[1993] OLRB Rep. January 1
0710-89-R International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Local 880, Applicant v. Ford Motor Company of Canada Limited, Respondent v. Group of Employees, Objectors
BEFORE:
R. O MacDowell, Alternate Chair, and Board Members J. A. Ronson and D. A. Patterson.
APPEARANCES:
ynthia D. Watson and Frank Luce for the applicant union; Daniel J. Shields for the respondent employer; no one appearing for the objecting employees.
DECISION OF THE BOARD; January 4, 1993
I
Introduction: What this case is about
This is an application for certification in which the union seeks to represent a bargaining unit composed exclusively of salaried "supervisors". The union has enrolled a number of these supervisors into membership, and seeks certification as their bargaining agent.
The company replies that these supervisors exercise "managerial functions" within the meaning of section 1(3)(b) of the Labour Relations Act, and therefore are not "employees" within the meaning of the Act. Section 1(3)(b) reads as follows:
1.-(3) Subject to section 92, 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.
The company submits that because these supervisors are not "employees" under the Act, they cannot engage in the collective bargaining process regulated by the Act, nor can the union be certified to represent them.
The union concedes that if the supervisors are indeed "managerial", this application must be dismissed. However, the union maintains that the supervisors do not really exercise "managerial" functions. In the union's submission, their co-ordinating and supervisory duties do not involve any significant authority over their fellow employees, and they are, at most, a conduit of information to the "real managerial authority", which rests at higher levels of the company's organization.
In accordance with its usual practice, the Board appointed an Officer to inquire into the duties and responsibilities of the disputed individuals. That enquiry consumed some fourteen days, and resulted in an eight-volume transcript, comprising almost 2,000 pages of testimony and related exhibits. This material was later supplemented by written representations, in which the parties outlined the conclusions that they urged the Board to reach on the basis of the evidence in the transcript, and put before the Board the decisions said to be relevant to the issues in dispute. The parties elaborated those submissions at a hearing before the Board held for that purpose.
We should note that although the Canadian Autoworkers Union ("CAW") was given notice of these proceedings, the CAW did not appear or participate. The CAW represents the 600-700 hourly-rated employees whom the disputed individuals "supervise". These hourly-rated employees are covered by a collective agreement, from which the "supervisors" are excluded.
The Legal Setting: What section 1(3)(b) is for
Before turning to the facts of this case, it may be useful to sketch in the legal and policy framework within which the parties' rights must be determined. The purpose of section 1(3)(b) has been summarized in The Corporation of the City of Thunder Bay, [1981]OLRB Rep. Aug. 1121, at para. 2:
5ection 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 arm's length relationship between the "two sides" whose interests and objectives are often divergent. Section 1(3)(b) ensures that neither the trade union, nor 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.
The division and potential collision of interests that was discussed by the B.C. Board in District of Burnaby is also a reality of the collective bargaining environment in Ontario, and as in B.C., the Ontario statute tries to balance these competing concerns, so that promotion of the rights of one group of workers will not unreasonably circumscribe the rights of others. The statute provides that "every person is free to join a trade union of the person's own choice and to participate in its lawful activities" (section 3 of the Act), and declares that "it is in the public interest of the Province of Ontario to further harmonious relations between employers and employees by encouraging the practice and procedure of collective bargaining between employers and trade unions as the freely designated representatives of employees" [emphasis added]. However, section 1(3)(b) of the Act excludes from collective bargaining activity, persons who are members of management. And it does that in order to protect the institutional interests of both employers and unions.
It is easy to understand why an employer would want "its" management excluded from union involvement. From a purely economic point of view, an employer is unlikely to welcome the additional pressure which collective action by its "foremen" might involve. Unions press demands which increase the cost of doing business, and a "union" of "foremen" is unlikely to be much different.
However, quite apart from these economic considerations, the unionization of persons whom the employer considers its "first line management" would significantly affect the way in which the business is run, because "managerial" employees have qualitatively different obligations to the company, and a different role vis a vis their fellow workers. The employer's "foremen" are its eyes and ears on the shop floor. They are the persons whom the employer expects to promote its interests, even if that duty conflicts with the interests of other employees or the union that represents those employees.
Managers are expected to manage: to monitor and correct employee performance, to encourage employee productivity, and to ensure that employees adhere to workplace rules. Management controls the system of rewards and penalties by which the workplace is regulated, and may resort to those rewards or penalties to maintain employee cooperation. The employer needs to know that those administering that system will do so with the objectives of the enterprise in mind. There is no room for divided loyalties either at the bargaining table or in the workplace.
From a union's perspective, there is also a value in clearly identifying and separating the two "sides". In a system of institutionalized collective bargaining and latent conflict, the union is always poised to challenge the exercise of management authority; and the first level of management is often the point of contact between two potentially conflicting interest groups. The union needs to know where the line is drawn, and benefits from a clear delineation of loyalties and responsibilities. For example, a union is obliged to fairly represent all employees for whom it is the bargaining agent, and might find itself in difficulty if the "grievance" of one of its members arose from the actions of others, acting on behalf of the employer. From a collective bargaining point of view, "managers" - even first level "foremen" - are the agents of the employer, who are required in the ordinary course of their duties to direct, reward or penalize employees for whom the union is bargaining agent. They are on the employer's side of the bargaining table.
This potential conflict of interest is not a theoretical abstraction. Managerial personnel really are different from their fellow workers, and that is well recognized by both "ordinary employees" and the unions that represent them. In the instant case, for example, the CAW collective agreement provides that if a worker has a grievance s/he "may present it in writing to his/her supervisor or superintendent on forms to be supplied by the company..." and the "supervisor or superintendent shall deal with the grievance and shall deliver his/her decision in writing as soon as possible...". Similarly, if a "supervisor" is involved in an interview or investigation that may give rise to discipline, the hourly-rated employee is entitled to have separate trade union representation during such discussion. The "supervisors" mentioned in this clause are the persons whom the applicant union seeks to organize.
We will have more to say about the existing collective bargaining relationship below, because the reality may be somewhat different from what is suggested by this contractual framework. At this stage, we note only that the CAW collective agreement recognizes that "supervisors" are different: they are persons, representing the company, whose interests may conflict with those of hourly-rated employees.
In addition to the obvious examples of conflicting interests on the shop floor, there are broader, systemic concerns which require the exclusion of "management" from participation in trade union activities. For if management personnel were treated like ordinary employees, and were free to organize or promote particular trade unions, the freedom of these other workers could be undermined and the independence of their trade unions could be jeopardized. And this problem may not be resolved merely, as here, by segregating the "supervisors" into their own bargaining unit.
