National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (CAW-Canada) v. Toronto Transit Commission, 1994 CanLII 9964

[1994] OLRB Rep. March 319

2430-92-R National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (CAW-Canada), Applicant v. Toronto Transit Commission, Responding Party v. Amalgamated Transit Union, Intervenor #1 v. Amalga­mated Transit Union, Local 113, Intervenor #2 v. Group of Employees #1, Objectors v. Group of Employees #2, Objectors

BEFORE: M. Kaye Joachim, Vice-Chair, and Board Members W. H. Wightman and D. A. Patter­son.

APPEARANCES: Craig Grant, Roy Rice, Rob Moluchi and Gary Fane for the applicant; Douglas K. Gray, Stephen C. Raymond, Kauita Chhiba and James Ralston for the responding party; no one appearing for Amalgamated Transit Union and Amalgamated Transit Union Local 113; Debbie Dalle Vedove for Group of Employees #1; James S. Thompson for Group of Employees #2.

DECISION OF THE BOARD; March 1, 1994

1. This is the continuation of an application for certification. The only issue dealt with in this decision is whether persons classified as Inspectors and Instructors exercise managerial func­tions and thus should be excluded from the bargaining unit sought by the applicant.

2. Six Inspectors were examined and one reply witness was called by the responding party. A hearing was held to entertain submissions from all parties. Written submissions were provided to the Board in advance of the hearing by the applicant, the responding party, and the group of employees #1. All parties in attendance made oral submissions.

3. Section 1(3) of the Labour Relations Act provides that no person shall be deemed to be an employee who, in the opinion of the Board, exercises managerial functions.

4. The purpose of excluding persons who exercise managerial functions from collective bargaining 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". (Corporation of the City of Thunder Bay, [1981] OLRB Rep. Aug. 1121 paragraph 2).

5. In addition, the exclusion of persons who exercise managerial functions is aimed at maintaining an arms-length relationship between employees and employers. The Board has stated in Chrysler Canada Ltd., [1976] OLRB Rep. Aug. 396, paragraph 12:

The identification of management is fundamental to the scheme of collective bargaining as set out in the Labour Relations Act. What is contemplated is an arms' length relationship between the employees represented by a bargaining agent, on the one side, and the employer acting through management on the other side. The Act attempts to create a balance of power between these two sides by insulating one from the other. ... Collective bargaining rights, therefore, are not universal, but must be qualified by the need to preserve a countervailing force on the employer side.

6. In Ford Motor Company of Canada Limited, [1993] OLRB Rep. Jan. 1, the Board identified further reasons for excluding managerial employees:

7. 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.

8. ... 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. ... 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. (emphasis in original)

9. Where a previous decision of the Board exists regarding the status of the individuals in dispute, parties can reasonably expect that the previous decision will be taken into account. The Board is unlikely to reach a different conclusion on an issue such as employee status unless there has been a change in the law or a significant change in the individual's duties and responsibilities since the matter was last considered. (Oakwood Park Lodge, [1980] OLRB Rep. Oct. 1501 at paragraph 22. See also Transit Windsor, [1991] OLRB Rep. April 565 at paragraph 37.)

10. In a previous decision of this Board (Toronto Transit Commission, [1967] OLRB Rep. Feb. 878) the Board found that persons classified by the Toronto Transit Commission as uniformed Inspectors exercised managerial functions:

11. Having regard to all the evidence contained in the Report of the Examiner and the represen­tations of the parties with respect thereto, the Board finds that the uniformed Inspectors spend 100 per cent of their time supervising employees of the respondent who are currently bargained for by the applicant and no work is performed by the uniformed Inspectors which is also per­formed by the persons they supervise.

12. The uniformed Inspectors have the responsibility to make effective recommendations with respect to the manner in which the work is performed, the number of persons performing the work and disciplinary matters at their discretion. The uniformed Inspectors have effective con­trol over the Operators employed by the respondent in the performance of their work, the effi­ciency of the service provided by the Operators and they also are required to enforce the respondent's rules and regulations.

