Royal Ontario Museum Curatorial Association v. The Royal Ontario Museum, 1985 CanLII 911

[1985] OLRB Rep. February 325

0039-83-R Royal Ontario Museum Curatorial Association, Applicant, v. The Royal Ontario Museum, Respondent

BEFORE: Owen V. Gray, Vice-Chairman, and Board Members W. G. Donnelly and B. L. Armstrong.

DECISION OF THE BOARD; February 21, 1985

1. This decision completes the Board's adjudication of issues arising of out a certification application filed April 8, 1983. The applicant sought certification as the bargaining agent for all curatorial staff and professional librarians employed by the respondent in Metropolitan Toronto, with certain exceptions. When the application was first heard April 29, 1983, the applicant and respondent agreed that the co-ordinator of collections management, Associate Director — Curatorial and persons above the rank of Associate Director — Curatorial would be excluded from the bargaining unit, presumably on the common understanding that those persons exercise managerial functions within the meaning of section 1(3)(b) of the Labour Relations Act. With those exclusions, the unit sought by the applicant contained approximately seventy persons as of the application date. The respondent took the position that approximately 30 employees — nineteen "heads of departments", seven "supervisors" and other curatorial staff who were members of the respondent's curatorial tenure and promotions committees —should also be excluded from the bargaining unit because they allegedly exercise managerial functions within the meaning of section l(3)(b) of the Act. The applicant disagreed.

2. In a decision dated May 2, 1983, a differently constituted panel of the Board determined that the applicant's right to certification with respect to the appropriate bargaining unit could not be affected by the outcome of the parties' dispute, and granted the applicant interim certification with respect to curatorial staff and professional librarians, subject to the agreed exclusions and to exclusion of the disputed categories pending resolution of that dispute. The Board appointed a Labour Relations Officer to inquire into and report to the Board on the duties and responsibilities of the supervisors, heads of departments, and other persons who were members of the respondent's curatorial tenure and promotions committee.

3. The Labour Relations Officer met with the parties on twelve occasions between June 14 and October 13, 1983. In the course of those meetings, the parties came to agreement that the disputed "supervisors" did not exercise managerial functions within the meaning of section l(3)(b) and would therefore be included in the bargaining unit. The parties also agreed that the library "head" did exercise managerial functions within the meaning of section l(3)(b), and was therefore excluded from the bargaining unit. Rather than examine all eighteen heads of departments as to their duties and responsibilities, the parties agreed that the testimony of four department heads should be taken and considered representative of all curatorial depart­ment heads in dispute. These four department heads were examined under oath by the officer and by counsel to the parties, as were T. Cuyler Young and the respondent's Associate Director — Curatorial, Barbara Stephens, who were called as witnesses by the applicant and respondent, respectively. The examinations and cross-examinations of all six witnesses were transcribed; the transcriptions occupy 552 pages of the Officer's Report. 144 Exhibits were introduced in the course of the witnesses' testimony. When the transcription of the testimony was completed, copies of the Officer's Report dated January 31, 1984, were provided to counsel for each party, and both counsel thereafter advised the Board that they wished to make oral representations with respect to the conclusions which the Board should draw from the Officer's Report. Those representations were made to us over the course of three days of hearing in the months of March and May, 1984. Counsel for the respondent supplemented her oral representations with written submissions filed at the beginning of the hearing, and both counsel filed supplementary written submissions by mail after the oral hearings were complete.

4. Both counsel examined the evidence in considerable detail; each marshalled the evidence so as to best support her client's position on the issue before us. Each counsel carefully reviewed the extensive jurisprudence the Board has developed with respect to issues arising under section l(3)(b), setting forth the principles for which she contended each case stood, the policies to which she submitted we should defer in choosing between competing principles, and the route by which all of these should come together in the form of a finding in her client's favour. We have carefully considered all of the evidence and argument in arriving at our decision, our recital here of the background to and reasons for that decision; however, will be selective and relatively brief in comparison to the submissions of the parties.

