[1983] OLRB Rep. August 1239
2161-81-M The Corporation of the City of Barrie, Applicant, v. The Canadian Union of Public Employees, Local 2380, Respondent.
BEFORE: M. G. Mitchnick, Vice-Chairman, and Board Members F. W. Murray and B. L. Armstrong.
DECISION OF THE BOARD; August 15, 1983
- This is an application under section 106(2) of the Labour Relations Act, requesting the Board to determine whether the persons occupying the classification of Operations Manager, Supply and Services Supervisor, Planning and Development Property Standards and Management Officer, and Operations Technologist are "employees" for the purposes of the Act. The applicant employer takes the position that all four are excluded under section 1(3)(b) of the Act. According to the evidence, however, the collective agreement covering outside employees of the City provides that all new positions are considered to fall within the scope of the collective agreement, until agreed or determined otherwise.
The employer has therefore filed the present application.
The Operations Manager is a new classification introduced in November of 1982. At present the incumbent is Merlin Dewing. The position of the City is that this classification was introduced to create a level of management between the Public Works Superintendent, Mr. Fox, and the Equipment and Operations Supervisors, and the evidence bears out that this is exactly what has taken place. The two named Supervisors are presently excluded from the collective agreement as managerial, as are the foremen in the department under them. The evidence leaves no doubt that the new Operations Manager has been given the full responsibility for all aspects of the administration of the department, and it is to Mr. Dewing that the two Supervisors and, indirectly, the foremen, now report, as well as the 40-50 bargaining unit employees under the foremen. On the evidence, Mr. Dewing is clearly not an "employee" within the meaning of the Act. The fact that the respondent, at least in the face of the evidence, continues to dispute this position does little to promote its overall credibility before the Board. The respondent's position, however, is presumably based on the fact that the job is a new one, and more will be said about this later in the decision.
It appears that the "Supply and Services Supervisor" was created to split the department previously reporting to the Administrative Supervisor, and to relieve the latter of direct supervision of the Supply and Services portion. Mr. Robert Bourne has occupied the position of Supply and Services Supervisor for approximately one year, and appears on all of the evidence to be on the same organizational level as the Chief Clerk (who is excluded and also reports to the Administrative Supervisor). Mr. Bourne has three full-time employees reporting to him, two storesmen and a custodian. Mr. Bourne does not perform any of the same work performed by these individuals, and when he is absent, no one but the Equipment Supervisor (who is excluded) takes over his desk. When the custodian was off work for a period due to illness, Mr. Bourne acted on his own to hire a short-term replacement. Mr. Bourne also hired on his own the 9 "casual" employees employed by the City under the Ontario Employment Inventive Programme. Mr. Bourne performs regular written evaluations on the individuals reporting to him, and, for those not at the top of their range under the collective agreement, recommends whether or not a merit increase is in order. In the only opportunity for this to date, his recommendation has been followed. Mr. Bourne does the scheduling and assigns the work for his department, and grants time off on a casual basis if he feels that the request is justified. He indicates that he would confer with someone at a higher level only if the request for time off was on an extended basis. Mr. Bourne authorizes the employees' time cards and attendance record, as well as overtime, for the purpose of payment. He has had occasion in his first year on the job to reprimand employees orally and in writing, although no permanent employee has yet been hired or fired in a department. He did, however, act on his own to prematurely terminate the employment of an unsatisfactory employee under the Ontario Employment Incentive Programme. His desk is kept locked, and in it he keeps "notes that I have made on my own behalf relative to employees, direction I have given employees, information that is pertinent to the City's operation, budget figures". He attends meetings with the other supervisors at his level, together with the Administrative Supervisor, and at these meetings questions such as hours of work, and the application of the collective agreement, are discussed. He has not yet had a formal grievance filed within his department, but when an employee had a claim that he had improperly been denied the "boot allowance" under the collective agreement, it was to Mr. Bourne that the employee and his steward made their complaint. Mr. Bourne denied the claim, and the matter ended there. Mr. Bourne does not normally perform any of the functions of the three employees under him, and indicates the only time that he would do so would be if, for example, both of the storesmen were absent, and then only on a short-term basis to keep the operation flowing. The Board is satisfied on the evidence that Mr. Bourne acts as and is perceived by his employees as a member of management, and is not an "employee" for the purpose of the Act.