13. Having regard to all the functions performed by the uniformed Inspectors and especially the fact that 100 per cent of their time is devoted to supervision of employees, and having regard for the reasons for decision of the Board in the Falconbridge Nickel Mines Limited Case, O.L.R.B. Monthly Report, September 1966, p. 379, the Board finds that persons classified by the respon­dent as uniformed Inspectors and uniformed dispatchers exercise managerial functions within the meaning of section 1(3)(b) of The Labour Relations Act and are not appropriate for inclu­sion in any bargaining unit.

14. The Act does not contain a definition of the term "managerial functions", nor does it contain any specific criteria to guide the Board in reaching its decision. However, the Board has developed and applied various tests to determine whether an individual exercises managerial func­tions. The appropriate test is determined by the nature of the individual's involvement with other employees. Where the individual has a direct effect on the employment relationship, the Board will apply the "effective control test". In applying the "effective control test" the Board looks to whether the individual has, at a minimum, the authority to make effective recommendations relat­ing to conditions of employment and therefore materially affect the economic lives of employees. (The Cottage Hospital (Uxbridge), [1980] OLRB Rep. Mar. 304, paragraphs 5 and 6).

15. The factors which the Board has considered include:

(a) the power to hire or fire, or to make effective recommendations in that regard;

(b) the power to discipline, or make effective recommendations in that regard;

(c) the power to grant or effectively recommend wage increases, promo­tions and other similar matters;

(d) the power to enforce the rules and regulations of the organization;

(e) whether the individuals participate on behalf of management in the grievance procedure;

(f) the power to grant or effectively recommend time off or assign over­time;

(g) whether the individuals have effective control over the performance of their subordinates' work and over the efficiency of the service pro­vided by their subordinates;

(h) the authority to make effective recommendations with respect to the manner in which their subordinates' work is performed;

(i) whether the company has training initiatives directed at the individuals to involve them as part of the management team. For example, training in such areas as labour relations, employment equity, affir­mative action and safety rule enforcement;

(j) the role of the individuals in performance evaluations;

(k) whether the individuals enjoy any of the "trappings of management" which distinguish supervisors from other employees; and,

(1) whether the individuals have the right of access to employee infor­mation with which they are able to track employee behaviour.

Ford Motor Co., supra, paragraphs 27, 28, 31-34, 37, 41, 44, 51.

City of Thunder Bay, supra, paragraphs 3, 4.

Toronto Transit Commission, supra, paragraphs 4, 5.

Chrysler Can. Ltd., supra, paragraphs 16, 18, 19.

11. In a case such as this where the status of the "first level" of management is in question, the Board will take into account that the individuals are closely controlled from above and will operate within a framework of rules which limit the exercise of independent discretion. This is especially true where, as in this case, the employees who are supervised by the Inspectors are unionized and their rights are carefully spelled out in a collective agreement. Ford Motor Co., supra, paragraph 22.

12. Having reviewed the legal framework, the Board will now turn to its conclusions with respect to the duties and responsibilities of Instructors and Inspectors.

Inspectors

13. The transportation department of the Toronto Transit Commission (also referred to in the decision as the "Commission" or the employer) is divided into three districts and each district has a manager. A district is sub-divided into various divisions. Each division has one superinten­dent, one assistant superintendent, one supervisor of Inspectors, fifteen to thirty Inspectors and three hundred to four hundred and fifty Operators.

14. Inspectors manage the day-to-day performance of Operators and ensure the quality of their work. They are relied upon by upper management to see that the bus and subway service functions smoothly.

15. Although Inspectors do not set the initial schedules of Operators, they do have the power to adjust their schedules to meet customer requirements. Inspectors can require a vehicle to operate to a different schedule or on a different route.

16. Inspectors are required to enforce the rules and regulations of the Commission. Opera­tors are expected to obey the directions of the Inspectors. Failure to do so would be considered insubordination.

