Office and Professional Employees International Union, Local 343 v. Ontario Secondary School Teachers' Federation

[1980] OLRB Rep. March 348

1131-79-M Office and Professional Employees International Union, Local 343, Applicant, v. Ontario Secondary School Teachers' Federation, Respondent.

BEFORE: R.O. MacDowell, Vice-Chairman and Board Members 0. Hodges and F.W. Murray

DECISION OF THE BOARD; March 24, 1980

1. This is an application under section 95(2) of The Labour Relations Act. The appli­cant seeks a determination of the employee status of Ms. Valerie Hunnius. The respondent contends that Ms. Hunnius is employed in a confidential capacity in matters relating to la­bour relations and should, therefore, be excluded from the bargaining unit, pursuant to the provisions of section 1(3)(b) of The Labour Relations Act. Section 1(3)(b) of the Act pro­vides as follows:

"(3) Subject to section 80, for the purposes of this Act, no person shall be deemed to be an employee,

(b) who, in the opinion of the Board, exercises managerial functions or is employed in a confidential capacity in matters relating to labour re­lations."

2. The purpose of section 1(3)(b) of the Act is to ensure that persons who are within a bargaining unit do not find themselves faced with a conflict of interest, as between their re­sponsibilities and obligations as persons who "exercise managerial functions or are em­ployed in a confidential capacity in matters relating to labour relations" and their responsi­bilities and obligations as members of the unit. Collective bargaining, by its very nature, requires an arm's length relationship between the "two sides" whose interests, objectives and priorities are often divergent. Persons employed in a confidential capacity relating to la­bour relations are regularly involved with information and matters which, if disclosed, would adversely affect the collective bargaining interests of the employer. Section 1(3)(b) ensures that the employer need not be concerned that such persons will have "divided loyal­ties."

3. Section 1(3)(b) involves three separate criteria: the disputed individual must be employed in a confidential capacity; the material with which that individual works must be confidential; and the material must be related to labour relations. The Board summarized its approach to these criteria in York University, [1975] OLRB Rep. Nov. 945 at page 951:

"... the Board must be satisfied of 'a regular, material involvement in matters relating to labour relations" to justify a finding excluding a per­son from operation of the Act. (See The Falconbridge Nickel Mines Ltd. case, [1969] OLRB Rep. September 379.) Mere access to confi­dential information that may pertain to labour relations, standing alone, is no reason for excluding employees from the bargaining unit. (The Metropolitan Separate School Board case, [1974] OLRB Rep. Apr. 220.) Nor is mere knowledge of matters that may be deemed 'confi­dential' in the sense that the employer would not approve of the disclo­sure of such information by his employee sufficient to justify a positive finding under section 1(3)(b). (See The Comtech Group Limited case [1974] OLRB Reo. May 291.) The important test is whether there is a consistent exposure to confidential information on matters relating to labour relations so as to constitute such exposure an integral part of the employee's service to the employer's enterprise. (See The Toledo Scale Division of Reliance Electric Limited case [1974] OLRB Rep. June 406.)" [Emphasis added]

4. The handling of collective bargaining information must be at the core of the dis­puted individual's job functions. An occasional, or peripheral, involvement is insufficient to justify his exclusion. As the Board observed in Falcon bridge Nickel Mines Ltd., [1966] OLRB Rep. Sept. 379:

"A person to be excluded under this provision must be employed 'in a confidential capacity', i.e., such capacity must be part of his regular duties. An accidental or isolated involvement in some aspect of labour relations is not sufficient, in our view, to exclude a person from collec­tive bargaining. However, a regular material involvement in matters re­lating to labour relations which are confidential because their disclosure would adversely affect the interest of the employer would exclude a person pursuant to the provisions of section 1(3)(b) of the Act. As can be readily seen, the degree of the involvement and the extent of the confidential nature of the matters dealt with become important factors to be considered in determining exclusions under these provisions.

5. In each case the Board must determine the individual's duties and responsibilities at the time of the application. It is not sufficient that those responsibilities are contained in a job description unless there is some evidence that the description accurately describes the job and the way it is being performed. It is recognized, of course, that if the position is a newly-created one, or if the incumbent has been only recently promoted, it may be that oc­casions have yet to arise when certain functions are performed. If such is the case, it may be that the request to the Board is premature. As the Board noted in Windsor Transit, [1979] OLRB Rep. Mar. 262, organizations and systems of management can change. Over time, the degree and focus of decision-making power can be altered. However, the Board is re­stricted in its determination to the situation, as it exists, at the time of the application, not as it might become some time later. If there is a material change in an employee's duties and re­sponsibilities, or if those responsibilities "evolve", either party is entitled to make applica­tion, under section 95 of The Labour Relations Act, for a clarification of the employee's sta­tus. We should repeat, however, that a party asserting that an individual is employed in a confidential capacity in matters relating to labour relations, must affirmatively demonstrate that this participation is at the core of the employee's job responsibilities and that the em­ployee is regularly, and materially, involved in the labour relations process. The evidence must demonstrate more than an incidental, or isolated, involvement in employer-employee relations.