Lloyd Pearson is the Senior Property Standards Officer and Property Manager for the City of Barrie. The title really refers to two distinct jobs. Mr. Pearson has for a number of years been the Senior Property Standards Officer, and as such was responsible for supervising the work of two junior property standards officers. In that capacity he has historically been included within the coverage of the collective agreement. More recently, however, he has taken over responsibility for the function of Property Acquisition and Purchases from another member of management, Mr. Peck. In his new capacity, Mr. Pearson is responsible for managing some 40 to 50 pieces of property belonging to the City. His main responsibility in that regard appears to be for the office building in which the City's offices have always been located, together with the newly-acquired Municipal Tower Building at another location. Mr. Pearson maintains an office in both of these primary buildings. He has reporting to him on a full-time basis the building superintendent for the Police Station, together with the building superintendent for the new Tower Building, whom he has just hired. He also has two regular part-time employees reporting to him in the maintenance area. He hired the Tower Building superintendent entirely on his own, as he does for any casual maintenance employees required from time to time. He also on his own sets the rate to be paid these casual employees, based on his sense of what the appropriate rate is in the community. As he puts it: "I know what's involved so I can put a dollar value on it and, of course, I'm trying to get the work done at as reasonable a rate as possible because I'm working for the City. I don't want to throw the money away." In his role as Property Manager, he reports directly to the City Administrator, Mr. Straughan, with whom he meets on a regular basis. The topics of discussion are described only in a general way in the transcript, being "primarily the things that I wanted to do or authority I wanted to do in connection with the land acquisitions~ expenditures of money on properties that we have or want to repair or demolish or that type of thing." With respect to the Property Standards job, he reports to Rick Bates, the head of the division. He attends meetings every two weeks with Mr. Bates and the other department heads in that division "to co-ordinate the work loads and discuss personnel problems and establish department goals and things of that nature". It appears that in respect of the employees reporting to him, Mr. Pearson is responsible for verifying work time, authorizing overtime, granting casual time off, and performing regular written evaluations on an annual basis. Looking at the combined effect of these responsibilities in conjunction with Mr. Pearson's additional responsibilities as Property Manager, the Board is satisfied that Mr. Pearson is no longer an "employee" for the purposes of the Act.
The final person in dispute is Mr. George Kaveckas, the Operations Technologist. This once again is a newly-developed position, and Mr. Kaveckas in fact was not hired to commence his duties until February 21, 1983. The revised application date for these proceedings is January 27, 1983. Since, the date of the application is the normal cutoff date, under the Board's practice and procedure, for the admission of evidence relevant to the duties and responsibilities of a position, an examination of Mr. Kaveckas would initially have been premature at this time. The respondent, however, agreed to the addition of Mr. Kaveckas to the list of persons in dispute for the purposes of these proceedings, and indeed participated in the examination of Mr. Kaveckas as to the duties and responsibilities which he has been performing since the date that he was hired in February. In the circumstances, the Board must take it that the respondent has deliberately waived the application date of January 27, 1983, as a "cutoff" date with respect to Mr. Kaveckas, in order that the status of this person in dispute between the parties can be resolved by the Board at the same time as the others.
Mr. Kaveckas apparently was examined before the Board Officer on March 16, 1983, so that his evidence spans some three and a half weeks in actual performance of the job. As the Board has said in the past, its task is to attempt to assess the actual (as opposed to theoretical) duties and responsibilities assigned to a particular individual, together with the extent, if any, of that person's authority. If the only evidence before the Board is that that individual has at some point been advised that he has certain authority, or has been presented with a job description outlining such authority, that evidence may, in a given case, be insufficient to establish the actual existence of such authority or responsibility. This might be so, for example, where there is contradictory evidence suggesting the contrary, such as the person's relative position in the hierarchy of the organization, or what the actual practice in the work place has been. A party seeking to justify an exclusion where none has existed before must be conscious of the evidentiary onus upon it, as discussed at length in Corporation of the City of Thunder Bay, F19811 OLRB Rep. Aug. 1153. The newer the position, and the lower the level, the more difficult it may be for a party to meet that evidentiary onus. Particularly where the demarcation line between management and the bargaining unit has never been clearly drawn, and the authority of a first-line supervisor rests upon the individual's ability to make "effective recommendations", a period of time may have to elapse before anyone is in a position to determine whether the individual's recommendations are generally "effective". On the other hand, a newly-appointed "manager" need not be shown to have fired a fellow member of the bargaining unit before the Board can be satisfied that the person is in fact a manager. That is not a position which the members of the bargaining unit would likely wish their trade union to adopt before the Board, and indeed it is not a position which the trade union has specifically urged upon us in the present case. In addition, the overall organizational structure of the employer may leave no doubt, having regard to the existing line of managerial authority, that a newly-created position falls above that line. Unequivocal evidence of reporting lines may, in such cases, provide a convincing substitute for specific acts of hiring, firing, etc., which often times will take place at a more subordinate level of management.
