Dan Therrian v. Service Employees Union Local 204, 1986 CanLII 1549

[1986] OLRB Rep. January 152

1879-85-M Dan Therrian, Herbert Black, Ray Dobson, Ray Montgomery, Charlie Rankin, Bob Banks, Kerry Johnson, Sharon Vyse, Applicants, v. Service Employees Union Local 204, Respondent

BEFORE: R. O. MacDowell, Vice-Chairman, and Board Members I. M. Stamp and C. A. Ballentine.

DECISION OF THE BOARD; January 26, 1986

I

1. This is an application purportedly made under sections 106(1) and 106(2) of the Labour Relations Act by a group of individuals who describe themselves as "guards" and seek exclusion from a collective agreement by which they are currently bound. The applicants wish the Board to hold a hearing, determine whether they are "guards", and, if they are, to direct that the collective agreement does not apply to them. Alternatively, the applicants urge the Board to reconsider the decision and certificate establishing the union's bargaining rights some twenty years ago. Again, their wish is to be excluded from the bargaining unit. The relevant provisions of the Labour Relations Act are as follows:

2. The Board shall not include in a bargaining unit with other employees a person employed as a guard to protect the property of an employer, and no trade union shall be certified as bargaining agent for a bargaining unit of such guards and no employer or employers' organization shall be required to bargain with a trade union on behalf of any person who is a guard if, in either case, the trade union admits to membership or is chartered by, or is affiliated, directly or indirectly, with an organization that admits to membership persons other than guards.

106.-(l) The Board has exclusive jurisdiction to exercise the powers conferred upon it by or under this Act and to determine all questions of fact or law that arise in any matter before it, and the action or decision of the Board thereon is final and conclusive for all purposes, but nevertheless the Board may at any time, if it considers it advisable to do so, reconsider any decision, order, direction, declaration or ruling made by it and vary or revoke any such decision, direction, declaration or ruling.

(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.

Rules of Procedure

71 -(1) Where an application or complaint does not, in the opinion of the Board, make out a prima facie case for the remedy requested, the Board may dismiss the application or complaint without a hearing and it shall in its discretion state the reason for the dismissal.

II

2. Section 12 of the Act deals with "guards". It does not define what a "guard" is. The Board has consistently held that in order to be a "guard" within the meaning of section 12, and individual must exercise monitoring functions of a quasi-supervisory character with respect to other employees in the bargaining unit. In other words, they must perform duties (such as searching employee lunch boxes or investigating employee theft) which clearly place them in a conflict of interest with those employees. Employees who are essentially "watchmen" who protect the employer's property against third parties but do not intrude (as the employer's agent) in the employer-employee relationship, will not be treated as "guards" for collective bargaining purposes.

3. This Board approach was affirmed by the Supreme Court of Ontario (Divisional Court) in Wells Fargo Armcar Inc. vs. Ontario Labour Relations Board et al., 1982 CanLII 1786 (ON HCJ), 36 O.R. (2d) 361. There the persons in question operated armoured cars, wore uniforms, carried fire arms, and were commonly described as "guards". The Board held that they were not "guards" for collective bargaining purposes. The Court agreed. In summary, then, section 12 is there to protect the interests of the employer: to ensure that persons whom the employer requires to monitor or investigate others would not face a conflict of interest between his responsibilities to that employer and his loyalties to other employees in the same bargaining unit.

III

4. We have begun by commenting upon the rationale underlying section 12 for two reasons:

5. It is by no means clear that a person who thinks he might be a guard (within the meaning of section 12) can make an application under section 106(2) when his employer has not done so or may take a contrary view; and

6. even if an employee could make such application on his own and was able to persuade the Board that he was a "guard" within the meaning of section 12, it would not automatically result in his exclusion from the bargaining unit.

7. The first question was dealt with in York University, [19781 OLRB Rep. Aug. 790. There, as here, a group of employees described as "security officers" asserted that they were "guards" who should be excluded from a bargaining unit. The Board had this to say:

8. The issue to be decided by the Board is whether a question has arisen during the operation of the collective agreement as to whether certain persons are guards. If no such question has arisen then there can be no referral to the Board under section 95(2). Certainly there is no question arising between the parties to the collective agreement as to whether any of the persons are guards and there is no dispute but that such persons - irrespective of their job status - are clearly and unambiguously covered by the collective agreement. Further, it is clear to us, (and we believe to the parties before us) that even if the Board were to make a finding that such persons were not "guards" within the Act, such finding would not result in disturbing any of the rights or duties flowing from the current collective agreement or in any way change the administration of the current agreement during its remaining period of operation. The strictures imposed on the Board by sections 11 and 12 of the Act in respect to its powers to certify a trade union are similar. However the Legislature saw fit, in respect to a trade union engaging in activities defined in section 12, to take the further step in section 40 of the Act to declare that any agreement entered into shall not be treated as a collective agreement under the Act. The employer is entitled, but not required, to enter into an agreement covering a mixed unit of guards and non-guards. The same kind of statutory voiding of the agreement in the event of a contravention of section 12 is not provided in respect to a trade union which the Board is prohibited from certifying under section 11. We must, therefore, assumed that even if we were to make the finding sought by the applicants the agreement would continue to subsist and be applied. The applicant counters that the time is approaching when the collective agreement will be subject to re-negotiation and because of the strictures laid on the Board in section 11 of the Act it is essential that the applicants know whether their bargaining agent is a trade union such as the Board would certify as a bargaining agent to represent guards. It is argued that section 11 may justify the employer in refusing to bargain with a bargaining unit that includes both guards and non-guards. However, the employer has never refused to bargain with the respondent union in respect of the existing unit, nor is there any suggestion that it intends to do so at the expiry of the subsisting agreement. The bargaining relationship extends over several collective agreements and no such objection has ever been made.

