Ontario Labour Relations Board
[1983] OLRB Rep. November 1840
1049-83-R International Association of Machinists and Aerospace Workers, Applicant, v. G & B Automated Equipment Ltd., Respondent
BEFORE: R. D. Howe, Vice-Chairman, and Board Members I. M. Stamp and W. F. Rutherford.
DECISION OF R. D. HOWE, VICE-CHAIRMAN, AND BOARD MEMBER I. M. STAMP; November 4, 1983
I. This is an application for certification in which the Board, differently constituted, appointed a Board Officer on September 6, 1983 to inquire into and report to the Board on the community of interest, if any, which employees in the respondent's engineering department have with the other employees in the bargaining unit proposed by the applicant.
The applicant seeks bargaining rights for a standard production unit consisting of all employees of the respondent in the Municipality of Metropolitan Toronto save and except foremen, persons above the rank of foreman, office and sales staff. The applicant is of the view that the employees in the respondent's engineering department do not share a community of interest with (non-engineering) production employees and, therefore, should not be included in the bargaining unit. The respondent, on the other hand, submits that it would be artificial and undesirable to exclude engineering department personnel from the bargaining unit since they allegedly spend a significant amount of their time working side by side with production employees in the manufacture of the sophisticated computer aided equipment which the respondent produces for use by companies in the abrasive manufacturing industry. In particular, the respondent contends that in addition to development and designing work which is performed in the engineering department, personnel from that department also build, install, start up and debug the product on the plant floor. Accordingly, the respondent submits that there is a strong functional coherence and interdependence between the production employees and the employees in the engineering department, which should prompt the Board to join the two groups of employees in a single bargaining unit.
Early in the proceedings before the Board Officer appointed to conduct the aforementioned inquiry, an issue arose between the parties concerning the scope of the evidence adduceable before the Officer. It was the applicant's position that, in conformity with the Board's usual practice in such matters, evidence concerning community of interest should be confined to circumstances that existed on (or within a reasonable period before) the date of the application. The respondent, on the other hand, submitted that the Board should depart from that practice in the circumstances of the present case. After hearing and considering the submissions of the parties concerning that issue on September 27, 1983, the Board, in an effort to avoid any unnecessary delay in processing this application, gave a brief oral ruling in which it declined to depart from its usual practice by which the date of the application is the cut-off date for evidence pertaining to community of interest.
By letter dated October 14, 1983, counsel for the respondent requested the Board to reconsider that ruling. In that letter, counsel reiterated and amplified some of his submissions in support of the position which he advocated on September 27, 1983. A copy of his letter was forwarded to the applicant and its counsel for their comments. In a brief letter dated October 19, 1983, which was received by the Board on October 28, 1983, counsel for the applicant submitted that there are no grounds upon which the Board should reconsider the ruling in question.
The facts stipulated by counsel for the respondent in support of his position (and assumed by the Board to be true for the purposes of this decision) are as follows. The respondent is heavily engaged in the development of computer aided machinery used by companies which manufacture abrasives. In recent years each piece of computer aided machinery produced by the respondent has tended to represent the "state of the art" in the industry. At the present time there is only one piece of machinery being built in the respondent's plant. That machine had been under construction for approximately one year prior to the union's certification application, which was filed with the Board on August 16, 1983. Although engineering department personnel had performed some work on that machine in the plant prior to the application, their involvement had been relatively limited. However, the machine will not be completed until some time in 1985 and engineering department personnel will become increasingly involved in working on it in the plant as its computer and electronic components are installed and debugged. Of the approximately 65,000 man hours of "shop work" involved in producing that piece of machinery, approximately 15,000 to 20,000 man hours are to be performed on the shop floor by engineering department personnel. Most of those hours have been scheduled to be performed after the date of this application. However, the respondent's plans and commitments for such engineering shop work had been finalized prior to the date of the application. Thus, in 1984, the respondent anticipates that the amount of work to be performed on that machine on the plant floor by its (non-engineering) production workers will substantially decrease, while the plant floor work to be performed on it by the respondent's engineering personnel will substantially increase. Although the respondent's plant has been in operation for about twenty years, in recent years a "strategic decision" by the respondent to concentrate its efforts on the development and manufacture of computer aided machinery has resulted in an increasing amount of work being performed on the plant floor by engineering department personnel, with each piece of equipment built by the respondent tending to be more sophisticated than the preceding one. Management is actively seeking further orders for such machinery.
