Ontario Labour Relations Board
[1981] OLRB Rep. November 1521
0688-77-R Canadian Union of United Brewery, Flour, Cereal, Soft Drinks and Distillery Workers, Applicant, v. Brewers' Warehousing Company Limited, Respondent
BEFORE: Rory F. Egan, Vice-Chairman, and Board Members M. J. Fenwick and E. J. Brady.
APPEARANCES: Paul Cavalluzzo, Allan Millard, J. Cameron Nelson, Jack Weir and Gordon Plenderleith for the applicant; Keith Billings, R. E. Rogers, C. V. Jones and J. R. Beattie for the respondent.
DECISION OF RORY F. EGAN, VICE-CHAIRMAN, AND BOARD MEMBER E. J. BRADY; November 18, 1981
This is an application for certification in which the applicant seeks to be appointed bargaining agent for all store managers of retail outlets of the respondent in Windsor, Amherstburg, Belle River, La Salle and Tecumseh.
At the time of the application the applicant was the bargaining agent for employees of the respondent in its stores in the above areas. This is still the case.
The predecessor of the applicant had been certified by the Board in 1949 for a bargaining unit of all employees in the retail stores "save and except store managers". The exclusion of the store managers followed upon the report of an examiner appointed by the Board to inquire into the duties and responsibilities of store managers. The details of the report are not before the present panel, although it would appear that submissions were made to the Board on the report.
Collective agreements negotiated by the predecessor to the applicant and the applicant since 1950 have all carried the exclusion of store managers.
The present application, as already noted, now seeks certification of these managers in their own bargaining unit.
A Labour Relations Officer was appointed by the Board on August 16, 1977 with respect to the present application with instructions to inquire into and report to the Board on the composition of the bargaining unit and, in particular, upon any changes in the duties and responsibilities of store managers since 1949.
The respondent opposes the application on the grounds that all store managers affected by the application exercise management functions and are employed in a confidential capacity in matters relating to labour relations and, accordingly, pursuant to the provisions of section l(3)(b) of the Labour Relations Act, are not employees for the purposes of the Act.
The respondent further submits that the applicant should be required to show cause why the Board should entertain the application, since the prior application in 1949 sought to include these persons in the bargaining unit and the Board excluded them. It is the respondent's submission that the application should be subject to the Board's policy regarding applications under section 106 of the Labour Relations Act. The applicant, on the other hand, argues that by reason of a change in the law and the facts, the doctrine of res judicata or doctrine analogous thereto ought not to be applied by the Board in the present circumstances.
The question of res judicata with respect to decisions of the Board is fully discussed in Oakwood Park Lodge, [1980] OLRB Rep. Oct. 1501. In that case the Board stated at paragraph 22:
…..From a common sense or practical point of view (and apart altogether from legal questions concerning onus or res judicata) the Board is unlikely to reach a different conclusion on an issue such as employee status unless there has been a change in the law or a significant change in an individual's duties and responsibilities since the matter was last considered.
In 1949 when the applicant was certified for a bargaining unit excluding store managers, the Act excluded from the category of employee, managers, superintendents, persons who exercised management functions and persons employed in a confidential capacity in matters relating to labour relations. The Act at the date of this application no longer excludes the first two categories by name, and contains only the two latter exclusions as set out in section l(3)(b), that is, no person shall be deemed to be an employee who, in the opinion of the Board, exercises managerial functions or is employed in a confidential capacity in matters relating to labour relations.
In Canadian General Electric Company Limited. [1978] OLRB Rep. April 384, and [1979] OLRB Rep. Jan. 12, the Board said in paragraph 16 and 17:
The statutory changes to section l(3)(b) dictate that the Board not be inextricably bound by the decisions made 24 years ago and that it look anew at the duties and responsibilities of the cost estimator and cost analysts. As an administrative tribunal, the Labour Relations Board was established to respond efficiently and with expertise to ever-changing labour-management problems. To insist on the finality of a Board decision in the face of the statutory changes would be to elevate the reliance interest of the employer beyond both proper and necessary proportions and risk sacrificing equitable treatment for this applicant and the persons it seeks to represent.
In view of the Board's decision on the law as applied to section l(3)(b) of the Act, it is unnecessary for the purpose of the plea of res judicata to inquire into whether or not there has been a change in the duties and responsibilities of the cost estimators over the last 24 years. We turn, therefore, to consider whether the cost estimators and cost analysts exercise managerial functions within the meaning of section l(3)(b) of the Act.
