[1986] OLRB Rep. May 651
1154-85-R London and District Service Workers' Union, Local 220, Applicant, v. Kitchener Waterloo Hospital, Respondent
BEFORE: R. 0. MacDowell, Vice-Chairman, and Board Members L M. Stamp and B. L. Armstrong.
DECISION OF THE BOARD; May 27, 1986
- This is an application under section 106(2) of the Labour Relations Act. A question has arisen between the parties concerning the status of Ms. S. Curwood, described as the "payroll supervisor". The employer asserts that Ms. Curwood's functions fall within the parameters of section 1 (3)(b) of the Labour Relations Act. The union asserts the contrary. Section 1 (3)(b) reads as follows:
1-(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.
If, in the opinion of the Board, Ms. Curwood does exercise "managerial functions" or is employed in a confidential capacity in matters relating to labour relations she must be excluded from the bargaining unit represented by the union.
In accordance with the Board's usual practice in these matters, the Board appointed an Officer to inquire into the duties and responsibilities of the disputed individual. Pursuant to that appointment, the Board Officer convened a meeting of the parties on the premises of the employer. At that meeting both parties were represented by counsel or agent, and were afforded a full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence which, they asserted, might bear upon the issues before the Board. At the completion of this examination the parties were asked if they had any further evidence or witnesses that they wished to call, and each party indicated that it did not. The evidence adduced was transcribed and reproduced, verbatim, in the Officer's report which was circulated to the parties for comment. Accompanying the report was a notice extending them the opportunity to make representations as to the accuracy of the report or the conclusions that, in their submission, the Board should reach in view of the contents of the report.
We do not think that it is necessary to reproduce here the details of the witnesses' testimony, nor refer to the many cases in which the Board has dealt with the application of section l(3)(b) of the Act (see generally, J. Sack, Q.C. and C.M. Mitchell, Ontario Labour Relations Board Law and Practice, 1985 (Butterworths) at pp. 79-103). It suffices to say that on the first branch of section 1(3)(b), what the Board is trying to assess is the degree and exercise of authority over other employees which would affect their economic position or job security, since the exercise of such authority, to any significant extent, would be incompatible with participation in the bargaining unit. The Board's approach to this part of section 1(3)(b) was elaborated in The Corporation of the City of Thunder Bay, [1981] OLRB Rep. Aug. 1121 in a long passage to which we might usefully refer:
Section l(3)(b) excludes from collective bargaining persons who in the opinion of the Board exercise managerial functions. The purpose of the section 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 employees in 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 1 (3)(b) ensures that neither the trade union, nor 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 CLRBR 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 counter-vailing 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 seeing that the work gets done and the terms of the collective agreement are adhered to. Their decisions can have important effects on the economic lives of employees, e.g., individuals who may be disciplined for "cause" or passed over for promotion on the grounds of their "ability". The employer does not want management's identification 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 a representative by their employees. However, the same result could happen quite innocently. A great many members of management are promoted from the ranks of employees. Those with the talents and seniority for that promotion are also the very people who will likely rise in union ranks as well. In the absence of legal controls, the leadership of a union could 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.
The Labour Relations Act does not contain a definition of the term "managerial function", nor are there any specified criteria to guide the Board in reaching its opinion. The task of developing such criteria has fallen to the Board itself, 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, the 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 incompatible with participation in trade union activities as an ordinary member of the bargaining unit. In the case of more senior managerial personnel whose decision-making may have a less direct or immediate impact on bargaining unit employees, the Board has focused on the degree of independent decision-making authority over important aspects of the employer's business. It is evident that persons making significant executive or business decisions should be considered a part of the "management team" even though they do not exercise the kind of direct authority over employees which is characteristic of a first line foreman.
