J. M. Schneider Inc., Link Services Inc. v. The Schneider-Link Office Employees' Association, 1987 CanLII 3037

[1987] OLRB Rep. March 381

1866-84-M J. M. Schneider Inc., Link Services Inc., Applicant v. The Schneider-Link Office Employees' Association, Respondent

BEFORE: R. O. MacDowell, Vice-Chair, and Board Members J. A. Ronson and S. O'Flynn.

APPEARANCES: Wallace Kenny for the applicant employer; Ross Wells for the respondent trade union.

DECISION OF R. O. MacDOWELL, VICE-CHAIR, AND BOARD MEMBER S. O'FLYNN;

March 2, 1987

I

1. This is an application under section 106(2) of the Labour Relations Act. A question has arisen between the parties about the "employment status" of some eleven employees whom the employer asserts fall within the ambit of section 1(3)(b) of the Act. The employer claims that A. Williston, M. Holtz, J. Gross (Peterson), J. Tritschel, J. Fowler, M. Anton, E. Valenta, and J. Lang, both exercise "managerial functions" and are employed in a confidential capacity in matters relating to labour relations. The employer claims that A. Gould, A. Perron, and P. Parker are employed in a confidential capacity in matters relating to labour relations. In each case, the employer contends that these individuals must be excluded from the collective bargaining process. The union replies that a review of their duties and responsibilities should lead to the conclusion that section 1(3)(b) has no application. 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.

2. Section 1(3)(b) has been in the Act in its present form since 1957 when the emphasized words were added in order to clarify the Board's jurisdiction following the decision of the Supreme Court in Re Canadian General Electric Company Limited and Ontario Labour Relations Board [1956] O.W.N. 439, 56 CLLC ¶15,271 (reversed by the Ontario Court of Appeal at [1957] O.W.N. 277, 57 CLLC ¶15,318). If, in the opinion of the Board, the disputed individuals (or any of them) exercise "managerial functions" or are employed in a confidential capacity in matters relating to labour relations, they are not entitled to associate for collective bargaining purposes or engage in collective bargaining under the Act, and they are denied any rights, privileges or benefits pre­scribed in the collective agreement between the applicant and the respondent.

3. 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 individuals. Pursuant to that appointment, the Board Officer convened a number of meetings of the parties on the premises of the employer. At those meetings both parties were represented by counsel 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 the parties 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 its contents. Those representations were received at a Board hearing scheduled for that purpose.

II

4. 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 1(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:

5. Section 1(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.

3. 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.

4. 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 1(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.

5. 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 1(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 1(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 l(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 1(3)(b)).

6. 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.

7. 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 1(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.

4. The second branch of section 1(3)(b) has a similar collective bargaining purpose: to exclude from a bargaining unit persons whose job involves 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" in a general sense is not, by itself, sufficient to exclude an employee from the application of the Act. 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. 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 Falcon-bridge 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 1(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).

5. The handling of collective bargaining information must be at the core of the disputed individual's job functions. S/he must be employed in that capacity and for that purpose. 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 1(3)(b) of the Act. As can 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.

6. 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 Allied 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-i, 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.

7. The difficulty in the present case is not in stating the appropriate indicia which, if pres­ent, would suggest that someone 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 the duties of the disputed individuals actually bring them within those parameters. Here we encounter a problem (unfortunately, not unique in this case): at the time of the Officer's inquiry, the collective bargaining relationship with the office unit was still relatively new, so that the employer's organizational structure may still be adapting to the requirements of formal collective bargaining. The "white collar"/office unit was certified in late 1983, a first agree­ment was concluded in July 1984, and this application was made in October 1984. The plant unit, though, has been in existance for more than sixteen years, so, in that time one would expect at least some evidence of the "mischief' to which section 1(3)(b) is directed. To the extent that the employer's case turns on involvement in the collective bargaining of plant workers, one would expect concrete instances of such involvement - unless the disputed individual had been in his/her position for only about a short period of time. In addition, in view of the underlying purpose of the Act, an employer has some onus to organize its affairs so that its employees are not occasionally placed in such position of potential conflict of interest if that result can be readily avoided. Distrib­uting labour relations functions, piece-meal, over a large number of individuals will not necessarily deprive them of their prima facie right to engage in collective bargaining. On the contrary, such dilution of responsibility may make it harder for the Board to find that any of them should be excluded. This is not to say that this Board has any right to dictate an employer's managerial struc­ture or business organization; however, where "managerial" or "confidential labour relations" functions are not clearly assigned to, or grouped in, particular positions or persons, it may be diffi­cult for the Board to conclude that the requirements of section 1(3)(b) have been satisfied - bear­ing in mind that this involves both a qualitative and quantitative assessment, and that, ultimately, the onus rests upon the party seeking exclusion to establish the basis for it.

