National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (CAW-Canada) v. Reynolds-Lemmerz Industries, 1995 CanLII 9988

[1995] OLRB Rep. January 59

4171-93-R National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (CAW-Canada), Applicant v. Reynolds-Lemmerz Industries, Responding Party v. Group of Employees, Objectors

BEFORE: Russell G. Goodfellow, Vice-Chair, and Board Members R. M. Sloan and D. A. Patterson.

APPEARANCES: Catherine Gilbert for the applicant; Philip J. Wolfenden for the responding party.

DECISION OF THE BOARD; January 31, 1995

1. In a decision dated March 28, 1994, the Board certified the applicant on an interim basis for a bargaining unit described as follows:

all employees of Reynolds-Lemmerz Industries in the Town of Collingwood, save and except supervisors, persons above the rank of supervisor, office, clerical and sales staff, persons regularly employed for not more than twenty-four (24) hours per week and students employed during the school vacation period, and, pending resolution by the Board, excluding as well,

(I) Quality Assurance staff

(II) Lead Hands

(III) Senior Deburrers

(IV) Linemen.

(emphasis added)

2. A Labour Relations Officer was then appointed to inquire into and report to the Board on the duties and responsibilities and the community of interest with the bargaining unit of the persons employed in the disputed classifications. By decision dated September 1,1994 [now reported at [1994] OLRB Rep. Sept. 1242], the Board revoked the appointment of the Labour Relations Officer, directed the Registrar to schedule a hearing before a panel of the Board to deal with these issues, and imposed the following procedural obligations on the parties:

Not later than two weeks prior to the commencement of that hearing, the employer is required to file with the Board and the union particulars of its position as to the inclusion or exclusion of the members of the disputed classifications, including the details of their job functions and the basis for the employer's request. Within one week of the receipt of this material, the union must file a detailed response to the employer's position.

3. As matters developed, the employer failed to comply with these obligations and, for reasons given orally at the hearing, the Board (R. M. Sloan dissenting) ruled that it would proceed to deal with the issues based solely on the statement of facts filed by the applicant and on the parties' oral arguments. The classifications to which this ruling applies are set out in paragraph 3 of the following minutes of settlement entered into by the parties on the morning of the hearing:

ONTARIO LABOUR RELATIONS BOARD

Board File No: 4171-93-R

Between:

National Automobile, Aerospace and Agricultural Implements Workers Union of Canada (CAW-Canada)

Applicant

• and -

Reynolds-Lemmerz Industries

Responding Party

MINUTES OF SETTLEMENT

In the matter noted above the parties agree to the following:

1. The following classifications are agreed to be included in the bargaining unit:

(i) CMM Technicians

(ii) Lab Technicians and

(iii) Dimensional Technicians

2. The following classifications are agreed to be excluded from the bargaining unit:

(i) CMM Coordinator

(ii) Q.C. Auditor

(iii) Chem Lab Technicians

(iv) Fatigue Technicians

(v) Receiving Auditor

(vi) Reliability Engineer

(vii) SPC Coordinator and

(viii) Special Projects Coordinator

3. The following classifications are still in dispute:

(i) Lead Hand

(ii) Line Persons and

(iii) Sr. Deburrers

and the parties request that the Board reconvene the hearing, rule on any preliminary motions and proceed to determine the outstanding issues in dispute.

Dated in Toronto this 20th day of November, 1994

"Bruce Davidson" "James Gray"

For the Applicant For the Responding Party

4. The applicant's statement of facts with respect to the lead hands, line persons and senior deburrers reads as follows:

LEAD HANDS

28. It is submitted that the workers in the lead hand category are not "employees" for purposes of collective bargaining. Members of this job category exercise managerial functions, and should not be included in the bargaining unit.

29. Lead Hands enjoy and use the authority to issue verbal warnings or notices.

30. Lead hands enjoy and use the authority to effectively recommend that employees be given written warnings or disciplinary notices.

31. Lead hands sign written warnings or disciplinary notices. Lead hands are present when written warnings or disciplinary notices are given.

32. On February 18, 1994, a lead hand named Mark Ralston signed a written warning to Morgan Lawrence. Mr. Ralston did not sign as a witness. (see Exhibit "D")

33. On July 27, 1994, Mark Ralston signed, as a witness, a final written warning and one-day suspension notice to Morgan Lawrence regarding insubordination by allegedly distributing CAW-Canada bulletins in the plant. The document was also signed by a supervisor named Charlie Dickieson. (See Exhibit "E")

34. On November 18, 1993, Mark Ralston signed a written warning to Morgan Lawrence. No other person signed this warning. (See Exhibit "F")

35. On March 18, 1994, a lead hand named Chris Beatty signed, as a witness, a written warning to Scott Cochrane of the Casting Department. (See Exhibit "G")

36. Lead hands enjoy and use the authority to schedule working hours outside of employees' regularly scheduled hours. Lead hands enjoy and use the authority, with the approval of foremen, to offer overtime work.

