[1984] OLRB Rep. May 786
2493-83-R International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, (U.A.W.), Applicant, v. X-Pert Metal Finishing Limited, Respondent
BEFORE: Robert D. Howe, Acting Chairman, and Board Members W. G. Donnelly and F. S. Cooke.
DECISION OF THE BOARD; May 29, 1984
- In a decision dated February 17, 1984 in respect of this application for certification, the Board noted that the parties had reached agreement on all matters in dispute between them, with the exception of the issue of whether the classification "chemical control supervisor" should be included in or excluded from the bargaining unit. Paragraph 4 of that decision reads:
The parties are in partial agreement with respect to description of the bargaining unit. The language upon which they have agreed is:
all employees of the respondent in the City of Burlington, Ontario, save and except foremen, persons above the rank of foreman, office and sales staff.
The respondent contends that the classification of "chemical control supervisor" should also be excluded from the bargaining unit by virtue of section l(3)(b) of the Act. The applicant opposes that requested exclusion.
In view of that dispute, the Board appointed Board Officer S. Nicholson "to inquire into and report to the Board on the duties and responsibilities of S. Stevenson, classified by the respondent as chemical control supervisor."
- At the beginning of her report dated March 30, 1984, Ms. Nicholson apprised the Board of the following information:
Prior to the commencement of the examination, the respondent indicated that it would not be challenging the witnesses' job as being managerial, but rather that the job and the working conditions of an incumbent in that job had no community of interest with the production employees. The witness was therefore examined on the basis of community of interest.
The applicant was represented at the examination by Clare Meneghini and Jack Pawson. Since neither of them raised any objection when it was announced that the respondent intended to substitute "community of interest" as the basis for the proposed exclusion, the examination proceeded on that revised basis. Mr. Meneghini was given full opportunity to examine Ms. Stevenson (following her examination by Ms. Nicholson) and to re-examine Ms. Stevenson (following her examination by the respondent). He availed himself of those opportunities by asking a number of questions pertinent to the issue of community of interest.
- In a letter dated April 6, 1984, Lorna J. Moses, the applicant's Canadian Co-ordinator of Organizing wrote to the Board as follows:
I am responding on behalf of the Applicant in the above noted case [File No. 2493-83-R] which is before the Board.
In this written submission, I wish to comment on the preamble, page 1, of the document as submitted by S. Nicholson dated March 30, 1984.
The final paragraph on page 1 states: "Prior to the commencement of the examination, the Respondent indicated that it would not be challenging the witnesses' job as being managerial, but rather that the working conditions of an incumbent in that job had no community of interest with the production employees."
The area that I question is the Respondent's change of argument from that of exclusion for managerial purposes to that of the basis of community of interest. Perhaps if this had been made known to the Applicant at the outset when the Application for Certification was before the Board on February 17, 1984, all parties concerned could have been spared time, effort and expense.
All correspondence should be directed to the address appearing on this letterhead to the attention of Ms. Lorna I. Moses.
The Applicant does not request a hearing before the Board in connection with this case. The Board should make its finding based on the report submitted by S. Nicholson, Board Officer.
