[1987] OLRB Rep. November 1371
3287-86-R Ontario Public Service Employees Union, Applicant v. Grand River Conservation Authority, Respondent
BEFORE: Owen V. Gray, Vice-Chair, and Board Members R. W. Pirrie and A. Hershkovitz.
DECISION OF THE BOARD; November 12, 1987
This is an application for certification in which the parties are in dispute about whether the first level managerial position should be described as "managers" or "superintendents" in the exclusionary language of the description of the appropriate bargaining unit. The respondent says that all of its "superintendents" exercise managerial functions within the meaning of clause 1(3)(b) of the Labour Relations Act. The applicant says that certain superintendents - those referred to hereafter as "area superintendents" - do not fall within the scope of clause 1(3)(b) of the Act. The dispute made no difference to the applicant union's right to certification. In our decision dated March 25, 1987, we granted the union interim certification for a unit which excludes superintenÂdents, pending resolution of this dispute. We also directed that the parties exchange and file stateÂments of material fact and documents relevant to that dispute.
As we observed in paragraph 6 of our subsequent decision of July 23, 1987:
The material exchanged in accordance with our earlier directions did not result in agreement on all (or even very many) of the facts relevant to the issue whether any or all of the "SuperinÂtendents" in dispute exercised managerial functions within the meaning of clause 1(3)(b) of the Act as of the application date. In view of the amount of testimony which may have to be colÂlected with respect to factual issues still in dispute, the parties agree that a Labour Relations Officer should be appointed to inquire into and report to the Board on the duties and responsiÂbilities of the individuals in dispute as of that date, before we determine whether the word "manager" in the unit description in paragraph 2 hereof will be replaced by "Superintendent" in finalizing the description of the appropriate unit in the full-time application. (It should perhaps be noted that that would not necessarily be the result of a finding that some or all "SuperintenÂdents" were "managers" on the application date. we would still be bound to ask whether "manÂager" is not the better word to use in whatever circumstances may be revealed by the evidence.)
In accordance with the agreement referred to in this passage, we appointed a labour relations offiÂcer
to inquire into and report to the Board on the duties and responsibilities as of the application date of the following individuals in the positions set out beside their names:
[15 names and positions omitted]
We added that
In the course of the officer's inquiry, neither of the parties shall be permitted to adduce evidence of facts or documents not included or specifically referred to in the materials filed with the Board pursuant to the directions set out in our decision of March 25, 1987, having regard to paragraph 9(6) of that decision.
As we understand it, the parties agreed to have the inquiry focus first on 3 persons selected because the parties felt that the Board's opinion about them might be determinative with respect to the others. Subject to the dispute to which reference will be made shortly, the officer's inquiry with respect to the duties and responsibilities of those 3 people is complete. Her report thereon is being prepared, but that preparation is not yet completed.
In those circumstances, counsel for the applicant has made the following submissions by letter dated September 24, 1987:
This matter relates to an application for certification in which the outstanding issue is whether or not persons employed as "Area Superintendents" fall within the bargaining unit or are excluded by virtue of S.1(3)(b) of the Act.
The Board, by letter dated August 4, 1987 appointed [the Labour Relations Officer] "to inquire into and report to the Board on the duties and responsibilities ..." of the Area Superintendents. At the Officer's hearing the union's request to call evidence on the duties and responsibilities of employees engaged as "Interpreters" was rejected in that they were not Area Superintendents and therefore not within the scope of her appointment. Otherwise [the Officer's] examinations have been completed and her report is pending.
The purpose of this letter is to respectfully request a hearing of the Board to receive representaÂtions as to the admissibility of the above evidence as relevant to the Officer's report and to the issue before the Board. As we advised [the Officer] and the Respondent, the union's position may be summarized as follows:
- The employer's organization is a complex one having two types of operations located outside of the head office:
(a) Conservation areas at which the highest ranking employee is the Area Superintendent,
(b) Nature centres at which the highest ranking employee is the Interpreter.
Interpreters are in the bargaining unit. The staffing at the nature centres bears a marked similarity to the staffing at the conservation areas. Similarly the role played by the Interpreters respecting the hiring, wage level, discipline and discharge of staff is not unlike the role exercised by the Area Superintendent. There has never been any question as to the appropriateness of including Interpreters in the bargaining unit.
Management has expressly reserved to itself the right to argue that it requires the exclusion of the highest ranking employee at a location outside of the head office. The evidence respecting the Interpreter serves to place that argument in prospective [sic] and assist the union in its attempt to demonstrate that no legitimate employer interÂests are jeopardized by including in the unit the highest ranking employee in the conÂservation areas. In this sense the "Interpreter" evidence relates directly to the duties and responsibilities of the Area Superintendents and how the Board ought to interÂpret the evidence relating to that category.
It would be appreciated if this matter could be determined following a short hearing so that, if the Board agrees that the evidence is relevant, it can be obtained and placed before the Board along with the balance of the examiner's report.
Counsel for the respondent responded to these submissions by letter dated October 15, 1987. He disavows the argument attributed to the respondent in the third numbered paragraph of the above-quoted letter and argues that the evidence sought to be adduced is "irrelevant to the question of whether Area Superintendents exercise managerial functions pursuant [sic] to section 1(3)(b) of the Act." He asks that the applicant's request be denied without a hearing.
The premise of the applicant's request appears to be that all evidence arguably relevant
to the questions which the Board is to address under clause 1(3)(b) must necessarily be within the scope of the inquiry which the officer has been directed to conduct. That is not necessarily so. The officer's inquiry is concerned with the duties and responsibilities actually exercised by the particÂular persons named. The officer is to collect evidence with respect to what those duties and responÂsibilities were at the relevant time. The duties and responsibilities of their subordinates and superiÂors may come into the picture in order to understand what the duties and responsibilities of the disputed individuals actually were. It is not suggested that the Interpreters are either subordinate or superior to the disputed individuals. It is apparent that the evidence which applicant's counsel seeks to introduce is evidence about what the Interpreters' duties and responsibilities actually were at the relevant time, not additional evidence about what the Area Superintendents' duties and responsibilities actually were at that time. Thus, this evidence is not contextual in the same way that evidence of subordinates and superiors might be.
Counsel for the respondent challenges the proposition that evidence about the duties and responsibilities associated with other arguably borderline positions can have any relevance in a determination under clause 1(3)(b). We think that is open to argument, and we do not propose to settle that argument without giving counsel an oral hearing. What is not open to argument, howÂever, is whether such evidence was within the scope of the inquiry which the officer was directed to undertake. What counsel for the applicant is really asking, therefore, is that the scope of the officer's inquiry be enlarged so as to include the duties and responsibilities of some or all of the Interpreters.
Having regard to the stage of the proceedings at which this request was made, we are of the view that it should not be the subject of a hearing until the officer's report on the 3 individuals examined to date has been completed and circulated.