Unless the alleged "managerial" personnel really are like other workers, and really do not have any significant authority over their fellow employees, nothing prevents them from using their influence against those workers or their union. If "managers" - even lower-level ones - were part of the collective bargaining mix, it is difficult to see how one could avoid the problems to which Board Chairman Weiler referred in the concluding paragraphs of the passage from District of Burnaby. Once someone is declared to be an "employee" under the Act, s/he has the same rights as other "employees" - including the right to promote or oppose a trade union and to try to influence other "employees" in that regard. As the Board observed during the hearing: if "foremen" had the same rights as other employees, what would prevent them, acting in their own interest, from trying to persuade those other workers to join, support or discard a particular union? In the instant case, for example, if the "supervisors" are "employees" like the persons they supervise, would they not be entitled to try to persuade their fellow "employees" to oust the CAW or join the applicant? If they are merely "employees" like the others, could they not form their own union, and "encourage" their subordinates to join? During an organizing campaign, would they not be entitled to mobilize "employee" opposition to the applicant union? Section 1 (3)(b) not only defines who is excluded from the collective bargaining process; it also identifies who is prevented from using "managerial" authority to interfere with the collective bargaining rights of others.
This is not an academic concern either. What distinguishes "management" from ordinary "employees" is the power that managers exercise over the economic security of their fellow workers - a power which, in the Board's experience, "foremen" have sometimes used to interfere with the right of those workers to engage in collective bargaining through a trade union of their
choice. The rewards and penalties which are the instruments of management control can easily be applied to influence employees to join or reject a particular trade union. The fact is (and the cases demonstrate), that foremen occasionally do promote opposition to unions at the organizing stage, do sponsor the termination of an incumbent union's bargaining rights, and do influence employees in favour of unions or associations more congenial to the employer's interests. That is why section 1(3)(b) is but one of a constellation of statutory provisions designed to segregate "employees" from "management", and ensure that the employees and their unions are entirely independent of managerial influence.
- This is not to say that lower levels of management do not have concerns that are similar to those of rank and file employees, or that they would not benefit from the enhanced bargaining power that collective bargaining would bring. On the contrary. Managerial employees might well benefit from a protected right to collective action, or from the institutionalized checks and balances that collective bargaining provides. Collective bargaining might well be a useful tool for managerial employees, just as it is for ordinary workers. However, the Legislature has determined that the process is better served if those obliged to act on behalf of the employer are completely segregated from the union institutions and the collective bargaining mechanism that employees use to promote their interests.
II
The Board's Approach to the Application of Section 1(3)(b), in general, and in this case
Section 1(3)(b) has been in the statute in its present form since 1957 and, as we have already noted, its purpose is relatively easy to articulate. The difficulty is, and always has been, to give practical content to the words "managerial functions", and to apply them to the host of different work settings to which the Labour Relations Act applies. In The Corporation of the City of Thunder Bay, supra, the Board outlined its approach in a long passage to which we might usefully refer:
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.
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 results in every situation, and in assessing each case, the Board must have due regard to the nature of 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 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.
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 persons 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. The situation of persons who exercise some degree of control over others, but who also perform bargaining unit work was discussed by the Board in Falconbridge Nickel Mines Limited [1966] OLRB Rep. Sept. 379, as follows:
Most of the persons in dispute have more than one function and generally speaking it is the weight or emphasis attached to the different functions which must determine on which side of the management line the persons fall. Senior or skilled employees often have more responsibilities than other rank and file employees and they exercise certain control and direction over the other employees because of their greater experience and skill. It is the Board's difficult task to determine whether the additional responsibilities are managerial functions within the meaning of section l(3)(b) of the Act or are merely incidental to the prime purpose for which the employee is engaged (i.e., to perform work properly performed by persons within the bargaining unit). If the majority of a person's time is occupied by work similar to that performed by employees within the bargaining unit and such person has no effective control or authority over the employees in the bargaining unit but is merely a conduit carrying orders or instructions from management to the employees, the person cannot be said to exercise managerial functions within the meaning of section 1 (3)(b) of the Act. On the other hand, if a person is primarily engaged in supervision and direction of other employees and has effective control over their employment relationship, even though the person occasionally performs work similar to the rank and file employees when an emergency arises or to relieve an employee during occasional periods of absence or even to perform a particularly important job requiring special skill and experience, such occasional work in no way derogates from his prime function as a person employed in a managerial capacity. When assessing a person's duties and responsibilities the Board does not look at any one function in isolation but views all functions in their entirety. As stated in the McDougall case above referred to, titles alone are not much assistance in determining what a person's functions really are...
The cases cited above would seem to indicate that while a person may have minor supervisory functions or very limited confidential functions in matters relating to labour relations, if such functions are merely incidental to their main function and are of such a nature that they cannot be said to materially effect the employment relationship of the respondent's employees, such persons should not be excluded from collective bargaining by reason of section 1(3)(b) of the Act. Unless a person who regularly performs work similar to persons in a bargaining unit has independent discretionary powers rather than merely incidental reporting functions which are subject to the discretion and authority of higher persons in management, there is no reason to exclude such a person from collective bargaining.
In other words, in determining an individual's status, one cannot look at a portion of his duties in isolation. If the functions of an allegedly "managerial" character occupy only a minor part of his time, it is unlikely that he will be excluded from the ambit of collective bargaining unless those functions involve a decisive impact on his fellow employees. (For example, a unilateral decision to fire an employee would be highly significant, even if the exercise of such power is infrequent; while incidental supervisory responsibilities do not raise the kind of conflict of interest underlying section 1(3)(b)).
It should always be remembered, however, that The Labour Relations Act is intended to extend collective bargaining rights to employees, and it is incumbent upon any party seeking to exclude employees from the scheme of the Act, to come forward with affirmative evidence that they exercise managerial functions. (See: Ajax and Pickering General Hospital, [1970] OLRB Rep. Feb. 1283 at paragraph 11; and Bakery and Confectionery Workers International Union v. Satmi, 1966 CanLII 84 (SCC), 56 DLR (2d) 193.) Furthermore, (and in addition to the usual rule that "he who asserts must prove"), a party seeking to alter a status quo which has been settled and embodied in a series of collective agreements, must be able to provide a firm evidentiary foundation for its new position.
We can summarize these general approaches then, as follows:
(1) A party seeking to exclude an individual from the ambit of a remedial statute designed to extend benefits to employees, must be prepared to demonstrate that the disputed individual is not an employee.
