United Steelworkers of America v. Fildebrandt Precision Industries Limited, 1983 CanLII 918

Ontario Labour Relations Board

[1983] OLRB Rep. March 361

0493-82-R United Steelworkers of America, Applicant, v. Fildebrandt Precision Industries Limited, Respondent

BEFORE: Corinne F. Murray, Vice-Chairman, and Board Members W. G. Donnelly and H. Kobryn.

APPEARANCES: S. Michael Lynk and E. Andrew Yale for the applicant; Lynn H. Harnden, Heinz Fildebrandt and Paul Seibel for the respondent.

DECISION OF THE BOARD; March 9, 1983

1. This is an application for certification. In a previous decision of the Board pursuant to an agreement of the parties, the applicant was granted interim certification for the following bargaining unit pending determination of whether G. Husk, Numerical Control Programmer, shared a community of interest with employees in the bargaining unit:

All employees of the respondent in the City of Kanata, save and except foremen, persons above the rank of foreman, office and sales staff, persons regularly employed for not more than 24 hours per week, students employed during the school vacation period and numerical control programmers.

A clarity note agreed to by the parties specified that the Chief Inspector and Purchasing Agent were excluded from the bargaining unit.

2. According to the Schedules filed by the respondent, the unit described above includes the following classifications:

Welders (3)

Painters (3)

Packers (2)

Sanders (6)

Chemical systems operator (1)

Press Brake Operators (3)

Machinists (2)

Silkscreener (1)

Inspector — Finishing (1)

Helper (1)

Floater (1)

Model Shop (1)

Numerical Control Operators (3)

3. The evidence upon which the Board must determine whether Mr. Husk does or does not share a community of interest with this unit is contained in a Labour Relations Officer's report (hereinafter "LRO report") dated September 22, 1982. The evidence therein was given by Mr. Husk, two of the three numerical control operators (called in support of the applicant's case) and Mr. Heinz Fildebrandt, General Manager of the respondent.

4. The applicant sought leave of the Board by letter dated September 28. 1982, and by oral representation at the January 11th hearing called to hear the representations of the parties regarding the conclusions the Board should draw from the LRO report, to adduce additional evidence via an "expert witness". The applicant relied on paragraph 14(c) of the Board's Practice Note No. 4, i.e., that the evidence to be adduced was ''new evidence which could not have been discovered by reasonable diligence at the time of the examination". Alternatively, the applicant argued that the precedent-setting nature of the case warranted reopening the evidence and that the dimensions of the case only became apparent to the applicant after the receipt of the LRO report. The Board refused to grant leave because the applicant had failed to show that the circumstances of this case fell within any of the exceptions set out in Practice Note No. 4. Paragraph 6 of such Practice Note makes it clear that any party wishing to adduce evidence after the conclusion of an LRO report must show specified exceptional circumstances and the Board was not satisfied that the evidence sought to be adduced was "new evidence" within the exception in paragraph 14 (c). The Board indicated that it must decide this case on the evidence before it and that the applicant was not foreclosed from adducing expert evidence in the proper way in a future case to create suitable facts for a precedent-setting or guideline type of case.

5. The plant of the respondent is involved in the production of sheet metal parts for the computer industry. The applicant contends that Mr. Husk has a community of interest with those employees included in the unit set out in paragraph 2 above, all of whom are engaged in production work. The respondent claims that he properly belongs in an office, clerical and technical unit" when and if one is organized by a union.

6. The duties and responsibilities of Mr. Husk are not essentially in dispute —what inferences the Board should draw from them are.

