Ontario Public Service Employees Union v. Taylor Ambulance Service, 1982 CanLII 977

[1982] OLRB Rep. December 1939

0351-82-R Ontario Public Service Employees Union, Applicant, v. Taylor Ambulance Service, Respondent

BEFORE: M. G. Mitchnick, Vice-Chairman, and Board Members R. J. Swenor and B. K. Lee.

APPEARANCES: Barbara Linds and Lillian Seeger for the applicant; Thomas A. Stefanik for the respondent.

DECISION OF THE BOARD; December 10, 1982

1. This is an application for certification in which the applicant was certified on an interim basis on June 9, 1982. There are approximately 4 full-time and 10 part-time employees in the unit, and only the owner, Mr. Taylor, has been agreed upon as an exclusion to date. The remaining issue is whether the "supervisor", Mr. Tom Ball, exercises managerial functions within the meaning of section l(3)(b) of the Labour Relations Act.

2. The respondent operates its ambulance service out of 2 depots, one in Queensville and one in Sutton, with 2 drivers regularly assigned to each depot (at least during the day shift). One of these drivers is Mr. Ball. The bulk of his time is spent driving and cleaning the ambulances, in the same way as the other employees do. As he says:

"My duties are exactly the same as theirs; it's only I have a little bit extra to do as far as the book work, and make sure that the vehicles are maintained and that sort of thing".

For these additional duties Mr. Ball receives 30 cents an hour over the rate of the other drivers. It is clear that Mr. Ball performs the normal functions of at least a "lead hand" or group leader". The question is whether his present functions and authority take him beyond that.

3. The respondent relies upon the following supervisory or administrative functions to justify the exclusion of Mr. Ball:

Hiring

Mr. Ball clearly becomes involved in the interviewing process, and takes prospective candidates out for a preliminary run in the ambulance. The extent to which he is actually involved in place of Mr. Taylor is not clear from the two passages contained in the report. The overall procedure appears to be set out at page 4 of the report, however, where Mr. Ball states:

Well, if we were in need of an employee, we'd have some employees come in for an interview. Quite probably I would be involved in the interviewing or maybe do some of the interviewing, and then they would see Mr. Taylor and we'd confer and sort of decide.

This passage suggests no more than a consultative approach between Mr. Taylor and his principal subordinate, without any real independent judgment on the part of Mr. Ball. There may have been one occasion (out of six) on which Mr. Ball actually notified the employee that he was hired, but there is no indication that Mr. Ball was acting other than on the instructions of Mr. Taylor in doing so. As an extension of the hiring process, Mr. Ball trains new employees as well.

Firing

There have been 4 firings during the five years Mr. Ball has been employed, and he was only involved with one of them. In that case, Mr. Ball's role consisted of passing on to Mr. Taylor the complaints of other employees regarding that individual. Employees complained to Mr. Taylor directly about the individual as well. At one point Mr. Ball discussed with the individual the problems that other drivers were having with him, and told him to "pull up his socks". Mr. Ball testified that he reported this discussion to Mr. Taylor, but had the impression Mr. Taylor had already made up his mind to terminate the employee.

Scheduling

The permanent rotation set up by Mr. Ball must be approved by Mr. Taylor, but the slotting of part-time employees to fill in for absences is done by Mr. Ball on his own. The latter function, however, appears to be a routine matter of contacting available employees from amongst an approved pool of part-time employees.

Administration

Mr. Ball spends a substantial period of his time looking after the logs and reports required by the government. He is the only employee in the unit with such bookkeeping responsibilities. There is no evidence of managerial discretion or authority in this regard, however. Closer to the issue before us is the fact that he verifies the number of shifts worked by employees for pay purposes.

4. More generally, counsel for the respondent acknowledges that the examples of managerial authority on Mr. Ball's part are limited. He acknowledges that Mr. Ball is not called upon to schedule overtime or grant time off, is not consulted on the annual budget, and has been ignored by Mr. Taylor when requesting increases in pay for the employees in the unit. But counsel points to the size of the unit and the fact that Mr. Taylor is only occasionally present at the work place, and argues that to the extent managerial functions are required, Mr. Ball is the one who performs them.

5. Of all Mr. Ball's responsibilities to date, the only one in the Board's view approaching the level of managerial conflict is the verification of employee time-cards. This, however, is not unheard of as a supervisory function for employees performing the role of a "lead hand" within a bargaining unit, and appears insufficient on its own to justify exclusion. Similar to the present case, the "lead hands", e.g., in Rehau Plastiks, [1979] OLRB Rep. Sept. 904, were involved in training as well as having responsibility in their departments for:

(a) the quality and quantity of output;

(b) general housekeeping and safety;

(c) completing and submitting required reports;

(d) verifying on employees' time cards the regular and overtime

hours worked; and

(e) security of the plant on the afternoon and night shifts and weekends.

The Board found these responsibilities to fall short of the kind of independent discretion required for a "managerial" exclusion.

6. The respondent relies upon Metropolitan Toronto Association for the Mentally Retarded, [1978] OLRB Rep. Nov. 1010. In that case, however, the Residence Supervisors had the responsibility for up to 16 employees, had full responsibility for staff scheduling, including the scheduling of overtime and granting of time off, and actually hired part-time employees on their own as required. They submitted formal evaluations to senior staff on a regular basis, and there was clearer evidence in that case of their recommendations being relied and acted upon. In fact, Mr. Ball in his more limited capacity appears closer to the Assistant Supervisors whom the Board found were not managerial in that case.

7. The Board, in conclusion, does not find that the managerial functions, to the extent that these are required, are presently exercised by Mr. Ball. Rather, the evidence demonstrates that Taylor Ambulance is essentially run as a one-man operation. The important decisions are left to Mr. Taylor, whether at the premises or not, and Mr. Ball generally appears to perform a necessary but limited reporting role between management and the employees. Mr. Ball does not, for example, have the authority to suspend someone on his own for the balance of a shift. As the Board has commented with respect to the role of, for example, a "head" nurse in charge of a shift in a hospital:

8. Also, the head nurse forms a conduit between the general staff on her floor and management, or to put it another way she has a reporting function. In this function she is a liaison between management and other employees; she enables management to "keep its ear to the ground" and in touch with the daily operations and functions of the hospital, and at the same time she is a part of the vehicle for management to convey policies and decisions to other employees. Again, this reporting function should not be confused with the exercise of managerial duties. Peterborough Civic Hospital, [1973] OLRB Rep. March 154.

While a significant delegation or sharing of responsibilities between the owner and single supervisor would not be unusual, it appears that in the present case the method of operation of this small unit has not made that necessary. The Board does not find that the extent of authority granted to Mr. Ball is sufficient to remove him from the scope of the Act, and finds him to be an "employee" within the applicant's proposed bargaining unit. See generally Oakwood Park Lodge, [1982] OLRB Rep. Jan. 84; and cf. the UCS Group (unreported), Board File No. 0815-80-R, released March 2, 1981.

8. A formal certificate will now issue to the applicant as bargaining agent for:

All employees of the respondent in the Town of Sutton and the Village of Queensville, save and except office staff and owner/operator.