5. Section 1(3)(b) of the Labour Relations Act provides:

(3) 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.

The Board's approach to section 1(3)(b) is explained in the following passages from Oakwood Park Lodge, [1982] OLRB Rep. Jan. 84:

7. The purpose of section 1(3)(b) 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 managerial personnel, and their responsibilities as trade union members or members of the bargaining unit. Collective bargaining, by its very nature, requires an arm's length relationship between the "two sides" whose interests and objectives are often divergent. Section l(3)(b) ensures that neither the trade union, nor the employer and its management team, need be concerned that its members will have "divided loyalties". This purpose has been succinctly stated by the British Columbia Labour Relations Board in Corporation of the District of Burnaby, [1974] 1 Can. LRBR 1 at page 3:

"The explanation for this management exemption 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 that 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 seeking 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 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. One way this happens is if members of management use their authority in the work place to interfere with the choice of 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 all 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 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."

8……..the Labour Relations Act itself does not contain a definition of the term "managerial functions", nor are there any specified criteria to guide the Board in forming its opinion. The task of developing such criteria has fallen to the Board, and in recognition of the fact that the exercise of managerial functions can assume different forms in different work settings, the Board has, over the years, evolved various general approaches to assist it in its inquiry. In the case of so-called "first line" managerial employees, an important question is the extent to which they make decisions which affect the economic lives of their fellow employees thereby raising a potential conflict of interest with them. Thus, the right to hire, fire, promote, demote, grant wage increases or discipline employees are all manifestations of managerial authority, and the exercise of such authority is clearly incompatible with participation in trade union activities as an ordinary member of the bargaining unit..

9……..the Board has extended the ambit of section 1 (3)(b) beyond the actual or ultimate decision-maker. to those who make what the Board has called "effective recommendations" which materially affect the conditions of employment of those supervised. [See: Mcintyre Porcupine Mines Ltd., [19751 OLRB Rep. April 261; and Inglis Ltd., [1976] OLRB Rep. June 270; and for a contrary view of the effect of similar provisions in the Canada Labour Code, see; British Columbia Telephone 76 CLLC ¶ 16,015 at page 4671. In framing the test in this way, the Board has not ignored the real distinction between a person recommend­ing or influencing a decision, and the one ultimately making it. Supplying information or “input" is not the same as deciding, and a person who does only the former has a much weaker claim when it is suggested that he is exercising "managerial functions On the other hand, there will also be situations where individuals make serious recommendations about the employment situation or security of fellow employees. If these recommendations, on the evidence, are usually acted upon to the possible detriment of those employees, then it can be said that the person making the recommendation is, if not the actual decision-maker, then one decisively influencing that decision and thereby exercising a significant influence over the livelihood or economic destiny of his co-workers. Such influence carries with it the potential for conflict to which section 1(3)(b) is directed. It remains a question of evidence whether an individual's authority extends this far.

10. As collective bargaining extends to technical and professional employees (engineers, for example, were specifically included in the Act only in 1971), the Board had to deal with increasingly complex job hierarchies and reporting structures. In a professional context, the members of the bargaining unit are likely to be highly trained and responsible persons who are largely self-motivated, capable of exercising independent judgment and requiring little external direction in the performance of their regular duties. Such direction as is necessary will often be generated internally through group discussion, evaluation by peers, or "collegial" modes of decision-making; and one should not expect the managerial structure appropriate for professionals to be the same as that for manual workers. The technical or professional employee will have a special relationship with management, with fellow professionals, and with the less skilled employees at lower levels on the job hierarchy.

