Ontario Public Service Employees Union v. Cambrian College of Applied Arts & Technology, 1980 CanLII 773

[1980] OLRB Rep. January 11

1149-78-M Ontario Public Service Employees Union, Applicant, v. Cambrian College of Applied Arts & Technology, Respondent.

BEFORE: N. B. Satterfield, Vice-Chairman and Board Members J. D. Bell and O. Hodges.

APPEARANCES: Win. A. Lokay and D. W. LaBelle for the applicant; Janice Baker and others for the respondent.

DECISION OF THE BOARD; January 28, 1980.

1. The applicant is seeking a determination from the Board under section 82 of The Colleges Collective Bargaining Act, 1975 in respect of 15 persons employed by the respondent in nine different job classifications. The purpose of the reference is to have the Board determine whether these persons are employees within the meaning of the Act and, if they are, in which of two bargaining units established by the statute they belong.

2. A Labour Relations Officer was appointed to inquire into the duties and responsibilities of these persons. The parties agreed in their meetings with the Officer that M. Home, D. Pemnu, B. Ledger and M. Kaminski be deleted from the reference and that the Board make no determination in respect of F. Musico and C. Brouillard. They also agreed that N. Chouinard is an employee within the meaning of the Act and that the Board should determine in which bargaining unit the employee belongs. At the hearing before the Board held for the purpose of receiving the parties' submissions on the conclusion which they wished the Board to reach on the report, they agreed that J. Steciuk was not an employee under the Act. The names and job classifications are listed below of the seven remaining persons whose status under the Act is to be determined by the Board.

M. Clement — Student Activities Co-ordinator C. Vandendriesche — Programmer-Analyst G. Dumas — Community Program Co-ordinator A. Favot — Community Program Co-ordinator H. Schmidt — Manager Evening Programs D. van Leeuwen —Manager Client Services C. Sanford — Media Specialist

3. The Student Activities Co-ordinator, M. Clement, reports to the Dean of Student and Academic Services Division and is responsible for operation of the student residence at the respondent's Regent Street campus and for developing and administering comprehensive student activities programs (extra-curricular). He has reporting to him a steno-typist and the residence co-ordinator, both of whom are employees under the Act, and the residence don and 10 students who are part-time employees of the college. The don and the 10 students are not employees for the purposes of the Act. In respect to the two employees, Clement's authority includes hiring and effective recommendation for firing; scheduling and assigning of work; evaluating work performance which affects eligibility for probationary pay increase; approving time sheets for pay purposes and handling employment-related problems. While he has disciplinary authority, the evidence is unclear whether it extends to these two employees. The evidence demonstrates that he has a similar responsibility for supervising the don and the 10 students who are part-time employees, except that he has authority to discipline them and report his action to the dean. He is also involved with the discipline of students generally. Clement spends 50 to 60 per cent of his time supervising these 13 persons. His responsibility in the area of financial control includes the formulating of the recommended budget for his department and administering the approved annual budget ($84,000); administering annual residence budget ($175,000) and controlling the expenditure of funds under a $50,000 Student Administrative Council budget and an $8,000 Residence Council Budget. He gives final approval for the release of funds up to $800.00 from the Student Administrative Council budget. He approves expenditures within his department budget and the residence operations budget but those are subject to the college's requisitioning procedures. He approves the purchase of supplies for the residence without other prior approval, however. He also contracts for the printing of the student handbook without specific prior approval. He meets on a regular and continuing basis with the faculty deans and chairmen on college policy matters.

4. Cora Vandendriesche, Programmer-Analyst, develops computer systems and programs for the use of students, faculty, administration staff and outsiders. She is one of two persons in this classification who are responsible to the manager of computer services for the systems design and programming function. She does not have any direct supervisory responsibilities over other employees in the department but has the authority to issue instructions to them in respect of the execution of jobs on the computer. She also provides technical advice and supervision for all users of computer systems. Vandendriesche has access to all information necessary for designing the systems which supply the users with their information needs, including access to information in the computer data files on existing systems and programs. There is no evidence that she has had access to information which is confidential in respect of employee relations, but would have such access if the need arose in designing new systems or in maintaining of existing ones.

