0526-80-M Ontario Public Service Employees Union, Applicant, v. Niagara College of Applied Arts and Technology, Respondent.
BEFORE: M. G. Mitchnick, Vice-Chairman, and Board Members E. J. Brady and B. L. Armstrong.
APPEARANCES: William A. Lokay, Tom Brooks and Dina D'Amico for the applicant; C. F. Murray, Glenn R. Pevere and Jennie Balasak for the respondent.
DECISION OF THE BOARD; July 10, 1981
1This is an application pursuant to section 82 of The Colleges Collective Bargaining Act, 1975, in which the parties were unable to come to terms on whether the incumbents of some 17 positions are "employees" within the meaning of the Act. An officer was appointed to inquire into the duties and responsibilities of the various individuals, resulting in a Report of two volumes which the Board has now reviewed. There were also three days of hearings before the Board for the purpose of receiving the oral submissions of the parties. During the course of those hearings the applicant trade union withdrew, from its position, based on its assessment of the evidence, with respect to John Muto, the Planner, Special Projects Office, and Marlene Smith, the Payroll Officer. There remain then 15 positions to be determined by this decision.
2At the outset of its oral representations, the respondent outlined its position that because the current collective agreement specifies exclusions in Appendix I for 5 of the positions in dispute, the applicant is required to show material changes since the date the collective agreement was entered into. This, the respondent submitted, was analagous to the Board's policy in dealing with applications under section 95(2) of The Labour Relations Act. The respondent conceded that it at no time earlier in the proceedings set out in writing the constraints it was now seeking to impose on the applicant, but indicated that it did make clear at the commencement of the Officer’s examinations that it would be relying on Appendix I of the collective agreement. The respondent took the position that in any event, where positions have been accepted as "supervisory" over a long period of time (as here), an onus rests on an applicant to show what has changed. At the very least, the respondent submitted, this history provides the Board with additional evidence, being a long-held consensus of the parties, which it can weigh in deciding whether an individual truly is a "foreman” or ''supervisor".
3The applicant noted in response that it had received no notice from the respondent that the inquiry should be limited to "changes" only, and had it done so, it would have been prepared to appear before the Board to contest the matter. The applicant points out that the appointment from the Board was for a full examination, and that it accordingly had no reason to direct its mind to the question of changes. The applicant states that it does not wish to rely on changes in the present application, but rather takes the position that it is now entitled to demonstrate that the persons in dispute have been wrongly excluded all along. On the question of Appendix I, the applicant submits that the Board has a duty to determine whether persons in dispute are employees within the meaning of the Act, and that any subsequent issue as to whether persons are in any event excluded by the language of the collective agreement is properly a matter for arbitration.
4The Board accepts the foregoing submissions of the applicant. The Board notes, in particular, that the appropriate time for seeking to limit the present inquiry to "changes" was at the time of the appointment of the officer. Any dispute over that could then have been determined by the Board (see, for example, Westmount Hospital, [1980] OLRB Rep. Oct. 1072), and the Officer's appointment defined accordingly. The Board notes in addition that its policy, as set out in Westmount, is not limited to specific exclusions set out in the collective agreement, but more broadly to whatever may have been the status quo at the time of entering into the collective agreement. As noted in Westmount, supra, the parties are taken, in the absence of an express reservation to the contrary, to have accepted the status quo for the life of the agreement. The respondent's objection, in other words, would apply in this case to all of the classifications in dispute, and is not dependent upon Appendix I of the agreement. Beyond this, the ultimate effect of Appendix I of the collective agreement is properly a matter for private arbitration (see Nelson Crushed Stone, [1980] OLRB Rep. Oct. 1500). On the other hand, the Board does find substance in the second branch of the respondent's argument, being the evidentiary value of the manner in which the classifications have historically been treated by the parties. As the Board noted in Sudbury and District Hospital, Board File No. 2005-79-M, March 11, 1981, (unreported) at paragraphs:
... a party seeking to alter a status quo which has been settled and embodied in a series of collective agreements, must be able to provide a firm evidentiary foundation for its new position.