(2) A party which is attempting to alter a status quo which reflected the earlier perceptions of the parties concerning an individual's status, and which has apparently worked adequately for some years must recognize the importance of this historical dimension, and be prepared to adduce clear evidence as to why a change is required to accommodate the interests section 1(3)(b) was designed to protect.
(4) Modern forms of corporate organization, improved means of communication, and the development of sophisticated institutionalized personnel policies, have all significantly diminished the role (and perhaps need for) the “traditional foreman" so that he is no longer the king-pin he once was. This process has several effects - all of which are evident if one surveys the dozens of reported and unreported cases recently decided under section 1(3)(b). First, co-ordinating or supervisory functions which in the past were often associated with "real" managerial authority, may not be sufficient standing alone, to exclude one from collective bargaining. Second, it is much easier, in practice, to maintain an existing managerial exclusion, than to justify the creation of a new level of management. Finally, again from a practical point of view, if the new purported "manager" has only a small number of subordinates, his managerial status is unlikely to be affirmed unless, as between them, there is very clear evidence, that the duties exercised are of such character that they clearly demonstrate the mischief to which section 1(3)(b) is directed. The fewer the number of subordinates, the stronger the need for demonstrative evidence of managerial status -especially if the next level of management is in close proximity and seems to be closely involved in the ultimate decision making.
(5) The acceptance of the "effective recommendation test" mentioned above, means that it is not necessary to show that the disputed individual performs his role independently of higher levels of management. But it is necessary to show that his recommendations are really effective, so that, in practice, and to a substantial degree, he becomes the effective decision maker in respect of matters impacting upon his fellow employees. From an evidentiary standpoint, it will be useful and often necessary to provide concrete examples of this kind of decision, and it will also frequently be necessary to hear from the person who actually made the decisions in order to show that the recommendations of the disputed individual were indeed decisive. In too many cases, in recent years, this evidence has either not been available at all, or when examined closely, amounts to no more than a "participatory decision-making style". Whatever value the latter may have in improving employee performance or ensuring adherence to corporate goals, it does not necessarily mean that managerial authority has percolated downwards.
That is the approach which we have taken in the instant case.
Obviously, it is neither necessary, nor possible, to reproduce in these reasons the mountain of evidence (oral and documentary) contained in the Officer's Report. Instead, we will try to sketch in a general overview, emphasizing, with some examples, those features of the evidence which "tip the balance" and influence our opinion as to where the managerial line should be drawn in this industrial setting.
We might note at the outset, however, that in forming our opinion, we have taken into account both the substance of the witnesses' testimony and their particular perspective in this proceeding - bearing in mind that some of the witnesses were "partisan", and had a clear preference for one or other of the two conclusions open to us. In this regard, the documentary evidence was particularly helpful, because it originated prior to the commencement of these proceedings, and before anyone had considered how the supervisors' duties should be considered under section 1(3)(b). The "paper trail" helps to put in perspective the sometimes conflicting testimony of the various supervisors.
We have also taken into account the fact that, by definition, the "first level" of management will be at the bottom of the managerial hierarchy, closely controlled from above; and, in a large organization, all members of management - but especially first-level "foremen" - will operate within a framework of rules which limit the exercise of independent discretion. That is especially so in a unionized setting, where the rights of employee subordinates are carefully spelled out in a collective agreement. (The CAW agreement has 434 pages.) In a unionized workplace, the institutionalized review of managerial decision-making created by collective bargaining means that the final decision will almost never rest with the first level of management. Some of the supervisors are clearly irritated that they do not have a more decisive authority over those reporting to them, and tend to minimize the weight given to their input and resist the label "managerial". But the absence of decisive authority does not mean that there is no authority at all. Like a police officer on the beat, "foremen" monitor what is happening around them, influence results by their presence or direction, and initiate action which is ultimately reviewed by higher levels of authority. But no one would suggest that a police constable was not part of the "state apparatus" merely because his/her decisions were reviewable or reversible.
Finally, it is important to note that the way in which the various supervisors conceive and carry out their role, is influenced by their own personal styles, their experience, and their areas of responsibility, so that there may be considerable differences in the extent to which particular supervisors choose to coach, counsel, correct, or castigate the employees reporting to them. For an experienced supervisor, documented discipline is unlikely to be foremost in the mix of managerial techniques, yet managerial authority may exist even though its exercise is infrequent. The power of choice - to initiate action or "let something go" - is itself an indication of managerial status. It is necessary therefore to consider the evidence as a whole, weighing both symbol and substance in light of the statutory purpose section 1(3)(b) was designed to accomplish.
The evidence: An overview with examples
Ford is a well-known manufacturer of motor vehicles, with several production facilities in the Province of Ontario. The 34 salaried supervisors who are the subject of this application work at the company's Essex aluminium plant in Windsor. The Essex aluminium plant is a three-shift operation. There are about 650 hourly-rated employees who report to the supervisors whose status is here under review. The hourly-rated employees are represented by the CAW.
There is not much doubt that the hourly-rated employees would regard their supervisors as their "boss" - that is, part of the "management team" and the agent of the employer on the shop floor. Not only are the hourly-rated employees under the immediate direction and control of their supervisors, but, as we have already mentioned, the CAW collective agreement recognizes that there is a reporting relationship. Under the terms of that collective agreement, employee grievances may be directed to the supervisors (Article 11) who are excluded from the bargaining unit (Article 2), and complaints about production standards are to be taken up with the supervisor, who is obliged to answer within two working days (Article 30.04). When an employee is being interviewed by a supervisor in a context in which discipline may be imposed, that employee is entitled to have his steward present - clearly recognizing the potential conflict between the supervisory role and the interests of the employee (Article 14); moreover, interviews of this kind do happen. Even though the terms of the agreement may not always be adhered to, it is clear that, from the perspective of the CAW employees, the supervisors are an extension of management. To put the matter another way: the structure of the existing collective bargaining relationship suggests that the supervisors exercise managerial functions. To the extent that the existing bargaining relationship establishes a reference point, it points to a finding that the "supervisors" are "managerial".
The supervisors do not do "bargaining unit work" - that is, they do not perform the duties of the persons whom they supervise, and who, for present purposes, are admitted to be "employees" within the meaning of the Act. This is not a case of overlapping functions or mixed responsibilities as in Falconbridge, supra. All of the supervisors' time is spent "supervising". The union in this case cannot claim that supervisors must be "employees" under the Act because they do work that is similar to persons acknowledged to be "employees". They do not; and that fact supports the opposite inference.
