United Steelworkers of America v. Wackenhut of Canada Limited, 1994 CanLII 9818

[1994] OLRB Rep. January 91

3410-92-R United Steelworkers of America, Applicant v. Wackenhut of Canada Limited, Responding Party

BEFORE: Janice Johnston, Vice-Chair, and Board Members W. H. Wightman and E. G. Theobald.

DECISION OF THE BOARD; January 6, 1994

1. This is an application for certification. The Board by decision dated April 27, 1993 [now reported at [1993] OLRB Rep. Apr. 393] certified the union on an interim basis and appointed a Labour Relations Officer to inquire into and report to the Board on the duties and responsibilities of seven persons, two of whom are classified as patrol supervisors and five of whom are classified as site supervisors.

2. During the examination, the parties agreed on the following:

(a) that the Board should determine the question of all excluded persons classified as site supervisor based on the evidence of Mr. Cecil McClory;

(b) that Robert Hertzberger and Lyle Ruby are classified as associate patrol supervisors and are included in the bargaining unit;

(c) that the position of patrol supervisor is above the rank of site supervisor.

3. It is the position of the applicant, the United Steelworkers of America (the "union"), that the five individuals classified as site supervisor should be included in the bargaining unit. The responding party, Wackenhut of Canada Limited (the "employer" or "Wackenhut") asserts that the five individuals exercise managerial functions within the meaning of section 1(3) of the Labour Relations Act (the "Act") and should therefore be excluded from the bargaining unit.

4. The Board Officer conducted the usual examinations at which time the parties were afforded full opportunity to be heard, to examine and cross-examine witnesses and to introduce evidence bearing on the issue. A copy of the Board Officer's Report (the "Report") dated July 5, 1993 was sent to each of the parties together with a Form B35 (Notice of Report of Labour Relations Officer). This notice extends to the parties the opportunity to make representations as to the accuracy of the Report or the conclusions that, in their submission, the Board should reach in view of its contents. Both parties availed themselves of the opportunity to make written submissions.

5. The relevant section of the Act is section 1(3) which provides as follows:

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.

6. The Act does not define the term "managerial functions" as used in section 1(3) of the Act. The meaning of that term is therefore to be found in the Board's extensive jurisprudence on this point. The Board has developed criteria, guidelines and tests to be applied in determinations as to whether or not an individual exercises managerial functions and is thereby found not to be a "employee" within the meaning of the Act. The jurisprudence was summarized in The Corporation of the City of Thunder Bay, [1981] OLRB Rep. Aug. 1121 and it explains the rationale for section 1(3) as follows:

7. Section 1(3)(b) excludes from collective bargaining persons who in the opinion of the Board exercise managerial functions. The purpose of the section is to ensure that persons who are within a bargaining unit do not find themselves faced with a conflict of interest as between their responsibilities and obligations as managerial personnel, and their responsibilities as trade union members or employees in the bargaining unit. Collective bargaining, by its very nature, requires an 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 that its members will have "divided loyalties". This purpose has been succinctly stated by the British Columbia Labour Relations Board in Corporation of the District of Burnaby [1974] 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' 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 is is promoted to a position where he exercises management functions over it.

3. The Labour Relations Act does not contain a definition of the term "managerial function", nor are there any specified criteria to guide the Board in reaching its opinion. The task of developing such criteria has fallen to the Board itself, and in recognition of the fact that the exercise of managerial functions can assume different forms in different work settings, the Board has, over the years, evolved various general approaches to assist it in its inquiry. In the case of so called "first line" managerial employees, the important question is the extent to which they make decisions which affect the economic lives of their fellow employees thereby raising a potential conflict of interest with them. Thus, the right to hire, fire promote, demote, grant wage increases or discipline employees are all manifestations of managerial authority, and the exercise of such authority is incompatible with participation in trade union activities as an ordinary member of the bargaining unit. In the case of more senior managerial personnel whose decision-making may have a less direct or immediate impact on bargaining unit employees, the Board has focused on the degree of independent decision-making authority over important aspects of the employer's business. It is evident that persons making significant executive or business decisions should be considered a part of the "management team" even though they do not exercise the kind of direct authority over employees which is characteristic of a first line foreman.

4. The line between "employee" and "management" is often shaded, and while it is helpful to consider the principles articulated by the Board in previous cases, ultimately the determination must turn on the facts of the particular case. There is no litmus test which is universally applicable and dictates the result in every situation, and in assessing each case, the Board must have due regard to the nature of the industry, the nature of the particular business, and individual employer's organizational scheme. There must, of course, be a rational relationship between the number of superiors and subordinates, consultation or "input" should not be confused with decision-making, and neither technical expertise nor the importance of an employee's function can be automatically equated with managerial status. On the other hand, there may be individuals whose nominal authority appears to be limited, and who have no formal managerial position or title, but who nevertheless make recommendations affecting the economic destiny of their fellow employees which are so frequently forthcoming, and consistently followed by superiors, that it can be said that, in fact the effective decision is made by the challenged individual. It is this type of recommendation which the Board has characterized as an "effective recommendation" and the inclusion of these persons in the bargaining unit would raise the very king 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.

