[1981] OLRB Rep. January 6
0784-80-R Local 966, Amalgamated Transit Union, Applicant, v. The Corporation of the City of Thunder Bay, Respondent, v. Group of Employees, Objectors
BEFORE: E. Norris Davis, Vice-Chairman, and Board Members H. Kobryn and J. Wilson.
APPEARANCES: Arthur H. Burke and Stuart F. Breiland for the applicant; Gae Hutchinson, Herbert B. Holmes and Ken McLean for the respondent; No one appearing for the objectors.
DECISION OF VICE-CHAIRMAN, E. NORRIS DAVIS, AND BOARD MEMBER J.
WILSON; January 26, 1981
The applicant which has represented the respondent's transit employees for many years now seeks to represent a new bargaining unit to be comprised of controllers, inspectors and a garage foreman. The respondent contends that all such persons are either exercising managerial functions or are employed in a confidential capacity in matters affecting labour relations within the meaning of section l(3)(b) of the Act.
Section l(3)(b) of the Act reads:
"(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...
The purpose of denying access to collective bargaining of persons found to be managerial is "to ensure that the employee bargaining agent is independent of employer influence, and that the interests of the employer will be represented by persons whose loyalties are undivided". See the case of Transit Windsor, [1979] OLRB Rep. March 262. The question as to whether there is an "exercise of management functions" must turn on the total factual situation existing in the individual case and is dependent on the degree of effective direction and control over other employees which is exercised.
In respect to Richard Stuart, Garage Foreman, who has been in his present capacity since February 4, 1980, he is responsible for the supervision of 35 mechanics to whom he makes daily work assignment, distributes overtime, fixes vacation schedules, keeps attendance records, attends meetings on behalf of the Maintenance Superintendent at which there are management and union representatives and grants leaves of absence for one to two days. He is involved in the hiring procedure through interviewing of applicants and making recommendations to the Superintendent and making periodic evaluations of probationary employees. He is aware that he has authority to reprimand employees and to discharge employees although neither authority has been exercised. He is not permitted to perform work of the type performed by employees he supervises. In our view, Stuart occupies a typical foreman position requiring him to exercise managerial functions within the meaning of section 1(3)(b) of the Act and accordingly is not to be considered as an employee for the purposes of the legislation.
There are four persons employed as controllers, reporting to the supervisor, and the parties agreed that the evidence given by Richard Oldale before the Examining Officer in respect to duties and responsibilities should stand for all controllers. The controller's function is concerned primarily with posting of daily route schedules with driver assignments for the succeeding day. Routes and crews are, in the main, pre-selected in accordance with established practice but require adjustment to compensate for illness, book-offs and off duty situations. These adjustments generally follow a defined pattern including the re-assignment of regular drivers, calling in of spare-board drivers or authorizing overtime. Drivers, on reporting for work, check it with the controller who also keeps attendance records. If a driver reports for work and is not in a proper condition to operate, the controller has authority to send him home, replace him and then report the matter to the supervisor. Controllers remain in touch with drivers on the route throughout the day (some 20—30 per cent of the units have radios and with inspectors who are in the field to ensure schedules are being met and the operation running according to plan. In an emergency, the controller has authority to dispatch another driver to a route or the dispatch another vehicle, or to take an operator off an assigned run and reassign him to another.
One of the controllers' job duties is to enforce transit policies and procedures. Controllers have the authority to send a driver home pending a review by the supervisor and can recommend reprimands and discharge. In respect to granting time off, this is restricted to absences of 1 — 2 hours and requests are otherwise referred to the supervisor. Oldale regularly sits on a Committee with two managerial persons to interview prospective employees and "to pick out the people we feel should be hired". Other controllers similarly act in this capacity although not as regularly as Oldale. Meetings are held regularly comprised of controllers and inspectors and the supervisory to discuss work problems and policy. At one meeting held in September, 1980 discussion also centered on collective bargaining negotiating objectives and the group was canvassed for recommended contract changes. Oldale states that he has been asked on previous occasions for recommendations regarding collective agreement changes but couldn't recall if it had been in a meeting.
There are inspectors also reporting to a supervisor and it was agreed that the testimony of Brampton Boyd given before the Examining Officer should stand in respect to the duties and responsibilities of all inspectors. Inspectors are basically employed out in the field inspecting operators to ensure they are properly dressed and abiding by established rules, that buses are on schedule and properly maintained. The inspector drives a car in connection with his duties. Inspectors daily relieve controllers for lunch, and on week-ends relieve controllers for day off: during these periods the inspector performs all the duties normally done by a controller.
