Ontario Labour Relations Board

[1985] OLRB Rep. May 725

1338-83-R United Food and Commercial Workers International Union, Local 175, Applicant, v. Silverstein's Bakery Limited, Respondent, v. Group of Employees, Objectors

BEFORE: Robert D. Howe, Vice-Chairman, and Board Members W. H. Wightman and W. F. Rutherford.

APPEARANCES: Harold F. Caley and Frank Kelly for the applicant; James Hassell and Sonny Silverstein for the respondent; Orval Bart raw for the objectors.

DECISION OF THE BOARD; May 3, 1985

1. In a decision dated December 7, 1983 (reported in [1983] OLRB Rep. Dec. 2095), another panel of the Board (with Board Member B. L. Armstrong dissenting) wrote in part as follows concerning this application for certification:

1. This is an application for certification in which the parties met with a board officer on the date set for hearing and reached agreement on the following bargaining-unit description:

All employees of the respondent at Toronto save and except supervisors, persons above the rank of supervisor, office and clerical staff, persons regularly employed for not more than 24 hours per week, students employed during the school vacation period and persons covered by subsisting collective agreements.

The parties then agreed to the appointment of a Board officer to receive their evidence on, inter alia, whether certain persons were persons covered by a subsisting collective agreement.

2. when the parties subsequently met with the officer for the purposes of commencing the examination, however, it quickly became apparent that the panics were operating with two different views as to what persons covered by a subsisting collective agreement meant, and what, consequently, was the appropriate scope of relevant evidence before the officer. The matter was accordingly put back on for hearing before the Board, and the submissions of the parties have now been received.

3. The applicant initially applied for a tag-end form of all-employee unit described as follows:

All employees of the respondent in its bakery at 195 MeCaul St., Toronto, save and except office staff, persons covered under existing collective agreements, foremen, persons above the rank of foremen and persons regularly employed for not more than twenty-four hours per week.

The respondent has two collective agreements in force with Bakers' Union Local 181, which is not the present applicant. The first collective agreement covers the respondent's craft baking staff, and dates back several decades. The second agreement arose out of a 1981 application for certification, as a result of which the parties entered into a voluntary-recognition collective agreement covering, in broad terms, production help. That collective agreement has since been renewed, and is described in its scope as:

ARTICLE I - RECOGNITION

1.01. The Employer voluntarily recognizes Local 181 as the bargaining agent for all employees of Silverstein' Bakery Limited, 195 McCaul Street, Toronto, Ontario who are not covered by a classification in the present agreement with Local 181, Toronto, Ontario, save and except foremen, foreladies and drivers, and persons above the rank of foreman and foreladies and office and clerical employees.

The applicant claims that it relied on that scope clause to determine the existing unit, and organized on the basis of what was stated as the only relevant exclusion, being drivers. It is understood that term to mean those persons primarily engaged by the respondent to drive trucks, and who spend the bulk of their time on the road.

4. There are, as it turns out however, eight other persons whom the respondent asserts have, by agreement of itself and Bakers' Local 181, never been covered by the subsisting collective agreements: 6 of these individuals are described by the respondent as shipper/drivers or receiver/drivers and, according to the respondent, have driving included as a regular, though not primary, part of their duties. The other 2 are described by the respondent as shipper and packager respectively, and are said to act as drivers as required from time to time, although admittedly less frequently than the other six.

5. . . . the Board is prepared in the present circumstances to permit the applicant to amend the description of the bargaining unit it seeks. Given the degree of organizing at this work place, however, it will be for the applicant to satisfy the Board that the eight persons in dispute are sufficiently distinct in their community of interest to justify their exclusion from any bargaining unit which the applicant may at this stage be granted. The terms of appointment of the officer are accordingly altered to inquire into and report to the Board on the community of interest which the aforesaid eight persons said to be presently excluded from the subsisting collective agreements share with the group of drivers whom both parties agree are in the unit. The parties will, of course, have full latitude to call any evidence relevant to the issue of community of interest. The officer shall also receive evidence as to whether the eight persons in dispute have in fact, as the respondent states, been treated by the respondent and Local 181 as not covered by the subsisting collective agreements, should the parties be unable to agree on at least that factual issue.

3. The examination process in respect of this application involved 24 meetings over a period of 19 months. (Meetings scheduled by the Board Officer on intermediate dates were adjourned by agreement of the parties.) The Board Officer's Report dated October 30, 1984 consists of over 1,000 pages of evidence. A total of 20 exhibits were also entered during the course of the examination proceedings.

4. In accordance with the procedure agreed upon by counsel for the applicant and counsel for the respondent, both counsel filed written submissions with the Board in February of 1985 and also made oral submissions at a hearing held before the present panel on March 4, 1985. Having carefully considered all of those submissions and the totality of the evidence, we have reached the conclusions set forth in the balance of this decision.

