Ontario Public Service Employees Union v. St. Clair College of Applied Arts & Technology, 1980 CanLII 853

[1980] OLRB Rep. July 1067

20-38-78-M Ontario Public Service Employees Union, Applicant, v. St. Clair College of Applied Arts & Technology, Respondent.

BEFORE: R. O. MacDowell, Vice Chairman and Board Members D. B. Archer and J. A. Ronson.

APPEARANCES: Joanne Miko for the applicant; Janice A. Baker and Lynne Watts for the respondent.

DECISION OF R. O. MACDOWELL, VICE-CHAIRMAN AND BOARD MEMBER J. A. RONSON; July 28, 1980

1. This is a reference under section 82 of The Colleges Collective Bargaining Act (here­inafter referred to as "The Act"). By a decision dated March 22, 1979 the Board appointed a Labour Relations Officer to meet with the parties and inquire into the duties and responsibi­lities of a number of named individuals. The issue before the Board is whether those individuals are employees within the meaning of The Act who are included in the "support staff' bargaining unit. The relevant provisions of The Act are as follows:

"82. 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 (I) 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.

1(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 I 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, counsellors 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) counsellors and librarians employed on a part-time basis,

(viii) teachers, counsellors or librarians who are appointed for one or 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 practise 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 of governors of colleges of applies arts and technology employed in posi­tion!; 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.

1(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;"

2. The purpose of the statutory exclusions is to ensure that persons in the bargaining unit are not faced with a conflict of interest as between their obligations as persons who may exercise managerial responsibilities, and their obligations and interests as members of the unit. Collective bargaining, by its very nature, requires an arm's length relationship between "the two sides", whose interests and objectives are often divergent. This purpose has been succinctly stated by the British Columbia Labour Relations Board in Corporation of the District of Burnaby, P974] Can LRBR 1 at page 3:

"In my view, the most important influence on that enquiry must be some conception of the purpose of the statutory provision in issue. We are not asked to define what is meant by management in a vacuum. The legal effect of our decisions may be to exclude a person from the scope of col­lective bargaining. When we understand why the Legislature may have wanted to omit such a general category of individuals from the ambit of its statutory policy, we will be much better able to see exactly what positions should be excluded.

The explanation for this management exception is not hard to find. The point of the statute is to foster collective bargaining between employers and unions. True bargaining requires an arm's length relationship between the two sides, each of which is organized in a manner which will best achieve its interests. For the more efficient operation of the enter­prise, the employer establishes a hierarchy in which some people at the top have the authority to direct the efforts of those nearer the bottom. To achieve countervailing power to that of the employer, employees organize themselves into unions in which the bargaining power of all is shared and exercised in the way the majority directs. Somewhere in between these competing groups are those in management — on the one hand an employee equally dependent on the enterprise for his livelihood but on the other hand wielding substantial power over the working life of those employees under him. The British Columbia Legislature, following the path of all other labour legislation in North America, has decided in the tug of these two competing forces, management must be assigned to the side of the employer.

The rationale for that decision is obvious as far as the employer is concerned. It wants to have the undivided loyalty of its senior people who are responsible for seeing that the work gets done and the terms of the col­lective agreement are adhered to. Their decisions can have important effects on the economic lives of employees, e.g. individuals who may be disciplined for 'cause' or passed over for promotion on the grounds of their 'ability'. The employer does not want management's identification with its interests diluted by participation in the activities of the employ­ees' union.

More subtly, but equally as important, the exclusion of management from bargaining units is designed for the protection of employee orga­nizations as well. An historic and still current problem in securing effective representation for employees in the face of employer power is the: effort of some employers to sponsor and dominate weak and depen­dent unions. The logical agent for the effort is management personnel. Ore way this happens is if members of management use their authority in the work place to interfere with the choice of a representative by their employees. However, the same result could happen quite innocently. A great many members of management are promoted from the ranks of employees. Those with the talents and seniority for that promotion are also the very people who will likely rise in union ranks as well. In the absence of legal controls, the leadership of a union could be drawn from the senior management with whom they are supposed to be bargaining. If an arm's length relationship between employer and union is to be preser­ved for the benefit of the employees, the law has directed that a person must leave the bargaining unit when he is promoted to a position where he exercises management functions over it."

3. The structure of a Community College differs from that of a private business, and some care must be taken before utilizing concepts developed in a private sector industrial setting, and superimposing them on a public sector educational institution. No doubt, it was an appreciation of these differences which prompted the Legislature to enact a specialized statute which spells out, in much more detail than in The Labour Relations Act, precisely those functions which, if exercized, should exclude an individual from the ambit of collective bargaining. It must be recognized however, that section 1(1) and Schedule 2 are framed in very general language. The application of these provisions to any particular situation is bound to raise interpretative difficulties. There will always be a grey area between those who are clearly included in the bargaining unit, and those who are excluded from it, and the degree and focus of managerial authority will change from employer to employer, and from time to time. The Board must consider the evidence in each case, and apply the legislation in light of the purpose of the statutory exclusions.

4. The Labour Relations Officer examined, and transcribed the evidence of nine indi­viduals. The respondent submitted various statutory bases for excluding all of them. It will be convenient to deal separately with the evidence and argument respecting Lilly Spolarich, Elaine Labbee and Anne Bennett; and to treat the divisional directors of Continuing Educa­tion and their assistants as a group. An individual will be excluded if any one of the enumer­ated provisions in the schedule or statute applies to him.

Lilly Spolarich

5. Ms. Spolarich is executive secretary to William Geradtf, Director of Plant and Services. As his private secretary she has her own office, and reports only to him. Her duties are exclusively secreterial. She has no managerial or supervisory authority over other em­ployees, nor has she any involvement in the collective bargaining, or internal disciplinary process. She apparently has access to the employee evaluations, (copies of which are forward­ed to Mr. Geradtf from his subordinates), however there is no evidence that any use is made of such material, and it would appear that, in any event, the subject employee also gets a copy. Ms. Spolarich is aware of, and types, reports concerning bomb threats, fire hazards, and inter­nal investigations with respect to theft or other security problems; but these are only peri­pherally related to employee relations — as, for example, when a faculty member received a letter of reprimand because of his alleged misconduct arising out of one of these incidents. Ms. Spolarich did not give any details concerning this matter, but it would appear that the disciplinary penalty was relatively minor, and, while she was aware of the event giving rise to the discipline, and of the imposition of discipline, she was not involved in any way in the dis­ciplinary process itself.

6. Ms. Spolarich's input with respect to the Plant and Services budget is negligible. (It might be noted that this is not a budget of a "college" or a "constituent campus of a college" except to the extent that all branch or department budgets can be so described.) Ms. Spola­rich's involvement encompasses only typing, checking and some manual calculation using

information supplied to her by her superior. Although she testified that the budget would contain a figure for projected wage increases she subsequently emphasized that the budget refers to actual salaries. Even if there is a wage figure in the budget, it may be based upon the steps in an already negotiated collective agreement, or reflects an inflation factor or is simply a "guesstimate". There is no evidence of any connection with the collective bargaining process and, in this important matter, the Board is not disposed to speculate.

7. We are satisfied that the only possible basis for excluding Ms. Spolarich is that found in section l(l)(iv) of The Act (see supra). On this branch of the argument Ms. Spola­rich's status turns on the duties and responsibilities of Mr. Geradtf, her superior.

8. Mr. Geradtf reports directly to the president, and is one of the six senior executives of the College. He prepares and administers a budget of some two million dollars, has five departmental managers reporting to him and oversees the activities of a department of the College employing between fifty and sixty employees. He attends meetings of the Board of Governors, and sits on the Board's Property and Finance committees. He receives copies of the minutes o~ all full-Board meetings and executive committee meetings. He knows, in advance, important information concerning alternatives of College policy including increases or decreases in full-time staff complement, and terminations resulting from proposed budget cuts. Ms. Spolarich testified that Mr. Geradtf freely discusses with her, the happenings at the various meetings which he attends; and, of course, notes, reports, memoranda, or other materials, which have to be prepared in respect of those meetings, are typed by her.

