Ontario Labour Relations Board
[1981] OLRB Rep. November 1521
Union of Bank Employees Local 2104 (Ontario) C.L.C., Applicant, v. Airline (Malton) Credit Union Limited, Respondent
Panel
BEFORE: R. D. Howe, Vice-Chairman, and Board Members C. G. Bourne and O. Hodges.
Counsel
APPEARANCES: Douglas West and Susan Van Arragon for the applicant; R. N. Gulmore, W. D. Robertson and D. Elenbass for the respondent.
Decision of the Board
Date: November 16, 1981
1This is an application for certification in which the parties met with a Board Officer prior to the initial hearing scheduled in this matter and reached agreement on all matters in dispute between them with the exception of the list and composition of the bargaining unit.
2Having regard to the agreement of the parties, the Board is satisfied that the applicant is a trade union within the meaning of section l(l)(p) of the Labour Relations Act.
3The parties are in partial agreement with respect to the description of the bargaining unit. They have agreed that the description should commence with "all office, clerical and technical employees of the respondent at Malton, Ontario" but they are in dispute as to whether the first line level of management to be excluded from the bargaining unit should be the Manager, as contended by the applicant, or the Assistant Manager, as submitted by the respondent. In addition to the Assistant Manager, the respondent also seeks the exclusion of Headteller, Teller/Supervisor, and Loan Officer on the basis that they exercise managerial functions within the meaning of section l(3)(b). The respondent further seeks the exclusion of Teller/Payroll Clerk and Steno/Receptionist on the ground that they are employed in a confidential capacity in matters relating to labour relations within the meaning of section 1(3)(b). The applicant, on the other hand, opposes the exclusion of each of those positions.
4The applicant also challenged the list of employees filed by the respondent in this matter. In view of those disagreements, a Board Officer was appointed to inquire and report back to the Board on the list and composition of the bargaining unit.
5At the meeting of the parties convened by the Board Officer pursuant to his appointment, the parties reached agreement with respect to the list. Since no agreement was reached on the status of the exclusions requested by the respondent, an examination of their respective duties and responsibilities ensued and a report was duly prepared by the Board Officer. At the request of the respondent, a hearing was scheduled for the purpose of considering the representations of the parties with respect to that report.
6The respondent is a credit union which operates at Toronto International Airport. Its main office is located in a building which also contains hangar facilities. It also operates a branch in Terminal 2 of the Airport.
7The respondent seeks the exclusion of Teller/Payroll Clerk Carol Oates and Steno/ Receptionist Susan Van Arragon on the ground that they are "employed in a confidential capacity in matters relating to labour relations" within the meaning of section l(3)(b) of the Act, which provides:
"Subject to section 90, for the purposes of this Act, no person shall be deemed to be an employee,
(b) who, in the opinion of the Board, exercises managerial functions or is employed in a confidential capacity in matters relating to labour relations.”
United Community Fund of Greater Toronto, [1979] OLRB Rep. Dec. 1292, contains a useful review of the purpose and scope of that provision:
"3. The purpose of section l(3)(b) of the Act is to ensure that persons who are within a bargaining unit do not find themselves faced with a conflict of interest, as between their responsibilities and obligations as persons who 'exercise managerial functions or are employed in a confidential capacity in matters relating to labour relations' and their responsibilities and obligations as members of the unit. Collective bargaining, by its very nature, requires an arm's length relationship between the 'two sides' whose interests, objectives and priorities are often divergent. Persons employed in a confidential capacity relating to labour relations are regularly involved with information and matters which, if disclosed, would adversely affect the collective bargaining interests of the employer. Section 1 (3)(b) ensures that the employer need not be concerned that such persons will have 'divided loyalities.'
- Section 1(3)(b) involves three separate criteria: the disputed individual must be employed in a confidential capacity; the material with which that individual works must be confidential; and the material must be related to labour relations. The Board summarized its approach to these criteria in York University, [1975] OLRB Rep. Dec. 945 at page 951:
'...the Board must be satisfied of 'a regular, material involvement in matters relating to labour relations' to justify a finding excluding a person from operation of the Act. (See, The Falconbridge Nickel Mines Ltd. case, [1969] OLRB Rep. September 379). Mere access to confidential information that may pertain to labour relations, standing alone, is no reason for excluding employees from the bargaining unit. (The Metropolitan Separate School Board case [1974] OLRB Rep. Apr. 220). Nor is mere knowledge of matters that may be deemed 'confidential' in the sense that the employer would not approve of 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. Toledo Scale Division of Reliance Electric Limited case [1974] OLRB Rep. June 406).