5. The respondent employs a work force of approximately 130 employees, of whom about 50 are employed in production (baking bread, rolls, and other products) and about 40 are employed in packaging and shipping. Approximately 25 of the 50 production employees are covered by the aforementioned first collective agreement, which applies to the respondent's craft baking staff. The remaining 25 are covered by the aforementioned second collective agreement, as are most of the respondent's packagers and shippers. The respondent also employs an office staff of 7 persons and approximately 30 drivers and supervisors.

6. It is clear from the evidence that none of the eight persons referred to in paragraph 4 of the Board's decision of December 7, 1983 (quoted above) has ever been treated as being covered by either of the aforementioned collective agreements. Since they are not involved in performing the craft baking work covered by the first collective agreement, they obviously do not fall within its purview. Two of the eight, namely, Feleppo Serraino and Pasquale Pontrelli, were excluded from the second collective agreement by decision of Dave Silverstein, the President of the respondent, and Sonny Silverstein, the respondent's Vice-President and General Manager, on the basis that they were long-term salaried employees. Mr. Serraino is a bread slicer who has been employed by the respondent for about 26 years. Mr. Pontrelli has been employed by the respondent as a packager and shipper since 1961. Neither of them does any driving whatsoever for the respondent. The remaining six have been treated as being excluded from the second collective agreement on the basis that their job duties include driving. (As noted above, drivers are expressly excluded from that collective agreement.) Domenico Annechiairico spends the vast majority of his working time gathering stale bread at the bakery, moving it across the road by truck to the respondent's warehouse, and unloading it there. He also spends some time parking trucks for the respondent and occasionally refuels them. Nazarali Bhimzi spends approximately the first four hours of his eight hour shift performing clerical functions (preparing load sheets and shipping sheets). He then packages and ships (i.e., gathers various products together to form a delivery load) for about an hour, after which he loads a truck for the night driver (Paul Gallop), drives stale bread to the warehouse, and moves trucks from the loading docks and from the street to a nearby parking lot. When Mr. Gallop is absent, Mr. Bhimzi does the second half of Mr. Gallop's route. (Mr. Gallop is one of the respondent's special drivers, who are paid an hourly rate rather than a commission.) Approximately twice a month he does the final call on Mr. Gallop's route when Mr. Gallop is too exhausted to do it himself. He also occasionally brings Mr. Gallop another truck when Mr. Gallop's truck breaks down while he is on his route. John Nunes spends about 95% of his working hours packaging, shipping, and receiving. He very seldom drives, as his driving is confined to emergency situations, such as when a special driver is running so late that the special driver will be unable to make a required delivery on time and no one else is available to make the delivery other than Mr. Bhimzi.

7. The remaining three persons (referred to in paragraph 4 of the Board's decision of December 7, 1983) are Brian, Jeff, and Mark Silverstein, who are the sons of Sonny Silverstein. Although they primarily work inside the bakery in the packaging and shipping areas, they occasionally fill in for drivers who are away from work due to illness or vacation. They also sometimes make emergency deliveries when other drivers are blocked in traffic or otherwise unavailable. Brian, Jeff, and Mark each have a university degree and are in the process of learning the business with a view to future promotion. Unlike the respondent's driver-salesmen (who receive a percentage of sales from their respective routes as remuneration) and special drivers (who, as indicated above, are paid by the hour), Brian, Jeff, and Mark are paid a salary. They earn substantially more than most of the drivers whom they replace or assist. Indeed, their salaries are almost as high as those received by Sonny Silverstein and the other members of senior management. Moreover, they each receive a Christmas bonus of $3,000, while driver-salesmen and special drivers receive only $200. Unlike the respondent's driver-salesmen and special drivers, Brian, Jeff, and Mark rotate their working hours by taking turns reporting for work at 3:00 a.m. (while the other two begin at 7:00 a.m.). The person who reports at 3:00 a.m. directs and controls the respondent's packaging and shipping activities until a member of senior management arrives at the plant four or five hours later. Brian, Jeff, and Mark each devote a substantial majority of their working time to packaging, shipping, and other inside activities.