9. The position of a private secretary, and the application of the statute to persons so described, was discussed by this Board in St. Lawrence College of Applied Arts and Tech­nology, unreported, Board File No. 1657-77-M decision dated July 11, 1978, as follows:

"The Board stated in the Sheridan College case, supra, that the 'confidence' referred to in section l(iv) of the Act relates not so much to the material dealt with by the person in question as to the nature of the relationship between the person and the employer. The Board went on to state in that case that a person who acted as an intimate policy sounding board to his or her superior and had substantial input into and influence on decisions of the employer relating to program policies, budgets or the disposition of grievances would be manifestly within the group of employees described in the subclause. The Board is of the view that a person who serves as a private secretary to a person who falls within part (i), (ii) or (iii) of the definition would also come within part (iv) of the definition. The Board has reached this conclusion on the basis of both the nature of the relationship and the material to which the private secretary has access. A private secretary is one who takes dictation, performs typing and transcribing services, maintains records, records minutes of meetings, prepares reports and performs related secretarial services on an exclusive basis. The relationship between the person coming within subclause (i), (ii) or (iii) of the definition and the person who performs this range of secretarial services on an exclusive basis is one which is based upon an individual and undivided loyalty. The person filling the position has, as a part of her regular job function, a day to day exposure to the correspondence of her superior, both incoming and outgoing, and to all other information which must be transcribed or recorded. She is privy in a material and necessary way to much of the information to which her superior is privy and accordingly, it must be found that she is employed in a position confidential to her superior. In the result the Board reads part (iv) of the definition as extending to persons who serve as private secretaries to persons falling within parts (i), (ii) or (iii) of the definition."

10. The evidence respecting Mr. Geradtf's duties and responsibilities was neither con­tradicted, nor qualified in the cross-examination. In the circumstances the Board must infer that Mr. Geradtf is a person exercising the senior executive responsibilities contemplated by section l(l)(i) of the Act. Accordingly, having regard to the reasoning of the Board in St. Lawrence College. supra, we must find that Ms. Spolarich is an individual to whom section l(I)(iv) of the Act applies and that she must, therefore, be excluded from the bargaining unit.

Anne Bennett

11. Ms. Bennett has occupied the position of "office manager" since January of 1979. Prior to that she was secretary to Lorne Clark, the Dean of Continuing Education. She works directly with J. Charlesworth, the Acting Director of Continuing Education and has a "liaison role" between Charlesworth, Clark and R. F. Giroux, Vice-President and Dean of Com­munity and Industrial Services. The five divisional directors rotate, each occupying the position of acting director for a period of three months.

12. It might be noted that exhibit#3,the portion of the respondent's organization chart filed with the Board to clarify Ms. Bennett's position, is somewhat misleading. The chart suggests Ms. Bennett reports to R. F. Giroux, Vice-President and Dean of Community and Industrial Services; but her viva voce evidence is that she works directly with Charlesworth. This illustrates the general difficulty faced by the Board in using position titles, job descrip­tions or organizational charts. Written specifications and charts are necessary to facilitate administration, and may have some illustrative value, but there will often be times when the theoretical scheme does not fully coincide with the duties and responsibilities actually performed by those involved. The Board is concerned with a person's actual duties and responsibilities, rather than what is stated in a position specification or suggested by an organization chart; and, such charts are of limited usefulness unless they illustrate substan­tially more than the fragment of the respondent's organization in which the disputed position falls. Charts are only helpful if they clearly and accurately illustrate the entire "chain of com­mand", including the number and positions of individuals included and excluded from the bargaining unit. The organization chart, and certain passing references in the viva voce evidence, suggest that Giroux and Clarke both occupy managerial positions, so that there are two layers of managerial authority directly above the Divisional Directors; yet evidence concerning the full range of their responsibilities is lacking. Neither gave evidence and none of the questions were specifically directed to this issue. While there is no fixed ratio of superiors to subordinates or specified proportion of the work force which must be included or excluded, the number, and functions, of individuals already excluded are clearly a relevant factor. The purpose of the statute is to extend collective bargaining rights to Community College em­ployees. It would frustrate that purpose if, on a piecemeal basis, and in an effort to safeguard the employer's collective bargaining interests, this Board interpreted the statutory exclusions in such a way as to seriously erode the bargaining unit and undermine the employees' bargaining rights. If the Board is to reach a sensible result which is sensitive to these important concerns, it must have a clear evidentiary foundation on which to base its decision.

13. Ms. Bennett performs what she described as a "staff function" within the Con­tinuing Education division. This includes a variety of administrative and clerical duties respecting advertising, the preparation of calendars, room scheduling, preparing reports for government agencies such as Canada Manpower, taking minutes of Continuing Education meetings, and keeping a variety of records respecting budgeting, staff reports, invoices, time-tabling part-time teachers and other matters. She has no precise knowledge of, or significant input into, the preparation of Continuing Education Budget. In any case, the evidence does not demonstrate that this budget contains any information, which, if disclosed, would prejudice the 'respondent's bargaining position. Ms. Bennett has no independent authority respecting the establishment of fees, the conduct of courses, the hiring of teaching staff or any of the other principal educational responsibilities undertaken by the department of Con­tinuing Education. She does attend meetings of the Divisional Directors at which these matters are discussed, and she keeps the minutes of those meetings. She does not have a policy making role at the level contemplated by section 1(1)(i), nor are we satisfied that she is employed in a position confidential to any such person.

14. Two "full-time" clerks assist Ms. Bennett in performing her administrative functions and she has a limited supervisory role with respect to these individuals. Ms. Bennett testified that she had "hired" them, but on further examination she indicated that she merely participated on the hiring committee, and that one individual seems to have acquired "full­time status" almost by accident. One of the clerks was hired two years ago and the other one year ago. Both events occurred while she was still secretary to Dean Clarke, and before she assumed her present position. There does not seem to be any continuous supervision of the full-time clerks' activities of the kind which would raise a conflict if she were included in the unit, nor is there a significant training role. She has never reprimanded or disciplined them, and has never recommended improvement or a wage increase — even though this appears to be part of the standard evaluation form which was filed as an exhibit. It might be observed that the actual use of these forms is uncertain. All of the witnesses regard them as a pro forma exercise which is carried out sporadically and does not, on the evidence, have any connection with any consequences to the employee, either beneficial or adverse. Ms. Bennett testified that anything as serious as a discharge would be referred to the Personnel Department. In deter­mining the significance to be assigned to these indicia of managerial authority we think the views of Professor Weiler in City of Burnaby, supra, are apposite:

"Clearly, the authority to hire, fire, discipline or promote is central to what we mean by 'exercising management functions over other employ­ees'. Yet the complexity of a Board's evaluation of any position is con­veyed by this very example. The decisions to discharge or promote an employee are those where there is the highest potential for a conflict of loyalties from membership in the bargaining unit. The decisions to hire, or even to discipline (especially by way of reprimand) are much less sig­nificant in that regard. Yet from the evidence here, the importance of the actual exercise of that authority to discharge is much less than that of hiring, simply because discharges are so infrequent. The use of the power to discipline or to promote is somewhere in between."

In the present case there is little evidence of any authority to make decisions of a "managerial" character which affect the economic lives of fellow employees.