9. In our view there must be a present question arising between the parties to the collective bargaining relationship before there can be a section 95(2) referral. Certainly, it is clear that for a question to arise "in the course of bargaining for a collective agreement" it would be necessary for such question to be raised in the "bargaining forum" and must therefore be a question between the parties to that bargaining relationship i.e. the bargaining agent and the employer: we are of the opinion, that it is no less implicit in the language of the section that the question which must arise during the period of operation of the agreement must also be a question between the parties to that agreement.

Thus, the Board concluded that since there was no "question" between the bargaining parties to the collective agreement, no application under section 106(2) could be made.

6. The Board reached a similar conclusion in Central Park Lodges of Canada, [1980] OLRB Rep. Oct. 1373. There, the application was purportedly made by employees who claimed that they exercised "managerial functions" and were therefore excluded from the bargaining unit by virtue of section 1 (3)(b) of the Act. After reviewing the purpose of section 1 (3)(b) and various earlier Board decisions, including York University, the Board decided that where neither of the bargaining parties is questioning an individual's status section 106(2) is not available.

7. And what if the applicants really are "guards" in accordance with the test affirmed in Wells Fargo Armcar, supra? Would that mean that they are no longer covered by the collective agreement? The answer is no - for the reasons discussed in York University, supra. Section 12 prohibits the Board from including guards in the same bargaining unit with other employees. Section 12 appears in that portion of the Act dealing with certification, and there is no doubt that on an application for certification, the Board would be precluded from including guards in a bargaining unit. Moreover, an employer cannot be compelled to bargain with a trade union purportedly representing guards if it admits to membership persons other than guards. But guards remain employees under the Act. Nothing prevents an employer from agreeing to a collective agreement which encompasses guards. The fact that the Board might not be able to certify such bargaining unit does not mean that the employer cannot waive its objection and voluntarily agree to include guards within the scope of a negotiated collective agreement. No doubt the union could not insist upon such concession, but for a particular employer it might make sense - either because the employer does not envisage any "conflict of interest" problems or because, even if there is such possibility, he would prefer to have one somewhat broader bargaining unit rather than create a situation where, at some time in the future, he might have to deal with two units and two different unions. Accordingly, even if we were to hold hearings, receive evidence, and conclude that there was the kind of conflict of interest to warrant a conclusion that the applicants were "guards", they would still remain part of the bargaining unit covered by the collective agreement unless and until their employer resists their inclusion. While, from some perspectives, this may seem a curious result, it must be remembered that the exclusion of guards does not turn upon individual employee wishes or perceptions, but rather a legislative concern to protect the interests of the employer.

8. If there is no basis under section 106(2) to launch an enquiry into the applicants' status, is there a basis under section 106(1)? The Board's files reveal that the union was originally certified around 1965 or 1966. Can and should the Board reconsider a decision and certificate issued twenty years ago? Again, the answer is no; and if it were otherwise, no Board decision would never be final as the Act clearly contemplates. There is nothing before the Board to indicate that any "guard question" ever arose at the initial certification hearing, or later at the bargaining table as the union and the employer negotiated successive collective agreements. Perhaps the bargaining parties never thought there was a problem. Perhaps the applicants (acting without legal counsel) have not understood the purpose, meaning and effect of the "guard" provisions of the Act. We need not speculate. We are not inclined to roll back the clock or consider an issue which may not even have been raised in circumstances which were undoubtedly different twenty years ago. Furthermore, it is difficult to see how that exercise can possibly benefit the applicants who are now bound by a collective agreement which is not dependent for its validity upon the original Board certificate. As the Chief Justice of Canada once remarked in Beverage Dispensers and Culinary Workers Union, Local 835, et al. v. Terra Nova Motor Inn Ltd., 74 CLLC 14,253: "Once a collective agreement is negotiated the certificate has served its purpose and is, for all practical purposes, spent". Whatever the original Board decision may have been or this panel's present opinion, the fact remains that the applicants are bound by the collective agreement and we have no authority to declare that they are not.

9. For the foregoing reasons the application cannot be made under section 106(2) by the applicants and, in any event, does not make out a prima facie case for the relief requested. This proceeding is therefore terminated.