8. The Board recognizes of course that business organizations and managerial structures can change over time. The employee configuration established on certification is not immutable, and the fact that the disputed persons may have been put in the unit at that time is not necessarily determinative of their status today. Jobs evolve. Functions which attract the concern to which sec­tion 1(3)(b) is directed may, in practice, be added to, or deleted from, an employee's regular duties even if there is no formal change in his job description, and this in turn may warrant an application under section 106(2). We merely reiterate that since "managerial" authority or involve­ment in labour relations are matters of degree, it is only concrete experience which will definitively indicate where the appropriate line should be drawn; and if the alleged "manager" has only three or four subordinates the Board will carefully scrutinize the situation for evidence of independent decision making authority of the kind which establishes the labour relations concerns underlying section 1(3)(b). In the absence of such evidence, the Board may not be inclined to rule in favour of additional exclusions - especially when a new application can be made if the situation changes, and the mischief envisaged by section 1(3)(b) actually materializes.

9. With these reservations, we turn, briefly, to the duties of the disputed individuals.

10. We should note at the outset that, with the exception of the nurses, all of the persons in question are engaged in what might be loosely described as "personnel functions". However, this does not mean that they are automatically prohibited from engaging in collective bargaining (see London Board of Education [1968] OLRB Rep. Aug. 447). As the Board noted in such cases as York University, Town of Gananoque, Falconbridge Nickel Mines, and Frito-lay Canada Ltd. supra, their exclusion depends upon an assessment of their regular job functions, bearing in mind the prima facie right to engage in collective bargaining, and the "mischief' which section 1(3)(b) was designed to avoid. It will be convenient to deal with the disputed individuals one by one.

11. Ann Williston - Benefits Clerk

The employer claims that Ms. Williston should be excluded because she both exercises managerial functions and is employed in a confidential capacity with regard to labour relations matters. The evidence does not support the former proposition. Ms. Williston does not supervise anyone and has neither authority nor occasion to hire, dismiss, or discipline employees, or to recommend or grant wage increases, time off or overtime. She does not have any budgetary or purchasing author­ity and is not involved in salary review. She prepares no financial reports (aside from benefits cost­ing) and has no significant budgeting role.

12. The core of Ms. Williston's duties involves maintaining benefits records and processing insurance claims. She communicates claims information to the insurer and recommends either pay­ment or further documentation. In this sense only can she be said to "authorize" payment. She has no real power of decision. She is supervised directly by the employee benefits administrator and the manager of compensation, both of whom are excluded from the bargaining unit. In addition to her regular work, she may receive assignments from them. The actual content of such assignments was not spelled out in the evidence.

13. As Benefits Clerk, Ms. Williston has access to all personnel records including discipline and termination information, and has knowledge of salaries, benefits and pension plan contribu­tions. However, this is not particularly significant from a labour relations point of view, since the company's pension/benefit plans are already known to the union and the employees, who will also be aware of these disciplinary records. None of these items, including knowledge of managerial sal­aries is particularly significant for labour relations purposes. The information is at best peripheral to the collective bargaining process in which Ms. Williston is not, herself, directly involved.

14. More relevant is what might be described as Ms. Williston's "support role". She has prepared information, based on her records, about absenteeism and insurance claims - in particular where fault or fraud has been alleged. These matters could be the basis of a grievance and she has, in fact, attended grievance meetings to provide information for management. She has offered her opinion to management concerning fraudulent claims and recommended a course of action although she has no effective power of decision in this regard. Still, it would appear that she has been drawn into the management's decision making process because, she said, she would be aware of any disciplinary decisions taken before such decisions were communicated to the employee, and she would also be aware of, and assist, any investigation of allegedly fraudulent employee claims. Finally, she indicated that in the last round of bargaining (the only round of bargaining upon which we have direct evidence) she was asked by her supervisor to do certain costings of proposed changes in the benefit package. That exercise was undertaken on a confidential basis because bar­gaining was ongoing, (although Ms. Williston did not know whether or not the particular proposals considered made it to the bargaining table, and she did not play a direct role in collective bargain­ing nor was she directly privy to management's negotiating strategy).

