Ontario Public Service Employees Union v. Humber College of Applied Arts and Technology, 1980 CanLII 2988

[1980] OLRB Rep. September 1297

1579-79-M Ontario Public Service Employees Union, Applicant, v. Humber College of Applied Arts and Technology, Respondent

BEFORE: M. G. Mitchnick, Vice-Chairman, and Board Members J. D. Bell and W. F. Rutherford.

APPEARANCES: W. A. Lokay, J. Tait and G. Cwitco for the applicant; Donald F. O. Hersey, Susan A. Bissett and J. L. Davison for the respondent.

DECISION OF THE BOARD:

1. This is an application under section 82 of The Colleges Collective Bargaining Act, to determine the employment status of the Occupational Health and Safety Consultant, Mr. Gary Cwitco. The Board has now had the benefit of the report of a Labour Relations Officer on the duties and responsibilities of Mr. Cwitco, together with the oral representations of the parties thereon.

2. Mr. Cwitco functions as a part of the Centre for Labour Studies at Humber College. The Centre itself was developed in cooperation with the Labour Council of Metropolitan Toronto to develop educational training programs for trade union members and workers gen­erally in the Metropolitan Toronto region. The bulk of the funding for the Centre comes from the College, the remainder being obtained through government grants and through charges for specific programs.

3. Mr. Cwitco began his present function on a contract basis in February 1978, and moved to full-time staff during the course of 1979. His duties and responsibilities, in his own words, were generally "to make contact with trade unions in the Metro Toronto region, to find out about their concerns in the areas of occupational health and safety; to try and develop training programmes for them that met those needs, and to act as a resource person counselling union members' staff representatives about various tactics, methods, concerns, around health and safety issues". The training programs or courses may take different forms: they may be either credit or non-credit courses sponsored by the College itself; or they may be what are re­ferred to as "Humber-assisted projects", being programs sponsored by outside groups and in which Mr. Cwitco or his superior are asked to participate. In the semester immediately preced­ing this application, the Centre sponsored one part-time credit course, in occupational health and safety, of three hours a week, and a substantial number of non-credit courses. At least the latter type of these courses are generally held off campus, and Mr. Cwitco must arrange for suitable locations. The non-credit courses in particular are generally a response to requests from trade unions or a particular trade union, although current areas of concern, such as new health and safety legislation, may be identified by Mr. Cwitco in advance. General directions and program ideas are also discussed at meetings of the Centre's Advisory Committee, which is a joint committee of the College and the Metropolitan Toronto Trades Council. Beyond these types of programs, Mr. Cwitco, as noted, functions also as a consultant to trade unions in the area, either on the basis of specific projects which he is asked to undertake on a contract basis, and for which the College charges the trade-union client a fee, or on the basis of ad hoc requests for information, for example on the toxic qualities of a particular substance.

4. Mr. Cwitco reports to Mr. Grogan, the Director of the Centre for Labour Studies. As Mr. Cwitco indicates, "I basically structure my work but I clear all of my projects with him, to let him know what I'm doing". Mr. Cwitco indicates further that he never commits the Centre to a particular program prior to clearing it with Mr. Grogan unless it involves Mr. Cwitco's time only. Mr. Cwitco describes his relationship with Mr. Grogan as "co-operative" and not the "traditional" supervisor-worker kind of relationship. Mr. Cwitco has no staff under him, and indicates it is up to Mr. Grogan when his correspondence gets typed. Mr. Cwitco did, however, have input into the hiring of a research assistant rather than a full-time secretary.

5. Mr. Cwitco is responsible for developing budgets for the individual programs which the Centre sponsors, but has no involvement whatever in any operational budget for the Col­lege or the Centre. He does sit down with Mr. Grogan, however, to work out of a fee for his contract work with a trade union, based both on the services performed and on their view of the particular trade union's ability to pay.

6. Once a program goal has been identified, it is up to Mr. Cwitco to decide who will develop and/or teach it. In many cases Mr. Cwitco opts for teaching the course himself, pro­vided he has sufficient time available and expertise in the area. When he must look to others to teach, he generally draws from a pool of part-time instructors who teach other courses for the Centre, and makes his specific selection on the basis of particular expertise. Having done this, he will then ask the individual in question if he is interested. Mr. Cwitco acknowledges that he is expected to shoulder the responsibility for an instructor which he selects. If perfor­mance were not satisfactory, he could simply choose not to ask that person to instruct again.

