United Steelworkers of America v. Aluminart Products Ltd., 1988 CanLII 3660

[1988] OLRB Rep. June 538

0682-87-R United Steelworkers of America, Applicant v. Aluminart Products Ltd., Respondent v. Group of Employees, Objectors

BEFORE: R. A. Furness, Vice-Chair, and Board Members B. L. Armstrong and J. A. Ronson.

APPEARANCES: C. Lace and Brando Paris for the applicant; Cheryl J. Elliot, Jack Dorsey and Sam Caccamo for the respondent; Tavio Giannini and Joe Jamieson for the objectors.

DECISION OF THE BOARD; June 30, 1988

1. In a decision dated July 9, 1987, the Board directed the taking of a representation vote with respect to a defined bargaining unit. In paragraphs nine and ten of that decision, the Board noted as follows:

2. The parties are in disagreement concerning whether five persons are excluded by virtue of the provisions of section 1(3)(b) of the Act. In these circumstances, in the vent that J. Almeida, F. Cisneros, 0. Ford, J. Martin or R. Parrales cast ballots in the representation vote, their ballots are to be segregated pending a further direction by the Board or a resolution of their inclusion in or exclusion from the bargaining unit by the parties.

3. A Board Officer is authorized to inquire into a report back to the Board on the duties and responsibilities of the persons in dispute.

4. The representation vote in this matter was held on July 24, 987. J. Almeida, F. Cisne­ros, 0. Ford, J. Martins and R. Parrales cast segregated ballots. There were two ballots cast which were ruled by the Returning Officer to be spoiled ballots. The report of the Labour Relations Offi­cer was dated November 24, 1987. This matter came on for hearing on February 4, April 14 and April 18, 1988. The purpose of the hearing was stated in the Notice of Hearing, Form 8, as being "[to hear] the representations of the parties regarding the Labour Relations Officer's Report dated November 24, 1987, and all outstanding matters". The Board heard extremely lengthy representa­tions on (i) whether the five persons referred to in this paragraph exercised managerial functions within the meaning of section 1(3)(b) of the Labour Relations Act and (ii) whether or not the bal­lots which had been ruled by the Returning Officer to be spoiled ballots were in fact spoiled bal­lots.

5. The Board will initially consider whether J. Almeida, F. Cisneros, 0. Ford, J. Martins and R. Parrales exercise managerial functions within the meaning of section 1(3)(b) of the Act. The principles to be applied in determining whether these persons exercise managerial functions were not in dispute. The parties, however, differed in the application of the principles to the facts in this matter. The purpose of the Act is to facilitate collective bargaining. There are, of course, lines to be drawn so that persons will not find themselves in positions of conflict. Persons who exer­cise managerial functions within the meaning of section 1(3)(b) would find themselves in a position of conflict if they were included in a bargaining unit. The Board summarized its approach to its dis­cretion under section 1(3)(b) and referred to conflict of interest in Inglis Limited [1976] OLRB Rep. June 270, where it stated at pages 271-272:

6. The jurisprudence of this Board reveals that the discretion of the Board under section 1(3)(b) operates on two levels. It operates firstly to exclude persons who can affect the terms and condi­tions of employment and/or the employment relationship of those in the employ of the organiza­tion, and secondly it operates to exclude those who make decisions with respect to policy and the overall operation of the organization. In theory it can be easily seen that persons who exer­cise either or both types of functions would find themselves in a conflict of interest if included within a bargaining unit of other employees. In practice, however, it is often difficult to distin­guish those who make decisions which would precipitate a conflict of interest from those who implement the decisions of others or who operate at a level of decision making which would not result in a conflict if they were found to be employees for purposes of the Act. The Board in the course of applying section 1(3)(b) has developed certain insights and tests which are helpful in determining the status of the persons who are in dispute in the instant case.

7. It is helpful to note at this point that there are two types of persons whose recommendations can potentially affect the terms and conditions of employment and/or the employment relation­ship. There is the first line supervisor, traditionally referred to as the foreman who directs the daily flow of work and who may or may not be responsible for a number of ancillary matters such as the imposition of discipline, the granting of time off, the scheduling of overtime, the recording of attendance etc. He may even hire and fire. There is also the technical expert whether it be in the area of time study, methods or process engineering whose responsibilities and decision making capabilities can affect not only terms and conditions of employment (i.e. incentives, production bonus) but the employment relationship itself (i.e. lay-off). The Board in assessing the duties and responsibilities of a front line supervisor has been cognizant of the pol­icy and organization restraints which now dilute his decision making authority and has devel­oped the test of "effective recommendations."

