[1985] OLRB Rep. August 1287
0556-85-M Metro Windsor-Essex County Health Unit, Applicant, v. The Canadian Union of Public Employees, Respondent
BEFORE: M. G. Mitchnick, Vice-Chairman, and Board Members F. W. Murray and B. L. Armstrong.
DECISION OF THE BOARD; August 2, 1985
The applicant employer has requested the Board to determine, pursuant to the provisions of section 106(2) of the Labour Relations Act, whether the person in the new position of "Dental Assistant Supervisor" is an "employee" for the purposes of the Act.
The respondent trade union has submitted the issue of the new position's exclusion from the application of the collective agreement to arbitration, and asks that the Board defer to arbitration, on the basis that its referral was made first, and that, as the position is newly established, the Board would have difficulty assessing the application of section 1 (3)(b) of the Act.
There is, as the parties have noted, at least a degree of parallel procedures available to parties with an issue of this type. The extent to which they are parallel, however, is not as clear as it might be. In Nelson Crushed Stone, [1980] OLRB Rep. Oct. 1500, the Board noted:
"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) [now 106(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 l(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), 3 OR. 63; Re Miller et al and Algoma Steelworkers Credit Union, 75 CLLC 14,289; Re General Concrete, 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."
And further, in Northern Telecom, 11983] OLRB Rep. January 95:
The relevant provisions of the Labour Relations Act are sections l(3)(b) and 106(2):
1 .-(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.
- -(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)
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).
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. That is a somewhat different issue.
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.
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."
It is the desire of the Board to provide guidance to the parties which will enable them to deal with this issue as fully and as expeditiously as possible. Unfortunately, as the above references show, a question exists whether any single proceeding will necessarily be determinative. There may be limits on the jurisdiction of an arbitrator, for example, to finally decide the matter in dispute, in light of the words 'in the opinion of the Board' in section 1 (3)(b) of the Labour Relations Act. On the other hand, a determination by the Board that a person is an "employee" for the purposes of the Act, and therefore eligible for coverage by a collective agreement, will not necessarily answer the question whether that person is covered by the existing scope of a particular collective agreement, as the Board often notes in its appointments under section 106(2).
Here the issue appears to be essentially a "managerial" one, together, perhaps, with the additional issue of labour-relations confidentiality included under section 1(3)(b). These are matters normally dealt with by the Board. It may be, having regard to the comments of the Board referred to above, that a determination of those issues by the Board will eliminate the need for further proceedings whichever way the Board decides the question.
The Board accordingly appoints an Officer to inquire into and report to the Board on the duties and responsibilities of the person occupying the newly-established position of Dental Assistant Supervisor. Having regard to the fact that the position is newly-established, the parties will simply have to provide the Board with the best evidence available as to what those duties and responsibilities entail. See Corporation of the City of Barrie, [1983] OLRB Rep. August 1239.