Clients often ask us why their supervisors are included within the bargaining unit. It seems inconsistent to them to have one employee who supervises another included in the same bargaining unit.
The Canada Industrial Relations Board ("CIRB") - the body who determines union certifications and exclusions for all private sector employers in the three northern territories and other employers under federal labour jurisdiction - just released a decision confirming its approach to excluding employees from bargaining units. This decision will not be satisfying to Northern employers.
The CIRB decision confirmed again that it very narrowly interprets the two reasons set out in the Canada Labour Code for excluding employees from a bargaining unit: confidentiality and managerial functions. The CIRB's approach to exclusion is much different from those of provincial labour tribunals.
For an employee to be excluded because they are "employed in a confidential capacity in matters relating to labour relations" three criteria must be met:
- The employee must be dealing with confidential matters in relation to labour or industrial relations. These confidential matters do not include matters that the union or the employees would know about, such as employee salaries or performance evaluations. This confidential category also does not include information which is available from other sources, such as directly from other employees.
- If disclosed, the information would have to seriously affect the employer's interests.
- The employee must be dealing with this confidential information as a regular part of their duties. It is not enough that the employee occasionally has access to this confidential information.
All three of these criteria need to be met for an employee to be
excluded under this ground.
To exclude an employee "who performs management
functions" the employee must "have real or final decision
making powers impacting the employment of other employees".
The employee must, in most cases, have the power to discipline or
discharge other employees.
The recent CIRB decision confirmed that simply being a supervisor, is not enough to justify exclusion from the bargaining unit. Simply calling an employee a "manager", "supervisor" or "foreman" will not justify an exclusion. If the employee does not have the ability to make decisions affecting the employment of other employees, the employee will not be excluded. Ordinarily, if the employee is a working supervisor or lead hand, doing the same work as other employees, the employee will not be excluded.
The Canada Labour Code specifically allows the CIRB to include supervisors within a bargaining unit. The CIRB can put supervisors in a bargaining unit with the employees they supervise or the CIRB may create a separate bargaining unit of supervisors.
In every case where an employer is seeking to have an employee excluded from a bargaining unit, it is the employer who has the burden of proof. The employer has to convince the CIRB that the employee should be excluded.
It is important that Northern employers, and all other employers who work under the Canada Labour Code be aware of the strict criteria for employee exclusions. It is still possible to influence whether supervisors and other employees are excluded from a bargaining unit by how an employer organizes its business and assigns responsibilities, but the employer has to fit within the CIRB tests.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