According to Jim Chandler, the company's labour relations representative, the "managerial" hierarchy includes 34 supervisors and 12 persons above the rank of supervisor. That is the pool of potential "managers" from which the applicant union seeks to separate 34 individuals, whom it says, do not exercise managerial functions at all. Thus, if the Board were to conclude that the 34 supervisors were not part of the managerial team (i.e., that they did not exercise functions within the meaning of section 1(3)(b) of the Act), the plant would have 12 managerial personnel for a workforce of approximately 700 - a ratio of about 60 to 1. And because almost all of the 12 remaining managers work steady days, while the hourly-rated employees work rotating shifts, there would be substantial periods of time when the plant would be in operation with no "managerial" employees on the scene at all. There would be no one on site to monitor production standards or work performance, maintain discipline, enforce plant or safety rules (see Exhibit 42 below) and so on. Conversely, if supervisors are part of the management team, the superior/subordinate ratio would be about 14 to 1 - in the Board's experience, a more typical arrangement for industrial operations.
There is, of course, no magic ratio of "managers" to "employees", and the interpretation of section 1(3)(b) is not an arithmetic exercise. However, the organizational subdivision proposed by the company is more in keeping with what one would expect in an industrial plant, while the one proposed by the union is unusual. It is difficult to accept that large numbers of employees work without any immediate "managerial" supervision, or that "managerial" authority flows exclusively from absentee bosses working in the industrial relations department.
The employer's job descriptions give a general outline of the duties that supervisors are expected to perform. An example from the Quality Control area reads as follows:
"Supervises hourly-rated employees engaged in inspecting, checking and testing quality control gauges, checking fixtures, die models and instruments used to verify dimensional and functional accuracy; performs lay-out inspection of parts or tooling for conformance to specifications. May also supervise hourly-rated employees engaged in general inspection activities. Evaluate tool and die try-out results and may recommend corrective measures, advises effected production and engineering personnel on the performance of gauges and fixtures, and may recommend changes based on analysis of recurring problems. Coordinates and schedules manpower requirements, ascertains that equipment is operable and performing in accordance with requirements, identifies and ensures that potential safety hazards are corrected, arranges for routine and emergency repair of equipment, and the like. Maintains discipline in accordance with company practices, participates in the settlement of grievances, enforces work standards, provides on-the-job training, and administers other personnel functions within the framework of established practices and policies. Prepares and maintains miscellaneous reports and records. Performs related duties as required".
This document was compiled many years ago, but is still a fairly accurate summary of what the supervisor in this area is expected to do. Basically, they are to supervise and coordinate the work of employees reporting to them, make sure that the work performance of those employees meets company standards, and ensure compliance with workplace rules.
- As might be expected in a large organization, there are detailed standards and work rules to which employees are expected to adhere. Exhibit 42 summarizes the rules of personal conduct. It reads as follows:
FORD MOTOR COMPANY OF CANADA LIMITED
PERSONAL CONDUCT
Over a period of time it has been found necessary to establish and to enforce a number of rules for the safety and comfort of employees, to ensure the orderly and efficient conduct of the company's business, to protect its property and the property of its employees, and to comply with public laws.
Employees are required to comply with these rules at all times when on the company's premises and failure to do so may result in suspension or discharge.
Any employee committing any of these offences will be subject to disciplinary action:
Gambling, including operation of pools, raffles, punch boards, etc.
Horseplay, throwing articles, scuffling and fooling.
Using abusive language.
Fighting.
Running in any building.
Posting or distributing signs, cards, notices, etc., and soliciting of any kind without obtaining permission from the company.
Sleeping.
Loitering or leaving work place for the purpose of washing up prior to regular quitting time.
Smoking in restricted areas.
Repeated failure to meet established standards of production.
Leaving company premises during working hours, except in the regular course of duty, without a properly approved pass.
Drinking an intoxicating beverage on company property.
Intoxication.
Attempting to bring or having on company property an intoxicating beverage or narcotic drug.
Insubordination.
Refusal to perform work assigned by a foreman or other supervisor.
Refusal or failure to obey safety rules.
Carelessness resulting in injury or property damage.
Deliberating punching the clock card of another employee.
Attempting to erase or change the time recorded on a clock card.
Theft or dishonesty.
Wilful damage to property of the company or property of other employees.
Absence or tardiness without notification or valid excuse.
Chronic absenteeism.
Chronic loafing.
Sitting in company cars and trucks during rest periods and lunch hours or using company vehicles for any purpose without permission.
Indecency.
Supervisors are expected to report on or "write up" employees who do not comply with these requirements; and that is what they do.
The supervisors are immediately responsible for: the assignment of work, ensuring that there is an adequate employee complement at work, monitoring the employees' work and the quality of their production, the assignment of employees for training, aspects of employee training, education and health and safety awareness, and some time-keeping functions to ensure that employee pay cheques match their hours or non-work entitlements. From the supervisors' perspective, "their employees" report to them.
The supervisors have a number of the trappings of office ordinarily associated with managerial status. Supervisors work out of lockable offices which they share with other supervisors and, in a number of cases, are kept locked by the supervisors who use them to restrict employee access. Several supervisors identified information which they kept locked in their offices or in locked desks so that the information would remain confidential. This information included: employee "write-ups" (disciplinary notations), tests given to assess employee performance; and log books containing supervisors' notes to each other about issues or employees in the workplace or instructions from higher levels of management which the supervisors are expected to implement. Ordinary "employees" do not have or work in offices.
The supervisors have computer access to records not available to ordinary workers, including, for example, the absentee records of those workers, as well as a variety of other employment-related data. This information is not particularly significant in itself, because it would be known to the employees or certain office personnel. What is significant is the right of access and the potential use of this information to track employee behaviour. Similarly, supervisors have asked for and been given access to the disciplinary records of employees reporting to them. Ordinary employees do not have this kind of access nor any need for it.
Company training initiatives directed at the supervisors involve them as part of the management team, and touch on such things as their responsibility in areas of production, labour relations, employment equity, affirmation action, safety rule enforcement, etc. These are employee concerns too, but from the supervisors' perspective, the responsibilities are different. The benefits available to supervisors are different from those available to hourly-rated employees, both in quantum and structure. There are a number of benefit items which are either not available to hourly-rated employees and salaried bargaining unit personnel, or which have different features (the merit pay plan, profit-sharing plan, stock investment plan, property and automobile insurance plan, retirement pension plan, health and welfare benefits). In other words, the supervisors appear to have a "management" benefit package.
