[1982] OLRB Rep. June 968
1886-81-M Amalgamated Clothing & Textile Workers Union, CIO-CLC, Applicant, v. Vagden Mills Limited, Respondent.
BEFORE: R. O. MacDowell, Vice-Chairman, and Board Members B. L. Armstrong and F. W. Murray.
APPEARANCES: B. W. Adams and T Tracey for the applicant; K. W. Kort and P. Crowle for the respondent.
DECISION OF THE BOARD; June 18, 1982
1This is an application under section 106(2) of the Labour Relations Act. A question has arisen between the parties concerning the employee status of a number of individuals working for the respondent at its knitting mill in Trenton, Ontario. The employer contends that these individuals "exercise managerial functions" and, consequently, are not employees within the meaning of the Labour Relations Act. The union asserts the contrary. The relevant section of the Act is as follows:
1 (3) Subject to section 90, 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.
2For some years, the union has been the bargaining agent for a number of the respondent's employees; but, historically, certain individuals have not been considered part of the bargaining unit. In 1981, the union filed a certification application seeking to represent some of them; however, when the matter came on for a hearing before the Board, the parties reached agreement that if the disputed individuals were indeed employees within the meaning of the Act, they were already represented by the union and covered by the parties' existing collective agreement. The parties were further agreed that the proper vehicle for resolving this question was a reference under section 106(2). Hence, the instant application.
3In accordance with its usual practice, the Board appointed a labour relations officer to inquire into the duties and responsibilities of the subject individuals. The evidence taken was transcribed and comprises a bound volume of some 185 pages. After the release of the officer's report to the parties, the Board scheduled a hearing to give each of them the opportunity to make representations as to the conclusion which, in their submission, the Board should reach in view of the report. That hearing took place in Toronto on April 27, 1982.
4Section l(3)(b) has been in the Act, in its present form, since 1957 when the Legislature amended the statute to clarify the Board’s jurisdiction and reemphasize the finality of its decisions in this area. Since that time, there have been literally hundreds of cases, both reported and unreported, in which the Board has been called upon the apply section l(3)(b) in different economic and industrial contexts. We see no need to review that extensive jurisprudence here; for the instant case does not raise any novel question of law, nor are the facts particularly complicated. It will be sufficient therefore to briefly reiterate the purpose of section 1(3)(b), and refer to one observation made in an earlier case which is of particular relevance here. (However, for a recent decision summarizing the Board's general approach to section 1(3)(b) questions, see Corporation of the City of Thunder Bay [1981] OLRB Rep. Aug. 1121; and see generally Sack and Levinson Ontario Labour Relations Board Practice pp 25 - 34, and pp 9 - 14 of the 1977 updating supplement).
5At common law and in most statutes, managerial personnel are regarded simply as "employees" with the same rights and privileges as other employees. But in the collective bargaining realm, this would create an anomaly. Collective bargaining, by its very nature, requires an arm's length relationship between the "two sides" whose interests and objectives are often divergent. Managerial employees might find themselves faced with a kind of "conflict of interest" as between their responsibilities as union members. Section l(3)(b) ensures that neither the union nor the employer and its management team need be concerned about such "divided loyalties" which are potentially corrosive to the interests of both sides. This purpose has been succinctly stated by the British Columbia Relations Board in Corporation of the District of Burnaby [1974] 1 Can. LRBR at p. 3:
“The explanation for this management exemption is not hard to find. The point of the statute is to foster collective bargaining between employers and unions. True bargaining requires an arm's length relationship between the two sides, each of which is organized in a manner which will best achieve its interests. For the more efficient operation of the enterprise, the employer establishes a hierarchy in which some people at the top have the authority to direct the efforts of those nearer the bottom. To achieve countervailling power to that of the employer, employees organize themselves into unions in which the bargaining power of all is shared somewhere in between these competing groups are those in management - on the one hand an employee equally dependent on the enterprise for his livelihood, but on the other hand wielding substantial power over the working life of those employees under him. The British Columbia Legislature, following the path of all other labour legislation in North America, has decided that in the tug of these two competing forces, management must be assigned to the side of the employer.
The rationale for that decision is obvious as far as the employer is concerned. It wants to have the undivided loyalty of its senior people who are responsible for seeing that the work gets done and the terms of the collective agreement are adhered to. Their decisions can have important effects on the economic lives of employees, e.g., individuals who may be disciplined for "cause" or passed over for promotion on the grounds of their "ability". The employer does not want management's identification in the activities of the employees union.