5. Both Community Program Co-ordinators, Gil Dumas and Aldo Favot, are responsible to the chairman of community programs for the delivery of continuing education courses within the geographical jurisdiction served by the college. They assess the need for courses and then develop courses to satisfy those needs. Their responsibilities include the selection of teaching facilities and course instructors, the marketing and general administration of the courses. They recruit and supervise from four to eight community liaison officers and 60 to 80 part-time instructors. Both recommend candidates for hire as community liaison officers for final approval (usually granted) by the chairman. They have hiring, firing and disciplining authority over part-time instructors. They evaluate the performance of part-time staff and handle their employment related problems. One of the Co-ordinators supervises two full-time adult education instructors. The Co-ordinators contract for space in the community for training courses and negotiate contracts for specialized part-time instruction services with individuals, firms and agencies.

6. The Manager of Evening Programs, Helge Schmidt, has dual reporting relationships. She is a Community program Co-ordinator with duties, responsibilities and authority similar to Dumas and Favot and in this role she reports to the Chairman of Community Programs. But she is also responsible to the Dean of Continuing Education for the operation of evening classes at one of the two Sudbury campuses of the college. In this role she deals with and resolves problems in respect of course scheduling, instructor absence, classroom allocation and the supply of services to students and instructors. She deals also with similar problems by telephone contact with satellite campuses outside of Sudbury.

7. Dave van Leeuwen, Manager Client Services, is responsible to the dean of the continuing education division for marketing the full range of the college's services throughout the geographical jurisdiction of the college. Operating through the community programs department of the continuing education division, he develops and administers courses within the Training in Business and Industry, Management Development and Professional Association programs. In this respect his duties, responsibilities and authority are essentially the same as the community program co-ordinator, including the hiring, firing, evaluating and disciplining of 25 to 30 part-time instructors. He has the added responsibility of administering all media advertising and contract printing for the continuing education divi­sion, which involves controlling annual expenditures of $30,000.00 for advertising and $40,000.00 for contract printing. He signs on his own authority contracts for advertising and printing committing the college to expenditures within the aforesaid annual amounts. He also provides the liaison between the division and the computer centre and instructional media centre of the college. The Manager Client Services has the prime responsibility for the marketing of all of the colleges continuing education programs. He plans, develops and implements the marketing strategies for these programs and assures that the Community Program Co-ordinators, including Schmidt are instructed in and equipped to execute these strategies. He serves on the Dean's divisional committee together with two chairmen, a department head and the division's manager of officer services. The committee assists the dean with the resolution of policy problems at the division level, co-ordinates and schedules all of the academic resources of the college used in the continuing education program.

8. The Media Specialist, Clark Sanford, is responsible to the Dean of Student and Academic Services for developing, designing and producing instructional materials and programs for classroom use; counseling and advising all levels of faculty in the teaching use of media available through the college's instructional media centre. He also produces promotional material for use by the college in marketing its programs in the community. Sanford has no persons under his direct supervision, but exercises technical supervision over technical specialists in the media centre who are engaged in the production of instructional and promotional material. As a result of this technical supervision he participates in evaluating the technical performance of media centre employees and also in the screening of candidates for technical positions in the centre.

9. The scope of the Board's authority to determine the status under the Act of the persons in question is contained in section 82 of the Act which states as follows:

"If, in the course of bargaining for an agreement or during the period of operation of an agreement, a question arises as to whether a person is an employee, including a question as to whether a person employed as a chairman, department head, director, foreman or supervisor is employed in a managerial or confidential capacity pursuant to clause 1 of section 1 and the schedules, the question may be referred to the Ontario Labour Relations Board and its decision thereon is final and binding for all purposes."

