[1999] OLRB REP. SEPTEMBER/OCTOBER 841
1115-99-R United Food and Commercial Workers International Union, Local 175, Applicant v. 758744 Ontario Ltd. c.o.b. as Huntsville Price Chopper, Responding Party
BEFORE: Timothy W Sargeant, Vice-Chair.
APPEARANCES: Georgia Watts for the applicant; A. P. Tarasuk for the responding party.
DECISION OF THE BOARD; September 27, 1999
This is an application for certification.
At the hearing on September 7, 1999 two preliminary issues were argued. Submissions were received on these issues from the applicant and the responding party within the time limits contemplated by the Board. A oral ruling was given on September 8, 1999 as follows:
on the first issue, I have determined that the voters' list was agree to and the parties had put their minds to the issue of whether Ms. Debra Norman was an employee. In the circumstances I am not prepared to allow either party to resile from their agreement. Thus the segregated ballot of Ms. Debra Norman will not be counted;
on the second issue, I have determined that the situation is more analogous to the Martha's Garden Inc. decision than the Native Child decision. I am thus satisfied that there remains an issue in dispute between the parties as to whether or not Ms. Amber Young's ballot should be counted.
This decision provides written reasons for the above issues and also deals with all issues concerning segregated ballots.
The first preliminary issue involved the segregated ballot of Ms. Debra Norman.
There is no issue that in regards to the voters' list the parties had agreed that Ms. Debra Norman be struck from such list as being "no longer in employ".
Just minutes prior to the vote being held on July 20, 1999 the employer notified both the labour relations officer conducting the vote and the union representative that "I have been advised that #33 Debra Norman has not resigned her employment with the employer and wishes to exercise her right to vote".
Ms. Debra Norman did appear at the vote and was allowed to vote with her ballot being segregated.
The employer submits that this segregated ballot should be counted. In essence counsel for the employer argues that the earlier Board cases prohibiting a party from resiling from its position on a voters' list dealt with a pre-vote system and thus are distinguishable. In any event counsel submitted that the employer is not resiling from its agreement but merely pointing out that there is an error on the voters' list. In counsel's submission employees are granted a statutory right to vote to determine whether or not they wish to be represented by a trade union pursuant to section 8(1) and 10(1) of the Labour Relations Act, 1995 (the "Act").
Counsel for the union submits that once the parties agree on a voters' list neither party should be able to resile from that agreement. The earlier case law supports such a position and by inference Martha's Garden Inc. [1997] OLRB Rep. September/October 891 supports such a position.
There is no question in the Board's mind that the parties had agreed on the composition of the voters' list through the Pre- Vote Consultation process. Equally there is no question that the employer had put its mind to the question of whether Ms. Debra Norman should be included on such a list. It is obviously preferable that the certification process proceed by way of agreement between the parties as much as possible. Thus those agreements made by the parties during the certification process on such issues as the composition of the voters' list should be respected. This is not an instance where an individual was left off the voters' list by inadvertence. Here the parties had directed their minds to whether Ms. Debra Norman should be on the voters' list. In the circumstances the Board is not prepared to allow the employer to resile from that agreement. In the result the segregated ballot of Ms. Debra Norman will not be counted.
The second preliminary issue dealt with the employer's position that it had accepted the union's position in relation to the other four segregated ballots prior to the vote and therefore there was no issue to consider in regards to these ballots.
Originally the union had sought the inclusion of Sandra Groomes (DelilBake Manager), Terry Lacey (Produce Manager), Mike Nichols (Meat Manager) and Amber Young (Front End Manager) in the bargaining unit. The employer originally took the position that such persons were excluded as they exercised managerial authority or where employed in a confidential capacity in matters relating to labour relations.
Just prior to the vote held on July 20, 1999 the employer informed the labour relations officer and the union representative in writing that it accepted the union's position concerning the bargaining unit and withdrew its challenge to the four persons in dispute. Apparently the union representative at roughly the same time informed the labour relations officer (but not the employer) that it accepted the employer's position in regards to the four persons in dispute and agreed such persons should be excluded from the bargaining unit.
The four ballots were segregated by the labour relations officer.