- 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 1(3)(b) of the Act. As can be readily seen, the degree of the involvement and the extent of the confidential nature of the matters dealt with become important factors to be considered in determining exclusions under these provisions.
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 strategy, and the Board must conclude that these employees are not employed in confidential capacity in matters relating to labour relations.'
- It is also necessary that the information with which the disputed employee works is 'confidential' so that its disclosure would undermine the employer's industrial relations position vis-it-vis his employee(s). In Holophane Co. Ltd., [1972] ORLB Rep. Dec. 999 the Board found that a switchboard operator, who had access to the absenteeism and disciplinary records of employees was not employed in a 'confidential capacity' because the employees knew, or should have known, the contents of those records. And in DaaI Specialties Ltd., [1973] OLRB Rep. Nov. 592, the Board concluded that a switchboard-receptionist who types replies to grievances was not employed in a confidential capacity since these replies were obviously known to trade union officials to whom they were sent and were in no sense 'confidential."'
(See also Chelsea Park Nursing Home, [1978] OLRB Rep. Dec. 1080; Board of Education for the Borough of Scarborough, [1980] OLRB Dec. 1713; R.C.A. Limited, [1980] OLRB Sept. 1316; and Spruce Falls Power & Paper Co. Ltd., [1980] OLRB Rep. Jan. 110.)
8Having regard to all of the evidence set forth in the Board Officer's report and to the submissions of the parties, the Board is of the opinion that Teller! Payroll Clerk Carol Oates is not employed in confidential capacity in matters relating to labour relations. Many of her duties have nothing whatever to do with labour relations; for example, she opens new accounts as they come in and checks the daily transactions list to ensure that customer deposits and withdrawals have been posted correctly. The information concerning salaries and benefits to which she has access through her preparation of the payroll and reports concerning tax deductions, pension, salary continuance and other benefits is not confidential information since it is known by the individual members of the bargaining unit. Moreover, it is the type of information that an employer is required to provide to a trade union, once it has been certified and has served notice to bargain, as part of the employer's section 15 duty to bargain in good faith and make every reasonable effort to make a collective agreement (see De Vilbiss (Canada) Limited; [1976] OLRB Rep. Mar. 49). Access to such information does not make Ms. Oates privy to the respondent's industrial relations strategy (see Frito-Lay Canada Limited, [1978] OLRB Rep. Sept. 831). Similarly, the fact that to assist her in the performance of her duties, Ms. Oates, on her own initiative, implemented a system by which she records in a book all occasions on which employees are absent or late does not bring her position within section 1(3)(b) as that information is also not confidential. As noted by the Board in The Holophane Company Limited, [1972] OLRB Rep. Dec. 999, at paragraph 3, "the employee concerned is certainly aware of his absence and the report of his absence is not a matter which is confidential." Moreover, it is clear from the evidence of Ms. Oates that no disciplinary action has ever been taken by the respondent on the basis of the information that she records. She is not privy to information respecting projected hirings or wage increases; she does not become aware of wage increases until the Manager has made a decision concerning such increases and directs her to implement it.
9We are, however, satisfied that Steno! Receptionist Susan Van Arragon is employed in a confidential capacity in matters relating to labour relations and should, therefore, be excluded from the bargaining unit. In addition to her duties as a receptionist, Ms. Van Arragon types correspondence for the office including most of the correspondence of the Manager, for whom she has typed at least one letter of discharge and the respondent's reply to this application, including the Schedule "A" list of employees. In support of the respondent's request that this position be excluded from the bargaining unit, counsel submitted that the respondent has no position or employee, other than the Steno! Receptionist, to type collective agreement proposals for the respondent in the event the applicant is certified by the Board.