More subtly, but equally as important, the exclusion of management from bargaining units is designed for the protection of employee organizations as well. A historic and still current problem in securing effective representation for employees in the face of employer power is the effort of some employers to sponsor and dominate weak and dependent unions. The logical agent for the efforts is management personnel. One way this happens is if members of management use their authority in the work place to interfere with the choice of a representative by their employees. However, the same result could happen quite innocently. A great many members of management are promoted from the ranks of employees. Those with the talents and seniority for that promotion are also the very people who will likely rise in union ranks as well. In the absence of legal controls, the leadership of a union could all be drawn from the senior management with whom they are supposed to be bargaining. If an arm's length relationship between employer and union is to be preserved for the benefit of employees, the law has directed that a person must leave the bargaining unit when he is promoted to a position where he exercises management functions over it.”
6The Ontario Labour Relations Act does not contain a definition of the term "managerial functions", nor are there any statutory criteria to guide the Board in reaching its opinion. The task of developing such criteria has been left to the Board to work out on a case by case basis, in recognition of the fact that the exercise of managerial functions can assume different forms in different work settings, and in light of its own developing knowledge and experience in collective bargaining matters. But while the line between "manager" and "employee" is often difficult to draw in particular cases, there is one common theme which pervades all of the cases involving so called "first line" managerial employees or "foreman": the extent to which the disputed individuals make decisions which significantly affect the economic lives of their fellow employees, thereby raising a potential conflict of interest with them. It was that kind of conlfict which section l(3)(b) was designed to avoid. Thus, in a collective bargaining context, such things as the right to hire, fire, promote, demote, grant wage increases, or discipline other employees should be regarded as manifestations of managerial authority, the exercise of which would be incompatible with participation in trade union activities as an ordinary member of the bargaining unit.
7In concrete cases, of course, the picture is likely to be clouded. There is no universal ratio of superiors to subordinates, consultation or input" cannot be confused with decision-making, and neither technical expertise nor the importance of an employee's functions can be automatically equated with managerial status. The engineers and scientists employed by Spar Aerospace Products Limited undoubtedly made an important contribution to the development of the extendible arm produced by that company and now used on the NASA Space Shuttle; but they were not managerial employees in a labour relations sense (see Spar Aerospace Products Limited [1979] OLRB Rep. July 700). Similarly, the role of nurses in a hospital or nursing home setting is of considerable importance; but, again, this does not mean that they exercise managerial functions" and must be denied access to collective bargaining. (For a review of the way in which the Board has treated health care professionals in that setting, see Oakwood Park Lodge [1982] OLRB Rep. Jan. 84). Finally, it is important to recognize that co-ordinating or limited supervisory functions may, but need not always, be associated with managerial status. Where numbers of people work at a common enterprise, there will be individuals engaged in co‑ordinating activities which are largely routine, carried out within a pre-established framework of employer policies, and subject to real managerial authority which is actually exercised from above. These co-ordinators do not make decisions which directly impact (positively or negatively) on the livelihood or job security of their fellow employees, their functions do not raise the mischief to which section 1(3)(b) is directed, and should not be regarded as "managerial" as that term is used in a remedial statute designed to extend employees the right to engage in collective bargaining.
8Most business enterprises require a range of employee skills, and they will typically be an occupational and wage hierarchy. Sometimes this hierarchy will be formalized in a pattern of established job positions and descriptions. But this does not mean that an individual at the apex of a job progression exercises managerial functions" even though he may have higher skills, more responsibilities, or earn a higher income. In Corporation of the City of Thunder Bay, supra, the Board commented:
“In addition, persons who perform technical functions or exercise craft skills which have been acquired through years of training and experience, will necessarily have a considerable influence over unskilled employees or less experienced "journeymen" or technicians. These experienced personnel will commonly supervise the work of those who are less experienced, and it is part of their normal job function to train and direct such persons and to instill good work habits. Often, it is only the most senior or skilled employees who will fully understand the technical requirements of the job and the tools and material required and accordingly, it is they who will allocate work between themselves and the other employees in order to accomplish the task in a safe and efficient manner. In such circumstances, it is inevitable that they will have a special place on the "team" and will have a role to play in co-ordinating and directing the work of other employees; but this does not mean that they exercise managerial functions in the sense contemplated by section 1(3)(b) and must therefore be excluded from the ambit of collective bargaining - especially when most of their time is spent performing functions similar to those of other individuals in the bargaining unit and there is little or no evidence of the kind of conflict which section 1(3)(b)is designed to avoid. The situation of persons who exercise some degree of control over others, but who also perform bargaining unit work was discussed by the Board in Falconbridge Nickel Mines Limited [1966] OLRB Rep. Sept. 379, as follows: (Quote omitted). In other words, in determining an individual's status, one cannot look at a portion of his duties in isolation. If the functions of an allegedly "managerial" character occupy only a minor part of his time, it is unlikely that he will be excluded from the ambit of collective bargaining unless those functions involve a decisive impact on his fellow employees. (For example, a unilateral decision to fire an employee would be highly significant, even if the exercise of such power is infrequent; while incidental supervisory responsibilities do not raise the kind of conflict of interest underlying section l(3)(b).”
