Reasons for decision

United Food and Commercial Workers, Local 247,

applicant,

and

G4S Secure Solutions (Canada) Ltd.,

employer,

and

International Association of Machinists and Aerospace Workers, Transportation District 140, Local Lodge 16,

intervenor.

The Canada Industrial Relations Board (the Board) was composed of Ms. Ginette Brazeau, Chairperson, and Messrs. André Lecavalier and Gaétan Ménard, Members. A hearing was held on December 15 and 16, 2016, in Vancouver, British Columbia.

Appearances

Mr. Robert Logue, for United Food and Commercial Workers, Local 247;

Mr. William D. Anderson, for G4S Secure Solutions (Canada) Ltd.;

Ms. Amanda Pask, for the International Association of Machinists and Aerospace Workers, Transportation District 140, Local Lodge 16.

These reasons for decision were written by Ms. Ginette Brazeau, Chairperson.

I. Nature of the Application

[1] On October 25, 2016, the United Food and Commercial Workers, Local 247 (UFCW 247 or the union) filed an application for certification pursuant to section 24 of the Canada Labour Code (Part I–Industrial Relations) (the Code) seeking to represent a group of Service Delivery Managers (SDMs) and Operations Centre Managers (OCMs) working for G4S Secure Solutions (Canada) Ltd. (G4S or the employer) at the Vancouver International Airport (YVR). G4S provides security screening services at YVR and other airports in British Columbia and Yukon pursuant to a contract with the Canadian Air Transport Security Authority (CATSA).

[2] The employer opposes this application on the basis that the SDMs and the OCMs are not employees within the meaning of the Code. It alleges that they perform management functions and have access to confidential information in the exercise of their duties, and as such, cannot form a unit of employees appropriate for collective bargaining.

[3] The International Association of Machinists and Aerospace Workers, Transportation District 140, Local Lodge 16 (the IAM), currently holds representation rights for employees of G4S and has applied for intervenor status seeking to protect the scope of its certification order and assist the Board in defining a bargaining unit that does not overlap with its bargaining rights. The Board granted the IAM intervenor status and invited it to file its written submissions.

[4] Given the employer’s objection, the Board conducted a representation vote amongst the members of the proposed unit and ordered that the vote be sealed pending a determination of the employer’s objection. The Board held a hearing on December 15 and 16, 2016, in Vancouver, British Columbia, for the sole purpose of determining whether the individuals affected by the application for certification are employees within the meaning of the Code.

II. Background

[5] In 2011, CATSA put out requests for proposals (RFP) for security screening services at all airports across Canada. The bids were split in four regions and G4S was the successful bidder for the Pacific Region, which includes 21 airports in British Columbia and Yukon.

[6] During the bidding process, CATSA advised the bidding contractors that it would proceed to change the Standard Operating Procedures (SOPs) to remove specific references to positions as well as duties and responsibilities in order to allow flexibility for contractors to implement a different organizational structure. In particular, this meant that the position of Point Leader would no longer be a requirement of the SOPs.

[7] When it participated in the contract bid, G4S offered a structure that differed from the existing structure in place by proposing an oversight function that would be responsible for groups of screening officers (SOs). G4S was ultimately awarded the contract in August 2011 and commenced providing screening services on November 1, 2011, when it took over from the previous contractor, Aeroguard Company (Aeroguard).

[8] The IAM was the incumbent union representing the employees of Aeroguard. In November 2008, the Board certified a unit comprising all employees engaged in security screening, including Point Leaders but excluding SDMs (order no. 9558-U). This bargaining unit order was granted on an application filed by Aeroguard seeking to consolidate the two units that were in place at YVR: one unit consisting of Point Leaders, which had originally been certified as a unit of supervisors (order no. 7570-U), and one unit of security screeners that specifically excluded supervisors (order no. 8717-U).

