[1991] OLRB Rep. April 565
1868-89-R Amalgamated Transit Union Local 616, Applicant v. Transit Windsor, Respondent v. Group of Employees, Objectors
BEFORE: K. G. O'Neil, Vice-Chair, and Board Members R. W. Pirrie and B. L. Armstrong.
APPEARANCES: Paul Falzone, Ronald Seguin, Norm Morgan, Paul Lauzon and Gary Brown for the applicant; Patrick Milloy, Robert W. Cog/till and Stephen Harrison for the respondent; Kenneth A. McLaughlin as an intervener.
DECISION OF K. G. O'NEIL, VICE-CHAIR AND BOARD MEMBER R. W. PIRRIE: April 23, 1991
This is the continuation of an application for certification. The only question dealt with in this decision is whether or not the persons classified as Operations Supervisors exercise managerial functions and thus should be excluded from the bargaining unit sought by the Union. Four Operations Supervisors were examined, and reply witnesses called, before a Board Officer. A hearing was held to hear submissions from all parties. Written submissions were also received from the union prior to the hearing.
Operations Supervisors are employed by Transit Windsor to monitor the day-to-day operation of its bus service. Ten of them supervise the 167 Operators who drive buses in and around the City of Windsor who have been covered by a collective agreement between the parties for over 50 years. The supervisors themselves do no regular bus driving work. Prior to 1981, the people performing the supervisory functions were called Inspectors. At that time there was also a classification known as Dispatcher. Those two classifications were the subject of an application under section 95 [now section 106(2)] at a time when the Inspectors and Dispatchers were considered to be covered by the Operators' collective agreement for the purpose of wages, benefits and dismissal only. In a decision of the Board, Transit Windsor, [1979] OLRB Rep. March 262, the inspectors were held to be exercising managerial functions, the dispatchers not. In or around 1981, the two classifications were amalgamated into the classification now in dispute, Operations Supervisor. This issue arises in the context of an application for certification for a "tag end" bargaining unit comprised of the Operations Supervisors and various other employees. Management challenges their inclusion in the bargaining unit.
It is common ground that the Operations Supervisors are relied on by management to see that the bus service functions smoothly. This means making sure there are always drivers for the buses and that the buses are running the right routes and on time, to mention only the most obvious and basic facets of the job. The union does not dispute that the Operations Supervisors spend the great majority of their time supervising. The dispute, in its simplest form, is whether they just manage buses, or whether they also manage people to a sufficient degree to warrant exclusion from the bargaining unit. Article 14 of the collective agreement is illustrative of the problem, with its emphasis on service rather than personnel:
Every Operator shall obey the order of the Operations Supervisors, so that the service shall not be in any way held up. Such orders are subject to the provisions of the Occupational Health and safety Act, 1978. If an Operator is entitled to a grievance by reason of such order, he shall not discuss it with the Operations Supervisor giving the order, but shall take it up later with his Grievance Committee.
The Board does not automatically exclude supervisory personnel from collective bargaining. In order to be said to involve the exercise of managerial functions, the supervisory function must also include effective control over the employment relationship of others. The Board looks at the tasks performed by supervisory employees to see, in the context of the particular enterprise involved, if the person exercises control, or the power of effective recommendation, in what have been called "areas of fundamental importance to the economic lives of employees". These include, among others, participation in hiring, firing, discipline of employees, input into general performance evaluation, participation in the grievance procedure and ability to give time off and assign overtime. The Board looks for the authority to make decisions which may impact adversely on an employee's wages, benefits or job security since those are the areas in which the true conflict of interest that the Act seeks to avoid may be found. See, among others Hydro-Electric Commission of the Borough of Etobicoke, [1981] OLRB Rep. January 38 and Oakwood Park Lodge, [1982] OLRB Rep. January 84, upheld 83 C.L.L.C. ¶14,016 (Ont. Div. Ct.). and the cases cited therein.
In decisions such as Oakwood Park Lodge, supra, and Essex Health Association, [1970] OLRB Rep. Nov. 824, the fact that information was passed on by the supervisory person for action by someone else, including disciplinary action, resulted in a finding that the persons involved were not exercising managerial authority. In those cases, a distinction was made between directions and reporting which are part of the exercise of professional skills and those which are truly to be considered managerial. Minor admonitions, information collection and reporting behaviour without recommendation for discipline were not considered to be managerial functions. In Oakwood Park Lodge, supra, the Board pointed out in relevant part:
Persons who exercise skills which have been acquired through years of training or experience will have a special place on the "team" and will have a role to play in coordinating 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... The focus should be upon those functions which have a direct and provable impact (positive or negative) upon the terms and conditions of employment of the alleged subordinate employees.