Counsel for the employer submits that once the employer agreed with the union position there is no longer any issue in dispute between the parties in regards to these four segregated ballots. Counsel notes that the union never notified the employer of its changed position until after the vote. The union agrees that it only notified the labour relations officer of its position. Counsel for the employer submits that in this instance the facts are clearly distinguishable from Martha's Garden Inc. and were more closely analogous to the determination in Native Child and Family Services of Toronto decision. Board File No. 3999-96-FC, a decision of the Board, dated July 29, 1997. The Native Child decision deals with a first contract application. The employer had, in the Native Child decision, at the hearing accepted the union's proposed collective agreement. The union objected and the Board held in part "while the union asked the Board to ignore this action taken by the employer, the Board saw no labour relations purpose being served by the continuation of litigation in the face of an employer accepting that which the union had claimed it was prepared to sign as a collective agreement". By analogy in this instance counsel submits that the employer had accepted the union position and therefore the issue was resolved. The union should not after such acceptance be allowed to change its mind. There is no mischief alleged. In the circumstances the Board should find there is no issue to consider and in the result these segregated ballots should be counted. (Note prior to the hearing the union has agreed that three ballots should be counted. The only person left in dispute was Ms. Amber Young the Front End Manager.)
Counsel for the union submits that Martha's Garden Inc. is "on all fours" with the facts in this instance. Thus counsel submits a "flip-flop" is allowed by the Board as long as it is taken in the "objection period" allowed by the Board.
The Board has carefully considered the arguments of counsel. In this instance the Board finds the facts in this instance more analogous to the Martha's Garden Inc. decision than the Native Child decision. In Martha's Garden Inc. decision the issue was whether a group designated us the "Reliable employees" should be included in the bargaining unit. Initially the employer sought their inclusion and the union their exclusion. The Reliable votes were segregated and counted apart. As the Board notes "by the time the period for making post vote representations had elapsed, each of the parties had purported to adopt the position formerly advanced by the other... Essentially, the employer argued that since it had accepted the union's position in writing on April 28, 1997 and that the union had not accepted the Martha's position in writing until May 7th, some nine days later and on the last day of the "objection period", that the Board should conclude that the issue of the Reliable employees had been resolved".
The Board is determining this issue held in part:
The issue which arises now is in what circumstances and to what extent ought the parties to be permitted to abandon or alter the positions they have staked Out prior to the taking of the vote. The question is reminiscent of the one dealt with at the outset of this decision. If the parties were irrevocable bound to their pre-vote positions, then every pre-vote disagreement might have to be litigated. That would hardly be a healthy or productive climate for this Board to foster. On the other hand, if parties are permitted to change positions or raise new issues any number of times and at any stage in the process, the finality of litigation would be nothing more than an empty hope. As a general rule, just as agreements between the parties are final, so too should the Officer's report prepared in advance of or concurrent with the taking of the vote be seen as the roadmap to the litigation, if any, which will follow the vote (at least insofar as it pertains to bargaining unit or list issues).
But just as the Board has already demonstrated in the very first issue dealt with in this decision, application of this general rule should be neither rigid nor invariable. First, it obviously makes no sense to require a party to litigate a position it no longer advances. Such an approach would eliminate the two most typical ways of achieving settlements either the parties agree to something different from either of their original positions or one party simply accepts the position of another. Thus, despite the general rule, there ought to be no inherent obstacle to a party abandoning its position and accepting that advanced by another.
In its oral ruling the Board determined there was an issue to consider and rejected the employer's submission. As the Board stated (see paragraph #8) "In the circumstances, including the fact that the union's submissions of May 7th were within the time contemplated by the Board, we are satisfied that the union had the same option as the employer had exercised seven days earlier, i.e. to change its position".
In the facts before this panel the union had made its position known in writing to the Board within the time limit contemplated by the Board. Moreover there is nothing untoward in informing the labour relations officer of this position on the day of the vote. The expectation is that the labour relations officer will report this position to the employer. The vote was about to take place and it is understandable that the union representative would only deal with the labour relations officer at this point in time. Clearly the labour relations officer must have thought that there was still an issue in regards to these four individuals as their ballots were segregated.
For all these reasons the Board is satisfied that an issue still remains to be resolved in relation to the segregated ballot of Ms. Amber Young.
Having delivered the oral rulings on the preliminary issues, the Board proceeded to hear evidence of whether Mr. Amber Young ("Young") exercised managerial functions or is employed in a confidential capacity in matters relating to labour relations within the meaning of section 1 (3)(b) of the Act.
The only witness was Ms. Amber Young. She was a very straightforward witness.
The responding party operates a grocery store in Huntsville. Prior to October of 1998 the location was operated as an IGA franchise. Before the responding party became the owner, Ms. Young was bookkeeper for the previous franchise/owner. As such she admittedly had access to the personnel files and financial information relating to the franchise.