15. Ms. Bennett is assisted by and supervises five or six part-time staff who are selected from a pre-established pool prepared by the Personnel department. It would seem that by virtue of section 1(f) of the Act and Schedule 2(vi), these individuals would not be employees in the bargaining unit. Ms. Bennett's initial evidence suggested that she had total flexibility with respect to "hiring" persons from this pool in accordance with the workload. Later in her evidence however she clarified the matter. There are presently five individuals who are used on a regular basis in accordance with an arrangement established before Ms. Bennett came to the department. Consequently, her role is restricted to determining whether the workload requires more staff, and she has little discretion with respect to selection. Ms. Bennett has no input into collective bargaining, and no involvement with or clear understanding of the grievance pro­cedure — even though the collective agreement appears to envisage that the "immediate super­visor" is the first step for certain kinds of grievances. She has certain limited authority, and supervisory responsibilities with respect to the two bargaining unit employees (for example she can grant limited casual time off and can determine the necessity of overtime work), and she undoubtedly performs an important co-ordinating and administrative role within the Department of Continuing Education (see paragraph 13, supra,); however we are satisfied on the totality of the evidence that she does not spend a significant proportion of her time in the supervision of bargaining unit employees, nor do any of the other statutory exclusions apply to her. we are satisfied that she falls within the office staff portion of the support staff bar­gaining unit. On the evidence sections 1(1)(i)—(v) have no application and we decline to exercise our discretion under 1(1)(vi).

Elaine Lab bee

16. The principle submission of the respondent is that Ms. Labbee is employed in a con­fidential capacity in matters related to employee relations, or is privy to confidential infor­mation which, if disclosed, would prejudice the respondent's collective bargaining position. In Sheridan College of Applied Arts and Technology, [1976] OLRB Rep. Dec. 844, this Board held that the term "employee relations" was synonymous with "industrial relations" or "labour relations", and includes "all facets of the collective bargaining relationship that regulate the terms and conditions of employment between an employer and his employees represented by a trade union." The statutory language of The Colleges Collective Bargaining Act is identical to that of The Labour Relations Act, and the Board has adopted a similar approach to its interpretation. (See: Sheridan College, supra, St. Lawrence College, supra; and Humber College of Applied Arts and Technology, unreported decision dated July II, 1977. In York University, [1975] OLRB Rep. Dec. 945, the Board framed the test this way:

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 employees sufficient to justify a positive finding under section l(3)(b). (See The Comtech Group Limited case, [1974] OLRB Rep. 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).

17. 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 Falconbridge 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 l(3)(b) of the Act. As can be readily be 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."

The application of this "test" to the facts in Frito-Lay Canada Ltd., [1978] OLRB Rep. Sept. 831 prompted the Board to reach the following conclusion:

"While the evidence indicates that the payroll clerks have regular access to a certain amount of confidential information, the Board is not convinced that this type of information is integral to the conduct of collective bargaining by the respondent. These payroll clerks merely collect and collate individual payroll information relating to individual employees. Access to such information does not make them privy to the respondent's indus­trial relations strategy, and the Board must conclude that these employ­ees are not employed in a confidential capacity in matters relating to labour relations."

18. The decision of the Canada Labour Relations Board in Transair Ltd., 74 CLLC 905 elaborates at some length upon the kind of information which, if disclosed would be preju­dicial to the employer's collective bargaining interests. Although some allowance must be made for the different statutory and business context in which that decision was made, we are satisfied that the Canada Board's description provides a useful summary of the kind of collective bargaining information which, mutatis mutandis must be regarded as "sensitive" in the present case. At pages 911-912 the Board sets out a number of relevant considerations:

"(b) .... in matters relating to industrial relations' means having access to information relating to such matters as contract negotiations; for example, the persons that sit together to establish, on behalf of management, the range of salary increase that the bargaining team will be man­dated to operate within at forthcoming negotiations; or to such matters as the proceedings before a Board like this one: for example, the persons that sit together and plan the strategy which the employer will use as well as the tactics used in the pursuance of its legitimate interest before a Labour Board; or to such matters as the disposition of grievances: for example the persons who plan or who know what compromise will be offered to a grievor.

(c) The access to this information must not be incidental or acciden­tal. It must be part of an employee's regular duties. lf the main function of the employee is not related to matters relating to industrial relations, that employee cannot be excluded.

Therein lies a serious matter of judgment and fairness on the part of employers. If management chooses to openly hold discussions in matters related to industrial relations where they could be easily overheard or if management keeps documents of the same nature, in a place where an unauthorized person may inspect them at will, this is no cause for ex­cluding these persons. As an example, if management decides to give keys to files in the personnel department containing data on forthcoming negotiations to all of its clerical employees, this would not make all of them confidential employees in matters relating to industrial relations.

(d) Disclosure of the information to which these persons have access must have an adverse effect on the interests of the employer. The in­terests of the employer concerned here however, must be interests in in­dustrial relations. In other words, the disclosure of a written reprimand deposited in the personal record of an employee by somebody in a clerical function to union representatives does not have an adverse effect on the interests of said employer where the collective agreement stipulates that concomitant with such deposit in the file, a copy must be forwarded to the employee concerned and/or to the union. On the other hand, dis­closure by an employee of information he has access to concerning secret manufacturing process to competitors might well be a breach of confi­dence and loyalty on the part of that employee but has nothing to do with industrial relations.

(e) On the other hand, one must attach great importance to the absolute necessity for an employer to be capable of operating efficiently and therefore to have the essential number of employees administering industrial relations to assure efficient management in this connection. Employees who are solicited for and accept functions with a company which make them an essential part of that autonomous team which has to administer labour relations, must realize that they will be by the same token deprived from ever aspiring to the acquisition of bargaining rights."

19. The difficulty in the present case is not in establishing the appropriate indicia,

which, if present would establish that an individual should be excluded from the bargaining unit. The problem in the present case is to unravel the testimony so as to determine whether Ms. Labbee's work situation and job functions bring her within the above-mentioned para­meters. In this regard one must be careful lest the sophistication of the computer technology and information handling techniques, mask the essentially clerical character of an employee's duties. It is not the method by which information is collected or collated which is significant; it is the use which the disputed individual makes of that information, and the potential for prejudice to the employer's collective bargaining interests if an employee with such information were a member of the bargaining unit.

20. Ms. Labbee is a general clerk employed in the Personnel department and reporting, along with three other employees, to John Payne, Director of Personnel. Ms. Labbee "codes" personnel information that is subsequently processed by key-punch operators (members of the bargaining unit) and, it would seem, subsequently entered into the computer by an "input­ output clerk" (also in the bargaining unit). The computer system maintains a record on all of the employees including basic information about educational background, salary, classifi­cation, job title, position in the wage progression, and the review date. Mere access to this information is not sufficient to raise the kind of conflict contemplated by the statute. In this regard the Board in St. Lawrence College, supra, remarked (at paragraph 6):

"These personnel records include employment application letter/form, evaluation reports, salary information, medical reports and other normal personnel information including the individual's marital status. This information may be considered as confidential in the sense that an em­ployee with access to it is not expected to divulge it. It cannot, however, be described as information which, if divulged, would adversely affect the employee relations interests of the employer. An employee who has regular access to this type of information would not be thrust into a con­flict of interest if included within a bargaining unit of other employees...".

The individual employee would, of course, already have this information; and it would seem (although the evidence is not entirely clear in this regard) that everything other than workload data (to which we will refer infra) is provided to the union on request.

21. Ms. Labbee testified that she is involved in the preparation of a number of reports of various kinds which are sent to the Board of Governors, College departments and outside governmental bodies. These reports to the Board of Governors include aggregate data broken down as requested on such things as hiring, terminations and the reasons therefore, transfers, full-time! Part-time staffing ratios, etc. Ms. Labbee testified that the Board of Governors used this raw data as the basis for its planning projections and assessing manpower needs; although Ms. Labbee herself has no participation in this process. Her function is restricted to an in­volvement in preparing information which is assessed and acted upon by others. She also ensures that general College information is transmitted to the Ministry of Colleges and Universities information system and prepares the regular report on teaching staff "contact hours" - a three-month rolling average of teaching hours, which is calculated and regulated in accordance with the formula in the collective agreement. This latter information is trans­mitted to all department chairmen and deans. In addition, Ms. Labbee maintains records of certain budgets, (for example for supplies and advertising expenditures) and keeps a record of administrative staff including information similar to that referred to that above and their "hay points" — the points assigned to them which note their level of responsibility and which can be used to calculate salaries. The evidence does not clearly disclose any input into the actual determination of salaries. It would appear that her involvement with administrative salaries is restricted to mechanical calculations based upon the evaluation of others and predetermined salary increments. The evidence does not elaborate upon the method of determining these administrative salaries, or connect this process to either the wages of bargaining unit personnel, or to the collective bargaining process. In the absence of clear evidence with respect to these matters, the Board is not disposed to speculate on the potential conflicts of interest which might arise if the bargaining unit personnel were aware of such matters. Moreover, as has already been pointed out, it would appear that certain bargaining unit personnel working with the computer already have such information.