In his request for reconsideration, counsel for the respondent submits that evidence as to the engineering shop work to be performed on the aforementioned machine after the date of the application is so essential to the respondent's case and to the matter which must be decided by the Board that the refusal of the Board to permit such evidence to be adduced would amount to a denial of natural justice and refusal by the Board to exercise its jurisdiction. We do not agree with counsel's characterization of our earlier evidentiary ruling. The Board is entitled to limit the scope of the evidence that it will permit to be adduced on the basis of such considerations as relevance to the issue in dispute. In our view, an evidentiary ruling of this type does not raise a natural justice or jurisdictional issue.
As indicated above, the Board's usual practice in such matters is to use the date of the application as the cut-off date for evidence of community of interest. (See, for example, Fildebrandt Precision Industries Limited, [1983] OLRB Rep. March 361, at paragraph 26, in which the Board noted that it "has maintained a policy of refusing to look at predicted or future facts in determining the issue of community of interest".) The Board has a similar practice concerning the duties and responsibilities of persons alleged to exercise managerial functions or to be employed in a confidential capacity in matters relating to labour relations. That practice prevents manipulation or variation of operations, plans, or job functions, and fosters Board decisions respecting community of interest based upon detailed cogent evidence concerning concrete circumstances and events that have actually occurred. Evidence of that type would not generally be available in respect of future plans or predicted events. It also tends to ensure that the party (or parties) opposite in interest to the party adducing evidence pertaining to community of interest will be in a position, through due investigation of what has in fact occurred in the place of employment, to marshall and adduce its own evidence concerning the material facts. To permit an employer to adduce evidence concerning future plans or commitments reduces not only the concreteness of some of the evidence upon which the Board is asked to rely, but also reduces or eliminates the union's ability to assess the accuracy and reliability of that portion of the employer's evidence, and to reply in a meaningful way to such evidence. The Board also has some doubts concerning how useful evidence of such plans and commitments would be in assisting the Board to consider and apply the factors which it generally takes into account in determining community of interest (such as the nature of the work performed, conditions of employment, skills of employees, administration, geographic circumstances, and functional coherence and interdependence). However, there have been a few exceptional cases (which were not drawn to our attention prior to our oral ruling in this matter) in which the Board has given some consideration to future events in determining bargaining unit scope or composition. See, for example, Dynamic Closures Limited, [1983] OLRB Rep. Apr. 521, and Paris Poultry Products Limited, [1978] OLRB Rep. May 453.
Having carefully considered the submissions of the parties, we are of the view that in the relatively unique circumstances of the present case, it is appropriate for the Board to permit the respondent to adduce before the Board Officer evidence concerning the shop work that has been or will be performed after August 16, 1983 by engineering department personnel on the aforementioned machine which was in the process of being built at the time of this application. It appears to us that after the Officer's report has issued, the Board will be in a better position to determine the relevance of such evidence and the weight, if any, to be given to it in light of the details of such evidence and the submissions of the parties with respect to it.
Accordingly, the Board, in the exercise of its discretion under section 106(1) of the Labour Relations Act, hereby reconsiders and revokes its aforementioned ruling of September 27, 1983, and substitutes therefore the ruling contained in this decision.
DECISION OF BOARD MEMBER W. F. RUTHERFORD;
I dissent. I see no valid reason for reconsidering the Board's original ruling in this matter.