15. While the matter is not free from doubt because of the limited time-frame under consid­eration and the limited number of instances mentioned in Ms. Williston's evidence, we think that we can take administrative notice of the fact that benefit administration is a frequent topic of dis­cussion both at the bargaining table and in the grievance procedure and that Ms. Williston's partic­ular technical role is likely to involve her (as it already has in some instances) in the kind of conflict of interest which section 1(3)(b) was designed to avoid. In our opinion, on the evidence currently before us, she is employed in a confidential capacity in matters relating to labour relations and should therefore be excluded from the bargaining unit.

16. Julie Gross (Peterson) - Human Resources Assistant

The employer claims that Ms. Gross should be excluded because she both exercises managerial functions and is employed in a confidential capacity with regard to labour relations. Once again, there is little basis for the former proposition. Ms. Gross does not supervise anyone and is not involved in hiring, firing, discipline, promotion, employee evaluation, or the granting of wage increases or time off. She does not correct or inspect the work of other employees and is not involved in the filling of vacancies or the administration of lay-offs or transfers. She is not directly involved in the grievance procedure, grievance meetings, or other labour - management meetings where critical employee interests are at stake. She may type letters to the union concerning disci­plinary actions taken, but these are merely clerical or recording functions, and the results are made known to the union.

17. The majority of Ms. Gross' time is devoted to administering the "suggestion" and edu­cational leave programs. Much of the rest of her time is involved in assisting the manager of train­ing and development to establish performance appraisal forms and training manuals for supervi­sory trainees, as well as "succession planning for career pathing" for non-managerial personnel. The latter involves expanding the work experience of persons identified as potential supervisors. She does not do performance appraisals herself. Depending on her function, she is supervised directly by the Vice-President of Human Resources or the manager of training and development.

18. Administering the "suggestion program" involves receiving suggestions, assigning an investigator who evaluates and determines the potential savings possible if the suggestion is accept­ed, and authorizing payment to the suggestor upon a favourable review. However, payment approval requires the authorization of a superior and such payments can only be made within pre­scribed guidelines. Similarly, educational subsidies are only authorized and paid within pre-estab­lished limits. Ms. Gross may make recommendations respecting the employee suggestion program or the educational assistance program, and those recommendations may be accepted, but she has no independent authority in this regard. She has access to certain global budgetary information and personnel records, but this is not, in our view, particularly significant.

19. The function which raises concern from a collective bargaining/1(3)(b) perspective is her role as recording secretary for the negotiations in the past contract year. That role was previ­ously performed by Diane Peters who is excluded from the bargaining unit. Apparently, Ms. Gross took the minutes at the negotiating sessions and, during recesses, remained with the management negotiators who discussed the next round. However, while present, Ms. Gross was not really involved in the decision making process. She was more or less a spectator. There is no clear indica­tion that this will be a continuing role, which, in any event would involve a miniscule portion of her time and could easily be done by excluded persons, as it has been in the past.

20. On balance, we are of the opinion that Ms. Gross is not employed in a confidential capacity in matters relating to labour relations. Those aspects of her job which might arguably trig­ger section 1(3)(b) concerns are isolated, incidental, and peripheral to her primary responsibilities. In our opinion, she is an "employee" under the Act and should not be excluded from the bargain­ing unit.

21. Jan Tritschel - Employment Assistant

Ms Tritschel has occupied her present position for approximately ten years. The employer claims that she should be excluded from the bargaining unit because she both exercises managerial func­tions and is employed in a confidential capacity with regard to labour relations matters. In our opinion the evidence does not support either assertion.

