Only an employee can be included in a bargaining unit and have access to collective bargaining. Sometimes there can be a dispute about whether a person is an employee. There can also be a dispute about whether an employee or a group of employees (like supervisors) should be included in a bargaining unit.
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 finds a person is not an employee, they can't be in the bargaining unit.
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.
If the Board decides the person is a manager, they are not an employee and will not be included in the bargaining unit.
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 individuals 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
If the Board decides the person works in a confidential capacity, they are not an employee and will not be included in the bargaining unit.
Can employees be excluded from the bargaining unit?
The Board may also decide that it is not appropriate to include certain individuals or groups of employees in the bargaining unit.
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.
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 union or employer can ask the Board to decide whether a position should be included or excluded in the bargaining unit, if they are unable to agree.
During the certification process
When a union applies to represent a group of employees, it must show that it has a required level of support among the employees.
If the Board finds an individual is not an employee, it can affect whether the union has enough support to be entitled to a representation vote. Also, when a representation vote is ordered, only the ballots cast by employees in an appropriate bargaining unit will be counted.
A dispute often comes up during the certification process about whether a person meets the definition of employee or whether there some other potential conflict of interest.
Generally, employees are actively working for the employer on the date the union's application but sometimes they aren't. 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 fired but there is a pending application in front of the Board that could result in their reinstatement,
- have been hired by the employer after the application was filed but before the vote, or
- In the construction industry, the Board will 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 the individual(s) have a sufficient continuing interest in whether the union will be certified.
Since a vote must happen quickly, the Board will try to settle disputes about who is an employee in the bargaining unit, or whether they have a sufficient continuing interest, during the certification process. If the dispute is not resolved, the vote will still go ahead and the individuals can cast a ballot at the vote.
The ballots they cast will be double-sealed pending the Board's decision on whether they are an employee in the bargaining unit. If they are not, the ballot cast will not be counted.
Issues about employee status and inclusions/exclusions arising in a certification application are dealt with as part of the certification process. You do not need to file a separate application.
Learn more about the certification process.
After the union is already certified
After the union is certified, either the union or the employer can ask the Board to decide whether a new or existing position should be included or excluded from the bargaining unit. Generally, the Board will not make a decision before:
- the employee has performed the duties of the dispute 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?
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, you can:
- 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.