[1981] OLRB Rep. January 38
0088-79-R Ontario Utility Foremen's Association, Applicant, v. Hydro Electric Commission of The Borough of Etobicoke, Respondent.
BEFORE: Pamela C. Picher, Vice-Chairman, and Board Members J. D. Bell and O. Hodges.
APPEARANCES: S. B. D. Wahl and L. Siegman for the applicant; Janice Baker and R. W. Brown for the respondent.
DECISION OF PAMELA C. PICHER, VICE-CHAIRMAN AND O. HODGES, BOARD MEMBER; January 29, 1981
This is an application for certification.
By a decision of the Board dated April 26, 1979, the Board directed the taking of a pre-hearing representation vote. In that decision the Board further appointed a Labour Relations Officer to inquire into and report to the Board on the list and composition of the bargaining unit. The pre-hearing representation vote was taken on May 8, 1979. Pursuant to the Board's order, the ballots were segregated and the ballot box sealed pending a final determination of the appropriate bargaining unit.
The bargaining unit applied for by the applicant is a tag end unit of approximately thirteen foremen who work for the Hydro Electric Commission of the Borough of Etobicoke. The foremen are excluded from the "all employees" bargaining unit represented by Local 636 of the International Brotherhood of Electrical Workers, a unit encompassing the persons supervised by the foremen in question in this application.
The respondent asserts that the bargaining unit applied for by the applicant is inappropriate because all of the foremen exercise managerial functions within the meaning of section l(3)(b) of the Act which reads, in part, as follows:
1(3) Subject to section 80, for the purposes of this Act, no person shall be deemed to be an employee
(b) who, in the opinion of the Board, exercises managerial functions or is employed in a confidential capacity in matters
relating to labour relations.
The applicant, on the other hand, argues that while the foremen supervise employees, they do not exercise managerial functions because they do not exercise effective control and authority over them.
Before evaluating the duties of responsibilities of the foremen in question, we turn to an issue relating to the admissibility of evidence which arose during the course of the Board Officer's examinations into the duties and responsibilities of the foremen. At the outset of the Officer's first meeting, the parties agreed in writing, pursuant to Board Practice Note No. 4, "Procedure of Labour Relations Officer's Inquiry into Duties and Responsibilities", that the evidence given by four foremen would be representative of all persons in the proposed bargaining unit. Following the taking of evidence from these four foremen, counsel for the employer sought to adduce additional evidence from two witnesses outside the bargaining unit. Counsel for the applicant union objected on the grounds that further evidence relating to the duties and responsibilities of the foremen would violate the agreement of the parties. The Officer entertained the evidence in dispute on the understanding that at a later date the matter could be argued before the Board. At the Board's hearing, counsel for the union maintained, in the alternative, that if the employer was entitled to adduce additional evidence from non-bargaining unit persons, it should be able to call proper reply evidence, if necessary, from outside the group of four representative foremen.
Paragraphs 8 and 9 of Practice Note No. 4 provide as follows:
In a case where a Labour Relations Officer is inquiring into the duties and responsibilities of an occupational classification and there is more than one person in the classification, the parties may agree that the evidence of one person or a number of persons in the classification is representative of the duties and responsibilities of al persons in the classification. Where the parties are unable to agree to one person, or a number of persons, as being representative of all persons in the classification, the Labour Relations Officer shall advise the parties that an interim report may be issued to the Board before all persons in the classification have been examined. Such a report shall not be issued until the Officer has given the parties the opportunity to adduce evidence regarding all persons already examined. Where an interim report is prepared, a copy of the report will be served to all parties. The parties shall then be given the opportunity to make representations to the Board as to whether it is necessary to examine all persons in the classification. The Board shall hold such hearings, make such decisions, and issue such instructions as it considers appropriate in the circumstances.
9 At the conclusion of an examination of witnesses called by the Labour Relations Officer, the Labour Relations Officer will ask the following question: "Do any of the parties wish to call any (further) witnesses concerning the matters that the Board has referred to me for inquiry and report?" An answer to this question must be obtained from counsel for, or the representative of, each of the parties present at the inquiry and the answer recorded in the Labour Relations Officer's note book. If the answer given on behalf of any party to this question is in the affirmative, the Labour Relations Officer will afford an opportunity to that party to call witnesses, who will, of course, be subject to cross-examination by the other parties.
Practice Note No. 4 provides that instead of examining every person in an occupational classification, the parties may agree that the evidence of one person or a number of persons in that classification is representative of the duties and responsibilities of all persons in the classification.