Because of the size and complexity of the employer's operation, and the fact that it has been unionized for many years, many of the traditional indicia of managerial control have been muted or partitioned, with ultimate authority over labour relations decisions in the hands of industrial relations specialists rather than line management. The collective agreement has an elaborate seniority-based framework for lay-offs, recalls, promotions, transfers, filling vacancies, hiring, wage increases, and progression along the wage grid. The supervisors do not have any decisive role in these areas. The supervisors sense, correctly, that a CAW representative may have more immediate impact than they do themselves, and even in cases where they initiate discipline, the ultimate disposition may depend upon decisions and compromises made by others. We will explore this disciplinary function later.
Ordinarily, the supervisors are concerned only with existing production employees; they have no role in hiring. Likewise, there is no provision in the CAW agreement for periodic performance reviews; and, accordingly, neither the supervisors nor anyone else conduct performance evaluations on permanent employees. The supervisors do monitor and evaluate workers on a daily basis to ensure compliance with workplace norms and production standards, but there is no formal system of performance evaluations. Interestingly, supervisors are themselves evaluated on a scale which includes references to employer-employee relations. For example, the salaried personnel performance appraisal for R. A. Kenney includes these remarks under the heading "Tasks and Projects" followed by "Comments on Performance":
"Educate and supervise hourly personnel in day to day activities and the successful implementation of the EAP quality system ... Mr. Kenney's supervisory techniques require effort on his part to bring up to today's participative standards. Counselling in this area over the last year has not been effective".
"Maintain department manning and discipline. Coordinate schedules, shift changes and vacations ... Mr. Kenney does an excellent job of discipline. However, he does not effectively coordinate schedules and shift changes with other shifts. Again, communication needs to be improved".
Some of the supervisors have undertaken evaluations of probationary employees or students which have influenced whether they are retained in employment. In one instance (Lawlik), a supervisor's adverse review prompted a discussion with Jim Chandler, the company's labour relations representative, and resulted in that employee's termination. Mr. Chandler testified that supervisors are expected to complete employee evaluations within thirty days of the new employee's start date. If the evaluation is positive, the employee is retained; if it is negative, the employee is discharged. The evaluation form for new employees requires the supervisor to assess the following factors: "safety and safe practices, dependability (on-the-job performance), attitude (interest in job), initiative (does he look for work to do), interest (does he try to learn), adaptability (ability to learn), quality and accuracy, quantity of work (does he make use of idle time), attendance".
Obviously, these employees are either newcomers to the workplace or have a more tenuous attachment to the bargaining unit than other employees, and presumably, a worker would not have been hired in the first place if s/he had not passed the initial screening and had a reasonable prospect of success. Accordingly, one should not attach too much weight to the "evaluation" of these kinds of workers. However, ordinary bargaining unit employees do not undertake this kind of review. It is a "supervisory" function which the company submits is "managerial" in nature, and is therefore indicative of the role its supervisors play.
As we have already mentioned, the supervisors as a group are directly responsible for the coordination of work at the plant, and within their own departments they are responsible for such matters as: the shift changes and rotation schedule; the filling of temporary vacancies; the granting of approval for shift switches; the alteration of shift times; and the reassignment of employees. No doubt, most of these arrangements are entirely routine, and are triggered by circumstances over which the supervisor has no control. They are worked out in accordance with established procedures and may often be merely rubber-stamping accommodations that employees are able to work out among themselves. However, the sheer volume of these changes (as evidenced in the supervisors' logs) indicates the extent to which supervisors are involved in juggling the employees' work schedules to ensure adequate coverage to meet production needs. And the exercise of such responsibilities sometimes generates the kind of friction with employees that suggests that the functions are of a "managerial" character within the meaning of section 1(3)(b).
This is not to say that the workplace is fraught with bickering and conflict. Clearly it isn't. But where decisions and choices of this kind are to be made, it is the supervisors who are obliged to make them.
Supervisors were generally agreed that they had the authority to grant casual time off without approval, but they disagreed as to the maximum length of time that they could independently authorize; and, of course, they were ultimately responsible for ensuring adequate coverage if a worker was permitted to leave. It is the supervisor who often decides if the employee can be spared. To the extent that permission is conditional upon finding qualified substitutes, the supervisors make those assessments of ability. The majority of supervisors indicated that they could grant time off of up to one day, although Jim Chandler testified that they could sometimes give more time off.
Some forms of time off with pay such as bereavement leave or jury duty require documentation from the supervisor, but these items are prescribed by the collective agreement so it is rather difficult to say that, in these cases, the supervisor is "authorizing" this kind of leave. It is a verification function which the payroll department then acts on. But the holiday pay authorization form (necessary if an employee was otherwise absent) contains the phrase "I am satisfied with the reason given and recommend he be paid for the holiday". This notation is necessary because the CAW collective agreement provides that an employee absent on the last scheduled workday prior to the observance of the holiday will not be paid:
“….unless the employee is able to provide his/her supervisor with satisfactory reason for his/her failure to qualify under this section. (Any dispute in this respect will be subject to the grievance procedure.
The supervisor's decision is a condition of payment and may be the subject of an employee grievance.
Before an employee can leave the plant for any reason, the supervisor must first issue a "pass" which authorizes the worker to leave without penalty. Departure without a pass exposes employees to discipline. A number of supervisors testified that they have told bargaining unit employees that they could not take time off as requested.
Unless there is an overtime freeze in effect, most of the supervisors indicated that in their own departments and within the confines of the collective agreement, they have a degree of independent discretion in the scheduling and assigning of such overtime as is necessary to meet production needs. For employees, these overtime opportunities represent the chance to earn extra money, and according to Mr. Chandler, the supervisor's selection is frequently the subject of employee grievances. Such grievances against the supervisor's decision would trigger an investigation in which both the union and Mr. Chandler could be involved. Normally, they are readily resolved, but if the dispute persisted and went to arbitration, the supervisor would attend the hearing to give evidence on the employer's behalf. As an example, supervisor Kenney's response to one employee grievance over a lost overtime responsibility was: "I guess I missed him, pay it, it's only money"; and the company paid 8 hours at double-time rates.
Several of the supervisors confirmed that grievances had been filed against them, and that they had been involved in their subsequent resolution. For example, in Exhibit 107, employee Prokopetz grieves that the supervisor Conn has wrongly denied him an overtime opportunity to which he is entitled. Conn replies that the grievor is unable to perform the work in question, and the company ultimately rejected that grievance. Exhibits 183, 184 and 209 are similar complaints in which employees, supported by their union stewards, are protesting the way in which overtime is allocated in their departments.