THE EVIDENCE

7. Mr. Husk has been employed as the sole computerized numerical programmer or numerical control programmer with the respondent since October 1981. His educational background is 2 years at Ottawa Technical High School in a course with drafting as a specialized subject. No evidence was given as to the educational background of the employees in the bargaining unit. His work experience previous to joining the respondent is negligible. The only training the Board knows about vis-a-vis the bargaining unit is in connection with the Computer Numerical Control operators, the name the respondent used on its schedule, also known as CNC punch press operators, the name used by the respondent during the Labour Relations Officer's investigation and during its oral representations before the Board. For ease of reference hereinafter they will be referred to as operators. One of the operators said that he received two weeks training. Mr. Husk claimed that operators could not do his job without proper training; what proper training would entail was not mentioned. No operator has ever filled in for Mr. Husk. Mr. Husk is paid on an hourly basis. All of the employees in the bargaining unit are paid on an hourly basis. There is no evidence that anyone else employed by the Respondent is paid on an hourly basis. His work hours are 8:00 a.m. to 4:30 p.m. The plant operates 6 days a week from 7:30 a.m. to 8:00 p.m. Generally, production employees work 3 days on and 3 days off from 7:30 a.m. to 8:00 p.m. One of the three operators works 8:30 a.m. to 4:00 p.m. 5 days a week. Virtually all other bargaining unit employees work 3-day shifts 7:30 a.m. to 8:00 p.m. Mr. Husk is paid overtime (time and a half) for work in excess of 40 hours per week when he is asked to work. If he works without being asked, he gets his normal hourly rate. This is the same arrangement for the operators. He punches the same punch clock in the same way as bargaining unit employees. If he is sick a day, he did not think he would be paid. Mr. Husk said his "benefits" were the same as everyone else's in the plant. Mr. Husk shares an office with (the Chief Inspector,) one of the managers who oversees and directs his work. Their office, along with other "whitecollar" employees and managers, is located on the second floor of the respondent's premises; the first floor is completely utilized for production work. The production employees eat in a lunchroom on the same floor as the plant operations but Mr. Husk either eats his lunch in his office or out in his car. The other employees on the second floor either eat lunch in their offices or go out for lunch. Some of the employees from the second floor go into the production employees’ lunchroom to use the vending machines there. Exhibit 1 shows the offices located on the second floor are those of the Treasurer, General Manager, Production Manager, Operations Manager, Comptroller, Purchasing and Sales Staff, Chief Inspector and Mr. Husk. A receptionist also works on the second floor. Mr. Husk does not wear a uniform but dresses in such a way that he can go down on the plant floor to do his work. There was no direct evidence as to whether the employees on the first floor wear a uniform or clothing similar to Mr. Husk's. Mr. Husk does no physical work but members of the bargaining unit do, e.g., the operators move blanks around and move finished products.

8. Mr. Husk said he reports to Paul Seibel, the Production Manager. Mr. Siebel in turn reports to the Operations Manager, Gerald Fildebrandt. Mr. Husk's work is routinely checked daily by Doug Adamcheck, the Chief Inspector. The people in the bargaining unit report to their respective shift supervisor (one for A shift and one for B shift) and the shift supervisor in turn reports to the Production Manager. Below the shift supervisors there are 3 foremen (Machine Shop, Welding and Paint Shop). Mr. Husk said he has 5 basic responsibilities. He said he "takes care of':

(1) computerized numerical programming;

(2) stock ordering for the computer;

(3) process writing;

(4) changes in drawings and revision changes;

(5) documentation of the programming.

Computerized numerical programming entails Mr. Husk receiving drawings or plans from either the Production Manager, Operations Manager (when it is a model shop job, i.e., a one-run or small-run proto typical job) or the General Manager. Sitting at a computer terminal he "punches" the co-ordinates, size and shape of the punches and sheet metal required by the drawings or plans to best build the product designed. Mr. Husk describes himself, after receipt of the drawing, as being on his won to figure out the best way to make the particular piece. The result of this is a "program" which Mr. Husk "runs" to determine that no errors have been made. Presumably he is checking for his own errors rather than design errors. After he is satisfied there are no errors, the printer attached to the computer produces the hard copy of the program. After this the computer produces a set up sheet which describes the punch widths, lengths, radii and angle for each station. Mr. Husk makes a few written notations on it. A piece of paper called a "plot" showing the exact shape and size of the metal punch to scale is done by using a "plotter", separate from the computer itself. The design/ plan, the hard copy of the program, the set-up sheet and the plot are then sent to the Chief Inspector. He directs whether any changes are indicated, Mr. Husk rechecks it and re-programs to incorporate them. After the program is finalized, he runs it through the tape printer reader (which is not a computer) from which emerges a perforated paper tape usable by the machinery on the first floor. He gives the tape and complete file to the Production Manager and, depending on how quickly he needs to run production with it, the tape would either be filed in the tape files or put out on shelves from which the operators could retrieve them. The operators take the tapes from the second floor shelves to the first floor where the "blanks" of sheet metal would be readied for production. Initially a sample is run off and checked either against the plot or a previously produced sample. Mr. Husk would be on the first floor when the tape is being put into the machine only if there was a problem with the tape or with the product resulting from the tape. After there has been a determination that everything is as it should be, the tape is allowed to run until the complete order for the full product is filled. The operator's job is to ensure that the machine operates properly and a mistake does not take place, e.g., blanks folding up. Mr. Husk does not direct the operators to run the tape — this is done by the Production Manager or the Shift Supervisors. The Foremen who supervise the operators. The foremen do not supervise Mr. Husk. Any initial checking of a product run is done by persons other than Mr. Husk.