17. Inspectors can require an Operator to work overtime in order to complete his/her mile­age or in emergency situations. In non-emergency situations, such as an Operator not showing up

for a shift, the Inspector can decide whether overtime is required and can offer overtime to Opera­tors in accordance with their seniority.

18. Inspectors have the authority to grant casual time off up to a couple of hours.

19. Inspectors are not involved in hiring employees. Although their opinion may be sought on the performance of a probationary employee, there was insufficient evidence presented on the frequency of reliance on such opinions. Thus, the Board does not find that there is a power of effective recommendation at the stage of making an employee permanent. Inspectors do not have the authority to fire employees nor do they make effective recommendations with respect to firing employees. However, in cases dealing with the status of "first line" managers who supervise union­ized employees, the Board has noted that the absence of a decisive role in lay-offs, recall, promo­tions, transfers, filling vacancies, hiring, wage increases and firing, is not determinative. Ford Motor Co., supra, paragraphs 35, 36.

20. The authority of Inspectors to discipline Operators is central to the status of Inspectors. The six individuals examined shared varying views with respect to their power to discipline. How­ever, having reviewed the evidence as a whole, and having considered the documentary evidence filed with respect to Inspectors' duties and responsibilities, the Board concludes that the real dis­pute is not one of fact, but of perception. When viewed as a whole, the Inspectors generally agreed on the facts with respect to their power to issue warnings, but differed over their interpretations whether this power amounted to a power to discipline.

21. When an Inspector observes an infraction of company rules, policies or practices, the Inspector has the discretion to determine how to deal with the situation. The Inspector may decide to do nothing. Alternatively, the Inspector may decide to take some action on the matter. One of the options is to "speak to" the Operator about the matter. In that case the Inspector records the incident in a notebook. "Speaking to" an Operator could take the form of counselling or coaching or admonishing. This power to "speak to" an Operator was characterized by the responding party as the power to deliver an oral warning. The evidence indicated that Inspectors "spoke to" or pro­vided oral warnings to an Operator several times before proceeding to the next step of "writing up" an Operator. "Writing up" an Inspector involves filling out a service report with respect to an infraction of company rules, practices or policies. A service report is the document that Inspectors use to record all incidents observed during their work day. On it, Inspectors primarily record mat­ters such as route conditions or schedule changes. However, Inspectors also use these service reports to record infractions committed by the Operator, such as untimeliness or unsafe operation of a vehicle. The employer's position was that "writing up" an Operator constitutes issuing a writ­ten warning. The evidence indicates that the service report is placed in the Operator's personnel file and relied on as part of the employee's record for the purpose of issuing more serious forms of discipline, including suspensions and discharge.

22. The service report is one of the many forms which Inspectors use to monitor the work performance of Operators. The "Inspector/Supervisor Vault Check" is used to record whether the Operator is removing the fare box properly. The "Operators' Equipment Check List" is used to confirm whether Operators are using the appropriate equipment. The "Check of Vehicles Running into Division" is used to check whether Operators are completing their mileage according to sched­ule. "Ride Slips" are used to conduct performance appraisals.

23. In addition, Inspectors conduct plainclothes surveillance on Operators to supervise their performance, and write reports based on their observations.

24. In determining whether this authority to counsel, warn, and write up an Operator should be considered disciplinary, the Board notes the extensive training received by Inspectors on disciplining employees. With respect to the authority to discipline, the power of choice whether to coach, counsel, correct or "let something go", is itself an indication of managerial status. Ford Motor Co., supra, paragraph 23.

25. Whether or not "speaking to" or "writing up" an Operator can be technically defined as discipline, the Board finds that in this case it is done with such frequency and has such subse­quent negative effect with respect to more serious discipline, that it is a function that is incompati­ble with inclusion in a bargaining unit.

26. In exceptional circumstances, two Inspectors operating jointly have the authority to instruct an Operator to cease operating the vehicle and to take the Operator to a Division Superin­tendent.

