Ontario Labour Relations Board
[1984] OLRB Rep. January 35
2166-83-R Teamsters Local Union No. 879, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Applicant, v. Hamilton Automobile Club Respondent, v. Group of Employees, Objectors
BEFORE: N. B. Satterfield, Vice-Chairman and Board Members I. M. Stamp and C. A. Ballentine.
APPEARANCES: Al LeFort for the applicant; C. F. Humphrey and J. Watson for the respondent; Michael Joseph Bernier, Tern Ann Reve, Wanda D. Oliver and Lorna Dunlop for the objectors.
DECISION OF THE BOARD; January 16, 1984
This is an application for certification.
The Board finds that the applicant is a trade union within the meaning of section l(l)(p) of the Labour Relations Act.
The applicant is seeking to be certified to represent the respondent's employees in a bargaining unit which the applicant has described in the following terms:
All employees of the respondent at Hamilton, Ontario, save and except supervisors, those above the rank of supervisor, office and sales staff, persons regularly employed for not more than (24) hours per week and persons covered by subsisting collective agreements. The applicant estimates there to be seven employees coming within that unit. The respondent's reply describes a bargaining unit which it claims to be appropriate for collective bargaining which includes clerical and sales staff and excludes specifically dispatchers, amongst other classifications not here relevant. The significance in the differences between the two descriptions is that the applicant's bargaining unit description would include only the respondent's full-time dispatchers, whereas the unit described by the respondent would include all presently unrepresented, full-time clerical and sales staff, but excluding its full-time dispatchers.
The parties had discussed with a Board Officer the issues raised by the differences in their respective bargaining unit descriptions prior to coming before the Board. At the outset of the hearing, respondent counsel advised the Board that it was challenging the appropriateness of the applicant's bargaining unit description on two grounds. First, the description is one of a unit comprised only of full-time dispatchers employed by the respondent and dispatchers alone would not constitute a unit of employees appropriate for collective bargaining purposes. Second, in any event, the dispatchers exercise managerial function within the meaning of section l(3)(b) of the Labour Relations Act and should be excluded from any bargaining unit which might be found by the Board to be appropriate. The parties were prepared to have the Board authorize an Officer to inquire into those two issues and to put their evidence before the Officer. The Board instead asked to hear the representations of the parties on the issues.
The facts asserted by respondent counsel in his representations may be summarized as follows:
(1) The applicant and respondent are parties presently to two collective agreements covering some of the respondent's Hamilton employees. These are its in-car driver instructors and its tow truck operators. These are two separate bargaining units resulting from two separate certificates issued previously by the Board, although the Board's record shows that the bargaining units were described in the certificates issued in different terms than in the current collective agreements. The bargaining unit comprised of the respondent's Hamilton tow truck operators excludes dispatchers. The Board's decision certifying the applicant to represent the tow truck operators does not state on what basis the dispatchers were excluded from the unit but the Board's record does reveal that the application described a bargaining unit to exclude dispatchers and the respondent did not oppose that aspect of the bargaining unit description. The parties are currently bargaining for renewal of both collective agreements.
(2) The in-car driver instructors are employed in the respondent's driver education department and the tow truck operators are employed in its emergency road service department. The drivers were the first of the respondent's Hamilton employees to be organized by the applicant. These two departments, together with the other departments of the respondent's business ultimately report to its executive vice-president and general manager. He has direct responsibility for the marketing department and has reporting to him as well two vice-presidents. The manager of road services and the manager of driver education report to the same vice-president, as do four other departments. The other vice-president has the respondent's travel agency and the membership services, licensing, accounting and caretaking departments and the printer reporting to him.
(3) The respondent's business is subject to seasonal fluctuations and most significantly so with respect to the emergency road services. Calls from members for emergency road service are received by employees classified as receivers. Depending upon the seasonal work load, there may be from two to twelve receivers on duty on any one shift. They work in the same room as the dispatchers. Member's requests for road service are passed to the dispatchers who then dispatch either one of the club's own tow truck operators or a tow truck from one of the garages with which the respondent contracts for service. Because of the seasonal nature of the work and variable daily demands, all dispatchers receive calls from members for emergency road service much of the time as well as dispatching tow trucks to meet those requests. Because the work force in the road services department fluctuates with the work load, the respondent establishes a schedule for the receivers. In the winter time, if the conditions demand it, virtually all of the respondent's employees can be called upon to supplement the receivers and dispatchers in order to fulfill the work schedule for receiving member's calls.
