[1985] OLRB Rep. August 1237
1742-84-R United Steelworkers of America, Applicant, v. 472275 Ontario Limited c.o.b. as Industrial Welding Products Co., Respondent
BEFORE: Lita-Rose Betcherman, Vice-Chairman, and Board Members F. C. Burnet and B. L. Armstrong.
APPEARANCES: David Nicholson and Ted Jez for the applicant; J. Paul Wearing, Yvonne Capstick and Earl Powell for the respondent.
DECISION OF LITA-ROSE BETCHERMAN, VICE-CHAIRMAN, AND BOARD MEMBER B. L. ARMSTRONG; July 24, 1985
The applicant union has been certified on an interim basis as the bargaining agent for a group of the respondent's employees, drivers and warehousemen, at the central location at Hamilton. The applicant has asked the Board to include in the bargaining unit (a) employees at the respondent's Oakville and St. Catharines branches and (b) two order desk dispatchers at the respondents Hamilton location. The respondent takes the position that the three locations should be considered separately for labour relations purposes and that the dispatchers are managerial personnel and should be excluded from any bargaining unit. At the hearing, the applicant conceded that the order desk dispatcher at Oakville should be excluded as a manager; the respondent conceded that the dispatcher at St. Catharines should be in the unit. Thus two matters must be determined: (a) the geographical scope of the unit, and (b) whether the order desk dispatchers at Hamilton are managers or employees for purposes of the Act.
The respondent operates out of all three locations. Hamilton is the central location with five drivers, one warehouseman, the two dispatchers in question, some office staff, a purchasing agent, assistant purchasing agent, and the owner. At St. Catharines there is one driver, the dispatcher and a salesman. Oakville is staffed by two drivers, and the dispatcher.
Briefly stated, the respondent's operation consists of sales and delivery of product. Although there is some overlap, each of the three locations services its own district. Drivers at the three locations do not exchange routes and each is given instructions from the local order desk. However, all product and supplies are housed at Hamilton and drivers from the two branches make pickups there several times weekly. One of the drivers at Hamilton is a "floater" who is available to the branches for relief duty. Other Hamilton drivers are also transferred temporarily to fill in for absent drivers or in emergencies. There have been a few permanent transfers from Hamilton to Oakville. Payroll and invoicing are handled at the central location in Hamilton.
Geographic Scope
The applicant argues that, notwithstanding the distance between the three locations, a strong community of interest exists among all the employees in that they perform the same type of work under similar conditions, intermingle to some extent, and come under the same centralized administration. The respondent maintains that there is no regular functional interdependence among the employees at the locations in the three different cities to justify making an exception to Board policy.
Generally speaking, it is Board policy to keep a bargaining unit within municipal boundaries. However, it will sanction going beyond the municipality under exceptional circumstances, where, for instance, there is substantial intermingling of employees or where refusal to do so would interfere with the employees' right to organize and bargain collectively. (See Adams Furniture Co. Limited, [1975] OLRB Rep. June 491.) In the instant case, the Oakville branch has three eligible bargaining unit employees and the St. Catharines branch has two. There was no suggestion of these employees being swept into the bargaining unit in question against their will. Clearly, it would be a much more viable situation for the few branch employees to bargain as part of the larger bargaining unit than separately. This in itself need not be conclusive, but the viability factor is buttressed by evidence of interaction between the employees at the branches and those at Hamilton. Branch drivers go to Hamilton regularly to pick up supplies; Hamilton drivers fill in temporarily for branch drivers and make emergency deliveries; there have been transfers between locations. Moreover, the fact that job categories cut across the separate locations creates a community of interest conducive to collective bargaining. Wage rates in the three locations do not appear to be so dissimilar as to create problems. Under these circumstances, the Board is of the view that it is appropriate to include the employees at the Oakville and St. Catharines locations in the bargaining unit with Hamilton employees.
Managerial Exclusions
The next question is whether it is appropriate to include the two Hamilton order desk dispatchers, Earl Powell and Gordon Bailey, in the bargaining unit. The respondent asserts that they exercise managerial functions within the meaning of section 1 (3)(b) of the Act and should be excluded from the unit.
In Etobicoke Hydro Electric Commission, [1981] OLRB Rep. Jan. 38, the Board stated:
Exercising supervisory functions does not by itself exclude a person from engaging in collective bargaining. Even when a person is primarily engaged in the supervision of others he is not managerial unless he has effective control over their employment relationship.
The rationale is that bargaining unit personnel should not be placed in a conflict of interest position caused by divided loyalties to management and to the unit.
The performance of the usual supervisory duties of a dispatcher does not necessarily result in a managerial exclusion. (See Essex County Automobile Club, [1985] OLRB Rep. Feb. 256.) In that case the Board found it appropriate to put the dispatchers in the drivers' unit. However, there was no indication that the dispatchers were managerial and such was not claimed.