8. It is the Board's general practice to include drivers in an all employee production unit in most industries. However, in the dairy, bakery, and laundry industries, the Board has long recognized that outside workers (usually described as driver salesmen or driver salesmen and special delivery drivers) generally have a sufficiently distinct community of interest from other employees to make it appropriate for them to have a separate bargaining unit if they so desire. See, for example, Borden's Dairy Limited, [1947] OLRB Rep. Aug. 1; Rowland & O'Brien Ltd., [1957] OLRB Rep. Jan. 24; Trent Valley Bakeries, [1957] OLRB Rep. March 25; The Walker Bakeries Limited, [1959] OLRB Rep. May 67; Lakeshore Bakery Limited, [1960] OLRB Rep. June 102; Cunningham's Bakery Limited, [1960] OLRB Rep. Nov. 287; Intercity Baking Company Limited, [1961] OLRB Rep. Sept. 193; Producers Dairy Limited, [1976] OLRB Rep. March 435; Wonder Bakeries Limited, [1962] OLRB Rep. June 81; Beaton 's Dairy Products Limited, [1963] OLRB Rep. Apr. 13; Canada Bread Company Limited, [1963] OLRB Rep. Aug. 264; The Walker Bakeries Limited, [1963] OLRB Rep. Dec. 476; Dominion Dairies Limited, [1964] OLRB Rep. July 169; Ellenzweiz Bakery Limited, [1966] OLRB Rep. Feb. 789; Eastwood Food Services Limited, [1968] OLRB Rep. April 3; Wittich 's Bread Limited, [1969] OLRB Rep. Jan. 1019; and Creed's Storage Limited, [1985] OLRB Rep. Feb. 175. In the instant case, the evidence as a whole establishes that the respondent's driver salesmen and special drivers share a community of interest sufficiently distinct from the respondent's other employees, including the aforementioned eight employees, to make it appropriate to place them in a separate bargaining unit. Unlike the respondent's other (non-clerical) employees who are involved primarily in producing, packaging, or shipping, the work performed by the respondent's driver salesmen and special drivers consists primarily of loading and driving trucks, dealing with customers, and collecting accounts. Driver salesmen and special drivers spend most of their working time away from the bakery. As indicated above, each driver salesman is remunerated on the basis of a percentage of sales made on his route. Special drivers receive an hourly rate, but are eligible (if their work performance is satisfactory) for promotion to a position as a driver salesman when such position becomes available. In addition to the driving skills required by their jobs, driver salesmen and special drivers must be able to deal effectively with customers on an ongoing basis. Driver salesmen and special drivers are directed and controlled by the respondent's Sales Manager, John Tantardini. The respondent's other (non-clerical) employees are directed and controlled by Sonny Silverstein and Murray Appleby (Sonny's brother-in-law, who exercises authority similar to that exercised by Sonny) and, to the extent described above, by Brian, Jeff, and Mark Silverstein. Although some of the aforementioned eight employees do occasionally drive for the respondent in the limited circumstances described above, they are primarily inside workers who do not share a community of interest with the respondent's driver salesmen and special drivers. Although finding a unit composed of driver salesmen and special drivers to be appropriate for collective bargaining may result in some further fragmentation of the respondent's work force, we are nevertheless satisfied that it represents an appropriate balancing of the various competing interests in the present case, particularly when it is viewed against the backdrop of the Board's longstanding practice in this industry, which the applicant was entitled to rely upon in its organizing activities.

9. A further matter in dispute between the parties is whether four individuals classified by the respondent as supervisors exercise managerial functions within the meaning of section l(3)(b). In Corporation of the City of Thunder Bay, [1981] OLRB Rep. Aug. 1121, the Board summarized its jurisprudence under that provision as follows:

2. Section l(3)(b) excludes from collective bargaining persons who in the opinion of the Board exercise managerial functions. The purpose of the section is to ensure that persons who are within a bargaining unit do not find themselves faced with a conflict of interest as between their responsibilities and obligations as managerial personnel, and their responsibilities as trade union members or employees in the bargaining unit. Collective bargaining, by its very nature, requires an arm's length relationship between the two sides whose interests and objectives are often divergent. Section l(3)(b) ensures that neither the trade union, nor its members will have divided loyalties.

3. The Labour Relations Act does not contain a definition of the term managerial function, nor are there any specified criteria to guide the Board in reaching its opinion. The task of developing such criteria has fallen to the Board itself, and in recognition of the fact that the exercise of managerial functions can assume different forms in different work settings, the Board has, over the years, evolved various general approaches to assist it in its inquiry. tn the case of so called first line managerial employees, the important question is the extent to which they make decisions which affect the economic lives of their fellow employees thereby raising a potential conflict of interest with them. Thus, the right to hire, fire, promote, demote, grant wage increases or discipline employees are all manifestations of managerial authority, and the exercise of such authority is incompatible with participation in trade union activities as an ordinary member of the bargaining unit. tn the case of more senior managerial personnel whose decision-making may have a less direct or immediate impact on bargaining unit employees, the Board has focused on the degree of independent decision-making authority over important aspects of the employer's business. It is evident that persons making significant executive or business decisions should be considered a part of the management team even though they do not exercise the kind of direct authority over employees which is characteristic of a first line foreman.