10In finding a Receptionist-Secretary to be employed in a confidential capacity in matters relating to labour relations, the Board in The Regional Minicipality of Haldimand-Norfolk, (Norview Home for the Aged), Board File No. 2193-76-R, decision dated July 8, 1977, unreported, noted that the individual in question "typed a list of employees contained in the respondent's reply to an earlier application for certification before this Board, a list which by the practice of this Board is viewed as confidential to the employer". As stated by the Board in Town of Gananoque, [1981] OLRB Rep. July 1010, at paragraph 4:
"A central purpose for excluding from a 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 8, 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 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 man~festlp 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.'"
(emphasis added)
(See also Bank of Nova Scotia, Regina, Main Branch, [1978] 2 Can. LRBR 65; 28 di 885, in which the Canada Labour Relations Board excluded the stenographer to the manager of a branch bank on the basis of its assessment of the managerial necessity of the employer to have a person in that branch that could, in the future, be relied upon to act in a confidential capacity.)
11For the foregoing reasons, the Board is of the opinion that the position of Steno! Receptionist should be excluded from the bargaining unit pursuant to section l(3)(b).
12The approach generally adopted by the Board in determining whether a person exercises managerial functions" within the meaning of section l(3)(b) was described as follows in Hydro Electric Commission of the Borough of Etobicoke, [1981] OLRB Rep. Jan. 38:
"20. In making determinations under section l(3)(b) of the Act the Board has continually recognized that effective collective bargaining necessitates an arms length relationship between employees on the one hand and management on the other. In acknowledgement of a fundamental divergence between the objectives, priorities and interests of the two groups, the managerial exclusion in section l(3)(b) functions to exclude from the scope of 'employee' those persons who, because of the exercise of managerial functions and allegiance to mar~agement, would be placed in a position of conflicting interest if allowed to engage in collective bargaining.
1526
- The term 'managerial functions' is not defined by the Act. The Board, therefore, must assess the facts of each case to determine whether the duties and responsibilities in question have true managerial significance. In Cottage Hospital (Uxbridge), [1980] OLRB Rep. March 304, the Board at pp. 305-306 summarized the approach it takes to evaluating whether an individual exercises managerial functions:
'Over the years the Board has developed general guidelines to assist it in evaluating whether an individual exercises managerial functions (see Inglis Limited, [1976] OLRB Rep. June 270, Chrysler Canada Limited, [1976] OLRB Rep. Aug. 396 and Mcintyre Porcupine Mines Limited, [19.75] OLRB Apr. 261). For those persons whose work has little or no impact on the employment relationship, the Board looks to whether or not they exercise independent decision-making responsibilities in matters of policy or the running of the organization. The Act does not operate to exclude those who only make effective recommendations in this regard. Nor does it exclude persons whose independent decisions are either circumscribed within pre-determined limits set by others or limited to technical and procedural determinations flowing from their expertise in a limited field. (See Libby, McNeil and Libby of Canada, [1967] OLRB Rep. May 193, Inglis Limited, supra; and Dominion Stores Limited, [1976] OLRB Rep. Aug. 44 and Canadian General Electric, [1979] OLRB Rep. Jan. 12).
Different considerations apply to the work of a second group of persons who may be characterized as having a direct effect on the employment relationship or the terms and conditions of employment of those in the employ of the organization. Supervisors of employees or those technical experts whose work affects terms and conditions of employment or hiring and employment policies would fall within this group. In determining whether such persons whose work has a direct effect on the employment relationship exercise managerial functions, the Board assesses whether or not they exercise effective control and authority over employees either in direct contact with the employees or through their decisions. In making this evaluation the Board looks to whether the person has, at a minimum, the authority to make effective recommendations relating to conditions of employment. An effective recommenda-tion is a 'serious recommendation that the evidence demonstrates is usually acted upon, and therefore a recommendation that materially affects the economic lives of employees'. (Mcintyre Porcupine Mines Limited, supra, at 289).'
- Exercising supervisory functions does not by itself exclude a person from engaging in collective bargaining. Even when a person is primarily engaged in the supervision of others he is not managerial unless he also has effective control over their employment relationship. (See Falconbridge Nickle Mines Limited, [1976] OLRB Rep. Sept. 379 and Mcintyre Porcupine Mines, sup ra.)..."