The disposition of these grievances is less significant than the fact that employees were prompted to bring them. If the supervisor's allocation of overtime results in benefits for some employees and not others, which, in turn, prompts employees to complain through their union, it suggests that this allocation function is "managerial" in character, as that term is used in section 1(3)(b). It is not mere "coordination" and demonstrates the kind of potential conflict which section 1(3)(b) was designed to meet.
The log books are the means by which supervisors communicate with each other from shift to shift, and by which higher levels of management communicate to supervisors about how they are to handle their subordinates. These log books are not generally available to rank and file employees, and because senior management are not on site for extended periods of time, the log book becomes one means by which instructions are passed down from above. The instructions, in turn, illustrate what the supervisors are expected to do on the job.
Much of the contents of these logs (as illustrated by the samples filed) involves production matters, safety concerns, quality control problems, things to watch out for or correct (including employee errors) and changes in the anticipated staff complement which the oncoming supervisor is expected to accommodate (shift trades, absences, employees reporting late, etc.). Many of the notations therefore do not suggest activities of an unequivocally managerial character -although they reinforce the fact that employees are under the supervisors' immediate direction and control. However, this coordination function is not the passive recording of events or employee preferences, as these notations illustrate: "Bill ... no show ... if you don't want S in at seven, call him ... he was the only one I could get to start early"; or, "coverage needed for W Wednesday and Thursday", or "AP will be off Tuesday ... need overtime coverage", or "There is quite a bit of controversy over B's double trade, you may get some inquiries". Supervisors are required to take action to ensure proper staffing.
The control of staffing and absenteeism is a constant preoccupation which sometimes generates controversy, produces continuous demands for overtime authorization and distribution, and in turn may involve pay claims which the supervisors are obliged to verify. There are numerous examples of minor pay disputes of this kind which are sometimes resolved in the employee's favour and are sometimes not. But again, this involves the supervisors in interactions with payroll and labour relations.
It is clear that the supervisors are directing the daily work of employees in accordance with shifting policies emanating from above, or negotiated with the CAW. On the other hand, the log books contain missives from fellow supervisors or senior management like these:
"I cannot approve the leave of absence for D since there are no dates on it. Please don't sign them and pass them on unless we know exactly what days you want to give him leaves for".
"Especially disturbing are the notes made after I left last night on the lab sheet about cigarette butts in the sink and coffee spilled on the floor and left there. Please handle these issues".
Please go back to enforcing the hearing protection and the proper gloves being worn for various jobs. We are slacking off in this area again. I guess they need constant reminding".
"No one has seen W for the entire week since Monday. I left him a note about three things……phoney note from doctor's office to be checked out before we write discipline - it says sick on 29th, okay to return to work 29th, and cannot work 29th, and is dated 29th all of which is stupid……..another probable phoney note with the date changed in different ink from others. I asked Paul to check that one out too before we pursue disciplinary action……”.
"I counselled Mr. A on AWOL problem yesterday afternoon. I do not think this is ever going to happen again. If it does, he knows clearly the consequences.
“If you feel it necessary to send an employee home due to intentional quality transgressions, call Jim Chandler (at home - anytime) for his advice and/or direction".
“Please check all time cards for "no punch", in or out. Assessment of a penalty of .1 hours is now to be taken care of by the supervisor as time-keeping is not auditing the cards".
"Please advise Mr. F he is being written up for leaving the plant without permission".
"Employees leaving the plant without a pass is now and will continue to be a major issue. Anyone leaving the plant other than shift change must have a pass. If an employee is caught leaving without a pass and security issues a report, the supervisor has no say about the issuance of the security report nor does he have the option of a labour relations write-up. The write-up is to be automatic. It does not matter if a supervisor says he would have issued a pass; the fact is there was no pass. Also if employees are caught without the pass, this says the supervisor was unaware of his employee's time on the job".
"Jim Chandler, the new labour rep has told us that any shift especially 1, 2, 3 shifts, should call him at home if you have a labour problem of any nature which needs advice or help from labour relations. ... Also, with anyone who has been drinking especially at this time of year but, any time, and you need to get them out of the plant, offer to have security take them home and offer to call a cab. The plant is liable for any injury to a drunk person who was not offered alternative means of getting home safely".
"C and D are AWOL - not on vacation - [unreadable] warrants a write-up for so much time off'.
"Time off the job is the supervisor's job to control and the cleaning room is not being controlled. Today, Friday, at 1:50 p.m., no one except (?) was around ... rest of the line started trickling back between 2:20 and 2:30 ... forty minutes minimum break ... here it is plain and simple ... No. 1: I am instructing each supervisor to keep the men on the job right till the very end of the shift. When breaks and lunches become more responsible, I might back off on this……any supervisor who does not care to attempt to maintain some reasonableness to time off the job by their people will receive a formal written reprimand in their jacket. I've done it before and I can do it again. It's no use blaming anyone else or looking for someone else to do the job. The question comes back, "What are we (you and I) trying to do about it'. Absolutely no one can excuse or condone this much time off the job".
"Anyone off the job and you have not given him permission you are to write them up for loitering. This includes anyone going to First Aid without your knowledge unless an emergency. You are not to look for them.... The question has been asked what are we (you and I) doing to control our people. Well, we'll put the responsibility right where it belongs".
"The [job classifications] are leaving the area under the belt and total area a damn mess. They sit on their tails at the start of the shift and the end no chores are coming. I want those birds on the job and cleaning up too. ... Get it corrected. Start now".
These notations indicate that ensuring employee compliance with workplace norms is a shared responsibility, involving supervisors, senior levels of management, the labour relations department, and, sometimes, plant security. But there is no doubt that the supervisors are expected to perform this enforcement function and, for that purpose, are regarded as an extension of management. They monitor employee behaviour, and respond to infractions by initiating discipline. Indeed, if the supervisors do not pursue these admonitory responsibilities, they will themselves be subject to discipline.
The "write-ups" referred to in the log book are written disciplinary notations which the supervisor issues to employees on a form entitled "Foreman's Record of Disciplinary Action".
These steps can be initiated by the supervisors themselves, or at the instruction of more senior members of management; however, the supervisors testified that they would normally try to counsel an employee before taking formal disciplinary action - incidentally indicating that they have a degree of discretion in this regard. To some extent the supervisors decide when behaviour (absenteeism, for example, or insubordination) is sufficiently unacceptable to warrant initiating disciplinary action.