Otherwise, the Act would be inapplicable to thousands of skilled or professional employees. There was no evidence that the Operations Supervisors have any particular professional or technical qualifications different from the Operators, but they possess skills gained through years of experience in the transit system and they occupy at least a leadership position in the transit system. Giving the Operations Supervisors bargaining rights would not in anyway denigrate their skill, experience or stature, but their inclusion is not an option open to the Board if they exercise management functions.
As noted in a number of decisions, the line between employees and management is not always easy to draw. This is particularly so when authority which has ostensibly been granted has not been exercised at all, or has been exercised infrequently or inconsistently by people in a classification. To state the obvious, either end of the spectrum is easier to identify than the area in between. As the Board said in Mcintyre Porcupine Mines Limited, [1975] OLRB Rep. April 261 at paragraphs 38 and 39 when discussing the concept of "effective control":
It is noteworthy that this test, so not to be overly exclusionary, requires that a person be primarily employed in the direction and supervision of employees and, as well, possess effective control or authority over those employees....
But the "effective control" test has not been an easy concept to apply. When can it be said that one person exercises effective control over another? One who can discipline, discharge~ transfer, promote, or demote another employee surely has such effective control. And with a similar certainty one who only incidentally supervises, instructs, reports, etc. does not. But between these extremes there is a vast penumbral area. In this shadowland a person may exercise only one or two managerial type functions or make recommendations that other decision-makers consider. Thus it is in this area that the Board has most often said it will look at the "totality" of the evidence in making its determination....
We will review the evidence, in a summary form, with these considerations in mind. Argument of the parties will be referred to as necessary.
The Operations Supervisors report to Greg Seguin, the Transportation Coordinator, and on occasion replace him in his absence. Mr. Greg Seguin in turn reports to Robert Goody, the Manager of Operations for the Transportation Department who in turn reports to the General Manager of Transit Windsor, Robert Coghill. Thus, there are three managerial positions above the Operations Supervisors.
The Operations Supervisors are not involved in hiring employees. Their opinion may be sought on the performance of a probationary employee when others are deciding whether or not he or she should be made permanent. However, there was no evidence of the frequency of reliance on such opinions when rendered. Thus the Board cannot find that there was a power of effective recommendation at the stage of making an employee permanent. There was no evidence that an Operations Supervisor had ever fired anyone, or effectively recommended a firing. Mr. McLaughlin testified he had the power to fire by recommendation. However, he had never exercised this power and none of the others examined expressed the same view. Thus, in the two areas of hiring and firing, we conclude that the Operations Supervisors do not exercise managerial functions.
The area of disciplinary powers is crucial to the status of the Operations Supervisors, and will therefore be dealt with in some detail. This area is also one of the most difficult to deal with in this case, for a number of reasons. One of these flows from what was referred to in the evidence as "management style". It is clear that as a result of both the individual approach of some of the Operations Supervisors, and as part of an effort by upper management since the mid 1980's to improve the relationship with the union, there is apt to be more "coaching" and problem solving than actual discipline from the Operations Supervisors towards the Operators. As well, the evidence indicated the Operators are not generally in need of a lot of discipline; for the most part they know their jobs and perform them appropriately. In addition, the Operations Supervisors~ own view of their powers, as represented by the four individuals examined, ranges over a considerable spectrum.
The job description does not mention discipline per se. However under the heading "ON-STREET SUPERVISION & MONITORING OF SERVICE", it gives the following areas of responsibility relevant to the discipline function:
To maintain schedule adherence on all routes...
To ensure adherence by Operators of Transit Windsor rules & regulations.
To provide all appropriate information for updating of operator records (e.g., operator infraction sheet).