[9] When G4S began providing screening services in the Pacific Region, the IAM applied for certification seeking representation rights for the employees of G4S engaged in security screening at YVR. In February 2012, the Board granted the certification by order no. 10208-U, which included the position of Point Leader and excluded the position of SDM.

[10] Subsequently, a dispute arose between the IAM and G4S with respect to the position of SDM. In September 2012, the IAM filed a grievance challenging G4S’ implementation of its management model and the increase in the number of SDMs. The IAM took the position that the SDMs were supervisors and should be included in the bargaining unit. It also contended that the SDMs performed bargaining unit work contrary to the terms of the collective agreement.

[11] In November 2012, the IAM also filed a complaint of unfair labour practice with the Board and sought a review of the bargaining unit description to specifically include the SDMs in the certification order.

[12] The parties adjourned the proceedings with the Board and proceeded to arbitration. With the assistance of the arbitrator, G4S and the IAM negotiated minutes of settlement that resolved both the grievance and the outstanding matters before the Board. In the agreement, the IAM expressly acknowledged that SDMs were part of management and properly excluded from the IAM’s bargaining unit.

III. The Evidence

[13] The Board heard testimony from G4S’ Chief Operating Officer, Mr. Remco Loevendie; two SDMs, Messrs. Karandeep Samra and Patrick Sauvé; Health and Safety Advisor, Mr. Richard Baron, who also held the position of SDM until September 2016; and the union’s Secretary Treasurer, Mr. Dan Goodman.

[14] Mr. Loevendie provided the Board with an overview of the approach that G4S had taken in relation to the bidding process and the considerations that went into the preparation of their proposal. Prior to the launch of CATSA’s RFP, the SOPs specifically defined the position of Point Leader and its duties and responsibilities. In its proposal, G4S offered a different structure that gave SDMs a more direct role in dealing with front-line issues as they arose, and responsibility for operational performance at their checkpoint.

[15] There is no doubt that when G4S commenced its contract, it wanted to take a different approach than the previous contractor. Mr. Loevendie himself was brought in from Holland for his expertise and experience with airport security services in Europe when G4S was preparing its bid for the CATSA contract. In its proposal, G4S offered a model that included a front-line group that was empowered to deal with issues as they arose, more so than the Point Leader position that had been in existence at airports across Canada. According to Mr. Loevendie, that aspect of their proposal was a critical factor in being awarded the contract by CATSA.

[16] It took a period of time for G4S to implement its new structure. Mr. Loevendie issued a memo to all screening personnel on October 26, 2011, as it was taking over the operations, to notify the employees of the employer’s intention to replace Point Leaders with a new “Team Manager” position. However, given the importance of ensuring stability and minimizing any potential unrest during the transition, it took some time for G4S to actually implement its new management structure. A year later, on December 3, 2012, Mr. Loevendie sent another memo explaining that the new management model had been implemented and presenting the role of the SDM. An excerpt from this memo reads as follows:

One of the big changes coming up is the introduction of a team structure. When we were conducting the onboarding session last year we were surprised to find out that screeners did not have a dedicated manager they report to. ...

...

From now on every SDM will have a dedicated group of screeners that report to him or her. The SDM will be available to his or her team members for any questions or concerns that are not directly related to the operations during your shift. This could be related to training or scheduling for example.

During regular operations nothing will change, the SDM that is working at the point is still responsible for ensuring a smooth operation during your shift. They will still follow up on operational issues during your shift, manage breaks throughout the shift and provide you with coaching on the SOPs when it is needed.

A. Operations

[17] There are 900 SOs at 7 different checkpoints at YVR, and the application for certification indicates that there are 65 SDMs and 8 OCMs currently employed by G4S.

[18] The intention of the company was to have one SDM responsible for a group of 50 SOs. However, the SDMs are not always scheduled to work on the same shifts as their team members, and there are still SOs that have not been assigned to a particular SDM.