All of the supervisors said that they had independently issued these "disciplinary writeups” to bargaining unit employees. The reasons for doing so are varied: insubordination; leaving the plant without permission; poor work performance/failure to perform duties; unsatisfactory attendance; loitering/sleeping on the job, etc. The write-up can be and often is the subject of employee grievance.
Supervisors have sent employees home if they were unfit to work. One supervisor testified that he sent an employee home without need for prior approval as a result of insubordination. Another supervisor sent someone home because of a threat made to him by that employee. Jim Chandler testified that supervisors had the independent authority to send workers home - particularly on the off shifts where other "managerial" personnel are not around. Certainly, when an employee is told to punch out, leave the plant and report to industrial relations in the morning (to which, in one example in the transcript, the employee replied "not without talking to my steward"), the person giving that direction appears to be exercising managerial authority.
Some of the supervisors testified that they would consult with or be consulted by the Industrial Relations Department when dealing with employee problems, and it seems clear that they are also encouraged to consult in any situation which may give rise to union involvement or generate a labour relations problem. The log book entries set out above include a reference to calling Jim Chandler at home if problems arise on the off shifts. Accordingly, it is somewhat difficult to ascertain the degree of independent influence that the foreman has in the ultimate disposition of these incidents, because the formal disciplinary procedure guarantees union input and independent review by more senior levels of management. But in these interchanges with employees, it is pretty clear what "side" the supervisors are on: they are an extension of management.
Supervisors are consulted about the facts of the case and are sometimes consulted about the proposed penalty, and according to one supervisor, his recommendations are generally followed; moreover, supervisors engage in disciplinary interviews where union stewards are present to advise the bargaining unit employee. Supervisors also typically deliver the ultimate notice of warning or suspension (just as they typically deliver employee pay cheques) which, while symbolic, is consistent with other symbolic indications of authority. Supervisors have asked for discipline to be withdrawn and generally that has been what happened, and of course, supervisors can choose not to issue formal write-ups in the first place. Some supervisors indicated that they would warn an employee several times before doing a write-up, because that initiates a disciplinary process. However, there is no doubt that the write-ups are routinely reviewed by labour relations personnel who have the authority to revise or disregard the supervisor's decision, and in more serious cases, labour relations undertakes its own investigation in which the supervisor's input plays only a part. In addition, discipline must be carried out within the established framework of past practice to ensure that it is "progressive" and consistent with company norms. Because of the size of the workforce and the maturity of the collective bargaining relationship, precedent largely determines the employer's response or the penalty to be imposed. Once formal discipline is imposed, it remains on the employee's record and can be referred to in the event of a future disciplinary incident.
Since the identification of a "management" function involves a question of characterization, and the union here claims that the supervisors are mere "conduits", it may be useful to examine some concrete examples of these disciplinary "write-ups". The Record contains literally dozens of them, together with supporting documentation of the company's follow-up and disposition. When this evidence is viewed as a wholes it is evident that the supervisors are not mere passive observers or "note takers". They are active participants in initiating the disciplinary process, even though their role is subject to review by labour relations personnel; moreover, the frequency of these documents for a variety of supervisors and employees indicates that this is an important aspect of their overall duties.
The sheer volume of these disciplinary notations signed by supervisors tends to undercut the testimony from some of them that there is no follow-up, no consultation and that they wouldn't even know what discipline is actually imposed, or why. That may well be so in some instances, and we do not suggest that the supervisors' input is always decisive or even sought. Senior management may be content to proceed on the supervisor's statement of the facts, conducting its own investigation and making such compromises with the union as appear to be appropriate to the time and circumstances. But neither should one minimize the supervisor's role in initiating the disciplinary process or supplying the factual foundation upon which the employer must act.
The Record is, in fact, replete with examples of this disciplinary involvement. In Volume I alone, there are records of: a one-day suspension for returning late for lunch, a disciplinary warning for leaving the plant without permission, a three-day suspension for failing to follow a supervisor's instructions (the employee told the supervisor "no flicking way, it's not my job"), a three-day suspension for leaving the plant without permission, a warning for loitering, a six-day suspension for leaving the plant without permission, a six-day suspension for failing to perform assigned duties, a warning for failing to do work properly, a warning when an employee accepted an overtime opportunity and failed to report without a "good reason", warnings for failure to perform adequately or for being absent without leave, and a six-day suspension which supervisor Conn described as encompassing an "unsafe act, conduct disruptive to the operation, failing to perform duties, insubordination, and threatening a supervisor". In all of these cases, the supervisor is involved in observing or investigating the incident, confronting the employee and assembling information to support the employer's position.
We do not suggest that the supervisors are the "kings of the shop" that they may once have been, imposing their will cavalierly without much accountability. Modern forms of business organization and four decades of collective bargaining have changed that. But neither are the supervisors passive observers or mere conduits. They play an integral role in enforcing workplace rules; and it is a role which inevitably puts them in the employer's camp, pitted against the employees who report to them.
A few examples will illustrate this aspect of the supervisor's job.
This is a description of an incident which resulted in a six-day suspension "for improper conduct - directing abusive language towards a member of management". The member of "management" in question, is a supervisor who took these notes:
"At start of shift, Mr. Whitehead [a bargaining unit employee] is to keep rotary bin filled with charged material and crusher-processed material. He was reinstructed to do this at the start of the shift again as recently as Tuesday. He seemed to have confusion as to his responsibilities. This was settled prior to today.
At approximately 10:00 a.m. today the rotary operators came to me and said there was no other material for the next heat - that Mr. Whitehead had only brought over about four buckets of material. I went to Mr. Whitehead on this and he said "So what". Then he said "I don't care" How come the guys on the rotary didn't get it themselves". (Note: they did get their own material, slowing down rotary metal production).
At about noontime, about 11:00a.m. or so, Mr. Whitehead said to Mr. Marone "Why the fuck don't you make another employee do his tucking job". During this time I was at the union office trying to get some help with this problem. Other employees were in the union area when I was there but no reps. I returned to the floor about 12:35 p.m. Mr. Whitehead was outside with 3 to 4 other employees and I approached him and said "What are you crying about now". He then accused me of telling other employees that he had taken a two-hour lunch. Another employee said no he didn't say that. He then called me the following: you are a wimp. You are a goof. Why don't you tuck off. It's a good thing I don't meet you on the street".