4. The line between employee and management is often shaded, and while it is helpful to consider the principles articulated by the Board in previous cases, ultimately the determination must turn on the facts of the particular case. There is no litmus test which is universally applicable and dictates the result in every situation, and in assessing each case, the Board must have due regard to the nature of the industry, the nature of the particular business, and individual employer's organization scheme. There must, of course, be a rational relationship between the number of superiors and subordinates, consultation or input should not be confused with decision-making, and neither technical expertise nor the importance of an employee's function can be automatically equated with managerial status. On the other hand, there may be individuals whose nominal authority appears to be limited, and who have no formal managerial position or title, but who nevertheless make recommendations affecting the economic destiny of their fellow employees which are so frequently forthcoming, and consistently followed by superiors, that it can be said that, in fact, the effective decision is made by the challenged individual. It is this type of recommendation which the Board has characterized as an effective recommendation and the inclusion of these persons in the bargaining unit would raise the very kind of conflict of interest which section l(3)(b) was designed to avoid. Persons making effective recommendations of this kind are regarded as part of the management team, and are excluded from the bargaining unit.

See also Ottawa General Hospital, [1984] OLRB Rep. Sept. 1199; Vagden Mills, [1982] OLRB Rep. June 968; Hydro Electric Commission of The Borough of Etobicoke, [1981] OLRB Rep. Jan. 38; and Chrysler Canada Limited, [1976] OLRB Rep. Aug. 396.

10. Having considered all of the evidence and the submissions of the parties in the light of section l(3)(b) and the principles set forth in the pertinent jurisprudence, we have concluded that of the four persons in question, only Bill Mitchell exercises managerial functions within the meaning of section l(3)(b). Mr. Mitchell trains many new drivers and makes effective recommendations to Mr. Tantardini concerning whether or not those new drivers will be retained or discharged. He also makes effective recommendations to Mr. Tantardini concerning promotion of special drivers to driver salesmen positions. Although he frequently drives to cover routes in the absence of regular drivers, he also spends 25 to 30 days a year accompanying driver salesmen on their routes to ensure that their route books are in shape and that they are properly servicing their calls. The other three supervisors (Leonard Colbear, Jack Liberman, and Mervin Marietta) are essentially route runners who cover various routes on a relatively regular basis when the drivers who usually service those routes have scheduled days off or have absences from work for other reasons. Although they do some training of new drivers and are occasionally asked by Mr. Tantardini how such new drivers are coming along, the evidence does not establish that they make recommendations affecting the continued employment or other vital job interests of those (or any other) employees that are so frequently forthcoming and consistently followed by Mr. Tantardini that it can legitimately be said that, in fact, the effective decisions concerning such matters are made by them. Thus, the evidence does not justify their exclusion from the bargaining unit on the basis of section 1 (3)(b) as they do not make effective recommendations of the kind described above, and do not exercise any of the other traditional manifestations of managerial authority such as hiring, disciplining, discharging, promoting, or demoting employees, or granting them wage increases or time off.

11. For the foregoing reasons, the Board finds that all driver salesmen and special drivers employed by the respondent at and out of its bakery at 195 McCaul Street, Toronto, save and except route supervisor, persons above the rank of route supervisor, and persons regularly employed for not more than twenty-four hours per week, constitute a unit of employees of the respondent appropriate for collective bargaining.

12. For purposes of clarity, the Board notes that, for the reasons set forth above, Domenico Annechiairico, Nazarali Bhimzi, John Nunes, Pasquale Pontrelli, Feleppo Serraino, Brian Silverstein, Jeff Silverstein, Mark Silverstein, and Bill Mitchell are excluded from the bargaining unit, and Leonard Colbear, Jack Liberman, and Mervin Marietta are included in the bargaining unit.

13. Having regard to the list of employees filed by the respondent and the foregoing disposition of the applicant's challenges to that list, the Board finds that there were 31 employees in the bargaining unit at the time the application was made. In support of this application, the applicant filed with the Board in timely fashion documentary evidence of membership in the form of cards, which consist of a combination application for membership and receipt. The applicant filed 21 such cards, 20 of which coincide with the names of employees included in the bargaining unit for purposes of the count. There was also filed in this matter a petition expressing opposition to representation by the applicant. The petition bears the signatures of 19 persons, eight of whom also signed membership cards. In the absence of the petition, the applicant would be in a position to obtain certification without a representation vote in respect of the aforementioned bargaining unit. However, the overlap between persons who signed membership cards in the applicant and the persons who signed the petition is such that the Board would generally exercise its discretion to direct that a representation vote be taken if the Board was satisfied of the voluntariness of the petition. The statements of revocation and reaffirmation (counter-petitions) which have been filed with the Board in respect of five of those eight (overlapping) persons would not change that situation for, even if they are assumed to be voluntary, they do not reduce the overlap to the point where a finding that the petition was voluntary would not generally prompt the Board to exercise its discretion under section 7(2) of the Act to direct the taking of a representation vote.

14. Accordingly, the Registrar is directed to list this matter for hearing for the purpose of considering the voluntariness of the objectors' petition and all other outstanding matters arising out of and incidental to this application.