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.
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.
Status On Certification Applications
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
There are two reasons for determining that
a person is not an employee under the Code and, therefore, excluded from a bargaining
·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 persons 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:
discipline and discharge, and
The other factor which may assist the
Board is the persons 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.
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.
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 toresolve
the matter themselves (although the issue cannot be taken to impasse in collective
·the application must
provide specific details regarding the position on which the determination is sought.
Required For Applications
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),
between the parties with respect to the position,
description and a copy of an organizational chart showing the location of the position in
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,
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.
of Interest Exclusion
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
·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,
·who are more
appropriately included in a supervisory bargaining unit.
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
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.
in Construction Industry
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.
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
Board decisions since January 1, 2000 are
available without charge on the Internet atwww.lrb.bc.ca.
Board decisions can also be
Canada Law Book Inc.
240 Edward St.
Aurora, OntarioL4G 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.