Practice Note No. 4 was amended to its present form following the Board's decision in Chrysler Canada Ltd., [1976] OLRB Rep. August 396. At that time paragraph 8 of Practice Note No. 4 stipulated that instead of examining every person in the occupational classification in question the parties could agree on one person in the classification as being representative of the duties and responsibilities of all other persons in the classification. Unless the parties could agree to one person, and only one person, however, the Officer was required to examine all persons within the classification. At that time Practice Note No. 4 explicitly precluded the modification of the "one or all" procedure even on the agreement of the parties. It read as follows:
In a case where a Labour Relations Officer is inquiring into the duties and responsibilities of an occupational classification and there is more than one person in an occupational classification, the Labour Relations Officer is to interview all the persons within the classification, unless the parties agree that one person, and only one, is to be interviewed by the Labour Relations Officer and that the evidence taken from him shall be representative of the duties and responsibilities of all of the other persons in the classification or any named persons within the classification. This rule is not to be changed regardless of any agreement made by the parties, except where several persons in a classification have been examined and the parties then agree that one of such persons is representative of all persons within the classification and that the Labour Relations Officer need only report his examination of the one person who is agreed to be representative of the classification. Such agreement must be noted in the Labour Relations Officer's report. It is the responsibility of the parties to have available any other witnesses who they require to give evidence on their behalf.
In Chrysler Canada Limited, supra, the Board's "one or all" approach was challenged. There were 450 persons who fell within the proposed bargaining unit of foremen and general foremen. After 27 of these persons had been examined, both parties asked the Board to accept their evidence as being representative of the duties and responsibilities of all other foremen and general foremen instead of examining the additional 423 persons involved. The Board was attracted to the parties' argument that in the circumstances of their case the "one or all" alternative was unworkable. Notwithstanding the procedural guidelines contained in Practice Note No. 4, therefore, the Board allowed the parties to agree upon the group of persons already examined as being representative of the duties and responsibilities of all the persons in the bargaining unit.
Following the Chrysler Canada case, Practice Note No. 4 was amended to enable parties to agree at any time that evidence from a group of persons within the bargaining unit would be representative of the duties and responsibilities of all persons in the bargaining unit.
It is undisputed by the union that when the Board followed the "one or all" approach, management was entitled to call its own witnesses to give testimony relating to the duties and responsibilities of the persons in question. Not only was this made clear through the last sentence in paragraph 8 which provided, "[i]t is the responsibility of the parties to have available any other witnesses who they require to give evidence on their behalf', but also in the first sentence in paragraph 9 which stated, then and now, that "[a]t the conclusion of an examination of witnesses called by the Labour Relations Officer, the Labour Relations Officer will ask the following questions: 'Do any of the parties wish to call any (further) witnesses concerning the matters that the Board has referred to me for inquiry and report?'" Counsel for the union argues that as the last sentence of paragraph 8 was removed in the amendment to Practice Note No. 4, the Board must have intended to modify its procedure and preclude management from calling witnesses outside the bargaining unit when the parties have agreed on a representative person or group of persons from the disputed classification.
The Board cannot accept this suggestion. The Board modified Practice Note No. 4 because the unusual circumstances in Chrysler Canada revealed the limitation of the "one or all" approach. There is no suggestion either in Chrysler Canada or in the amended wording of Practice Note No. 4 that the parties should no longer be able to have persons from outside the disputed classification give testimony relating to the duties and responsibilities of the persons within the classification. Practice Note No. 4 in its present form simply states in paragraph 8 that the parties may agree that the evidence of either one person or a group of persons in the classification shall be representative of the duties and responsibilities of all of the persons in the classification. The agreement limits the number of persons who may give evidence from within the disputed classification, It does not, however, preclude the production of evidence from persons outside the classification who can provide the Board with a different perspective on the duties and responsibilities of the persons in question. Furthermore, paragraph 9 still requires that the Labour Relations Officer ask the parties whether they have further evidence to call. The Board finds no support for the suggestion of counsel for the union that paragraph 9 does not apply where the parties have agreed on a representative group pursuant to paragraph 8.
In assessing the duties and responsibilities of persons in a disputed classification, the Board is frequently assisted by evidence from persons outside the bargaining unit such as supervisors who, for example, can testify to the extent to which recommendations from persons in dispute are relied upon by superiors in making their decisions. Additionally, higher management can provide a general perspective to enable the Board to appropriately place the persons in dispute in the overall organization of the respondent. Counsel for the union argues, however, that if management wants to present evidence from outside the bargaining unit, from a supervisor or department head for example, then it must insist that all persons in the disputed classification be examined.
No appropriate interest would be served by making either party's ability to call witnesses from outside the disputed classification dependent on the absence of an agreement between the parties that one or some of the persons in the classification in question shall be representative of the duties and responsibilities of all such persons. This is particularly true as evidence from a supervisor or department head may assist the Board in assessing the employee status of persons in dispute. The availability of that evidence to the Board should not be linked to the absence of an agreement between the parties on representative persons. The policy reasons for enabling parties to agree on one or some persons in the classification as being representative of all are fully independent of the relevance of evidence from supervisors or other persons outside the classification. Enabling the parties to agree on one or some persons as a representative group within the disputed classification eases the heavy burden that would be placed on the resources of both the parties and the Board if all persons in the classification had to be examined. The significant saving in time and financial resources that flows from the ability of parties to agree that one or some persons in an occupational classification shall be representative of all persons within the classification should not be jeopardized solely because one of the parties wishes to call a witness from outside the disputed classification to provide the Board with a different perspective.
