The Ontario Labour Relations Board (the “Board”) rendered this decision in the context of an Application for Certification filed by IATSE Local 828 (the “Union”) against Drayton Theatres Inc. operating as Drayton Entertainment (the “Employer”).
In this decision, the Board determined the status of an individual that worked as a Head Scenic Painter (the “Disputed Employee”), which the Union sought to add to the list of employees and the Employer challenged on the basis that the individual performed managerial functions and therefore performed work outside the bargaining unit.
The Union argued that to determine the dispute, the Board had to consider the nature of the Employer’s business and how its business is structured for purposes of labour relations in the unionized setting. The Employer submitted that the test to be applied to determine the status Disputed Employee is whether or not her duties and responsibilities weresuch that her inclusion in the bargaining unit would give rise to a labour relations conflict of interest.
The Board held that the Disputed Employee was an employee within the meaning of the Labour Relations Act, 1995,that she was not employed as a “non-working supervisor”, did not occupy a position above the rank of non-working supervisor, and as such was not excluded from the Union’s proposed bargaining unit. In particular, the Board found that the Disputed Employee performed some management functions, including recommending which individuals should get selected as Scenic Painters and assesses whether they are a beginner, intermediate of advanced for purposes of pay. However, the Director of Production and the human resources department for the Employer have the final say whether or not an individual becomes a Scenic Painter, and the wage level that that person will enjoy. The Board concluded that the Disputed Employee’s role was more accurately characterized as the exercise of professional assessment than that of managerial authority.
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