5A further submission of the respondent concerned the effect to be given the fact that certain of the persons in dispute have been designated by the applicant as "foremen" or "supervisors". The respondent points to the specific words of Schedule 2 of the Act, and argues that the Board ought not to go behind these titles to assess the status of such persons, unless the Board finds the ratio of supervisors to subordinates to be patently irrational. Schedule 2 provides:
The support staff bargaining unit includes the employees of all boards of governors of colleges of applied arts and technology employed in positions 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) person 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,
(emphasis added)
Notwithstanding the specific reference to "foremen" and "supervisors", the Board is not able to accept the position put forward by the respondent. To do so would render largely illusory the protection provided to the trade union under the Act to have these kinds of disputes resolved, if necessary, by a third party, and would be contrary to the Board's long-standing policy of looking behind mere job titles in determining issues of this kind. The Board finds that the insertion of the word "other in subsection (v) of Schedule 2 is fatal to the respondent's submission, indicating that the persons in subsections (i), (ii), (iii) and (iv) must as well be "employed in a managerial or confidential capacity" (as defined in section l(l)(l) of the Act). This is the same conclusion which the Board came to in St. Clair College, [1980] OLRB Rep. July 1067, at page 1089. Indeed, it is difficult to see how any other conclusion can be reached, in view of the language of section 82 itself, which provides:
If, in the course of bargaining for an agreement or during the period of operation of an agreement, a question arises as to whether a person is an employee, including a question as to whether a person employed as a chairman, department head, director, foreman or supervisor is employed in a managerial or confidential capacity pursuant to clause 1 of section 1 and the schedules, the question may be referred to the Ontario Labour Relations Board and its decision thereon is final and binding for all purposes.
6As the respondent points out, this application in large measure challenges the exclusion of what have historically been treated as the "first-line supervisors" in this relationship. As Sudbury and District Hospital, supra, notes, however, where the evidence is equivocal, it is not irrelevant to take into account the status which both parties have accorded to the position over a long period of time, and this factor may be determinative where the evidence otherwise before the Board does not clearly point in one direction or the other. In particular, the treatment of a position by the parties over time as either managerial or the contrary often results in that position developing more and more of the "trappings" normally identified with the status being accorded. Mary Patterson, for example, the Financial Aid Officer, has only one other person under her direction, but has always been agreed to fall on the managerial side of the line, and in consequence has historically been included by management in meetings to discuss its strategy and preparations in the event of a strike, as well as the position of management in negotiations generally. Tony Adams, the Chief Engineer, Media Department, is similarly engaged to a very limited extent of his time in the supervision of others, but has, over time, developed a role and acted in a manner consistent with his managerial status, as exemplified by Exhibit #8 before the Board, a letter of warning issued on his own initiative to an employee in his department. The letter sets out in detail a number of specific complaints which Mr. Adams had with the employee's work, and states:
During the next month I wish to see marked improvement in the following areas:
There follows then a lengthy list of items for attention, and the letter closes with the caution that that there must be drastic improvement in the next three months "or I will have no alternative but to recommend disciplinary action". The letter is signed by Mr. Adams and copied to the Personnel Department. Irrespective of the number of subordinates involved, this kind of monitoring and initiating responsibility where discipline is concerned is not compatible with inclusion in the bargaining unit, particularly where, as here, the diffusion of such responsibility has a clear historical dimension (compare, e.g., Simmons Limited, [1980] OLRB Rep. May 787, paragraph 3). It is now well established that a power of "effective recommendation" is sufficient to establish managerial status where the impact on employees is direct (see, e.g., McIntyre Porcupine, [1975] OLRB Rep. April 261; Inglis Limited, [1976] OLRB Rep. June 270, at paragraph 9).