"This concept has come to mean that if a person spends most of his time supervising the work of others and makes effective recommendations that materially affect the conditions of employment of those supervised, the Board may conclude that such per­sons are exercising managerial functions. In this sense an effective recommendation is a serious recommendation that the evidence demonstrates is usually acted upon, and therefore a recommendation that materially affects the economic lives of employees." (See McIntyre Porcupine case, supra).

The Board recognizes that although the foreman may not have the final and undisputed author­ity which he once did, his power of effective recommendation with respect to discipline, promo­tion, demotion, time off etc. is a managerial function within the meaning of section 1(3)(b). The foreman who effectively recommends in these areas would find himself in a conflict of interest if placed in a bargaining unit with other employees. It is important to note that it is not the super­visory aspect of his function per se which creates the potential for conflict but the power of effective recommendation as it effects the employment relationship of other employees.

The applicant informed the Board that it based its assertion that these five persons exercised mana­gerial functions within the meaning of section 1(3)(b) on the basis that they could effect the terms and conditions of employment and/or the employment relationship of those in the employ of the respondent and not that they made decisions with respect to policy and the overall operation of the respondent.

4. It was the position of the applicant that these five persons who were classified by the respondent as lead hands were really foremen. In The Corporation of the City of Thunder Bay, [1981] OLRB Rep. Aug. 1121, the Board pointed out some of the problems in applying the princi­ples which have been developed by the Board and also pointed out that each situation has to be determined on the facts before it. At page 1123 the Board stated as follows:

5. 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 organizational 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 the 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 1(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.

6. It was the position of the applicant that unless J. Almeida, F. Cisneros, 0. Ford and R. Parrales were found to exercise managerial functions within the meaning of section 1(3)(b) it would mean that Mr. B. Ratzkai, the plant superintendent, would be the first line of supervision for fifty-three employees in the bargaining unit. The applicant argued that the plant superintendent ought not to function as the front line supervision. Mr. Cisneros is the lead hand in the Receiving Department where there are three employees, Ms. Ford is the lead hand in the Mill and Punch Department where there are fifteen employees, Mr. Parrales is the lead hand in the Framing Department where there are seventeen employees and Mr. Almeida is the lead hand in the Assem­ble & Pack Department where there are eighteen employees. It should also be mentioned that Mr. Martins is the lead hand in the Shipping Department where there are three employees. Mr. Mar­tins reports to the production controller. There is no dispute with respect to the positions of plant superintendent and production controller - both are excluded from the bargaining unit. Although the Board has said in The Corporation of the City of Thunder Bay, supra, that there must be a rational relationship between the number of superiors and subordinates, the Board has also indi­cated that there is no magic in the number of employees who are present in a given situation. In this regard, see Caledon Hydro-Electric Commission, [1979) OLRB Rep. Oct. 924. See also the remarks of the Board in Transit Windsor, [1979) OLRB Rep. Mar. 262.

7. The lead hands do not hire or dismiss employees. They assign work from schedules as opposed to preparing the schedules. They have no input into these weekly schedules and may not amend them. They do not grant leaves of absence and when feasible they obtain permission from superiors before giving an employee permission to take casual time off. They train employees on the equipment the employees are required to operate and they will explain how the work is to be performed. They perform hands on work when required and will, for example, work on a line when an employee goes to the washroom. Within narrow limits, they may reassign employees to other jobs and other crews upon consultation with the plant superintendent. They do not deter­mine the necessity for performing overtime work. However, they do assign the overtime work to employees in their departments. While they do not prepare written assessments of employees, they are asked and express their views to their superiors on how new employees are performing. Some of the lead hands participate in the suspension of employees and give verbal and written warnings. However, with the exception of Mr. Parrales who will be referred to subsequently, they do this after consulting with their superiors. With the exception of Mr. Parrales, the suspensions and warnings appear to be in reality the decisions of the plant superintendent.

8. The lead hands are hourly rated, receive the same benefits as other employees, are paid the same multiple of the hourly rate for overtime work and in general punch a time clock. They do not have their own offices and are engaged in performing substantial but varying amounts of work which is performed by other employees. They do not participate in regularly scheduled manage­ment meetings and have no impact into the overall running of the plant. The applicant made much of the wearing of jackets, the use of a washroom for the lead hands and the allocation of parking spaces. The wearing of different coloured jackets by the plant superintendent, the lead hands and the mechanic appear to be of no more significance than for the purpose of recognition. The so-called washroom for the lead hands is in fact used by other employees. The use of closer and there­fore preferred parking spaces by the lead hands and by management appears to have developed among the employees. In our view, no special significance attaches to the occupation of these park­ing spaces which appears to have developed as a custom.