The evidence dealt with three categories of discipline: warnings, letters and suspensions. It is not in dispute that the Operations Supervisors regularly tell Operators what they should or should not be doing. Warnings, which are recorded, are given fairly frequently, depending on the individual Operations Supervisor. The parties differ as to whether these documented verbal admonishments given to Operators for "infractions" such as running a bit ahead of schedule or not wearing ties (to give just two examples), constitute discipline or not. The Operations Supervisors are responsible for keeping track of these matters and, according to steps provided in the collective agreement, trigger action that is undeniably disciplinary if they accumulate to the requisite degree. The union takes the position that the Operations Supervisors' role in this area is a conduit function in enforcing predetermined management rules, and should not be considered managerial.
Beginning in the spring of 1989, Kenneth McLaughlin, an Operations Supervisor, was involved in a special project intended to bring more consistency and fairness into the use of discipline by Operations Supervisors. This project, which Mr. McLaughlin described as simply one in a series of attempts to improve the disciplinary process, resulted in the adoption of a "Block System" whereby each Operations Supervisor is responsible for monitoring the work record of a block of Operators. The evidence supports a finding that this was a formalization of the function always performed by the Operations Supervisors. It was intended to promote consistency and accountability, and was not a new departure or additional responsibility. There are penalties, expressed as up to a certain number of days suspension for various thresholds of the most common offences set out in the collective agreement, and the guidelines to the Operations Supervisors issued with the Block System indicate that a number (left blank) of infractions requires a letter of discipline, and a certain number more, a suspension. The flow chart put into evidence indicates that the Operations Supervisor makes the decision and initiates the disciplinary action, while keeping the Transportation Coordinator informed.
Some of the Operations Supervisors had authored letters of discipline and held meetings with employees about them. Mr. McLaughlin believed he had the authority to issue letters of discipline without consultation, but had apparently not issued letters other than the disputed warnings referred to above. Union counsel asked Brian Wilkinson, the Operations Supervisor whose evidence the union asked us to prefer to that of Mr. McLaughlin's, the question, ". . .can you on your own authority take disciplinary action against an employee other than a verbal reprimand?" He replied that through the block system he could. He later gave detailed evidence of a disciplinary letter and the meeting with a union representative which preceded it. Although this incident, referred to as the "Hocevar incident" occurred well after the application was filed, both parties referred to it in argument, and the evidence was not objected to when it went in. It is worth setting out in some detail. Mr. Wilkinson mentioned in advance to his superior that Mr. Hocevar had accumulated a number of infractions. Mr. Seguin agreed that it was time for a meeting and mentioned that it "looked like a suspension." Mr. Wilkinson's response was that it could be and that it would have to be looked into. As a result of conversations with the employee and a union representative, Mr. Wilkinson determined that a suspension was not warranted under the terms of the collective agreement. After the meeting, which was his first, Mr. Wilkinson went upstairs and "happened" to see Mr. Goody in the absence of Greg Seguin. He told Mr. Goody his conclusions as a result of the meeting and Mr. Goody agreed with him. There was no evidence that Mr. Goody considered overruling Mr. Wilkinson. Mr. Wilkinson issued a letter to Mr. Hocevar expressly stating that it constituted the first level of discipline and that further problems could lead to more serious action. The union does not see this as independent disciplinary action on Mr. Wilkinson's part. Rather it says he was playing a fact-finding role and implementing Mr. Seguin's and Mr. Goody's decision.
There were few instances of suspensions by Operations Supervisors in evidence, although each of the four examined had been told that they had the power to suspend. Two of the four had never suspended an Operator. The third said he "sent an Operator home" for suspected drug abuse, but did not appear to see this as a suspension. The fourth testified he had suspended the Union President on the day this application was made and that he had sent another employee home about two years ago for insubordination. Mr. Harrison, now Director of Human Resources, testified that he had issued suspensions during his tenure as an Operations Supervisor.
In the suspension of Ron Seguin, the only suspension about which the Board heard any detail, Mr. McLaughlin relieved Mr. Seguin, the Union President, of duty until he got back to him, for an infraction that was part of an ongoing dispute between the union and the employer. Mr. Seguin had previously been issued a notice of infraction for the same behaviour and was accordingly completely conscious that the next time he did it, he would be suspended. As well, the matter had been the subject of prior discussion with the Operations Supervisors and Greg Seguin and it seems it was common knowledge that the suspension was coming. Before Mr. McLaughlin got back to Ron Seguin, Greg Seguin, Mr. McLaughlin's superior, told Ron Seguin how long the suspension would be. Mr. McLaughlin was not part of this meeting, nor was he informed in advance of what was planned as to the length of the suspension. The following morning, a letter of suspension was given to Mr. Ron Seguin, signed by Mr. McLaughlin. In this situation, the union says that Mr. McLaughlin exercised no independent judgement, but merely acted as a conduit for upper management and did not participate in a way that amounts to effective recommendation. The employer takes the position that this was not a conduit function, and is beyond effective recommendation. It submits it was an independent decision to suspend on Mr. McLaughlin's part made without consultation.