13Having regard to those considerations, the Board is of the opinion that neither Headteller Dianne Crichton nor Teller! Supervisor Terry Morawski exercise managerial functions within the meaning of section l(3)(b). Each of them primarily a teller with some additional duties such as giving the other tellers their money from the respodent's safes for which they have the respective combinations, preparing bank deposits, and assisting tellers in "balancing" at the end of the day. Ms. Crichton, who works at the respondent's main office, has four tellers under the supervision. Ms. Morawski supervises only one teller who, together with herself, constitute the respondent's entire staff at its Terminal 2 branch. Although they spend most of their working hours at the branch, Ms. Morawski and teller begin and end each work day at the main office where the actual bookeeping is performed. After arriving at the main office and picking up the necessary materials, they are driven to the branch by the Manager. At the end of the day, they return to the main office with their cheques, withdrawals, deposits slips, etc. Neither Ms. Crichton nor Ms. Morawski have power to hire, discipline or discharge employees, nor do they have any influence over the wage rates of other employees. They are not involved with scheduling employees to work nor do they have power to grant time off to other employees or to authorize them to work overtime. Ms. Crichton stated that she can require tellers to stay after work if they are unable to balance their monthly transactions for the day. However, it appears that it is generally understood by the tellers that they must remain until they have "balanced" and they will not be paid for the time which that takes (except on Air Canada pay days which are particularly busy days for the respondent's operations). Ms. Crichton and Ms. Morawski's primary function in this regard appears to be assisting their tellers in locating their errors so as to duly complete the balancing process. Under the circumstances, we are not satisfied that either of them exercise managerial functions with respect to the balancing process. If such balancing efforts ultimately fail, Ms. Crichton can write off the imbalance. However, the imbalances are usually 'lust small ones" and she does not act on her own initiative for "anything over thirty dollars
14Neither of the individuals in question are generally involved in the hiring process although Ms. Crichton provided the Manager with the names of two friends whom she wished to assist in obtaining employment. To improve their chances of being hired, she "took stuff home and showed them how to do everything". However, it is clear from the evidence that Mr. Crichton provided them with this "training" not as part of her normal job functions but rather during non-working hours as a generous act of friendship. Ms. Crichton and Ms. Morawski are also not generally involved in assessing the performance of other employees although Ms. Crichton was asked on one isolated occasion by the prior Manager to write out what she thought about one teller who was subsequently discharged. Although counsel for the respondent submitted that this incident demonstrated that Ms. Crichton had the power to effectively recommend discharge, the Board is not satisfied on the rather vague evidence concerning that one isolated instance that Ms. Crichton exercised managerial functions on that occasion. Indeed, the evidence of Assistant Manager Marilyn Innis indicates that during her seventeen years of employment with the respondent, only two people have "had to be let go" and it may reasonably be inferred from her evidence that the Manager's decision to discharge them was not based on the observations or recommendations of any one person, but rather upon the complaints and observations of all those who were work them. Thus, we are not satisfied that Ms. Crichton has the power to effectively recommend discharge in the manner in which that concept has developed in the Board's jurisprudence. Similarly, although Ms. Morawski has been consulted by the Manager concerning her satisfaction with the performance of the various tellers who have been assigned to work with her at the branch from time to time, it appears that, with one isolated exception, Mr. Morawski's opinion has merely resulted in inadequately trained tellers being. transferred back to the main office by the Manager without any disciplinary action or other adverse consequences to the employees in question. Mr. Crichton and Ms. Morawski do not attend managements and do not have any involvement in policy decisions.
15We are also of the opinion that Assistant Manager Marilyn Innis does not exercise managerial functions. Although she supervises approximately ten people, she spends at least "75% of the day" doing bargaining unit work. With respect to the other 25% of the day, she stated: "Sometimes I get around to my own work... I have no job description in writing. . . But it is my understanding that my job should be supervisory which it never has been... I consider my own job to be probably reconciliation of banks, the accounting end of it more than anything, which is very difficult to get done... You see the job never changed. I asked for a raise three years ago and the reply was, we can't give you a raise in that classification. We'll make you Assistant Manager. But the job never changed. So that's what happened. It should have been clarified a long time ago" Ms. Innis is not involved in hiring and her involvement in dismissal of employees is minimal. The Report, read as a whole, indicates that discharges are extremely rare and are made by the Manager after consultation with the Assistant Manager, the Headteller or Teller! Supervisor and the affected employee's co-workers. The Board is not satisfied on the evidence before it that the Assistant Manager has made effective recommendations with respect to discharge or other disciplinary action.
