0029-01-R National Automobile, Aerospace, Transportation and General Workers’ Union of Canada (CAW-Canada), Applicant v. Nefab Inc., Responding Party.
BEFORE: Mary Ellen Cummings, Alternate Chair.
APPEARANCES: Dan MacPherson, Donna Robertson, Don Beadle, John Beadle and Cary Lalonde for the applicant; Walter Thornton and Larry Perks for the responding party.
DECISION OF THE BOARD; May 28, 2001
- This is an application for certification. On April 6, 2001, the Board directed that a representation vote take place among the following voting constituency:
all employees of Nefab Inc. in Peterborough, Ontario, save and except supervisor(s), persons above the rank of supervisor, office, clerical, sales staff, and students employed for the Summer.
At the vote, 4 ballots were segregated; two on the submission of the applicant, on the basis that the position of Shipper did not fall within the bargaining unit sought; and two on the submission of the responding party (the employer or Nefab) on the basis that the voters worked part-time, and part-time workers should be excluded from the bargaining unit.
On the first day of hearing, the parties came to an agreement that the ballots of the two alleged part-time employees would be counted, without prejudice to any submission the employer wanted to make about including part-time employees in the bargaining unit. The counting was not determinative of the applicant’s success in the representation vote. Sensibly, the parties agreed to lead evidence and argument on the next issue that could affect the outcome of the representation vote; whether the Shippers are included in the bargaining unit the applicant seeks.
The applicant had also raised, outside the time limits for making post-vote submissions, that one of the Shippers, Chris Cormack exercised managerial duties, and so should be excluded from the bargaining unit in any event because he is not an “employee” under the Labour Relations Act, 1995 (the “Act”). The employer opposed the late addition of this basis for exclusion, noting that the Board has traditionally been unwilling to allow parties to make late challenges to the voter’s list. However, counsel submitted that it would not be inefficient to call the relevant evidence, and was prepared to proceed on that basis. In all the circumstances, that was a sensible choice, and the Board sees no need to make any decision about whether to exercise its discretion and permit the late addition of a second basis to challenge Mr. Cormack’s entitlement to vote.
There is agreement between the parties that the appropriate bargaining unit in this case should exclude “clerical” employees. Consequently, the Board’s task is not to determine whether the bargaining unit sought is appropriate; the Board accepts the parties’ agreement. Rather, the Board's task is to determine if the position of Shipper properly falls within the “clerical” exclusion, or is part of the “production and maintenance” group of employees whom the applicant seeks to represent.
After hearing the evidence and the parties’ submissions, the Board ruled that Mr. Cormack was an “employee” under the Act, and the position of Shipper was included in the production and maintenance bargaining unit the applicant seeks to represent. At that point, the Board arranged for a counting of the remaining segregated ballots. The applicant alleges that one of the ballots cast is spoiled, and should not be counted. The parties made written submissions about the spoiled ballot.
Evidence with respect to the duties of Mr. Cormack and Ms. Butler
The employer makes specialty, custom-shipping boxes for manufacturers of a range of equipment, including telecommunications and bearings. The employer fabricates the wood and steel boxes, at two manufacturing plants in Peterborough, Ontario. The plant I am mostly concerned with is a large open-plan, purpose-built facility. Production is organized in a linear way: raw materials come in at one end, production happens in the middle and storage of finished goods and shipping out, happens at the other end. The shipping doors at one end of the rectangle are primarily used for receiving shipments of virgin wood. The saws, presses, and assembly areas fill the largest space in the centre. The opposite end has a large area for storing finished goods and for “staging” that is organizing and securing lifts for packing in trucks. The Shippers are mostly concerned with the finished goods, staging area and shipping doors for getting product out. A Main Office housing executives, engineering, sales, and accounting staff sits as an outcrop at the centre of one of the long walls. One corner of that has been sectioned off into the Production Office, consisting of a number of long tables, with partial partitions. The Production Supervisor has a private office in the Production Office.
At the date of the application for certification, April 3, 2001, the company had two Shippers, Sue Butler and Chris Cormack. Mr. Cormack has responsibility for the shipping of boxes built for Nortel, a significant customer, while Ms. Butler has responsibility for shipping to the rest of the employer’s customers. Mr. Cormack has been with Nefab Inc. since early 1994, working first as a saw operator, then as a supervisor on what was then the 3rd shift. Mr. Cormack was removed as a supervisor and given the position of Shipper in November 1999. He continued to be paid the hourly rate he had been paid as a supervisor. Mr. Roger Perks, the Production Manager, testified that Mr. Cormack’s rate was red-circled. He agreed that other employees had not been allowed to carry their higher rate when moved to a lower rated job, but explained that Mr. Cormack had been treated differently because the move was employer, not employee, initiated.