27. Inspectors sit on various union management committees as representatives of manage­ment. For example, Inspectors act as management representatives on the Occupational Health and Safety Committee. Further, the Inspector is the Commission representative if an Operator chooses to exercise a right to refuse unsafe work under the Occupational Health and Safety Act.

28. During the day, there are senior levels of supervision available to give advice and instruction to the Operators and to implement more serious forms of discipline, as necessary. How­ever, in the evenings, the more senior members of management (apart from Transit Centre Con­trollers) are not immediately available.

29. Although no Operators were called to give evidence, the Inspectors, all formerly Oper­ators themselves, gave evidence that when they had worked as Operators, they had regarded the Inspectors as their "boss". A senior member of management testified that the Commission views the Inspectors as the front-line managerial staff.

30. Inspectors are the eyes and ears of the Commission and without them, the Operators would be unsupervised. If the Inspectors are not supervising the work of Operators, then Opera­tors would essentially be supervised by the next levels of management, Supervisor of Inspectors, Assistant Superintendents and Superintendents. The Operators would be supervised by persons with whom they very rarely have contact. As was stated in the Ford Motor Co. "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."

31. Inspectors spend virtually all of their time supervising, and rarely perform bargaining unit work.

32. The Board has recently had the opportunity to consider whether Inspectors in the Windsor transit system are employees within the meaning of the Act. (See Transit Windsor [1991] OLRB Rep. April 565). The facts in this case are almost identical to the facts in the Transit Windsor case. In that case, the Board concluded:

33. Having considered the submissions of the parties and the evidence in its totality, the Board is of the opinion that the Operations Supervisors exercise managerial functions and should be excluded pursuant to section 1(3)(b). We are persuaded that the combination of the prominence of their supervisory function and their role in the disciplinary process, however it is labelled, create the kind of conflict of interest which the Act requires be avoided. The role of the Opera­tions Supervisors in giving warnings, whether they are technically disciplinary or not in the sense given to that term by the arbitral jurisprudence, is neither minor, nor infrequent. ... When and if to "write up" an Operator is within the supervisor's discretion. It follows earlier reminders on the supervisors' part. When and if to send an employee home is a judgement for the Operations Supervisor to make on the spot. The rules which the supervisors enforce are well established, and partially agreed to in the collective agreement. However, this does not make the negative effects which flow from their enforcement any less tangible. The Operations Supervisors are too regularly and too centrally involved in this process to warrant the conclusion that they are merely delivering decisions made elsewhere or that it is a function incidental to other duties. It is clear that as discipline gets more serious, the supervisors' consultation with upper manage­ment increases, ... However, we are persuaded that the role in the earlier stages of the rule enforcement process, even without the initiating role for suspensions, warrants the Supervisors' exclusion.

34. Like the Board in the Transit Windsor case, we too are of the opinion that Inspectors exercise managerial functions and are therefore excluded from the operation of the Act.

Instructors

34. An Instructor is an Inspector who is assigned to the Commission's operating training centre where Commission personnel are trained and evaluated.

35. An Instructor is responsible for conducting practical and classroom instructional duties in the training of operating personnel. This includes giving lectures regarding the duties and responsibilities of operating personnel, conducting practical demonstrations, observing the perfor­mance of student Operators, and conducting oral and written examinations, including practical tests on equipment and vehicle operation. An Instructor is not involved in the initial selection or hiring of new employees. However, all new employees undergo a training period under the super­vision of the Instructor. The Instructor has the effective power to terminate the new employee by failing the new employee on required tests. Once a new employee/trainee has passed the initial training period, he/she is on probation for a period of one year. Input on the probationary employ­ees' performance is sought from the Inspectors and the Instructors. Instructors make effective rec­ommendations whether the probationer should be retained at the end of the probationary period.

36. In light of this responsibility to assess and effectively recommend the retention or dis­missal of new hires and probationary employees, the Board concludes that Instructors exercise managerial functions within the meaning of the Act.

37. In conclusion, the Board finds that Inspectors and Instructors exercise managerial func­tions and are therefore not employees within the meaning of the Act.