In some circumstances the Board has refused to permit a party to alter the basis upon which it seeks a bargaining unit exclusion. In Weight Loss Inc., [1980] OLRB Rep. Dec. 1841, the employer, at the initial certification hearing and at the Board Officer's examination meetings, sought to exclude Assistant Director Sarah Bethune on the ground that she exercised managerial functions or was employed in a confidential capacity in matters relating to labour relations, within the meaning of section 1 (3)(b) of the Labour Relations Act. However, after the Officer's report had been issued to the parties, the employer sought to obtain the requested exclusion not only on that basis, but also on the basis that the individual in question lacked a community of interest with the other employees. In holding that the employer could not alter its grounds for the requested exclusion at that stage in the proceedings, the Board wrote, in part, as follows:
Having regard to the submissions of the parties with respect to this matter, the Board is of the view that in the circumstances of this case, Ms. Bethune must be included in the bargaining unit unless the Board is of the opinion on the basis of the Labour Relations Officer's report that she exercises managerial functions or is employed in a confidential capacity in matters relating to labour relations. The delineation of the scope of the issues to be inquired into and reported on by a Board Officer is not merely a technical matter. If that process is to be viable, it is essential that the Officer and the parties appearing before the Officer know with certainty in advance of the examination the precise scope of the issues which are to be dealt with; otherwise, it would not be possible for the representatives of the respective parties to properly prepare for and participate in the examination process. Thus, principles of fairness and natural justice require that each party know a reasonable time prior to the examination the nature and scope of the issue or issues to which the examination will pertain. A number of the questions asked by a Board Officer in an examination in which section l(3)(b) is in issue are different than those asked in an examination in which the issue is that of community of interest. Furthermore, the questions asked and additional evidence introduced by the respective parties could also differ materially depending upon which of those matters was in issue. Indeed, the respective questions put to Ms. Bethune by the representative of the applicant and the representative of the respondent following her initial examination by the Labour Relations Officer confirm that the representatives of both parties understood the issue with respect to the inclusion or exclusion of Ms. Bethune to be confined to section 1(3)(b).
There is no indication in the present case that the respondent provided the applicant with any indication prior to the date of the examination that it intended to change the basis for the requested exclusion of Ms. Stevenson from a section 1 (3)(b) issue to a community of interest issue. Alteration of the grounds for exclusion at that time could in some instances take the other party by surprise and preclude it from participating in the examination process in a meaningful and effective manner. In such circumstances, the Board might well not permit an alteration of that type. However, in the instant case, the applicant's representatives raised no objection when it was announced that the respondent intended to substitute "community of interest" as the basis for the proposed exclusion of the classification in question, and the examination proceeded on that revised basis. Moreover, although Ms. Moses criticizes the respondent's change of argument in her letter of April 6, 1984, and suggests, not unreasonably, that all parties might have been spared time, effort and expense if the applicant had made its position known earlier in the proceedings, she also expresses the view that the Board "should make its finding based on the report submitted by S. Nicholson". Under the circumstances, the Board is prepared to determine the matter of Ms. Stevenson's inclusion or exclusion on the basis of community of interest.
Ms. Stevenson, who described herself as a "lab technologist", takes samples from cleaning and plating tanks in the plant and chemically analyzes them in the respondent's laboratory, where she spends most of her working day. Approximately 25 per cent of her time is devoted to various clerical functions including filling out "add sheets" and other records. She reports directly to the respondent's Vice-President, Brian Calver, who trained her to do the job in question and is the only other person in the employ of the respondent capable of performing it. Unlike the respondent's production employees who punch a time clock, work regular hours on shifts scheduled by the respondent, and earn an hourly rate, Ms. Stevenson does not punch in or out, is permitted to set her own hours, and is paid a salary. Although she was working from 7:15 a.m. to 3:15 p.m. at the time of the application, it was her un-contradicted evidence that in previous years she has chosen to work a split shift in order to accommodate her responsibilities as a parent. It was also her uncontradicted evidence that in the summer-time she often elects to work from 6:00 a.m. till 2:00 p.m. She spends more time in the front office than she does in the plant and has very little interaction with bargaining unit employees. If she encounters problems with plant personnel in relation to chemical additions, she speaks with Mr. Calver or a foreman.
Having carefully reviewed and considered the Officer's report, we have concluded that, on balance, Ms. Stevenson is a technical employee who has a greater community of interest with the respondent's office and sales staff than with its production employees in the bargaining unit.
Having regard to the foregoing and to the agreement of the parties, the Board, pursuant to section 6(1) of the Act, finds that all employees of the respondent in the City of Burlington, Ontario, save and except foremen, persons above the rank of foreman, and office, technical and sales staff, constitute a unit of employees of the respondent appropriate for collective bargaining.
For the purpose of clarity, the Board notes that Chemical Control Supervisor Sandy Stevenson is a technical employee excluded from the bargaining unit.
A certificate will issue to the applicant for the bargaining unit described above.