The union must have threshold support amoung employees in the proposed unit in order to be certified to represent them. This requirement can lead to disputes about who is an employee as defined by the Labour Relations Code (the Code). In addition, an employee must have sufficient continuing interest in the bargaining unit in order to be considered for the purposes of determining threshold support and to be included in the bargaining unit.
There can also be a dispute about whether an employee or a group of employees (like supervisors) should be included in a bargaining unit.
Who is an employee for Code purposes?
An employee is any person employed by the employer, unless they:
- perform the functions of a manager or superintendent
- are employed in a confidential capacity related to labour relations or personnel matters
If the Labour Relations Board (the Board) finds that a person is not an employee, they don't get a say in whether the union is certified or not. They are not included in any bargaining unit that is certified (unless the union and employer agree otherwise).
How does the Board decide if a person is a manager?
Managers are excluded from the bargaining unit to avoid a potential conflict of interest between a person's duties to the employer as a manager and their membership in the bargaining unit. To decide if a person is a manager, the Board considers the person's actual responsibilities and authority.
The two most important factors the Board looks at are:
- does the person decide whether to hire, fire (discharge), or discipline employees?
- does the person have input into the employer's labour relations?
When looking at the person's role in discipline and discharge decisions, the Board uses the test of effective determination. This includes assessing:
- whether the person is actually responsible for making the discipline and discharge decisions rather than having input,
- the organizational and management structure of the workplace,
- the person's involvement in the hiring, promoting, and demoting of employees.
How does the Board decide if a person works in a confidential capacity?
Many individuals may have an obligation to keep information about their employer's business confidential. Only those who work in a confidential capacity regarding labour relations and personnel matters are not employees. The Board will assess:
- the actual job duties that the individual performs,
- whether a substantial and regular part of their job involves matters of a confidential nature relating to labour relations or personnel
Can employees be excluded from the bargaining unit?
The Board may also decide that certain employees or groups of employees shouldn't be included in the bargaining unit for other labour relations policy reasons.
For example, the Board may decide there is another type of conflict of interest, such as:
- employees who are part of the employer's immediate family
- security guards who investigate or having a policing role concerning employees in the bargaining unit
- employees who are more appropriately included in a separate supervisory bargaining unit
Even though these individuals are employees under the Code, they may still be excluded from the bargaining unit in order to avoid a conflict of interest.
Who has sufficient continuing interest in the proposed unit?
Generally, employees who are actively working for the employer on the date the union applies for certification are considered employees for the purposes of determining threshold support. However, an employee who isn't actively at work may also be an employee for the purposes of deciding if threshold has been met. For example, an employee might:
- be away on a type of leave due to illness, disability, or the birth of a child
- be on layoff but are expected to come back
- have been been fired but there is a pending application with the Board or another adjudicator with the power to reinstate them
- have been hired by the employer after the application was filed but before the vote (if held), or
- in the construction industry, the Board may also look at whether an employee:
- worked any time during the 30 days before the application was filed, and
- have a reasonable expectation of being re-employed during the 30 days after the date the application was filed
In these cases, the Board will decide whether they have a sufficient continuing interest in whether the union will be certified. Learn more about the certification process.
When does the Board decide whether a person should be included in the bargaining unit?
Most often, the Board is asked to decide whether a person is an employee and whether they should be included in the bargaining unit when the union applies for certification.
However, even after the union is certified and a collective agreement is in force, the Board can be asked to decide whether a position should be included or excluded in the bargaining unit, if there is a dispute.
Generally, the Board won't make a decision before:
- the employee has performed the duties of the disputed position for at least 90 days, and
- the parties have tried to resolve the matter themselves
How can a party apply to have the Board decide if a person should be included or excluded?
Issues about employee status and sufficient continuing interest arising out of a certification application are dealt with as part of the certification process. You don't need to file a separate application.
If the union is already certified and you want to apply to the Board for a decision as to whether a person should be included or excluded from the bargaining unit:
- Complete an application by written submission (i.e. letter)
- Make sure the application has the information required by the Rules
- Submit the application by email, mail, or courier
- Serve the other party as set out in the Rules
- Pay the $100 filing fee
In addition to the information required in the Rules, you should also include the following information:
- Date of certification (if applicable)
- Description of the bargaining unit as noted in the certification, application for certification or collective agreement
- Name, job title, and work location of the person in question
- Length of time the person has held the position
- Current status (i.e. bargaining unit member or excluded)
- Any relevant correspondence between the parties about the position
- Current job description and organizational chart showing the location of the position in question
- Detailed description of the actual duties performed by the person
- Other similar positions that are included or excluded
- Reasons why you think the position should be in the bargaining unit or excluded
- Any other information you wish the Board to consider.
Leading decisions provide useful information on how the Labour Relations Board applies the Labour Relations Code (the Code) and information on what is or is not covered by the Code.