In his capacity as Shipper, Mr. Cormack is given a “picking list” of boxes to be prepared for shipment to Nortel. Mr. Cormack, using a forklift, assembles the items from the employer’s finished goods area of the plant, and receives instructions from the Supervisor about how much new product will be available to met Nortel’s needs. Mr. Cormack and Ms. Butler attend production meetings with the Production Manager and Supervisor to know what new product will become available to meet customers’ needs. If, for example, Nortel’s full order cannot be completed, Mr. Cormack advises Steve Collins, the Nefab employee with responsibility for the Nortel account. Mr. Cormack has no contact with Nortel. If Nortel’s order cannot be met, Mr. Cormack would call the trucking company, and advise that the load would be short.
Mr. Cormack regularly assists in the banding and cornering of his forklift loads. Mr. Cormack labels and prepares a bill of lading for each shipment. Mr. Cormack loads the trucks, also with the help of production employees.
Mr. Cormack performs the clerical portions of his job in the Production Office, an open plan office area shared with the Lead Hands; an employee who generates cutting instructions; the Supervisor, Ms. Butler and the purchaser. The Production Office is separate from the Main Office. Mr. Cormack estimated he spent an average of 90 minutes of his day in the Production Office, with the remainder spent in the finished goods area, or just outside it, or elsewhere on the production floor. The only clerical tasks I heard about were the receipt of Nortel “picking sheets”, the preparation of bills of lading and inputting data on the employer’s inventory tracking system. Mr. Cormack testified that he spends very little time in the Main Office. I heard no evidence about any task he performs there, nor about any clerical employees with whom he interacts.
Mr. Cormack testified that he spent the majority of his day in the finished goods area, the staging area or on the floor, in the production area. In addition to preparing products for shipping, Mr. Cormack receives recycled packing material from Nortel, and requests that the supervisor assign production employees to repair it. Mr. Cormack also receives additional packing supplies used by Nortel, but stocked at Nefab Inc.
When Mr. Cormack’s shipping duties are lighter, or there is a more pressing need, he has operated a saw, operated presses and assisted maintenance employees with repairs. He recounted that because he is often on a forklift, he is regularly called upon by fellow employees to move a load, particularly when the Material Handlers, who would normally do that work, are busy receiving a large delivery of raw materials.
Mr. Cormack’s evidence with respect to his Shipper duties and interchange with production employees was not challenged, except with respect to the amount of time he spent in the Production Office versus on the production floor. However, for the reasons set out below, that factual dispute is not significant. The applicant also accepted Mr. Cormack’s evidence that Ms. Butler’s activities and duties are substantially the same, although she probably spends less time on a forklift and has never operated a saw. Consequently, Mr. Cormack’s evidence will suffice for outlining Ms. Butler’s duties.
Mr. Cormack and Ms. Butler are paid on an hourly basis in a range that is higher than Lead Hands, but within that paid to Maintenance employees (who are not journeymen). In other words, the Shippers are paid within the scales paid to other employees the applicant seeks to represent.
Most of the relevant evidence about Mr. Cormack’s supervisory duties was undisputed. Mr. Cormack was once a shift supervisor, but has not held that position since November 1999. In his present position as Shipper, Mr. Cormack has been given the responsibility of opening the plant on a Saturday and “running” an overtime shift. That involves using an alarm access code personal to him, and opening with a key that had been provided to him for that day only. Once in the plant, Mr. Cormack reviews the list of tasks set out in a memo from the Supervisor, and assigns the tasks to production employees in accordance with the memo. At no time has an incident arisen that has required Mr. Cormack to take any corrective action with an employee. He said that if a problem arose, he would simply advise the Supervisor on Monday. On those Saturday shifts, Mr. Cormack performs production work as well. Other employees the applicant seeks to represent have “run” a Saturday shift in the same way, including General Labourers, Maintenance, Lead Hands and a Material Handler.
On occasion, Mr. Cormack has canvassed employees to see if they are willing to work overtime, either to assist him as Shipper or for other production needs. However, Mr. Cormack said he has only performed this task at the request or with the approval of the Supervisor. Similarly, Mr. Cormack, if requested, has made phone calls recalling employees from lay-off. Mr. Cormack denied the suggestion in cross-examination that he had replaced the Supervisor while he was on vacation. Mr. Cormack testified that one of the Lead Hands acted as Supervisor, and Mr. Cormack assisted the Lead Hand.