The line between "employee" and "management" is often shaded, and while it is helpful to consider the principles articulated by the Board in previous cases, ultimately the determination must turn on the facts of the particular case. There is no litmus test which is universally applicable and dictates the results in every situation, and in assessing each case, the Board must have due regard to the nature of industry, the nature of the particular business, and individual employer's organizational scheme. There must, of course, be a rational relationship between the number of superiors and subordinates, consultation or "input" should not be confused with decision-making, and neither technical expertise nor the importance of an employee's function can be automatically equated with managerial status. On the other hand, there may be individuals whose nominal authority appears to be limited, and who have no formal managerial position or title, but who nevertheless make recommendations affecting the economic destiny of their fellow employees which are so frequently forthcoming, and consistently followed by superiors, that it can be said that, in fact, the effective decision is made by the challenged individual. It is this type of recommendation which the Board has characterized as an "effective recommendation" and the inclusion of these persons in the bargaining unit would raise the very kind of conflict of interest which section l(3)(b) was designed to avoid. Persons making "effective recommendations" of this kind are regarded as part of the "management team", and are excluded from the bargaining unit.
In each instance, the Board seeks to determine the nature and extent of the individual's authority as well as the extent to which that authority is actually exercised. It is not sufficient if an individual has only "paper powers" contained in a job description or a "managerial" job title, if managerial functions are not actually exercised. Even the performance of certain co-ordinating functions may not be determinative. Where numbers of people work at a common enterprise (especially in the white collar - service sector) many persons may be engaged in co-ordinating activities which are largely routine, carried out within a pre-established framework of rules and policies, and subject to real managerial authority which is actually exercised from above. In addition, persons who perform technical functions or exercise craft skills which have been acquired through years of training and experience, will necessarily have a considerable influence over unskilled employees or less experienced "journeymen" or technicians. These experienced persons will commonly supervise the work of those who are less experienced, and it is part of their normal job function to train and direct such persons and to instill good work habits. Often, it is only the most senior or skilled employees who will fully understand the technical requirements of the job and the tools and material required, 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. In such circumstances, it is inevitable that they will have a special place on the "team" and will have a role to play in co-ordinating and directing the work of other employees; but this does not mean that they exercise managerial functions in the sense contemplated by section l(3)(b) and must therefore be excluded from the ambit of collective bargaining - especially when most of their time is spent performing functions similar to those of other individuals in the bargaining unit and there is little or no evidence of the kind of conflict which section l(3)(b) is designed to avoid. The situation of persons who exercise some degree of control over others, but who also perform bargaining unit work was discussed by the Board in Falconbridge Nickel Mines Limited [1966] OLRB Rep. Sept. 379, as follows:
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 management line 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 and 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 much assistance in determining what a person's functions really are...
The cases cited above would seem to indicate that while a person may have minor supervisory functions or very limited confidential functions in matters relating to labour relations, if such functions are merely incidental to their main function and are of such a nature that they cannot be said to materially effect the employment relationship of the respondent's employees, such persons should not be excluded from collective bargaining by reason of section l(3)(b) of the Act. Unless a person who regularly performs work similar to persons in a bargaining unit 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.
In other words, in determining an individual's status, one cannot look at a portion of his duties in isolation. If the functions of an allegedly "managerial" character occupy only a minor part of his time, it is unlikely that he will be excluded from the ambit of collective bargaining unless those functions involve a decisive impact on his fellow employees. (For example, a unilateral decision to fire an employee would be highly significant, even if the exercise of such power is infrequent; while incidental supervisory responsibilities do not raise the kind of conflict of interest underlying section l(3)(b)).
It should always be remembered, however, that The Labour Relations Act is intended to extend collective bargaining rights to employees, and it is incumbent upon any party seeking to exclude employees from the scheme of the Act, to come forward with affirmative evidence that they exercise managerial functions. (See: Ajax and Pickering General Hospital, [1970] OLRB Rep. Feb. 1283 at paragraph 11; and Bakery and Confectionery Workers international Union v. Salmi, 1966 CanLII 84 (SCC), 56 DLR (2d) 193.) Furthermore, (and in addition to the usual rule that "he who asserts must prove"), 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.
We can summarize these general approaches then, as follows:
(1) A party seeking to exclude an individual from the ambit of a remedial statute designed to extend benefits to employees, must be prepared to demonstrate that the disputed individual is not an employee.