Inspectors’’ disciplinary powers are to issue verbal reprimands for breaches of rules (written warnings are issued by the supervisor) which are recorded in the inspector's daily report to the supervisor. They are empowered to send drivers home for breaches and the final action to be taken is determined by the supervisor. In one case, the inspector filed a report on a driver who used insubordinate language and this was followed by a meeting held by the Operations Supervisor at which the inspector, the driver and a union representative were present and resulted in the dismissal of the driver. In another case, the inspector had many times recommended the removal of an employee as a driver because of drinking, and after discussions between the inspector and the Operations Supervisor, the driver was dismissed. The inspector makes a daily written report to the supervisor which records all significant matters including any disciplinary action taken. The inspector cannot grant time off (except when acting as a controller) but refers the matter to the controller, but has granted time off in lieu of pay in respect to overtime. Inspectors have the same participation in meetings as is noted above ii respect to controllers.
It seems obvious to us that the group of some 114 drivers here involved require some first line supervision, and that all of the regular day-to-day direction of the work force is provided by the controllers and inspectors. While much of the work of the controllers is hedged about by standard practices, they nonetheless do have to exercise a discretion in the implementation and to make decisions amounting to effective control over the work force in the enforcement of transit policies and procedures. While their disciplinary authority is slight, they are nonetheless in a position where they are required to monitor employee performance and to initiate action which may affect employees' economic interests. Additionally, they effectively participate in the hiring decision. Based on all the evidence, the Board concludes that controllers are persons who exercise managerial functions within the meaning of section I(3)(b) of the Act.
As to the inspectors, we must conclude that they are engaged primarily in the effective direction and control of the work force. They have effective disciplinary authority up to and including the recommendation of dismissal, and their responsibility to enforce rules and performance bring them into direct conflict of interest with the employees who they supervise. For all of these reasons, we find that inspectors are persons who exercise managerial functions within section l(3)(b) of the Act.
As a consequence of the above determinations, all of the persons claimed by the applicant to constitute an appropriate bargaining unit have been excluded from employee status. The application is accordingly dismissed.
DECISION OF BOARD MEMBER H. KOBRYN;
This is an application for certification. The applicant seeks to represent a bargaining unit consisting of all inspectors, controllers, dispatchers and garage foremen employed by the respondent in the Transit Department.
The respondent stated that the persons employed in these named categories exercise managerial functions within the meaning of section l(3)(b) of The Labour Relations Act.
A Labour Relations Officer made a report to the Board on 7 inspectors, 4 controllers and I foreman mechanic on the 5th day of November, 1980.
The Board held a hearing on this case on Tuesday, January 6, 1981 on the request of the respondent, with the following results.
From the evidence presented I cannot argue that the 4 controllers and the 1 foreman mechanic do not come within the meaning of section l(3)(b) of The Labour Relations Act.
The situation of the inspectors is somewhat different from that of the controllers. While the degree of independent managerial authority of controllers is limited, that of the inspectors is virtually non-existent. Their function is to see that the buses are on time, the drivers are dressed properly, that they are not smoking and breaking the laws and this is performed by visual inspection. If a driver is found intoxicated, they have the authority to send him home for the shift, but if for any longer period it would be up to the supervisor. If improperly dressed they can give verbal warning, but a written reprimand is up to the supervisor. The inspectors are not involved with the attendance of drivers, as this is done by the supervisors.
Once a week, inspectors relieve the controller, this is done in rotation and each of their turn comes up every three weeks. On Saturdays and holidays drivers are called in to relieve the controllers. While acting as controller, the inspectors have authority to reprimand operators verbally. Some of the reasons to reprimand them would be, dress for one thing and smoking another. The inspectors assign operators to jobs only when acting as controllers. They are never involved in grievance procedure under the collective agreement nor do they attend any meetings of management dealing with labour relations. They have nothing to with the drawing up of schedules, this is done by the controllers.
Other jobs that are performed by the inspectors are, running errands for management, such as delivering passes to different outlets and errands to City Hall; delivering letters and picking up mail; putting up bus stop signs and writing a daily report to the supervisor on activities which take place. They only grant time off to employees when working as an acting controller.
A sample of the inspectors' lack of authority is demonstrated in the Labour Relations Officer's Report at page 54 in the examination of an inspector by the respondent:
"Did you recommend that Mr. Swinson be terminated?