Don Beadle, a long-time employee who is presently a Materials Handler testified that he considers Mr. Cormack part of management. When asked why, he responded that Mr. Cormack had been his supervisor for a long time (when they both worked the 3rd shift). Mr. Beadle considers Mr. Cormack totally responsible for the Nortel account. Mr. Beadle sees both of the Shippers as being part of management. He testified that he has received work instructions from Mr. Cormack, and has always believed he had to follow them. Further, Mr. Beadle contradicted Mr. Cormack’s evidence that he had not replaced the Supervisor during a vacation absence. Mr. Beadle recalled a conversation with the Lead Hand in which he had expressed disappointment at Mr. Cormack getting the opportunity instead of him. I accepted this obvious hearsay, over the objection of counsel to the employer, and indicated that the parties could argue about the weight to be given to the evidence at the end of the day. Mr. Beadle also recalled an incident during that time period in which Mr. Cormack confronted him about speaking to other employees during working hours.
Submissions with respect to the status of Mr. Cormack and Ms. Butler
The applicant submitted that Mr. Cormack had conducted himself as if he were a supervisor and the employees considered him to be. With respect to the position of Shipper generally, the applicant submitted that their duties made them more compatible with a clerical bargaining unit, and if the Shippers wanted to engage in collective bargaining, that avenue is available. Counsel also submitted that because of the close vote and the likelihood that the Shippers have cast ballots not in support of the applicant, the desire of other employees to engage in collective bargaining will be frustrated if the Shippers are included in the bargaining unit.
Counsel for the employer submitted that there was simply insufficient evidence of managerial activity to justify Mr. Cormack’s exclusion on that basis.
With respect to the question of whether the Shippers should be included in the production and maintenance bargaining unit, counsel submitted that the evidence disclosed a regular interchange and there was no evidence to suggest any interchange between the Shippers and the clerical staff in the Main Office. Counsel also asked the Board to consider the potential labour relations problems it would face if the Shippers were excluded from the bargaining unit. The employer would likely face collective bargaining proposals that prohibited work being performed by non-bargaining unit employees, which would prevent the employer from using the Shippers to work in production, as they do now. The employer should not, counsel submitted, be required to significantly re-organize its production operations to accommodate the bargaining unit exclusion sought by the applicant.
Decision with respect to the status of Mr. Cormack and Ms. Butler
The Board concluded that Mr. Cormack does not exercise managerial or supervisory duties to an extent that would cause the Board to find he is not an employee under the Act.
Taking the evidence at its highest, Mr. Cormack has assigned work to employees, canvassed employees for overtime and recall from lay-off, all on the direction of a supervisor. Mr. Cormack may have replaced the Supervisor during a two-week vacation absence. That Mr. Cormack was once a Supervisor, and that Mr. Beadle still looks to him that way is, without more, not evidence that Mr. Cormack continues to exercise significant managerial authority.
There is absolutely no evidence that Mr. Cormack hires, fires or disciplines employees. There is no evidence that he has any decision-making power, or what the Board has called “effective control” over the economic lives of employees. In an often cited quote from Etobicoke Hydro-Electric Commission [1981] OLRB Rep. Jan 38, the Board described the test in terms that are directly applicable to the evidence in this case:
Exercising supervisory functions does not by itself exclude a person from engaging in collective bargaining. Even when a person is primarily engaged in the supervision of others he is not managerial unless he has effective control over their employment relationship... Scheduling work for employees and co-ordinating their efforts (something regularly done by the foremen in this case) is not itself a managerial function.
To determine whether the foremen in this case exercise managerial functions within the meaning of section 1(3)(b) of the Act, the Board will look to whether or not they exercise effective control and authority over the people they supervise as may be seen by an ability, at a minimum, to make effective recommendations in areas that materially affect the economic lives of the employees. If they act merely as conduits for management and do not themselves effectively control the economic lives of their employees, they would not be exercising functions with true managerial significance. …
Areas of fundamental importance to the economic lives of employees and thus areas that would assist the Board in deciding whether a foreman has effective control and authority over people he supervises would include, among others, the foreman's participation in the hiring, discharging and disciplining of employees, his input into their general performance evaluation, participation in the grievance procedure, and, to a lesser extent, the foreman's ability to give time off and assign overtime.
Having regard to the evidence, the Board concludes that Mr. Cormack is an employee for the purposes of the Act.
Turning, then to the question of whether the Shippers are part of the production unit sought, or part of the clerical exclusion, I repeat that the issue is not the appropriateness of the bargaining unit sought, but whether the Shippers fall inside or outside of the agreed upon unit. The applicant relied on the Board’s decision in Hospital For Sick Children [1985] OLRB Rep. Feb. 266 for the proposition that the Board will generally certify the bargaining unit the applicant seeks provided the employees share a sufficiently coherent community of interest that they can bargain together on a viable basis without causing serious labour relations problem for the employer. However, the Hospital For Sick Children, supra, case does not stand for the proposition that the applicant can seek to exclude a certain classification from an otherwise cohesive production unit because the applicant does not enjoy the support of the employees in that classification. The Board recognizes that the positions parties take about who should be in or out of a bargaining unit have as much to do with strategy as they do with principle, but absent agreement of the parties, the bargaining unit that the Board finds appropriate must have some regard for its future viability and the labour relations consequences for the employer.