10. A unique feature of the statute is that it establishes two bargaining units for the purposes of collective bargaining in respect of employees of Colleges of Applied Arts and Technology (community colleges) in the province. These units are defined in schedules 1 and 2 of the Act and section 1(f) defines an employee as a person employed in a position or classification that is within either of the two units. The relevant portions of the Act are as follows:

Section 1(f)

"1. In this Act and the Schedules,

(f) 'employee' means a person employed by a board of governors of a col­lege of applied arts and technology in a position or classification that is within the academic staff bargaining unit or the support staff bargaining unit set out in Schedules 1 and 2."

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, counselors or librarians but does not include

(i) chairmen,

(ii) department heads,

(iii) directors,

(iv) persons above the rank of chairman, department head or director,

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

(vi) teachers who teach for six hours or less per week,

(vii) counselors and librarians employed on a part-time basis,

(viii)teachers, counselors or librarians who are appointed for one of more sessions and who are employed for not more than twelve months in any twenty-four month period,

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

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

Schedule 2

"The support staff bargaining unit includes the employees of all boards and governors of colleges of applied arts and technology employed in positions or classification in the office, 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 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 practice in Ontario and employed in a professional capacity, or

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

Item (v) of the exclusions from both schedules is further defined by section 1(1) of the Act as follows:

"1. In this Act and in the Schedules,

(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 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."

11. This particular construction of the Act has several results. It removes from the Board as the administering tribunal the task of defining what is an appropriate bargaining unit and, in leaving with the Board the task of determining whether persons are included in or excluded from either unit, focuses the Board's attention by setting out, in more detail than is customary in provincial collective bargaining legislation, the criteria for making that determination. There are five categories of exclusions:

(a) persons engaged and employed outside Ontario;

(b) persons in a part-time, short-term or specified-term employment relationship;

(c) persons who are members of self-regulated professions and employed in one of those professions;

(d) persons employed in a managerial capacity; and

(e) persons employed in a confidential capacity in matters related to labour relations.

In other collective bargaining legislation, it would usually be left to the administering tribunal to determine whether the first two categories formed an appropriate unit, or part of a unit as part of the task of defining a unit that is appropriate for collective bargaining. The third category is a commonly legislated exclusion and is similar to section 1(3)(a) of The Labour Relations Act. The fourth and the fifth categories are also commonly legislated exclusions, as, for example, in section 1(3)(b) of The Labour Relations Act. What distinguishes these two categories (i.e., d & e) of exclusions in this Act from other statutes is the itemized criteria which the Act sets out for them. In the case at hand, it is only these last two categories, i.e., the managerial and confidential exclusions with which we are concerned.

12. The Act defines the managerial and confidential exclusions in items (i) through (v) of both Schedules and in section 1(1). This itemizing of the criteria does not alter, however, the purpose of the exclusions, which is to assure an arms length relationship between the parties to the collective bargaining process; i.e., the employees and the employer. Because of the importance of an arm's length relationship to an effective collective bargaining relationship, the Board has found frequent need to comment on it in the course of making a determination under section 1(3)(b) of The Labour Relations Act. Its observations in Chrysler Canada Limited, [1976] OLRB Rep. Aug. 396 contain an excellent statement of the need to identify and separate the parties to collective bargaining and are equally applicable under the Act in this matter.

"12. The identification of management is fundamental to the scheme of collective bargaining as set out in The Labour Relations Act. What is contemplated is an arm's length relationship between the employees represented by a bargaining agent, on the one side, and the employer acting through management on the other side. The Act attempts to create a balance of a power between these two sides by insulating one from the other. Employees, therefore, are protected from management interference and domination by the prohibitions against employer interference with trade union and employee rights. Management, by the same token, is protected by excluding from collective bargaining either persons exercising managerial functions, or persons employed in a confidential capacity in matters relating to labour relations. Collective bargaining rights, therefore, are not universal, but must be qualified by the need to preserve a countervailing force on the employer side."