For these reasons the Board concludes that an agreement made pursuant to paragraph 8 of Practice Note No. 4 that the evidence of one or some of the persons in the classification in dispute will be representative of the duties and responsibilities of all the persons in that classification does not disentitle either party from calling witnesses from outside the classification to give testimony on the question in issue. Accordingly, in this instance, the respondent was entitled to call Mr. J. Male and Mr. J. A. Cook who are both supervisors above the foremen. Once one party presents witnesses from outside the classification in dispute, however, the other party becomes entitled to present proper reply evidence either from persons in the representative group or from someone else.
We turn then to consider whether the foremen exercise managerial functions within the meaning of section l(3)(b) of the Act.
The evidence relating to the duties and responsibilities of the foremen may best be understood by setting out the framework of the respondent's operation as it relates to the foremen. The foremen at Etobicoke Hydro fall into three divisions. In the engineering division —construction segment —there are four kinds of foremen: overhead line foremen, water heater foremen, underground line foremen and substation foremen. Each of these foremen reports directly to a supervisor. The water heater foreman reports to the service supervisor, Mr. Jack Gardiner. Both of them as well as the overhead line foremen report to the overhead supervisor, Mr. Cliff Cross. The underground line foremen and substation foremen report to the underground supervisor and the substation supervisor respectively. The line of authority then progresses upwards through the supervisors to the assistant construction engineer, and then to the construction engineer, Mr. Jack Male. Mr. Male reports to the assistant to the chief of engineering/general manager who in turn reports to the chief of engineering/general manager. The final step in the chain of authority is the Commission itself. There are therefore approximately six levels of authority above foremen in the engineering department. These foremen are generally referred to as the construction foremen. From this division, testimony was given by Mr. Alex Fox, the water heater foreman, and Mr. Leo Siegman, an overhead line foreman. The Board further had the benefit of direct testimony from their superior, Mr. Male. It did not, however, hear evidence from their immediate supervisors.
The second division of the respondent with foremen involved in this application is the operations section which is supervised by Mr. Jack Cook. Within the operations division there are four sections each headed by a foreman: the control room, meters (installation and repairs), stores and the garage. From this section the Board was provided with evidence from the garage foreman, Mr. Bill Chattaway, the control room foreman, Mr. Desrochers, and the foremen's supervisor, Mr. Cook.
The third division of the respondent is administration. Mr. Reg Jacklin is the accounting/billing foreman. He reports to Mr. Neil Upshell, the manager of customer service, and then to Mr. Ron Willows the secretary-treasurer of administration. The parties agreed at the outset of the examinations into the duties and responsibilities of the foremen that Reg Jacklin should be examined separately and that the Board's determination of his status as an employee should not affect the Board's determination of the status of the others.
With respect to all foremen apart from Mr. Jacklin, the parties agreed at the outset, as discussed above, that the evidence of line foremen Leo Siegman, substation foreman Alex Fox, control foreman Walter Desrochers and garage foreman Bill Chattaway would be representative of the duties and responsibilities of all persons in the proposed bargaining.
In making determinations under section l(3)(b) of the Act the Board has continually recognized that effective collective bargaining necessitates an arms length relationship between employees on the one hand and management on the other. In acknowledgement of a fundamental divergence between the objectives, priorities and interests of the two groups, the managerial exclusion in section l(3)(b) functions to exclude from the scope of "employee" those persons who, because of the exercise of managerial functions and allegiance to management, would be placed in a position of conflicting interests if allowed to engage in collective bargaining.
The term "managerial functions" is not defined by the Act. The Board, therefore, must assess the facts of each case to determine whether the duties and responsibilities in question have true managerial significance. In Cottage Hospital (Uxbridge), [1980] OLRB Rep. March 304, the Board at pp. 305-306 summarized the approach it takes to evaluating whether an individual exercises managerial functions:
Over the years the Board has developed general guidelines to assist it in evaluating whether an individual exercises managerial functions (see Inglis Limited, [1976] OLRB Rep. June 270, Chrysler Canada Limited, [1976] OLRB Rep. Aug. 396 and McIntyre Porcupine Mines Limited, [1975] OLRB Apr. 261). For those persons whose work has little or no impact on the employment relationship, the Board looks to whether or not they exercise independent decision-making responsibilities in matters of policy or the running of the organization. The Act does not operate to exclude those who only make effective recommendations in this regard. Nor does it exclude persons whose independent decisions are either circumscribed within pre-determined limits set by others or limited to technical and procedural determinations flowing from their expertise in a limited field. (See Libby, McNeil and Libby of Canada, [1967] OLRB Rep. May 193, Inglis Limited, supra; and Dominion Stores Limited, [1976] OLRB Rep. Aug. 44 and Canadian General Electric, [1979] OLRB Rep. Jan. 12).