11. Persons who exercise skills which have been acquired through years of training or experience will necessarily have considerable influence over those who are less trained or experienced. The most highly trained or skilled employees will routinely supervise the work of others, and it is part of their normal job functions to train and direct such persons, and to instill good work habits. Frequently, it is only the most senior or experienced employees who will fully understand the technical requirements of the job and, accordingly, it is they who will allocate work between themselves and the other employees in order to accomplish the task in a safe and efficient manner. It is part of their job to ensure that appropriate techniques are being applied and that the work is being done properly. Their expertise and technical judgement are an integral part of the group effort. In such circumstances, it is inevitable that they will have a special place on the "team" and will have a role to play in coordinating and directing the work of other employees — but this does not mean that they exercise managerial functions in the sense contemplated by section I (3)(b) and must therefore be excluded from the ambit of collective bargaining. To adopt so rigid a view would deny thousands of skilled or professional employees the right to engage in collective bargaining, simply because they typically work in semi-autonomous work groups which include a variety of individuals with lower levels of skill, education or training (in the case of '~master craftsmen", these would include "journey-men", "apprentices", and assorted ~'helpers". and in the case of "professionals", a variety of "technologists", ~'technicians", assistants and aides). To hold that persons with higher levels of education or training (whether acquired on the job or otherwise) exercise "managerial functions" with respect to lesser skilled or unskilled individuals at lower levels of the job hierarchy would be tantamount to saying that the Act has no application to much of highly trained and educated work force which is characteristic of the emerging high technology industries. This is not to deny that professional or technical employees may also exercise "managerial functions" within the meaning of section 1 (3)(b). It is simply that the focus should be upon those functions which have a direct and provable impact (positive or negative) upon the terms and conditions of employment of the alleged subordinate employees. It is that kind of function which raises the "collective bargaining" conflict to which section 1 (3)(b) is addressed and it is this collective bargaining purpose which must be kept in mind when the Board is exercising the broad authority granted to it under section 1 (3)(b), and is forming its “opinion" in particular cases.

An assessment of the applicability of section l(3)(b) requires more than an examination of isolated job functions, as the Board observed in Falconbridge Nickel Mines Limited, [1966] OLRB Rep. Sept. 379:

29. Most of the persons in dispute have more than one function and generally speaking it is the weight or emphasis attached to the different functions which must determine on which side of the managerial line that the persons fall. Senior or skilled employees often have more responsibilities than other rank and file employees and they exercise certain control and direction over the other employees because of their greater experience and skill. It is the Board's difficult task to determine whether the additional responsibilities are managerial functions within the meaning of section 1(3)(b) of the Act or are merely incidental to the prime purpose for which the employee is engaged (i.e. to perform work properly performed by persons within the bargaining unit). If the majority of a person's time is occupied by work similar to that performed by employees within the bargaining unit and such person has no effective control or authority over the employees in the bargaining unit but is merely a conduit carrying orders or instructions from management to the employees, the person cannot be said to exercise managerial functions within the meaning of section 1(3)(b) of the Act. On the other hand, if a person is primarily engaged in supervision and direction of other employees and has effective control over their employment relationship, even though the person occasionally performs work similar to the rank of file employees when an emergency arises or to relieve an employee during occasional periods of absence or even to perform a particularly important job requiring special skill and experience, such occasional work in no way derogates from his prime function as a person employed in a managerial capacity. When assessing a person's duties and responsibilities the Board does not look at any one function in isolation but views all functions in their entirety. As stated in the McDougall Case above referred to, titles alone are not of much assistance in determining what a person's functions really are.

After referring to the foregoing paragraph from the Falconbridge case, the Board in McIntyre Porcupine Mines Limited, [1975] OLRB Rep. Apr. 261 had this to say:

