International Union United Plant Guard Workers of America Local 1962 v. Zaidan Realty Corporation, 1990 CanLII 5639

[1990] OLRB Rep. December 1357

1424-90-R; 1425-90-R International Union United Plant Guard Workers of America Local 1962, Applicant v. Zaidan Realty Corporation, Respondent

BEFORE: Janice Johnston, Vice-Chair, and Board Members G. O. Shamanski and P. V. Grasso.

DECISION OF THE BOARD; December 17, 1990

1. Board Files No. 1424-90-R and 1425-90-R deal with an application for certification. By decision dated October 18, 1990 the Board issued a certificate dated October 5,1990, to the International Union Plant Guard Workers of America Local 1962 ("the union") for all security guards employed by the respondent at West Lodge Ave., Toronto, save and except supervisors and persons above the rank of supervisor. The only remaining issue to be dealt with and the subject matter of this decision, is whether Mr. George Batchelor should be, as asserted by the union, included in the bargaining unit, or as the respondent Zaidan Reality Corporation ("the employer") asserts should be excluded pursuant to section 1(3)(b) of the Labour Relations Act (the Act). Section 1(3)(b) states:

1.-(3) Subject to section 90, for the purposes of this Act, no person shall be deemed to be an employee,

(b) who, in the opinion of the Board, exercises managerial function or is employed in a confidential capacity in matters relating to labour relations.

2. In the Corporation of the City of Thunder Bay, [1981] OLRB Rep. Aug. 1121, the Board summarised the basis for section 1(3)(b) and the general approach of the Board in deciding its applicability to a particular situation. The Board stated:

3. Section 1(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 arms'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 that its members will have "divided loyalties". This purpose has been succinctly stated by the British Columbia Labour Relations Board in Corporation of the District of Burnaby. [1974] 1 CLRBR at page 3:

The explanation for this management exemption is not hard to find. The point of the statute is to foster collective bargaining between employers and unions. True bargaining requires an arm's length relationship between the two sides, each of which is organized in a manner which will best achieve its interests. For the more efficient operation of the enterprise, the employer establishes a hierarchy in which some people at the top have the authority to direct the efforts of those nearer the bottom. To achieve countervailing power to that of the employer, employees organize themselves into unions in which the bargaining power of all is shared and exercised in the way the majority directs. Somewhere in between these competing groups are those in management - on the one hand an employee equally dependent on the enterprise for his livelihood, but on the other hand wielding substantial power over the working life of those employees under him. The British Columbia Legislature, following the path of all other labour legislation in North America, has decided that in the tug of these two competing forces, management must be assigned to the side of the employer.

The rationale for that decision is obvious as far as the employer is concerned. It wants to have the undivided loyalty of its senior people who are responsible for seeing that the work gets done and the terms of the collective agreement are adhered to. Their decisions can have important effects on the economic lives of employees, e.g., individuals who may be disciplined for "cause" or passed over for promotion on the grounds of their "ability". The employer does not want management's identification in the activities of the employees union.

More subtly, but equally as important, the exclusion of management from bargaining units is designed for the protection of employee organizations as well. An historic and still current problem in securing effective representation for employees in the face of employer power is the effort of some employers to sponsor and dominate weak and dependent unions. The logical agent for the effort is management personnel. One way this happens is if members of management use their authority in the work place to interfere with the choice of a representative by their employees. However, the same result could happen quite innocently. A great many members of management are promoted from the ranks of employees. Those with the talents and seniority for that promotion are also the very people who will likely rise in union ranks as well. In the absence of legal controls, the leadership of a union could all be drawn from the senior management with whom they are supposed to be bargaining. If an arm's length relationship between employer and union is to be preserved for the benefit of employees, the law has directed that a person must leave the bargaining unit when he is promoted to a position where he exercises management functions over it.

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. In 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. In 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 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 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.

