Alliance Employees' Union v. Public Service Alliance of Canada
[1987] OLRB Rep. February 265
0460-84-R Alliance Employees' Union, Applicant, v. Public Service Alliance of Canada, Respondent, v. The Ottawa Typographical Union, Local 102, Intervener
DEFORE: R. O. MacDowell, Vice-Chairman, and Board Members J. Sarra and O. Shamanski.
DECISION OF THE BOARD; February 10, 1987
- On January 20, 1987, the Board received a joint submission from the Alliance Employees’ Union (“the Union”), and the Public Service Alliance of Canada ("the employer") framed as follows:
This is a joint proposal made by the Alliance Employees' Union (the Union) and the Public Service Alliance of Canada (the Employer) to have our Certificate amended to reflect the exclusion of positions on the basis of either managerial or confidential duties. It is noted and agreed that this joint submission is solely to update our certificate to reflect today's terminology. It in no way implies that either party may not, at some point in the future, make separate submissions regarding exclusions.
We agree that the following positions should properly be excluded from the operational bargaining unit represented by the AEU:
All employees who are covered under a subsisting collective agreement in another bargaining unit.
All elected and appointed officers of the Public Service Alliance of Canada.
All Branch Directors (managerial).
The Personnel Officer and Personnel Administrative Assistant (confidential).
The Assistant Executive Secretary (confidential).
The Assistant to the National President (confidential).
The Administrative Assistant and Secretary to the National President (confidential).
The Secretary to the Executive Vice-President responsible for Finance and Administration, the Secretary to the Comptroller, the Secretary to the Executive Secretary (all confidential).
The parties hereby jointly request that the appropriate certificate be amended according to this joint submission.
Brian Reid John Sullivan Executive Secretary President AEU for the Employer for the Union
As will be seen, the parties request the Board to amend and "update" a certificate issued in 1984, in order, they say, to reflect the existing configuration of employees and persons who would not be "employees" pursuant to section 1(3)(b) of the Labour Relations Act.
We shall treat this letter as a request for reconsideration made pursuant to section 106(1) of the Act; however, for reasons set out below, it is our opinion that the request is without merit and unnecessary.
A Board certificate defines the initial scope of the union's bargaining rights, requires the employer to recognize the union for that bargaining unit, and gives the union a "licence" to commence negotiations. However once those negotiations have produced a collective agreement, it is that collective agreement (and in particular its "scope clause") which defines the parties and the extent of the union's bargaining rights. As the Board observed in Gilbarco [1971] OLRB Rep. March 155:
"...The parties are free to amend, alter, extend or abridge the bargaining rights contained in the certificate. Where bargaining rights in a collective agreement are not as extensive as those contained in a certificate, then that is prima facie evidence of the abandonment of that portion of the bargaining rights contained in the certificate but not contained in the collective agreement. In effect, the collective agreement supplants the rights given by the Board's certificate and the Board's certificate is spent once the collective agreement is signed. Or to put it another way, the best evidence of the bargaining rights extant are those contained in the collective agreement. In the same way as bargaining rights in a collective agreement supplant rights contained in a certificate, so too bargaining rights in subsequent collective agreements may supplant bargaining rights contained in prior collective agreements."
In this regard the Board was merely restating the views expressed by Chief Justice Laskin in Beverage Dispensers and Culinary Workers Union, Local 835, et al vs. Terra Nova Motor Inn Ltd., 74 CLLC ¶14,253 (S.C.C.). He commented: "once a collective agreement is negotiated, the certificate has served its purpose and is, for all practical purposes, spent". (See also Chapples Limited [1974] OLRB Rep. Dec. 897).
We recognize that in some other jurisdictions under different statutory schemes, tribunals have asserted the right and responsibility to continually monitor bargaining relationships which were established many years (sometimes decades) ago. Those tribunals assert that whenever there is a new classification created which might arguably fall outside the scope of the collective agreement but within the notional group that the union "should represent", an application must be made to amend the old certificate. This, it is said, requires the parties to amend their collective agreement accordingly.
This Board has never taken that view. It has held that once the parties have entered into a collective agreement with a recognition clause as required by section 42 of the Act, the certificate is redundant. Indeed, that is why this Board frames its bargaining units in broad "generic” fashion with specific exclusions (i.e. all employees, save and except ....) so that newly created classifications automatically fall within the bargaining unit unless specifically excluded. This Board does not, and has not asserted the authority to direct a modification of the parties' collective agreement upon the creation of classifications which might have been included in the bargaining unit, if they had been in existence at the time the certification application was made. They either fall within the agreed terms of the agreement or they don't. The only exception involves persons who may exercise managerial functions or be employed in a confidential capacity in matters relating to Labour relations. In that case, section 106(2) of the Act gives the Board specific authority to determine who is an "employee" for its purposes, and therefore eligible for inclusion in a bargaining unit described in a collective agreement. However, even then, whether a person eligible for coverage is, in fact, covered by the terms of the agreement, will depend upon the specific contract language. Where, as here, the parties are agreed upon certain exclusions they may amend the collective agreement themselves, without the intervention or approval of this Board (see Northern Telecom [1983] OLRB Rep. July 1134).
For the foregoing reasons, the Board finds that it is neither necessary, nor effective to “amend" or "update" the Board certificate issued in 1984. If the parties wish to accomplish the objective outlined in their joint submission, they are perfectly capable of doing so on their own, by simply amending the recognition clause of their current collective agreement to clarify its scope.