9. Mr. Husk goes down to the first floor only to check on problems that arise between the tape and the machine or to look at new types of programs that are being run. The operators appear to be the only portion of the bargaining unit with which he has any contact. Other than in the instances described above, Mr. Husk has no face-to-face or telephone contact with the operators. He estimates he only spends 1 %-5% of his time in face-to-face contact with them working on the first floor and an even smaller percentage of his time in telephone communication. He never attends "production meetings" but does attend meetings with some of those working on the second floor regarding programming as far as new drawings are concerned.

10. Concomitant with Mr. Husk's programming duties he is responsible for reprogramming so that changes to orders by customers, engineering departments are incorporated into a new tape. For this no consultations with any bargaining unit member are necessary.

11. Mr. Husk's second significant duty is process writing. This involves describing, in written form, exactly what steps are to be followed and in what order so that the finished product is correct. The process writing Mr. Husk does is given to and checked by the Production Manager. These production process specifications set out the steps which the operators must follow in producing the order, i.e., from initial sheeting (according to the numerical control set-up) to packing and shipping. These process specifications are kept on file and go to the first floor with the tapes when a particular product is to be run. Mr. Husk has no contact with operators either before or after the particular specification is written.

12. Mr. Husk is responsible for documenting the information as to the drawing number of the program, any revision number, the blank size, how many parts per blank should be produced, the information material used, all of which assists the Production Manager to predict accurately the materials he needs and to order the appropriate amounts.

13. Finally, Mr. Husk ensures that all the stock necessary to keep the computer running are ordered. He has no responsibility for ordering any other stock or material apart from this. He also apparently does some initiation of programming to determine the performance of the machine (e.g., "nibbling").

14. Both the operators testified that if neither Mr. Husk nor a replacement performed Mr. Husk's duties, they could run their machines using already produced tapes to fill orders. If there was a new job for which there was no appropriate tape, there is conflicting evidence as to the possibilities of operating their machines. One operator claimed it would be difficult but not impossible because the machines can be "programmed manually" while the other operator said no new jobs could be done.

THE ARGUMENT:

15. The applicant argued that Mr. Husk has a community of interest with "other technical employees" included in the bargaining unit. He did not name who these technical employees were. Using the criteria in Usarco, [1967] OLRB Rep. Sept. 526, the applicant claimed the following:

(1) Nature of Work: In reality Mr. Husk's job is that of production worker sitting behind a computer and while he has been physically removed from the production floor the scope and content of his job makes him "intimately engaged" along with the operators in production work. The intimate connection is revealed in the fact that the operators could not do any new job if Mr. Husk or a tape were not available. Counsel for the applicant described Mr. Husk as a "translator of designs" into a form which can directly be used by the operators to make a product. He indicated that the translation function was formerly performed by production workers who, relying on a blueprint prepared by draftsmen, would direct and operate their lathe or machine in conformity with the blueprint. Mr. Husk's production of a tape omits the necessity for a blueprint and for the production workers to direct and operate their machines. The tape does this. Mr. Husk's work goes far beyond the function of a draftsman.

(2) Conditions of Employment: Mr. Husk at all relevant times punched a time clock and was paid on an hourly basis. He was paid the same amount as the operators and had the same working hours as one of the three operators.

(3) Skills: The report is not clear and does not reveal a vast difference in the skill level of Mr. Husk and the production employees.

(4) Administration: Mr. Husk is ultimately responsible to the same manager as the production employees. The intermediate supervisor may be different but this is not a significant difference because office employees may have different intermediate supervisors.

(5) Geographic Circumstances: Not relevant or a secondary consideration.

(6) Functional Coherence: While there is limited person to person contact between the operators and Mr. Husk, this is not significant and is explainable by the presence of the computer. It is clear that Mr. Husk reports to the production manager on output and output is dependent on the operators. Without Mr. Husk and his tapes the operators cannot function and no production takes place.

Counsel for the applicant acknowledged that he found no case aside from Usarco on point.

16. The respondent argues that the following Usarco criteria should be followed but to different effect.

(1) Nature of Work: The respondent disputes that Mr. Husk is performing a traditional production function.

(2) Conditions of Employment: Most of the other production employees are on a 3 days on, 3 days off schedule with 12 1/2 hour shifts; only one employee is on record as working only days 5 days a week. Mr. Husk's method of payment was essentially different from the production employees in that he had a prospect of becoming salaried if he earned it. These were his terms and conditions from his first day of work and they are different from the production employees. Mr. Husk has a dual reporting relationship, i.e. to both the Chief Inspector and the Production Manager, neither of which are the direct supervision of the operator. The only similarity between Mr. Husk and the bargaining unit employees is with respect to the operators, but their conditions of work are materially different because Mr. Husk performs no manual work, which the operators do.