9. In considering the effective control test in determining whether a person exercises man­agerial functions, the Board has held that persons will not be determined as exercising managerial functions solely by virtue of the fact that they perform supervisory functions exclusively, unless such persons also have a measure of effective control over the employment relationship. In Hydro Electric Commission of The Borough of Etobicoke, [1981] OLRB Rep. Jan. 38, the Board expressed this approach in the following manner at page 46:

10. 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 also has effective control over their employment relationship. (See Falconbridge Nickle Mines Limited, [19761 OLRB Rep. Sept. 379 and McIntyre Porcupine Mines, supra.) Scheduling work for employees and co-ordinating their efforts (something regu­larly done by the foremen in this case) is not itself a managerial function. (See, in addition the cases previously cited, Second Manufacturing, [1975] OLRB Rep. Sept. 658; Thames Steel Con­struction Limited, [1979] OLRB Rep. May 440 and Caledon Hydro-Electric Commission, [1979]

OLRB Rep. Oct. 924.)

26. To determine whether the foremen in this case exercise managerial functions within the meaning of section 1(3)(b) of the Act, the Board will look to whether or not they exercise effec­tive control and authority over the people they supervise as may be seen by an ability, at a mini­mum, to make effective recommendations in areas that materially affect the economic lives of the employees. If they act merely as conduits for management and do not themselves effectively control the economic lives of their employees, they would not be exercising functions with true managerial significance. As well, foremen would not be exercising managerial functions if they merely gather facts relating to their men from which management is then able to make its own decisions as to how to deal with particular situations.

27. The four lead hands other than Mr. Parrales exercise minor supervisory functions over employees within closely defined limits. However, they do not have effective control over the employment relationship of other employees. In matters involving warnings they serve as conduits

for members of management. The Board accordingly, finds that J. Almeida, F. Cisneros, 0. Ford and J. Martins do not exercise managerial functions within the meaning of section 1(3)(b) of the Act and they are therefore included in the bargaining unit.

10. The evidence with respect to R. Parrales differs in one important aspect from the other four lead hands. There were important differences in the evidence of Joanne Orsini, a member of the bargaining unit, and Mr. Parrales. In our opinion, on a fair reading of all the evidence Mr. Par­rales understated his powers with respect to the disciplining of employees. He has been employed by the respondent for fifteen years and has been a lead hand for almost half of that time. It appears that he possesses additional authority in the field of disciplining employees that the other lead hands do not possess. The Board finds that he has access to employees' files and has disciplined and suspended employees without prior consultation with the plant superintendent or any other member of management. In these circumstances, it appears that Mr. Parrales would be in a posi­tion of conflict if he were to be included in the bargaining unit. In addition, Mr. Parrales possesses effective control over the employment relationship of employees in the bargaining unit. Having regard to the foregoing, the Board finds that Mr. Parrales exercises managerial functions within the meaning of section 1(3)(b) of the Act. Accordingly, he is excluded from the bargaining unit.

11. The applicant challenged the timeliness of the objections filed by the respondent with respect to the representation vote. The representation vote had been taken by the Board on July 24, 1987. The last date for filing representations with respect to the representation vote was August 4, 1987. The representations of the objectors in this regard were received by the Board on July 29, 1988, and the representations of the applicant with respect to the representation vote were filed with the Board on September 14, 1987. The respondent informed the Board that Mr. Saxe tele­phoned the Board on August 4 and received assurances that the respondent would receive an extension of one week for the purpose of filing its representations with respect to the representa­tion vote. It was the position of the applicant that it was an astonishing proposition that a tele­phone call could secure the extension which the respondent claimed for the purpose of filing repre­sentations with respect to the representation vote. The applicant argued that the Board ought not to entertain the representations of the respondent in this regard.

12. After considering the representations of the parties, the Board held that the representa­tions of the respondent were timely because they were filed after the timely representations which had been filed by the objectors. The Board also held, in the alternative, that since there had been no prejudice to the applicant, the Board, pursuant to section 82(2) of the Board's Rules of Proce­dure, enlarged the time prescribed by the Rules for the filing of representations by the respondent so as to make the filing of the representations of the respondent timely.

13. There were cast in the representation vote held in this matter, two ballots which were ruled by the Returning Officer to be spoiled ballots.

