[1990] OLRB Rep. August 869
0786-90-M Metropolitan Toronto Police Association, Applicant v. Office and Professional Employees International Union, Local 343, Respondent
BEFORE: G. T. Surdykowski, Vice-Chair, and Board Members W. A. Correll and E. G. Theobald.
DECISION OF THE BOARD; August 29, 1990
The applicant employer seeks to have the Board determine, pursuant to section 106(2) of the Labour Relations Act, whether Robert Bundy (who is classified as a "Network/Communications Co-ordinator") is an "employee" within the meaning and for the purposes of the Labour Relations Act.
The applicant submits that Bundy has access to its computer files, including those files dealing with confidential matters relating to labour relations. The applicant states that in settling the last collective agreement between them, the parties agreed that:
The issue of whether the Network/Communications Co-ordinator is an employee and therefore excluded or included from the bargaining unit will be referred to the Labour Relations Board pursuant to section 106. The employer's withdrawing its demands with respect to Article 3.01 without abandoning its position that the Network/Communications Co-ordinator be excluded.
- The respondent trade union requests that the application be dismissed on the basis that:
Robert Bundy's position as Network/Communications co-ordinator should properly be a part of the bargaining unit. With respect to the sensitive nature of the new position" our view is that given the type of work performed by members of Office & Professional Employees International Union. Local 343 for the Metropolitan Toronto Police Association a high degree of discretion and confidentiality is implicit as a condition of employment. Indeed, were we to accept the employer's position, we could anticipate other applications to exclude a good percentage of our bargaining unit. While we are in the unusual position of being a trade union representing the support staff employed by another 'trade union" our view is that the benefits of unionization and basic trade union rights should be extended 'on principle" to employees who do not exercise a management function, that is the power to hire and fire.
In an application under section 106(2) of the Labour Relations Act, the issue is not whether or not the persons with respect to whom it is made are employees in a bargaining unit. The issue is whether or not they are "employees" within the meaning and for the purposes of the Labour Relations Act. Although a determination of a person's "employee" status may, for practical purposes, go some way toward resolving any issue with respect to whether or not s/he is in a bargaining unit, the two issues are not necessarily congruent. A finding that a person is an "employee" does not necessarily mean that that person is in a bargaining unit. The latter is a question for a Board of Arbitration to determine (see Re Miller et al and Algoma Steelworkers Credit Union Ltd. et. al. (1974) 1974 CanLII 860 (ON HCJDC), 6 OR. (2d) 676 (Ont. Div. Ct.); Nelson Crushed Stone, [1980] OLRB Rep. Oct. 1500; Northern Telecom, [1983] OLRB Rep. Jan. 95; The Windsor Star, [1988] OLRB Rep. Apr. 427). Consequently, a determination that the persons with respect to whom this application is made are "employees" will not necessarily mean that they, or any of them, are also in the bargaining unit covered by the collective agreement between the parties.
However, it appears that there is a dispute between the parties concerning the "employee" status of the persons named by the applicant. Consequently, and having regard to the Board's jurisprudence in the area, the Board finds it appropriate to authorize a Labour Relations Officer, to be designated by the Board's Manager of Field Services, to inquire into and report to the Board with respect to the duties and responsibilities of the persons named by the applicant as set out in paragraph 1 above.