[1993] OLRB Rep. July 683
2797-92-R International Union of Operating Engineers, Local 793, Applicant v The Corporation of the Township of Limerick, Responding Party.
BEFORE: Russell G. Goodfellow, Vice-Chair, and Board Members W. H. Wightman and E. G. Theobald.
DECISION OF THE BOARD; July 20, 1993
This is the continuation of an application for certification.
By decision dated January 18th, 1993 the Board noted the parties' partial agreement with respect to the description of the bargaining unit and appointed a Labour Relations Officer to inquire into and report on the duties and responsibilities of the Road Superintendent, Murray Mountney, and on the question of whether a further employee, A. Boomhour, should be included on the schedule of employees filed by the responding party, The Corporation of the Township of Limerick (the "employer" or the "Township"). It is the employer's position that Mr. Mountney performs managerial functions within the meaning of section 1(3) of the Labour Relations Act (the "Act") and that Mr. Boomhour is a "casual employee" and should not be included on the list.
On March 29, 1993 the Labour Relations Officer completed her report, which includes
a transcript of the evidence of Mr. Mountney and records the parties' agreement that Mr. Boom-
hour should not be included on the employer's list. Accordingly, this decision deals only with the
status of Mr. Mountney.
I
- Section 1(3) of the Act states:
1(3) For the purposes of this Act, no person shall be deemed to be an employee who, in the opinion of the Board, exercises managerial functions or is employed in a confidential capacity in matters relating to labour relations.
Generally speaking, and in furtherance of the conflict of interest rationale that underlies this provision, individuals will be found to exercise managerial functions if they fall into either or both of two broad categories. First are those persons whose work impacts only indirectly on the terms and conditions of employment of their fellow employees. Individuals falling within this category will be found to exercise managerial functions if they make independent decisions on important matters of policy or the running of the organization. Effective recommendations, independent decisions circumscribed within predetermined limits set by others, or technical or procedural determinations based upon expertise in a limited field will not be sufficient to exclude an individual from the definition of "employee" under the Act. Second are those individuals whose decisions have a more direct and immediate impact upon the day-to-day working lives of their colleagues. The test for managerial status here is whether the individuals make "effective recommendations", i.e. recommendations that are "so consistently and frequently followed that it could be said that through the recommendations the [individual is] effectively controlling or determining the decisions": Etobicoke Hydro-Electric Commission, [1981] OLRB Rep. Jan. 38. The onus of establishing that an individual is managerial because he or she falls within either or both of these categories rests with the party seeking the exclusion.
II
Mr. Mountney is a member of the Roads Department. He is one of only two regular employees in the department and in the proposed bargaining unit. The second is William O'Hara, the Township Operator. The Roads Department is responsible for maintaining the Township's roads including such matters as ploughing, sanding, paving, gravelling, culvert maintenance, ditching, brushing, etc. As the Road Superintendent, Mr. Mountney is also a member of the Roads Committee of the Township Council. The Roads Committee is responsible for making recommendations to Council on matters concerning the Township's roads. The other members of the Committee are the Reeve and two councillors. The Roads Committee reports to the Township Council, which is comprised of the Reeve and four councillors, two of whom are on the Roads Committee.
A budget for the work of the Roads Department is set annually in advance. Mr. Mountney is involved in the initial preparation of the budget, based on previous years experience, but he does not approve it either alone or in conjunction with anyone else. Approval rests with the Township Council. Council also sets the overall priorities assigned to the work based upon recommendations from the Roads Committee and, initially, Mr. Mountney. Priorities may be set weekly, yearly or in the form of a five year plan.
Mr. Mountney's other "non-operational" tasks include maintaining a daily journal of the work performed in relation to a road, the time it took to perform it and an estimate of the cost. At the end of each month, Mr. Mountney passes this information on to the Clerk of the Township who forwards it to the Ministry of Transportation. The keeping of the daily journal also permits Mr. Mountney to monitor the work performed and the amount of money spent in relation to each road so as to adhere to the budget and policies set by Council. If the budgetary allotments do not prove to be adequate and it is necessary to take funds from one area to cover a shortfall in another, Mr. Mountney must obtain approval from Council following a recommendation from the Roads Committee.