38. It is noteworthy that this test, so not to be overly exclusionary, requires that a person be primarily employed in the direction and supervision of employees and, as well, possess effective control or authority over those employees. Hence to the extent a person only incidentally supervises employees while working beside them (i.e., the lead hand, the working foreman — see Fruehauf Trailer Company of Canada Limited, [19741 OLRB Rep. April 254) or to the extent that a supervisor is a mere advisor, conduit, or co-ordinator without effective control over employees (for example, see The Lakehead Board of Education [19701 OLRB Rep. February 1,331 and CUPE and Cochrane Nursing Home Limited [19721 OLRB Rep. June 618) section i(3)(b) has no application. The conduit or co-ordinative function of supervision is most prevalent in the white collar or quasi-professional industries like those of health and social services. In these industries it can be said that through extensive formal education management objectives have been built into employees and supervisors perform co-ordinating and resource functions with little effective control over authority over individual employees; (see Toronto East General and Orthopoedic Hospital. inc., Board File No. 568 l-74-R; The Children's Aid Society of Huron Count)', (19711 OLRB Rep. October 632; The Burlington-Nelson Hospital, [197 Ii OLRB Rep. January 2; The Corporation of the City of Hamilton, [19701 OLRB Rep. February 1,283; and Peterborough Civic Hospital, [19731 OLRB Rep. March 154). Just as important, these latter cases graphically reflect the Board's willingness to consider the intrinsic differences between industries.

39. But the “effective control" test has not been an easy concept to apply. When can it be said that one person exercises effective control over another? One who can discipline, discharge, transfer, promote, or demote another employee surely has such effective control. And with a similar certainty one who only incidentally supervises, instructs, reports, etc. does not. But between these extremes there is a vast penumbral area. In this shadowland a person may exercise only one or two managerial type functions or make recommendations that other decision-makers consider. Thus it is in this area that the Board has most often said it will look at the '~totality" of the evidence in making its determination.

As the Board observed in Toronto East General Orthopaedic Hospital, [1974] OLRB Rep. Oct. 671:

Drawing the line is a particular problem where individuals are assigned more than one function, to varying degrees, or where actual decision-makers rely very very heavily on the opinion of experienced and highly trained personnel. The Board then has to be very cautious in balancing the aforementioned interests of employers against those of employ­ees. Otherwise fragments of an enterprise's managerial function could be distributed over a great number of individuals within the enterprise or decision-makers might rely on information pooled from a great swath of lower line personnel, thereby denying legislative coverage to a large sector of the work force. Hence the Board has ruled that a person must be “primarily engaged in supervision and direction of other employees . . . [with] effective control over their employment relation-ship", [sic] (see Ealconbridge Nickel Mines Ltd. [1966] OLRB Rep. Sept. 370. When assessing a person's duties and responsibil­ities the Board does not look at any one function in isolation but views all functions in their entirety: (Falconbridge Nickel Mines Ltd., [1966] OLRB M.R. 379). Moreover, titles alone are not of much assistance in determining what a person's functions really are; (see United Steelworkers, Local 2890 v. R. McDougall Co. Ltd., [1943] OWN 743). Similarly, the Board has ruled that unless a person has independent discretionary powers rather than merely incidental reporting functions which are subject to the discretion and authority of higher persons in management, there is no reason to exclude such a person from collective bargaining; (Falconbridge Nickel Mines Ltd., supra) and an incidental or isolated involvement in some aspects of labour relations is not sufficient to exclude a person from collective bargaining; (Falconbridge Nickel Mines Ltd., supra).

(emphasis added)

See also The Corporation of the City of Thunder Bay, [1981] OLRB Rep. Aug. 1121 at paragraphs 2-7, Ottawa General Hospital, [1984] OLRB Rep. Sept. 1199 at paragraphs 8-13 and the decisions cited in each for similar surveys of the general principles on which questions arising under section l(3)(b) must be determined.

6. Each form of enterprise or institution has special organizational characteristics which must be taken into account in assessing at what point in the organization section l(3)(b) will come into play to protect employer interests to the exclusion of employee rights to engage in collective bargaining. Each case turns on its facts.

7. The Royal Ontario Museum ("the Museum") was legally and physically part of the University of Toronto until 1968, when the respondent was created as a separate legal entity by provincial statute and the land, buildings and contents of the institutions known as the Royal Ontario Museum and the R.S. McLaughlin Planetarium were vested in the respondent. That provincial statute, the Royal Ontario Museum Act, (now R.S.O. 1980 c. 458), provides in section 3 that the objects of the museum are:

(a) the collection and exhibition of objects, documents and books of any kind to illustrate and make known to the public the natural history of Ontario. Canada and the world;

(b) the collection and exhibition of objects, documents and books of any kind to illustrate and make known to the public the history of man in all the ages;

(c) the operation of a planetarium;

(d) the promotion of education, teaching, research and publication in any or all fields related to the objects of the Museum referred to in clauses (a), (b) and (c).