Section 1(1) of the Act sets out the itemized criteria by which the Board is to determine whether a person is employed in a managerial or confidential capacity. While this itemizing seems to proscribe, in a section 82 referral, the Board's use of the broad range of criteria which it applies when it is called upon to determine the same question under section 1(3)(b) of The Labour Relations Act, the Board has noted that these criteria are applicable to at least two of the criteria under this Act. First, for determining if a person is employed in a confidential capacity in matters related to employee relations [(item (iv) of Schedule 2 and subsection 1(l)(v). In this respect see Humber College of Applied Arts and Technology, Board File No. 1978-76-M (unreported). Second, for deciding whether to exercise the Board's discretion under sub-section 1(l)(vi) 'to exclude a person from either bargaining unit " ... by reason of his duties and responsibilities to the employer" even when he is not excluded by sub-section 1(l)(i) through sub-section 1(l)(v). See The Board of Governors of Algonquin College, et al, [1977] OLRB Rep. May 257 at paragraph 11.

13. The construction of the exclusionary provisions of the Act has caused the Board to adopt a two-step approach for determining a person's employment status under the Act. Briefly stated, the approach involves:

(a) determining in which bargaining unit they would be placed if they were found to be employees, and

(b) whether they are among the categories of persons expressly excluded from the relevant schedule.

The first step involves examining the nature of their work and deciding whether it may be characterized as that of teacher, counselor, librarian or office, technical, health care, maintenance, building service, shipping, transportation, cafeteria and nursery staff. The answer at the first step determines which set of exclusions the Board is to apply at the second step. If the second step requires a determination as to whether they are "other persons employed in a managerial or confidential capacity", it becomes necessary to resort to section 1(1) of the Act. The results of applying this procedure to the evidence in this case are set out hereunder.

M. Clement — Student Activities Co-ordinator

14. The evidence in the Labour Relations Officer's report reveals that the primary thrust of the Student Activities Co-ordinator position is to enhance the total learning experience of students attending the college. All of Clement's job activities are related to that objective and, as a result, he spends most of his time advising, counseling and supervising students in respect of their student government, social and recreational activities, including the students' role in the operation of the residence. While the focus of Clement's advisor and counselor role with students is not on their academic curricula, it involves a direct, functional contact with students fully compatible with the context of the academic staffing bargaining unit. Consequently, we find that the student activities co-ordinator may be characterized as a "counselor" placing him in Schedule 1.

15. Looking next to whether Clement should be included in or excluded from Schedule 1, there is no claim that he is excluded by items (i) through (iv). Thus the issue becomes one of whether he is employed in a managerial or confidential capacity and thus excluded under item (v), which in turn directs us to sub-section 1(1). Is Clement, on the evidence, cap­tured by any of the specific exclusion of sub-section 1(l)(i) through 1(l)(v)? While his responsibility for developing programs for students activities and for the operation of the student residence might be taken as involving Clement in the development and administration of programs of the employer, it is not involvement in the formulation of objectives and policy. Therefore he is not excluded by the first part of sub-section 1(l)(i). Insofar as the second part is concerned, Clement prepares and submits for approval his departmental budget, administers the approved budget, supervises the preparation and administration of the budgets for the student residence and the Student Administrative Council. While this activity may constitute involvement with "formulation of budgets of the employer", it must be viewed keeping in mind the purpose of the managerial and confidential exclusions. It is reasonable to conclude that the Legislature intended persons to be excluded who were privy to and materially involved with confidential budget data relating to employee relations, the disclosure of which would be adverse to the employer's interests. There is insufficient evidence about Clement's involvement with the aforementioned budgets to conclude that a useful collective bargaining purpose would be served by excluding him. The Board finds, therefore, that he is not excluded by the second part of sub-section 1(l)(i).

