[1991] OLRB Rep. February 189
0710-89-R Teamsters, Chauffeurs, Warehousemen and Helpers Union, Local No. 880, Applicant v. Ford Motor Company of Canada, Limited, Respondent v. Group of Employees, Objectors
BEFORE: R. 0. MacDowell, Alternate Chair, and Board Members J. A. Ronson and D. A. Patterson.
DECISION OF THE BOARD; February 27, 1991
1The name of the respondent is amended to read: "Ford Motor Company of Canada, Limited".
2This is an application for certification in which the union seeks to represent a bargaining unit consisting of "all non-management supervisors". The respondent replies that these individuals are not "employees" within the meaning of the Labour Relations Act. The respondent relies upon section 1(3)(b) of the Act which reads as follows:
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 functions or is employed in a confidential capacity in matters relating to labour relations.
3In accordance with its usual practice, the Board appointed a Labour Relations Officer to inquire into and report to the Board upon the duties and responsibilities of the disputed individuals. The Officer's "Report" includes a transcript of the evidence of a number of witnesses, together with related exhibits. The transcript runs for hundreds of pages and is supplemented by additional documentary evidence. Not surprisingly, both parties have requested an oral hearing in order to make representations about the legal and factual conclusions that the Board should draw from this material. In a letter to the Board dated December 7, 1990, counsel for the union included this submission:
At the outset we submit that a hearing before the Board in connection with the Report is necessary in the circumstances given the voluminous nature of the transcripts and the significance of the evidentiary subtleties to our argument. The examinations in this matter extended over a considerable period of time and were extensive in scope and duration (as is evident by the length of the transcripts and exhibits). As a result, it will be necessary to offer full argument before the Board on the issue of the conclusions the Board should reach in view of the Report. We anticipate that legal argument will be lengthy and extensive. Further, it will be necessary to make extensive reference to the relevant evidence presented through the examinations and it is our view that such can more fully and effectively be achieved through oral argument before the Board rather than written submissions.
Accordingly, we request a hearing before the Board to make representations in this matter. In light of this request, we have not made reference to the evidence on which we intend to rely except to the extent that such is briefly dealt with in the context of our outline of summary of our position. Similarly we have not attempted to present our legal argument or set out authorities upon which we rely, but rather, have provided herein a summary of the position we intend to argue before the Board.
4We agree with counsel's impression of the evidence and the necessity for a formal hearing; however, we think the circumstances of this case demand more formal written representations than those typically required in simpler cases. In particular, we think it would be useful to the Board to have a detailed summary of the factual conclusions which the parties urge the Board to draw from the evidence, together with references to the specific testimony which, it is said, supports those conclusions. Likewise, we think it would be very useful to have a full statement of legal submissions, including reference to those cases (or passages therefrom) which the parties submit support their legal positions. With the parties' positions thus clearly identified, the Board would be in a better position to consider and respond to their representations at the hearing. For example, the Board will want to hear from the parties about the applicability (or not) of the principles enunciated in such cases as: Chrysler Canada Ltd., [1976] OLRB Rep. Aug. 396, or Etobicoke Hydro Electric Commission, [1981] OLRB Rep. Jan. 38. These are but two of the many cases in which the Board has considered whether the functions of alleged "supervisors" are such that they are not "employees" entitled to engage in collective bargaining under the Labour Relations Act. Obviously, this is a mixed question of fact and law with strong labour relations policy content; moreover, it is not without significance that the situation in Chrysler appears to be at least superficially similar to the one before us in the instant case.
5Having regard to the foregoing, and pursuant to section 102(13) of the Act, the Board hereby directs all parties, including the CAW, intervener, to file with the Board a complete statement of fact and law, together with transcript references supporting its factual submissions, and case references, supporting the legal principles which, it is said, should be applied to those facts. We mention the CAW specifically because it has not as yet taken a position even though it appears to have a collective agreement with the respondent purporting to cover its "employees". (As to the relationship between employment status under the Act and the scope of a collective agreement see: Northern Telecom, [1983] OLRB Rep. Jan. 95.)
6Upon receipt of this material (the Board has already received a factual submission from the respondent), the Board will schedule an oral hearing to consider the parties' further representations.