The legislation provides for a Board of Trustees which is to control and manage the museum. By section 5 of the Act, the Board has the power to appoint a Director, who is the chief executive officer of the museum, an Associate Director or Associate Directors, curators, officers and staff and to fix their respective duties, salaries and qualifications. The Board is to appoint, promote, transfer or remove employees at and below the rank of Associate Director on the recommenda­tion of the Director, who by section 6 has the power to make such recommendations. While only the power to suspend is delegated to the Director, it may safely be presumed that the recommendations of the Director are "effective" in the sense intended by the Board's jurispru­dence. It is common ground that the Director exercises managerial functions within the meaning of section l(3)(b).

8. The operations of the museum are organized into three "Streams". The eighteen curatorial departments, together with the planetarium, library and three curatorial support departments, all fall within Stream One under the supervision of the Associate Director — Curatorial. Approximately 200 persons were employed in Stream One departments on the application date. The Planetarium,Library and 3 curatorial support departments (Conserva­tion, Preparators, and Registration) had 20, 11, 14, II and 10 employees, respectively, on that date. The eighteen curatorial departments had 136 employees, including the 1 8 department heads or "Curators-In-Charge" whose status is in dispute. Stream Two is under the supervision of the Assistant Director — Education and Communication, and is divided into eight depart­ments: Development and Membership, Education, Exhibit Design, Extension, Members Volun­teer Committee, Museum Advisory Services, Programs and Public Relations, and Publications. There were approximately 95 full-time employees in Stream Two as of the application date. Stream Three is under the supervision of the Assistant Director — Administration and Facilities. It is divided into four departments: accounting, personnel, book and gift shop and physical plant. There were approximately 1 30 employees in Stream Three on the application date.

9. The museum's security guards have been represented in collective bargaining by the Service Employees Union, Local 204, since 1978. In 1980, the Ontario Public Service Employ­ees Union ("OPSEU") applied for certification with respect to a unit consisting of all employees of the museum except the security guards and those the applicant considered "managerial". At the time, the professional curators were members of a "Joint Curatorial Council". A number of them protested inclusion in a unit with the other employees of the museum. In the result, OPSEU and the museum agreed, and on the basis of that agreement the Board determined, that a separate vote of the members of the Joint Curatorial Council be taken to determine their desires with respect to the appropriate bargaining unit. OPSEU lost that vote, but won the vote conducted among the balance of the employees affected and was certified as the bargaining agent for those "non-curatorial" employees. Department heads who were not members of the Joint Curatorial Council (all but the Library Head and 18 Curators-In-Charge) were excluded from the OPSEU bargaining unit by agreement of OPSEU and the Museum.

10. As we noted earlier, the eighteen curatorial departments in the museum had a total of 1 36 employees on the application date. Sixty-nine of these were professional curators excluded from the OPSEU bargaining unit. The other 67 were technicians, machinists, artists, secretaries, clerk typists and others fell within the OPSEU bargaining unit. The head of each curatorial department is a professional curator whose formal title is "Curator-In-Charge". Including the Curator-in-Charge, professional curators and support staff, the 18 curatorial departments ranged in size from four persons to sixteen, with a median of seven. The ratio of professional curators to support staff ranged from five curators and one secretary in the European department to four curators and six support staff in both the Mammalogy and Ornithology departments. The number of curators in a department, inclusive of the Curator-In-Charge, ranged from a maximum of seven to a minimum of two; four was the median.