[19] The contractual arrangement between G4S and CATSA provides for compensation to G4S based on screening hours and an extra portion that is meant to cover any overhead that the contractor may have. Mr. Loevendie explained that the SDMs’ hours are not included in the screening hours and as such, there is no direct compensation for those positions. The salaries of SDMs are essentially considered overhead, as is the compensation of executives. SOs are paid an hourly rate while the SDMs are paid a salary with an incentive program.

[20] A job description for an SDM dated July 21, 2016, and also posted in September 2016, includes the following duties and responsibilities:

·  Actively engages in managing the screening checkpoint by monitoring queue length, service levels, reporting on changing needs and seeking additional staff from the Operation Center when required

·  Builds and maintains a strong customer relationship with assigned business area

·  Achieves Key Performance Indicators (KPIs) and ensures compliance with Standard Operating Procedures (SOP’s) on a daily basis

·  Managing Screening Officers by acting as a coach, mentor in order to create and maintain an engaged, motivated work force

·  Assigning staff to screening positions, monitoring breaks, conducting specified training, and accommodating language requirements

·  Compiles shift reports for the screening area under their management

·  Assists Screening Officers in dealing with complaints, security incidents, etc

[21] In their testimony, SDMs confirmed that they manage their assigned screening area (or checkpoint) for maximum operational performance. Their role consists in ensuring the appropriate level of SOs and sufficient screening lines to meet the key performance indicators (KPIs) and prevent a service level failure. There is no doubt that the SDMs have full responsibility for the levels of service that are provided at their checkpoint and, in collaboration with OCMs, the reassignment of SOs between checkpoints as necessary to ensure that operational expectations are met.

[22] The SDMs provide feedback to the SOs on their work, and provide coaching and support to ensure that they achieve the goals established by CATSA. SDMs may assign overtime, if necessary, but in accordance with the collective agreement and based on seniority. They assign breaks, decide when to open or close screening lines and monitor wait times and the flow of passengers to ensure that they are meeting the performance indicators. If these indicators and expectations of CATSA are not met, it can lead to a service delivery failure, which results in a financial penalty for G4S.

[23] An SDM that observes or is made aware of an incident or misconduct will immediately meet with the SO, and usually with a union steward, to address the issue and obtain information from the SO. The SDM will continue the investigation if necessary and will input the information into the electronic system to create an infraction report. This electronic system allows the SDM to choose between three disciplinary options from a drop-down menu: oral, written or suspension. Once complete, the report is saved and triggers a review by an officer in the human resources/labour relations department.

[24] The information contained in the infraction report is reviewed by a human resources (HR) officer who will either accept the disciplinary action selected or change it if there is additional information that he or she is aware of that may influence the decision. The officer may also discuss the report with the SDM. If one of the three disciplinary actions is followed, a letter is generated and the SDM on duty will sign it and deliver it to the SO; this may be a different SDM than the one who initially created the infraction report.

[25] There was no evidence of an SDM terminating an SO. In fact, it was confirmed that a termination would require the involvement and approval of a more senior level within the organization. The employer emphasized that the style of management involves collective decision making on more serious disciplinary measures to ensure consistency across the organization.

[26] An exception to this approach was noted as it relates to SOs on probation. The SDM is responsible for monitoring performance during the probationary period and assessing whether the candidate satisfies the requirements of the job. An SDM can decide to extend the probation period or to recommend termination when the candidate demonstrates clear lack of judgment.

[27] It was also made clear that the SDMs do not perform the duties of the SOs, nor is it a requirement that they be certified by CATSA as SOs. The SDMs must have an excellent comprehension of the SOPs that are established by CATSA in order to ensure compliance of their screening operations. There are normally 4 or 5 SDMs that are responsible for a group of up to 50 SOs. This is necessary since the SDMs cannot be scheduled to work at the same time as the entire group of SOs that have been assigned to them. In effect, one SDM can initiate an investigation into an incident while another will sign and issue the disciplinary letter that follows.

