[1984] OLRB Rep. June 1984
1973-83-R International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, (U.A.W.), Applicant, v. Sternson Limited, Respondent, v. Group of Employees, Objectors
BEFORE: G. Gail Brent, Vice-Chairman and Board Members W. H. Wightman and B. L. Armstrong.
APPEARANCES: Clare Meneghini for the applicant; Robert E. Salisbury and T. Bright for the respondent, no one appeared for the group of employees
DECISION OF G. GAIL BRENT, VICE-CHAIRMAN AND BOARD MEMBER B. L. ARMSTRONG; June 6, 1984
The parties agreed on a bargaining unit; however, in its decision dated January 9, 1984 the Board expressed its concern at the use of the phrase "executive secretary" (secretaries) and indicated that the exclusion was agreed to on the understanding that at least one such secretary, the executive secretary to the President, was employed in a confidential capacity in matters relating to labour relations within section l(3)(b) of the Act. It was suggested by that panel that the bargaining unit might be better described by referring to the positions with more particularity. The parties have agreed on certain descriptions to be used and the description of the bargaining unit will be so amended should the positions be excluded.
The respondent is challenging the inclusion of Ildiko Farkas, the executive secretary to the Vice-President of Research and Development, and Rosalyn Wensveen, the executive secretary to the Vice-President of Manufacturing. The applicant has challenged the inclusion of eleven people classified as product managers, traffic manager, credit manager, data processing manager, purchasing agent, and manager laboratory and quality assurance. The parties agreed that Douglas Tosh was an employee included in the bargaining unit.
Executive Secretary to the Vice-President of Research and Development
There was some disagreement in the evidence; however, it is clear that Ms. Farkas does secretarial work for several people in the lab in addition to Mr. Mailvaganam, the Vice-President of Research and Development. Mr. Mailvaganam is in charge of the laboratory and in the course of his duties he hires, fires, lays off, makes decisions regarding salaries, prepares the budget proposal for his department, etc. In the course of her work Ms. Farkas types hiring letters which contain salary offers, she oversees the filling out of the lab attendance book, types budgets which contain proposed salaries for employees as well as their current salaries. The salary information in the budget is confidential and the figures which she sees have not been finalized and may not represent the increase which is eventually given to the employees. The budget proposals are intended solely for management discussions. She also typed the only confidential disciplinary letters which Mr. Mailvaganam has had occasion to write to employees under his jurisdiction, and has access to confidential personnel files kept in his office to the extent that she can remove them from his office in his absence if they are needed by management personnel. She also types employee performance appraisals.
In the Board's opinion Ms. Farkas is employed in a confidential capacity in matters relating to labour relations. She is involved as a regular part of her work for Mr. Mailvaganam with confidential salary proposals, and has access to and prepares documents which become a part of confidential personnel files. Although her work extends beyond labour relations, that is a necessary function of her supervisor being involved in both technical and personnel matters which relate to the laboratory as a whole. Under the circumstances, and keeping in mind the decision in RCA Ltd. [1980] OLRB Rep. Sept. 1316, we consider that she should be excluded.
Executive Secretary to the Vice-President of Manufacturing
Ms. Wensveen also performs secretarial duties for a number of people including the plant manager. In the course of her duties she types the overall budget for the plant which includes proposed salaries as well as current individual salaries. The budget she types is prepared as a confidential management document for discussion purposes and it does not indicate that the individual will necessarily receive the salary proposed. She is the only person who does secretarial work for the plant manager and he and the Vice-President of Manufacturing are the management people who negotiate with the plant bargaining unit. There is evidence that she typed some of the respondent's bargaining proposals for the plant negotiations and that she typed the paper work in the only formal disciplinary action which the respondent has taken since 1980.
It is the view of the Board that Ms. Wensveen should be excluded from the bargaining unit for the same reasons that Ms. Farkas was excluded.