Different considerations apply to the work of a second group of person's who may be characterized as having a direct effect on the employ-merit relationship or the terms and condition of employment of those in the employ of the organization. Supervisors of employees or those technical experts whose work affects terms and conditions of employment or hiring and employment policies would fall within this group. In determining whether such persons whose work has a direct effect on the employment relationship exercise managerial functions, the Board assesses whether or not they exercise effective control and authority over employees either in direct contact with the employees or through their decisions. In making this evaluation the Board looks to whether the person has, at a minimum, the authority to make effective recommendations relating to conditions of employment. An effective recommendations is a 'serious recommendation that the evidence demonstrates is usually acted upon, and therefore a recommendation that materially affects the economic lives of employees'. (McIntyre Porcupine Mines Limited, supra, at 289).
- Concerning the evaluation of foremen in particular, the Board made the following comment in Peterborough Civic Hospital, [1973] OLRB Rep. Mar. 154 at pp. 155-156:
We have long recognized that in the early stages of industrial organization the foreman was a key person in the management hierarchy. Persons looking for a job came to the foreman, who had the right to hire, to fire, to grant raises and to assign work. The foreman was effectively "the king of the shop" insofar as the employees were concerned. He had a great deal of discretion and he was able to make decisions which greatly affected the welfare of the employees. Moreover, he exercised considerable control over their day to day work life. The evolving position of the foreman in industry is more fully described in the Spruce Falls Power and Paper Co. Limited case 47 CLLC 9116,489, and it is not necessary for us to describe that situation any further.
However, a very important and significant factor in arriving at decisions about whether foremen were managerial was the conflict of interest theory which recognized that foremen owed a duty to management to control and discipline employees, and if the foreman was placed in the bargaining unit so as to become a union member, it would seriously impair his management function. As such, the duty to be owed to management would be incompatible with the trade union interests that he held in common with his fellow employees; cf Ferranti Packard Electric Limited, [1968] OLRB Rep. Sept. 572.
The evolution of industrial organization and the advent of collective bargaining altered the position of the foreman in many situations. He is no longer the "king of the shop"; hiring and firing are done by the personnel department; the work may be controlled by the terms of a collective agreement or where there is no collective agreement the work may be controlled in a similar fashion. The result of the many changes in the hierarchical structure has diminished the foreman's responsibility to the point where he may be left with the vestiges of power that he once exercised and where he previously stood visibly with management he now stands on the periphery between being a member of management and being an employee.
In McIntyre Porcupine Mines Limited, supra, the Board at pp. 278-279 noted the existence of some "rules of thumb" for foremen. In the industrial context, for example, foremen are generally excluded from bargaining units. In the construction industry a distinction is regularly drawn between working and non-working foremen, with working foremen regularly falling within the bargaining unit and non-working foremen falling outside. These "rules of thumb" merely reflect common practice and are not hard and fast rules. They do not themselves determine whether any particular foreman or group of foremen are employees for the purposes of the Act. Whenever a question arises over the appropriateness of the application of the "rule of thumb" in a particular case, the question must always be whether the foremen in question in fact exercise managerial functions within the meaning of section 1 (3)(b) of the Act.
The foremen involved in this application exercise supervisory functions. They are each in charge of a group of employees ranging in size from approximately five to twelve employees. To varying degrees they each also perform work of a non-supervisory nature which may include work similar to that performed by those they supervise. Mr. Fox, the water heater foreman, for example, regularly goes on the road and makes calls. If he has the necessary tools with him and a mechanic is not available he might do a water heater repair that would otherwise be done by his men. Mr. Siegman, the overhead line foreman, testified that some days he works with his crew, particularly if they are a man short, and other days he doesn't "lift a finger". The control room foreman, Mr. Desrochers, stated that there's very little actual supervision required in his job because things are well laid out in a manual. While he does not do the work of his men, he spends time on such non-supervisory projects as reviewing and updating maps. Mr. Bill Chattaway, the garage foreman, works the day shift while his men work repairing vehicles in the late afternoon and evening. Although he does not generally engage in heavy repair work he spends time carrying out such non-supervisory functions as getting problem vehicles started in the morning and ordering parts needed for repairing vehicles. They all, however, spend considerable time exercising supervisory functions.
Exercising supervisory functions does not by itself exclude a person from engaging in collective bargaining. Even when a person is primarily engaged in the supervision of others he is not managerial unless he also has effective control over their employment relationship. (See Falconbridge Nickle Mines Limited, [1976] OLRB Rep. Sept. 379 and McIntyre Porcupine Mines, supra.) Scheduling work for employees and co-ordinating their efforts (something regularly done by the foremen in this case) is not itself a managerial function. (See, in addition to the cases previously cited, Second Manufacturing, [1975] OLRB Rep. Sept. 658; Thames Steel Construction Limited, [1979] OLRB Rep. May 440 and Caledon Hydro Electric Commission, [1979] OLRB Rep. Oct. 924.)