As can be seen from the above, even where discipline is ostensibly meted out by Operations Supervisors, the Union takes the position that they serve only a conduit role from upper management, and cannot be said to be exercising any actual control. The Union describes them as collecting information for decision by their superiors, or implementing tightly controlled guidelines issued from above. As support for this they point to the fact that the Operations Supervisors are not involved in the formal grievance procedure, except occasionally as witnesses, although an aggrieved employee may discuss the matter with an Operations Supervisor in an attempt to resolve a dispute informally. Article 4.03 of the collective agreement provides that "a designated management person, but not the Supervisor who initiated the charge against the grievor" shall conduct Step One of the grievance procedure. Article 4.01 provides that "an employee's complaint shall not be received as a grievance until the first line supervisor has had an opportunity to adjust the complaint." A union representative is permitted at that stage. The evidence is clear that the "first line supervisor is considered to be the Operations Supervisor.
The Operations Supervisors, like the Inspectors before them, have access to the Operators' personnel files, but not their medical records. These personnel files contain the written records of admonishments to the various Operators which the union claims are not disciplinary. Due to this opinion, the union asked the employer in the fall of 1989 to change the heading of these documents from "verbal discipline" to "notice of infraction", which was subsequently done. However, in a step that tends in the opposite direction, copies of all such documents are now sent to the union, because of a provision of the collective agreement which provides that the union will be immediately notified in writing when an employee is dismissed, suspended or otherwise penalized (Article 3.02).
On the question of employee evaluations, the evidence fell far short of establishing that the Operations Supervisors' role had the potential of negative impact on the Operators' employment. The Training and Safety Officer, who the union has agreed is managerial, often consults the Operations Supervisors as a group about employee evaluations, and the Operations Supervisors do them themselves on an irregular basis. However, there was no evidence of reliance on the evaluations for any particular purpose on any regular basis, although the impression was left that the evaluations were part of an employee's file.
The Operations Supervisors have regular meetings at which policy matters, performance of Operators and suggestions for improvements may be discussed. These are not decision making meetings in any managerial sense. The Operations Supervisors are paid a salary rather than on an hourly basis. However, they are also eligible for overtime. Their benefits are also slightly different, apparently better, than the Operators. Nothing turns on these distinctions in working conditions in all the circumstances of this case.
The Operations Supervisors have keys to management areas of the system's facilities, which Operators do not normally have. They are also the only supervision actually at Work after 4:30 p.m. The service runs to some extent around the clock, although the wee hours of the morning are quiet. The Operations Supervisors have the residence phone number of their superior, however. From this the union infers that they are not exercising independent authority at any time.
The Operations Supervisors keep track of the Operators' time by signing the daily schedule sheet. They authorize overtime and dispatch work when the regular schedule cannot be adhered to for reasons of absence, sickness or unexpected occurrences. They can grant time off up to a day. They submit a daily report to the Transportation Coordinator on how the shift went, including information on problems with Operators. The regular scheduling of the Operators is done by a person admitted to be managerial and a representative of the union and allocated through a sign-up procedure on the basis of seniority.
The Operations Supervisors have no budget authority to speak of, although they can and sometimes do make suggestions. Effects of their decisions about certain matters, like the location of bus stops, may also have budgetary implications, but these are subject to the approval of the Board of Directors. The evidence is clear that no managerial authority is exercised in financial matters by the Operations Supervisors. The same is true of policy matters in general; their opinion is sometimes sought or given, but the evidence does not support a true managerial function in this area.
Except in their role "on the street" giving directions and enforcing rules and in the dispatch room rescheduling or giving time off, the Operations Supervisors do not speak officially for management. Thus, they are not present at grievance or Joint Union Management Committee meetings as representatives of management.