In our view this observation is particularly opposite in the instant case in respect of the "fixers" or "fixers-foremen" who are obviously highly skilled individuals who render valuable service to the respondent.
9The position of the various so-called "fixer-foremen" is sufficiently similar that they can be dealt with as group. The evidence respecting these individuals differed in some details but, in the main, their responsibilities were very much the same. And, in our opinion, none of them exercise managerial responsibilities within the meaning of section l(3)(b) of the Labour Relations Act.
10We do not think it is necessary to reproduce, as reasons, a recitation of the facts outlined in the officer's report. It is sufficient to say that this evidence does not demonstrate that the fixer-foremen have the authority to regularly or materially impact upon the livelihood or job security of their fellow employees, such that inclusion in a bargaining unit with them, would raise the kind of collective bargaining conflict of interest which section l(3)(b) was designed to avoid. The fixer-foremen are primarily concerned to ensure that the machines are running properly. They may incidentally assign duties, correct mistakes, and have certain residual training responsibilities; however, their primary concern is the ongoing operations and maintenance of the machines themselves. Their direction of other employees is purely incidental. There is little indication of real "managerial" authority within the meaning of section l(3)(b), and where such indications do exist, the evidence is hypothetical and speculative. For example, Archer thought he could issue a verbal reprimand with the approval of Mr. Kennedy, the knitting supervisor; but had never reprimanded or recommended any form of discipline; and Lyon's disciplinary authority never extended beyond a verbal admonishment. Archer testified that he might tell his superiors how a particular employee was doing, but had never granted a wage increase, nor had he ever on his own initiative taken on an unsatisfactory employee off the machine. Denham had never recommended a promotion, a wage increase, a termination, or granted time off. Grant thought he could recommend a wage increase and could authorize overtime, but he has never done so. Nor has Grant ever made a written performance evaluation of an employee (and in this respect, it might be noted that it is not the making of a performance evaluation which is important but its effect on the livelihood of the employee evaluated.) Lyon testified that he could select summer students from a group previously interviewed by someone else. Neither Denham or Grant had ever granted an employee time off, and Lyon suggested that he had this authority if he first checks with a superior. Swoffer thought that he could recommend that an individual be hired although he has never done so. He testified that he could grant time off with a superior's approval. Having carefully considered that evidence in its totality, the Board is of the opinion that the fixer-foremen do not exercise managerial responsibilities within the meaning of section 1(3)(b) of the Labour Relations Act.
11The situation of Ms. MacLellan, the quality control supervisor, is much closer to the line; for the evidence is not as clear in her case as it is in respect of the "fixer-foremen". She is a salaried employee who resigned from the union some years ago when she was promoted to her present position. She cannot grant time off, does not directly discipline employees and cannot grant wage increases. However, she does attend grievance meetings on behalf of management for the purpose of taking notes even though she is not involved in the actual decision-making, and about a year ago, in her supervisor's absence, she interviewed and hired two employes. She also recommended that an employee be terminated because of poor work performance. Although in this case, the employee was only sent a warning letter, it appears that MacLellan's recommendations did have an adverse impact. While formal evaluations of employees are done by their immediate supervisor, it appears that Ms. MacLellan can also make some notation by way of warning or reprimand which can affect the employee's future. It is clear therefore that Ms. MacLellan may seldom make any independent decisions adversely affecting her fellow employees' situation, however, incidental to her quality control function, there are instances in which she has taken action by means of observation or recommendation with consequences that fall within the "mischief' or raise the kind of "conflict of interest" which underlies section 1(3)(b).
12Had the situation of Ms. MacLellan been viewed afresh or been raised shortly after her promotion to her present position, the Board might well have concluded that, on balance, her supervisory or admonitory functions are purely incidental to her quality control concerns, and are not such as to require her exclusion from the bargaining unit. But it appears that she was always treated as excluded by both parties, and in consequence, developed a relationship with her employer (for example, by taking minutes of grievance meetings on behalf of the employer) which associated her with the "management team". This historical dimension cannot be ignored when deciding close cases; for as the Board observed in Corporation of the City of Thunder Bay, supra,:
“A party which is attempting to alter a status quo which reflected the earlier perceptions of the parties concerning an individual's status, and which has apparently worked adequately for some years must recognize the importance of this historical dimension, and be prepared to adduce clear evidence as to why a change is required to accomodate the interest section l(3)(b) was designed to protect.”
We do not think the evidence adduced by the applicant union falls within those parameters and having regard to it in its totality (including the historical dimension wherein the union accepted for many years that the quality control supervisor should be excluded from the bargaining unit,) we are of the opinion that Ms. MacLellan exercises managerial responsibilities within the meaning of section l(3)(b) of the Act and must therefore be excluded from the applicant union's bargaining unit.