14. The two ballots which were ruled by the Returning Officer to be spoiled ballots are reproduced as Appendix "A" attached. These two ballots have been marked "A" and "B" for ease of reference and will subsequently be referred to by these letters.

15. The parties, while in no dispute as to the principles to be applied in determining whether ballots "A" and "B" are or are not spoiled, differed in their interpretation of the mean­ings to be given to ballots "A" and "B". It was the position of the applicant that both ballots were properly ruled by the Returning Officer to be spoiled ballots. The respondent and the objectors adopted the position that the two ballots each indicated a wish not to be represented by the appli­cant. In National Starch and Chemical Co. (Canada) Ltd., [1968] OLRB Rep. June 285, the Board set forth the standard to be applied when it stated at page 286:

6... On representation votes conducted by this Board, ballots should be counted where the choice of the voter is clearly indicated on the face of the ballot and the identity of the voter is not disclosed. Where these two tests are satisfied, even though the ballot has not been marked with an "X", there is no reason to discard the ballot as a spoiled ballot.

This decision has been cited with approval and followed on many occasions, see, for example, Success Display Limited, [1971] OLRB Rep. Oct. 636; Lecours Lumber Company Limited, [1972] OLRB Rep. Nov. 982; Fruehauf Trailer Company of Canada Limited, [1974] OLRB Rep. April 254; and Pachino Construction Company Ltd., [1979] OLRB Rep. May 421. The parties agreed with the standard enunciated in National Starch and Chemical Co. (Canada) Ltd. but disagreed on the application of the standard to ballots "A" and "B". None of the parties referred the Board to a case which was directly on point with the markings on ballots "A" and "B".

16. The respondent argued that the marking on ballot "A" indicated a clear "no" against the applicant and should not be counted as a spoiled ballot. The respondent also argued that ballot "B" indicated an "X" as the last marking above the other markings. In the alternative, the respon­dent argued that the marking on ballot "B" in its entirety evinced an intention to answer the ques­tion "no" and therefore should be counted as a vote against the applicant. The objectors argued that the markings on both ballots indicated a "no" in each case. Mr. Jamieson, who was a scruti­neer at the representation vote, pointed out that many languages were spoken in the respondent's plant and that the ballots were printed in the English language. It was Mr. Jamieson's position that this had contributed to the markings on ballots "A" and "B". The weakness in that argument is that it is not known whether English was or was not the first language of the persons who marked ballots "A" and "B". The applicant argued that the marking on ballot "A" was very equivocal, confusing and very difficult to discern the wish of the voter. In the view of the applicant, ballot "A" was correctly ruled by the Returning Officer to be a spoiled ballot. With respect to ballot "B", the applicant argued that the crossed out "X" clearly lacked an indication of intention. The applicant further argued that it was impossible to discern what had happened with the marking on ballot "B" and that ballot "B" had been properly ruled by the Returning Officer as a spoiled bal­lot.

17. The parties did not argue the issue of whether or not ballot "A" and ballot "B" had been marked in such a way so as to reveal the identity of the voter. The issue before the Board is whether the choice of the voters who marked ballot "A" and ballot "B" have been clearly indi­cated. In the case of ballot "A", the respondent relied upon Fruehauf Trailer Company of Canada Limited, supra. The facts in that case, which essentially involved the use of check marks and the word "yes" opposite the choice "YES", are not at all similar or equivalent to the facts in the instant case. The markings on ballot "A", in our opinion, make it impossible to determine clearly and unequivocally the intention of the voter. In printing the word "NO" against the choice "YES", the voter has not made it clear whether he or she intended to indicate support for or against the choice represented by the "YES" option. The Board finds and agrees with the ruling of the Returning Officer that ballot "A" is a spoiled ballot and is not to be counted. With respect to the markings on ballot "B", it is not clear whether the voter marked an "X" and then attempted to obliterate it or whether the voter aimlessly marked the ballot and then added an "X". In our view, the intention of the voter is not clearly and unequivocally indicated on ballot "B". Indeed, it may be argued that the voter intended to spoil ballot "B". The Board finds and agrees with the ruling of the Returning Officer that ballot "B" is a spoiled ballot and is not to be counted.

18. In summary and in the light of the foregoing, the Registrar is directed to cause the seg­regated ballots cast by Juvenile Almeida, Olga Ford, Fulton Cisneros and Jay Martins to be counted in the representation vote. The Board further directs the Registrar to cause the segregated ballot cast by Richard Parrales not to be counted and to report the tabulation of the ballots cast in the representation vote to the Board.

19. The matter is referred to the Registrar.

APPENDIX "A"