The real determinant is whether the dispatcher affects the employment relationship of the people supervised.
Both Mr. Powell and Mr. Bailey were examined at the inquiry conducted by the Board Officer and their testimony appears in the Officer's report. Since the determining issue is their effect upon the employment relationship of the drivers and warehousemen, the Board will restrict itself to this aspect of the evidence in the report.
Both men testified without contradiction that they had been told by the owner that their jobs were equal. Yet their testimony as to managerial duties differed radically. According to Mr. Powell, he had the power to hire, fire, give time off, assign overtime, and discipline. On the other hand, Mr. Bailey, who had been a dispatcher for five months prior to the application for certification, stated that he had no power to hire or fire or give time off; he did say that he had authorized overtime and would reprimand a driver if his work was not satisfactory. Much of Mr. Powell's description of his "managerial" functions was speculative since he had been employed by the respondent for only a little more than a month before the application for certification. This was particularly evident in his responses regarding the granting of time off. He did, however, assert that he had hired and fired a full-time driver. While acknowledging that Mr. Powell interviewed job applicants, Mr. Bailey stated that the actual hiring and firing was done by the owner. Apart from the one disputed instance, neither dispatcher had, to date, issued other discipline. Neither knew how much or in what manner the drivers were paid.
The Officer's report includes the testimony of a driver and a driver/warehouseman from the Hamilton location. Despite a perception that Mr. Powell was the dominant one of the two dispatchers, these employees stated that they take instructions equally from Mr. Bailey. It should be noted that the drivers have regular runs and that incoming orders are assigned as a matter of course to the driver in that area. Overtime also arises out of the individual driver's schedule. Thus, rather than exercising discretion in the assignment of work, the dispatchers appear to be co-ordinators.
Neither of the drivers gave any indication that his employment relationship was affected by either Mr. Powell or Mr. Bailey. One driver testified that any discipline he received came from the owner and that his vacation was scheduled by the woman in charge of the office. The impression gained from reading their testimony is that the direction they receive from the dispatchers does not involve personnel matters.
Mr. Powell and Mr. Bailey agree that they do the same job. This was corroborated by the drivers, one of whom stated that he had not noticed any difference in the functions they performed. However, the dispatchers' evidence was contradictory as to whether the job involved managerial functions. Because of Mr. Bailey's five months incumbency compared with Mr. Powell's one month, the Board finds the former's evidence more reflective of the actual job. The gist of Mr. Bailey's evidence is that the dispatchers do not exercise real discipline over the employees and have no impact on their earnings. Their lack of effective control over the drivers' employment relationship is borne out by the drivers themselves. The difference in job performance appears to lie in the differing personalities and motivation of the two men.
With respect to Mr. Powell's claim that he hired and fired a driver on his own authority, the Board is satisfied that his input to the hiring was in the nature of an appraisal and that the dismissal of the same employee was a foregone conclusion in light of established company policy.
The Board finds that neither Mr. Powell nor Mr. Bailey operates at a decision-making level that would result in a conflict of interest if they were in the bargaining unit. It should be noted that, unlike the situation at the Oakville branch, there are persons other than the dispatchers who perform managerial functions at the Hamilton location. It is also worth noting that the dispatcher at the St. Catharines' branch is included in the bargaining unit by agreement of the parties.
On the evidence before it, the Board determines that Mr. Powell and Mr. Bailey do not exercise managerial functions within the meaning of the Act and that they should not be excluded from the bargaining unit.
The composition of the bargaining unit is thus finally resolved. The Board accordingly finds that all employees of the respondent at Hamilton, Oakville and St. Catharines, save and except foremen, persons above the rank of foreman, office and sales staff, persons regularly employed for not more than twenty-four hours per week and students employed during the school vacation period, constitute a unit of employees of the respondent appropriate for collective bargaining.
Having regard to the agreement of the parties and for purposes of clarity, the Board declares that Ron Jackman, order desk/dispatcher ("foreman"), Oakville, is not included in the bargaining unit described above.
A formal certificate will now issue to the applicant.
DECISION OF BOARD MEMBER F. C. BURNET;
I dissent from the decision of my colleagues both in respect to the geographic scope of the bargaining unit and the inclusion of two persons who have supervisory responsibilities.
With respect to the first issue, the geographic scope of the unit, it is established Board policy not to include in a unit, employees who are located at other locations beyond the municipal boundary. Exceptions to this policy have involved two basic considerations.