6. The respondent is the designated collective bargaining representative for Ontar­io's secondary school teachers. Ms. Hunnius has been employed by the respondent, in vari­ous positions, since February, 1972. In or about June, 1979 she was advised that her position of "information officer" was being eliminated and that she would be offered continued em­ployment in a newly-created position entitled "Research Officer." The Research Officer would report to Dr. Lecuyer, the associate general secretary of the respondent; however, no firm determination had been made concerning the duties and responsibilities associated with the new position. It was expected that the job would "evolve" and would be subject to an on-going, functional review. When Dr. Lecuyer gave his evidence, in December, 1979, he explained that the position was still largely an undeveloped concept. He envisaged vari­ous responsibilities, which might be undertaken by the Research Officer, but he candidly in­dicated that his views were somewhat speculative, and based upon his own view of the re­spondent's needs. The position was still in a state of flux, almost six months after its creation. It is clear, however, that prior to the present application there was no affirmative decision taken to employ the "Research Officer" in a confidential capacity in matters relat­ing to labour relations. Ms. Hunius had not been specifically so advised, although she had raised the matter at a meeting with Dr. Lecuyer, Ken McLaren, the respondent's Personnel and Office Manager and Mr. Richardson, the respondent's General Secretary.

7. Ms. Hunnius was appointed to the disputed position in or about July 1st. There­after, she undertook various assignments, including an appraisal of a British study compar­ing teachers' salaries with those of civil servants. The present application was filed on Sep­tember 12th, 1979. By letter dated September 14th, 1979 the Registrar of the Board advised the respondent of the application. On September 19th, 1979 Ms. Hunnius was given the first assignment which, the respondent now contends, demonstrates that she is employed in a confidential capacity relating to labour relations. A Labour Relations Officer was appointed, on October 29th, 1979 and a hearing before the Officer was scheduled for November 19th. On November 9th, 1979 the respondent produced its first formal job description, which was eventually presented to the parties herein at the hearing before the Officer on December 5th, 1979. This sequence of events illustrates the principal difficulty faced by the Board in cases such as this. The Board is asked to make a determination of employee status in a dynamic situation based upon evidence which can be neither complete nor conclusive.

8. On September 19th, 1979 Ms. Hunnius was asked to prepare a summary of gen­eral information concerning office employee benefits, including leaves of absence, hours of work and pension schemes. On September 21st, 1979 she was asked to survey professional development and evaluation practices for secretarial and clerical staff. In neither case was she specifically advised that this information would be used by the respondent for collective bargaining purposes; however, since negotiations were then in progress, the information was to be given to Ken McLaren, and was described as "confidential", Ms. Hunnius cor­rectly concluded that the information might be used by the respondent at the bargaining ta­ble. It is these two incidents which, the respondent contends, justify the Board in concluding that Ms. Hunnius is employed in a confidential capactiy in matters respecting labour rela­tions. It should be noted, however, that Ms. Hunnius' role was restricted to gathering pub­licly available data on the practices of other employers. There is nothing confidential in the information itself, nor did Ms. Hunnius have any input into how the information was used. No specific comparisons were made between the respondent's employees and those of other employers; nor did Ms. Hunnius' report include any recommendations. Ms. Hunnius did not participate directly, or indirectly, in the respondent's collective bargaining process. There were no meetings to discuss the use of the information which she had gathered, nor had she any access to the employer's bargaining strategy or discussions concerning its bar­gaining position. She has no access, or information, concerning the employer's budget-mak­ing process or other managerial decision-making which could bear upon collective bargain­ing. She has no participation in the grievance procedure. She may, at some point in the future, have a role to play in respect of the respondent's ongoing review of its office organi­zation; but the evidence in this regard is far from clear and conclusive. There is no evidence that, at the present time, Ms. Hunnius has access to confidential personnel records, or has any specific, confidential information concerning future re-organization plans which might have some impact on the bargaining unit and which, if disclosed, would adversely affect the collective interests of the employer.

9. On the basis of the evidence before us, we cannot conclude that, at the present time, Ms. Hunnius is regularly and materially involved in matters relating to labour rela­tions. On the contrary, the evidence suggests that her involvement in collective bargaining is peripheral, and merely incidental, to her general duties and responsibilities. We are not sat­isfied, therefore, that at the present time, she must be excluded from the collective bargain­ing process pursuant to section 1 (3)(b) of The Labour Relations Act.