When the responding party took over in October 1998 (opening in November 1998) it did not offer all former employees jobs. Ms. Young was offered the job of Front End Manager. This job was roughly equivalent to the former position of Head Cashier with the IGA franchise.
According to Ms. Young the job of bookkeeper virtually disappeared as most of the former duties were now performed at head office. What remained of the old bookkeeping job was now for the most part performed by the Assistant Manager. However, Ms. Young continued to perform certain bookkeeping functions. Thus for example she would process invoices (as example Bell accounts), called DSR's (Direct Store References) for payment to head office and open and deliver mail that was not marked confidential. She would submit the record of employees hours for the front end and the other managers record of their department employees hours of work to head office. Head office would then calculate the appropriate pay cheques, enclose them in a sealed envelope and deliver such cheques to the store. She had only opened this envelope once, on instructions of the Store Manager to check whether an employee had been properly paid. Ms. Young testified she had no knowledge of individual wage rates and no input into such rates.
With regard to the employees record of hours, there is a time clock and employees are supposed to punch in and out. If an employee forgets it is up to the individual manager in the appropriate department to fill out the appropriate hours in accordance with the manager's knowledge of the shifts worked by that employee.
After the responding party took over the location there was a Store Manager, an Assistant Manager, a Customer Service Manager (Ms. Young), a Meat Manager, a Produce Manager and a Deli! Bakery Manager. There is now no issue between the parties that the Meat Manager, Produce Manager and Deli/Bakery Manager are covered by the proposed bargaining unit and that their segregated ballots should be counted.
In relation to the front end, besides Ms. Young there are, what Ms. Young called, five Supervisors (there is no issue that these employees are included in the proposed bargaining unit). In addition there were at the time of application for certification an additional 7 or 8 other cashiers. All these employees are in reality cashiers. The Supervisors may have additional duties in preparing the daily break list (when breaks will be taken for the day), balancing the trays, and in one case being responsible for ordering candy and cigarettes. Ms. Young is the only salaried individual at the front end. Prior to the application she was working upwards to 55 hours a week. She did not receive overtime for hours worked over 44 hours in a week. She earned what she calculated as approximately $15.50 per hour. To the best of her knowledge the highest rate any other cashier was paid was $9.00 an hour. No other cashier worked on a regular basis for more than 30 hour a week. Many cashiers worked less than 24 hours a week on a regular basis. If any of these cashiers worked over 44 hours in a week they were paid overtime. Ms. Young was not authorized to schedule overtime and never had authorized overtime on her own authority.
Ms. Young was one of three people who had a key to the Store Manager's Office. The other two being the Store Manager and the Assistant Store Manager. The personnel files were in the Store Manager's office but locked in a cabinet. Ms. Young did not have a key to these files and did not have access to the personnel files. In relation to confidential financial information, Ms. Young though she was aware of the daily sales, was not authorized to review other financial information which may have been in the Store Manager's Office. I accept her testimony that she never saw any such documents in the Store Manager's Office, except sales figures which she was authorized to forward to head office, and never attempted to locate such information. Ms. Young testified she had a key as she had to report sales to head office. This is the information faxed on a Saturday and often the Store Manager would have such information on his desk. She thus had a key so she could obtain such information and forward it to head office.
There is a front end office, separate from the other offices, above the registers. The cash trays are taken there and counted. Ms. Young, two of the Supervisor cashiers and the Store Manager have keys to this office. There is another key available on shift and any of the cashiers may enter this office. In this office price changes are done, DSR's are entered, and cash trays are balanced. There is a safe in the office and Ms. Young has the combination as well as the Store Manager and other Supervisor Cashiers. The safe is used to provide change for the cashiers. No personnel files or other financial files are kept in this office.
There are weekly meetings held on a Thursday, with the Store Manager and other Managers. Ms. Young testified that primarily at these meetings the sales for the next week are discussed. The managers, based on the estimate of sales, are given the number of hours they may schedule by the Store Manager for the following week. Ms. Young has no voice or input into this calculation. Once the calculation is given Ms. Young then fills out the schedule for the front end and posts the schedule Fridays. Ms. Young testified that in scheduling she takes into account a cashiers availability and then schedules by seniority. She testified that she had been instructed to schedule according to seniority by the Store Manager. It would seem Ms. Young has minimal input into scheduling. In fact once when she inadvertently had not assigned a senior employee the appropriate number of shifts in accordance with seniority and promised to make it up the following week, the Store Manager had overridden her decision and instructed Ms. Young to redo the schedule for the week in question taking a shift from a less senior employee and assigning such shift to the more senior employee.
