Greater Essex County District School Board v. Canadian Union of Public Employees, Local 1348, 2012 ONSC 5591

SWINTON J. (orally)

1The applicant seeks judicial review of decisions in which the Ontario Labour Relations Board (“the Board”) found that Human Resources Secretaries working for the applicant were not employed in a confidential capacity in matters relating to labour relations nor exercising managerial functions within the meaning of s. 1(3)(b) of the Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A (“the Act”), and therefore they are employees for purposes of the Act.

2The standard of review is reasonableness, as the Board was interpreting its home statute and applying it to the evidence. The determination of an employee’s status is a fact-driven inquiry that lies within the Board’s specialized expertise.

3The applicant argues that the Board gave an unduly narrow interpretation to s. 1(3)(b) of the Act and so applied the wrong test by looking to whether an employee has access to confidential information in relation to the bargaining unit in which the employee would be a member. As well, the Board is said to have erred in its appreciation of the evidence.

4The Board considered its longstanding jurisprudence concerning the meaning of s.1(3)(b) and applied it to the facts. The Board reasonably concluded that the test for exclusion arising because an employee acts in a confidential capacity in matters relating to labour relations requires a demonstration that the employee’s work relates to matters affecting a union representing her or him. The Board stated (at para. 38):

Since the decision in Comtech, the jurisprudence clearly and consistently requires that in order for an individual to be excluded pursuant to section 1(3)(b), the confidential capacity regarding labour relations in which they are employed must relate to the bargaining unit in which the individual at issue would be or is a member.

5It was entirely reasonable for the Board to identify the mischief to which the legislation was directed as a conflict of loyalty. The Board concluded at para. 41 of its reasons:

In my view, the divided loyalties which are to be avoided are a loyalty to the employer, and a loyalty to oneself, in that the bargaining unit represents the employee’s interests. In other words, the “tension” to be avoided is that between the employer’s interest and the employee’s self interests. In this instance, there was no indication that the Human Resources Secretaries had any self interest that would be related to any of the other bargain [sic] units the School Board deals with i.e. Ontario Secondary School Teachers’ Federation (“OSSTF”), Canadian Union of Public Employees, Local 27 (“CUPE Local 27”); and Elementary Teachers’ Federation of Ontario (“ETFO”).

6The Board’s interpretation of s. 1(3)(b) is reasonable and consistent with the language of the Act and its purpose. The Board properly held that exemptions should be interpreted narrowly.

7In applying the test, the Board carefully considered the duties of the Human Resources Secretaries and gave detailed reasons for its conclusions. It drew a distinction between confidential personnel information obtained by the secretaries and information confidential to labour relations. That distinction is consistent with the decision of the Supreme Court of Canada in CLRB v. Transair Limited and Canadian Association of Industrial Mechanical and Allied Workers, [76 CLLC 14,024], to which the Board made reference at para. 29 of its reasons.

8The applicant takes particular issue with the Board’s failure to find that Ms. Krneta was employed in a confidential capacity because she dealt with benefits for all bargaining units including Local 1348. As well, the secretaries worked as a team and at times might have to fill in for the excluded secretary working for the Human Resources Officer responsible for Local 1348.

9The Board dealt carefully with these arguments in both the initial and reconsideration decisions. Ultimately, the Board concluded that any actual involvement in labour relations relating to Local 1348 was too occasional or incidental to warrant exclusion under s. 1(3)(b). This finding was consistent with the Board’s jurisprudence and fully supported by the evidence before the Board.

10With respect to the issue whether the employees performed managerial functions, the Board applied its longstanding test, asking whether the secretaries have the power of “effective recommendation” that materially affects the working conditions of other employees. The Board found, consistent with the evidence, that the secretaries do not make “effective recommendations.” We see no reason to interfere with that conclusion.

11Even if the Board erred in saying that the employees “remain members of CUPE Local 1348” (as CUPE concedes), that statement has no impact on the decision as a whole. The Board clearly found that the secretaries were not excluded from collective bargaining by s. 1(3)(b) of the Act. The decision was reasonable, given the evidence and the words of the Act.

12The Board’s reasons met the requirements of transparency, intelligibility and justification and, given the evidence before it, the decisions were reasonable. Accordingly, the application for judicial review is dismissed.

PARDU J.

COSTS

13On behalf of the panel I have endorsed the Application Record, “The application is dismissed for reasons given orally. Costs to respondent CUPE fixed at $5,000.”