(3) Skills: The record is clear that the operators required only two weeks to learn their jobs and there is an inference to be drawn that this contrasts sharply with the training and skills necessary to do Mr. Husk's job.

(4) Functional Independence: There is minimal or limited contact and there is no "give and take" between Mr. Husk and the production employees. Mr. Husk merely goes to the production area on a different floor to observe how a program is running or to deal with a problem. He attends no production meetings, whereas he does attend office staff meetings. There is not a team approach in the sense the applicant submits because Mr. Husk can make changes to the program which production employees would not in all probability notice had taken place. The importance which Mr. Husk's work has in the production process is no different than designers, engineering staff or anyone else whose work affects the design function. In a large operation Mr. Husk's function would be carried out by a number of people, i.e., computer programmers with key punch operators. There is no evidence of any transfers between the production employees and Mr. Husk's function.

17. While acknowledging there were no decisions on point the respondent cited:

R. C.A. Limited, [1980] OLRB Rep. Sept. 1316

Inglis Limited, [1976] OLRB Rep. June 270

York University, [1975] OLRB Rep. July 554

Comtech Group Limited, [1974] OLRB Rep. May 291

Automatic Electric (Canada) Limited, [1969] OLRB Rep. Feb. 1969, p. 1162

as instances where the Board has found that technical employees share a community of interest with clerical and office staff. None of them deal with situations where it was argued that "technical" employees shared a community of interest with "production" employees.

THE DECISION:

18. The applicant's argument is premised on the notion that if the work performed by the incumbent could be determined to be what production workers have historically done, then the Board should include the incumbent in the bargaining unit. This argument asks the Board to adopt a proprietary approach to the determination of the incumbent's community of interest in an application for certification. This appears from our reading of Board jurisprudence, to be a new type of test.

19. Counsel for the parties correctly reported that they had found no decision dealing with the circumstances before us. In view of this, it appears to be necessary to this decision to examine the facts in light of the factors, and reasoning behind them, which led to the Board's longstanding policy of segregating production units from non-production units (i.e., office, sales and later technical).

20. The Board since 1946 has consistently certified "production" workers separately from "other" employees, even where the parties have agreed to one unit with both types of employees (see Reed, White-Collar Bargaining Units (1969), The Industrial Relations Centre, Queen's University, Kingston, Ont. at p. 3). Included within the office unit were not only those that perform the usual office functions but also "technical" employees (see Automatic Electric, [1969] OLRB Rep. Feb. 1162; Daily Journal Record, [1966] OLRB Rep. Sept. 397; Westeel Roscoe Co. Ltd., [1978] OLRB Rep. Nov. 1125). Only in exceptional circumstances were so-called technical employees formed into units separate both from the production unit and office units (see Ex-Cello-O Corp., [1974] OLRB Rep. Aug. 543 and Westeel-Rosco Co. Ltd., supra) because of the Board's stated aversion to fragmentation.

21. For over 15 years the Board has generally included Quality Control Technicians in production units because they normally have a greater community of interest with production employees than with the employees in an office, clerical and technical unit (see Affiliated Medical Products, [1969] OLRB Rep. Jan. 1014). This conclusion regarding their community of interest is based on a consideration of the following factors:

(1) the respondent's organization and administration

(2) intermingling and interchange

(3) geographic location of work

(4) kinds of skills, responsibilities and interchangeability

(5) conditions of employment

(see Alma Paint & Varnish Company, [1968] OLRB Rep. Sept. 551).

22. Similarly, during the same space of time, the Board has generally included plant clerical staff in the production unit instead of the office unit because of the fact that they directly "service" the production unit and because their community of interest lies with the production unit (see Wakefield Lighting Limited, [1965] OLRB Rep. May 143).

23. The factors used in Alma Paints and other cases following it dealing with quality control technicians are virtually the same as the factors enumerated in Usarco, supra, as being relevant to the assessment of community of interest in geographically separate work locations. The one exception is the explicit reference to functional coherence and interdependence. This aspect is, however, implicit in a consideration of "intermingling and interchange" and "kinds of skills, responsibilities and interchangeability".

24. Prior to considering the effect of the evidence in light of these factors, we feel that it is necessary to re-state the basis for the Board's concern that a community of interest exists among all the bargaining unit members.