(4) The respondent occupies a building comprised of three floors. The room in which the dispatchers and the receivers work is located at the basement level. That floor is occupied by the road service and driver education departments, the managers of those departments and their clerical staffs. The main floor is occupied by the respondent's travel agency, road touring services and other membership services. The top floor houses the executive offices and administrative activities of the respondent.
(5) The dispatchers have a number of additional duties besides receiving calls for emergency road services and dispatching trucks to service those calls. They complete daily reports with respect to their dispatching activities. When they are not busy, they assist with the routine clerical work associated with membership services such as assembling materials for general mailings, stuffing envelopes and mailing cheques to members. They receive and are responsible for the cash collected by the tow truck operators for gasoline and minor parts supplied to motorists who have received emergency road services. They are responsible for the respondent's physical premises during the periods when the respondent's business offices are closed. The dispatchers control the issuing of stock carried on the respondent's tow trucks and supplied to its contract garages as well as controlling the access of tow truck operators to the gasoline pumps on the respondent's premises. During the hours when the respondent's business offices are closed, the dispatchers handle information calls from prospective members as well as from members who make use of the respondent's credit card registry. In this latter respect, if a member phones in reporting a loss of his credit cards, the dispatchers record the information on the required forms. They prepare for the signature of the manager of road services cheques to reimburse members who have had to arrange for their emergency road services from a source other than the respondent. Dispatchers decide whether to employ contract garages to serve customers emergency road services calls and whether to authorize towing services additional to those normally provided by the respondent. Decisions to do either results in extra cost to the respondent.
(6) The dispatchers report to the manager of road services, as do the receivers and the fleet supervisor. The dispatchers have supervisory responsibilities with respect to the tow truck operators and the receivers. With respect to the tow truck operators, the dispatchers are authorized to send them home if there is no work or to call extra operators in if help is needed to cover the work load. They assign the tow truck operators to their jobs and are the persons in the best position to know what the operators are doing on a daily basis. Dispatchers are authorized to adjust the operators’ work schedule if an operator needs time off. With respect to the receivers, the dispatchers supervise the work of the receivers who are on shift with them. The dispatchers are required to report to higher authority any deficiencies in the work performance of the tow truck operators and the receivers.
(7) The dispatchers are paid for the hours which they work compared with the other office and sales staff who are paid on a salary. The benefits provided to dispatchers are the same benefits as are provided to office and sales staff and are different from the benefits paid to employees in the two bargaining units.
The applicant did not dispute the facts asserted by respondent counsel, but contends that dispatchers don't exercise managerial function. Their work is not clerical in nature and they are a group separate and apart from the clerical and sales staff. The applicant takes the position that the primary function of dispatchers is to direct the tow truck operators on the road and, therefore, no special significance should be attached to the fact that they report any sub-standard performance of the operators, it being a natural consequence of the function of dispatching operators to their jobs to do so.
The representative of the objectors, who has been employed by the respondent as a full-time dispatcher for 5 1/2 years, agreed that the facts asserted by respondent counsel were accurate overall. He specifically agreed that dispatchers are in charge of the physical security of the premises when the business offices are not open and that there is lot of clerical work associated with the dispatcher's job.
If the Board were to assume, without finding, that dispatchers do not exercise managerial function, the Board is satisfied on the undisputed facts asserted by the respondent that dispatchers share a greater community of interest with office and sales staff than with tow truck operators. Furthermore, there are already two bargaining units: tow truck operators and in-car driver instructors. If the dispatchers were to be carved out of the remaining unrepresented employees, it would mean that there would be a minimum of four full-time bargaining units possible. The respondent employs also a significant number of part-time employees, so there is a potential for additional bargaining units of part-times employees which would be the mirror image of the full-time units. This opportunity for fragmentation of the respondent's Hamilton employees into multiple bargaining units would not be conducive to sound collective bargaining.
Section 6(1) of the Act gives the Board broad discretion to determine bargaining units which are appropriate for collective bargaining. In the circumstances before the Board in this application, the Board is satisfied that a bargaining unit composed solely of dispatchers would not be appropriate for collective bargaining purposes.
The applicant stated unequivocally at the hearing that it was seeking to represent dispatchers only, a statement supported by the application and the documents filed in support of it. It is reasonable to infer from that statement and from the membership documents filed that the applicant confined its organizing campaign to dispatchers. The applicant does not claim that there is any other appropriate bargaining unit which would include dispatchers. Therefore, since the Board has found that a unit comprised only of dispatchers is not appropriate for collective bargaining purposes, this application is dismissed.