11. Curators are academic experts with respect to the subject matter of and objects in the collections their department maintains. They consider themselves academics; many are cross-appointed to faculties of universities, particularly the University of Toronto of which the museum was once a part. The ranking of curators parallels the ranking of professors: there are "full" curators, "associate" curators and "assistant" curators. There are also lesser ranks: "curatorial assistants" and "curatorial fellows". With the assistance of their support staff, curators care for and place objects on display in the museum. They also give public lectures, do research, publish scholarly papers, act as referees for scholarly publications and, through their cross-appointments, engage in teaching.

12. Curators-In-Charge are, for the most part, "full" curators. They are placed "In-Charge" by the Associate Director — Curatorial, who makes that appointment in consultation with others, including the other curators in the department in question. The Curators-In-Charge who were examined had not seen any written description of that job. The salary and other employment benefits of a curator do not change when he or she is designated Curator-In-Charge, and Curators-In-Charge spend 80 to 90% of their time doing the sort of curatorial work done by, those curators of equivalent professional rank who have not been designated "In-Charge". The work of a curator also involves administrative or paper work. Appointment as Curator-In-Charge or department head adds to the incumbent's administrative work load. The witnesses' estimates of the time spent by department heads on work associated uniquely with that position ranged from 3% to 10% of their total working time. The appointment is not a permanent one, although the length of an incumbent's term seems flexible. There is some sense that these positions are rotated amongst those qualified for them.

13. One of the duties of "In-Charge" curators not shared by other curators is attendance at meetings called by the Associate Director — Curatorial about once per month. The weight of the evidence is that these meetings involve the exchange of information, not formulation of policy or employment relations decision-making. The Associate Director advises the depart­ment heads on matters currently before what was referred to throughout as "senior manage­ment" — that is, the Director, the Associate Director and the two Assistant Directors. In turn, the department heads convey opinions and concerns on administrative matters to and through the Associate Director.

14. A good deal of the testimony and argument focused on performance evaluation and other forms which the respondent's personnel department had from time to time asked depart­ment heads to complete with respect to both the curatorial and the non-curatorial employees in their departments. The fact that these were invited and, for the most part, completed in some way, was urged on us as evidence of the department heads' managerial role. However, the weight of the evidence is that, as professional curators, department heads are not prepared to engage in an evaluation of the "performance" of their professional colleagues on anything other than a professional and collegial basis. Recommendations for promotion and tenure are dealt with by the promotion and tenure committees and not individually by the heads of the departments in which the candidates work. Curatorial membership on those committees is not limited to department heads. Those committees appear to function in much the same way as the analogous committees in university institutions. Some of the department heads examined were also adverse to engaging in the evaluation process with respect to their non-curatorial co-workers otherwise than on a collegial basis. The evidence dwelt also on department heads' involvement in "granting" vacation time, leaves, time off, overtime and so on. The evidence leaves us with the impression that these matters are regarded primarily as problems of co-ordination, in which curatorial and support staff all recognize there is a job to be done within a limited budget and that each participant in the department can fairly expect that each of these personal matters would and should be arranged so as not to create unnecessary conflict with attainment of group goals.

15. There was some evidence of the department heads' involvement in the hiring of support staff. It would appear that candidates for a secretarial or clerical positions, for example, are pre-screened by the personnel department, which would then leave to the head of the department in which the vacancy is to be filled the right to accept or reject a candidate the personnel department found satisfactory. Again, the tendency in such circumstances seems to be for the department head to consult the other curators in his department before making such a decision.

Support staff do not fall within the bargaining unit represented by the applicant; they are represented by OPSEU, and their terms and conditions of employment are governed by a collective agreement. The respondent put some emphasis on the fact that that collective agreement contemplates department heads acting as representatives of management at step 2 of the grievance procedure. The representative of management at step I is "the supervisor", a category about which we heard little other than that the respondent had withdrawn a challenge that certain persons so described were managerial and had agreed they were "employees" within the applicant's bargaining unit. At step 3 the Director or his delegate acts on behalf of the Museum. The department heads seemed to have little knowledge of or involvement in the labour relations matters which arise under the OPSEU collective agreement. They had not been consulted with respect to negotiations. They had attended a meeting of some sort to discuss the then current collective agreement, but there is little or no evidence of a department head's responding to a grievance pursuant to those provisions or of the relative roles of the department head and the personnel department in formulating such responses. Indeed, there seem to be no recent evidence of a department heads having been involved in any discipline of support staff more serious than a written warning.