22. Ms. Labbee has no input directly or indirectly into the collective bargaining pro­cess. That process is highly centralized and conducted on a province-wide basis. The evidence does not reveal any clear connection between the issues at the bargaining table and the reports which Ms. Labbee prepares. Any suggestion we might make with respect to this matter would be entirely speculative. We do not think the mere preparation of information to be used by others is sufficient to justify an employee's exclusion unless the material is to be used for bargaining purposes and its preparation would necessarily reveal an employer's bargaining objectives, possible areas of concession, or other strategically useful information prior to the actual bargaining taking place. Such insider information is obviously of an extremely sensitive nature and the possession of it would be sufficient to ground an exclusion. It must again be emphasized however, that the issue is an evidentiary one, and there must be a clear factual basis to establish the alleged connection between the preparation of information, and what takes place at the bargaining table.

23. Similar comments can be made with respect to the administration of the collective agreement and the handling of grievances. If an employee is closely involved with his superior in formulating the respondent's answer to a particular grievance the position of the respondent could be prejudiced if that individual were included in the bargaining unit. If, however the employee does not exercise any independent judgment but merely compiles or collates information contained on a written record, there may be no "insider information problem". The "sick leave grievance" to which Ms. Labbee referred provides a case in point. Apparently, a dispute arose concerning the interpretation of whether "sick days" were "contact days" within the meaning of the collective agreement. On her superior's request, Ms. Labbee compiled some statistics on these matters. When asked whether the information that she provided was key to the process of reviewing the grievance and establishing the College's "defense" Ms. Labbee testified that she didn't know. She wasn't directly involved. It is apparent, at least on the evidence before us, that Ms. Labbee is not intimately involved in the grievance process, and since there seem to have been very few grievances in any event, that aspect of her job is incidental and peripheral to her main duties and responsibilities.

24. One aspect of Ms. Labbee's testimony caused the Board considerable difficulty. In answer to a question by the applicant concerning her participation (if any) in the costing of proposed salary or benefit items prior to negotiations, she replied that she had no input into such matters but did know what the percentage was before it was fully settled. This is critically sensitive information as the Board noted in an earlier case involving the parties herein (see: Board File: 1612-78-M released Nov. 20, 1979). That case involved an individual in the budget department who had advance knowledge of projected terminations for budgetary reasons and knowledge of the percentage increase being budgeted for future wage increases. In charac­terizing this as :he kind of sensitive "insider financial knowledge" which would justify an individual's exclusion, the Board cited with approval the following excerpt from "the Dean case" — a decision of the Ontario Public Service Labour Relations Tribunal which held:

"There are also people who, in assessing the Government's budget or an agency's budget, are concerned with the amount of money that may be required to meet the payroll commitments as well as projected commit­ments that could arise through the collective bargaining process. To the extent that these people may possess information that may place them in a potential conflict of interest they should not be members of the bargaining unit. Such people if possessed of confidential information as to the Government's intentions in dealing with its own employees should not be placed in the bargaining unit where potentially they could use their "insider's" financial knowledge in bargaining with the Government. Persons with that type of knowledge will generally be excluded under the provisions of section l(l)(m)(vii) [of The Crown Employees Bargaining Act] because they are employed in a confidential capacity in matters relating to labour relations."

25. The problem in the present case is that the evidence with respect to this important matter is most unclear. Unlike the budget clerk in the earlier case, Ms. Labbee is not involved in the College's budgeting process. In response to a further question from the applicant, Ms. Labbee testified that this wage information was not knowledge which was used in her job, was unnecessary for her to know, and apparently was revealed on a casual basis by her superior. If she were included in the unit, access to this information could be prevented or withdrawn. On the basis of the evidence before us therefore, it would appear that this information is irrelevant to Ms. Labbee's ordinary duties and responsibilities and should not be given significant weight — especially when she clearly has no input into the bargaining process itself and there is no evidence that oven her superior participates directly in the (province wide) bargaining. Had a clear collective bargaining connection been established, or had the evidence clearly demon­strated Ms. Labbee's necessary access to critically sensitive collective bargaining information, the Board would have had no hesitation in excluding her from the bargaining unit as was done in the earlier ease respecting the budget clerk.

26. Finally we adopt the approach taken by the Ontario Public Service Labour Relations Tribunal in the "Dean Case" when the tribunal was called upon to interpret the term "formulation f budgets" which appears in a statutory exclusion framed in precisely the same language as the one here under consideration. At page 8 the Board commented:

"Within the Government there are numerous people involved in the col­lecting and collating of data and information related to the receiving and expending of government funds. Thus in any department or agency there may be a person who exercises a stores function, in that, such a person maintains an inventory of the supplies used by the particular department or agency and costs that information which is used at a later stage. There may also be people who collate data related to expenditures or financial assistance rendered to specific property or programs. Often these people will be asked to make assessments based on certain historical patterns and projections but that does not mean that they are involved in the for­mulation of budgets. Again in that area we distinguish between being "involved. . . in the formulation of budgets" and mere involvement which simply entails supplying financial data and information or collating that data and information for subsequent use. Persons involved in the formu­lation of budgets are those who after receiving all the information, sug­gestions, projections and reports systematically reduce that information into an express budget. Those are the people that we consider to be managerial. They are the people, who in the final analysis, make the deci­sions as to how the government or its agencies will conduct their finan­cial affairs and what priorities will be considered in determining both how government revenue will be raised and how government funds will be spent."

It is clear that Ms. Labbee is not involved in the budgetary process in the manner contem­plated by Schedule 2 Item (iv) or section l(I)(i), nor are we satisfied that such involvement which she may have with information related to the budget, is such as to bring her within the confidential exclusions. Since there is no evidence respecting the actual duties and responsi­bilities of her immediate superior, we are unable to find that she falls within the scope of Section 1(1)(iv) as did Ms. Spolarich.

27. In the result, on the basis of the evidence before us (and noting that some significant portions thereof were vague and confusing) we are not satisfied that Ms. Labbee should be excluded from the bargaining unit.

The Divisional Directors

28. The five divisional directors (and their assistants) are the principal administrators of the respondent's continuing education programme. The College has a full-time equivalent enrollment of approximately 5,000 students. The enrollment in the School of Continuing Education is approximately 20,000 to 25,000; however, this figure may over-emphasize the importance of the school since many of these students may be taking courses on a piecemeal basis and may not be pursuing any formal academic programme. Many of the courses are a form of job training designed to upgrade the students' job skills, and are 'sold' on that basis. Some will be geared to apprenticeship or retraining programmes carried out in conjunction with various government or trade groups; others will be part of a cluster of courses leading to a certificate. The courses may, or may not bear any close relationship to those given in the College's regular programme (day school). The subject matter of full-time equivalent courses is subject to the control of the Dean of the appropriate day school department; otherwise the course content is tailored to the needs of the customer. The proportion of full-time equivalent courses and the utilization of full-time day school teachers ("moonlighting" on a contract basis) varies from division to division. There is no direct evidence concerning the proportion of college funds devoted to the School of Continuing Education, nor can it be determined whether the programmes generate revenue or operate closer to the break-even point. The College, in common with other post-secondary institutions, faces a potential decline in enroll­ment of full-time students. Continuing Education is continuing to grow at approximately 15% per year. This, in itself, is significant, and, since the programme involves direct contact with the community at large, its successful operation enhances the College's image.