37. Lead hands enjoy and use the authority to allow or deny employees' requests to have time off or leave work early in certain circumstances.

38. Lead hands direct the day-to-day duties of employees. Most often, employees will know without instructions what is to be done. On certain occasions, such as when machines are not functional, lead hands enjoy and use the authority to give interim instructions.

39. Lead hands or foremen prepare and circulate a weekly time sheet for payroll purposes to be signed by operators.

40. Operators fill in a daily production sheet. These individual reports are turned over to the lead hands, who prepare departmental production sheets.

41. Lead hands enjoy access to employee files.

42. Lead hands attend weekly production meetings along with linemen, senior deburrers, and all supervisory staff at Reynolds-Lemmerz. Operators do not attend these meetings. (See Exhibit "H")

43. In the alternative, it is submitted that workers in the lead hand category do not share a sufficient community of interest with members of the proposed bargaining unit.

44. Lead hands perform physical shop work only for the purpose of accommodating employee lunch and coffee breaks. This occupies no more than one hour of their time per shift.

45. A considerable portion of a lead hand's time is spent doing supervisory work, disciplinary work, paperwork, checks, inspections or chemical work.

46. A desk, filing cabinet and locker are set aside for use by the lead hands. Production employees do not use these items. Lockers for the production employees are located in a separate area.

47. Although lead hands and operators take lunch and coffee breaks in the same cafeteria, lead hands enjoy longer lunch and coffee breaks. Further, lead hands may take coffee and lunch breaks at times of their own choosing.

48. Lead hands report to work earlier than do operators.

49. Lead hands are permitted to enter the company stores. Operators are not permitted to enter the company stores.

LINEMEN

50. It is submitted that the workers in the lineman category are not "employees" for purposes of collective bargaining. Members of this job category exercise managerial functions, and should not be included in the bargaining unit.

51. Linemen enjoy and use the authority to issue verbal warnings or notices.

52. Linemen enjoy and use the authority to effectively recommend that employees be given written warnings or disciplinary notices.

53. On October 6, 1994, a lineman named Stewart Reed signed, as a witness, a final written warning to Richard Boudreau. The warning was also signed by a supervisor named Jim Morwood. (See Exhibit "I")

54. On October 10, 1994, a lineman named Gerald Holmes signed a final written warning to Rick Geiger. The warning was also signed by a supervisor named Sean Cain. (See Exhibit "J")

55. Linemen enjoy and use the authority to schedule working hours outside of employees' regular schedules. Linemen enjoy and use the authority, with the approval of foremen, to offer overtime work.

56. In some situations, linemen enjoy and use the authority to allow or deny employees' requests to have time off or leave work early.

57. Linemen direct the day-to-day duties of employees. Most often, employees will know without instructions what is to be done. On certain occasions, such as when machines are not functional, linemen enjoy the authority to give interim instructions.

58. Linemen or foremen prepare and circulate a weekly time sheet for payroll purposes to be signed by operators.

59. Operators fill in a daily production sheet. These individual reports are turned over to the linemen, who prepare departmental productions sheets.

60. Linemen enjoy access to employee files.

61. Linemen attend weekly production meetings along with linemen, senior deburrers, and all supervisory staff at Reynolds-Lemmerz. Operators do not attend these meetings. (See Exhibit "H")

62. In the alternative, it is submitted that workers in the lineman category do not share a sufficient community of interest with members of the proposed bargaining unit.

63. Linemen perform physical shop work only for the purposes of accommodating employee lunch and coffee breaks. This occupies no more than one hour of their time per shift.

64. A significant portion of a lead hand's time is spent doing supervisor work, disciplinary work, paperwork or inspections.

65. A desk, filing cabinet and locker are set aside for use by the lead hands. Production employees do not use these items. Lockers for the production employees are located in a separate area.

66. Although linemen and operators take lunch and coffee breaks in the same cafeteria, linemen enjoy longer lunch and coffee breaks. Further, linemen may take coffee and lunch breaks at times of their own choosing.

