[1999] OLRB REP. MAY/JUNE 468
4369-98-R National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada), Applicant v. Project Lift Incorporated, Responding Party
Certification - Employee - Board rejecting submission that drivers' dispatchers exercise managerial functions or are employed in confidential capacity in matters relating to labour relations - Board finding dispatchers to be "employees" within meaning of the Act - Certificate issuing
BEFORE: Russell Goodfellow, Vice-Chair, and Board Members J. A. Ronson and D. A. Patterson.
APPEARANCES: Thomas Rooke, Perry Van Arsdale and Carol Jacobi for the applicant; T J. Billo, David Smith and Glenn Hughes for the responding party.
DECISION OF VICE-CHAIR, RUSSELL GOODFELLOW, AND BOARD MEMBER D. A. PATTERSON; June 22, 1999
The title of proceedings is hereby amended to reflect the correct name of the responding party: "Project Lift Incorporated".
This is an application for certification.
A hearing was held in this matter on May 4, 1999 to determine whether three dispatchers are employees within the meaning of the Labour Relations Act, 1995. The union took the affirmative position, while the employer asserted the negative. According to the employer, the dispatchers exercise managerial functions and are employed in a confidential capacity in matters relating to labour relations.
After hearing evidence from one of the dispatchers, from a driver, and from the employer's operations supervisor, the majority ruled orally that the dispatchers are employees.
The reasons for our decision are as follows. First, there was no evidence whatsoever that the dispatchers are employed in a confidential capacity in matters relating to labour relations. Second, the dispatchers have no authority to make decisions or effective recommendations with respect to hiring, firing, promotions, demotions, discipline, wage rates, scheduled hours of work or vacation time. Drivers' schedules are set on a predetermined basis by the scheduling co-ordinator using a computer programme that matches supply to previously indicated demand. Employees are paid an hourly rate for a fixed number of hours per day. Except in exceptional circumstances (such as where changes to demand that arise on a given day may require the dispatcher to ask a driver to work overtime or where the driver may ask to leave early), the dispatchers have no ability to affect a driver's income. Similarly, the closest that the dispatchers come to discipline is making notations on the "drive sheets" (i.e. the drivers' daily schedules) that may reflect difficulties that the dispatcher has encountered in dealing with the driver during the course of the day. However, the notations themselves do not constitute discipline and are reviewed and investigated by management before any discipline can be imposed. Should it then become necessary to impose discipline, not even the employer's operations supervisor has the ultimate say.
While the Board has no doubt that the dispatchers play a central role in the employer's operation, they are not managers. To the extent that the employer may feel the need for a more hierarchical or top-down managerial structure than the one under which it operates at present, it is for the employer to implement it - it is not for the Board to direct it. In this regard, we would also observe that the "one-off' situation of a dispatcher having noted on a drive sheet (after an exchange with management) that "in accordance with what [two members of management] told me 'as a dispatcher I am the drivers' supervisor' so today is an example of insubordination" does not a manager make; nor does the fact that the dispatchers implement policy determined by others or direct the where and when of the drivers' activities in the course of juggling the daily schedule. The critical features of managerial status - those identified in paragraph S above - are entirely lacking.
Prior to the majority delivering its ruling, a representation vote had been held and a partial count had been released. The result of the count was 11 to 10 in favour of the applicant. With the inclusion of the dispatchers, the count became 13 to 10 in favour of the applicant.
Accordingly, the applicant is entitled to be certified on the basis of the vote results for:
all employees of Project Lift Incorporated in the City of Kitchener, Ontario, save and except supervisors, persons above the rank of supervisor, office, clerical and sales staff, and students employed during the school vacation periods.
A certificate will issue to the applicant.
The Registrar will destroy the ballots cast in the representation vote taken in this matter following the expiration of 30 days from the date of this decision unless a statement requesting that the ballots should not be destroyed is received by the Board from one of the parties before the expiration of such 30 day period.
The responding party is directed to post copies of this decision immediately, adjacent to all copies of the "Notice of Vote and of Hearing" posted previously. These copies must remain posted for a period of 30 days from the date of this decision.
DECISION OF BOARD MEMBER J. A. RONSON: June 22, 1999
I dissent from the majority decision.