(4) Modern forms of corporate organization, improved means of communication, and the development of sophisticated institutionalized personnel policies, have all significantly diminished the role (and perhaps need for) the "traditional foreman" so that he is no longer the king-pin he once was. This process has several effects - all of which are evident if one surveys the dozens of reported and unreported cases recently decided under section 1 (3)(b). First, co-ordinating or supervisory functions which in the past were often associated with "real" managerial authority, may not be sufficient standing alone, to exclude one from collective bargaining. Second, it is much easier, in practice, to maintain an existing managerial exclusion, than to justify the creation of a new level of management. Finally, again from a practical point of view, if the new purported "manager" has only a small number of subordinates, his managerial status is unlikely to be affirmed unless, as between them, there is very clear evidence, that the duties exercised are of such character that they clearly demonstrate the mischief to which section l(3)(b) is directed. The fewer the number of subordinates, the stronger the need for demonstrative evidence of managerial status - especially if the next level of management is in close proximity and seems to be closely involved in the ultimate decision making.
(5) The acceptance of the "effective recommendation test" mentioned above, means that it is not necessary to show that the disputed individual performs his role independently of higher levels of management. But it is necessary to show that his recommendations are really effective, so that, in practice, and to a substantial degree, he becomes the effective decision maker in respect of matters impacting upon his fellow employees. From an evidentiary standpoint, it will be useful and often necessary to provide concrete examples of this kind of decision, and it will also frequently be necessary to hear from the person who actually made the decisions in order to show that the recommendations of the disputed individual were indeed decisive. In too many cases, in recent years, this evidence has either not been available at all, or when examined closely, amounts to no more than a "participatory decision-making style". Whatever value the latter may have in improving employee performance or ensuring adherence to corporate goals, it does not necessarily mean that managerial authority has percolated downwards.
- The second branch of section l(3)(b) has a similar collective bargaining purpose: to exclude from a bargaining unit persons who have access to confidential material relating to labour relations, so that the employer can know that its internal strategies and communications are known and handled exclusively by persons of undivided loyalty (see Town of Gananoque, [1981] OLRB Rep. July 1010). Access to information which may be "confidential" is not, by itself, sufficient to exclude an employee from the application of the Act since what is important is not the confidentiality of the information, but rather its labour relations content and potential collective bargaining use. For example, the secretary to the industrial relations manager may have no independent managerial authority, but may still be privy to the employer's collective bargaining strategy or other sensitive labour relations information. At its most prosaic level, even a clerk or stenographer who takes minutes at a management meeting to plan the employer's collective bargaining posture should not be faced with a potential conflict of loyalty because of his/her membership in the bargaining unit. However, as the Board indicated in York University, [1975] OLRB Rep. Dec. 945:
... the Board must be satisfied of "a regular, material involvement in matters relating to labour relations" to justify a finding excluding a person from operation of the Act. (See, The Falconbridge Nickel Mines Ltd. case, [1969] OLRB Rep. September 379). Mere access to confidential information that may pertain to labour relations, standing alone, is no reason for excluding employees from the bargaining unit. (The Metropolitan Separate School Board case, [1974] OLRB Rep. Apr. 220). Nor is mere knowledge of matters that may be deemed "confidential" in the sense that the employer would not approve of the disclosure of such information by his employees sufficient to justify a positive finding under section l(3)(b). (See The Comtech Group Limited case, [1974] OLRB Rep. May 291.) The important test is whether there is a consistent exposure to confidential information on matters relating to labour relations so as to constitute such exposure an integral part of the employee's service to the employer's enterprise. (See, The Toledo Scale Division of Reliance Electric Limited case, [1974] OLRB Rep. June 406).
- 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 exclusion from the bargaining unit. As the Board observed twenty years ago in Falconbridge Nickel Mines Ltd., [1966] OLRB Rep. Sept. 379:
A person to be excluded under this provision must be employed "in a confidential capacity", i.e., such capacity must be part of his regular duties. An accidental or isolated involvement in some aspect of labour relations is not sufficient, in our view, to exclude a person from collective bargaining. However, a regular material involvement in matters relating to labour relations which are confidential because their disclosure would adversely affect the interest of the employer would exclude a person pursuant to the provisions of section l(3)(b) of the Act. As can be readily be seen, the degree of the involvement and the extent of the confidential nature of the matters dealt with become important factors to be considered in determining exclusions under these provisions.
The application of this enunciated "test" to the facts in Frito-Lay Canada Ltd., [1978] OLRB Rep. Sept. 831, prompted this comment from the Board.