16Decisions concerning overtime are generally made by the Manager. The Assistant Manager sometimes permits employees to work overtime but never requires them to do so. She has no involvement in drafting the respondent's annual or monthly budget. When the Manager is on vacation, the Assistant Manager fills in for him. When she does so, she receives his salary and his expense account. During his absence, she has also attended meetings of the Board of Directors (approximately 10 times in 17 years). Her function at those meetings was to deliver the report prepared by the Manager concerning matters such as expenses, and new members. Assuming, without deciding, that the Assistant Manager performs managerial functions during the Manager's annual vacation, the Board is of the view that this should not cause her to be excluded from the bargaining unit employee to temporarily assume the duties and responsibilities of a position excluded from the bargaining unit so as to fill a temporary void caused by illness or vacation. The occasional assumption of such duties and responsibilities does not deprive the individual of status as an employee in the bargaining unit. As stated by the Board in Page Hersev Employees' (Welland) Credit Union Limited, Board File No. 2839-80-R, decision dated August 11, 1981, unreported, at paragraph 4:
"It is important to the scheme of collective bargaining, and particularly to the interests of an employer, that persons who by virtue of their duties and responsibilities would be in a position of conflict of interest as between their employer and their union if they were included in a bargaining unit fall outside the ambit of union representation. The right of individuals to the benefit of collective bargaining are not lightly to be denied, however. Managerial or confidential duties must be a substantial and regular part of an individual's responsibilities ~f they are to be excluded, (see, e.g. United Community Fund of Greater Toronto, [1979] OLRB Rep. Dec. 1292; York University, [1975] OLRB Rep. Dec. 945)."
(emphasis added)
17The final position that must be considered by the Board in this matter is that of Loan Officer Anita Reid. The respondent's By-laws contain the following provisions concerning that position:
"5.01 The board of directors shall appoint one or more employees of the Credit Union, to consider loan applications and to approve loans to members.
5.02 The person(s) so appointed shall be known as the loan officer(s) whose duties shall be those of the credit committee under The [Credit Unions and Caisses Populaires] Act and shall include:
(a) the keeping of accurate records of all loan applications re-ceived and processed;
(b) the submission of a written monthly report to the board of directors stating the number of loan application received, the number and category of loans granted, the security obtained for such loans, the loan applications denied and a report on all renegotiated and delinquent loans;
(c) the submitting of a written annual report to the annual meeting of the Credit Union.
5.03 The loan officer shall act upon any application of a member for the postponement or the renegotiation of any loan payments.
5.04 The loan officer shall be bonded for the honest and faithful per-formance of duties in such amounts as may be determined by the board of directors.
5.05 As long as this by-law remains in force it shall not be necessary to elect a credit committee as required by section 48(1) of the Act."
Ms. Reid, who has held her position from almost three years, reports to the Manager and to the Board of Directors through her written monthly report. She takes loan applications through personal interviews with members, follows up with credit checks, arranges insurance for the loans, and arranges for loan cheques to be prepared by the tellers who are empowered to issue such cheques. Ms. Reid has no involvement in hiring, discharging or disciplining employees, nor does she have any effective control or authority over them. In describing her functions to the Board she stated, ..... the only thing I do is process loans". Within the limits specified in the By-laws, the granting of loans, including loans to Directors and to employees of the respondent who are also members of the respondent, is within her sole discretion; no one performs a double check before the loan is granted, although Ms. Reid does go to the Manager if she feels there is a problem and wants a second opinion. Included in the By-laws are the following provisions concerning loans:
"10.03 The total amount on loan to any member at any time shall not exceed $1,000.00 unless security therefor has been given.
10.04 Security may be deemed to include an assignment of wages, an assignment of book debts or of other moneys receivable, a chattel mortgage, the co-making of a promissory note or other equivalent collateral, provided that no wage assignment shall be filed with the employer or any member, except with the approval of the board of directors.