5. In each instance, the Board seeks to determine the nature and extent of the individual's authority as well as the extent to which that authority is actually exercised. It is not sufficient if an individual has only "paper powers" contained in a job description or a "managerial" job title, if managerial functions are not actually exercised. Even the performance of certain co-ordinating functions may not be determinative. Where numbers of people work at a common enterprise (especially in the white collar - service sector) many persons may be engaged in co-ordinating activities which are largely routine, carried out within a pre-established framework of rules and policies, and subject to real managerial authority which is actually exercised from above. In addition, persons who perform technical functions or exercise craft skills which have been acquired through years of training and experience, will necessarily have a considerable influence over unskilled employees or less experienced "journeymen" or technicians. These experienced personnel will commonly supervise the work of those who are less experienced, and it is part of their normal job function to train and direct such persons and to instill good work habits. Often, it is only the most senior or skilled employees who will fully understand the technical requirements of the job and the tools and material required, and accordingly, it is they who will allocate work between themselves and the other employees in order to accomplish the task in a safe and efficient manner. In such circumstances, it is inevitable that they will have a special place on the "team" and will have a role to play in co-ordinating and directing the work of other employees; but this does not mean that they exercise managerial functions in the sense contemplated by section 1(3)(b) and must therefore be excluded from the ambit of collective bargaining - especially when most of their time is spent performing functions similar to those of other individuals in the bargaining unit and there is little or no evidence of the kind of conflict which section 1(3)(b) is designed to avoid.

[Emphasis added]

3. The Board in this case heard extensive and often contradictory evidence as to the duties and responsibilities of Mr. George Batchelor. We heard evidence as to his role in hiring, firing, setting schedules, approving overtime, authorizing time sheets, and designing workplace "rules" for the other security guards. It was agreed by both parties that Mr. Batchelor performed the work of a security guard, although there was no evidence on this point. Mr. Schwartz counsel for the employer conceded in final argument that 98% of Mr. Batchelor's time was taken up by security guard functions. It was the position of the employer however, that the supervisory duties performed by Mr. Batchelor were significant, and that he should be excluded from the bargaining unit pursuant to section 1(3)(b).

4. Mr. Batchelor was hired by and reported to Mr. Daniel Sigouin. Mr. Sigouin was employed as Director of Security by Mid-National Investments, a management company which employs all the employees who work in buildings owned by Zaidan Reality Corporation. Both Mr. Batchelor and Mr. Sigouin gave testimony as to the responsibilities of Mr. Batchelor and the manner in which he carried them out. While some of their testimony was consistent, in many areas it was not. The respective credibility of these two individuals is an assessment which is crucial to the determination of this matter. The Boad has utilized the standard factors in reaching its conclusions as to whose evidence to accept in determining the facts of this case. Although Mr. Batchelor was present while Mr. Sigouin gave his evidence thereby offording him the opportunity to know the evidence he had to meet, the Board still prefers the evidence of Mr. Batchelor to that of Mr. Sigouin. Mr. Sigouin was evasive, and at times had difficulty remembering evidence not supportive of his position whereas Mr. Batchelor gave his evidence in a straightfoward manner. In areas of conflict therefore, Mr. Batchelor's evidence is accepted by the Board.

5. Mr. Sigouin testified that Mr. Batchelor was involved in the hiring process and part of the decision making with regard to who should be hired. Mr. Batchelor testified that he merely handed out applications and was not involved in the hiring decision. The testimony of Mr. Walter Bugajski and Mr. Amir Abdelrahman, security officers hired while Mr. Batchelor was the Security Supervisor, support the position of Mr. Batchelor. The Board therefore, accepts the evidence of Mr. Batchelor and finds that he did not exercise a "managerial" role with respect to the hiring process.

6. Mr. Sigouin testified that Mr. Batchelor had authority with regard to the scheduling of the other security officers. The evidence of Mr. Batchelor indicated that employees were hired into set shifts and the only time the schedules changed was a result of the actions of Mr. Sigouin. Mr. Sigouin in cross examination admitted that he put out a new schedule in August. He admitted that he simply told Mr. Batchelor what the new schedule would be. It was Mr. Batchelor's testimony that he did not "approve" shift changes by the other security officers. He testified that if a security guard wanted time off it was the responsibility of that guard to arrange coverage of his shift with another guard. The guards would then inform him as to the arrangements. Mr. Sigouin conceded in cross examination that this occurred. We therefore conclude that Mr. Batchelor did not have the authority to set or amend the work schedules of the security officers employed at West Lodge Apartments.