16. The facts are that Clement spends from 50 to 60 per cent of his time supervising the 13 persons who report to him, of which only the steno-typist and the residence-co-ordinator are employees of the college. Sub-section 1(l)(ii) excludes a person who "spends a significant portion of his time in the supervision of employees". The use throughout the Act of the words "employee" and "person" leads us to conclude that, when the word "employee" is used, it must mean as defined by the Act and not employees of the College in the ordinary sense of the word. This means that Clement supervises two employees and, while there is no evidence as to how much of his time is spent supervising them, it may be reasonably inferred from the full content of his job that he does not spend a significant portion of his time in the supervision of these two employees. Therefore he is not excluded by sub-section 1(l)(ii).

17. There is some evidence that the two employees come to Clement with problems, but there is no evidence which would support his exclusion by sub-section 1(l)(iii) by reason of his having to deal formally on behalf of the employer with a grievance of an employee. He is not employed in a position which would be captured by the exclusion defined in sub-section 1 (l)(iv), nor does the evidence reveal him to be employed in a confidential capacity in matters relating to labour relations (sub-section 1(l)(v)). He has access to information treated by the college as confidential, but not of a nature such that its improper use would prejudice the employer's position in the collective bargaining relationship.

18. For the above reasons, we find that Clement is not captured by any of the itemized exclusions of Schedule 1 or sub-section 1(1). Should the Board exercise its discretion under subsection 1(l)(vi), then, to exclude him" ... by reason of his duties and responsibilities to the employer."? The sub-section gives the Board the clear, discretionary authority to exclude from collective bargaining persons who are not captured by the specific exclusions of the schedules and sub-section 1(1). Bearing in mind that our objective is to identify persons employed in a managerial or confidential capacity for the purpose and reasons stated in paragraph 12. it makes sense in our judgment to exercise that discretion so as to exclude persons who would be excluded by the Board's tests for managerial and confidential function under section 1(3)(b) of The Labour Relations Act who are not captured by the detailed exclusions of the schedules and subsection 1(1) of the Act. As we have already commented in paragraph 12 the confidentiality criteria of Schedule 2, item (iv) and sub-section 1(l)(v) are open to application of the Board's section 1(3)(b) tests for confidentiality, so it is more likely that the Board will be concerned primarily with the managerial exclusion whenever it is considering the exercise of its discretionary function such as, for example, the "supervision and control" test or the "effective recommendation" test, are essentially tests which assist it to determine whether a person's duties and responsibilities identify him as a member of the employer's management team and thus a participant in the decision-making functions of management. (See for example Rio Algoma Mines Limited, [1970] OLRB Rep. Nov. 865 at paragraph 11). Therefore, when the application of the Board's test reveal a person to be part of the management team, in our view that would be an appropriate situation in which to exercise the Board's discretion under sub-section 1(l)(iv) to exclude the person from the bargaining unit. This does not mean that a bald assertion that a person is "on the management team" will result in the Board automatically exercising its discretion. Rather the Board will apply its test to the facts of each situation as required, using the tests as guidelines for determining if the exercise of management function is present in the situation under review. These tests and their application are extensively canvassed in McIntyre Porcupine Mines Limited, [1975] OLRB Rep. Apr. 261 and, more recently, in Spar Aerospace Products Ltd., [1979] OLRB Rep. July 700, which is an excellent example of why the Board must be prepared to consider each situation separately on its own facts. Or, more generally, see Sack and Levinson, Ontario Labour Relations Board Practice (Butterworth & Co. (Canada) Ltd., 1973) at pp. 28-34 and the cases listed therein. See also the 1977 Supplement to the text at pp. 11-14 for a review of the more recent decision of the Board in dealing with a variety of forms of managerial function.