29. The position description for Tom Callaghan, Divisional Director-Community Services, was prepared in April, 1978, and accurately sets out the general role of a Divisional Director in the School of Continuing Education. This description was verified, (and varied to some extent) by viva voce evidence from each of the Divisional Directors, and provides a useful starting point for an examination of their duties and responsibilities. The relevant portion of Callaghan's position description is as follows:

"General Accountability

Reporting to the Dean of Continuing Education the Divisional Director — Community Services is accountable for the identifying, developing, planning, marketing and administration of the educational needs of the part-time student in the areas of Applied Arts, Social Services and Ap­plied Health that are required by business, industry, public services and the adult community in general. The Divisional Director is held account­able for the operating budget, equipment inventory, off-campus faci­lities and fee income generation within the area of responsibility.

The School of Continuing Education is responsible for the academic standards of all Continuing Education courses and programs in Kent Couity as well as being responsible for part-time studies, standards and operations at the College in Windsor and Essex County with 182 pro­grams and approximately 2,000 courses. In addition there are many spec al courses, seminars, workshops and conference development to meet the needs of the community. Approximately 10% of the curriculum taught in the Community Services Division is full-time equivalent and the academic standards for this curriculum is the responsibility of the Deans of Applied Arts and Business, Allied Health and Technology, Technical Arts and Trades and Retraining as appropriate. The remain­ing )0% are Continuing Education courses and programs designed to meet other needs of the part-time students serviced by this division.

The majority of courses offered in Continuing Education are scheduled in the evening in order to accommodate the community, and as such, requires the incumbent to be available during these periods as well as being available throughout the day to ensure the effectiveness of the educational process.

The Divisional Director is required to develop and implement a success­ful student recruitment campaign in consultation with the Dean of Con­tinuing Education and is also required to provide an effective academic counselling program for individual students in order to ensure that the students are receiving maximum educational benefits from the programs and courses.

The incumbent is required to establish effective communication lines with business, industry, service organizations, union, government agen­cies, professional associations, other educational institutions and orga­nizations, together with members of the community to uncover and satisfy educational requirements.

The incumbent is responsible for the development, motivation, evalu­ation and discipline of teaching staff he hires within established guide­lines (i.e. Union Contract and Approved Pay Scale). All exceptions to these guidelines must be approved by his immediate supervisor.

The incumbent is free to act independently in the areas of course/pro­gram selection, curriculum and financial expenditures within authorized budget limits.

The Divisional Director — Community Services may be required to act on behalf of the Dean in his absence.

The incumbent is responsible for T.V., radio and correspondence course co-ordination for the school and development for the Community Services Division as well as being charged with the responsibility of the planning and carrying out of public relations and special activities related to the School of Continuing Education and the Community Services Division in consultation with the Dean.

The incumbent is responsible for the continual acquisition, maintenance and management of the Community Services equipment and inventory.

The position is one of six reporting to the Dean of Continuing Educa­tion. The other five are:

(1) Divisional Director— Business and Commerce

(2) Divisional Director— Technical

(3) Divisional Director— Essex County Area Programs

(4) Divisional Director— M.D.P./T.l.B.I./C.M.I.T.P.

(5) Executive Secretary

Reporting directly to the Divisional Director — Community Services are the following categories:

(1) Assistant Divisional Director

(2) Secretary I

(3) Part-time administrators — persons responsible for curriculum planning, implementation, marketing of quality education, recruiting and supervising faculty, students, support staff and course activities in the areas of responsibility.

(4) Numerous part-time faculty recruited from:— the full-time St. Clair College Staff (5% to 15%) and expertise from the community (85% to 95%).

The Divisional Director — Community Services is responsible for 60 cer­tificate programs in the Applied Arts, Applied Health and Social Services areas. The incumbent introduces and maintains, through a principal subordinate, the management of the Applied Health and Social Services programs which are 27 in number. The Applied Arts programs, totaling 33, are managed directly by the incumbent. The incumbent, through liaison with individual groups and sectors in the community, is responsible for responding to, and the articulation of the expressed and unexpressed needs of the community."

30. Callaghan’s evidence was fairly typical of that of all five Divisional Directors. His primary responsibility is to assess the need for courses in the community and develop course "packages" to, satisfy these needs. This was described as a marketing or "sales" function, which, in turn, involves the recruiting of numbers of part-time teachers (some of whom, as we have noted, would be full-time faculty of the respondent "moonlighting" on a contract basis),. providing classroom space, and doing the necessary scheduling. Callaghan testified that he arranges for some 500 courses per year, and hires individuals to teach those courses. These persons are hired solely on a part-time basis, and are not included in the bargaining unit. Many of the courses are conducted off campus so that teaching space has to be rented or arranged with the client. Some of the directors have special off campus facilities which are owned by the College and used for community education purposes. Callaghan has hiring, firing, and "dis­ciplinary authority over all of these part-time instructors, although, in practice, formal dis­cipline has been unnecessary, since teachers are hired on a temporary basis and problems can be resolved by simply declining to rehire them.

31. Part-time instructors work pursuant to a standard form contract which was developed some time ago by L. C. Clarke, the Dean of Continuing Education. (The position of "Dean" has recently been eliminated; but Ms. Bennett testified that Clarke continues to work directly with Dr. Giroux "on budget and overall community and industrial services policies"). Wages are paid on an hourly basis in accordance with an established range of approximately $12— $17 per hour. Each Divisional Director has some authority to vary an individual instruc­tor's salary within the prescribed range. Similarly, there is a general, prescribed student fee of $35 per course, which can be varied in exceptional circumstances. Courses must be approved by the College, and can be cancelled in accordance with College guidelines. Full-time equiva­lent courses must comply with established College academic standards. Under the previous administrative structure, L. C. Clarke had to approve new courses. The evidence does not dis­close whose Formal approval is now required, but it is clear that the Divisional Directors have the direct responsibility for initiating courses, and it would appear that so long as they can be "sold" approval is virtually automatic. In practice, it is also the Divisional Directors who decide to cancel courses — presumably when they can no longer be "sold".

32. Each Divisional Director prepares a budget for his section of the Continuing Edu­cation Department. Callaghan testified that the budget proposal from each Divisional Director is submitted to an individual who he described as "sort of a business director……in the department who is responsible for pulling together the budget for the community and industrial services areas." There was no direct evidence on the identity or responsibilities of this individual. There was also evidence of a budget committee for the Department. Copies of each Divisional Director's budget proposal are given to, and reviewed by, R. F. Giroux, (to whom each Director reports), who is responsible for the overall community and industrial services budget. We are satisfied that it is Giroux who has ultimate authority with respect to the school budget and each of its divisional components but if the Directors have done their job adequately their proposal may be accepted without question. Following Giroux's approval, the continuing education budget is submitted to, and must be approved by, higher levels in the College hierarchy. Bennett testified that it was Clarke who did the actual "negotiation" with the respondent's budget office, however, it would seem that Giroux is now involved in this process. Half way through the academic year, the Directors render an accounting, review the items previously determined, and recommend changes. There is also a report at the end of the year to assess the accuracy of the budget, and the Director's budget performance. There is seldom any questioning of specific items in the budget proposal, although the budget proposal may be reduced, or varied in accordance with general College guidelines, or restraints. The Divisional Directors can, and do, exceed their budgets, but they must be prepared to justify such overspending to Giroux. Exceeding the budget was regarded as a "grey area". Some of the Directors felt they could do so as long as it could subsequently be justified to Giroux; others felt that it was their responsibility to advise Giroux in advance.