In the present instance we are, of course, dealing with a decision made in 1949. We propose to follow the same procedure as that indicated in the above-noted case.
In the Windsor area stores of the respondent, there are three types of employees, namely, regular employees, probationary employees and temporary employees. In addition, there is the store manager.
The Labour Relations Officer's report in this matter comprises some 800 pages of evidence. Some of this evidence is contradictory, some is vague as might be expected with respect to the situation as it existed about 30 years ago, and some is obviously self-serving. One thing that is constant throughout the evidence is that the store managers have the power to and do hire temporary employees for their particular stores. Some temporaries are hired by the Windsor Group Office of the company, but that does not detract from the fact that the store manager has full authority when the need arises to hire people off the street.
The hiring of temporary employees is of significance because service as a temporary employee for a time specified can lead to the advancement of the temporary to the status of permanent employee. The temporary employee status provides the entrance into the bargaining unit of which it is part. The control of the temporary employees' qualifying time lies entirely within the hands of the store manager who hires him. In the process of hiring temporaries the store manager conducts interviews and checks references. In addition, the store manager has the authority to "phase out" a temporary employee whom he does not think will make a regular employee. The "phasing out" may not be equivalent to the power of discharge, but it effectively controls the fate of the employee and his employment relationship with the company, at least insofar as his potential for regular employment is concerned. The "phasing out" prevents the accumulation of the necessary service time to gain entrance to the regular jobs.
It is the duty of the store manager to schedule the hours of work in his store. This is a sensitive area and one giving rise to conflict between the bargaining agent and the store managers. This is apparent from the evidence of one of the applicant's witnesses, Mr. Woodman, who was chief steward for the stores. He indicated that part of his role in that office was to advise the cashier, a member of the bargaining unit, on problems the latter might have with the store manager with respect to the staffing of the stores — the manager's failure to call people in and the failure to schedule enough hours. Mr. Tomolillo, President of the local union, make it plain that the reduction of bargaining-unit hours by the managers of the stores is a matter of concern to the union. The conflict puts beyond dispute the fact that the scheduling of work is an important function performed by the store managers which goes to the roots of the employment relationship.
The managers are required to submit to head office an evaluation or appraisal of temporary employees in which is indicated the manager's opinion of the suitability of the temporary employees for employment as regulars. The evidence of the Windsor Group Manager is that these evaluations comprise effective recommendation in the making of decisions as to whether to make a temporary into a regular employee.
That these evaluations are important is indicated in a portion of the testimony given by Mr. Tomolillo before the Labour Relations Officer, which was relied upon by the respondent. The extract is as follows:
Mr. Rogers called me one day to ask my opinion on a temporary named Ted Steel and he told me that he'd had complaints from a couple of managers on him and what did I think of him and I told him that i'd seen better temporaries than Ted Steel and he consequently asked me to make out the evaluation form on Ted Steel, I refused... I refused at that particular time because Ted Steel. . . if I'd given him a formal evaluation report and I couldn't really give him a good one at the time, as Vice-President, I'd be giving him sort of the 'kiss of death' on that basis I refused to make it out and Mr. Rogers told me that I was in charge of the store and I had to make it out, that I'd made them out many times before and we argued over it but I still refused to make it out I told him that, you know, he's had complaints from two other managers.., let the two other managers make up the report on him."
Not only does the foregoing establish the importance of evaluations, but even discounting the fact that at the time Mr. Tomolillo was Vice-President of the Union while in charge of the store, and considering the situation had he been a rank-and file member of a union, the conflict in loyalties inherent in the situation as proposed by the applicant becomes apparent.
In addition to the foregoing duties, the store manager supervises the employees in his store. He can authorize overtime and apparently casual time off. He is responsible for the physical appearance of the store, and is authorized to have minor repairs, painting, grass-cutting and similar small contracts carried out. His appointment as manager is publicized by letter, and his designation as manager is made known to the public by a plaque displayed in the store. He is also the recipient of confidential reports dealing with arbitration decisions, productivity, damages, errors, cash loss, absenteeism, etc. These are mailed to the manager's house and are marked "Personal and Confidential".
There was evidence that the stores are normally manned by three categories, that is, the manager, a retail checker! cashier and counter clerks. The evidence is that the cashier frequently relieves the manager and is "in charge" for protracted periods. The cashier is a member of the bargaining unit presently represented by the applicant. The cashier, when in charge, carries out the normal duties of the manager, but does not hire temporaries nor normally schedule work, and cannot, with impunity, alter the schedule or employ more temporaries than the manager has designated. The retail checker or cashier is paid a premium, not his regular rate, while replacing a store manager.