7. Mr. Batchelor initialed the Employee Time Sheets of the other security officers. These time sheets indicated the hours worked by an employee over a two week period. The following example was provided:

WEST LODGE APARTMENTS

EMPLOYEE TIME SHEET

NAME: "CHRIS WHARTON” PAY PERIOD: 07/30/9008/12/90

DATE HOURS TOTAL EXPLANATION

FROM TO

07/30/90 1630 0030 8 07/31/90 1630 0030 8 08/01/90 1630 0030 8 08/02/90 1630 0030 8 08/05/90 1630 0030 8 08/06/90 1630 0030 8 08/07/90 1630 0030 8 08/08/90 1630 0030 8 08/09/90 1630 0030 8 08/12/90 1630 0030 8 80 TOTAL HOURS

On the sample provided Mr. Batchelor's initials appear on the left hand side beside the dates worked by Mr. Wharton. Mr. Batchelor testified that his initials merely verified that an employee had in fact worked the hours indicated. Mr. Sigouin testified that Mr. Batchelor was responsible for verifying the times worked and then submitting the time sheets to Mary Vasic, the Property Manager at West Lodge Apartments, for approval. She approves them and sends them to accounting. We had no evidence presented to us of any occasion in which Mr. Batchelor and a security guard disagreed on the amount of time worked thereby establishing Mr. Batchelor's authority to overrule a security guard and determine the amount that individual would be paid. Merely verifying hours of work to be approved by someone else is not indicative of the kind of managerial function envisioned by 1(3)(b) of the Act. Mary Vasic in approving them for payment exercises a management function.

8. It is our conclusion that Mr. Batchelor did not have the authority to approve overtime for the other security officers. Overtime was paid after 44 hours in accordance with the Employment Standards Act. Thus in a two week schedule overtime was payable after 88 hours of work. The employer published the following document under the letterhead of West Lodge Apartments.

WEST LODGE APARTMENTS

IMPORTANT NOTICE

TO All Security Guards,

Please follow your Regular Schedule and do not change your Schedule unless you have made prior arrangement with Security Director Daniel Sigouin.

Any Security Guards working 84 hours per every 2 weeks must have Daniel Sigouin's permission and over 88 hours per every 2 weeks must have Vicki Pelechaty's Permission.

Failure to comply with this notice could result in your immediate dismissal.

Thank you for your co-operation.

WEST LODGE APARTMENTS

MANAGEMENT

c.c. Vicki Pelechaty Daniel Sigouin

Thus, regardless of whether the employer considered overtime to be worked in excess of 84 hours or 88 hours Mr. Batchelor could not approve it. This document also supports the Board's finding that Mr. Batchelor could not authorize changes to the work schedule.

9. Although Mr. Sigouin indicated that Mr. Batchelor had authority to set in place specific workplace rules, this never occurred. The draft rules prepared jointly by Mr. Batchelor and the other guards were never approved by Mr. Sigouin. Therefore, it is difficult to see how the employer can ascribed this authority to Mr. Batchelor.

10. The most controversial issue facing the Board was the role played by Mr. Batchelor in the discharge of certain employees. He wrote and signed the termination letters which were issued. It was his evidence that the decision to terminate was never his and that the authority to terminate security officers was vested in Mr. Sigouin. He indicated that in all terminations he was simply implementing a decision which had been made by Mr. Sigouin. Mr. Sigouin indicated that Mr. Batchelor had the authority to reach an independent decision and implement it, although he indicated that he could over rule this decision. Vicki Pelechaty the Operations Manager for Mid-National Investments, and Mr. Sigouin's superior, testified that Mr. Sigouin's role at West Lodge Apartments was to set up the staff on the project and to get involved when there were problems. It is our opinion that the firing of an employee would constitute "a problem" therefore it is hard to see how Mr. Sigouin could not be involved. Given our earlier stated conclusions with regard to credibility it is the Board's finding that Mr. Batchelor did not have the authority to make and implement an autonomous decision to discharge a security officer. Although Mr. Batchelor had input into the terminations he did not make the decisions. Mr. Sigouin made the decision and Mr. Batchelor acted as a conduit in advising the relevant employees of the decision.

11. As the Board's jurisprudence indicates it is not the individuals title or what the employer puts in a job description that is decisive in an inquiry as to whether an employee should or should not be a member of the bargaining unit. An individual will only be found not to be an employee for the purposes of the Act if he or she in fact performs duties which are managerial in their nature. It is clear to us that Mr. Batchelor does not perform managerial functions thereby resulting in his exclusion from the bargaining unit. It is obvious that Mr. Batchelor functions as a "lead hand" or "team leader". He coaches and trains new staff, co-ordinates the exchange of shifts, verifies hours worked and himself performs the job duties of a security officer.