In this case, the Shippers belong in the production and maintenance unit sought by the applicant. It appears that the Shippers have nothing to do with the clerical staff who are excluded by agreement, and who might form the nucleus for a tag end bargaining unit in the future. But more significant, the Shippers are fundamentally integrated into the fabrication of the employer’s products. The Shippers work on and right beside the production floor. They regularly operate forklifts, the same equipment operated by other employees such as the Material Handlers. The Shippers regularly work with other production employees to prepare loads for shipment. Not surprisingly the Shippers interact regularly with other production employees, either asking for help, or providing it to others. In addition to their shipping duties, both Ms. Butler and Mr. Cormack have worked in production when the need arises.
Although there is some dispute about how much time Ms. Butler and Mr. Cormack spend in the Production Office performing clerical tasks, the evidence establishes that whatever the amount of time, the duties are all related to the task of shipping. Ms. Butler and Mr. Cormack have no responsibilities that are not intricately linked to the activity of moving product out of the plant into the hands of customers. Having regard to all the evidence, the Board concluded that the Shippers are part of the production and maintenance unit. Consequently, the Board determined that Ms. Butler and Mr. Cormack were entitled to cast ballots in the representation vote.
The “spoiled ballot” issue
The ballot in issue asks the question “In your employment relations with your employer do you wish to be represented by the union?” To the right of the question is written “Yes” with a round window directly beside, and then below is “No” with an identical round window directly beside it. Voters are instructed to mark the ballot in the appropriate window.
The ballot in issue has no markings in the “yes” window, or elsewhere on the ballot. But in the “no” window, are layered markings in pencil. It appears that the whole of the window was pencilled in, then over top are two “X'es”, forming a rudimentary star shape.
Submissions
The applicant submits that the ballot ought not to be counted because it is marked in a manner contrary to both the verbal and written instructions to voters to mark an “X” in the box opposite their choice, and place no other mark on the ballot. Further, the applicant submits that the voter’s intentions are not clear; it may be that the voter made a mistake or wanted to change its choice, and in the absence of an eraser, scratched out its first markings. Finally, the applicant submits that the odd markings may have been intended by the voter to signal his or her choice to the scrutineer, in a manner designed to identify the voter, and claim a reward for the “no” vote. As the applicant accurately set out, the Board (and other electoral officials in municipal, provincial and federal elections) have declined to count ballots that identify the voter. See, for example, the Board’s decision in Maidstone Manufacturing Inc. [1994] O.L.R.D. No. 4813.
Counsel for the employer submitted that the facts were quite different from those in the cases relied on by the applicant. In Maidstone Manufacturing Inc., supra, the ballot was marked in two places; an “X” beside the “No” and a line in the window beside the “Yes”. Counsel submitted that the Board should follow the decision in GMA Cover Corporation [1998] OLRB Rep. Sept./Oct. 796. One of the ballots had “…a clear circular mark entirely within the space for voting ‘no’.” The Board concluded that the ballot demonstrated the clear intention of the voter to vote “no”.
Counsel for the employer submitted that it was specious to suggest that the voter had cast the ballot in such a way as to send a signal to the scrutineer. Counsel also reminded the Board that nowhere in the Board’s written materials are voters required to mark their choice with an “X”. Instead, the Notice of Vote tells voters they will vote in secret, and advises them not to mark the ballot in any way as to identify themselves. Further the vote instructions informs voters to speak to the Officer before depositing their ballot in the box if they believe they have spoiled the ballot.
Decision
- The test applied by the Board is set out succinctly in GMA Cover Corporation:
a ballot which does not identify the voter and clearly indicates the choice of the voter shall be counted.
I am satisfied that the ballot in question indicates that the employee voted “No”. There are no markings anywhere in or near the “Yes” space to suggest equivocation or confusion. I am also not able to interpret the overlapping markings as identifying the voter. It appears that the voter was undecided about how to fill the “No” window; to completely shade the space in, or to mark it with an “X”. The ballot in question is to be counted as a “no” vote, as the Returning Officer determined at the time the ballots were opened.
On the taking of the representation vote directed by the Board, not more than fifty per cent of the ballots cast by employees in the bargaining unit were cast in favour of the applicant.
The application is therefore dismissed.
The attention of the parties and the employees is directed to the provisions of the Labour Relations Act, 1995, as amended and more particularly to section 10(3), as it may relate to any future application for certification.
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 until the date that had been set for the hearing.
“Mary Ellen Cummings”
for the Board