[1983] OLRB Rep. December 2100
0715-83-M United Electrical, Radio and Machine Workers of America (UE) and its Local 513, Applicant, v. Simmons Limited (Toronto Division), Respondent
BEFORE: M. G. Mitchnick, Vice-Chairman and Board Members I. M. Stamp and C. A. Ballentine.
APPEARANCES: Art Jenkyn and Al Peters for the applicant; R. M. Parry and Al McCallum for the respondent.
DECISION OF THE BOARD; December 19, 1983
This is an application under section 106(2) of the Labour Relations Act, requesting the Board to determine whether Margaret Campbell, the Production Control Co-ordinator, is an "employee" for the purposes of the Act.
The evidence establishes that the position under review is a new one, created by the company to tighten its control and monitoring of the efficiency performances of its operators. This function, to the extent that it was previously being performed at all, was performed by the company's engineer, who is responsible for developing the standards initially, or the foremen of the individual departments. The company did not, however, find this method of control to be satisfactory, and posted the new job in June of this year. Ms. Campbell, the successful candidate, has her own desk and office, which is located between the offices of the engineer and the production supervisor (to whom the foremen report). The company took the position from the outset that the position was "managerial" and "confidential", and the union immediately filed the present application with the Board. By the time Ms. Campbell was examined by the Board Officer, she had spent less than two months in the new job. The problem which this creates for the Board is that, as the union points out, it is clear that Ms. Campbell has no independent power on her own to make decisions with respect to the adjustment of standards or the imposition of discipline on employees. Her only power, if she has any, is that of "effective recommendation", and as the Board noted in the Corporation of the City of Barrie, [1983] OLRB Rep. Aug. 1239 that test is the most difficult one for the Board to determine without some actual experience in the job as a guide.
The starting point for Ms. Campbell's job is to receive from the foreman each day the production reports for the various operators. Ms. Campbell then enters these production figures on a master sheet and at the same time, where a standard has already been developed by the company, she calculates the percentage which the operator's production represents of the standard. Were her job to stop there, it would be clear, as the union submits, that Ms. Campbell is no more than an "analytical clerk", having nothing of the kind of judgmental latitude which would place her in a conflict position and justify her exclusion from the bargaining unit as a "managerial" person. It may well be that, as the company continues with its program of developing standards for each job in the plant, there will be additional persons assisting Ms. Campbell whose job will be limited to this. Ms. Campbell's own job, however, does not stop there. She is, as she says, expected to investigate on her own, through the foreman and employees concerned, the reasons for any persistent failure to make the standard, and to satisfy herself as to whether she feels a problem exists. If, after her own investigation, it is her judgment that some form of corrective action is required, a meeting takes place in her office with the production supervisor and the foreman concerned. To date, of the three meetings which Ms. Campbell herself has initiated, two of them have resulted in discipline for employees, and the third resulted in an immediate cutback of staff, in a case where Ms. Campbell ascertained that the number of employees actually employed in the department exceeded the number which manning requirements had called for. Ms. Campbell was asked, at page 50 of the report, whether "when you've recommended discipline, has it always gone through?", and her answer was, "I would say yes". This is consistent with the evidence of the Plant Manager, Mr. Drouin. Questions of discipline arise as well in regular production-standard meetings which Ms. Campbell attends but does not initiate, and in connection with this, she was asked: "Then in one case you said you recommended, they decided on discipline and you recommended against discipline and they didn't put discipline in?", and Ms. Campbell confirmed that that had been the case. Ms. Campbell also on her own came to the conclusion in analyzing the production reports of a particular individual that there was in fact something unfair in the standard developed for his job, and recommended that the standard be changed in his favour. That recommendation was adopted immediately.
Ms. Campbell, who was an extremely candid witness, made it clear that, since she was still being trained, she did not feel that she had yet reached the point of making the kind of extensive recommendations which she believed the job anticipated. On the other hand, she was asked by company counsel whether in her own view, her new job was one which properly belonged within the bargaining unit. Ms. Campbell responded that she did not feel that it did, and explained: "Well I do have access to personnel files, engineering standards and being involved in disciplines, layoffs and personally I feel I would be trying to straddle both sides of the fence". These would be easy statements to make from someone who in fact was anxious to have the Board find that their job was "managerial", but the interesting thing about Ms. Campbell is, as the transcript discloses early in her evidence, she was reluctant to apply for the new job because she was concerned about giving up the security which she felt goes with being a member of the union's bargaining unit. Ms. Campbell was also actively involved as a union steward prior to her promotion. Her concern about the potential conflict in which her new job would place her appears, therefore, to be genuinely felt. The applicant's response to this is that Ms. Campbell may believe that her job is one where such conflict will exist, but she has simply been "led down the garden path" by the company into believing that. The applicant argues, in other words, that Ms. Campbell's understanding of the full expectations of her job bears no reality to the kind of job it really is.
On the basis of what has actually happened even at this early stage, however, the Board is unable to accept the applicant's characterization of Ms. Campbell's job. It is clear that she does have to make a decision as to whether to initiate action, and her decision to do so appears to consistently trigger an immediate management response. As the Board said in The Corporation of the City of Thunder Bay, 1119811 OLRB Rep. Aug. 1121:
The acceptance of the "effective recommendation test" mentioned above, means that it is not necessary to show that the disputed individual performs his role independently of higher levels of management. But it is necessary to show that his recommendations are really effective, so that, in practice, and to a substantial degree, he becomes the effective decision maker in respect of matters impacting upon his fellow employees.
It is clear that Ms. Campbell to date has exercised her judgment in a way that has not only prejudiced employees in the unit, but has also benefited them, and it appears to the Board that she will best be able to perform the role expected of her if she remains free of the kind of conflict, or apparent conflict, which placement within the unit would create. The Board does not, therefore, find the company's characterization of Ms. Campbell as "managerial" to be inflated, or premature, but rather finds that Ms. Campbell is not an "employee" for the purposes of the Act.