19. We find support for this view that the Board should exercise its discretion as set out above in an unreported decision of the Ontario Public Service Labour Relations Tribu­nal ("The Tribunal") under The Crown Employees Collective Bargaining Act, 1972 ("the Statute") in re The Crown in Right of Ontario and Ontario Public Service Employees Union (re Ian Welton), File T3/76. The structure of the statute, insofar as its exclusionary provisions are concerned is similar to the Act and the wording of section 1(1)(m)(ii) of the Statute is identical to that of sub-section 1(1)(i) of the Act. The Tribunal commented, in part, as fol­lows on the place of section 1(l)(m)(ii) within the context of the overall managerial and confi­dential exclusions of the Statute:

there is a range of persons who may neither supervise employees nor have much if anything to do with employees directly and who are not considered to be heads of a particular government operation, but are excluded from being employees under the Act because they are considered part of the managerial team.";

and the Tribunal concludes as follows:

"..., generally and in context, section 1(1)(m)(ii) is concerned with members of the managerial team, who are usually but perhaps not always senior government personnel who, while they may not spend a significant portion of their time in supervising other employees nevertheless do not share a community of interest with members of the bargaining unit for the purposes for which the unit exists".

20. Let us see what is the result of applying to Clement the Board's tests for managerial function. His authority to hire, schedule and assign work, approve timesheets for pay purposes and evaluate the work performance of the two employees, the residence don and the 10 students who are part-time employees, his authority to discipline the 11 part-time employees and report the action taken to the dean indicates that Clement exercises a reasonable degree of supervision and control and effective recommendation in respect of persons over whom the respondent has an ultimate managerial responsibility. He exercises independent decision-making discretion in respect of the development and administration of student activities programs and operation of the student residence. He also commits the respondent to significant expenditures of funds and exercises a stewardship over expenditure of student government funds. None of these individual aspects of the position is sufficient by itself to identify Clement as a member of the management team, but the sum of them, in our view, places him surely on that team and, as such, places him in a position of exercising managerial function. The Board finds, therefore, that by reason of Clement's duties and responsibilities to the respondent, the student activities co-ordinator should not be included in the academic staff bargaining unit.

C. Vandendriesche — Programmer-Analyst

21. The Programmer-Analyst has contact with students on a regular basis in terms of their use of the college's computer facilities, giving them technical guidance and instructions in that respect. This is not, however, the kind of functional contact with students characteristic of the teaching role of the college. Therefore, were the Board to find Vandendriesche to be an employee under the Act, she would be in support staff bargaining unit, i.e., Schedule 2 and we note the concurrence of the parties with this result. If she is to fall within any of the exclusions of Schedule 2, it would be within either item (iv) or (v).

22. Dealing with the second part of item iv ("persons employed in a confidential capacity in matters related to the formulation of a budget of a college of applied arts and technology or of constituent campus. ..."), there is no evidence of Vandendriesche having anything to do with the formulation of such budgets. While one could speculate that the college may have these budgets on computer and the Programmer-Analyst may be involved in manipulating the budget data file in order to develop statistics and cost information for use in collective bargaining, the Board can only conclude from the absence of evidence that this is not the case. She does not fall within the exclusion in the second part of item (iv) and for similar reasons we must conclude that she is not excluded by the first part which concerns "persons employed in a confidential capacity in matters related to employee relations. The evidence tells us that she has access to student records maintained on computer data files which may well be confidential in the general sense and that she has access to all of the data files of systems run on the computer whether it deals with "Personnel", a "multi-year plan" or "costing procedures". There is nothing which would support the conclusion that her access to any of the data files constitutes a"... regular, material involvement in matters relating to labour relations which are confidential because their disclosure would adversely affect the interest of the employer... .". This is the leading statement from the Board's decision in Falconbridge Nickel Mines Limited, [1966] OLRB Rep. Sept. 379 which the Board has consistently followed when deciding the same question under section 1(3)(b) of The Labour Relations Act. In these circumstances, we find the programmer-analyst not to be excluded by item (iv).

