Teamsters, Chauffeurs, Warehousemen and Helpers Union, Local No. 880 v. Corporation of the Town of Bothwell, 1994 CanLII 9974

Ontario Labour Relations Board

Teamsters, Chauffeurs, Warehousemen and Helpers Union, Local No. 880 v. Corporation of the Town of Bothwell

[1994] OLRB Rep. March 237

1981-93-R Teamsters, Chauffeurs, Warehousemen and Helpers Union, Local No. 880, Applicant v. Corporation of the Town of Bothwell, Responding Party

BEFORE: Lee Shouldice, Vice-Chair, and Board Members G. 0. Shamanski and P. V. Grasso.

DECISION OF THE BOARD; March 25, 1994

1. This is an application for certification. Pursuant to an earlier decision of the Board dated October 5, 1993, a Labour Relations Officer was appointed to inquire into and to report to the Board with respect to three individuals who the responding party states are not ''employees~~ for the purpose of the Labour Relations Act. Prior to the examinations scheduled by the Board, the parties agreed that Greg St. Pierre, a cemetery worker, was not an employee of the responding party for the purpose of the Act.

2. It is the position of the responding party that Pat Broad, Deputy Treasurer, is employed by the responding party in a confidential capacity in matters related to labour relations so as to exclude her from the bargaining unit, and that William McRoberts, Works Supervisor, exercises managerial functions so as to exclude him from the bargaining unit. The applicant takes the posi­tion that both individuals are employees for the purposes of the Act and should be included in the bargaining unit.

3. A Labour Relations Officer convened a meeting of the parties and heard evidence with respect to this issue. A transcript was prepared and provided to the parties following which written submissions were filed with the Board by both parties. Neither party requested an oral hearing. The Board has reviewed the transcript and fully considered the submissions of the parties in com­ing to its decision.

4. We propose first to set out the principles that we have taken into consideration in reach­ing our conclusions, and then to review the evidence. Section 1(3) of the Act 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.

It is apparent from the reading of section 1(3) of the Act that there are two grounds upon which individuals can be excluded from collective bargaining. Should an individual exercise managerial functions he will be so excluded. The individual must make independent decisions on important matters of policy or the running of the organization or make effective recommendations on matters having a direct impact on terms and conditions of employment. Alternatively, should the individ­ual have regular and material involvement in matters which impact upon collective agreement negotiations or the employer's collective bargaining strategy, the confidential exclusion will apply. The underlying basis for these two exclusions is not difficult to discern - it is important to ensure that those individuals who have managerial or confidential duties remain free of any conflicting interest which may influence them in the proper and faithful execution of their duties.

5. In the Corporation of the City of Thunder Bay, [1981] OLRB Rep. Aug. 1121, the Board made the following observations regarding "first line" managerial employees:

6. 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.

7. 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 kind of con­flict of interest which section l(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.

8. 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 while 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 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 managerial line the persons fall. Senior or skilled employees often have more responsibilities than other rank and tile 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 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 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 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 I(3)(b).

We agree with the Board's observations in that decision.

6. Similarly, the Board made the following observations (with which we also agree) regarding the "confidential" exclusion in Kitchener Waterloo Hospital, [1986] OLRB Rep. May 651.

7. The second branch of section 1(3)(b) has a similar collective bargaining purpose: to exclude from a bargaining unit persons who have access to confidential material relating to labour rela­tions, so that the employer can know that its internal strategies and communications are known and handled exclusively by persons of undivided loyalty (see Town of Gananoque, [1981] OLRB Rep. July 1010). Access to information which may be "confidential" is not, by itself, sufficient to exclude an employee from the application of the Act since what is important is not the confi­dentiality of the information, but rather its labour relations content and potential collective bar­gaining use. For example, the secretary to the industrial relations manager may have no inde­pendent managerial authority, but may still be privy to the employer's collective bargaining strategy or other sensitive labour relations information. At its most prosaic level, even a clerk or a stenographer who takes minutes at a management meeting to plan the employer's collective bargaining posture should not be faced with a potential conflict of loyalty because of his/her membership in the bargaining unit. However, as the Board indicated in York University, [1975] OLRB Rep. Dec. 945:

.the Board must be satisfied of "a regular, material involvement in matters relating to labour relations" to justify a finding excluding a person from operation of the Act. (See, The Falconbridge Nickel Mines Ltd. case, [1969] OLRB Rep. September 379). Mere access to confidential information that may pertain to labour relations, standing alone, is no reason for excluding employees from the bargaining unit. (The Metropoli­tan Separate School Board case, [1974] OLRB Rep. Apr. 220). Nor is mere knowl­edge of matters that may be deemed "confidential" in the sense that the employer would not approve of the disclosure of such information by his employees sufficient to justify a positive finding under section 1(3)(b). (See The Comtech Group Limited case, [1974] OLRB Rep. May 291) The important test is whether there is a consistent exposure to confidential information on matters relating to labour relations so as to constitute such exposure an integral part of the employee's service to the employer's enterprise. (See The Toledo Scale Division of Reliance Electric Limited case, [1974] OLRB Rep. June 406).

7. With the above principles in mind, we consider the two individuals in question before us.

Pat Broad

8. Ms. Pat Broad is the Deputy Treasurer of the Town of Bothwell. A review of the tran­script discloses few if any facts that would suggest that she be excluded from collective bargaining. Employer's counsel focused his concerns on the fact that the Clerk-Treasurer of the Town, who is excluded from the unit, works a 4-day week and that it is the responsibility of Ms. Broad to act in his place when he is absent. Counsel submitted that Ms. Broad, as a practical matter, could not leave "management issues" for the return of the Clerk-Treasurer and therefore should as a matter of principle be excluded from collective bargaining.