67. Linemen report to work earlier than do operators.

68. Linemen are permitted to enter the company stores. Operators are not permitted to enter the company stores.

69. Linemen earn approximately thirty per cent more wages than do operators, deburrers or quality assurance workers.

SENIOR DEBURRERS

70. It is submitted that the workers in the senior deburrer category are not employees for purposes of collective bargaining. Members of these three job categories exercise managerial functions, and should not be included in the bargaining unit.

71. Senior deburrers enjoy and use the authority to issue verbal warnings to deburrers.

72. Senior deburrers enjoy and use the authority to effectively recommend that deburrers be given written warnings or disciplinary notices.

73. Senior deburrers sign written warnings or disciplinary notices to deburrers. Senior deburrers are present when written warnings or disciplinary notices are given to deburrers.

74. On July 28, 1994, a written warning was given to Jacquie Lawrence, signed only by a senior deburrer named Carolyn Greco. (See Exhibit "K")

75. Senior deburrers possess and exercise the authority to offer overtime work.

76. Senior deburrers possess and exercise the authority to send deburrers home.

77. When deburrers need t me off work, they make their request to the senior deburrers. The senior deburrers forward these requests to a foreman.

78. Senior deburrers direct the day-to-day functions of the deburrers. The senior deburrers instruct the deburrers tasks to perform and material to work on.

79. When deburrers wish to temporarily trade shifts, the senior deburrers possess and exercise the authority to deny or allow their requests.

80. In cases of accidents in the deburring department, senior deburrers fill out the accident report.

81. The senior deburrers enjoy access to the personnel files on deburrers.

82. Senior deburrers attend weekly production meetings along with lead hands, linemen, and all supervisory staff at Reynolds-Lemmerz. Deburrers do not attend these meetings. (See Exhibit "H")

83. Senior deburrers are responsible for the training of deburrers. At the conclusion of a three-month probationary period, they recommend the dismissal or retention of deburrers.

84. In the alternative, it is submitted that workers in the senior deburrer category do not share a sufficient community of interest with members of the proposed bargaining unit.

85. All senior deburrers perform supervisor, disciplinary and office work. They perform actual deburring on an irregular basis, and only when necessary. Some senior deburrers never perform actual deburring.

86. Senior deburrers spend at least one hour per shift doing paperwork.

87. Senior deburrers use an office are (sic) that includes a desk and a filing cabinet. These items are not used by deburrers.

88. In determining whether persons exercise managerial functions within the meaning of section 1(3) of the Act, the Board requires evidence of independent decision-making with respect to matters that have a significant but indirect impact on terms and conditions of employment of bargaining unit members, or evidence that the individuals in question exercise, at minimum, a power of effective recommendation over matters with more direct and immediate effects. "Effective recommendations" are ones which are "so consistently and frequently followed that it could be said that through the recommendations [the individuals in question] are effectively controlling or determining the decisions": Etobicoke Hydro-Electric Commission, [1981] OLRB Rep. Jan. 38. The Board considers the extent to which individuals exercise the authority to hire, fire, promote, demote, discipline, review performance, grant wage increases, assign work, assign overtime opportunities, grant time off work with or without pay, etc. In order for employees to be excluded from the definition of "employee" under the Act, the Board must be satisfied that the requisite authority is exercised with some frequency. A mere "sprinkling" of managerial tasks will not be sufficient. The onus is on the party seeking the exclusion to establish the necessary facts.

89. Having reviewed the applicant's statement of facts, and for the reasons set out below, the Board is not satisfied that the lead hands, line persons and senior deburrers exercise managerial functions within the meaning of the Act.

90. First, of the various areas of managerial decision-making identified in paragraph 5 of this decision, the disputed personnel appear to be involved only in discipline, overtime assignments and requests for time off work. There is no suggestion that the employees have any role in hiring, firing (except to the limited extent discussed below), promotion, demotion, performance reviews, granting or determining wage increases, or establishing work assignments. The additional tasks outlined in the statement of facts (i.e. directing the activities of employees who, for the most part, appear to know what work is to be done, preparing and circulating timesheets for signature by employees for payroll purposes, compiling departmental production sheets from individual sheets prepared by bargaining unit members, having access to employee files and attending at weekly production meetings) are not functions which are exclusively managerial. Further, the statement contained in paragraph 76 that "senior deburrers possess and exercise the authority to send deburrers home" is not sufficient either alone or in conjunction with the other tasks to warrant a finding of managerial status.