7Another aspect of this historical dimension is that these "first-line supervisors", and in particular Patterson, Adams and Pat Delavalle, have, on the evidence, been treated as just that in the grievance procedure, representing the first step under the collective agreement. Under this Act, this alone is deemed sufficient ground for exclusion. A "person employed in a managerial or confidential capacity" includes, according to section l(l)(l), a person who:
(iii) is required by reason of his duties or responsibilities to deal formally on behalf of the employer with a grievance of an employee.
The use of the word "formally" supports the interpretation that the exclusion is granted to those individuals whom the parties have established, by the administration of their grievance procedure under the collective agreement, as the member of management designated at one of the stages to receive and reply to grievances. The emphasis does not appear to be upon the location of actual decision-making authority in regard to that reply. This perhaps reflects a recognition that formal replies at any stage of the grievance procedure may be centrally controlled because of their potentially precedent-making effect on the interpretation of the collective agreement. While not all departments have experienced grievances, the history of some of the individuals at this level in formally representing management in the grievance procedure tends to substantiate the evidence of other members of this supervisory group that if a grievance did arise, they would be the one required to deal with it as the first step of management. The decision in this case, however, need not rest solely on section l(l)(iii) of the Act concerning the handling of grievances.
8Viewing the evidence as a whole, the Board finds that all of these first-line supervisors have historically been granted and have exercised to a greater or lesser degree (as required), the responsibility and authority to monitor the performance of others from a disciplinary (as opposed to purely "technical") point of view, to control through their recommendations the retention of employees, to grant casual time off and authorize overtime, and to make the determination of whom is to be hired into their department. In terms of the frequency with which this authority is exercised, regard should be had to the comments cited by the Board in St. Clair College, [1980] OLRB Rep. July 1067, at paragraph 14:
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.
9Having regard to all of the evidence, the Board finds the following persons to be properly excluded based on its normal criteria for "managerial" status, pursuant to the Board's discretion under subsection (vi) of section 1(1), and section (v) of Schedule 2, of this Act:
George Rushton Supervisor of Reprographics Mary Cunningham Buyer, Bookstore Supervisor Pat Delavalle Supervisor of Shipping & Receiving Ed Thompson Building Maintenance Supervisor Ed Krikorian Building Operations Supervisor Al Costello Plant Operating Engineer John Coles Building Superintendent Mary Petruzella Admissions Officer Mary E. Patterson Student Awards Officer Helen Sladeschuk Records and High School Liaison Officer Tony Adams Chief Engineer, Media Department
10The remainder of the persons in dispute perform no supervisory function at all over other employees, and their exclusion is defended on other grounds. Laura Vanclieff is the Programmer Analyst. She is responsible for developing and maintaining programs, as required, for the respondent's computer systems. Her duties and responsibilities do not appear to differ materially from the Programmer Analyst considered by the Board and found to be an "employee" in Cambrian College, [1980] OLRB Rep. Jan. 8. Like that individual, she has the potential for access to various sorts of confidential information, but it cannot be said that the nature of her responsibilities requires her to have a ..... regular, material involvement in matters relating to labour relations", as in Falconbridge Nickel Mines, [1966] OLRB Rep. Sept. 379. While both she and the Systems Analyst, John Marshall, have frequent discussions with the Manager of the Department, Tom Honey, these discussions, according to Ms. Vanclieff, are essentially "problem-solving" in nature, from a technical point of view (Report: page 135). It cannot be said from the evidence that these discussions make Ms. Vanclieff or Mr. Marshall either necessarily privy to whatever confidential information Mr. Honey may have, or place them in the position of an "intimate policy sounding board" with "substantial input into and influence on decisions of the employer" (cf. St. Lawrence College, Board File No. 1657-77-M, July 11, 1978, (unreported) at paragraph 10). The role of Mr. Marshall, as the Senior Systems Analyst, is to provide input and guidance to management in the selection and improvement of the systems they use to handle and store information, and Mr. Marshall is of course not restricted to the use of computers in this regard. Mr. Marshall fairly points out that his recommendations on a particular system may involve a reduction in the number of employees required, and that indeed that kind of efficiency is a common objective in choosing a system. To date, however, he has been engaged almost exclusively in documenting the existing procedures in use at the College, and it is impossible at this stage to find that Mr. Marshall's recommendations will have a substantial (i.e. "effective") impact on actual decision-making, rather than being simply one source of technical information to be weighed by the decision makers. The Board finds none of the exclusions in the Act to apply to Mr. Marshall or Ms. Vanclieff, and declares them to be "employees" within the meaning of Schedule 2 of the Act.