While the evidence indicates that the payroll clerks have regular access to a certain amount of confidential information, the Board is not convinced that this type of information is integral to the conduct of collective bargaining by the respondent. These payroll clerks merely collect and collate individual payroll information relating to individual employees. Access to such information does not make them privy to the respondent's industrial relations strategy, and the Board must conclude that these employees are not employed in a confidential capacity in matters relating to labour relations.
- The decision of the Canada Labour Relations Board in Transair Ltd., 74 CLLC ¶16,111, which was considered by the Supreme Court of Canada in CLRB v. Transair Limited and Canadian Association of Industrial Mechanical and A/lied Workers, Local No. 3, 76 CLLC ¶14,024, elaborates at some length upon the kind of information which, if disclosed, would be prejudicial to the employer's collective bargaining interests. Although some allowance must be made for the different statutory and business context in which that decision was made, we are satisfied that the CLRB's description provides a useful summary of the kind of collective bargaining information which, mutatis mutandis, must be regarded as "sensitive" in the collective bargaining sense contemplated by section 1(3) of our Act. At pages 911-912, the Board sets out a number of relevant considerations:
(b) .... in matters relating to industrial relations' means having access to information relating to such matters as contract negotiations; for example, the persons that sit together to establish, on behalf of management, the range of salary increase that the bargaining team will be mandated to operate within at forthcoming negotiations; or to such matters as the proceedings before a Board like this one: for example, the persons that sit together and plan the strategy which the employer will use as well as the tactics used in the pursuance of its legitimate interest before a Labour Board; or to such matters as the disposition of grievances: for example the persons who plan or who know what compromise will be offered to a grievor.
(c) The access to this information must not be incidental or accidental. It must be part of an employee's regular duties. If the main function of the employee is not related to matters relating to industrial relations, that employee cannot be excluded.
Therein lies a serious matter of judgment and fairness on the part of employers. If management chooses to openly hold discussions in matters related to industrial relations where they could be easily overheard or if management keeps documents of the same nature, in a place where an unauthorized person may inspect them at will, this is no cause for excluding these persons. As an example, if management decides to give keys to files in the personnel department containing data on forthcoming negotiations to all of its clerical employees, this would not make all of them confidential employees in matters relating to industrial relations.
(d) Disclosure of the information to which these persons have access must have an adverse effect on the interests of the employer. The interests of the employer concerned here however, must be interests in industrial relations. In other words, the disclosure of a written reprimand deposited in the personal record of an employee by somebody in a clerical function to union representatives does not have an adverse effect on the interests of said employer where the collective agreement stipulates that concomitant with such deposit in the file, a copy must be forwarded to the employee concerned and/or to the union. On the other hand, disclosure by an employee of information he has access to concerning secret manufacturing process to competitors might well be a breach of confidence and loyalty on the part of that employee but has nothing to do with industrial relations.
(e) On the other hand, one must attach great importance to the absolute necessity for an employer to be capable of operating efficiently and therefore to have the essential number of employees administering industrial relations to assure efficient management in this connection. Employees who are solicited for and accept functions with a company which make them an essential part of that autonomous team which has to administer labour relations, must realize that they will be by the same token deprived from ever aspiring to the acquisition of bargaining rights.
Moreover, a distinction was drawn by the Supreme Court of Canada between matters relating to "industrial relations" and matters relating merely to "personnel information". Spence J. put it this way:
The position of the personnel records clerk, however, requires further examination. A perusal of the reasons for judgment delivered by Chief Justice Jackett in the Federal Court of Appeal shows that, in my view, his interpretation of the words of s. 118(p)(ii) of the Canada Labour Code, R.S.C. 1970, cL-1, i.e., "a person performs management functions or is employed in a confidential capacity in matters relating to industrial relations", accorded with that of the Canada Labour Relations Board, i.e., that the person so to be excluded was one who had confidential knowledge of the conferences of management in reference to industrial relations. The Chief Justice of the Federal Court of Appeal was of the view that the evidence as to the job description of the personnel records clerk brought her within that class. However, the evidence of Mr. L.J. Sinnott for the respondent shows that, in fact, that part of her duties consisted of attending meetings between labour unions and managerial officers taking minutes of those meetings and distributing them to those who had attended. There could be nothing confidential in that duty as, of course, both management and unions were present at the conferences and the minutes simply stated what had been said and done in the presence of them both. Of course, the duties of this clerk as to personnel records were highly confidential but they were not confidential in reference to industrial relations, only as to personnel relations. Therefore, in my view, there was evidence upon which the Canada Labour Relations Board could properly include the personnel records clerk in the appropriate unit and the appeal, considering it as I do as an appeal of the union, should be allowed to the extent that the inclusion of this clerk within the union was appropriate.
