[1998] OLRB REP. JANUARY/FEBRUARY 96
1285-97-R National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada), Applicant v. Sivaco Ontario, Responding Party
BEFORE: Kevin Whitaker, Vice-Chair.
APPEARANCES: John Brady, Dan MacPherson, Duane Burk and Wes Davie for the applicant; Edward J. McDermott, Bruce Roddick and M. Lonshary for the responding party.
DECISION OF THE BOARD; January 23, 1998
I
1. This is an application for certification. By decision dated July 17, 1997, a representation vote was ordered and held on July 28, 1997. Five ballots were cast and counted. Four ballots were marked in favour of the applicant and one ballot was marked against the applicant.
2. The applicant sought the following bargaining unit:
all employees of Sivaco Ontario, in the City of Ingersoll, Ontario, save and except supervisors, persons above the rank of supervisor, office, clerical and sales staff and persons covered by a previous Ontario Labour Relations Board certificate.
3. From the outset of the application, the respondent took the position that the bargaining unit sought by the applicant was inappropriate on the basis that it included only persons who are not employees for purposes of section 1 (3)(b) of the Labour Relations Act, 1995 (the "Act"). The respondent argued that these persons exercise managerial functions and ought to be excluded on that basis. This dispute was the only remaining issue to be determined.
4. A hearing was held on September 2 and 3, 1997. On September 8, 1997, the Board issued a decision finding that the bargaining unit proposed by the applicant was appropriate. A certificate was issued on that basis. What follows are the reasons for the decision of September 8, 1997.
II
5. The respondent manufactures metal, wire and rod products which are used in the automotive industry. Most of the respondent's clients are automotive parts manufacturers who use the respondent's products in their own manufacturing processes.
6. The applicant has for many years, represented a production bargaining unit of the respondent's employees. That bargaining unit is described in the most recent collective agreement between the parties in the following terms:
all employees of Sivaco Ontario at Ingersoll, Ontario, save and except foremen, persons above the rank of foremen, office and sales staff.
7. The five persons whose status is contested are employed as Quality Assurance Technicians ("QAs"). The respondent suggests that there are four principal reasons for determining that these persons exercise managerial functions:
(i) That the recognition clause in the existing collective agreement between the parties with respect to production employees, with the exception of "persons covered by an existing collective agreement" mirrors the exemptions in the bargaining unit sought by the applicant here. It is argued that this indicates the parties' intention that QA's are to be considered management;
(ii) QAs enjoy as part of their terms and conditions of employment, a number of "management" indicia;
(iii) Part of the job duties of QA's is to work on a regular basis as an acting supervisor (an agreed management exclusion);
(iv) The most central and critical part of a QA's job is to identify either material or process defects in product which could and have resulted in the discipline of bargaining unit members, albeit members of the existing production bargaining unit. This, it is suggested, amounts to managerial duties placing the QAs in a serious conflict of loyalties and duties.
8. The respondent called as a witness, Bruce Roddick, General Manager. The applicant called as a witness, Duane Burk QA.
9. The evidence indicates that QA's are responsible for monitoring on an ongoing basis, the quality of product. There is no dispute that they are not responsible for monitoring the performance of employees. While it is true that QA's may find fault with product which may in turn reflect detrimentally on the quality of work performed by other employees, the decisions which must be made concerning the consequences of faulty work are not made by QA's, but by persons who are clearly members of management. The QA's role is to monitor and identify the quality of product. Decisions about how to deal with defects are left to management.
10. With respect to the issue of whether the parties may be taken by their conduct to have understood QA's to be managerial, even if that were the case, the parties cannot by agreement determine a class of employees to be excluded as management if in fact, their duties do not justify such a conclusion. The parties' conduct in this regard is certainly a factor to consider along with other evidence, but it is not in itself conclusive of the issue.
11. With respect to the QA's role as acting supervisor, I am satisfied that in practice, QA's do not exercise in this role, the traditional types of authorities usually attributable to management. In other words, while acting as supervisors, QA's do not exercise any serious degree of control over the economic livelihoods of other persons who are employees for purposes of the Act.
12. Finally, with respect to the issue of whether QA's enjoy as terms and conditions of employment, some of the usual "indicia" of management, it is true that they are not treated the same as "hourly" employees in all respects. On balance however, I find that the differences in treatment are not sufficient to warrant a determination that QA's are not employees for purposes of the Act having regard in particular to the actual job duties performed.
III
13. In summary, I find that QA's are employees for purposes of the Act.