[28] The SDMs receive detailed instructions on the process to follow when dealing with conduct that merits discipline and the information that needs to be gathered through investigation. The process is thoroughly documented in the Investigations & Discipline Reference Sheet that is provided to the SDMs.

[29] One SDM provided information regarding his participation in two hiring processes. It was explained that the pre-screening of candidates was performed by HR and the SDM was involved in a week of interviews of the screened candidates. The process involved interviews of a large number of candidates in both official languages. The role of this SDM was to decide, after the interview, whether the candidate was suitable for hiring, keeping in mind the quota that had to be met. In the affirmative, the names would be sent to HR. Such a process resulted in the hiring of 150 candidates. Afterwards, it was the responsibility of HR to communicate with the successful candidates.

[30] It is clear that not all SDMs participate in recruitment initiatives and that only a few are selected to do so and assigned accordingly.  When assigned to participate in a recruitment process, the SDM’s shifts are scheduled accordingly and,  the SDM is also  relieved from the responsibilities at the checkpoint. It is also apparent that the involvement in hiring is not part of the SDMs’ regular duties and that only a few SDMs are selected to participate in hiring processes based on their experience and/or their fluency in both official languages.

B. Confidential Information

[31] No SDMs have participated in collective bargaining but it was indicated that in some cases, certain proposals affecting SOs have been discussed with the SDMs. It is also the practice of G4S to inform the SDMs by email of the process of collective bargaining involving the SOs and to provide instructions to the SDMs, for example, relating to any potential slowdowns or work‑to‑rule campaigns by the SOs.

[32] It was noted that the SDMs have access to their team members’ medical information for the purpose of assignment of duties when accommodation is required.

[33] Given the nature of the business, it was also highlighted that the SDMs have access to a daily management brief containing information on the key performance indicators and other commercially sensitive information that the airlines provide for the purpose of ensuring appropriate staffing levels at the various checkpoints in the airport.

IV. Positions of the Parties

A. G4S

[34] The employer argues that, as a group, the SDMs constitute a team that is part of the management structure. It urges the Board to define a line between the operations and management that would be reflective of the business model that was implemented by G4S when it took over the screening contract at YVR. In this regard, it refers the Board to the decision Québec-Téléphone (1996), 106 di 1 (CLRB no. 1186), where a second level of managers was deemed part of the management team and was hence excluded from the bargaining unit as they were not employees within the meaning of the Code.

[35] The employer also suggests that the role and functions of the SDMs distinguish the facts of this case from that of Algoma Central Marine, a Division of Algoma Central Corporation, 2010 CIRB 531. It argues that the SDMs are not part of the screening operations and their role is exclusively dedicated to the management of security lines and the employees who perform the screening operations. In the employer’s view, this is a key distinguishing factor from Algoma Central Marine, a Division of Algoma Central Corporation, supra, where the Board was dealing with functional jobs that were essentially part of the operations.

[36] The employer also urges the Board to take into consideration the conduct of the parties to the existing certification order. Although not determinative of the question before the Board, the IAM and the employer have recognized and agreed that the SDMs are excluded from the bargaining unit because of their role in the management structure.

[37] It is acknowledged that the sphere of influence of the SDMs is limited; however, the employer argues that the group is critical to the achievement of results against the KPIs. It invites the Board to consider the context of the operations, that of airport security, and that for the effective management of these operations, it is necessary to have a large group with the clear responsibility to manage the operations and the SOs for the effective delivery of security services.

B. UFCW

[38] The union disputes the employer’s assertion that the SDMs and the OCMs exercise management functions as that concept is defined in the Board’s jurisprudence. The union argues that the duties and responsibilities of the SDMs and the OCMs are supervisory in nature. In this regard, it submits that any conflict that would arise in carrying out their functions would be resolved by the fact that these employees would form a separate bargaining unit from those employees they supervise.

[39] The union invites the Board to give a narrow interpretation to the exclusions provided in the statute given the fundamental rights to collective representation and to collective bargaining that are protected by the Canadian Charter of Rights and Freedoms and recognized in international instruments.