To determine whether the foremen in this case exercise managerial functions within the meaning of section l(3)(b) of the Act, the Board will look to whether or not they exercise effective control and authority over the people they supervise as may be seen by an ability, at a minimum, to make effective recommendations in areas that materially affect the economic lives of the employees. If they act merely as conduits for management and do not themselves effectively control the economic lives of their employees, they would not be exercising functions with true managerial significance. As well, foremen would not be exercising managerial functions if they merely gather facts relating to their men from which management is then able to make its own decisions as to how to deal with particular situations. Even if foremen's evaluations of employees are given serious consideration and are relied on by their supervisors in making their decisions affecting employees, the foremen would not be making effective recommendations unless the recommendations are so consistently and frequently followed that it could be said that through the recommendations the foremen are effectively controlling or determining the decisions. A recommendation would not be effective, for example, if it was merely one of several factors considered or relied on by a supervisor in the course of making his own independent decision. Similarly, foremen would not be viewed by the Board as exercising managerial functions if they merely act within strict supervisory guidelines set by others.
Areas of fundamental importance to the economic lives of employees and thus areas that would assist the Board in deciding whether a foreman has effective control and authority over people he supervises would include, among others, the foreman's participation in the hiring, discharging and disciplining of employees, his input into their general performance evaluation, participation in the grievance procedure and, to a lesser extent, the foreman's ability to give time off and assign overtime. We turn then to consider, firstly, the evidence relating to the foremen as a whole and then the segregated evidence of Mr. Jacklin.
None of the foremen, apart from Mr. Jacklin, has the authority to hire. They rarely take part in the initial screening or interviewing of the applicants. At times, however, they speak to some applicants either at Mr. Male's or Mr. Cook's request in order to assess an applicant's abilities. Following such a discussion they may be asked verbally for their opinions. Mr. Fox gave evidence relating to one situation where there were about nine applicants for a job but Mr. Male asked him to speak with only two or three of them. It is evident that Mr. Male had done the initial screening of applicants. Mr. Fox further testified that it was Mr. Male, not himself, who first identified the need for the additional employee. The evidence suggests that an effort is made by management to reach a consensus with a foreman on the choice of the person who will be hired to work under him. While Mr. Male or Mr. Cook may give weight to foremen's opinions, especially in assessing technical skills, there is no indication in the evidence that their opinions are relied on to such an extent that they virtually become the determinative basis of the decision. Mr. Male and Mr. Cook receive applications, interview applicants and form their own opinions as to who should be hired. In so doing, they may ask for a verbal opinion from a particular foreman. The evidence reveals, however, that the opinions of foremen are in general just one factor among numerous others considered by management in deciding which person to hire and cannot be described as effective recommendations. In this regard a distinction must be drawn between input which influences a decision on the one hand and input which forms the effective basis of the decision on the other. (See for example, Caledon Hydro Electric, supra.) Mr. Chattaway's evidence highlights the Board's conclusion that while the foremen may provide opinions which may influence the ultimate choice of the persons to be hired, they do not in this regard exercise the power of effective recommendation. In 1976, a person had to be hired to replace Mr. Chattaway when Mr. Chattaway became a foreman. Mr. Chattaway recommended that one of the two applicants be hired. Mr. Cook, however, wanted the other and Mr. Chattaway's recommendation was not followed.
As with hiring, the foremen do not have the power to discharge employees. Even Mr. Male does not make the final decision in a discharge. Instead he makes a recommendation to the Chief of Engineering and General Manager who stands above all three of the divisions: administration, operations and engineering. At the time relevant to this application that position was occupied by Mr. John Torrance. Substantial evidence was given concerning the termination of Mr. Stephen Burke, a person supervised by overhead line foreman, Mr. Siegman. Through this incident the Board was provided with a general look at the termination process. Mr. Male testified that when the continuation of someone's employment is brought into question he prepares a report for Mr. Torrance to provide him with a full view of the situation. In his report he would include, for example, the evaluation reports completed by the employee's current foreman, previous reports, be they favourable or adverse, from other foremen who have worked with the employee as well as personnel information concerning the employee's work record, discipline record, training reports, examinations results and educational background. The evidence reveals that it would be Mr. Male, not the foreman, who would then make a recommendation based on the material collected. Mr. Male in turn would pass the recommendation to Mr. Torrance. This pattern was followed in the case of Mr. Burke. The evidence establishes that Mr. Siegman did not himself make a recommendation as to whether or not he should be terminated. Instead, he stated on his evaluation sheet that Mr. Burke lacked the necessary initiative for the job and did not compare in ability to his peers. Though Mr. Siegman's evaluation was given substantial weight, it was not itself a recommendation of what should be done. Mr. Siegman supplied an important opinion which was evaluated by Mr. Male along with other factors. It was part of the factual basis upon which Mr. Male based his recommendation.