9. The Board does not agree. The transcript of the examination of Ms. Broad discloses no involvement in any matters relating to labour relations. She was unaware of whether the Town kept personnel records on its employees. There is no suggestion in the evidence that Ms. Broad participates in any way with respect to strategic decisions relating to employment matters - she does not hire, screen or interview potential employees, nor does she participate in personnel dis­cussions at a strategic level. Ms. Broad's only connection to employment matters is in her role as the person who prepares payroll and remittance documentation. These documents are kept in her office and are hardly the type of documentation to which the "confidential exclusion" is intended to refer.

10. It is true that Ms. Broad acts as Clerk-Treasurer in the absence of the Clerk-Treasurer once per week. This is not something which, in any way, affects Ms. Broad's access to confidential labour relations information. The transcript of the examination makes it quite clear that Ms. Broad does not assume any of the Clerk-Treasurer's duties relating to employment matters when the Clerk-Treasurer is absent. As a result, there is no evidence to suggest that Ms. Broad ought to be excluded from the bargaining unit. The Board finds that Ms. Broad is an employee for the pur­poses of the Act.

William McRoberts

11. Mr. William McRoberts is the Working Public Works Supervisor of the Town of Both-well. The responding p arty urges exclusion of Mr. McRoberts on the grounds that he has the effec­tive power to hire and fire other employees, schedules and assigns work, evaluates, instructs and directs his Assistant in all matters. Counsel focuses as well on Mr. McRoberts' budget involvement and his involvement in long term planning. Counsel urges the Board to keep in mind that the tran­script discloses that Mr. McRoberts is a "co-operative", rather than "autocratic" supervisor, which may explain a lack of disciplinary or discharge involvement by Mr. McRoberts.

12. Once again, the Board does not agree with the conclusion submitted by the employer. As noted in Corporation of the City of Thunder Bay, supra, the important question in cases of first line managerial employees is the extent to which they make decisions which affect the economic lives of their fellow employees. It is clear from the transcript of Mr. McRoberts' examination that he does not have the ability to hire, promote, demote, or grant wage increases to his Assistant -these are all functions which are retained by Town Council. It is true that Mr. McRoberts had, at one time, the ability, which he exercised, to hire "fill ins" should his Assistant be absent for any particular reason. However, since his current Assistant has been employed by the Town no such part-time or casual employees have been hired by Mr. McRoberts. The decision to hire his current Assistant, and the number of hours that he works, were both made by Town Council, with input by Mr. McRoberts. It is significant that Mr. McRoberts recommended a 40-hour week for his Assis­tant and that Town Council decided to permit only a 24-hour week. No explanation for the non-ac­ceptance of his recommendation was given to Mr. McRoberts.

13. Mr. McRoberts has never been faced with a disciplinary situation. He speculated that, should he be put in a situation which required discipline, he would "log" his observations and attend before Town Council for guidance as to what steps to take. Mr. McRoberts felt that in such circumstances he may well be asked for an opinion or a recommendation by Town Council. In our view, it is difficult to reach any conclusion as to what would occur in this situation, as the Town Council has, on other matters, not adopted Mr. McRoberts' recommendations and implemented them. We can only conclude that the evidence does not establish, on a balance of probabilities, that any recommendations made by Mr. McRoberts would be adopted by Town Council so regu­larly as to characterize them as "effective recommendations".

14. With respect to policy formulation, the evidence before the Board indicates that Mr. McRoberts has no real function in that regard. He is involved in some long range planning for the Town in his area of expertise, but this is in conjunction with Town Council. On a day-to-day basis, Mr. McRoberts has discretion only to make routine decisions, such as arranging for salt and sand purchases. More significant investment decisions - such as the purchase of new machinery - is left to Town Council, though Mr. McRoberts is one individual who would be sought out for an opinion in that case.

15. Finally, it is evident from the transcript of testimony that Mr. McRoberts spends a great deal of his work week performing "hands on" work such as that performed by his Assistant. Although Mr. McRoberts does have scheduling responsibilities (the schedule seems to be set on a consultative basis with his Assistant) and other minor supervisory powers, these responsibilities are easily outweighed by the lack of managerial functions which is otherwise indicated by his daily rou­tine. Accordingly, we are of the view that Mr. McRoberts is an employee for the purposes of the Act and ought to be included in the bargaining unit.

16. The Board finds, therefore, that the appropriate bargaining unit is:

all employees of the Corporation of the Town of Bothwell in the Town of Bothwell, save and except Clerk-Treasurer and persons above the rank of Clerk-Treasurer.

17. In accordance with the Rules of Procedure respecting applications for certification, the employer has filed a list of employees in the bargaining unit, together with sample signatures for the employees on that list.

18. In support of its application for certification, the applicant union filed documentary evidence in the form of membership evidence cards. The cards are signed by each employee con­cerned, are dated within the six-month period immediately preceding the certification application date, and are supported by a duly completed Declaration Verifying Membership Evidence.

19. The Board is satisfied, on the basis of all the evidence before it that greater than fifty-five per cent of the employees of the responding party in the bargaining unit on the certification application date, had applied to become members of the applicant on or before that date.

20. A certificate will issue to the applicant.