If the store is busy and needs additional cashiers, Ms. Young will inform the Store Manager. She will then call employees in accordance with seniority (as long as it will not result in the employee working over 44 hours). If only one additional hour is required she may call someone already scheduled to work, to come in an hour earlier, or if at work stay an hour longer (so long as this does not result in overtime).
Ms. Young has no authority to grant formal leave of absence. This is done by the Store Manager. However, it is clear that the other cashiers approach Ms, Young with such requests She then goes to the Store Manager for approval. The Store Manager will enquire of Ms. Young whether such employee may be spared and usually makes his decision based on her advice. This is equally true for requests for time-off during a shift when an employee may request time off for a headache or other personal matters. Ms. Young recalls such an occasion when she had advised the Store Manager that the front end was very busy. In the result the Store Manager had himself informed the employee in question that she could not leave.
In relation to disciplinary matters, Ms. Young testified that she was obligated to report any cash shortages on overages of $10.00 or more to the Store Manager. She had no discretion in this regard. Ms. Young has sat in on three disciplinary meetings. She said she was there as a witness only and had not participated at all at the meeting. She had had no input into the disciplinary actions taken and had never been asked for her opinion. She had also been present when the Store Manager had talked to an employee about her conduct with other employees. On all these occasions the employee, the Store Manager and Ms. Young were the only ones present. Ms. Young stated that she would feel it was her obligation to report to the Store Manager any incidents where front end employees were conducting themselves improperly, not wearing appropriate badges, were continuously late or committing theft. Generally she would report anything she felt was not proper behaviour to the Store Manager. Ms. Young testified that she was not authorized and never had disciplined an employee, terminated an employee, wrote up an employee or reprimanded an employee. This was the Store Manager's responsibility. In fact on accepting the job of Front End Manager she had told the Store Manager that she couldn't discipline and he had told her she wouldn't have to. She had attended the disciplinary meetings only on the request of the Store Manager to act as a witness. At these meetings she had felt very uncomfortable, kept her eyes down and never spoken.
In relation to hiring she had never recommended any individual be hired, had no authority to hire any individual, had never reviewed employment applications or been asked for her input. In relation to the probationary period and promotions she had no input into the decision of whether to keep an employee or promote an employee. Ms. Young did testify that the Store Manager had asked her on occasion whether an employee on probation, or seeking promotion, had reliable attendance and was dependable. The Store Manager, however, never asked her about such person's work performance.
Ms. Young was obviously the person that other cashiers came to with their problems. For example when one cashier felt she was not being paid correctly she came to Ms. Young. Ms. Young took the matter to the Store Manager and asked him to check whether the cashier in question had completed the required probationary period. If the probationary period had been completed, then in accordance with the pay scale the Store Manager had established, such employee would be entitled to a pay raise. The Store Manager checked the time records and found indeed that the cashier in question had completed the probationary period, so the pay increase was granted. Ms. Young testified, however, that she never had any input into the pay scales, had no authority and had never recommended any pay increase for any cashier and had never been consulted as to the appropriate pay for any cashier.
In regards to training, Ms. Young does training of new employees, but so do other Supervisor Cashiers. Ms. Young did, however, assign the Supervisor Cashiers to the required training assignment.
In general Ms. Young testified she had no authority in matters of hiring, firing, discipline, terminations, transfers, layoffs, recalls, or promotions. She further testified that she had never made any recommendations or had any input, other than what has been detailed above, in any of these areas. These were all matters that were the responsibility of the Store Manager. Further she testified, that she did some bookkeeping functions (as discussed above) but that she had no input into the salary or operating budgets and no access to confidential financial matters. She did not prepare a budget for the front end and was not responsible to do so. She testified she had never done any formal evaluations of cashiers and had no access to the personnel files. Further she testified that she had no input or authority in setting store policies and procedures.
In relation to the other Managers (i.e. Meat, Produce, Deli/Bakery) Ms. Young testified that they all attended the Thursday meetings with the Store Manager, and were, just as she was, given hours to schedule for employees in their departments. To the best of her knowledge these Managers were also salaried employees.
Ms. Young estimated that of her time spent working, 75% was spent doing cashier work similar to the work performed by all of the other cashiers, and 25% of her time was spent during her other duties, i.e.. DSR's, inputting employees hours to head office, and opening and delivering the mail.