33. The approval of the school budget by higher authority in the College establishes the financial framework within which the School of Continuing Education and each Divisional Director must operate, unless his component of the budget is altered in the half-yearly review. Each Director spends substantial sums of money, but equipment purchases over $500 are channelled through the College's purchasing department, and any expenditure over $500 must be authorized by Giroux. Callaghan testified that there may be more flexibility with respect to expenditures out of what he described as "cost recovery funds", but the other five witnesses all emphasized that there was a $500 spending limit which could not be exceeded without Giroux's approval.

34. Callaghan described the marketing of courses as a "sales operation" which the school sought to run on a self-financing or "cost recovery" basis. He explained that the per capita student fee generates considerable revenue from which one must deduct, as a cost: the fees paid to instructors, rental payments (if any) for off-campus space, and administrative expenses. The fees are set to cover the cost of materials and administrative expenses. lf a particular course or programme requires an unusually large expenditure, the prescribed $35 fee can be adjusted upwards to cover the exceptional costs. The kinds of supplies purchased varies with the course — flowers for floral courses, pottery clay for ceramics, materials for furniture refinishing etc. The cost recovery funds make up at least two-thirds of Callaghan's total budget of approximately $400,000. The rest of the budget involves a direct commitment of College funds for such things as "overhead", full-time secretarial or support salaries (and presumably the salaries of the Divisional Directors themselves). It is interesting to note that the Divisional Director has no authority to hire any full-time employee, or otherwise increase the full-time staff complement. Such request must be directed to Giroux, and the evidence suggests that even he has no final authority in this regard. Ultimate approval rests with senior college officials outside that School of Continuing Education. If money is required for any special project or expenditure not included in the budget, a request for such funds is made to Giroux. Likewise, a recent suggestion that a member of the full-time "day school" faculty be hired on a two year contract had to be referred to Giroux.

35. Callaghan is assisted by an Assistant Divisional Director (who performs functions similar to his within a defined subject area) and three full-time clerical staff. Two of them do secretarial and clerical work for Callaghan, and one works for his assistant. There are also 15— 20 part-time administrators, some of whom may work out of their homes; and, as Bennett testified there are four or five part-time clerical staff who may be called in, as required, to do general clerical work within the school.

36. Only the full-time clerical staff and, perhaps, the Assistant Divisional Director, fall within the bargaining unit. Callaghan clearly has a higher status and level of responsibility than these individuals, but on the evidence, it cannot be said that he spends a significant proportion of this time supervising them. His primary responsibilities are organizational and administrative, rather than supervisory. He occasionally sits on hiring committees for full-time staff, completes a pro forma evaluation, and assigns clerical and secretarial tasks to the persons assisting him; however, the bulk of his time is spent organizing and administering the courses within his jurisdiction. In so doing it is necessary for him to attend numerous meetings to discuss organizational problems, budget and staff complement, with his fellow Divisional Directors. The clerical personnel, (full-time and part-time), do the mechanical work associated with the school timetable, calendar, correspondence, advertising brochures, reports and general enquiries. On one occasion Callaghan had occasion to issue a written warning to an individual who had been off sick too frequently, but none of the other Divisional Directors have ever beer. involved in disciplinary matters vis-a-vis the full-time (bargaining unit) personnel (who, it will be recalled, are the only persons defined as "employees" under the Act). Since, there are some 200 part-time teachers, and IS —20 part-time administrative personnel, the proportion of Callaghan's time spent supervising "employees" is minimal.

37. Most of the Divisional Directors' time is spent in administrative duties or meetings. Charlesworth — the Divisional Director ₅ Technical testified that he spends at least twenty hours per week in meetings. Policy within the school is determined on a collegial basis by the Divisional Directors, in consultation with Giroux. Every Monday the Divisional Directors meet with Giroux to discuss the ongoing operations of the programme, the budget, problems which may have arisen, and matters which Bennett described as "strategy for selling and pricing the product". The continuing education group considers advertising and ways to promote the school, the desirability of changing format, fees, and untapped markets.

38. Jack McGuire, "Divisional Director — Essex County", performs similar duties except that his area of responsibility is geographically defined. He too is primarily responsible for identifying and developing community curriculum needs, devising appropriate education­al programmes, and arranging staff and classroom space. He administers some 350 courses at 50 different locations, and hires in the neighborhood of 300 part-time teachers per year. Like Callaghan, he is assisted by part-time office and clerical personnel, and part-time adminis­trators — none of whom are in the bargaining unit. McGuire has never hired, fired or dis­ciplined a full-time employee, although, like Callaghan, he has occasionally granted casual time off. MeGuire's secretary was on the respondent's full-time staff and transferred into McGuire's area. McGuire's budget is about one quarter of a million dollars and, as in Callaghan's case, consists largely of "cost recovery" funds. McGuire makes up his own budget proposal which is submitted to the Dean. McGuire regarded the recruitment of part-time staff as the function consuming most of the time. He testified that the major proportion of his time was spent hiring teachers and ensuring that the courses were run in an orderly fashion. Like Callaghan, he determines what courses are to be run, when, where, and at what cost/fee. The evaluation of full-time staff is an infrequent, and pro forma function which is entirely incidental to McGuire's major responsibilities. As in the case of Callaghan, it cannot be said that he spends a significant proportion of his time supervising bargaining unit employees.

39. None of the Divisional Directors have had any involvement with the grievance procedure, although some of them thought that they were the persons to whom a grievance would be presented. However, the vast majority of the staff of the School of Continuing Education are part-time employees excluded from the unit, and, consequently, without access to the grievance procedure. It is not surprising that the Divisional Directors have not had occasion to consider their responsibility vis-a-vis the grievance procedure. Their adminis­trative role within the school does involve the resolution of inter-organizational problems and "bottlenecks"— personal or technical.

40. This is not the first time that the Board has been called upon to determine the status of individuals who develop and market community education courses. ln The Board of Governors of Algonquin College et al., [1977] OLRB Rep. May 257, the Board considered the position of twenty-two "development officers" employed by various community colleges throughout the province. The Algonguin decision was followed more recently in Cambrian College of Applied Arts and Technology, [1980] OLRB Rep. Jan. 8, where the Board was dealing with a position entitled "community program co-ordinator". The functional similarity between the positions considered in these earlier cases and the ones presently before us, can be amply illustrated by the Board's description in those cases of the employees' principal respon­sibilities. In Algonquin College the Board summarized these as follows:

"Once employed by the community college the development officer's duties were broadened to include the marketing and supervision of other training programmes designed to increase the productivity of the employer's operations by upgrading the skills of its employees...

the development officer would meet with various and sundry employers and employer's associations with a view to discharge the programme that suited their needs. Once a programme is designed and accepted by the employer, then a contract is entered into whereby the employer agreed to disclose the specific terms of the arrangement. The development officer thereupon would engage the instructors required to teach the programme, furnish facilities (if not on the employer's premises) and other material or equipment necessary to the success of the programme. In this regard the development officer within prescribed limits is authorized and responsible for making these expenditures. There is no question that the development officer, through his dealings, binds the respondent college to the terms and conditions of any negotiated arrangement. These expenditures run the gamut of negotiating the in­structor's fee, renting facilities and purchasing equipment. The duration of these programmes and the extent of the instruction as opposed to 'on the job' training varies with the nature of the course...

... the development officer's principal duties are to market a product whose main objective is to increase the revenues of the college. In this context the development officer performs the duties of a salesman whose expertise as a consultant are applied to win the fancy of a company whose productivity will be enhanced by the specific training programme marketed by the officer. In this regard the college is in direct competition with private consulting firms who in many respects market the same product."

And in Cambrian College, supra, the Board wrote:

"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 disciplinary 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.

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."

In neither case did the Board exclude the subject employees from the ambit of collective bar­gaining. Each of these earlier decisions involved the same statute as that is presently before us, and an employer participating in the same province-wide bargaining system and bound by the same collective agreement.