Mr. Mountney has been delegated the authority to spend up to $5,000.00 on goods or services for which provision has been made in the budget. Although Mr. Mountney sometimes makes recommendations to the Roads Committee to obtain approval for such purchases, he need not do so. By and large, the expenditures appear to be of a routine "supply" nature relating to such matters as the maintenance of equipment, sand and salt for the roads, etc. Within the $5,000.00 limit, Mr. Mountney also decides to which budgeted account the purchases will be charged. For amounts in excess of $5,000.00, a tender process must be followed. Mr. Mountney is involved in the initial preparation of the request for tenders and their subsequent review by the Committee. The decision to accept a tender, however, is made by Township Council following a recommendation from the Committee.
Mr. Mountney is also responsible for patrolling the roads to see what needs to be done
and will undertake normal maintenance, such as unblocking a culvert, without further approval. Mr. Mountney also "supervises" construction projects carried out by contractors, which may include answering questions, putting out road signs, placing flagmen in the necessary spots, etc. Mr. Mountney has signing authority in respect of Bell and Hydro lines and has been involved in assessing certain of the Township's needs, such as the gravel supply.
The vast majority of Mr. Mountney's time, however, is spent performing work similar to that performed by the Township Operator, Mr. O'Hara. According to Mr. Mountney, Mr. O'Hara "drives a truck in the summer, he operates the backhoe, he grades, runs the grader, adjusts whatever there is, and if there is any general labour, if he is ... a lot of the time he does that as well, and maintenance". Mr. Mountney testified that approximately 80 per cent of his own time is devoted to such work, sometimes alongside Mr. O'Hara. In fact, the two are "on call" on alternate weekends throughout the year to perform the same tasks. It was perhaps for this reason that Mr. Mountney began his examination by describing an average day's work as, "... if we have to plough, then I come in and we get the plough ready to go, I take it and away we go, and Bill wings for me." He also pointed out that his official classification is "Working Road Superintendent".
In addition to performing his own work, Mr. Mountney acknowledged that he is at least partly responsible for the work performed by Mr. O'Hara and decides which work each will perform during the day. However, the decision to hire Mr. O'Hara was made by Council. According to Mr. Mountney, his only role was that of an "advisor". Although Mr. Mountney sat in on the interviews and made recommendations, there is no clear evidence as to what those recommendations were or as to their "effectiveness".
After hiring, Mr. O'Hara was subject to a probationary period. Once again, Mr. Mountney's role was to "advise" the Roads Committee as to how Mr. O'Hara was doing and to provide Mr. O'Hara with informal feedback. Mr. Mountney said that he gave no formal recommendations to the Committee, simply remarking that Mr. O'Hara "was doing fine and that he was improving on the grader". The decision to continue Mr. O'Hara's employment was entirely that of Council. Mr. O'Hara's annual salary, along with that of Mr. Mountney, is determined by Council sitting in caucus without Mr. Mountney's involvement.
Mr. Mountney has not been involved in any formal performance review of Mr. O'Hara, but has made comments "in general conversation" to the Reeve or one of the councillors as to how Mr. O'Hara is doing. Mr. Mountney testified that Township Council is "hands on" and usually has an opportunity to witness Mr. O'Hara's work on a day-to-day basis. If something goes wrong, members of Council may ask Mr. Mountney whether it was Mr. O'Hara's fault. Disciplinary decisions, however, rest with Council. In what appears to have been the only instance of "discipline" to date, a taxpayer complained to a councillor about Mr. O'Hara's attitude. Mr. Mountney was then directed to speak to Mr. O'Hara about it.