The evidence also is that normally the manager performs work in his store that is the same as that done by persons in the bargaining unit, and that this may occupy from 60% to 95% of his time. The fact, of course, cannot be overlooked that we are considering here small, individual and separated work units where the volume of managerial work, however necessary, must be light.
In any event, the Board finds, having regard to all of the evidence, and having taken into account the two factors referred to immediately above, that at the time of the application, the managers in the respondent's retail stores in the Windsor area applied for, exercised managerial functions within the meaning of section 1 (3)(b) of the Labour Relations Act. That being the case, it is unnecessary to deal with the question as to whether there has been any significant change in the duties of managers since 1949.
The application is accordingly dismissed.
DECISION OF BOARD MEMBER M. J. FENWICK;
I dissent from the decision of my colleagues.
The company operates 15 retails stores in the area covered by the application for certification. The area is referred to as the Windsor group. It is one of nine in the Western Ontario district.
At the time of application the union was bargaining agent for approximately 160 employees in the Windsor group. These are employees in the warehouse, distributing depot of the area, or at the retail stores.
Each retail store is normally manned by three classifications of employees — (1) manager, (2) retail checker/cashier, (3) counter-clerk. These are all engaged in bargaining-unit work including cleaning up, working the counter, taking empties, unloading beer from trucks, throwing in orders, opening and closing stores, taking stock and balancing.
During a normal work week the manager will be at the store for sometimes less than one-half of its hours of operation. When he is not there, the cashier or another employee is responsible for the store.
A managerial function means a decision-making function. The word "manager" connotes a person who has effective control over an organization. If a person is merely implementing a decision made by another and has little latitude to use independent discretion, he cannot be said to be exercising a managerial function.
It is clear in this case that each manager performs all aspects of bargaining-unit work. The manager spends up to 90 per cent of his time in such work. To the extent that a person only incidentally supervises employees while working beside them (i.e., the lead hand, the working foreman), section l(3)(b) has no application.
The nature of the work performed in the stores is simple and is done by unskilled employees. As such, there is little need for supervision, work assignment, evaluation or training.
The nature of the business is important. The product sold is not determined by the manager. The price cannot be changed by the manager. He has no input in respect of profits, dividends, receivables and so on. He does not sign cheques on behalf of the company nor can he commit it to any expenditure beyond a few dollars. In essence, the manager controls the "petty cash" at the store. He can authorize clearing snow, repairing broken windows, and cleaning floors.
It is apparent that the "managers" in this case do not manage. Their authority is clearly circumscribed by the nature of the business. Their authority is further circumscribed by the centralized control of the company and by the collective agreement. The company has established certain policies or guidelines which must be followed by the manager. These deal with such matters as annual forecasts, cash combinations and shortages, inventory control and hiring of temporaries. The collective agreement regulates such matters as vacations, leaves of absence, promotion within the bargaining unit, and hours of work.
In hiring and evaluating temporaries, the manager is not exercising independent discretionary powers, but is merely exercising incidental reporting functions. The initial reports of the manager are one of several factors taken into account by the decision-maker, the Group Manager.
The manager plays no role in grievance procedures. The first and second steps of the grievance procedure are handled by the Group Manager. The manager has no consistent exposure to confidential matters relating to labour relations. He has no access to the personnel records of the employee.
Because of the nature of the work, little or no training is required. If needed, a senior employee, including the manager, will do it. As well, there is little need for work assignment because of the nature of the work. The hours of work are scheduled by the manager or the cashier in consultation with each other. Apart from these two employees, the Group Office determines who will work the hours required.
In all matters governing the store operation, the manager is implementing the decisions made by others. Any decision-making authority he has must be exercised in predetermined, circumscribed areas. In respect to temporaries he merely collates or gathers information for the Group Manager who ultimately makes any material decisions.
The manager does not have regular material involvement relating to labour relations. In essence, along with the cashier, he is a senior employee who has been given more responsibilities than others, because of his experience and knowledge. As such, I am not persuaded that he is excluded by section l(3)(b) of the Act.
I concur with the applicant union's submission that the duties and responsibilities of the store manager have materially changed in the last 30 years. The store manager no longer manages in the sense referred to in the jurisprudence. Although the job title is the same, the facts have been changed.
Since the applicant does not have the required number of cards for automatic certification, I would have ordered a representation vote.