[40] In reviewing the evidence, the union submits that the facts do not support the view that the SDMs exercise independent authority over the hiring, firing and discipline of the SOs. It recognizes the importance of the role and responsibilities of the SDMs and OCMs in ensuring the efficient operations of security screening at YVR; however, it suggests that their core duties are simply not of the nature that creates a conflict with the employer such that they be denied the right to be represented collectively in their employment relationship with the employer. There is no evidence that unionization of this group would result in a decline in efficiency or in the professionalism of their work.

V. Analysis and Decision

[41] When considering a certification application, the Board must determine whether the unit of employees that the union is seeking to represent is appropriate for collective bargaining. The Board is vested with broad discretion to determine a bargaining unit that it considers appropriate for collective bargaining, including whether it is appropriate to establish a separate unit of supervisory employees. Section 27 of the Code provides as follows:

27 (1) Where a trade union applies under section 24 for certification as the bargaining agent for a unit that the trade union considers appropriate for collective bargaining, the Board shall determine the unit that, in the opinion of the Board, is appropriate for collective bargaining.

(2) In determining whether a unit constitutes a unit that is appropriate for collective bargaining, the Board may include any employees in or exclude any employees from the unit proposed by the trade union.

...

(5) Where a trade union applies for certification as the bargaining agent for a unit comprised of or including employees whose duties include the supervision of other employees, the Board may, subject to subsection (2), determine that the unit proposed in the application is appropriate for collective bargaining.

[42] In this case, the union has applied for a separate bargaining unit composed of SDMs and OCMs which are excluded from the existing unit of SOs. Considering the issues raised by the employer, the Board must determine whether the SDMs and the OCMs are employees and subject to the Code or whether they perform functions that are managerial in nature such that they should be excluded from the collective bargaining regime provided in the Code.

[43] The definition of “employee” is provided at section 3 of the Code as follows:

employee means any person employed by an employer and includes a dependent contractor and a private constable, but does not include a person who performs management functions or is employed in a confidential capacity in matters relating to industrial relations; (employé)

[44] There is no set definition of “management functions” or “confidential capacity” established in the legislation. The Board assesses the facts and circumstances of each case to determine whether the positions in dispute fall within the exclusions. As stated by the Federal Court of Appeal in Bank of Nova Scotia v. Canada Labour Relations Board, [1978] 2 F.C. 807; (1978) 21 N.R. 1; and (1978) 78 CLLC 14,145 (F.C.A.):

... The concept of “management functions” must be interpreted and applied according to the circumstances of each case and, except in very extreme cases, its precise ambit is a question of fact or opinion for the Board rather than a question of law...

(page 807)

[45] This Board and its predecessor, the Canada Labour Relations Board, have interpreted the managerial exclusion narrowly. In this regard, the Board agrees with the union’s position that a decision to exclude individuals from the right to collective bargaining is not one that is taken lightly, especially given the Supreme Court of Canada’s recent pronouncements that recognize the right to organize, to bargain collectively and to strike as fundamental Charter-protected rights. Accordingly, the Board will generally favour an interpretation that will allow individuals who wish to exercise their right to organize and bargain collectively to exercise those rights.

[46] It is also well-established that the onus is on the party claiming that a person is not an employee within the meaning of the Code and therefore excluded from the collective bargaining regime to demonstrate such a claim (Consortium de télévision Québec Canada Inc., 2003 CIRB 224). There is no dispute in this case that the burden of proof rests with the employer to demonstrate that the individuals at issue perform management functions or hold a position of confidence that involves access to confidential information relating to labour relations.