16. We do not propose to review all of the evidence in detail or provide a written resolution of all such conflicts as these were in it. As might be expected, the four department heads examined did not all have precisely the same impression of their duties and responsibilities; they also did not all have precisely the same commitment to collegiality, particularly in its extension to participation by support staff in departmental decision making. They did not all have the same experience in matters relevant to employer relations within the Museum, particularly in the long historical time frame over which some of the testimony extended, but all did have experience with respect to the nature of the position at the relevant time: the time the application was made. We are obliged to create for ourselves from this varied testimony a composite picture of the position of the department head at that time, and of its relation to members of the bargaining unit, members of the OPSEU bargaining unit and members of senior management conceded by all to be excluded from any bargaining unit by operation of section l(3)(b).

17. A significant portion of the argument concerned the contrasts between the decision-making process in universities and decision-making process in industrial concerns, or what respondent's counsel termed the "collegial and bureaucratic models". Each counsel urged us to apply one model, and reject the other. They disagreed on the appropriate choice. We do not see our role as limited to a choice between models, but as requiring an assessment of the facts before us and the potential for application to them of section l(3)(b). Models developed in Board jurisprudence may be and often are helpful in discharging that task, but labour relations does not always neatly divide itself into fixed, pre-established categories. We appre­hend from the evidence that the organization of the museum is in some respects different from the organization of the universities considered in the Board's jurisprudence. We appreciate that a decision-maker may consult his colleagues and subordinates without being found to have adopted the formal committee approach described in those university cases. Of course, that observation cuts two ways. If we are to question whether what a department head does to involve his colleagues amounts to mere consultation rather than true collegial decision-making, then we must also question whether senior management has involved the department heads in anything other than a consultative process.

18. If we were obliged to select a model which best fits the position of the department head in the Royal Ontario Museum, we would select the model represented by the university cases. Despite the differences in the two organizations, the role of the department head at the museum and the context in which it is exercised are substantially similar to the department head role and university context described in those cases, and are without clear parallel in the archetypical industrial institution. As an example, we might ask (rhetorically) what representa­tive industrial institution has a "tenure" committee, or even a "promotions" committee, of the sort functioning at the Museum. If we were obliged to analyse the role of the department head in terms more familiar to industrial and commercial concerns, then the analogy which would best fit would be with the lead hand in an industrial unit or the working foreman in a craft or construction unit; both positions which are normally included in the units referred to. The department head is certainly not the ultimate decision-maker in matters of labour relations affecting either his colleagues within the applicant's bargaining unit or the support staff in the OPSEU bargaining unit who work in the same department. As to those matters of greatest importance — hiring, tenure, promotion and dismissal — affecting other members of the curatorial bargaining unit, the department heads do not exercise sufficient independent discre­tion to justify the conclusion that they are deemed not to be employees for the purposes of the Labour Relations Act because they exercise managerial functions within the meaning of section l(3)(b) of that Act. While they may have a somewhat greater impact on the employment of support staff in the OPSEU unit, a good deal of that impact stems from their professional position, rather than any particular managerial role they may play. The limited role contem­plated, and rarely exercised, in the grievance procedure under the OPSEU collective agreement is, while one factor to be considered, insufficient to make the department heads "managerial" if they clearly are not otherwise.

19. One of the focuses of the respondent's argument was that department heads were expected to act in a managerial capacity, and that the respondent's ability to manage both the curatorial and support staff in the eighteen departments in question would be seriously undermined if we were to conclude that the department heads fell within the curatorial bargaining unit. Section l(3)(b) requires us to examine what an employee actually does, rather than what an employer says it expects or hopes he or she will do. The evidence with respect to evaluation forms persuaded us that department heads have, for the most part, resisted attempts to confer managerial functions on them and, further, that senior management has tolerated that resistance. The orientation of the department head is much more to members of his department, and particularly his curatorial colleagues, than it is to the interests and concerns of senior management, to the extent that those may differ in matters relating to labour relations.