Where a community of interest is lacking, there is the distinct possibility that the bargaining agent will not be able to reconcile the disparate interest groups within the unit. If the bargaining agent is not able to represent effectively all groups within the unit, there is a good chance that this will affect the viability of the collective bargaining relationship itself. Community of interest is determined by the consideration of a number of factors and undue significance should not be attached to any one of them. (Adams Furniture Co., [1975] OLRB Rep. June 491)

25. The factors identified in both Usarco, supra and Alma Paints, supra, to assist the Board in determining the community of interest deal in part with matters which lie at the very heart of collective bargaining. For example, if the conditions of employment are substantially different between an individual or group of individuals and another group, their combination in one bargaining unit may create such serious dissonance in collective bargaining as to make the efficient conclusion of a collective agreement without a labour strife less likely. The preamble of the Act indicates that the promotion of harmonious collective bargaining is one of the aims of the Act. The creation of an obviously unharmonious or a difficult to harmonize bargaining unit would not be a fulfillment of the Board's mandate. The factors identified also ensure that there is an underlying unity of interests among the employees in the bargaining unit. Where one group has little work-related contact with another group or where the skills of one group are vastly different from another, there could be significant gaps in each group's understanding of the other's goals in collective bargaining and could create conflict within the bargaining unit. Obviously, no one factor can be identified as all important in every case nor can an absolute grading in importance among the factors be done because each work place can vary so greatly from another. For example, if differences in conditions of employment were ultimately determinative of community of interest, the compensation package could be manipulated to create distinctions where none, relative to collective bargaining, exist.

26. The factor the Board considers most indicative of a community of interest in this case is the similarity in conditions of employment between Mr. Husk and the operators in terms of the compensation package and hours of work. These are the building blocks for any collective agreement and the homogeneity of these conditions is highly persuasive. The Board notes that there was evidence given by Mr. Husk and the respondent about future changes in the method of paying Mr. Husk, i.e., from hourly to a salaried basis. The Board has maintained a policy of refusing to look at predicted or future facts in determining the issue of community of interest; therefore we have not considered potential differences in Mr. Husk's compensation package as compared with those in the production unit. The similarity in the compensation package shows that management considers them in the same league or echelon. The very fact that Mr. Husk punches a time clock underlines this status. The fact that one operator and a few other bargaining members can work 8:30 a.m. to 4:00 p.m. shows that Mr. Husk's hours of work are not dissimilar from the bargaining unit.

27. The organizational structure reflects that Mr. Husk is more closely aligned with production because he reports to the Production Manager, not the Chief Inspector. The inference which can be drawn from this relationship is that the Production Manager requires direct responsibility over Mr. Husk to co-ordinate and effect production. The Chief Inspector plays only a supporting role in this and it would be clearly be inappropriate to have a key person whose work directly impacts on production reporting to an anyone else but the Production Manager. The fact that there is no intermediate supervision comparable to the shift supervisors is more reflective of the size of the respondent's operations than indicative of a difference in community of interest.

28. We do not consider the fact that Mr. Husk does not attend "production" meetings as significant in view of the direct reporting relationship between Mr. Husk and the Production Manager. The "production" meetings could deal with aspects of production with which Mr. Husk would have little familiarity or could be relating to areas of production over which Mr. Husk could have no input or control. Any delays in production caused by irregular or incorrect tapes or any improvements or changes to the preparation of tapes could and probably would be dealt with between the Production Manager and Mr. Husk directly, with or without the Chief Inspector. Therefore Mr. Husk's absence from so-called "production" meetings does not indicate that Mr. Husk has little or no community of interest with the bargaining unit.

29. The location of Mr. Husk's office on the second floor and the fact that his presence on the first floor is less than 5 % do not reverse the impact which the similarities in conditions of employment has either . This is not such a complete physical separation which could lead the Board to conclude that functionally they are remote from one another and would have no understanding of each other's interests in collective bargaining. In any event this contact is no less than quality control technicians who the Board has found to be more appropriately included, in the production unit where conditions of work were otherwise the same. (See Affiliated Medical Products, supra, where quality control technicians worked in a physically separate location and only entered the production area 4 times a day but had the same conditions of employment as production workers; compare with Alma Paints, supra.)

30. The differences in skills and resultant lack of interchange between the operators and Mr. Husk cannot be weighed too heavily because they are paid the same rate and the other parts of the compensation package do not reflect a substantial difference of skill level and responsibility.

31. For all these reasons we have concluded that Mr. Husk has a closer community of interest with the bargaining unit certified than with the office and sales staff excluded. Therefore, the Board will issue a certificate to the applicant for the following unit:

All employees of the respondent in the City of Kanata, save and except foremen, persons above the rank of foreman, office and sales staff, persons regularly employed for not more than 24 hours per week and students employed during the school vacation period.