In view of these findings we hereby determine that the bargaining unit should be described as follows:
All office, clerical and technical employees of the respondent in the City of Brantford save and except supervisors, those above the rank of supervisor, the executive secretary to the president, the executive secretary to the vice-president of research and development, the executive secretary to the vice-president of manufacturing, salesmen, comptroller, persons regularly employed for not more than 24 hours per week, students employed during the school vacation period and employees covered by subsisting collective agreements.
- Product Managers
These people do not have any supervisory responsibility nor are they involved in confidential labour relations matters. In Inglis Ltd., [1976] OLRB Rep. June 270 the Board did a thorough analysis of the criteria which should determine whether or not people were managerial for the purposes of section l(3)(b). Basically, the section excludes those who can affect the terms and conditions of employment or the employment relationship of others and also those who make decisions regarding the policy and overall operation of the organization. In relation to the latter, the Board considered that decisions to implement a course of action or effective, active participation in decisions are managerial functions.
The product managers are involved in marketing their own product lines. While the job unavoidably involves technical expertise and acting as a technical resource person, that is a function which occurs once the marketing plan has been determined. If the sole function of the product manager was in customer liaison and technical advice, then we would agree that the situation closely paralleled the one analysed in RCA Limited [1980] OLRB Rep. 1316. Similarly, we agree that the fact of technical or specialized competence does not of itself indicate a managerial position (see, for example, Spar Aerospace Products Ltd. [1979] OLRB Rep. July 700).
The product manager has no staff reporting to him and he is not engaged in any supervisory activity or any activity which would directly affect the employment relationship of any employee. Therefore, if that position is to be regarded as managerial within the meaning of section l(3)(b), it must be because the product manager makes decisions regarding policy and overall operation of the organization. To assess that we must consider the role of the new product development committee and the product manager's role on that committee. As far as we can ascertain the product committee is chaired by the respondent's executive vice-president and its other members are all of the product managers, a representative from the laboratory, the vice-president manufacturing, and Ms. Debbie Hunter, a member of the clerical staff in the marketing department. Ms. Hunter is there to take minutes and to provide information; she does not participate in the committee's decision-making. According to the evidence everyone on the committee has a vote and decisions are made on the basis of majority votes. The product manager may determine that a new product should be developed by the respondent and he may then initiate discussions with the laboratory concerning the possible development of the product. It is the product manager's basic responsibility to develop new products from the initial idea to the finished product. In order to market a product the product manager must get the approval of the new product committee of which he is a member and on which he has an equal vote with everyone else. He is therefore directly involved in making effective decisions as to whether the respondent will produce and market any product. The same group also makes decisions about dropping products.
If a new product were to be instituted the product manager would be an effective part of that decision and would have knowledge of it before anyone in the plant. Similarly, if a product were to be dropped, he would also be an effective part of that decision and would have knowledge of it before anyone in the plant. Decisions about whether to continue to manufacture products or whether to manufacture new products are the sort of decisions which have an undoubted effect on the employment of others. To that extent the position is significantly different than those professional and technical employees whose positions were dealt with in Inglis Ltd., supra, and Spar Aerospace Products Ltd., supra. We therefore conclude that this sort of decision-making is managerial within the meaning of section 1(3)(b) and the product managers should be excluded from the bargaining unit.
Traffic Manager
The traffic manager position is occupied by Mr. Bruce Jacques. It was his evidence that he spends about 60% of his time dealing with outgoing traffic and 40% of his team handling cash sales for customers coming in off the street. He does not have anyone reporting to him and he has no supervisory authority over anyone in the shipping department. He has no part in management meetings other than to provide information on freight rates.
His duties as traffic manager involve arranging with carriers for transportation of the respondent's products from its factory to its customers. He decides which carrier to call based on the best rates available for the carrier which operates in the area where he must ship. There is no doubt that Mr. Jacques exercises some discretion and authority in his work and that he has a great deal of knowledge and experience in his field; however, based on the test set out in Inglis Ltd., supra, we cannot conclude that his position is one which should be excluded from collective bargaining by virtue of section l(3)(b).
