[1984] OLRB Rep. August 1123
0413-84-M National Association of Broadcast Employees & Technicians, Applicant, v. Pathe Video Inc., Respondent
BEFORE: M. G. Mitchnick, Vice-Chairman, and Board Members J. A. Ronson and P. J. O'Keeffe.
APPEARANCES: Lewis Gottheil and Kenneth Steel for the applicant; M. E. Geiger. Perry Jameson and M. J. Mikelberg for the respondent.
DECISION OF THE BOARD; August 7, 1984
- This matter involves an application under section 106(2) of the Labour Relations Act, requesting the Board to determine whether certain individuals occupying the classification of "supervisor" exercise "managerial functions" within the meaning of section l(3)(b) of the Act. The application was first filed on February 17, 1984, with respect, it would appear, to:
Ken Sadovnick Quality Control Supervisor and
Michelle Conroy Quality Control Supervisor
and amended by the applicant union on June 1, 1984, to add:
Garry Swaffield Lab Supervisor and David Scott Lab Supervisor
as a result of a job-posting for additional supervisors at the end of May.
- Of primary significance in this application is the fact that the parties on November 30, 1983, after discussing with a Labour Relations Officer the duties and responsibilities of the three supervisors employed by the respondent at that time, namely:
Hughes Quality Control Supervisor Hemmings Shipping and Receiving Supervisor and Hartman Lab Supervisor
agreed that all three exercised managerial functions, and specifically excluded their job classifications from the bargaining unit.
The applicant union does not now seek to resile from that agreement, and indeed, the Board would not permit it to (ef. Westmount Hospital, [1980] OLRB Rep. Oct. 1572). Rather, the respondent employer indicates that it has found it necessary to make certain changes in its operations, and an increase in the number of supervisors, and the applicant claims that the result has been that the persons occupying the position of Lab Supervisor and Quality Control supervisor no longer exercise the same duties and responsibilities as the persons formerly excluded. The officer appointment, therefore, will be limited to changes in the duties and responsibilities of the Lab and Quality Control supervisors since the agreement of November 30, 1983 was entered into.
The parties have, however, been locked in a lawful strike since June 18th, the day Messrs. Swaffield and Scott were actually promoted, and the respondent has taken the position that the application could not and should not proceed until the strike has been settled. The respondent argues that no bargaining is taking place, and the applicant's request to proceed is untimely. The respondent further points out that all of its supervisors and other managerial persons are, as one might expect, being used to operate the production facility while the employees are engaging in their strike, and that nothing would be gained by having an officer inquire into the kind of work that supervisors are being presently required to perform.
Section 106(2) provides:
If, in the course of bargaining for a collective agreement or during the period of operation of a collective agreement, a question arises as to whether a person is an employee or as to whether a person is a guard, the question may be referred to the Board and the decision of the Board theron is final and conclusive for all purposes.
The Board finds that, with a lawful strike ongoing, the parties are clearly "in the course of bargaining", as those words are used in section 106(2), and that an application filed even now would be timely. Both parties have agreed to waive the "application" date as the cutoff point for evidence. On the other hand, the Board finds that evidence as to what the individuals in dispute are doing while the bargaining unit is out on strike is of no relevance to the officer's inquiry whatsoever. The inquiry before the Board is concerned with the place which these individuals occupy in the respondent's organization, and the responsibilities which their job calls upon them to exercise in connection with the employees under their supervision. A strike, therefore, curtails the availability of useful evidence to the Board's inquiry to the same extent that a plant shutdown does. This raises certain practical difficulties in connection with the most recent appointments, because there was virtually no time on the job which can be looked at in connection with those two particular individuals. That does not, however, prevent a determination from being made by the Board: it simply has to do soon the basis of the evidence available. Compare Corporation of the City of Barrie, [1983] OLRB Rep. Aug. 1239. Apart from the duties and responsibilities of the job as may have been put forward during the posting process, for example, the Board presumably will hear evidence of the duties performed by other supervisors at the comparable level (particularly since some of those are in dispute) as well as the general evidence of the respondent with respect to the changes which have taken place. It would also be appropriate for the officer to endeavour to arrange his hearing and the taking of evidence in a manner which does not unfairly burden either side to the current economic dispute.
- The matter is referred back to an officer.