[47] In NorthwesTel Mobility Inc., 2006 CIRB 346, the Board reviewed some important factors taken into consideration when the Board must determine whether a position is in fact a management position:

[15] In the context of deciding whether a group of supervisory employees should be certified separately from the bargaining unit of the employees they supervised, the Board has reviewed the criteria of what constitutes management duties as stated in Pelmorex Communications Inc., division of MétéoMédia, [2003] CIRB no. 238; and 113 CLRBR (2d) 123. Three of those criteria are relevant to deciding the instant case: the type of supervisory functions, the decision-making authority and the nature of the work:

[87] A number of criteria that may influence the Board can be drawn from the above decisions:

...

- The type of supervisory functions. A person with supervisory functions that make up most or the core of his/her responsibilities will be seen differently than someone whose supervisory duties towards subordinates are basically limited to their orientation and training, straightforward coordination of their work, or advice, guidance or help. This difference could be defined as staff supervision as opposed to work supervision, or as administrative supervision as opposed to professional or technical supervision.

- Decision-making authority. The difference between a team leader and a “real” supervisor can be compared to that between a supervisor and a manager. A person who acts as a conduit between his/her subordinate employees and his/her line supervisor, who must work closely with the latter and has little latitude for his own decisions on certain situations such as granting leave, approving overtime, evaluating performance independently, authorizing expenditures based on a pre-determined budget or salary increases within a pre-determined pay scale, etc., can only be considered a team leader.

- The nature of the work. A person whose duties partly include the same work as his/her subordinate employees and who works with them in a team is more likely to be seen as a team leader. If the subordinates are unionized, the Board will tend to include the team leader who is doing the work of the bargaining unit within this same unit rather than in a separate unit of supervisors, even if this work accounts for only part of his/her duties.

...

...

[18] In Greater Moncton Airport Authority Inc., [1999] CIRB no. 20, the Board commented that to warrant the exclusion of a position, management responsibilities must be significant:

[29] The magnitude of the financial responsibilities or the access to certain confidential information about the employer’s business are not of themselves sufficient to exclude a position. Managerial responsibilities must include a significant responsibility with respect to the supervision of employees and not only relate to the direction, organization and evaluation of the work. Supervisory responsibilities must go beyond the power to recommend and include a voice in the ultimate decision to hire, promote, discipline or terminate. In this regard, the number of employees in the bargaining unit, the levels of supervision and the reporting authority demonstrated in the organization chart are particularly useful.

(page 8)

[19] In Island Telephone Company Limited, supra, the Board expressed the view that real management duties influence either the process that is undertaken or its results:

The real question again is whether the function-by-function analysis of the evidence presented earlier yield any nuggets of real decision-making authority for level I managers in essential managerial matters? The Board’s judgment is that it does not. There is a great deal of evidence to the effect that these persons play a very active and important role in a large number of management processes but certainly not in a manner that would be clearly determinative of these processes or their results. ...

(page 139)

[20] These decisions point to a consistent view that a true management position involves significant independent decision-making responsibilities, supervision of employees beyond mere direction and evaluation of their work, a power to recommend that impacts on decisions to hire, promote, discipline or terminate. A position will more likely be considered as a team leader, where the employee's duties include essentially the same work as his subordinates and direction consists in leading the team in accordance with set policies; that is, where the employee acts as a coordinator, rather than a decision-maker with respect to authorizing leave, approving overtime or evaluating performance.

[48] In the present case, the Board is not satisfied that the positions in question are truly management positions. The evidence has shown that the main function of the SDMs is to plan and organize the work to ensure that the security lines operate in the most efficient manner, meeting the standards established by CATSA. There is no doubt that the SDMs play an important role in ensuring the proper flow of passengers through security lines by optimizing the teams’ productivity. For example, SDMs and OCMs work collaboratively to move SOs from one checkpoint to another to meet the fluctuations of passenger traffic. They also address any issues of conduct directly with the SOs as they arise, or will assist in dealing with passenger complaints.