The issue of the ratio of management to bargaining unit employees has been raised in a number of cases in the Board's jurisprudence, including Transit Windsor, supra. In that decision the Board held that it could not accept the idea that the large number of Operators (150 at the time) were entirely autonomous, or were "managed" entirely by two or three employees who work in the office. At the time of the examinations before us there were apparently ten Operations Supervisors and approximately 167 Operators.
The employer takes the position that the issue of the status of the Operating Supervisors was settled in the 1979 decision of the Board relating to Inspectors. Since then, the union has never asked that the Operations Supervisors be considered part of the current bargaining unit. Whether looked at afresh, or on the basis that the union has a heavy evidentiary onus because of the history of the position, employer counsel argues that the Operations Supervisors must continue to be excluded. Employer counsel argues that if anything has changed since 1979 it is that the managerial character of the Operations Supervisors has been more entrenched and the system more formalized. Counsel refers to Dominion Stores Limited, [1983] OLRB Rep. Dec. 2006 for the proposition that the status quo has great weight and compelling evidence is needed to lead the Board to the contrary conclusion.
The evidence of changes from the Inspectors' job to the present shows few areas of change, and none of dramatic change. The most obvious of the changes is the merger of the Dispatcher position with the Inspector position and the title change to Operations Supervisor. There was no evidence to warrant a conclusion that the effect of the influx of Dispatcher duties diluted the authority in the Inspector portion of the job to any meaningful extent. There was evidence that the evaluation process changes from time to time although it was unclear when and to what extent. However, there was no evidence that it ever had managerial significance for the Operations Supervisors. Thus, nothing turns on this aspect. The position of Safety and Training officer, acknowledged to be managerial by the union was created approximately two and a half years ago. The people occupying this position now make the decision as to whether there was anything that could have been done by the Operator to prevent an accident. If so, it is a "chargeable" incident with minor negative financial consequences. To the extent this is a removal of managerial authority from the Operations Supervisor it is a relevant consideration but the parties did not address this point. Operations Supervisors maintain a prominent role in investigating accidents and dealing with their effects on service.
The other change potentially relevant to this application is the introduction of the Block System of discipline. This was officially introduced after this application for certification but was "in the works" according to Mr. McLaughlin at the time of a similar application for certification made in June, 1990, which was later withdrawn. The union argues that this system should be viewed in the light of the timing of its formal introduction, as well as its formal initiation after the date of the prior certification application which might suggest some relation to the previous application for certification. In the alternative it argues that the system further dilutes any independent decision making power the Operations Supervisors may ever have had. Further, the union argues that Mr. McLaughlin's role in the area of discipline must be viewed in light of his overt opposition to unionization of the Operations Supervisors and a resultant tendency to make much of the limited powers given by management.
In argument Mr. Milloy emphasized the employer's position that although the Operations Supervisors are not the highest level of management and are not running Transit Windsor, they do exercise managerial authority. There are guidelines imposed on them by persons to whom they report. The system runs because of the way it is set up. It is not a plant situation where the supervision of the foremen themselves is tight. However, it is submitted that these ten individuals, who are a hundred percent supervisory, direct and control the work force. We are asked to conclude that the Operations Supervisors have disciplinary power including warnings and suspensions, access to personnel files, responsibility to monitor certain groups of employees, and direction and control of the work force in their power to authorize overtime and excuse absences. They evaluate employees, meet together in private to discuss employees. They are the highest level of management at Transit Windsor after 4:30 pm. Further he asked the question "does this organization need a front line level of management free from conflict of interest", to which he suggests that the obvious answer is yes. Mr. Milloy asserts that it would be impossible for the Transportation Coordinator and the General Manager to do the functions done by the Operations Supervisors. Two managers would be physically incapable of supervising the hundred and sixty-seven drivers across the whole City of Windsor. Counsel contrasts this situation to that of Breweries Warehousing Co. Ltd., [1981] OLRB Rep. Nov. 1545 where a group of employees who did sixty percent bargaining unit work were still excluded from the bargaining unit. He argues that Operations Supervisors are a hundred percent managerial and should be excluded more easily.
Mr. McLaughlin submitted that a decision that the Operations Supervisors were not managerial would make them non-existent as they would be reduced to the status of clerks. He emphasized his view that the evidence before us showed that the Operations Supervisors are managerial.