The difficulty in the present case is not in establishing the appropriate indicia, which, if present, would establish that the disputed individual should be excluded from the bargaining unit either on a "managerial" basis or "confidential/labour relations" basis. The problem here is to unravel the testimony and determine whether Ms. Curwood ' s duties actually bring her within the above-mentioned parameters. Here there is a problem (unfortunately, not unique to this case): Ms. Curwood has been in her present job for only six months and may not as yet have had the opportunity to actually exercise the full range of her duties. It is not to be expected that hiring, firing, promotions, etc. will occur every day, nor in the absence of the passage of a sufficient period of time for there to have been some employee grievances or periodic rounds of collective bargaining, is it easy to say whether someone would necessarily be regularly and materially involved on behalf of the employer in these labour relations activities. The Board has never shrunk from its obligation to render the opinion required of it under section 1 (3)(b) of the Act, but in circumstances where the individual is occupying a new job the Board has frequently warned the parties their request for its opinion may be premature and may not be determinative. An opinion based upon incomplete information or experience may not provide a final resolution of the parties' concerns and may simply generate another reference under section 106(2) when there is a sufficient body of experience to make a more accurate assessment. That is why the Board, through its officers frequently advises parties to wait before seeking the opinion of the Board under sections 106(2) and 1(3)(b) of the Act. Moreover, section 106(2) of the Act recognizes that business organizations and managerial structures can change over time. Jobs evolve. Functions which attract the concern to which section 1 (3)(b) is directed may, in practice, be added or deleted from an employee's regular duties even if there is no formal change in his job description. In the Board's experience, a written job description can sometimes be a quite misleading indication as to what the employee actually does from day to day, but until there is a body of experience with which to compare it, it may be all there is - particularly for new jobs or new incumbents.
With these reservations, we turn, briefly, to the facts.
According to Ken West, the assistant director of finance, the payroll supervisor position was created because of a change in his own responsibilities. As he was withdrawn from direct supervision of the activities of the payroll department, he needed someone else to take his place. He said that he needed someone to deal with day-to-day supervision, scheduling, performance reviews, recommendations regarding hiring, internal monitoring procedures, and so on. These functions to be performed by the payroll supervisor are reflected in her job description which includes the following purported duties:
Instruct, direct and schedule time and workload of payroll staff; ensure continuous coverage in payroll department.
Hire, discipline and evaluate performance of payroll staff and making recommendations where standards are not met.
Assist in salary budget preparation and analysis during the year.
These general statements do reflect the kind of authority that a foreman or supervisor in a commercial enterprise would typically have with respect to his subordinates, but the evidence here is that Ms. Curwood works in conjunction with only one full-time and two part-time employees and has not actually exercised such authority. Obviously, there is no immutable ratio of "managers" to "employees", but, as the Board indicated in The Corporation of the City of Thunder Bay, supra, the fewer the number of subordinates, the stronger the need for demonstrative evidence of managerial status. Having regard to the collective bargaining purpose of section l(3)(b) it would take very clear evidence or a very unusual business organization before the Board would be persuaded that "managerial" authority had really been diluted to the extent that every two or three employees have a "manager". It may be that small work groups will have a senior employee, "lead hand" or "team leader" who performs certain coordinating and minor supervisory functions, but the Board has never considered such role to be "managerial" in the sense contemplated by section l(3)(b) - especially when the next or real level of management is quite close.
Ms. Curwood has not hired, fired, disciplined, demoted, or evaluated anybody. She testified that she had seen the form of the employee evaluation but had never done one, and there is no evidence to indicate whether such evaluation would have any adverse or positive effect on an employee's career advancement, wages or prospects, nor who would effectively make that decision. There is no evidence, for example, that Ms. Curwood has ever made an unfavourable evaluation or that such evaluation has ever rebounded to the detriment of the employee being evaluated. We are reminded here of the Board's comments at item 5 of the summary in The Corporation of the City of Thunder Bay, supra.