11The final persons in dispute are Sharon O'Neil and Judy Elliott, the Payroll Assistant and Payroll Clerk respectively. Their function is to assist the Payroll Officer, Mrs. Smith, in administering the College's payroll. For this purpose, they have access to personnel records as required, but access to the full record is clearly not necessary, and it cannot be said that they have a "regular and material involvement" in such matters of a confidential nature with respect to employee relations. The evidence establishes that Mrs. Smith and the other members of the payroll department are relied upon by the Director of Financial and Administrative Services, Gray La Rose, as his method of performing the calculations necessary to provide budgetary input, or to assess the cost impact of possible staff reductions, and the respondent relies on this fact to distinguish the present payroll group from those included in bargaining units elsewhere. It would appear, however, that such involvement by the payroll staff is neither "regular” nor "material" to their primary duties and responsibilities. The lack of uniformity in their responses as to how much of the budget, for example, they actually see appears to be a reflection of the fact that much of the information is of no interest or consequence to them as far as their own responsibilities are concerned. They are not, in addition, sufficiently privy to the external processes to which the projections relate (be it budgets or staff reduction) to allow them to assess with any clarity the weight to be given one set of projections over another (although it is easy for them to calculate, as one of them did, what their new salary rate would be if a particular projection were to be implemented). If any of the three individuals in the department would have that kind of overview, one would expect it to be the supervisor, Mrs. Smith, because of her direct reporting relationship to Mr. La Rose and her participation in management meetings. Yet when the question was put to Mrs. Smith point-blank, whether she would have any knowledge of what the respective positions of the employer and the union are during negotiation, she responded: "Not any more knowledge than is general knowledge around the College". This aspect of the payroll department's work which concerns the respondent appears, in addition, to be reasonably isolated, as opposed to their weekly routine, and the Board must be circumspect in denying collective bargaining on this basis. The requirement for a "regular and material" involvement in matters of confidentiality is an attempt to balance the employer's legitimate need to insulate itself from exposure of, or a conflict in relation to, sensitive information on the one hand, against the danger of too broad an exclusion, through unregimented access to such information, on the other. The Board does not dictate the form which an employer's organization should take, but the mere dissemination of "confidential" information on an occasional and unnecessarily broad basis does not result in an eradication of the bargaining unit.
12It is important to note that Schedule 2 of this Act contains a specific exclusion for confidentiality in relation to certain budgets. Subsection (iv) reads:
The support staff bargaining unit includes the employees of all boards...
and nursery staff but does not include,
(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.
(emphasis added)
Persons employed in clerical, stenographic or secretarial positions have always formed a part of the Board's consideration of the "confidential" exclusion in general, however, and there is nothing in the subsection which suggests to the Board, for the reasons stated above, that the exposure need not be "regular and material" to justify an exclusion. In the present case the exposure is relatively isolated, and particularly with the agreed-upon exclusion of Mrs. Smith, it appears to the Board that the need from time to time from payroll for information or projections which the respondent itself considers unusually sensitive can continue to be met through Mrs. Smith, with minimal dislocation to the respondent's existing practice.
- There is, finally, no evidence to establish that the members of the payroll department, when given notice of terminations in advance of the effective date in order that the separation papers can be prepared, are given that information ahead of the union or the employee concerned. The Board finds that the Payroll Assistant, Sharon O'Neil, and the Payroll Clerk, Judy Elliott, do not fall within any of the exclusions under the Act, and are ''employees" falling in the support staff bargaining unit.