From Mr. Male's evidence, the Board readily concludes that the foremen under him do not exercise the power of effective recommendation in the termination or discharge of employees. While they may provide important input which may be relied on by someone else, and may at times even become a key factor in a discharge decision, the foreman's evaluation of an employee is simply one piece in the total picture that is independently assessed by higher management. He is not in these circumstances exerting effective control or authority. The limitation of the foreman’s impact of the ultimate decision is revealed in a comment made to the Board by Mr. Male. He stated that he is the person who has the power to recommend discharge and even his recommendation is not always followed.
In the operations sections Mr. Desrochers testified that he has never been advised that he has the power to recommend discharge and has never in fact done so though he may have been asked for an opinion. Mr. Chattaway testified that once Mr. Cook decided to extend an employee's probationary period over his verbal suggestion that the individual be let go.
With respect to the whole group of foremen the Board concludes from the evidence that the foremen do not exercise managerial functions in the termination or discharge of the employees they supervise.
We turn then to the area of discipline. Evidence was given relating to the power of the construction foremen to send people home. Mr. Male testified that a policy was established by higher management (the Commission, Mr. Torrance, the assistant to Mr. Torrance and Mr. Male) to deal with employees who cause problems during the day. It was decided that the appropriate procedure for a foreman to follow in such a situation would be for the foreman to send the employee home. Mr. Male stated in his testimony that sending a person home under these circumstances would not necessarily mean that the employee would not get paid for that time. He stated that that determination would depend on an evaluation of the foreman's reason for sending him home and all other relevant factors. At one of the periodic meetings of construction foremen Mr. Male informed the foremen of the new policy. The evidence does not suggest that the foremen had any input, whatsoever, into the formulation of the policy. In these circumstances the Board concludes that in sending an employee home a foreman would be acting in accordance with guidelines set by higher management rather than exercising his own independent discretion. The lack of managerial significance to a foreman's decision to send an employee home is underscored by the evidence suggesting that the decision as to whether or not the employee would suffer economically as a result of being sent home would be made by someone other than the foreman who would later evaluate all the circumstances. Notwithstanding the policy, all four foremen testified that they had never sent an employee home. Mr. Siegman could not even recall being told at a foreman's meeting that he had such authority and said that he didn't think he would do it anyway without first discussing it with Mr. Male or his assistant.
On a more general plane Mr. Chattaway, Mr. Desrochers and Mr. Fox each testified that they had never formally reprimanded their employees. Mr. Siegman stated that if it took more than giving an employee "hell" to solve a problem he would seek guidance from those above him. The Board concludes from the evidence that, as a general matter, when a foreman is unable to solve a problem through a discussion with an employee he seeks the assistance of his superiors.
Mr. Siegman gave evidence relating to one time, however, when he signed a written warning. He had difficulty with an employee that he could not solve through discussion. He then went to Mr. Male and his assistant. The evidence reveals that after the employee was given a verbal warning by someone other than Mr. Siegman, presumably Mr. Male or his assistant, he was then given a written warning by Mr. Siegman. Mr. Siegman testified, however, that Mr. Male made the decision to give the written warning. According to Mr. Siegman's uncontradicted evidence Mr. Male wrote up the warning and sent it to Mr. Siegman both for his signature and for presentation to the employee. Mr. Siegman commented that he doesn't always agree with the discipline being imposed on employees he supervises but that it is imposed anyway. In these circumstances the Board cannot conclude from the fact that Mr. Siegman may at times sign or present a written warning to one of his employees that he exercises the power of effective recommendation in disciplining his employees. Rather, the Board concludes that at most he acts as a conduit for those above him and that it is those above him who in fact exercise the real control in matters in discipline.
In the area of discipline, Chat ham Hydro-Electric System, [1979] OLRB Rep. Sept. 857, a case relied on by counsel for the respondent, is distinguishable from the case at hand. It would appear from the Chatham decision that the foremen involved in that case had somewhat greater disciplinary authority than the foremen in this case.
The collective agreement states that at stage I of the grievance procedure, "the employee shall discuss the grievance with his immediate supervisor". Mr. Male testified that in his view the immediate supervisor is the foreman. Step 2 of the grievance procedure refers to an employee's supervisor rather than immediate supervisor. At this stage the employee provides the supervisor with a grievance in writing and within three working days a reply is required.
The evidence reveals that while some of the step 2 replies are signed by foremen they do not actually exert effective control over the contents of the reply. Mr. Male testified before the Board that as a general procedure he confers with the foreman involved to gather the facts relating to a particular grievance. He then relates these facts to higher management, who in turn indicate what position Etobicoke Hydro will take. In this process it is evident that the function of the foremen is to provide the facts upon which those above him make the decision as to whether to allow or deny the grievance.