41. Strictly speaking, neither of these earlier decisions is binding upon this panel of the Board; but it must be recognized that Board decisions have ramifications beyond the im­mediate parties to a dispute and create reliance interests which cannot be ignored. If the system is to function effectively, there must be some certainty and finality to Board determinations, even when doctrines such as res judicata or stare decisis have no strict application. Rules established in earlier cases should generally be followed unless they can be fairly distinguished, or unless they appear to be unreasonable or clearly wrong. On the other hand, the first look at a problem does not necessarily result in the correct or best solution (in this regard see the remarks of Professor Laskin, as he then was in Re C. G.E. (1959), 9 L.A.C. 342 at 346-7). Board decisions are not carved in stone, and a later Board has the same freedom and indepen­dence as did the earlier one—subject only to argument and persuasion based upon principle and authorities which now include a decision on a point similar to the one in question. Indeed, it is one of the advantages of a specialized tribunal that it entertains all cases within a defined subject area, and can develop, refine, and, if necessary, revise its jurisprudence as it acquires more experience. Of course, the Board should not depart from established principle or policy unless there are good reasons for doing so; but neither should a desire for uniformity be elevated to such preeminence, that it prevents a thorough analysis of each case.

42. The determination of employee status involves a two-step process (what the Board in Sheridan College of Applied Arts and Technology, [1976] OLRB Rep. Dec. 844 referred to as the "primary" and "secondary" characterization). Section 1(f) of the Act defines "employee" as a person within one of the units specified in the schedules. A perusal of the schedules will identify certain individuals clearly excluded on the basis of readily ascertain­able criteria — for example, persons employed for less than 24 hours per week (schedule 2(vi)); students employed in a co-operative training program (schedule 2(vii); and persons engaged and employed outside of Ontario (schedule 2(xi)). In certain instances the individual's job position may be expressly mentioned (chairmen of academic departments, for example), although in other cases, nothing will turn on a job title per se. The position of many indivi­duals will not be specifically mentioned or may be described ambiguously. This is the case of "foremen", or "supervisors" who are mentioned without specific criteria for their identifica­tion, and "administrators" who are not mentioned at all in those terms, and thus could be included because they are "employed in positions or classifications in the office" or excluded because they are "persons above the rank of foremen" or "other persons employed in a managerial capacity". In our view the status of "administrator" is equivocal, and if there is a dispute concerning the position of an individual nominally designated as an "administrator" that issue must be resolved by determining whether he occupies a position, or exercises functions described in section 1(1). Schedule 2 item (v) refers to "other persons employed in a managerial capacity", which suggests that those persons described in items (i) to (iv) must also be so employed, and must therefore exercise one or more of the functions enumerated in section 1(1). It should be noted that section 1(7) envisages a pyramid, or managerial hierarchy, which includes "at the top" persons who formulate organization objectives and policy l(J)(i), and "nearer the bottom" front line supervisors. In addition, there are other individuals of subordinate status, whose duties and responsibilities vis-a-vis the grievance procedure, employee relations, or senior management make them "part of the management team". Finally, section 1(1)(vi) gives the Board a general discretion to exclude other members of the management team who have not been specifically described.

43. We do not think that by describing a person as an "administrator" one conclusively determines his managerial status. In this respect, we cannot accept, without qualification, certain obiter comments made in Sheridan College, supra (a case which the Board itself described as one "of first impression"). As part of its general discussion of the scheme of the Act, the Board remarked:

"It should be noted that if they are characterized as professional administrators they will fall outside both bargaining units. The Act has not provided a bargaining unit for persons who are purely administrators of the College. Following certain basic notions of collective bargaining policy the Legis­lature appears to have decided that the managerial nature of adminis­trative responsibilities so identifies the professional administrators with the interest of their employer as to make them a group inappropriate for collective bargaining. The rationale underlying the conflict of interest policy, which is now conventional wisdom in North America labour relations, was well articulated by the British Columbia Labour Relations Board in The Corporation of the City of Burnaby, [1974] 1 Can LRBR I at 3. A professional administrator employed by a College would, there­fore, primafacie, fall outside both bargaining units."

The difficulty with this proposition is that the term administrator is itself ambiguous —especially as applied to a large, bureaucratic, academic organization. Within a college or university someone has to allocate rooms, prepare class timetables and exam schedules' see that instructional materials are available, co-ordinate courses, handle student admissions, answer public enquiries and so on. Such persons are "administrators" in that they administer or execute the policies or programmes determined by others, but we do not think that these administrative or co-ordinating functions, however important they may be, necessarily make an individual a part of management. If such were intended, the Legislature could have framed section l(l)(i) with reference only to "those who are involved in the "administration of programs". There would have been no reference to "formulation of organization objectives and policy", and administrators would have been unambiguously excluded.

44. On the basis of the evidence before us, it is evident that a number of the enumerated statutory exclusions have no application. The Divisional Directors are not employed in a confidential capacity in matters relating to employee relations. Because their principal responsibilities involve the organization and "selling" of courses, and the statutory definition of employee excludes almost all of the persons with whom they work, it cannot be said that they spend a significant portion of their time supervising "employees". For the same reason, it is not surprising that none of the six witnesses had ever had any involvement with the grievance procedure, and their remarks in this regard were purely speculative. Supervision of bargaining unit employees is peripheral to their core responsibilities, and almost none of their co-workers have access to the grievance procedure. The Divisional Directors do not fall within the scope of items (ii), (iii) or (v) of section 1(1).

45. The evidence did not disclose the entire "chain of command", the role played by R. F. Giroux or L. C. Clarke in the College or their precise relationship with the Divisional Directors. Private meetings with Giroux are infrequent and there is nothing particularly confidential about the administrative matters discussed in the various meetings over which Giroux presides. Bennett, who takes the minutes, could not identify any prejudice to the respondent if the information were generally known. Several of the Divisional Directors suggested that the confidential aspect of these meetings involved the discussion of "personalities'. Clearly, this is not the kind of information to which any portion of section 1(1) is directed. In the absence of precise information concerning Giroux's duties and responsibilities, we cannot find that the Divisional Directors are excluded by virtue of section l(l)(iv).

46. The possible application of section l(l)(i) is more problematic, since, as we have already noted, the Divisional Directors are administrators, and section l(l)(i) requires the exclusion of senior executive or administrative personnel. But where does one draw the line? At what point does an individual begin to exercise the kind of senior executive responsibilities to which section l(l)(i) refers? The union proposes an "employee-related" conflict of interest test analogous to that referred to by Professor Weiler in City of Burnaby, supra. It is argued that to be excluded under section l(J)(i), a person must have a decisive involvement in decisions, which, albeit indirectly, materially affect the employment relationship of employees, i.e. making decisions which determine employee complement, the skill mix of employees, new skills required by the respondent, etc. This argument was considered and rejected by the Ontario Public Service Labour Relations Tribunal in Ontario Public Service Employees Union and The Crown in the Right of Ontario (May 10, 1976— unreported) — a decision involving the employee status of a senior economist in the Ministry of Labour, and the application of section l(l)(ii) of The Crown Employees Collective Bargaining Act. The language of section l(l)(ii) of The Crown Employees Collective Bargaining Act is identical to that of section l(1)(i) of The Colleges Collective Act, and prior to the enactment of the latter statute community college employees were covered by the former. Indeed, it is apparent that with minor exceptions, the two statutes have the same pattern of statutory exclusions. After comparing the statutory scheme with that of The Labour Relations Act, and reviewing a number of cases decided under that statute the Tribunal observed:

"Between these supervisors covered by section l(l)(m)(iii) and the very senior individuals enumerated in section l(1)(m)(i) 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 the heads of a particular government operation, but are excluded from being employees under the Act because they are considered part of the managerial team. Their duties and responsibilities are covered by section l(l)(m)(ii). For example, a Ministry may have an Assistant Deputy Minister who has little or no employee responsibilities but whose main concern is the development of policy for that particular Ministry. His time may be completely occupied in evaluating and preparing reports containing suggestions and recommendations for the development of policy. Clearly that person would not be considered an employee because he or she would not share a community of interests with other employees in the bargaining unit for the purposes of collective bargaining.

