National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (CAW-Canada) v. Caterpillar of Canada Ltd.
[1987] OLRB Rep. February 192
2446-86-R; 2447-86-R National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (CAW-Canada), Applicant, v. Caterpillar of Canada Ltd., Respondent, v. Group of Employees, Objectors; National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (CAW-Canada), Applicant, v. Caterpillar of Canada Ltd., Respondent
BEFORE: Judith McCormack, Vice-Chairman, and Board Members R. J. Gallivan and H. Peacock.
DECISION OF THE BOARD; February 12, 1987
1These are two applications for certification in which the Board determined that an interim certificate should issue on December 19, 1986. At that time, the Board was advised that the employer had taken the position that 53 employees should be excluded from the bargaining unit, either by operation of section 1(3)(b) of the Act or because they did not share a community of interest with other employees, or both. This represents approximately one-third of the total number of employees for whom certification was sought. Both parties requested the appointment of a Board Officer to inquire into and report on these matters.
2At that time, the Board expressed its concern to the parties that the exclusions asserted by the respondent were unusually broad in relation to the Board's jurisprudence, and that the normal examination process would be very costly and time-consuming as a result. Rather than appointing a Board Officer at that time to conduct the necessary examinations, the Board arranged for the parties to meet with a Board Officer to attempt to reduce the number of individuals whose exclusion from the bargaining unit was in dispute. (See Caterpillar of Canada Ltd., [1987] OLRB Rep. Jan. 27.) A perusal of the relevant jurisprudence was recommended to the parties.
3The parties met with two Board Officers on January 16, 1987. At that time, they were able to agree that W. H. Twaddle, D. S. Rihal and R. J. Povilonis were excluded from the bargaining unit on the basis that they are professional engineers. They also requested that:
a) the Board appoint a Labour Relations Officer to assist them in the preparation of an agreed statement of facts with respect to the community of interest dispute affecting 29 of the employees which, the parties agreed, would form the basis of the Board's decision with respect to that dispute;
b) the Board appoint a Labour Relations Officer to meet with the parties to inquire into the duties and responsibilities of 22 individuals whose status as employees is in dispute under section 1(3)(b) of the Act, either on the basis that they exercise managerial functions or on the basis that they are employed in a confidential capacity in matters relating to labour relations, or both.
4It should be noted that those employees challenged on the basis that they do not share a community of interest with other employees have also been challenged on the basis of section 1(3)(b) so that depending on the outcome of the community of interest dispute, further proceedings may be necessary with respect to these individuals.
5Though we appreciate that the parties were able to agree on some matters, we feel compelled to reiterate that many of the remaining exclusions sought by the respondent appear, at least at first glance, to be at variance with the Board's jurisprudence. We also emphasize again that the examination process for such a large group of employees will be expensive and time-consuming.
6In our view, this is a case where the filing of certain information and material may assist the parties in further narrowing the issues in dispute and will facilitate the orderly disposition of those matters remaining in dispute. (See Green Gables Manor Incorporated, unreported, Board File No. 2030-85-R, January 28, 1986 for a brief review of the utility of this course of action.) Pursuant to section 102(13) of the Act, the Board therefore directs the respondent to file a statement clarifying and elaborating on those duties and job functions which, in the respondent's submission, warrant a finding that the individuals challenged under section 1(3)(b) of the Act are not "employees" within the meaning of the Act. This statement should include a detailed recital of the duties regularly performed by the disputed individuals, highlighting those which are alleged to form the basis of their exclusion from the bargaining unit and citing concrete instances of those latter functions. In addition, the respondent's statement should include all material facts on which it intends to rely in support of its position. The statement should be forwarded to the Board and to the applicant within 14 days of the receipt of this decision. The applicant will then have a further 14 days to file with the Board a written submission, indicating the extent of its agreement or disagreement with the facts said by the respondent to truly represent the employees' duties and such additional facts as the applicant intends to rely upon in support of its position.
7We further direct the appointment of a Board Officer to assist the parties in the preparation of an agreed statement of facts in the community of interest dispute which will form the basis of the Board's decision in that dispute.