12. For all of the above reasons it is our conclusion that Mr. Batchelor does not exercise those types of managerial functions which would result in the conflict of interest which section I (3)(b) of the Act was designed to avoid. He is an employee within the meaning of the Act and ought to be included in the bargaining unit.

13. In the course of hearing this matter the panel made an interim ruling with regard to the admissibility of evidence which counsel for the employer sought to adduce in reply. We determined the evidence to be inadmissible. Counsel for the respondent by letter dated December 5, 1990 has requested with regard to this matter, that the Board supply him in writing with:

(i) the position taken by counsel for Zaidan Reality Corporation;

(ii) The position taken by counsel for the union applicant;

(iii) the ruling and reasons of the Board.

He has also requested that the Board reconsider its decision as to the admissibility of this evidence.

14. Under section 106(1) of the Act the Board has the discretion to reconsider any decision it has made. This section reads as follows:

106.-(1) The Board has exclusive jurisdiction to exercise the powers conferred upon it by or under this Act and to determine all questions of fact or law that arise in any matter before it, and the action or decision of the Board thereon is final and conclusive for all purposes, but nevertheless the Board may at any time, if it considers it advisable to do so, reconsider any decision, order, direction, declaration or ruling made by it and vary or revoke any such decision, order, direction, declaration or ruling.

15. Practice Note No. 17 and the Board's jurisprudence, set out the basis upon which the

Board normally exercizes the discretion contained in section 106(1) (a copy of Practice Note No.

17 is appended to this decision for the benefit of the parties).

16. Counsel for the Respondent in his letter requesting reconsideration appears to be merely reiterating his submissions on the admissibility of the evidence of Mary Vasic. He has not raised any new arguments and seems to be simply re-arguing the issue. This request for reconsideration does not indicate that the Respondent wishes to make representations that he did not have a previous opportunity to raise. Clearly this request for reconsideration does not meet the standards set out in Practice Note No. 17. The request for reconsideration is therefore dismissed.

17. Before we leave this matter, however, we would like to point out that in the request for reconsideration, counsel for the respondent indicates that "it was the union's main witness who first raised the allegation that Mary Vasic was indirectly involved in the circumstances surrounding the terminations of employment of Mr. Tomes & Mr. Bugajski". This statement is inaccurate. The evidence shows clearly that counsel for the applicant in cross-examination of both Mr. Sigouin and Ms. Pelechaty raised the issue of Ms. Vasic's involvement in the termination of security officers. In this case the respondent bore the onus of proving that Mr. Batchelor exercized managerial functions pursuant to section 1(3)(b) of the Act. We agree that Ms. Vasic's role vis a vis Mr. Batchelor is a central issue in these proceedings however, we feel her role should have been clarified in the respondent's case in chief. We also do not agree with counsel's statement that "in this particular organization, the Property Manager, Mary Vasic, had no managerial responsibility for security guards". The evidence does not support this statement.

18. Counsel has also requested written reasons for our ruling on the evidence of Ms. Mary Vasic. At the time of our ruling on the evidence, we provided oral reasons to the parties. We ruled that it was not proper reply evidence and that counsel for the respondent was attempting to split his case. He had been given every opportunity to call this witness in chief and had not done so. We therefore, decline at this point to provide written reasons for our evidentiary ruling. It is neither necessary nor would it be helpful for us to set out the lengthy submissions of both parties or our reasons for our ruling as requested by counsel. Section 17 of the Statutory Powers Procedure Act states:

A tribunal shall give its final decision and order, if any, in any proceedings in writing and shall give reasons in writing therefor if requested by a party.

The ruling in this case was an interim evidentiary ruling and not a "final decision or order" as contemplated by section 17. The Board is not required by statute to give written reasons for an interim decision. (see 3-L Filters Limited, unreported. November 19, 1984).

19. This panel also has before it File No. 1735-90-U which deals with a complaint alleging a violation of section 89 of the Act. Hearings on this matter will continue on January 14, 15 and 16, 1991.

[Practice Note omitted - Editor]