3343-99-M Gregory Merchant Lang, Applicant v. University of Toronto and United Steel Workers of America, Responding Parties.
BEFORE: Bram Herlich, Vice-Chair, and Board Members J. A. Ronson and D. A. Patterson.
DECISION OF THE BOARD; May 9, 2000
1The applicant has filed an application under section 114(2) of the Labour Relations Act, 1995 (the “Act”). Both of the responding parties (the “employer” and the “union”) have asserted that the applicant is a bargaining unit employee who does not have standing to bring the present application. They ask that the application be dismissed as a consequence.
2The applicant was provided an opportunity to respond to those requests and the Board has now had the opportunity to review those submissions.
3At the outset, it is important to determine what this application is and is not about.
4This is an application under section 114(2). Section 114(2) provides:
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(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.
5This section is normally used to determine, in very specific contexts, whether a person is an employee or a guard. An application properly brought under this section will frequently result in a determination as to whether a person, alleged by the employer or the union to be an employee, exercises managerial functions.
6The applicant apparently believes that he does and that he therefore should not be included in the bargaining unit. From the material filed by the employer and the union, it appears that there has never been and is not now any issue between them as regards the applicant’s status. The collective bargaining parties have travelled through the certification process and concluded a first collective agreement. They have agreed on bargaining unit descriptions and exclusions in both of those contexts and have not sought to exclude the applicant from the bargaining unit.
7Having reviewed the submissions of all of the parties, we are satisfied that the applicant is not entitled to bring the present application.
8The issue of who may initiate (as opposed, perhaps, to participate in) an application under this section is well-settled and well known in the labour relations community. In that regard, the prior decision of this Board in Central Park Lodges of Canada, [1980] OLRB Rep. Oct. 1373 is particularly instructive.
9The case includes a full and comprehensive discussion and review of the policy and legal issues surrounding the bringing of applications under this section. It merits a close review. The Board in that case concluded as follows:
In our view, the scheme of the Act, the decided cases, and the ramifications of an alternative interpretation, all support the inference that section 95(2) [now section 114(2)] was only intended to resolve disputes between the immediate parties to the bargaining relationship. Section 1(3)(b) is designed to protect the institutional interests and integrity of the bargaining parties; but no such interests are at issue here, and it is unlikely that the mischief to which section 1(3)(b) is directed would arise where the company and the union have mutually agreed on the distribution of “managerial” authority, the composition of the “managerial team”, and the scope of the bargaining unit. Indeed, if the parties have been able to reach such agreement, there are good policy and practical reasons why it should not be disturbed. It would not further a stable collective bargaining relationship if the parties could be plunged into litigation on matters which they have already settled – even though an individual employee may be dissatisfied with that settlement. Moreover, it seems strange, from a practical point of view, to suggest that the Board should be entertaining applications brought for the purpose of demonstrating that a company has more (or fewer) managers than either it or the employees’ bargaining agent think it has. We agree with the view expressed by the Board in York University, supra that it is implicit that a “question” arising during the negotiation of a collective agreement must involve a question between the bargaining parties which must be resolved in order to assist them to reach a collective agreement; and that it is also implicit that a “question” arising during the operation of the collective agreement, is intended to refer to disputes between the parties who have a responsibility for administering that agreement (i.e. the trade union and the employer). Having carefully considered the various submissions of the parties, we are satisfied that section 95 was only intended to resolve issues between the bargaining parties; and was not intended to provide a forum in which employees could question their status when that status was not a matter of dispute between their employer or their trade union. In our view, it is implicit that the “question” to which section 95 refers must involve a question arising between the bargaining parties during the negotiating or operation of the collective agreement.
In the result, we find that the procedure prescribed by section 95 is not available to individual employees, and the application must be dismissed….
10Despite being alerted to and provided with a copy of this decision, the applicant has failed to make any submissions that would cause the Board to depart from its well established and reasoned approach to this section of the Act.
11Accordingly, this application must be and is hereby dismissed.
12In fairness to the applicant, who has obviously invested a significant amount of time, energy and emotion into his submissions, we offer a few further comments.
13This application is not being dismissed by reason of any technical irregularity or deficiency in the naming of the responding party and to that extent the applicant’s references to sections 123 and 112 of the Act have been of assistance.
14The applicant’s reference to a number of other sections is problematic. For example, his reference to section 99(7) and the Board’s power to alter a bargaining unit is of no relevance to this application. Section 99(7) confers a power on the Board in the context of an order made under section 99 which deals with jurisdictional disputes; it has no application to the present matter. In that context, we repeat that the application which has been brought is an application under section 114(2); it is not a request for reconsideration of the certificate issued by (a different panel of) the Board.
15In a similar vein, the applicant has made references to section 74 and to what he perceives to have been deficiencies in the certification and negotiation processes. While the applicant may truly believe that he is the victim of wrongdoing by the union and the employer, the concerns he raises in those regards are simply not relevant to the application he has filed. An application regarding employee status is not a complaint alleging violations of the Act. It is a vehicle to permit the collective bargaining parties, in the appropriate circumstances, to obtain a determination as to the person(s) whose status is in dispute. The applicant has no standing to bring that application.
16The application is dismissed.
“Bram Herlich”
for the Board