It is clear on the evidence that the interpretation and implementation of the collective agreement is controlled by persons above the rank of foreman. One situation involving Mr. Siegman highlights this conclusion. On one occasion Mr. Siegman told an employee he would be entitled to the payment of bereavement leave when his grandfather had passed away. His interpretation of the relevant article of the collective agreement was immediately overruled by Mr. Male and the bereavement leave was denied.
In a similar vein Mr. Male testified that at times he discusses contract interpretation at the periodic meetings of the construction foremen. In an effort to obtain a uniform interpretation and implementation of the collective agreement, he informs the foremen of the intent of the agreement as expressed at the bargaining table and the interpretation placed on the agreement by the Commission. Mr. Male testified that it is expected that the foremen will implement the provisions of the collective agreement relevant to them in accordance with these instructions as passed down from the Commission.
Mr. Cook testified that the last grievance he received from the employees under him was ten years ago. Both Mr. Desrochers and Mr. Chattaway stated that they have never handled a grievance. Similarly Mr. Fox and Mr. Siegman stated that they have not received a written grievance. On the basis of all the evidence relating to the grievance procedure the Board conduces that foremen do not exercise effective control and authority over the men they supervise Instead they act as conduits for management in carrying out management s interpretation of the collective agreement. They act within predescribed limits and exercise little or no independent discretion in this area.
Twice a year changes are made to the crews of the construction foremen in an effort to even out crew imbalances that develop over time. The evidence reveals that while the foremen may make suggestions concerning crew realignment at a foremen's meeting, Mr. Male determines the final changes. Sometimes foremen's suggestions are taken and sometimes they are not.
The limitation on a foreman's ability to act independently or to make effective recommendations in pertinent areas in further exemplified by another situation related to the Board by Mr. Siegman. He stated that on one occasion he was reprimanded for allowing an employee to take three weeks' holidays. Apparently, any holiday of more than two weeks must be referred to the office.
Restrictions have further been placed on a foreman's ability to temporarily reclassify journeymen to the subforeman level when the subforeman is away. At one time a journeyman v~as automatically reclassified as subforeman when the subforeman went on holidays. At one of the foremen's meetings, however, the foremen were informed by Mr. Male that the only t me they could make a journeyman a subforeman would be if the subforeman was responsible for a job on his own. Similarly, at another foremen's meeting Mr. Male and his assistant, after listening to the foremen's views, informed them of the policy to be followed in preparing overtime hours. While the foremen had input into the formulation of the policy in this situation, the Board cannot conclude on the evidence that their views became effective recommendations.
On the basis of all the evidence relating to the duties and responsibilities of the foremen, the J3oard concludes that they do not exercise managerial functions within the meaning of section l(3)(b) of the Act. While at one time foremen may have been "kings of the work place" (Peterborough Civic Hospital, supra), it is clear in this case that the dispersion of managerial authority has not percolated down the respondent's hierarchy to include the foremen. This is nct particularly surprising considering, for the construction foremen at least, the five levels of authority between the foremen and the Commission. Accordingly, the Board finds that they are employees under the Act and entitled to engage in collective bargaining.
We turn now to consider the duties and responsibilities of Mr. Reg Jacklin. Mr. Jacklin is the only foreman who works in the administration division of the respondent. His immediate supervisor is Mr. Neil Upshell, manager of customer service. As a foreman in the accounting/billing department Mr. Jacklin supervises a group of meter readers. For residential meter reading there are eight meter readers and two lead hands. In this arrangement Mr. Jacklin commented that the lead hands direct the eight residential meter readers and he directs the two lead hands. For the industrial/commercial work there is a subforeman and four meter readers.
Mr. Jacklin testified that he has the authority to grant his employees time off without consultation with his supervisors. He further stated that if someone calls in sick he can, on his own, move the men around to fill in the gaps including putting employees in different classifications with different wage rates. During the week Mr. Jacklin regularly schedules overtime for this employees. If in a given week an exceptional amount of overtime is required, Mr. Jacklin stated that he would simply call on more people; his initiative in this respect has not been questioned by Mr. Upshell or Mr. Willows. Mr. Jacklin noted, however, that he would not schedule Saturday overtime without consulting Mr. Upshell or Mr. Willows.
Unlike any of the other foremen, Mr. Jacklin testified that he has the authority to hire meter readers. He stated that he was advised of this authority when he first came to the job and that over the last five years he has hired between five and ten people. If Mr. Jacklin needs an additional person either he or Mr. Upshell informs the personnel office. He stated that as a matter of courtesy he would discuss the need for a new person with his superiors prior to advising personnel. Personnel provides Mr. Jacklin with a selection of applicants from which he determines which persons to interview. Concerning the ultimate selection of a person, Mr. Jacklin stated that if one person is clearly more qualified than the others he would decide, without consultation, which person should be hired. If he has difficulty deciding who would be the best person he would consult Mr. Upshell who then might take part in an interview. Mr. Jacklin maintained, however, without contradiction, that the final choice would be his own.