There have, however, been few reported cases dealing with this problem of newly-created positions. In Sudbury Algoma Hospital, (unreported), Board File No. 0078-81-M, released September 22, 1981, the Board commented on the problem as follows, at paragraphs 3 and 4:
The present case is not without difficulty for the Board, having regard in particular to the fact that the Board is called upon to assess a newly-created position. As the Board stated in Sudbury & District Health Unit, (unreported), Board File No. 2055-79-M, released March 11, 1981:
In each instance, the Board seeks to determine the nature and extent of the individual's authority as well as the extent to which that authority is actually exercised. It is not sufficient that an individual has "paper powers" contained in a job description, or a "managerial" job title, if managerial functions are not actually exercised. Of course, if the challenged individual has been recently promoted, or the disputed position recently created, the full range of managerial powers may not have been exercised by the time the matter comes before the Board. In the former case, some assistance can usually be gleaned from the duties and responsibilities of the previous incumbent; while in the latter case, the application may simply be premature.
Particularly where the managerial authority consists of the ability to make "effective recommendations", a lack of actual experience in that regard makes it difficult for the Board to assess the degree of "effectiveness" of those recommendations.
In the present case, however, the duties and responsiblities set out in the Quality Assurance Co-ordinator's job description are not unsupported by the evidence to date. Mrs. Wells has in fact assumed control of the hospital's quality assurance programme, and is actively functioning as the chairman of the various performance-related committees. As noted, the Quality Assurance Programme Committee in particular is composed solely of existing members of management, and it would be somewhat anomalous if the person charged with the responsibility of chairing and coordinating the activities of that committee were the only person on that committee considered not to be a member of management. On the contrary, all of the evidence indicates that this position was created as a truly managerial position, in fact above the level of both head nurses and supervisors, and that the position could not be expected to effectively function otherwise. The responsibility of Mrs. Wells to both initiate and effectively monitor the quality assurance programme for the hospital distinguishes her from the simple "resource" or "technical" person who may be called upon to carry out particular studies for management, and for whom a demonstrated power of effective recommendation is generally more critical in making a finding of managerial status.
Here the four persons in dispute in this application all involve newly-created positions, and each to a greater or lesser degree has raised the problem for the Board of having to make a judgement, on the limited evidence available, as to whether or not the position has indeed been established on the "managerial" side of the line. The job of the Operations Manager, in light of the existing structure and his evidence, posed no problem at all. At the other end of the spectrum, with evidence of only three and a half weeks in the job, and a more subordinate position at that, the case of the Operations Technologist is more difficult. The City's organization chart and Mr. Kaveckas' job description show him reporting directly to the Operations Engineer, and being responsible for the joint areas of Transit and of Traffic and Parking Control. The evidence of Mr. Kaveckas confirms that responsibility. On the transit side, he supervises the only clerk in that area. On the other side, he supervises the already excluded Supervisor of Traffic and Parking, together with 10 other employees who report either directly to him or to the Supervisor of Traffic and Parking. Mr. Kaveckas attends meetings with other members of management (principally the Operations Engineer) regularly, and has already attended one grievance meeting on a matter arising out of his department. That meeting was with the Operations Engineer and the Director of Personnel, and the City's approach to the grievance and interpretation of the collective agreement were the subjects of the discussion. Mr. Kaveckas has had no occasion to discipline anyone under him in the three and a half weeks that he has worked for the City, but he has been approached for a day off for personal business by his Traffic and Parking Supervisor (again, an excluded position), and granted permission on his own. Mr. Kaveckas considers himself to be a member of management, based on the expectations explained to him of the job, and the manner in which he has been made privy to management dialogue. On cross-examination he was asked by the respondent:
Q. And was the job description or the duties and responsibilities along the lines of technical knowledge, or were you also advised that you would have certain responsibilities pertaining to the employees in your department?
A. I would say both. There is a certain degree of technical knowledge you need for the job and, also, some supervisory skills also.
Q. That was discussed and indicated to you that those would be the expectations of the job, eh?
A. Yes.
The combined effect of Mr. Kaveckas' evidence is that the two elements of the job are split roughly 50/50.
- On the evidence it is clear that Mr. Kaveckas believes that he possesses, and, in the limited time available, has in fact been performing, the managerial responsibilities set out in his job description, and the Board is satisfied that this individual is not an "employee" within the meaning of the Act.