Canadian Union of Public Employees and its Local 1701 v. Town of Gananoque

2421-80-M Canadian Union of Public Employees and its Local 1701, Applicant, v. Town of Gananoque, Respondent

BEFORE: M. G. Picher, Vice-Chairman, and Board Members J. D. Bell and O. Hodges.

DECISION OF M. G. PICHER, VICE-CHAIRMAN, AND BOARD MEMBER J. D. BELL; July 17, 1981

1. This is an application under section 95(2) of the Act. The Town of Gananoque seeks a declaration that Mrs. Corinne Wendt, classified as accounting clerk, is not an employee within the meaning of section l(3)(b) of the Act. There is no suggestion in the evidence that Mrs. Wendt exercises managerial responsibility in the sense of supervising others or making independent decisions or effective recommendations. The issue is whether she is confidentially employed in matters of labour relations.

2. Mrs. Wendt reports to the clerk administrator of the Town, and on occasion performs work for the deputy clerk and the deputy treasurer. Part of Mrs. Wendt's responsibilities involves opening and distributing mail. The evidence establishes that she has become privy to the content of the Town's budget in the course of its preparation, once being responsible for running off copies of several drafts, as the budget proceeded. She has also been involved in typing material central to the Town's strategy in bargaining with the union. In this regard, as part of the employer's preparation for bargaining, Mrs. Wendt once typed up information regarding to cost to the Town of different percentage increases in wages.

3. On the whole there are few facets of her work that involve confidential knowledge relating to labour relations. By the same token, however, the knowledge she has access to, specifically the written material prepared as support data for the exclusive use of the Town's bargaining committee, is extremely sensitive. She has been employed for only three years, and it appears that the period of her service has spanned only one set of negotiations for a collective agreement. The unchallenged evidence, however, is that on the occasion of negotiations she prepared wage costing figures central to the employer's strategy and position in bargaining. The evidence is that such work, whenever it arises, is hers to do, and is not part of the regular workload of any other member of the staff.

4. A central purpose for excluding from bargaining unit persons who have access to confidential material relating to labour relations is so that the employer can know that its internal strategies and communications are known and handled exclusively by persons of undivided loyalty. In The Regional Municipality of Haldimand-Norfolk (Norview Home for the Aged), Board File No. 2193-76-R, unreported, July 18, 1977 the Board commented:

"Each case is to be determined on its own facts and on the totality of the evidence. Counsel for the applicant conceded, as he must, that the typing of lists of employees in applications for certification involves sensitive information as regards labour relations. The same is true of the handling of and access to the employer's communications on its consultant on matters going to the heart of its strategy at the bargaining table. Discreet secretarial help is essential to any employer and that is manifestly so in matters of labour relations. The purpose of the section l(3)(b) exclusion relating to confidentiality is to assure that the employer may freely function in the collective bargaining framework without the disability of any conflict of interest in a vital member of its team."

5. In the instant case Mrs. Wendt's access to confidential matters pertaining to bargaining is of itself sufficient to raise an inevitable conflict of interest with respect to the division of her loyalties between employer and union. We therefore conclude that she is not an employee within the meaning of section l(3)(b) of the Act.

DECISION OF THE BOARD MEMBER, O. HODGES;

1. I dissent.

2. Mrs. Wendt is classified as an accounting clerk. Her duties are general in nature, including typing, mail opening, photocopying, answering the phone, and acting as a reception­ist. As noted in the majority decision, there are few aspects of her work which pertain to labour relations.

3. As part of her job, Mrs. Wendt would occasionally open letters containing grievances and in her office she maintained a file containing the Town's correspondence. However, as the affected trade unions would presumably be aware of the details of their correspondence with the Town, this information cannot be confidential. I note that Mrs. Wendt testified that she never typed letters concerning employees and did not have access to any personnel files.

4. Mrs. Wendt testified that in previous years she may have been involved with the preparation of the Town's budget. However, her involvement appears to have been of a cursory nature, and, in any event, there is no evidence that this matter pertaining to labour relations.

5. On only one occasion can Mrs. Wendt be said to have been involved in a confidential capacity in a matter relating to labour relations. Prior to the start of negotiations with the trade union she once typed some information regarding the cost to the Town of different salary increases. It appears that this was an isolated incident.

6. In my view it is relevant that there were two other employees who could have been asked to perform this "confidential" work instead of Mrs. Wendt. Mrs. Bishop, the Deputy Clerk was Mrs. Wendt's regular replacement. Mrs. Thompson, the Deputy Treasurer was customarily involved in the preparation of the Town's budget. Bearing this in mind, the employer cannot put forward his reliance on Mrs. Wendt's services in the area of confidential labour relations as the reason for her exclusion from the bargaining unit.

7. In United Community Fund of Greater Toronto [1979] OLRB Rep. Dec. 1292, the Board stated at page 1283:

"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." (See also: York University [1975] OLRB Rep. Dec. 945).

8. It is difficult to imagine an involvement in confidential labour relations more peripheral than that of Mrs. Wendt. It would be gravely inequitable to deny this employee the benefits of collective bargaining merely because her employer once foisted upon her a task of a marginally confidential nature. I would conclude that Mrs. Wendt is an employee within the meaning of the Act and that section l(3)(b) has no application.