23. Next we turn to the itemized criteria of the sub-section 1(1) to determine whether Vandendriesehe is captured by any of those and thereby excluded under item (v) of Schedule 2. We cannot agree with respondent counsel's contention that she formulates policy in respect of the respondent's computer systems and programs. Clearly she taps the computer's processing capability to meet the information needs of the users by designing appropriate systems and writing the programs for their operation, but if she contributes at all (and it is possible that she does) to the formulation of policy in respect of the college's computer facilities, there s not an iota of evidence to this effect. She is not involved in the formulation of organization objectives or in the formulation of budgets. What was said above about formulation of budgets of the college applies equally to the second aspect of sub-section 1(l)(i). She does not fall within this criteria of the managerial or confidential exclusion, therefore.

24. Vandendriesche gives technical guidance to the computer services staff and to the users of the services. She also requests the staff to execute particular jobs or programs and when this happens, they are responsible to her for doing so. Considering the nature of the supervision and the fact that it occupies ten to fifteen per cent of her time, it does not constitute spending a significant portion of time in the supervision of employees. There is no evidence to suggest that sub-section 1(l)(iii) and (iv) apply to the programmer-analyst's duties and responsibilities. Sub-section 1(l)(v) is the same as the first part of exclusion (iv) of Schedule 2 and therefore does not apply and there is no evidence to cause the Board to exercise its discretion under sub-section 1(l)(vi) to exclude Vandendriesche from the support staff unit.

25. For all of the above reasons we find that Vandendriesche is not excluded by any of the exclusions under Schedule 2 and is, therefore, a member of the support staff bargaining unit.

G. Dumas and A. Favot— Community Program Co-ordinator

26. The duties and responsibilities of the position of Community Program Coordinator bear such a strong similarity to those which emerge from the finding of fact in respect of the position of Development Officers dealt with by the Board in Algonquin College, supra, that we are attracted to the conclusion that they are essentially the same positions. The Community Program Co-ordinator markets the same kind of training programs to the community and carries out the same responsibilities for organizing and administering these course offerings. Favot supervises two full-time adult training employees, but in terms of the full scope of his job this would not constitute a significant portion of his time being spent in supervision of employees. There is no evidence, either, that Favot is required to deal formally on behalf of the college with a grievance of either of the two full-time employees. On the evidence, we find nothing of significance in the duties and responsibilities of the co-coordinators to distinguish them from the Development Officers in the Algonquin College case. Therefore, for the same reason that the Board in that case found the Development Officers to be part of the support staff bargaining unit, we find the Community Program Co-ordinators Dumas and Favot are members of the support staff bargaining unit.

H. Schmidt — Manager Evening Programs

27. The facts in respect of the duties and responsibilities of this position demonstrate that Mrs. Schmidt performs the same job function as the Community Program Co-ordinator and, in addition is responsible for the operation of evening classes at one of the Sudbury campuses. This added responsibility, however, entails dealing with operational problems the nature of which does not project Schmidt into any of the itemized exclusions of Schedule 2 or sub-section 1(1). Therefore we find that the manager evening programs is also a member of the support staff bargaining unit.