On behalf of the union, Mr. Falzone framed the issue differently. He argues that the most important fact is that individuals have expressed the desire to organize themselves collectively and bargain with the employer and that this desire should not lightly be refused. The union acknowledges that there is some conflict of interest between the Operations Supervisors and the Operators. Counsel submits that the more relevant question is what constitutes the appropriate response to that situation. Referring to the Board's 1979 decision excluding the Inspectors, counsel submits that in 1979 the only option was having them in or out of the bargaining unit. With the evolution of the jurisprudence the Board could determine that they should be in their own bargaining unit with their own Local to control their fate in bargaining. We could decide that there is not a community of interest with the rest of the tag end and design a separate bargaining unit for the Operations Supervisors.
Counsel contrasted the current facts with those noted in the Board's 1979 decision. He gives the example of the Board's finding that the Inspectors were self directed in that they design their own shifts. Now management determines their shifts as evidenced by a recent issue over whether the Operations Supervisors would be required to rotate through midnight shifts. It is the union's position that management is taking a greater role in how the Operations Supervisors work. The Board noted at paragraph 10 of that decision that the exercise of independent management authority by the first line supervisors was not only limited, but largely unnecessary. That situation has not changed.
The union also stresses that there is an enormous amount of autonomy in the drivers. Counsel asserts that Operations Supervisors supervise the operations, not the Operators. Their fundamental duty is to make the operation work and to deal with unforeseen events. They take action to keep the system running. It is submitted that that is the thrust of the evidence, not that they exercise managerial authority over the drivers.
The union maintains that the verbal reports that were relied on by management are not disciplinary, but rather written confirmation of directions given. The fact that the Operations Supervisors have never been involved in the first step of the grievance procedure shows that they are not really involved in the discipline process in the union's submission. If they are involved at all it is as witnesses, not as managerial persons answering the grievance. The creation of the block system reduces any individual management discretion they had and is very mechanistic in approach. Counsel submits the Operations Supervisors exercise no power of effective recommendation for hiring, discipline, or termination.
Mr. Milloy replies, for the employer, that the desire of the individuals to bargain collectively is irrelevant to the issue under section 1(3)(b). The Board only has authority to look at their functions and exclude them if they are managerial.
Having considered the submissions of the parties and the evidence in its totality, the Board is of the opinion that the Operations Supervisors exercise managerial functions and should be excluded pursuant to section 1(3)(b). We are persuaded that the combination of the prominence of their supervisory function and their role in the disciplinary process, however it is labelled, create the kind of conflict of interest which the Act requires be avoided. The role of the Operations Supervisors in giving warnings, whether they are technically disciplinary or not in the sense given to that term by the arbitral jurisprudence, is neither minor, nor infrequent. Well before this dispute arose, one of the Operations Supervisors had issued 50 such warnings in a period of approximately 18 months. Another issued one approximately once a month. When and if to "write up" an operator is within the supervisor's discretion. It follows earlier reminders on the supervisors' part. When and if to send an employee home is a judgement for the Operations Supervisor to make on the spot. The rules which the supervisors enforce are well established, and partially agreed to in the collective agreement. However, this does not make the negative effects which flow from their enforcement any less tangible. The Operation Supervisors are too regularly and too centrally involved in this process to warrant the conclusion that they are merely delivering decisions made elsewhere or that it is a function incidental to other duties. It is clear that as discipline gets more serious, the supervisors' consultation with upper management increases, and the Seguin suspension can be construed as a situation in which Mr. McLaughlin did not actually impose the discipline himself. However, we are persuaded that the role in the earlier stages of the rule enforcement process, even without the initiating role for suspensions, warrants the Supervisors' exclusion.
We agree with the union that the legislation should be interpreted purposefully and in a spirit of extending collective bargaining where possible. We have carefully considered this issue in the context of the desires of the employees to bargain collectively and the proposal made of creating a separate bargaining unit for the Operations Supervisors. On the facts of this case we do not see that route as open to us. Here, we are of the view that the Operations Supervisors are not like the foremen in Hydro-Electric Commission of Etobicoke, [1981] OLRB Rep. January 38 whose functions were found not to be truly managerial. The factual differences may be ones of degree, but are crucial. None of the foremen had ever sent anyone home; some had not been told they had the authority. Only one had ever formally reprimanded an employee. They were required to deliver discipline even if they disagreed with it or had not given the warning themselves. In addition, there were five levels of authority between the foremen and the Commission itself and they performed a significant amount of bargaining unit work.
