1649-00-R United Steelworkers of America, Applicant v. Concord Elevator Inc., Responding Party v. International Union of Elevator Constructors, Intervenor.
1708-00-U United Steelworkers of America, Applicant v. Concord Elevator Inc., Responding Party.
BEFORE: Patrick Kelly, Vice-Chair.
APPEARANCES: Cathy Braker and Brando Paris appeared on behalf of the applicant; Marsha Lindsay, Robert Murphy, Margaret Bailey, Colin Coulter and Mohan Seewah appeared on behalf of the responding party.
DECISION OF THE BOARD; May 11, 2001
These are an application for certification (Board File No. 1649-00-R) and an application alleging unfair labour practices (Board File No. 1708-00-U) under the Labour Relations Act, 1995, S.O. 1995, c.1 (“the Act”). The parties agreed that I should initially deal only with a status issue in the certification application. That status issue, which consumed five days of evidence and argument, concerns 18 individuals, all of whom occupy a position described by the responding party (“the employer”) as lead hand. The applicant (also referred to as “the union”) challenged the inclusion of lead hands in the bargaining unit, on the basis of the managerial exclusion set out in section 1(3) (b) of the Act.
The status of two other positions is also in dispute, but the parties agreed that my decision regarding the inclusion or exclusion of the lead hand position would apply to those two other positions. Following the hearing of this single issue, the parties requested that the Board issue a “bottom line” decision, so that the parties could determine whether, or how, to proceed with the unfair labour practices complaint. Accordingly, this constitutes the Board’s bottom line decision, with brief reasons, concerning the status of lead hands.
Section 1(3) of the Act provides:
(3) Subject to section 97, for the purposes of this Act, no person shall be deemed to be an employee,
(a) who is a member of the architectural, dental, land surveying, legal or medical profession entitled to practise in Ontario and employed in a professional capacity; or
(b) who, in the opinion of the Board, exercises managerial functions or is employed in a confidential capacity in matters relating to labour relations.
After having reviewed all the evidence, as well as the submissions of the parties, I conclude that the lead hands do not exercise managerial functions within the meaning of the Act. 5. The evidence established that lead hands assign work to employees from a production schedule that is determined by the production manager. Beyond assessing which employee with the requisite skills is available to do the work, the lead hand has no other discretion in distributing employee assignments. Lead hands take attendance each morning by noting in their own logs the employees who are in their work area that day, and they subsequently check the employer’s payroll records against the logged information, in consultation with the employee, to ensure that any discrepancies in pay are avoided.
Employees look to the lead hands to check and test their work before final shipping of product to the employer’s customers. If there are problems with the work, generally the lead hand and the applicable employee work together to fix them. The preponderance of the evidence established that lead hands spend significant portions of each day independently performing tasks similar to those of other employees, although the source of the employees’ assignments (i.e. the production schedule) did not appear to be the same source for the lead hand assignments.
The employees from time to time seek out the assistance of the lead hand to order equipment and tools, in which case, the lead hand fills out a purchase requisition form and submits it to the production manager for approval. Lead hands cannot unilaterally purchase any equipment or tools, no matter how little the cost. That is ultimately the decision of the production manager.
Lead hands do not have a private office. They are provided work areas that are very similar to that of other employees.
There was no direct evidence that lead hands participate, or would be expected to participate, in the decision-making process regarding employee promotion or transfers, performance evaluation, the imposition of formal discipline, or pay levels. There was some evidence to suggest that lead hands assign overtime, but no compelling evidence with respect to whether those assignments involve any degree of independent discretion on the part of the lead hand. There was also some evidence that, occasionally, lead hands authorize individual employees to leave the workplace early or arrive late. Finally, lead hands play a very limited role in the hiring process, in that they administer technical tests on prospective job candidates, and report the results to their respective production managers.
The employer’s position in this matter is that the production managers, of whom there are seven, are the first line of supervision. It was uncontested that the ratio of employees to the production manager responsible for the curve/spiral department and five other departments of the employer is approximately 57:1. As a measure of a an employee-to-supervisor ratio, it is an unusually high one in an industrial setting (see Ford Motor Company of Canada Limited [1993] OLRB Rep. January 1, paragraphs 27 and 28). The curve/spiral department has one lead hand who oversees the work of approximately 12 employees, which results in a more standard industrial employee-to-supervisor ratio of 12:1. Counsel for the applicant argued that an inference could be drawn from a comparison of these ratios, that, in fact, it is the lead hands who perform the first level of supervision for this employer. However, the preponderance of the direct evidence is that the production manager responsible for the curve/spiral department was very much present on the shop floor on a daily basis, and in a position to observe work being done by the employees and to obtain a first-hand sense of employee relations in the workplace. The production manager is generally present in the workplace during all hours of operation. The uncontradicted evidence was that the production manager completes all the employees’ performance evaluations (which are very brief, and require almost no narration on the part of the author), assesses employees for wage bonuses as a result of those evaluations, and makes recommendations to the plant manager for approval of those bonuses. There was very little evidence, other than that relating to the employee-to-supervisor ratios, that would suggest anything but that the lead hands play no role in the employee evaluation and bonus process. In terms of formal discipline (apparently a very rare phenomenon in this workplace), lead hands do not appear to have any role except to act as witnesses at the point the discipline is imposed.
I was referred to a number of cases by counsel for the applicant: Ford Motor Company of Canada Limited, supra; Toronto Transit Commission [1994] OLRB Rep. March 319; Gourmet Baker Inc. [1996] O.L.R.D. No. 4790; and The Corporation of the City of Thunder Bay [1981] OLRB Rep. August 1121. Counsel for the employer also cited the City of Thunder Bay case, as well as the following: Glass, Molder, Pottery, Plastics & Allied Workers International Union [1992] OLRD No. 1335; Reynolds-Lemmerz Industries [1995] OLRD No. 263; Accucut Profile & Grinding Ltd. [1998] OLRD No. 1181; Hydro Electric Commission of The Borough of Etobicoke [1981] OLRB Rep. January 38; and Continuous Mining Systems Limited [1989] OLRD No. 1903.
On the basis of the evidence presented, as well as the submissions of the parties, I find that the lead hands play next to no role that affects the economic lives of their fellow employees, thereby giving rise to a conflict of interest with them. Section 1(3) of the Act has no application, and the lead hands are accordingly properly included in the bargaining unit.
I am seized.
“Patrick Kelly”
for the Board