I asked him if that was a threat. He said yes. I told him he went too far. Then I walked away from the area. At that time he picked up a barrel outside and threw it across the doorway into the melt shop. There was a loud crash. I saw the barrel bounce around rolling back from the south reverb by the south door. At that time I told Mr. Whitehead to leave this plant. He insisted that we go to IR together. I said I am going to IR and he was leaving the plant. How did I know what he was about to hit me with".
It is a little difficult to portray the supervisor here as just an ordinary employee. He is an authority figure speaking and acting on behalf of management.
- April 1987 was not a good month for employee Prokopetz, who eventually received a twelve-day suspension because of a series of incidents including those documented in these "Foreman's Record of Disciplinary Action" forms:
"Mr. Prokopetz had accepted a work opportunity to work forty hours over on to the No. 1 shift to support the intake manifold operation in the ECP Department. The No. I shift's Quality Control Department has no supervisor at present. I received a phone call at my residence at approximately 1:15 a.m. from the production supervisor, K. Palmer of the ECP area. No inspector had shown up for the No. I shift. Prokopetz' reply when questioned was that "I just left and didn't come back". Prokopetz agreed with me that you just can't leave the plant when you feel like it. Prokopetz is aware that disciplinary action is being taken.
Between 3:30 and 4:30 p.m. Prokopetz was not at his work station. Myself [W. Conn] and H. Krenshaw searched the obvious areas in the plant for Prokopetz' whereabouts. The cafeteria, office, locker room, washrooms, x-ray, etc. He could not be found. Security was notified. Prokopetz returned to his work station at approximately 5-5:10 p.m. After questioning, Prokopetz stated "I went to cash my cheque". [I asked] Who gave you permission to go? "No one". Again, Prokopetz is aware that disciplinary action is being taken".
Again, supervisor Conn is taking an active role to enforce company rules, and his authority is reinforced by the threat of discipline.
Even Mr. Kenney, who was the union's advisor throughout these proceedings, (and tended to minimize his "managerial" authority), had numerous incidents in which altercations with employees reporting to him, ultimately resulted in employee discipline. Again, a couple of examples (taken from the Foreman's Record of Disciplinary Action documents) will serve to illustrate this kind of incident.
The first incident with an employee named L. Basque occurred just after midnight when he refused to follow Mr. Kenney's instructions, replying "No fucking way, it's not my job". Mr. Kenney explained that he did not have sufficient manpower, and repeated his instruction which Mr. Basque continued to defy. Mr. Kenney then filled out a Foreman's Record of Disciplinary Action. Some time later, there was a second incident which Mr. Kenney describes as "insubordination" in the following recorded circumstances:
"At approximately 12:35 am. Mr. Basque walked into the front office (he had just been advised he was to be disciplined for a work refusal). I asked him what he was doing there. He demanded his [union] committeeman then, and asked to speak to Mr. Vincent. I said he should return to his job and he will get to see Mr. Vincent and his committeeman in due course. He called me an ass hole. I let it go at that and left. About ten minutes later I was going down to the 14A DK to follow up on Station 5 repairs when I noticed Mr. Basque standing on the north side of the main aisle with a newspaper in his hands and he was speaking to a fork truck driver. About five minutes later I was going to the electricians maintenance compound to get an electrician to fix an emergency plan button on the shuttle circuit for the 14 Saw when I passed Mr. Basque on the south side of the main aisle talking to Mr. E. Tracey. I asked Mr. Basque why he was not at his work station. Mr. Basque said "You are a perfect ass hole" [and other profane comments which need not be recorded here] ... I then advised Mr. Basque he would be written up for insubordination. He then told me [expletive deleted]. I then told him he will be written up in future for any further infractions. He then said "Go out to the ECP and get some more coding". I asked him to repeat what he said and he did. "Why don't you go out to ECP and get some more coding". I left".
Mr. Basque was eventually suspended for insubordination based upon the supervisor's evidence which the labour relations personnel recorded as follows:
"B. Kenney, Supervisor, states that on two occasions Mr. Basque called him a perfect ass hole and [expletive deleted] ... The company feels the penalty is just having regard to the circumstances".
We do not think that it is necessary to multiply the examples. However attenuated the supervisors' authority may be, it is clear that they have both the ability and obligation to invoke discipline in order to compel adherence with workplace norms, and that discipline sets in train a process which can put bargaining unit employees in jeopardy. No doubt, the supervisors' observations can be challenged and recommendations may not prevail, and he may be left out of the follow-up altogether, or be distinctly unhappy with the eventual result. As one supervisor explained: "I would have liked him to get more, but it's obvious that's the first step in the discipline so that's all he could get ... I was very unhappy that day ...". But as far as rank and file employees are concerned, those supervisors represent "managerial" authority which may be exercised to their detriment.
Despite the terms of the collective agreement, the company's actual practice does not seem to involve a significant role for supervisors at the first step of the grievance procedure. It appears that this tends to be a labour relations function in the nature of a review, undertaken by someone removed from the actual precipitating event. Mr. Chandler indicated that the supervisor is not typically involved in the processing of disciplinary grievances because he would have been the initiator of the penalty in the first instance (but may have discussed it with labour relations prior to doing so), and the process involves an independent review. Supervisors would however be involved in the company's investigation - especially if it was their conduct under review - and would be expected to give evidence if the matter progressed to litigation.
No matters have gone to arbitration in recent years, so no supervisor has actually been called upon to give evidence in support of the company's position. It is interesting to note, however, that a supervisor was involved as the company's representative at a meeting to resolve an unfair labour practice complaint against the union, and he was also involved in the eventual settlement of that complaint.
Conclusion
In our collective bargaining system, the identification of "managerial functions" is an exercise in characterization, weighing the factors which point one way or the other in order to determine on which side of the divide the disputed individuals fall. In this case, when one considers the number of supervisors in relation to "subordinates", the exclusivity of the supervisory functions, the trappings of management which distinguish supervisors from other employees, and the variety of circumstances which place the supervisors' duties and obligations at odds with the employees they supervise, we must conclude that they fall on the managerial side of the ledger. There is clear evidence that they exercise functions which bring them within the "mischief” that section 1(3)(b) was designed to avoid, and conversely no reason why the Board should interfere with a status quo accepted by the persons involved for many years.
It is our opinion that the supervisors exercise "managerial functions" within the meaning of section 1(3)(b) of the Act and, therefore, are not "employees" within the meaning of the Act. In this regard, our conclusion is the same as that reached by the Board, in similar circumstances, in Chrysler Canada Limited, [1976] OLRB Rep. Aug. 396, where, as here, the Board concluded that a group of automotive supervisors exercised "managerial functions".
It follows that this application must be dismissed.