7. While it is clear that Mr. Cwitco spends a substantial amount of his time teaching, the exact relationship between that and his other time spent on the job is difficult to discern. Mr. Cwitco's own records indicate that he taught for some 301 hours in 1979, or an average of 6.5 hours per working week. This is certainly substantial when one considers that, because of the original nature of the bulk of Mr. Cwitco's program requests, considerable time must be spent in development of the material as well. On the other hand, when Mr. Cwitco was asked by the respondent whether all of this teaching was done in the evening and weekends "on your own time", Mr. Cwitco responded, "Not all of it, no". He then indicated that the majority of the teaching was done on evenings and weekends. Given the sharp division between the appli­cant and respondent over the extent of Mr. Cwitco's responsibility for teaching, the evidence is less than satisfactory in providing the Board with a definitive answer in that regard. No job description was placed in evidence, although Mr. Cwitco does make reference to the fact that his remuneration was stated to be based at least in part on teaching experience. The respondent in cross-examination made reference to the fact that Mr. Cwitco received substantial overtime pay for some teaching assignments, but it is not clear whether such payment arose because Mr. Cwitco was engaged in teaching per se, or simply because he was working extra hours.

8. It is not easy, therefore, for the Board to arrive at what is generally referred to as the "primary" characterization of Mr. Cwitco's duties; that is, whether, if an "employee", he would fall within the "academic" (teaching) bargaining unit described in Schedule Ito the Act, or the "support" bargaining unit described in Schedule II. The two descriptions are as follows:

"SCHEDULE I

The academic staff bargaining unit includes the employees of all boards of governors of colleges of applied arts and technology who are employed as teachers, counsellors or librarians.

"SCHEDULE II

The support staff bargaining unit includes the employees of all boards of governors of colleges of applied arts and technology employed in posi­tions or classifications in the office, clerical, technical, health care, main­tenance, building service, shipping, transportation, cafeteria and nursery staff . .

Were it not for the inclusion of the word "technical" in Schedule II, the Board would be in­clined to place Mr. Cwitco in the "academic" unit. His job appears, however, to be more that of a resource person, and hence more appropriately subsumed within the term "technical" staff in Schedule II. Mr. Cwitco is, as he acknowledged in response to a question from the respon­dent, essentially "the authority at Humber College in occupational health and safety and the primary researcher in this field". As such, he is called upon t perform in many ways, only one of which is actual teaching. Indeed, the amount of teaching done by Mr. Cwitco appears to be largely a matter of timing and circumstance, and at best is barely above the minimum required to keep him in the academic unit. His primary responsibility is to dialogue with the trade unions in order to identify program needs and see to their development, and to otherwise make avail­able technical information as required. How Mr. Cwitco delivers on these goals appears inci­dental, and left largely to his own discretion. Characterization of his job as essentially a "tech­nical" one in the support staff unit, therefore, appears to more accurately identify the funda­mental responsibilities of Mr. Cwitco's job. While the Board's conclusion is based on the evi­dence as of the date of the application, one can also see that as the size of Mr. Cwitco's program area continues to grow, his job will more closely resemble that of the development officers, etc. examined by the Board in Algonquin College, [1977] OLRB Rep. May257, Cambrian College, [1980] OLRB Rep. Jan. 8, and St. Clair College, 1980 OLRB Rep. July 1067 and placed in the "support" category of the Act. Interestingly, the Board in the first two of those cases found the persons in question to be "employees" within the meaning of The Colleges Collective Bargain­ing Act, while in the third the opposite conclusion was reached. We now turn, appropriately, to a consideration of whether Mr. Cwitco falls within any of the named exclusions from Schedule II.

9. Schedule II reads in full as follows:

"SCHEDULE II

The support staff bargaining unit includes the employees of all boards of governors of colleges of applied arts and technology employed in posi­tions or classifications in the office, clerical, technical, health care, main­tenance, building service, shipping, transportation, cafeteria and nursery staff but does not include,

(i) foremen,

(ii) supervisors,

(iii) persons above the rank of foreman or supervisor,

(iv) persons employed in a confidential capacity in matters related to employee relations or the formulation of a budget of a college of ap­plied arts and technology or of a constituent campus of a college of applied arts and technology including persons employed in clerical, stenographic or secretarial positions,

(v) other persons employed in a managerial or confidential capacity,

(vi) persons regularly employed for not more than twenty-four hours a week,

(vii) students employed in a co-operative educational training program undertaken with a school, college or university,

(viii) a graduate of a college of applied arts and technology during the per­iod of twelve months immediately following completion of a course of study or instruction at the college by the graduate if the employ­ment of the graduate is associated with a certification, registration or other licensing requirement,

(ix) a person engaged for a project of a non-recurring kind,

(x) a person who is a member of the architectural, dental, engineering, legal or medical profession, entitled to practise in Ontario and em­ployed in a professional capacity, or