Employer counsel essentially submits that based on these facts Ms. Young was not employed in either a managerial or confidential capacity in matters related to labour relations within the meaning of section 1(3)(b) of the Act. Ms. Young just did not have the authority that the case law talks about to be considered a manager. She could not hire, fire, discipline nor had she ever exercised such authority. On the evidence she certainly did not make effective recommendations in any of these areas. Further it is clear from the evidence that Ms. Young had no access to confidential information relating to labour relations. While she had access to certain sales figures and hours of work of the front end employees, this was not the kind of information that the Board has found to be confidential within the meaning of section l(3)(b). Counsel therefore submits that Ms. Young is an employee and is not excluded by section l(3)(b) of the Act. Her segregated ballot should be counted.
Counsel for the applicant submits that Ms. Young's ballot should not be counted as she is excluded pursuant to section l(3)(b) of the Act. Counsel argues that though individual indicia if taken solely might not led to such a conclusion, when considered as a whole it is evident that Ms. Young should be found to be an excluded individual. Thus out of a grocery store of approximately 45 employees it is inconceivable that only two persons (the Store Manager and the Assistance Store Manager) would be excluded under section l(3)(b) of the Act. Somebody else must exercise managerial authority within the meaning of the Act. Such person is clearly Ms. Young as she is the only full-time employee at the front end, not paid for overtime, and receives $6.50 an hour more than cashiers. Accepting her evidence that she works 75% of her time as a cashier, this difference in salary must reflect her managerial responsibility. She has a role in the payroll, she has a key to the Store Manager's office and thus access to confidential information, and she reports any misconduct to the Store Manager. Obviously she is perceived by the other cashiers as their manager. Besides having the title of Manager, from the evidence it is evident that the other cashiers come to Ms. Young if they have any concerns about salary or otherwise. Furthermore she sits in on disciplinary meetings involving cashiers. Surely in the eyes of the employees these actions alone would be perceived as actions of a true boss and manager. The other cashiers surely believe that Ms. Young could have an impact on their earnings and job security, and that Ms. Young was an individual who could affect their economic lives.
In the course of argument counsel referred to the following cases: Ford Erie Foodland a decision of the Board, Board File No 0319-95-R, dated April 8, 1997; Bannerman Enterprises Inc., [1994] OLRB Rep. Nov. 1489, Corporation of the Town of Innisfil [1994] OLRB Rep. Jan. 76, Canadian Newspapers Company Limited [1993] OLRD No. 87, Canadian Red Cross Society [1991] Rep. February 163 and The Corporation of the City of Thunder Bay [1981] OLRB Rep. August 1121.
DECISION
The Board has been faced with this kind of question many times over the years. In these cases there are always what I would describe as grey areas, As another chair has stated "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" (see The Corporation of the City of Thunder Bay #4).
It is not my intention to review in great detail the principles that have been considered by the Board. Reference to these principles may be obtained from the cases cited by counsel.
To put the applicants' position at its highest it is submitted that the other cashiers would perceive Ms. Young as having effective influence over their economic life. I would note, no direct evidence of how the cashiers perceive Ms. Young was led While I agree that employees come to Ms. Young with problems, that she is the "ear" of management on the floor, and that she attends as a witness at disciplinary meetings, I am satisfied that when the evidence is considered in total that Ms. Young in actual fact does not exercise managerial authority within the meaning of section 1 (3)(b) of the Act. She certainly has no authority in matters of hiring, firing, discipline, promotions, layoffs etc. Neither has she effectively recommended in these areas (this in contrast to the Fort Erie Foodland decision where it was found that the Head Cashier had exercised disciplinary authority and taken responsibility for the decision with the employee involved). Further on the evidence I am satisfied that Ms. Young does not have access, nor is authorized to have access, to confidential information relating to labour relations.
As the Board stated in the Bannerman Enterprises Inc. decision:
The Board's jurisprudence on supervisory employees and those with significant responsibility has shown that it looks for the actual exercise of significant managerial functions or effective recommendation before excluding employees from the ambit of the Act. The core of the issue is whether the duties exercised are such as to put the employee in a position of conflict with the duties owed to the employer as a manager. Given the purposes of the Act, the Board will not lightly deprive an employee of the coverage of the Act.
In the instance based on the evidence before me I am not persuaded that Ms. Young exercises managerial functions or is employed in a confidential position in matters related to labour relations within the meaning of section 1(3)(b) of the Act. In the result the segregated ballot of Ms. Young should be counted.
The matter is directed to Manager of Field Services to arrange a meeting with the parties to count the segregated ballots. Pursuant to this decision the segregated ballots of Amber Young, Mike Nichols, Terry Lacey, and Sandra Groomes should be counted. The segregated ballot of Debra Norman should not be counted.