No, I did not.
Did you have anything at all to do with the termination of Mr. Swinson?
Well, I reported him many times.
Did you recommend discipline for Mr. Swinson?
Well, I recommended that he should be taken off the bus. He shouldn't be driving. Many times.
Do you recall that Mr. Swinson was terminated?
Yes.
And it was in your opinion, due to many of the complaints that you raised about his performance or his behavior?
Well, I imagine that would have entered into it."
On a question by the Officer in regards to what Mr. Swinson's problem was, the following remarks were made at page 57 of the Labour Relations Officer's report.
'What type of problems?
Drinking.
Drinking on the Job?
Right.
And after you had made your report was there an investigation by anyone other than yourself do you know?
Well the Supervisor took it from there.
Did the Supervisor ever speak to you about the problem?
Yes.
And I presume at that point you advised him that you had spoken to the employee a number of times about his drinking?
That's right and anytime I spoke to him it went in on the daily report that day."
The above exchange of questions and answers requires no further comment on the authority the inspector has to discipline employees.
- With reference to the argument that the inspectors work as acting controllers and do perform managerial functions at that time, I will refer to the comments the respondent's counsel mentioned in Sack and Levinson - Ontario Labour Relations Board Practices at page 30:
It is the Board's difficult task to determine whether the additional responsibilities are managerial functions within the meaning of section 1(3)(b) of the Act or are merely incidental to the prime purpose for which the employee is engaged (i.e. to perform work properly performed by persons within the bargaining unit.) If the majority of a person's time is occupied by work similar to that performed by employees within the bargaining unit and such person has no effective control or authority over the employees in the bargaining unit but is merely' a conduit carrying orders or instructions from management to the employees, the persons cannot be said to exercise managerial functions within the meaning of section l(3)(b) of the Act. On the other hand, if a person is primarily engaged in supervision and direction of other employees and has effective control over their employment relationship, even though the person occasionally performs work similar to the rank and file employees when an emergency arises or to relieve an employee during occasional periods of absence or even to perform a particularly' important job requiring special skill and experience, such occasional work in no way derogates from his prime function as a person employed in a managerial capacity."
(emphasis added)
The above underlined last quotation also applies in reverse and is applicable to this case.
Counsel for the respondent presented to the Board a copy of the decision in Transit Windsor, [1979] OLRB Rep. March 262.
This was an application under section 95 of The Labour Relations Act. The applicant employer sought a determination whether, in the opinion of the Board, the employees occupying the positions of "inspector, dispatcher and garage foreman" exercised managerial functions within the meaning of section l(3)(b) of the Act.
I have read this decision of the Board most carefully and a similar situation exists, except that in this case, the "controllers (dispatchers)" and "garage foreman", in my opinion, exercise managerial functions within the meaning of section l(3)(b) of the Act and the "inspectors" do not conform to the Board's decision at paragraph 10 in Transit Windsor, supra, wherein the Board stated as follows:
"The situation of dispatchers in somewhat different from that of inspectors. While the degree of independent managerial authority of inspectors is limited, that of the dispatchers is virtually non-existent. Their function is to apply pre-arranged schedules and rules in order to make sure that the drivers, buses, routes and schedules are all properly 'married', and that the required paper work is completed. The assignment of drivers — even in abnormal situations — is done in accordance with a pre-established scheme. Dispatchers receive, and record, various kinds of information and act as a conduit to management; however, these in themselves are not managerial functions. This documentation may well be an important input into the decision making process, but it is evident that the decisions are made by others. The dispatchers juggle the schedules to accommodate unplanned absences or 'emergency' situations but requests for time off are generally made to management. In contrast to 1 he inspectors, neither of the dispatchers who gave evidence considered that he had a role in 'disciplining' fellow employees. Neither had sent anyone home as a disciplinary measure (although an employee who for one reason or another is not immediately available at the start of his shift may find that a dispatcher has designated another employee to perform his 'run' — though even here the selection is from an established list. The dispatchers do not write 'tickets' or 'citations' as the inspectors do. Having carefully reviewed all of the evidence, the Board is satisfied that dispatchers do not exercise managerial functions."
- In all the circumstances, therefore, in my opinion, the controllers and the garage foreman exercise managerial functions within the meaning of section l(3)(b) of the Act. The inspectors do not exercise managerial functions and are employees within the meaning of the Act.