Thus, generally and in context, section l(l)(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 purpose for which the union exists.

Turning more specifically to the particular wording of the section and its application it may appear to concern itself with persons 'involved' in the 'development and administration' of government programs. But there are very few positions, if any, in the government that are not involved with the development and administration of one program or another. In our view, the limiting words in the section and the key phrase is the requirement that the individual's involvement must be 'in the formul2tion of organization objectives and policy' with respect to the development and administration of programs. The section is concerned with important governmental functions and embraces those persons who are 'involved' with 'organization objectives and policy.' Clearly these are major functions of the government. But in our view mere involvement in these areas does not bring a person within the section. Many people may be involved in organization objectives and policy. For example, a clerk who surveys people using a government service or who collates information and reports on the potential cost of a policy which the government may be seeking to develop may be said to be 'involved' in the organizational objectives and policy. However, which activity the section seeks 1 o protect is the activity of persons who are 'involved in the formulation' of objectives and policies of the organization. Thus the section seeks to exclude from the bargaining unit those who may be referred to as the decision makers who are involved in major government functions. It does not intend to exclude those who merely supply information or collate material or who make suggestions. The section, in our opinion, intends to exclude those who play a vital and decisive role in the decision making process, or in the general dictionary sense of the word formulate’, the section intends to exclude those who ultimately reduce all the information, suggestions and reports and systematically set them forth in the form of organization objectives and policies.

In summary after considering the general organization of the Public Service, the context of section l(l)(m)(ii) and more particularly its juxtaposition to the remaining parts of the section, as well as its specific wording we have concluded that the Legislature intended to exclude from he bargaining unit relatively senior members of the Civil Service who ~re involved as implementers and advisers in the major areas of organization objectives and policy' and whose functions involve them in formulating or decision making in these areas. The section does not exclude from bargaining those who are not involved in these major areas or wh9se duties and responsibilities involve them in these areas only in an incidental way.

47. The tribunal's approach focuses on the phrase "formulation of organization objectives and policies", and interprets that phrase so as to exclude only those who are senior policy makers, playing a "vital and decisive role in the decision making process" and involved as "implementers and advisers" in the major areas or functions of government. The application of this approach in the community college context would suggest that in order for an individual to be excluded under section l(I)(i) he must do more than administer or even "develop" college programs; he must be involved in the formulation of college objectives and policy in relation to those programs. This would involve the exercise of senior executive responsibilities at the college level, respecting initiatives or priorities which the college as an institution should pursue; and support for this interpretation can be gleaned from the reference to the formulation of college budgets. The alteration of objectives and policies will have financial ramifications and it is appropriate that individuals charged with the responsibility for the college's financial management should be excluded on the same basis as planners and policy makers. Of course, once a new college objective or policy is determined, less senior managerial personnel will have to develop new programs or administrative structures; but we do not think the two levels of authority should be equated. The distinction in an important one which, in the sphere of military science, would be described as the difference between "strategy" and "tactics".

48. In the present case, it is difficult on the evidence before us, to conclude that the Divisional Directors play a "vital and decisive" role in the determination of college objectives and policy as that term is used in section 1(1)(i). They do develop "sales" initiatives, which may be accepted by Giroux and their colleagues, and subsequently initiated, but Giroux through his control over the budget and spending of each Divisional Director, and his active participation in the ongoing affairs of the school, retains ultimate authority over the school's activities. The Divisional Directors have an important role in developing courses, selling them to the public, and ensuring that, once sold, the "product" is efficiently delivered to the consumer; but final authority for the creation, cancellation or content of courses lies elsewhere. Likewise, there is only a limited discretion with respect to fee structure, the salaries of part-time teachers and their contractual arrangements, and any change in complement requires approval by higher authority. It is difficult to characterize the Divisional Directors as primarily or predominantly policy markers, — especially where, as here, the Board did not have a complete picture of the structure or levels of authority with the respondent institution. However, in view of our finding with respect to the application of section l(l)(vi), it is unnecessary to reach a firm conclusion with respect to the applicability of section l(l)(i). As we have already pointed out, an individual must be excluded from the bargaining unit if any of the enumerated statutory exclusions applies to him.

49. The scheme of The Colleges Collective Bargaining Act envisages that there will be persons who do not have significant direct supervisory responsibilities over bargaining unit employees, are not involved in the collective bargaining process and do not exercise senior executive or policy-making responsibilities; but are nevertheless excluded from the bargaining unit by reason of their duties and responsibilities to the employer. These persons are referred to in section 1(1) of the Act, schedule two item (v) and perhaps schedule two item (iii). Such individuals may be described as "middle-management" in that their status within the organization is subordinate to that of senior executives or administrators, but clearly superior to that of bargaining unit personnel, and perhaps "first-line supervisors". These "middle­ managers" are the "organization men" who have important responsibilities for administering and executing the policies or programmes of the employer. For this reason they are part of, and share a community of interest with management. They are intermediate members of the management team whose functions are not specifically described in section l(J)(i) — (v). This is not to say that the mere assertion that an individual is a member of "middle-management" or part of the "management team" will justify his exclusion under section l(l)(vi). As we have already mentioned, almost all white collar employees who do not exercise simple manual skills could be described as "administrators" but we do not think the bargaining unit was intended to include only junior secretarial and clerical personnel. Despite the unique institutional and labour relations context of a community college, we do not think that the Legislature intended to create a definition of "management" markedly different from the ordinary understanding of that term in the private sector nor was it intended to generate an unusually or dispropor­tionately large "team" of managers. There must be a reasonable relationship between the number of managerial personnel and the number of employees in the bargaining unit; and before a position can be considered managerial the evidence must demonstrate that there is a significant focus of decision-making authority at that point in the organization. On the other hand, if, on the evidence, and in the context of the particular organization, the Board is satisfied that an individual or group performs functions properly characterized as managerial, it should not hesitate to do so declare simply because its decision must be grounded on the general discretion set out in section l(l)(vi).

50. The Divisional Directors and the two Assistant Divisional Directors do not have ultimate responsibility for the determination of policy within the School of Continuing Education, but there is no doubt that it is they who actually run the programme on a day-to­day basis. It is the Divisional Directors who develop and market courses, hire faculty, and generally ensure the orderly and efficient delivery of these educational services. Although the evidence in this respect is unclear, it would not be surprising to learn that in terms of remuneration, and responsibility (their "Hay points") they would be regarded as persons above the rank of first-line foremen or supervisors. They have direct responsibility for selecting, hiring, and if necessary, terminating the services of literally hundreds of part-time teaching staff-a factor which would be of considerable significance if this case were considered under section l(3)(b) of The Labour Relations Act. The exercise of this authority does not directly impact on employees in the bargaining unit because, by statute, part-time employees are excluded from the ambit of collective bargaining; but it is still an indication of managerial status. Although the Divisional Directors do not manage "employees" they do select and direct the "non-employees" who actually produce the respondent's "product". In this sense the Divisional Directors are responsible for the "management" of the respondent's continuing education programme. 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. On the basis of the evidence before us, they are clearly part of the respondent's managerial team, and while they are not covered by sections 1(1)(i) — (iv), we are satisfied that, in accordance with section l(l)(vi), they should not be included in the bargaining unit by reason of their duties and responsibilities to the employer. We might point out, moreover, that there was no evidence before us suggesting that this determination would result in an unreasonable ratio of managerial to non-managerial personnel within the institution, or would significantly undermine or erode the trade union's bargaining rights.

51. For the foregoing reasons the Board finds that the Divisional Directors and Assistant Divisional Directors must be excluded from the bargaining unit.

DECISION OF BOARD MEMBER D. B. ARCHER:

The decision of Mr. Archer will follow.