Mr. Mountney prepares both his own time sheets and those of Mr. O'Hara for submission to the Township Clerk. Overtime payments are "calculated into" both Mr. Mountney's and Mr. O'Hara's annual salary. Mr. Mountney has the authority to grant casual time off to Mr. O'Hara e.g. to go to the doctor or dentist, or in an emergency situation, but lengthier periods require approval by the Roads Committee. The Committee also approves vacation schedules. Any decision as to whether Mr. O'Hara would be laid off would be up to Township Council.
Mr. Mountney also exercises the authority delegated from Council to hire part-time and casual employees during peak construction periods. Mr. Mountney gave as the reason for this authority the difficulty of getting together a quorum of Council, which ordinarily meets monthly, to make "emergency" hires on a short-term basis. Although Mr. Mountney's evidence varied on this point, it would appear that anywhere from one to four people may be hired at a time, working for as little as one day or as much as one month. These individuals generally work full-time and, therefore, would appear to fall within the scope of the agreed upon bargaining unit. Typical of the work performed is the task of flagman on a construction project. Mr. Mountney generally hires from among the same group of six to twelve individuals. There is no evidence that Mr. Mountney has ever had occasion to discipline or "discharge" any of these individuals or as to whether he would have the authority to do so.
Finally, the evidence is that another employee, Clayton Hiltz, the waste disposal custodian, was placed under Mr. Mountney's jurisdiction, at least for purposes of advice with respect to days off. There was no other information, however, about the relationship between Mr. Hiltz and Mr. Mountney.
III
It appears to the Board from the membership evidence and Mr. Mountney's approach to certain questions that he may have been guided somewhat by self-interest in giving his evidence. However, even allowing for the possibility that certain of Mr. Mountney's answers may have been "shaded" in the direction of "employee" status, the Board is not satisfied that Mr. Mountney exercises managerial functions" within the meaning of section 1(3) of the Act.
In matters of policy or the running of the organization, the evidence is that except for the expenditure of funds of up to $5,000.00 and what may be described as routine operating decisions, real authority rests with Township Council. Council sets the budget, authorizes any significant purchases and determines the overall priorities assigned to the work. Mr. Mountney's role, filtered through the Roads Committee, is essentially a recommendatory one and there is little or no evidence as to how often those recommendations are followed.
The evidence of Mr. Mountney's direct involvement in the terms and conditions of employment of his fellow workers must be considered in light of the number of employees actually affected and the entire employment context. Except in the case of casual employees and apart from such routine matters as work assignment, time keeping and the granting of occasional time off, the evidence again is that real managerial authority is exercised by Council. This includes decisions related to hiring, firing, lay-off, discipline and salary. There is no evidence that Mr. Mountney has any substantial input into these areas, let alone the power to make effective recommendations. In the case of the casual workers, the Board is not satisfied that the occasional hiring of the same employees during the summer months is sufficient to give rise to the kind of mischief to which section 1(3) is directed. The number of employees is limited, the "discretion" exercised in selection is rudimentary, the period of employment is brief and determined by the length of the project, and there is no evidence that Mr. Mountney either has, or could, effectively impose discipline or terminate their employment prematurely. For the most part, amounting to approximately 80 per cent of his time, Mr. Mountney carries out substantially similar work to the undisputed member of the bargaining unit, Mr. O'Hara.
The Board therefore finds that Mr. Mountney does not exercise "managerial functions" within the meaning of section 1(3) of the Act.
The Board also finds that all employees of The Corporation of the Township of Limerick in the Township of Limerick, save and except Clerk Treasurer, persons above the rank of Clerk Treasurer, office and clerical staff and Chief Building Official, By-Law Enforcement Officer and employees working less than twenty-four (24) hours per week, constitute a unit of employees of the responding party appropriate for collective bargaining.
The Board is further satisfied, on the basis of all the evidence before it, that more than fifty-five per cent of the employees of the responding party in the bargaining unit on December 16, 1992, the certification application date, had applied to become members of the applicant on or before that date.
A certificate will therefore issue to the applicant.