Ontario Labour Relations Board
[1983] OLRB Rep. December 2006
2705-82-R Retail Clerks Union Local 409, Applicant, v. Dominion Stores Limited, Respondent, v. Canada Safeway Limited, Intervener
BEFORE: M. G. Mitchnick, Vice-Chairman, and Board Members F. W. Murray and B. L. Armstrong.
APPEARANCES: Cynthia Morton and Ian Reilly for the applicant; Vid Juodgudis for the respondent; D. L Wakely and P. J. Thorup for the intervener.
DECISION OF THE BOARD; December 12, 1983
This is an application for certification involving the two stores operated by Dominion Stores Limited in the City of Thunder Bay. All parties acknowledge that, as a result of recently taking over the two stores, Canada Safeway Limited is now the employer of the individuals in question. Canada Safeway was accordingly permitted by the Board to make submissions on the Labour Relations Officer's report.
The bulk of the employees at the two stores, up to and including the rank of department head, have long been covered by a collective agreement. Assistant Store Managers, however, have historically been excluded, in the words of the collective agreement, as "persons above the rank of department head", and the present application applies only to them. The respondent takes the position that the assistant store managers exercise managerial functions", and the applicant, notwithstanding the fact that the collective agreement has apparently excluded them over the years on this basis, takes the position that they do not.
As the Board noted in The Corporation of the City of Thunder Bay, [1981] OLRB Rep. Aug. 1121, the evidentiary onus normally rests on a party seeking to exclude an individual from the coverage of the statute. On the other hand, however, the Board went on to note, at page 1126:
(2) 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 accommodate the interests section 1 (3)(b) was designed to protect.
Or, as the Board put it in Sudbury & District Hospital, (unreported) Board File No. 2005-79-M released March 11, 1981, at paragraph 5:
...a party seeking to alter a status quo which has been settled and embodied in a series of collective agreements, must be able to provide a firm evidentiary foundation for its new position.
This does not mean that a party is precluded from ever raising the issue before the Board; but it does mean that the Board will not fail to take into account the perception of the parties themselves over a number of years and the consequent treatment of an individual as managerial or otherwise, and this factor may be granted certain weight in the Board's forming of its own conclusion, in the absence of compelling evidence to the contrary. This recognition of longstanding practice promotes at least some measure of peace and stability between the parties over an issue long thought to have been put to rest between them. And it is a benefit accruing to both sides of the case: the respondent would, as a practical matter, have to contend with the same kind of common-sense onus were it to attempt to suddenly reverse itself on its long-accepted position on the status of department heads, who have always been included in the unit. Stability on an issue of status ought clearly to depend on more than the preferences of particular incumbents in the job from time to time.
In the present case, the Board is not satisfied that the historical perception of the parties has been in error. The assistant store manager is not, as the applicant has argued, simply called upon to perform at the same level of responsibility as the department heads. On the contrary, the Board finds the transcript supportive of a material distinction in authority and responsibility between the assistant store manager and the various department heads in a store. Quite apart from the issue raised by the respondent, of the colourability of the evidence of the principal witness, the assistant store manager Mr. Majbroda, the Board finds that the evidence of the two store managers, one of whom was able to recount specific instances of exercising authority from his days as an assistant store manager, together with the evidence of both assistant managers, provide a more full and fair account of the expectations of the job. The evidence satisfies us that assistant store managers, unlike the department heads, have the authority to issue all levels of formal discipline, excluding discharge, and have, when circumstances required, done so. The assistant at the second store, for example, has had occasion to sit down in the office with an employee and his steward to issue formal discipline. That the assistant managers spend the bulk of their time helping out on the floor where they feel they are needed (the manager and assistant manager of one store agreed on an estimate of six out of eight hours) is not surprising in an operation of this small size. It is clear, however, that the assistant store managers do get involved in resolving problems between departments, or in transferring employees between departments, with or without the Store Manager, in a way that department heads do not. It is clear, even from the evidence of Mr. Majbroda, that the assistant store managers give directions to department heads, but not vice versa. The assistant store managers are also looked to by the employer as the primary source of relief for the times that the Store Manager himself is absent on days off, vacation or for other reasons. While certain personnel, including department heads, are put "in charge" of some of the night shifts as well, the Board finds a qualitative difference in the supervisory responsibility expected from them as opposed to the assistant store managers. There are, for example, payroll, sales and cash, overtime and store expense reports to be signed each week, and the company makes sure that they always have either the Store Manager or his assistant in the store to do so. All of these elements, in the Board's view, distinguish this case from Super-City Discount Foods Ltd., [1965] OLRB Rep. Dec. 582 and Dominion Stores, [1975] OLRB Rep. Aug. 444, cited by the applicant. Having regard to the aforesaid elements, together with the incidental functions, such as scheduling the grocery department and the hiring of part-time employees, performed by the assistant store managers, the Board finds that they are not "employees" within the meaning of the Act.
The application is accordingly dismissed.