10.05 Loans may be made Lo a member who is a natural person, within the following limits:
(a) Up to $10,000 in excess of the member's shares and deposits provided a security referred to in paragraph 10.04 has been given for the loan;
(b) Up to $20,000 in excess of the member's shares and deposits provided that the amount by which the loan exceeds the aggregate of $10,000 and the member's shares and deposits has been secured by way of bonds, stocks, debentures or other equivalent collateral.
(c) Any amount fully secured by the member's shares and deposits subject to the limitations expressed in paragraph 10.07.
10.06 In addition to any amount that may be loaned under paragraph 10.05 loans may be made to a member who is a natural person on the security of a mortgage of real estate conforming to section 83 of the Act up to a maximum of $50,000.00.
10.07 Notwithstanding any provision in paragraphs 10.05 and 10.06, the aggregate amount of all loans to any member who is a natural person shall not exceed $70,000 or 5% of the total capital and deposits of the Credit Union, whichever is the lesser amount."
It was Ms. Reid's evidence that prior to this application for certification, she had given out some loans which were not in accordance with the provisions of the By-laws due to her un-familiarity with the exact wording of the By-laws. It was also her evidence that she has processed approximately 10 loan applications by employees during her three years of employment.
18Counsel for the respondent drew the Board's attention to Atomic Energy Employees (Deep River) Credit Union Limited, Board File No. 2337-80-R, decision dated May 4, 1981, unreported, in which the Board ruled that the loan officers employed by the credit union which was the respondent in that case, were employees in the bargaining unit. In rejecting the employer's contention that the loans officers should be excluded from the bargaining unit because they exercised managerial functions and because they were employed in a confidential capacity in matters relating to labour relations, the Board stated:
"3. The report of the labour relations officer does not bear out the contention of the respondent that the employees in question exercise managerial responsibilities. From the report it is quite clear it is only the manager of the respondent credit union which exercises managerial authority thus the loan officers are not responsible for discipline nor scheduling work or vacation or granting time off. Similarly all the hiring and firing has been done by the manager not by any of the loans officers. We are therefore of the view that on the basis of the report of the labour relations officer the loans officers do not exercise managerial functions.
- The respondent also takes the position that the loan officers are employed in a confidential capacity in matters relating to labour relations. The origin of this argument is twofold first, that in dealing with the loan applications the loan officer have access to the personal data of employees. However, it is clear on the report of the labour relations officer that with respect to employees in this bargaining unit any loan applications are dealt with by a manager of the union rather than the loan officers. The respondent also argues that by the provincial statute governing The Credit Unions and Caisses Populaires Act, S.O. (1976), (2d), Chapter 62, loan officers are officers of the credit union. Although it is true that that Act may impose certain obligations on the loan officers as officers of the credit union it does not place them in a position of being 'employed in a confidential capacity in matters relating to labour relations.' That being the case we can so see no grounds for excluding the loan officers under this criteria either."
Counsel for the respondent sought to distinguish that case from the present case on the ground that unlike the loans officers in Atomic Energy, Ms. Reid does deal with loans to employees. It was his position that her authority to grant loans to employees would place her in a position of conflict of interest as she might be called upon to decide whether loans should be granted to employees for the purpose of financing a strike. Counsel also submitted that the "confidential" information concerning employees and Directors applying for loans should result in her exclusion. Dealing with the last point first, the Board is of the view that the information in question, while it may be "confidential" in the sense that it would be improper for Ms. Reid to divulge it to third parties, is not within the purview of section l(3)(b) since it is not related to labour relations; the revelation of such information would not undermine the employer's industrial relations position vis-a-vis his employees (see the authorities cited earlier in this decision). With respect to the effect of Ms. Reid's authority in relation to employee loans, the Board is of the view that her authority to grant loans to Directors and employees of the respondent who are also members of the respondent does not deprive her of employee status under section l(3)(b). The respondent's loan policies are determined by the members through their power to enact, repeal and amend the By-laws of the respondent. Ms. Reid merely applies the loans policy set forth in the By-laws, which require "security" to be given for any loan in excess of $1,000, and further required "collateral" for any loan in excess of $10,000. The evi-dence indicates that Ms. Reid has only received about three employee loan applications per year. Moreover, it appears to the Board that any concern which management may have with respect to loans to employees could easily be alleviated by simply requiring Ms. Reid to obtain the approval of the Manager for any such loans.
