United Food & Commercial Workers International Union v. Royal Mattress Mfg. Co., 1987 CanLII 3115

[1987] OLRB Rep. October 1302

1021-87-M United Food & Commercial Workers International Union, AFL, CIG, CLC, Applicant v. Royal Mattress Mfg. Co., Respondent

BEFORE: Robert J. Herman, Vice-Chair, and Board Members G. 0. Shamanski and R. Monta­gue.

DECISION OF THE BOARD; October 13, 1987

1. This is an application under section 106(2) of the Labour Relations Act by the applicant union for a determination of whether Norman Tremblay is an "employee" within the meaning of the Act. The respondent employer takes the position that Tremblay is excluded from the bargain­ing unit by virtue of section 1(3)(b) because he exercises managerial functions, and more partic­ularly, that the Board ought to decline to inquire into this matter on the basis that the parties have already agreed to exclude Tremblay on this basis.

2. The applicant was certified as bargaining agent for employees of the respondent in a decision dated April 28, 1987 (Board File No. 0013-87-R), based upon the agreement of the par­ties, and without a hearing. As required, the respondent had filed with the Board Schedules of employees claimed by the respondent to fall within the bargaining unit requested by the applicant. Tremblay was not listed on those Schedules. In correspondence to the Board in the instant pro­ceeding, the applicant confirms it was informed during the certification proceeding that Tremblay's name was not on the Schedules, as the employer considered him to exercise managerial functions. The applicant also noted that it did not consider him to be managerial, but recognized that the matter could be dealt with directly by the parties during negotiations. On this basis, the applicant agreed to the list of employees as set out in the Schedules and the certification application pro­ceeded on that agreement and a certificate issued.

3. We do not agree with the respondent's submissions that the Board ought not to enter­tain this application in these circumstances. The Board noted the circumstances in which it would decline to entertain a section 106(2) application in Westmount Hospital, [1980] OLRB Rep. Oct. 1572:

4. Where parties have by virtue of their collective agreement or other form of agreement settled upon the employment status of a person, the Board at one time refused to let either party at any time withdraw unilaterally from that agreement by means of an application under section 95(2) of the Act. (See, for example, Belleville General Hospital, [1975] OLRB Rep. June 487.) The basis for this policy is that a party having entered into an agreement on the status of a particular person, cannot, in the absence of a material change in duties and responsibilities, come before the Board and claim that a "question" exists as to the status of that person. More recently, the Board has liberalized this policy so as to permit an application to be brought during negotiations for the renewal of a collective agreement, after the collective agreement has expired. Parties therefore are no longer bound indefinitely to the terms of an initial agreement. The Board will not however, permit an application (other than one relating to changes in the duties and respon­sibilities) to be brought during the first set of negotiations following agreement upon the status of the person in question (Collingwood General Marine Hospital, [1975] OLRB Rep. Jan. 18).

5. An agreement that an individual is not within the bargaining unit, or on the schedules, is not necessarily an agreement that s/he is not an "employee" because s/he exercises managerial functions. Absent a clear indication that parties have agreed during the certification proceeding to exclude an individual because s/he exercises managerial functions, a party remains free to apply to the Board after a certificate issues, pursuant to section 106(2), and the Board would deal with the question of whether s/he exercises managerial functions. If parties want to argue that the employee status of an individual has been agreed to, and that Westmount Hospital principles would therefore cause the Board not to inquire into his or her status as an employee, the Board must have before it an agreement as to "employee" status. The record before us does not constitute such an agree­ment.

6. Indeed, this very process was contemplated and approved by the Board in Robin Hood Multifoods Inc., [1985] OLRB Rep. July 1159:

7. Section 6 of the Act speaks to the appropriate bargaining unit. Subsection (1) provides:

Subject to subsection (2), upon an application for certification, the Board shall deter­mine the unit of employees that is appropriate for collective bargaining, but in every case the unit shall consist of more than one employee and the Board may, before determining the unit, conduct a vote of any of the employees of the employer for the purpose of ascertaining the wishes of the employees as to the appropriateness of the untt.

The bargaining unit is an abstraction, a generic description of an employee group, the composi­tion of which is defined in terms of the inclusion or exclusion of employees according to the nature of the work each performs. The bargaining unit is defined without reference to the iden­tity of any particular employee. Bargaining rights are not restricted to persons employed at the time those rights are acquired; at any given time bargaining rights will extend to all persons then employed at jobs which fall within the scope of the bargaining unit description.

8. A question of bargaining-unit composition is concerned with identifying the sorts of employ­ees who will be included in or excluded from the unit, and not with determining which persons are employees of the included sort at a given time. The latter question is addressed by section 7 of the Act:

7.-(l) Upon an application for certification, the Board shall ascertain the number of employees in the bargaining unit at the time the application was made and the num­ber of employees in the unit who were members of the trade union at such time as is determined under clause 103(2)(j).

(2) If the Board is satisfied that not less than 45 per cent and not more than 55 per cent of the employees in the bargaining unit are members of the trade union, the Board shall, and if the Board is satisfied that more than 55 per cent of such employees are members of the trade union, the Board may direct that a representation vote be taken.

(3) If on the taking of a representation vote more than 50 per cent of the ballots cast are cast in favour of the trade union, and in other cases, if the Board is satisfied that more than 55 per cent of the employees in the bargaining unit are members of the trade union, the Board shall certify the trade union as the bargaining agent of the employees in the bargaining unit.