Credit Manager
This position is occupied by Mr. Henry Killingbeck. Mr. Killingbeck has no employees reporting to him and he reports to the respondent's controller. Some of Mr. Killingbeck's duties involve (approximately 30 or 40% of his time) assisting the comptroller with accounting duties. As credit manager, he deals with credit checks on customers and makes normal day-to-day decisions on whether to grant credit to customers as well as contacting customers to collect accounts. In case of any doubt he consults with the comptroller. He testified that he believes that he has the authority to accept less in settlement of an account but that he always consults with the comptroller before doing so. He does not prepare a budget for his operation.
In the course of assisting the comptroller he has access to the respondent's financial records but he does not see budget projections or any proposals prepared for collective bargaining. The sort of financial statements which he prepares or sees are those which show the respondent's past performance. He makes no recommendations regarding the way in which the respondent should allocate its resources.
Given all of the evidence before us we cannot conclude that Mr. Killingbeck performs the sort of managerial function which should exclude him from collective bargaining pursuant to section l(3)(b) of the Act. Therefore, we conclude that Mr. Killingbeck is included in the bargaining unit.
Data Processing Manager
Mr. Brian Rushton is the data processing manager. As such he is responsible for the operation of the respondent's computer and is the only person who has a user identification code which enables him to have access to all of the respondent's data stored on the computer, the respondent's financial data, product formulae, costing information, etc. Mr. Rushton does not prepare any information for collective bargaining nor does he take part in negotiation for a collective agreement.
During the course of his employment he has had employees working under him whose work he has directed. He was involved in interviewing and assessing potential data processing employees and in the decision to hire, fire and lay off those data processing employees. He made assessments of employee performance which resulted in wage increases. He keeps confidential information regarding formulae and costs locked in his office and has been instructed to shred the information if it is to be discarded.
There is now no employee reporting to him, the last having been laid off in January, 1983 for economic reasons. That employee was hired after having been interviewed by Mr. Rushton. The applicants for the job replied to an advertisement which gave Mr. Rushton's name as the person to whom replies should be addressed. Mr. Rushton chose the successful candidate who was then given a second interview with Mr. Rushton and the comptroller. Mr. Rushton then took part in the discussion with the comptroller regarding the decision to hire. Mr. Rushton recommended a starting salary for the employee and the recommendation was adopted. As mentioned earlier, he also assessed the employee for the purpose of a salary increase. When the employee was to be laid off, Mr. Rushton was advised first by the comptroller.
Because of his technical expertise and position, part of Mr. Rushton's responsibilities is to make effective recommendations to the respondent regarding hiring, firing, progress, and salary of any employees in data processing. There can be no doubt that the final determination regarding whether to employ or to continue to employ someone in data processing is taken by someone else; however, Mr. Rushton appears to be relied on to effectively determine who will be hired, whether employment should continue and how much to pay the employee. These responsibilities would put him in a clear conflict of interest situation should he be included in the same bargaining unit as that employee. We therefore conclude that Mr. Rushton should be excluded from the bargaining unit pursuant to section l(3)(h).
Purchasing Agent
Mr. Jack Comerford is the respondent's purchasing agent. He is responsible for ensuring that sufficient supplies of raw material are on hand to meet the respondent's production schedule. He is supplied with information regarding what supplies are required to be purchased to allow production to proceed as scheduled. The raw materials to be purchased are specified to the extent that the particular supplier is also designated. Mr. Comerford plays no part in deciding which supplier will be chosen. The laboratory designates the type of product need and the source of it. His area of discretion and decision — making is limited. He has no employees working under him.