19Counsel for the respondent further contended that the Loans Officer should be excluded because she exercised a function which, but for her appointment, would be a responsibility of the respondent's Board of Directors under section 48(1) of the Credit Unions and Caisses Pop ulaires Act. In essence, this argument suggests that the Loan Officer should be excluded because she "manages" at least some of the respondent's financial resources. Notwithstanding the able argument of counsel for the respondent, the Board is of the view that the Loan Officer does not exercise managerial functions within the meaning of section l(3)(b) of the Act. Ms. Reid does not hire, transfer, promote, discharge or discipline, nor does she make effective recommendations with respect thereto. She does not determine the respon-dent's loans policy but rather merely exercises her discretion within the limits specified in the respondent's By-laws. We are confirmed in our view by the decision of the Canada Labour Relations Board in Bank of Nova Scotia, Regina, Main Branch, supra, in which the Board in the somewhat analogous context of the main branch of a bank, held that a loan officer who had a "limit on any single loan of $15,000" and who was responsible for approximately 740 accounts with a total indebtedness of $4-l!2 million to his employer, did not exercise managerial functions. The essence of the Board's reasoning is contained in the following passage for that decision (at page 72-73):
"The employer seeks to have the concept of 'management function' interpreted very broadly. It seeks to have the expression treated as a term of art whose meaning is dependent upon that concept of management in schools of business or management theories, which are in themselves many and varied. It seeks this by the simple proposition that because a bank's business is to lend and a scotia plan loan officer makes lending decisions then a scotia plan loan officer performs a management function. It does not accept that this is equivalent to saying that if a fire department's business is to fight fires then fire fighters perform a management function; or if an airline's business is to fly passengers then pilots perform a management function; of if a radio business is to broadcast then disc jockeys or hot line operators perform a management function; or that stock brokers, interns, policemen, truck drivers, etc. perform a management function. The employer distinguishes each of these as merely a high level of mechanical or technical reponsibility or responsibility closely regulated by law. The scotia plan loan officer is said to be different because he assumes some risk for the employer and 'manages' a financial portfolio. We do not accept this distinction. The scotia plan loan officer operates within-in the bank's policy, his limit and many consumer and banking laws. Because he 'manages' money he no more manages than does a pilot of ajumbo aircraft who is entrusted with lives and a multi-million dollar asset, or a policeman who is entrusted with high social responsibility, or a truck driver carrying valuable or explosive freight, or a disc jockey entrusted with performing adequately to maintain or improve a radio station's ratings, or many other employees in society upon whom employers rely to carry out their business in a manner that will achieve the objective of a profit. As with others, a scotia plan loan officer is trained to perform a task and is given some discretion in its performance. This happens to relate directly to money matters, but this does not distinguish him from others who perform tasks which are the essence of an entrepreneur's business.
Discourteous or overly aggresive behaviour or poor judgment by many employees in society can have as serious an impact on a business as it can with a scotia plan loan officer and in many instances the financial consequences can be more serious. We do not accept the employer's concept of management functions as consonant with the meaning this phrase should have within Part V of the Code and find the scotia plan loan officer to be an employee and appropriate for inclusion in the unit as in earlier cases."
(See also The Royal Bank of Canada, Gibsons Branch, 26 di 509, at 539).
20Accordingly, having regard to the partial agreement of the parties with respect to the bargaining unit, and to the foregoing determination with respect to the disputed classifications, the Board finds that all office, clerical and technical employees of the respondent at Malton, Ontario, save and except Manager, persons above the rank of Manager, and Steno! Receptionist, constitute a unit of employees of the respondent appropriate for collective bargaining.
21The Board is satisfied on the basis of all the evidence before it that more than fifty-five per cent of the employees of the respondent in the bargaining unit at the time the application was made, were members of the applicant on June 18, 1981, the terminal date fixed for this application and the date which the Board determines, under section 103(2)(j) of the Labour Relations Act, to be the time for the purposes of ascertaining membership under section 7(1) of the said Act.
22A certificate will issue to the applicant.