Read literally and in isolation from the balance of the section, subsection (1) might be inter­preted to require that the Board determine the precise number of persons in the unit on the application date and the precise number of those persons who were members of the applicant at the relevant time. However, the purpose of the directions in subsection (1) is made clear by sub­sections (2) and (3): the object is to determine only whether the number of members among bargaining-unit employees exceeds one or other of the relevant percentages. From that perspec­tive, it is apparent that a literal interpretation of subsection (1) could require the Board to deter­mine questions of fact which are of no consequence to the outcome of the application, as where the only outstanding question is whether the number of members among twenty bargaining-unit employees was ten or eleven at the relevant time. It should not be supposed that the Legislature intended that the final disposition of certification applications be delayed by litigation of issues whose resolution could in no event affect that disposition in any way. In our view, the obligation imposed on the Board by subsection 7(1) is discharged when the Board can say with certainty either that the percentage of members among bargaining-unit employees is more than 55 per cent or that it is not less than 45 per cent and not more than 55 per cent. But for the provisions of subsection 6(2), however, the Board cannot resolve the questions posed by section 7 without first settling on a description of the appropriate bargaining unit.

9. Subsection 6(2) of the Act provides:

Where, upon an application for certification, the Board is satisfied that any dispute as to the composition of the bargaining unit cannot affect the trade union's right to certi­fication, the Board may certify the trade union as the bargaining agent pending the final resolution of the composition of the bargaining unit.

It is important to note that this provision appears in section 6, which deals in the abstract with identification of the sort of employees who will be included in a bargaining unit, rather than in section 7, which deals with the identity and numbers of persons employed in a unit at a partic­ular time. Subsection 6(2) is an exception to the requirement of subsection 6(1) that the defini­tion of the appropriate bargaining unit be fully settled before an applicant can be given the right to act as exclusive bargaining agent for any employees of the respondent. A "dispute as to the composition of the bargaining unit", as those words are used in subsection 6(2), is a dispute over bargaining-unit definition or description, a dispute over the sorts of employees who will fall within the bargaining unit, not a dispute over whether any particular individual is an employee of the requisite sort, nor a dispute whether a particular individual is an employee at all.

10. Subsections 1(3)(b) and 106(2) of the Act provide:

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.

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.

As a person who exercises managerial functions is not an "employee" as that term is used in the Act, there can be no question whether such a person is the sort of employee who should be included in or excluded from the "unit of employees that is appropriate for collective bargain­ing." The kind of question contemplated by subsection 106(2) is not, strictly speaking, a "dis­pute as to the composition of the bargaining unit." Such a question can affect "the number of employees in the bargaining unit at the time the application was made" but, like any other "numbers" question, need not be dealt with in a certification application if its answer would in no event affect the result.

11. We are satisfied that where, as here, the description of the appropriate bargaining unit has been settled and the Board can say with certainty that more than 55 per cent of the employees in that unit on the application date were members of the applicant at the relevant time, the Board does have the jurisdiction to grant the applicant a final certificate, notwithstanding the existence of questions which could be dealt with in an application under subsection 106(2). Although the parties to this application agreed to attempt settlement of those questions before asking the Board to answer them, their agreement played no part in our conclusion on the jurisdictional question. The Board would have jurisdiction to grant a final certificate in these circumstances even if there were no such agreement.

12. There was no suggestion in this case that the bargaining-unit description would be affected by a determination of the employee status of the disputed individuals. We need not deal here with the question whether and to what extent the Board must or ought to continue to resolve questions of the application of subsection 1(3)(b) in the fine tuning of a bargaining-unit descrip­tion when those questions do not otherwise affect the result.

13. By deferring questions of managerial status which cannot affect the entitlement of an applicant to be certified, nor the bargaining unit description, certification applications can proceed more expeditiously, without unnecessary delays or drains upon Board resources. At the same time, parties are afforded a first opportunity, after the bargaining agent is certified, to attempt to resolve these problems through negotiations. Where negotiations are unable to so resolve matters, as in the instant case, and absent a clear agreement with respect to the status of the individual in ques­tion, the Board will entertain a section 106(2) application. To do otherwise would undercut the rationale and practice of Robin Hood Multifoods Inc. (supra).

14. As Robin Hood Multifoods Inc. indicates, final certificates will issue in those cases where the description of the bargaining unit is settled and the applicant has demonstrated it has over 55 per cent support in that unit regardless of the resolution of the status of the disputed indi­viduals. Where the status of individuals might affect an applicant's entitlement to be certified, the Board does not adopt the same approach. In Ivaco Inc. [1987] OLRB Rep. April 511, the Board declined to allow an applicant to agree to the status of individuals "for purposes of the count", and then seek to have their status determined pursuant to an application under section 106(2), where the certificate would not have been granted but for the applicant's agreement as to the number of employees in the unit.

15. In the instant case, whether Tremblay was in the bargaining unit or not at the time of the certification could not have effected the applicant's entitlement to be certified for the described bargaining unit. Nor does it appear that the parties agreed that he was not an "employee" within the meaning of the Act. Accordingly, a Board Officer is hereby appointed to inquire into the duties and responsibilities of the disputed individual, and to report back to the Board.