questions arise and cannot be resolved by the parties themselves, section 106(2) provides a mechanism for reference to this Board for a binding interpretation.
There is no doubt that there is currently a question between the parties as to the status of certain individuals which could not be resolved at the parties' most recent round of collective bargaining negotiations. According to the employer's submission, when the impasse occurred, the union "indicated that it would pursue other remedies". It is clear that the union was not conceding its position and was reserving its right to take such steps as may be necessary to clarify the situation. The circumstances fit squarely within the terms of section 106(2) and we see no reason why we should refuse to entertain the union's request.
We should point out, however, that there is considerable force to the employer's submission that the union is seeking to alter a well-established status quo and that even if the disputed individuals are "employees" within the meaning of the Act, they are not necessarily "employees" in the bargaining unit. The relationship between employee status under the Act (determined by this Board) and the composition of the bargaining unit (ultimately determined by an arbitrator) was discussed at some length in Northern Telecom, [1983] OLRB Rep. Jan. 954:
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 1(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.
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 the 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.
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.
Thus, if this Board concludes that the subject individuals are "employees" within the meaning of the Act, it may be up to an arbitrator to determine whether, when the parties drafted the exclusion portion of the recognition clause, they were intending to define or clarify those individuals or categories to whom section l(3)(b) would apply. This would be the usual inference from such general words as "foreman" or "supervisor"; however, as will be seen, the collective agreement here is framed more broadly.
With respect to the assertion that the union is attempting to alter an established status quo, we might only point out that an agreement on the bargaining unit configuration does not freeze the perimeter of the bargaining unit in perpetuity. On the contrary, section 106(2) itself envisages that questions may arise from time to time and provides a means for their resolution. The fact that one party or another is seeking to change the status quo does not constitute a bar to a section 106(2) determination. What it does do is provide additional evidence which the Board may consider relevant in reaching its decision. A party which is attempting to alter a status quo which reflected the earlier perceptions of the parties concerning an individual's status, and which has apparently worked adequately for some years, must recognize the importance of this historical dimension and may have to adduce clear evidence as to why a change is required to accommodate the interests section 1 (3)(b) was designed to protect. And in close cases this historical dimension may well be determinative.
Having regard to the foregoing, the Board hereby appoints a Board Officer to inquire into and report to the Board on the duties and responsibilities of the individuals more particularly identified in the union's application. The parties' attention is directed to both Practice Note 4 and the general principles enunciated in Corporation of the City of Thunder Bay, [1981] OLRB Rep. Aug. 1121. The parties might also consider such decisions of the Board as Inglis Limited, [1976] OLRB Rep. June 270 and Storwall International Inc., [1981] OLRB Rep. March 366, which may be of some assistance to them in narrowing the issues or framing their submissions.