(xi) a person engaged and employed outside Ontario."

and "persons employed in a managerial or confidential capacity" (item (v)), are defined in sec­tion 1(1) as follows:

(1) "person employed in a managerial or confidential capacity" means a person who,

(i) is involved in the formulation of organization objectives and policy in relation to the development and administration of programs of the employer or in the formulation of budgets of the employer,

(ii) spends a significant portion of his time in the supervision of employees,

(iii) is required by reason of his duties or responsibilities to deal for­mally on behalf of the employer with a grievance of an employee,

(iv) is employed in a position confidential to any person described in subclause i, ii or iii,

(v) is employed in a confidential capacity in matters relating to employee relations,

(vi) is not otherwise described in subclauses ito v but who, in the opinion of the Ontario Labour Relations Board, should not be included in a bargaining unit by reason of his duties and re­sponsibilities to the employer.

10. The respondent argued with much resourcefulness that Mr. Cwitco is a managerial person "above the rank of foreman or supervisor", and, more particularly, that he ought to be excluded under the provisions of section l(l)(i), (iv) or (vi). The Board is unable to agree.

11. At the outset of its argument, the respondent put forward the proposition that, be­cause of the absence of any preamble to The Colleges Collective Bargaining Act "promoting collective bargaining", as in The Labour Relations Act, the Board's approach to the statute ought somehow to be different. Without commenting on the respondent's specific reference to the question of onus, the Board would only note that the Act before us is nonetheless a statute designed, in the same way as The Labour Relations Act, to regulate and develop arms-length collective bargaining and sound labour relations, and can only be read in that light. See the Sheridan College case, [1976] OLRB Rep. Dec. 844, at paragraph 22, and also, in a related vein, the Cambrian College case, [1980] OLRB Rep. Jan. 8, at paragraph 12.

12. The first ground for exclusion put forward by the respondent, as indicated, is that Mr. Cwitco is a person who

"(i) is involved in the formulation of organization objectives and policy in relation to the development and administration of programs of the employer or in the formulation of budgets of the employer.”

In the Board's view, however, Mr. Cwitco is not involved in the "formulation of organization objectives and policy" at the level contemplated by the section. We agree with Mr. Cwitco's characterization of this question at page 19 of the Report, where he said:

"The policy was made when the decision to hire me was made, and that was a policy decision that the Centre for Labour Studies would be in­volved in occupational health and safety and within the framework of that policy that the Centre had decided as a policy for the Centre that health and safety was an important area."

Beyond that, Mr. Cwitco obviously has considerable leeway and indeed the primary responsi­bility for developing the programs which will implement that policy, but this function per­formed by Mr. Cwitco is predominantly a technical one, with no discernible labour relations impact. His attendance at meetings of the Advisory Committee adds nothing to this assess­ment, as the discussion at these meetings again is of a technical nature, directed at course con­tent. The trade union leaders attend not in any management capacity to discuss internal trade union affairs, but rather as clients of the College, and there would appear to be nothing either managerial or confidential to the College about these discussions, in a labour relations sense.

13. As for the second element of the subsection, involvement "in the formulation of budgets of the employer", it is clear that Mr. Cwitco participates in formulating budget propos­als for individual courses or seminars, but not for any operating budget for the College or Cen­tre themselves. We take the words "of the employer" to have been added in the subsection for more than the sake of obvious clarity. Rather, bearing in mind the labour relations purpose of the exclusion, these final words tend to underscore the view that the "budgets" referred to in the subsection are those that determine the spending priorities of the employer itself. It is bud­gets of this latter type that raise a significant conflict of interest with respect to employment possibilities or conditions, and not budgets pertaining to individual courses or seminars, setting out the costs to be incurred for room rentals, etc., and the amount to be recouped from cli­ents in fees. See also Cambrian College, supra, at para. 15. There is no evidence whatever indi­cating any significant discretion on the part of Mr. Cwitco in varying the amount to be ascribed to the remuneration of other instructors in these budgets. And while some of the budgets ap­pear to entail a substantial commitment of funds for expenditures by Mr. Cwitco, and the exer­cise of a measure of discretion, this amounts to the spending of the College's funds only in the sense that the expenditures may take place before the offsetting fees are actually collected. It is essentially an "advance" to the particular program, budgeted as they generally are to carry their own costs.

14. The respondent also argued that Mr. Cwitco must be excluded on the basis that he

"(iv) is employed in a position confidential to any person described in subclause (i), (ii) or (iii)."