[49] The Board is not convinced that the functions performed by the SDMs are of the same nature as those of management positions. The Board concludes that the SDMs do not exercise real independent decision-making authority with respect to fundamental employment rights of the SOs. The Board acknowledges that they coach and address matters with the SOs through disciplinary measures; however, these instances of discipline are circumscribed by various rules and procedures with limited options and discretion for the SDMs to exercise true independent authority in this regard. The range of decisions that are within the SDMs’ authority are well guided through policies, guidelines, and the collective agreement that applies to the SOs. It was made clear that termination was not a decision made independently by an SDM. Similarly, the Board is not convinced that the hiring function was a regular and consistent responsibility of all SDMs.

[50] Further, the Board accepts that the SDMs do not necessarily perform the same functions as the SOs and that clearly, the employer has given them the distinct role of ensuring optimal operations by assigning them responsibility for teams of SOs. However, in the Board’s view, these functions are much more akin to that of a supervisor than that of a manager within the meaning that the Board has given to this concept for the purpose of the Code.

[51] The Board understands the employer’s effort to implement a different model in security screening at airports and its “management team” approach. The employer’s counsel recognized that the concept of “management team” that encompasses the dilution of authority within a large group of employees was rejected in Cominco Ltd. (1980), 40 di 75; [1980] 3 Can LRBR 105; and 80 CLLC 16,045 (CLRB no. 240), as a proper factor for exclusion from the exercise of bargaining rights under the Code. Nevertheless, he invited the Board to recognize the uniqueness of this business environment and to define a “line of management” that may be different than in other traditional operations, given the functions that the group of SDMs exercise in this context.

[52] The Board is unable to conclude, on the basis of the facts present in this case, that there is reason to deviate from its interpretation and application of the concept of management functions. When considering all of the factors that are normally taken into consideration in the assessment of whether this group of individuals exercise management functions, the Board is unable to find the degree of independent authority necessary to find that the SDMs and the OCMs are managers within the Code.

[53] Further, union representation in this context does not negate the employees’ engagement and professional responsibilities toward the employer.

[54] As was stated in Cominco Ltd., supra, the fact that a group of employees who perform supervisory functions is represented by a union does not necessarily create a conflict of interest with their employer:

Similarly, the fact a person is a supervisor and as such directs the work of others, corrects and reprimands where necessary, allocates work among men and equipment, evaluates or assesses new and longstanding employees, authorizes overtime when necessary, calls in manpower when needed, trains others, receives training to supervise, selects persons for advancement, authorizes repairs, can halt production when problems arise, schedules holidays and vacations, verifies time worked, authorizes shift changes for individuals, and requisitions supplies when needed does not create the conflict or potential conflict that disentitles him to the freedom to associate. The loyalty and integrity of such a person is not altered by union membership or representation. We do not subscribe to a view that says an employee will become dishonest or abuse responsibility because he is represented by a union. ...

(pages 90; 118; and 726)

[55] To the extent that some functions may lead to administrative difficulty in the day-to-day operations or in collective bargaining, the Board is satisfied that a separate unit of SDMs and OCMs will eliminate any potential conflict that could arise in the exercise of their functions as they relate to the SOs.

[56] Based on this analysis, the Board finds that the SDMs and the OCMs are employees within the meaning of the Code and that they can form a viable unit appropriate for collective bargaining.

[57] Consequently, the Board orders that the ballots be counted.

[58] If the result of the vote is favourable to the union, the Board will consider the parties’ submissions, including the intervenor’s position, in the determination of the final bargaining unit description.

[59] The Board wishes to note that during the course of the hearing, the Board directed the production of one example of a screenshot of an infraction report and declined to order the production of all infraction reports for a set period of time. Counsel for the union requested that the Board provide reasons for its decision to decline the request for broad disclosure. Given that the witnesses and the employer’s counsel confirmed the union’s point relating to the three disciplinary options that are available to the SDMs when completing the electronic report or that in certain cases, the SDMs’ selection was overturned by the other individuals in HR, the production of further examples was not necessary.

[60] This is a unanimous decision of the Board.