91. Second, with respect to those aspects of managerial decision-making in which persons employed in the disputed classifications appear to be involved, that involvement is limited. Independent decisions appear to be made only with respect to verbal warnings or notices, and with respect to time off work. In the latter case, the authority is said to be exercised only "in certain circumstances" and there is no evidence to suggest that employees are paid for the time off. Moreover, the power to make effective recommendations appears to be limited to written warnings. The witnessing of more formal discipline (e.g. one day suspensions or "final warnings" before discharge) qualifies neither as an independent decision or an effective recommendation. Likewise, the statement continued in paragraphs 36 and 55, for example, that "linemen enjoy and use the authority, with the approval of foremen, to offer overtime work" gives no indication as to whether these offers proceed from an "effective recommendation". Further, and apart from this function, what is meant by "the authority to schedule working hours outside of employees' regularly scheduled hours" is unclear.

92. Finally, there is no suggestion that any of the foregoing activity occurs with any real frequency.

93. In short, it appears to the Board that the employees in question are not front line management but, at most, typical "lead hands" who would ordinarily be included within the definition of employee under the Act.

94. The applicant also argues that the lead hands, line persons and senior deburrers should not be included in the bargaining unit because "they do not share a sufficient community interest with other members of the proposed bargaining unit". The facts do not support this conclusion.

95. At least since the Board's decision in the Hospital for Sick Children, [1985] OLRB Rep. Feb. 266, the concept of "community of interest" has played an increasingly limited role in the Board's determination of appropriate bargaining units. Recently, in Active Mold Plastic Products Ltd., [1994] OLRB Rep. June 617, the Board dealt with the concept of community of interest as follows:

96. Most recently, in Burns International Security Services Limited (unreported, April 7, 1994, Board File 3340-93-R), the Board addressed the utility of the concept of "community of interest". In this decision, it was noted that the term "community of interest" does not usually provide the Board with much assistance in determining whether an applied for bargaining unit is appropriate. It was observed in this decision that the focus before the Board in bargaining unit determination cases should be upon "concrete problems rather than the sometimes nebulous concept of 'community of interest"'. After citing a passage from Homewood Health Centre [1992] OLRB Rep. Feb. 181, in which Hospital for Sick Children is once again referred to, the Board observes as follows at paragraph 30:

These passages suggest a more flexible approach, focusing on the problems caused or averted by particular bargaining unit configurations, rather than so-called Board policies that may or may not reflect current labour relations realities. This is not to say that history or existing practices are irrelevant. History can be a useful guideline to what is appropriate because established practice may reveal what works and what does not. And, of course, there is some virtue in certainty and simplicity - hence the Board's inclination to define bargaining units with respect to the geographic municipality in which the employer operates. But as the practice in the security industry amply illustrates: multiple locations, or even multiple municipalities may also be appropriate bargaining units.

30. This panel of the Board agrees with the approach to the concept of "community of interest" which is reflected by the decision of Burns International Security Services Limited, described above. In the case before us, we found the numerous references to "community of interest" to be unhelpful. As noted by the Board in Burns International Security Services Limited, all employees share a "community of interest" by virtue of working for the same employer. In point of fact, there are numerous "communities of interest" that can be identified in any particular workplace. It is not necessary nor is it desirable for the Board to assess the relative strengths of the varied "communities of interest" in the workplace, just as it is unnecessary for the Board to consider alternative bargaining unit descriptions in the absence of serious labour relations problems. At the end of the day, the Board's focus should be upon the concrete, demonstrable problems which will result from the applicant's proposed bargaining unit should it be granted by the Board. In the absence of such concrete, demonstrable problems, the applicant's proposed bargaining unit will be acceptable to the Board.

31. In this case, it is evident that the lead hands, line persons and senior deburrers share a sufficient community of interest to bargain together in a viable way with the rest of the agreed upon bargaining unit. The performance of office work, differences in hours of work and locations of lockers, access to company stores, etc., are not sufficient to deprive employees of the ability to bargain together in a viable way under one agreement; nor do they amount to serious labour relations problems.

32. Accordingly, and having regard to the Board's decision dated March 28, 1994 and the agreement of the parties, the Board hereby certifies the applicant as bargaining agent for all employees of Reynolds-Lemmerz Industries in the Town of Collingwood, save and except supervisors, persons above the rank of supervisor, office, clerical and sales staff, CMM Coordinator, Q.C. Auditor, Chem Lab Technicians, Fatigue Technicians, Receiving Auditor, Reliability Engineer, SPC Coordinator and Special Projects Coordinator, persons regularly employed for not more than twenty-four (24) hours per week and students employed during the school vacation period.

33. A final certificate will issue to the applicant.