Given all of the evidence regarding Mr. Comerford's duties and responsibilities we cannot conclude that his position is managerial when measured against the criteria set out in Inglis Ltd., supra. There appears to be no reason why Mr. Comerford should be excluded from collective bargaining. We therefore conclude that he should be included in the bargaining unit.
Manager Laboratory/Manager Quality Assurance
As of the date of the application this position was held by Mr. Fraser Kerr. It would appear from the evidence that Mr. Kerr's primary responsibility is as quality assurance or quality control manager. In this capacity he has one employee working under him. In relation to the day-to-day quality control of the respondent's product both Mr. Kerr and the employee, a quality control technologist, appear to do virtually the same work involving testing and the power to stop production. Mr. Kerr is responsible for writing the quality control procedures and ensuring that the technologist is aware of them and carries them out correctly. Those procedures are used in all of the respondent's manufacturing operations.
Mr. Kerr testified that he would now be responsible for hiring anyone to work in quality control. He also testified that he has fired employees in the past. He grants time off in lieu of overtime to his technologist and co-ordinates vacation time in quality control. He assesses the performance of the technologist. He testified that he has input regarding wage increases to staff reporting to him. In the course of his duties he travels to the respondent's other plants to review quality and make recommendations regarding production.
Although there is some difficulty assessing the evidence because of the change which has occurred in Mr. Kerr's duties, we cannot ignore his assertions that he always had and still has the power to hire and fire employees working under his control and direction. Further, he appears to be involved in evaluating employees for the purpose of wage increases. Given his evidence regarding his continuity and current authority to hire and fire, we consider that he should not be included in the bargaining unit.
Conclusion
In view of our definition of the bargaining unit excluding the three executive secretaries, and our decision to exclude the six product managers, Mr. Rushton and Mr. Kerr as well as the agreement of the parties that Mr. Tosh is to be included in the bargaining unit, we find that there were twenty-four employees in the bargaining unit at the relevant date. The applicant has filed proof of membership for thirteen of those employees. Since that represents less than fifty-five per cent of the bargaining unit the Board hereby orders, pursuant to section 7(2) of the Act, that a representation vote be held to determine the wishes of the majority of the employees.
There was a petition filed at the time of the original hearing and representatives of the petitioners did appear then and were a party to the agreement to refer the matter to a Board Officer to inquire into the duties of the people we have dealt with in this decision. The petitioners were served with notice of this proceeding but did not appear. In any event the petition would be irrelevant, even if voluntary, because the applicant is not in a position to be certified without a representation vote.
A representation vote will be taken of the employees of the respondent in the bargaining unit. All employees of the respondent in the bargaining unit on the date hereof who do not voluntarily terminate their employment or who are not discharged for cause between the date hereof and the date the vote is taken will be eligible to vote.
Voters will be asked to indicate whether or not they wish to be represented by the applicant in their employment relations with the respondent.
The matter is referred to the Registrar.
DECISION OF BOARD MEMBER W.H. WIGHTMAN;
I would have acceded to a bargaining unit description as suggested by the respondent company.
It will be recalled that when professional nurses began organizing, Head Nurses and other levels up to the level of Director of Nursing Services were included in bargaining units on the basis that they had titles but no real authority over their colleagues. This came about probably because of a propensity for Directors of Nursing Services in many hospitals to take responsibility for the indicia by which the Board judges managerial or supervisory authority out of the hands of Head Nurses and other levels of nursing supervision.
This case represents the reverse side of that coin. It is a low-profile organization of a type which may become increasingly common in industry with the evolution of new technology and which was probably not contemplated when the legislation was being developed.
As an example, although Fraser Kerr carries the title of manager, any "authority" he has over his colleague in quality control is more self-assumed than real. Of the two people working in quality control he may be the more experienced and senior in terms of length of service but it is some considerable time since he has exercised the authority or even effectively recommended on matters such as hiring or firing. Since the company expanded its activities in Canada and adjusted its organizational structure any authority Mr. Kerr has over his co-worker is imagined not real.