Disciplining employees is clearly a "management function", and there is no doubt that some of the documentary evidence suggests that Ms. Curwood has this authority. (See the portion of the job description set out above.) The problem is that there is no evidence that Ms. Curwood has ever exercised such authority, either directly or by "effective recommendation". The extent of "discipline" that she has imposed has never extended beyond a comment that the employee should try to improve some aspect of her performance. In fact, at one point in her testimony Ms. Curwood said that she had never reprimanded any employee, although later she said she had warned an employee that she (the employee) should not be late for work. She certainly has never exercised any of the disciplinary authority typically exercised by "foremen" in an industrial setting or "supervisors" in a white-collar setting -the kind of disciplinary penalty which could give rise to a grievance if the employees were covered by a collective agreement.
Ms. Curwood's authority to grant casual time off has never exceeded a few hours for a doctor's appointment (or similar engagement) and she has had no involvement in grievances, collective bargaining matters or negotiations. She has no decisive authority over the scheduling of vacations, the taking of days off, or the training of employees. While she said that 90-95 per cent of her time was spent "supervising", the one full-time and two part-time employees in her group, that submission is clearly impossible to reconcile with the other (non-managerial) responsibilities which she described. Obviously, she is intimately involved in performing the same kind of work that the other employees are doing.
Ms. Curwood may have more knowledge, experience or seniority than the other employees. She may have a better understanding of the employer's requirements. She may help co-ordinate the activities of the other three employees with whom she works. But none of those activities establish "managerial responsibilities" within the meaning of section 1 (3)(b) of the Act - although they are no doubt important ones and even in a collective bargaining framework, warrant a salary which reflects these added responsibilities.
On the basis of the totality of the evidence before us, we cannot conclude, and it is not our opinion, that Ms. Curwood exercises managerial functions within the meaning of section l(3))(b) of the Labour Relations Act. The evidence, in our view, is simply not there. Having regard to the purpose of section 1 (3)(b), Ms. Curwood does not exercise the kind of decisive authority over the lives of the three individuals with whom she works which would warrant exclusion from the Act or the bargaining unit.
The second branch of section 1 (3)(b) is much more difficult, and the evidence points in the other direction. That evidence, we should note, is uncontradicted and, perhaps, cannot be contradicted until Ms. Curwood has been in her job for a longer period of time.
According to Mr. West, Ms. Curwood is expected to be involved in, and has been involved in, discussions concerning upcoming wage increases to Hospital staff. She does not make the decisions about what such increases should be, but she is involved because any wage or benefit changes, in a large organization, require planning to ensure that they can be properly implemented. She would be involved in such wage changes in order to assist the Hospital to determine the appropriate implementation dates, and how the rates or percentage increases are administered. In this respect, the evidence suggests that Ms. Curwood is not involved solely in the mechanics - processing the wage or benefit changes decided upon by others - but in advising those decision-makers about the implementation and practical consequences of their decisions. According to Mr. West, she would also be involved in the budget-making process, to apply proposed rates of pay to department hours to arrive at the total wage bill.
This evidence is a little "thin", for the reasons set out above, but obviously foreknowledge of anticipated or proposed wage increases or salary projections is the kind of information which is or could be reasonably connected to the collective bargaining process. Ms. Curwood may not make collective bargaining decisions (and probably would not), but to the extent that she performs an advisory role or support function, she should properly be regarded as employed in a confidential capacity in matters relating to labour relations. We recognize that on this second branch of the l(3)(b) test, the Hospital's evidence is somewhat speculative because, in only six months, Ms. Curwood may not have had the opportunity to carry out the full range of her responsibilities, but as we have already pointed out that evidence is uncontradicted. It meets the "mischief' concern underlying the second branch of section 1(3)(b).
For the foregoing reasons, and on the basis of the evidence currently before us concerning Ms. Curwood's duties and responsibilities, we are of the opinion that she must be excluded from the bargaining unit having regard to the provisions of section 1(3)(b) of the Labour Relations Act. This opinion is, of course, subject to the concerns and qualifications mentioned above.