20. The respondent submitted that some change in its organization might be required as a result of a decision that department heads should be included in the applicant's bargaining unit, and that it would be inappropriate for the Board to make any decision which has such an effect. The result averted to, presumably, would be the creation of a position at some intermediate level between that of the Associate Director-Curatorial and the department head. There is some evidence that such positions did exist for two or three years in the period 1976 to 1978. In any event, we adopt on this subject the following observations of the Board in University of Windsor, supra, at paragraph 8:

8.. . . The inconveniences that may ensue as a consequence of a certificate granting a trade union bargaining rights on behalf of its employees may require organizational adjustments to the employer's decision making structure. In short, collective bargaining necessarily anticipates a re-assessment of the employer's processes in order to accommodate the interposition of the trade union. The particular difficulties raised in this case is in resolving whether within the respondent's organizational set-up the first line of managerial supervi­sion ought to be drawn at the level of the department head. And in dealing with that question the Board is of the view that we are not bound by pre-existing conceptions of how individuals within the university hierarchy may construe the inherent conflicts that may arise out of the decision making powers anticipated by the respondent's incorporating statute. Needless to say, however, the exercise of managerial functions presupposes a measure of independent discretion that would be rendered ineffectual if brought in conflict with the manager's loyalties to his colleagues in the appropriate bargaining unit.

The respondent also argued that Curators-In-Charge should be excluded from the applicant's bargaining unit because non-curatorial department heads are excluded from the OPSEU bargaining unit. While we know that their departments are larger, on average, and in some cases considerably larger than the curatorial departments, we know nothing about the duties and responsibilities of those department heads. Furthermore, it is doubtful that such knowledge would have been of much assistance. The department heads were excluded by agreement of OPSEU and the Museum for reasons which are not before us. That agreement is neither binding on the applicant nor probative on the issue before us. At best, it reflects an opinion of the parties to it. We are obliged to form our own opinion on the basis of the evidence before us.

21. In the result, we are not persuaded that department heads fall within the reach of section l(3)(b), and so conclude that they should not be excluded from the bargaining unit. Having regard to that finding and to the agreements of the parties, we direct that a final certificate be granted to the applicant with respect to the following bargaining unit:

all curatorial staff and professional librarians employed by the respondent in the Municipality of Metropolitan Toronto, save and except the library head, the co-ordinator of collections management, the associate director-curatorial, persons above the rank of associate director-curatorial and per­sons covered by subsisting collective agreements.

For purposes of clarity, the Board notes that, pursuant to an agreement in writing between the parties made on the 29th day of April, 1983, the bargaining unit described does not include persons who are hired for a fixed term or a project of not more than two years' duration. In addition, we note that "persons covered by subsisting collective agreements" refers to persons falling within bargaining units represented on the application date by the Ontario Public Service Employees Union and Local 204 of the Service Employees International Union. We also note that employees otherwise in the unit are not excluded by reason of membership on the promotion or tenure committees. Although the argument for exclusion of such persons was not withdrawn, counsel for the respondent did not press it in argument and we find the respondent has not established that such persons must be excluded from collective bargaining by operation of clause l(3)(b) of the Act.

ADDENDUM OF BOARD MEMBER W. G. DONNELLY;

Employees to whom managerial responsibilities have been delegated are duty bound, in accepting such posts, to meet the obligations they have assumed. It has been strongly suggested that those involved here did not. Nonetheless, I would have disassociated myself from the majority decision had there been evidence of consistent efforts having been made by senior management to have more junior managers act as such. As there appears to have been a degree of tolerance shown towards the junior managers' failure to act as managers by their more senior supervisors, I have reluctantly concurred with my colleagues' decision.