First, is the concept of the right of self organization which would lead the Board to include a single employee from outside the municipality who is a union member and would otherwise be ineligible for union representation, as a consequence of the rule that a viable bargaining unit must comprise more than one person. This is not the situation in the subject case, as both the St. Catherines and Oakville operations of the company comprise two or more employees and are thus potentially viable units in their own right. Indeed, their capability of self organization was not disputed and on this ground alone I would not sweep the employees of the two outlying operations into the unit. Having established viability, the belief of the majority that "it would be a much more (emphasis added) viable situation for the few branch employees to bargain as part of the larger bargaining unit than separately" is not an appropriate or compelling basis for deviating from long established policy, even if true.
The second and additional prerequisite to the crossing of municipal boundaries is existence of a substantial community of employee interest. In this case, the Oakville and St. Catharines operations were separately established to serve a widespread market area. While there was a sensible (and commonplace) centralization in Hamilton of payroll, purchasing and similar ancillary functions, the two branches stand essentially on their own in terms of markets served, staffing and day-to-day management and operations. The uncontradicted evidence of four drivers clearly established that transfer of staff was a rarity, being confined to occasional holiday relief or sickness absenteeism and is not always practised even in those circumstances. When it is, it is practised as a convenience to management and not as an integral obligation or requirement of the business.
Similarly, there are occasional trips to Hamilton to pick up supplies and there are the obvious similarities in job function and wage rates that one finds in virtually identical but separate operations. These may provide a surface indication of community of interest, but they are not essential ingredients. Those essentials are the degree to which employees, by right, policy or function move through the same lines of progression, the degree to which they are functionally interrelated and the extent to which they may, by right or policy, bump or displace each other, interact on relief schedules and generally impact on each other in work functions or job security rights and privileges. Community of interest for purposes of the Act refers to community of employee interest in their essential work functions and should not be confused by incidental or peripheral arrangements whose basis is more management convenience or the furthermore of organizational efficiency objectives.
The weight of evidence clearly indicates a minimal degree of community of employee interest in this situation. No more really than that the functions are similar as between areas and that all employees are dependent on the viability of the whole company, as in any multi-unit operation. I would accordingly declare the three units to be separately certifiable units under the Act and exclude the two branches from the current application.
On the issue of foremen, the measurement of the degree to which they exercise or are charged with exercising disciplinary and control functions is obscured by two characteristics of this operation. First, the employees concerned (for the most part drivers), are on the road and on their own, except for brief periods at the beginning and end of their shifts when they receive assignments, load stock and unload returns. Their work is well defined, the pace is dictated by the number and location of deliveries and their contacts or relationship with customers are largely self-governed. Thus, their proximity to and interaction with the foremen is minimal, as compared to a typical factory or assembly line situation. Second, the group is small and the jobs relatively unskilled, comprising mainly the physical skill to drive the truck safely and the need to learn the route.
There are accordingly few occasions for the actual exercise of supervisory direction and authority of the kind we are here concerned with. This does not mean that it does not exist but simply that its existence is not measured by the number or frequency of incidents. Even in a typical factory situation, a foreman in a small, structured work unit often operates for months or years without the necessity of firing or imposing anything but the most cursory of disciplinary control - yet he is still a foreman.
Moreover it should not be necessary that a foreman demonstrate an unfettered personal authority to fire or severely discipline an employee, without consultation or restraint, in order to prove that he is indeed a foreman. That is an arbitrary concept more typical of the last century and not a proper conceptual basis for Board policy or decision. Given the complexity of law, corporate policy, collective agreements and the seriousness of disrupting employees' pension and job rights, a prudent foreman is generally encouraged, and frequently required in progressive industries, to seek advice from other appropriate management sources before making a final decision or even recommendation - but such prudence or concern does not detract from his responsibility to direct, control and discipline employees to the extent necessary to do the job.
Against these observations, the balance of evidence clearly confirms the foreman status of the two individuals at issue. One had in fact discharged an employee and both were firmly in accord that they could and had reprimanded employees. There is, I think, nothing "speculative" about Powell's perception of his job, because of his short tenure. On the contrary, the very shortness of his tenure in relation to his clear conception of his responsibilities and authority and his actual exercise of that authority in so short a time confirm that he is a foreman. The record is less sharp concerning Bailey; there is no doubt that he is less aggressive in the role but that is a matter of personal style and not job difference. There is no doubt that both would be held accountable for failure to correct misdemeanours or for issuing faulty directions adversely affecting the operation. I am reinforced in my view of the weight of evidence and argument by considering the consequences of including the disputed persons in the unit - If these men are not foremen, then there is no foremen or other supervisor in a major and critical segment of the business - except for the President of the company, since there are no intervening levels of supervision. Inclusion of the two foremen in the unit is clearly organizationally untenable. It can only result in a strained, and artificial reorganization of duties and responsibilities that is inefficient and unnecessary to the accomplishment of the Act's purposes as well as seriously and adversely detrimental to the position and welfare of the two incumbents. I would exclude the two foremen from the unit.