Mr. Jacklin further testified that in his opinion he has the authority to re-classify employees without talking to Mr. Upshell although he usually would. He stated that Mr. Upshell has never disagreed with his initiatives in this area.
With respect to the scheduling of vacation Mr. Jacklin stated that he has the discretion to determine the needs of his department and decide how many people may be away at one time.
On the basis of the evidence relating to Mr. Jacklin, the Board concludes that in several areas Mr. Jacklin, has, at least, the power of effective recommendation and exercises managerial functions within the meaning of section l(3)(b) of the Act. In reaching this conclusion we rely particularly on his undisputed authority to hire employees. Mr. Jacklin, therefore, will be excluded from any bargaining unit the Board may find to be appropriate.
By a letter dated April 12, 1979 the Board advised the applicant Association that it appeared from a check of the Board's files that the Board had not found in any previous proceeding that the applicant was a trade union within the meaning of section l(l)(n) of the Act. As the trade union status of the Association has not yet been established either in this proceeding or any other, the Board directs that a hearing be scheduled to enable the parties to present evidence and argument relating to that issue.
The final disposition of other outstanding matters must await the Board's determination of the status of the Association.
The matter is referred to the Registrar.
DECISION OF THE BOARD MEMBER J. D. BELL:
I disagree with the decision of the majority that the foremen in the operations section and the engineering section of the respondent do not exercise managerial functions within the meaning 3f section l(3)(b) of the Act.
These foremen do exercise supervisory functions almost exclusively. Their discretion may be narrowly confined in some areas such as hiring and firing but this is common in a public utility which is tightly controlled by the Commission, a politically sensitive body.
This case is similar to The Windsor Utilities Commission, [1971] OLRB Rep. May 296. At paragraph 9 page 298 the Board stated:
"In the instant case, the disputed persons are engaged, almost exclusively, in the performance of supervisory functions. Even though such supervisory functions are enforced through recommendations rather than independent action and there is no real discretion in disciplinary matters, the fact that almost 100 per cent of the non-working foremen's time is spent in the performance of such supervisory functions and virtually no physical work is performed, it must be found that their functions, when viewed as a whole, are managerial functions within the meaning of section l(3)(B) of the Act. While the rate payers may question the necessity of the extent of supervision given the line men who are supervised by the line foremen, it is not for this Board to determine whether such supervision is really required. this Board can only determine whether supervision is exercised and need not determine whether it is justified."
I would find these foremen when their functions are viewed as a whole, exercise managerial functions within the meaning of section 1 (3)(b) of the Act and therefore are not employees for the purposes (If the Act.
- Accordingly this application should be dismissed.
CONCURRING OPINION OF BOARD MEMBER 0. HODGES;
- The dissent of my colleague Mr. Bell refers to The Windsor Utilities Commission case in support of his contention that the "foremen" in the instant case should be excluded under l(3)(b). It is to be noted that the Windsor Utilities Commission case, the employee representative on that panel of the Board, Mr. E. Boyer, dissented as follows:
"I dissent. I find nothing in the functions performed by the disputed persons which can be characterized as managerial functions within the meaning of section 1 (3)(b) of The Labour Relations Act and I accordingly find that they are employees of the applicant for the purposes of the Act."
- In the Windsor Utilities Commission case the disputed classification was that of "non-working foremen". Para. 3 of that case:
"3. The evidence clearly established that each of the disputed persons was a non-working foreman. The majority of their time is spent supervising other employees and, except in isolated cases of emergency, they do not perform any of the physical work performed by the employees they supervise. While they have power to make recommendations concerning the work and attend regular foremen's meetings, they have no real discretionary authority except in strictly circumscribed areas."
The facts in the earlier case relied on by Mr. Bell and the facts in the present case are distinguishable in two important aspect referred to in para. 3 above.
— the foremen found to be employees under l(3)(b) in the present case are not restricted to working only in "isolated cases of emergency."
- nor do they have discretionary authority in labour relations matters "in strictly circumscribed areas", or otherwise.
Paragraph 9 of the Windsor Utilities Commission case states: "the fact that almost 100 per cent of the non-working foremen's time is spent in the performance of such supervisory functions and virtually no physical work is performed . . .". that fact is not compatible with the facts in the present case. Moreover, "supervisory work" cannot be assumed to include duties which the Board regards as criteria essential to a finding excluding persons under 1 (3)(b). The case relied on by Mr. Bell lacks the specifics of the "supervisory work" which in my opinion are required.
With great respect to my colleague, I do not see his dissent as well founded in the reference to The Windsor Utilities Commission case.