There is, however, insufficient evidence concerning Mr. Cwitco's superior, Mr. Grogan, for the Board to determine whether Mr. Grogan himself fits within either of subsections (i), (ii) or(iii) of section 1(1). This is the same problem the Board was faced with in the St. Lawrence College case, Board File No. 1657-77-M, an unreported decision issued July 11, 1978. But even if the Board were prepared to draw the necessary inference concerning Mr. Grogan, the Board has indicated, in Sheridan College, [1976] OLRB Rep. Dec. 844, paragraph 37, that even though the focus of this subsection is on the relationship and not the material passing between the two individuals under examination, the confidence still must relate, having regard to the nature of the statute, to a function that is incompatible with collective bargaining. The evidence fails to disclose anything close to the kind of unavoidable and continuous exposure to the information of the superior referred to in the St. Lawrence case. Mr. Cwitco did indicate that he and Mr. Grogan function more as equals than in the traditional "superior-worker" relationship, but this appears to be a reference to the respect and latitude afforded Mr. Cwitco because of his greater technical expertise in this area, rather than to any passing of confidential information the other way. Certainly joint input into such matters as the fixing of fees poses no labour rela­tions threat to justify exclusion under this head. And in the limited cases hypothesized by the respondent where the applicant, OPS EU, may be the trade-union client for whom a fee must be set, the membership of Mr. Cwitco in the applicant's bargaining unit is surely a matter which Mr. Grogan would have no difficulty taking into account. The Board would not be inclined to exclude on the basis of so isolated a conflict.

15. This brings us to an examination of subsection l(l)(vi), enabling the Board to ex­clude a person who

"is not otherwise described in subclauses I to v but who, in the opinion of the Ontario Labour Relations Board should not be included in a bargain­ing unit by reason of his duties and responsibilities to the employer."

It is important to note that it was on this discretionary ground that the Board decided to ex­clude the Divisional Directors and their Assistants in St. Clair College, supra. These individu­als, together with their superior, Mr. Giroux, were found to be responsible for the entire opera­tion of the College's Continuing Education School, involving numbers of courses, teachers, students and clerical staff in no way comparable to the Occupational Health and Safety pro­gram before us in the present case. As the Board there stated, at paragraph 50:

“….Indeed, it would be curious to hold, as the union suggests, that the en­tire continuing education programme involving thousands of students, hundreds of courses, hundreds of part-time teachers, and dozens of part-time clerical personnel, is managed solely by R. F. Giroux. In the absence of considerably more evidence than is currently before us considering the way in which the School of Continuing Education fits into the general framework of the respondent's organization, and in the absence of any evidence of significant managerial control exercised by persons outside the school, we are compelled to conclude that the school is, in fact, man­aged by Giroux, the five Divisional Directors and the two Assistant Divi­sional Directors...

16. Mr. Cwitco is, by contrast, virtually a "one-man show". It is really only on that basis that he can be said, as the respondent argues, to "run" the program on a day-to-day basis. He does have the responsibility to produce the program, and is given great latitude in this regard. The Board finds, however, that Mr. Cwitco in so acting is employed in essentially a technical but not a managerial capacity. If he is not himself going to teach a course, he can decide whom to approach instead. He generally operates, however, within a poo1 of part-time instructors al­ready associated with the Centre, and his choice is usually dictated by the area of expertise in­volved. It is true that his capacity not to approach a given individual the next time constitutes a real element of control in the hiring process, but on the evidence this factor is not sufficiently significant to be compelling in the present case. The pool Mr. Cwitco generally draws from are all known quantities, and the need to exercise this discretion has never arisen. The evidence in­dicates some measure of input regarding the hiring of additional teachers to come on staff with the College, and of support personnel, but again, this is both limited and isolated. Finally, while Mr. Cwitco makes it clear that he "promotes" his program every chance he gets, this does not indicate a "marketing" function in the sense used in other cases. It must be remembered that his position is designed primarily to respond to the needs of the various trade unions, and individual programs tend to be custom-made in response to a specific request. The emphasis on marketing, therefore, is nowhere near what was the case in St. Clair College, where the pro­grams are spawned internally and then must be "sold". In that case the annual budget of a sin­gle Divisional Director was in the neighborhood of $400,000, and much of that individual's efforts were directed toward recouping from the consuming public as much as two-thirds of that overhead. In the present case, the Board is unable to find any significant incompatibility between Mr. Cwitco's job as Occupational Health and Safety Consultant and his inclusion in the applicant's support staff bargaining unit, and we decline to exercise our discretion under section l(l)(vi).

17. For all of the foregoing reasons, the Board finds that Mr. Cwitco is not a foreman or a supervisor, or a person above that rank, or otherwise excluded under the provisions of Sched­ule II, and the Board hereby declares Mr. Cwitco to be an "employee" within the meaning of Schedule II of The Colleges Collective Bargaining Act.