Inclusion In and Exclusion from Bargaining Units

The purpose of this Information Bulletin is to provide general information and guidance about inclusion and exclusion of persons from a bargaining unit.  It is not a legal document and is subject to the provisions of the Labour Relations Code, the Labour Relations Regulation, the Labour Relations Board Rules and the published decisions of the Board.

Legislative References (Code, Regulation, Rules)

Sections 1, 139

An application can be made to the Board under Section 139(a) of the Labour Relations Code to determine whether a person is an "employee" as defined in Section 1 of the Code, and under Section 139(l) to determine whether that person should be included in or excluded from a bargaining unit.

When such an application is made in conjunction with an application for certification, the Board will only make a ruling when it is necessary to determine whether the applicant union has the 45% membership support required to obtain a certification vote.  Otherwise, the Board will refer the question to the parties to be resolved, if possible, through collective bargaining.

There are two reasons for determining that a person is not an employee under the Code and, therefore, excluded from a bargaining unit: 

·        because the person performs the functions of a manager or superintendent, or

·        because the person is employed in a confidential capacity related to labour relations or personnel. 

A decision on whether a person is a “manager” and thereby excluded from a bargaining unit, is based on an objective examination of the person’s actual responsibilities and authority.  Persons are excluded in order to avoid a potential conflict of interest between their loyalties to the employer and to the bargaining unit.

 The two most important factors in determining whether there is a sufficient conflict of interest to justify exclusion are:

 ·     involvement in discipline and discharge, and

·     labour relations input.

The other factor which may assist the Board is the person’s involvement in decisions concerning the hiring, promotion and demotion of employees.  In measuring the factor of discipline and discharge, the test of "effective determination" is used having regard to the realities of particular organizations and managerial structures.

Confidentiality Exclusion

Persons meet the "confidentiality" exclusion where, as a substantial and regular part of their job, they are dealing in matters of a confidential nature which relate to labour relations or personnel. The onus is on employers to organize their operations to minimize the number of people who fall into this category.

Prerequisites

There are three prerequisites in order to have the Board consider applications for exclusion:

·        the incumbent must have performed the duties of the position for at least 90 days,

 ·        the employer and the trade union must have attempted to  resolve the matter themselves (although the issue cannot be taken to impasse in collective bargaining), and

·        the application must provide specific details regarding the position on which the determination is sought. 

The following information must be provided with each application for inclusion or exclusion:

·        name, address and telephone number of the employer and the union,

 ·        date of certification,

·        description of the bargaining unit as provided in the certification or application for certification, or in the collective agreement if it differs, 

·        name, job title and work location of the person in question,

 ·        length of time the person has held the position,

 ·        current status (i.e., included or excluded),

 ·        any correspondence between the parties with respect to the position,

 ·        current job description and a copy of an organizational chart showing the location of the position in question,

 ·        detailed description of the actual duties performed by the person, especially as they relate to the criteria considered by the Board in determining exclusions,

 ·        salary and any special benefits received by the person,

 ·        other similar positions which have been either included or excluded,

 ·        reasons why the applicant feels the person should be included or excluded, and

·        any other information which might be pertinent.

Failure to provide this information may result in the application being dismissed. 

Even where a person is determined to be an employee as defined in Section 1 of the Code, the Board may determine that it would not be appropriate to include that person in a particular bargaining unit because to do so could create an actual or potential conflict of interest.

 For example, the Board has excluded individuals:

 ·        who are members of an employer's immediate family,

 ·        who are security guards with an investigative or policing role with respect to other employees in the unit, or

 ·        who are more appropriately included in a supervisory bargaining unit. 

Management Team

The Board has also excluded individuals who are part of the "management team". That is, persons who are so closely identified with core management that to include them in the bargaining unit would be wholly inappropriate (e.g. an executive assistant to the president).   

Votes

For the purpose of representation votes, the Board may also have to determine whether persons have a sufficient continuing interest in the workplace such that they are eligible to vote.  This issue may arise, for example, with employees who are seasonal, on layoff, or have given notice of resignation, or who are off work on Workers' Compensation benefits or long-term disability.  Employees must be employed and working in B.C. as of the date the application is filed.

For the purpose of representation votes in the construction industry, where an employer's work force fluctuates and where "lay-off" usually amounts to termination, the Board has adopted a 30/30 rule.  A person who is not at work on the date of an application for certification, but who has worked at any time during the thirty days preceding the application, and who has a reasonable expectation of being re-employed during the thirty days following the date of application, will qualify as an employee.

Highland Valley Copper , BCLRB No. B289/98, 45 CLRBR (2d) 1 (managerial exclusions and separate bargaining units for supervisors)

Vancouver General Hospital , BCLRB No. B81/93, (1993) 18 CLRBR (2d) 161 (management exclusions generally)

Island Savings Credit Union, BCLRB No. B118/94 (confidential capacity exclusion)

Royal Diamond Casinos , BCLRB No. B21/2000 (exclusion of surveillance personnel from bargaining unit in the casino industry)

Waldun Forest Products Ltd. , BCLRB No. B158/93 (examination of factors to be reviewed to determine sufficient continuing interest)

Edoco Healey Technical Products, BCLRB No. 81/79, [1980] 1 Can. LRBR 570 (continuing interest of persons employed on a casual basis)

Surtek Industries Inc. , BCLRB No. B109/95, 27 CLRBR (2d) 64 (status of employees who have given notice of resignation)

Naya Inc. , BCLRB No. B294/98 (status of employees who have given notice of resignation)

Surerus Pipeline Inc. , BCLRB No. B218/98, 43 CLRBR (2d) 23 (status of employees who are working outside B. C. on date of application)

B.A.T. Construction Ltd. , BCLRB No. B444/94,  25 CLRBR (2d) 1 (determination of employee status for the purpose of representation votes in the construction industry)

Simon Fraser Lodge Inc., BCLRB No. B58/99 (Section 139 application, insufficient particulars)

Board decisions since January 1, 2000 are available without charge on the Internet at  www.lrb.bc.ca.

Board decisions can also be purchased from:

Canada Law Book Inc.
240 Edward St.
Aurora, Ontario    L4G 3S9
Telephone (toll free) 1-800-263-2037

LRB Staff provide general information and assistance to the public, but they cannot act as your representative or advisor.  For answers to specific concerns related to your situation,  you should consult a lawyer or an advisor experienced in labour relations.  For general clarification, call the Board's Information Officer at 660-1300.