D. van Leeuwen — Manager Client Services

28. As the facts indicate, the duties and responsibilities of the Manager Client Services are similar to those of the Community Program Co-ordinator. But van Leeuwen like Schmidt has some additional responsibilities. These extra responsibilities have to do with executing the continuing education programs, co-ordinating the efforts of other members of the division towards meeting the program objectives, and providing liaison with two support departments. His presence on the divisional committee makes him a participant in policy-level decisions, particularly in respect of the utilization of the academic resources of the college for continuing education programs. There is nothing in the evidence about these activities to suggest: that van Leeuwen, if found to be an employee, should not be in Schedule 2, as the Co-ordinators are. Moreover, we find no evidence in respect of those responsibilities which distinguish this position from the Community Program Co-ordinator position which suggest that they hold any significance for the college's collective bargaining relationships. They do not serve, therefore, to bring van Leeuwen within any of the itemized exclu­sions of Schedule 2 or subsection 1(1). The evidence in respect of his responsibility for planning, developing and implementing the strategies for marketing the continuing education programs and his regular participation on the divisional committee in settling policy matters within the continuing education division does, however, distinguish his duties and responsibilities from those of the Community Co-ordinator and the Manager, Evening Programs. These are not duties and responsibilities which are incidental to that part of his job which is the same as the other two, rather they are integral to the total job. The independent decision making authority associated with these added duties and responsibilities, his ability to commit the college to significant expenditures in advertising and contract printing, taken together with the duties and responsibilities which he has in common with Dumas, Favot and Schmidt, clearly identify him with being part of the management team and not part of the bargaining unit. By reason of van Leeuwen's duties and responsibilities to the respondent, therefore, the Board finds that he should be excluded from the bargaining unit pursuant to sub-section 1 (I)(vi) of the Act.

C. Sanford — Media Specialist

29. The facts in respect of this position demonstrate that, by reason of Sanford's special skills and knowledge of various communications media and the application of those attributes to the duties and responsibilities of the position, he may be characterized as a person employed in a "technical" capacity. This places him in Schedule 2 should he be found to be an employee. The facts on his duties and responsibilities do not fit him into any of the first three exclusions, so it is a question of whether he is captured by item (iv) or (v) of the Schedule. There is neither any claim nor any evidence that he is affected by the first part of item (iv). While Sanford assists the Dean with the preparation of the budget for the Instructional Media Centre and it appears that he may also recommend what budget provisions need to be made for equipment purchases, this is not a budget of a college or constituent campus. Even if it was, there is no evidence that he is functioning in a confidential capacity. Therefore he is not excluded by item (iv).

30. Do his duties and responsibilities place him within any of the itemized criteria of sub-section 1 1) so that he would be excluded by item (v) of the Schedule? His position involves him in developing individualized learning programs and producing instructional and promotional television programs, but as we found with the Student Activities Co-ordinator, this does not constitute the"... formulation of organization objectives and policy in relation to the development and administration of programs of the employer ... ,". His activities are clearly part of the carrying out of objectives and policy and not the formulation of either, so he is not excluded by the first part of sub-section 1(l)(i). In respect of the second part, there is no evidence that his involvement with the Instructional Media Centre budget preparation has any significance for the college's employee relations or collective bargaining relationships such that would exclude him from that part of sub-section 1(l)(i). Sanford has no employees who report to him, but he does instruct and guide media technicians in the production of instructional and promotional programs for which he is responsible. He tells them what results he wants in photography, graphics and sound and assures that he gets those results. His evaluation of their technical performance is given as required, to the supervisor of the Instructional Media Centre. While this activity may occupy as much as 20 per cent of his working time, it is not unlike the technical supervision performed by the Programmer-Analyst when she instructs computer centre staff on the what, when and how of exercising jobs on the computer. In our view this is not the supervision contemplated by sub-section 1(l)(ii), therefore the media specialist is not excluded by that criterion.

31. There is no evidence which would bring him within sub-sections 1(l)(iii), (iv) and (v) and there is nothing about the duties and responsibilities of the position taken in the whole that would justify exclusion under sub-section 1(l)(vi). In the result, we find that the Media Specialist is an employee within the support staff bargaining unit.

32. In summary, the Board finds that within the meaning of the Act, the Programmer-Analyst, Community Program Co-ordinators, Manager Evening Programs, and Media Specialist are employees in the support staff bargaining unit (Schedule 2). It further finds that the Student Activities Co-ordinator and the Manager, Client Services should be excluded from the bargaining units by reason of their duties and responsibilities to the respondent.

33. There is no evidence before the Board from which it can determine whether N. Chouinard, assistant director of athletics and recreation, is in the academic or support staff bargaining unit. The Board will remain seized with that issue in the event that the parties are still unable to resolve it.