As to the issue of changes since the Board's 1979 decision, we are of the view that nothing has changed in the duties of the supervisors (Inspectors then, Operations Supervisors now) which indicates that the reason for their exclusion has ceased to exist. Then as now, it is clear that on a daily basis it is the supervisors who are the first line of management. They have considerable scope to negatively or positively affect the future of an employee with the company, the crux of the conflict of interest addressed by section 1(3)(b). It is clear from the Board's decision at that time, that the supervisors are at the very lowest level of management, and that the evidence before them, as before us, was by no means unequivocal. However, when the weight of the status quo is added to the balance, we see additional reason to leave the supervisors where they have been for the last twelve years.
DECISION OF BOARD MEMBER BROMLEY L. ARMSTRONG: April 23, 1991
1 have read the decision of the majority of the Board and with respect I cannot agree.
As stated in Oakwood Park Lodge, [1982] OLRB Rep. Jan. 84, at paragraph 7:
The purpose of section 1(3)(b) 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 members of the bargaining unit. Collective bargaining, by its very nature~ requires an arm's length relationship between "two sides" whose interests and objectives are often divergent. Section 1(3)(b) ensures that neither the trade union, nor the employer and its management team, need to be concerned 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 Can. LRBR 1 at page 3:
(the employer) wants to have the undivided loyalty of its senior people who are responsible for seeking that the work gets done and 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 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.
In paragraph 8, the Board stated:
…..In the case of so-called "first line" managerial employees , an important question is the extent to Which they make decision 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 clearly incompatible with participation in trade union activities as an ordinary member of the bargaining unit....
- In Peterborough Civic Hospital Hospital, [1973] OLRB Rep. Mar. 154, the Board examined the question as to whether or not a head nurse was an employee within the meaning of the Act. At paragraph 12, the Board stated:
Also, the head nurse forms a conduit between the general staff on her floor and management, or to put it another way she has a reporting function. In this function she is a liaison between management and other employees; she enables management to "keep its ears to the ground" and in touch with the daily operations and functions of the hospital, and at the same time she is a part of the vehicle for management to convey policies and decisions to other employees. Again, this reporting function should not be confused with the exercise of managerial duties. The duty to manage and the concept of a managerial function requires a corresponding and correlative responsibility. The head nurse in this case does not have that type of responsibility that one envisions as being managerial. She is not akin to the early foreman that we have spoken about, nor does she have duties that are incompatible with placing her in the bargaining unit. There is no conflict between the duty she owes to management and her being a member of the bargaining unit.... For example, if an employee wants time off in excess of one hour the head nurse must consult her supervisor. Sure, if she were management she would have a greater hand in awarding time off. The type of limited responsibility permeates other areas as well and in our view her lack of responsibility indicates that she is not part of the management team.
- The only real issue in this case is the effect of the so called disciplinary powers of the Operations Supervisors. It is not disputed the Operations Supervisors do issue verbal and written warnings to the operators when they commit "infractions". Indeed, part of their job description of the Operations Supervisors gives as their function "to ensure adherence by operators of Transit Windsor rules and regulations". The majority itself acknowledges at paragraph 11 that these admonishments are largely "turn-key":
The Operations Supervisors are responsible for keeping track of these matters and, according to steps provided in the collective agreement trigger action that is undeniably disciplinary if they accumulate to the requisite degree.
- I cannot agree that the administration of the "block system" is sufficient to bring the Operations Supervisors into management. As the majority states as paragraph 12:
There are penalties, expressed as up to a certain number of days suspension for various thresholds of the most common offences set out in the collective agreement, and the guidelines to the Operations Supervisors issued with the Block System indicate that a number (left blank) of infractions requires a letter of discipline, and a certain number, a suspension.
[emphasis added]
- Accordingly, this Board member cannot agree that where individuals have freely determined they wish to bargain collectively with their employer that the Board should deny their legitimate wishes on the basis that management has delegated to them the administration and implementation of "admonishments" which are based on rules, regulations and guidelines. Surely something more is required in order for such low level (the "lowest level" in the words of the majority) front line supervisors to exercise managerial functions.