5. In each instance, the Board seeks to determine the nature and extent of the individual's authority as well as the extent to which that authority is actually exercised. It is not sufficient if an individual has only "paper powers" contained in a job description or a "managerial" job title, if managerial functions are not actually exercised. Even the performance of certain co-ordinating functions may not be determinative. Where numbers of people work at a common enterprise (especially in the white collar - service sector) many persons may be engaged in co-ordinating activities which are largely routine, carried out within a pre-established framework of rules and policies, and subject to real managerial authority which is actually exercised from above. In addition, persons who perform technical functions or exercise craft skills which have been acquired through years of training and experience, will necessarily have a considerable influence over unskilled employees or less experienced "journeymen" or technicians. These experienced personnel will commonly supervise the work of those who are less experienced, and it is part of their normal job function to train and direct such persons and to install 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 the 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 managerial 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 1(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 top, titles alone are not much assistance in determining what person's functions really are...

The cases cited above would seem to indicate that while a person may have minor supervisory function or very limited confidential function 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 be excluded from collective bargaining reason or 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 l(3)(b).

7. Having regard to the provisions of the Act, the principles set forth in the Board's jurisprudence and having considered the Board Officer's Report and the representations received by the Board, we conclude that Mr. James Brady, Mr. Cecil McClory, Mr. Glen Parrest, Mr. Thomas Riggs and Mr. Ronald Sanvido are employees under the Act and do not exercise managerial functions within the meaning of section 1(3) of the Act.

8. Wackenhut maintains contracts for the provision of security services for a range of clients in the Kitchener-Waterloo area. Mr. Cecil McClory is a site supervisor for one of Wackenhut's clients, the Campbell Soup Company plant in Listowel. There are four Wackenhut employees at this site. In addition to Mr. McClory there is one other full-time employee and two part-time employees all of whom are classified as security officers. Mr. McClory reports to an individual or individuals at the employer's head office in Kitchener. No title for the position to whom he reports was provided.

9. The vast majority of of Mr. McClory's time is spent performing the same duties as those of the other security guards. He sits in a guard house at the gate to the plant and watches truck traffic and visitors entering and exiting the plant, and signs in trucks and visitors. He also does rounds within the offices and plant. Other than at shift change or in exceptional circumstances, Mr. McClory's hours of work do not overlap with those of the other security guards. The full-time guard and Mr. McClory primarily work Monday to Friday and the two part-time guards primarily work on the weekends.

10. Although Mr. McClory is responsible for scheduling the work of the other security guards, the schedule is not a complex one and is generally made up a year in advance. Security guards who want a particular shift off make the arrangements to trade shifts and then inform Mr. McClory. Although Mr. McClory reports, on a weekly basis, the hours worked by the employees at the site, if there is a problem with an employee's paycheque that employee would take the problem up with the Kitchener office not Mr. McClory.

11. Mr. McClory does not have independent decision-making authority with regard to the discipline or the discharge of the security guards working at his site. It is very clear that if an incident occurs, Mr. McClory reports it to the Kitchener office and receives direction from someone there. Although he might suggest a course of action to the Kitchener office, this suggestion is merely input which is considered in reaching a decision. Mr. McClory is not the effective decisionmaker, he is merely the conduit who brings matters to the attention of management and then implements the decision they have made.

12. Although he may occasionally play a minor role in the hiring process, Mr. McClory does not have the authority to hire individuals. He does not have the authority to grant wage increases or to promote individuals. There is no formal system of performance evaluation. Although Mr. McClory is involved in the orientation of new employees, there is nothing to suggest that his role is any different in this regard than the other experienced security guards. Although he receives a premium of about forty-one cents per hour, Mr. McClory is paid hourly as are the other security guards. Mr. McClory does not receive any fringe benefits different than those of the other security guards.

13. Mr. McClory is responsible for contact with and liaising with the client, Campbell Soup Company, on the site. While this is no doubt an important function, it is not a managerial function. As the Board's jurisprudence indicates, it is not the individual's title or what the employer puts in a job description that is decisive in an inquiry as to whether an employee should or should not be a member of the bargaining unit. An individual will only be found not to be an employee for the purposes of the Act if he or she in fact performs duties which are managerial in their nature. It is clear to us that Mr. McClory does not perform managerial functions such as would result in the exclusion of the site supervisors from the bargaining unit. It is obvious that Mr. McClory functions as a "lead hand" or "team leader". Along with the other guards, he coaches and orientates new staff, ensures the work shifts are covered and co-ordinates the exchange of shifts. He primarily performs the job duties of a security officer. His supervisory functions are extremely minimal and do not put him in a conflict of interest with his fellow employees. Accordingly, we conclude that the site supervisors do not exercise managerial functions and are to be included in the bargaining unit.

14. As a result of this conclusion and the partial agreement of the parties we find that the following constitutes a unit of employees appropriate for collective bargaining:

all security guards of Wackenhut of Canada Limited in the City of Kitchener, the City of Waterloo, the City of Cambridge, the Town of Listowel and the City of Guelph, save and except patrol supervisors, persons above the rank of patrol supervisor, dispatchers, and office, clerical and sales staff.

Clarity Note: The parties hereby agree that Robert Hertzberger and Lyle Ruby are classified as associate patrol supervisor and are included in the bargaining unit.

15. A final certificate will now issue to the applicant for the above noted bargaining unit.