22. Ms. Tritschel has no employees under her direction or control. She has no authority to discipline, suspend or discharge any employee. She attends no management meetings and has no input into the annual budget. She has no significant training role (not that this is necessarily a managerial function" anyway) other than in respect of her own temporary replacement or to familiarize other employees with the use of the computer. She is not involved in the lay-off or transfer of employees. She has no input into the termination of employees because of poor perfor­mance and only a minimal role in the performance appraisal of summer students. She does not do the evaluation herself, but rather forwards the documentation to the students' foremen who return it to the manager of employment who, in turn, retains the final decision whether a student is to stay or be re-hired in the following year. In our view the evidence does not disclose any real influ­ence; and her involvement with this rather transitory group is in itself much less significant than would be the case if, for example, she had some decisive influence with respect to the retention of permanent employees. Students, we note, are excluded from the bargaining unit and thus do not participate in the collective bargaining process.

23. The actual number of vacancies is decided by the foremen. Ms Tritschel merely tele­phones prospective workers, beginning with those who were previously employed and giving pref­erence to the sons and daughters of current full-time employees. For the plant, it is mainly a matter of matching the students' height and size to the available jobs. For the office, it is a matter of ascertaining their mechanical/clerical skills. There is little independent judgment and even less to indicate the kind of collective bargaining conflict to which section 1(3)(b) is directed. She has no involvement in the hiring of full-time personnel.

24. Ms. Tritschel does do a considerable amount of "paper work". She runs reports from the computer, updates computer and personnel files, compiles statistics, and does typing for the manager of employment. However, once again, there is little or no direct involvement in, or con­tact with, sensitive labour relations matters. She has no involvement in the disciplinary process and does not type grievances or appraisal forms. She testified that she is not involved in the typing of agendas for management meetings where personnel policy or strategy matters are discussed nor does she attend any such meetings. She may type offers of employment or termination notices but neither of these documents are confidential. She does have access to certain personnel files because the employer has chosen not to segregate them or keep them under lock and key, but, she said, the employees also have access to their files. Knowledge of or potential access to the salaries of excluded non-managerial personnel is not particularly significant without some affirmative evi­dence connecting this information to its actual collective bargaining use, and according to Ms. Tnt­schel, she does not see the details of managerial job changes. She has, on one occasion, typed con­tract proposals which were subsequently forwarded to the union, but only in a "backup" capacity as one of three individuals whose services were used. She said this was a minor part of her job at best, and was only undertaken because another employee (already excluded from the unit) was unavailable. She has had no other or ongoing role in the collective bargaining, negotiation, or con­tract administration process.

25. On balance, it is our opinion that Ms. Tritschel does not exercise managerial functions nor is she employed in a confidential capacity in matters respecting labour relations.

26. Josephine Fowler - Senior Payroll Clerk

At the time of the examination, Ms. Fowler was no longer performing the functions of the "senior payroll clerk" however, the parties were agreed that, as the former incumbent in that position, she could accurately describe the job. The employer claims that the senior payroll clerk should be excluded from the bargaining unit both because she exercises managerial functions, and because she is employed in a confidential capacity with respect to labour relations. In our opinion, the evi­dence does not establish either assertion.

27. Ms. Fowler reported directly to the supervisor of payroll (Al Meyer) and the manager of compensation and benefits (Murray O'Brian). She had responsibility for the office, plant, and management payrolls (with the assistance of four other clerks), but her primary duties involved the management (excluding executive) payroll. She replaced the supervisor of payroll when he was absent but testified that this would only occur once or twice a year, and during that time she would not make any policy decisions, nor did she attend any management meetings.

28. Ms. Fowler's work group included four other payroll clerks, each of whom had different responsibilities with regard to payroll items and the "clearing" of particular accounts. The supervi­sor might occasionally assign special work to them but, she said, for the most part, there was a process of self-assignment since the employees knew what they were required to do even in emer­gency situations. There was an established routine and it was the supervisor who made any deci­sions requiring an assessment of the employees' particular qualifications. Although Ms. Fowler may have had some minor role co-ordinating the work of others, she was not their "manager~~ in the sense contemplated by the Labour Relations Act since it is apparent that the employees were closely supervised by Mr. Meyer. Indeed, at page 148 of the transcript, one finds this revealing exchange:

Question: And can you explain to me exactly what authorities he (Meyer) told you that you had? Answer: I had to .... it was part of my job to actually run the payroll without him being there, but he was always there. You're hitting a touchy part with me. I was supposed to do it but I couldn't do it a lot of times because he wouldn't let me. He likes to work with everybody else. Question: He likes to keep his finger on the pulse?

Answer: Yes.

29. Ms. Fowler has occasionally participated in the on the job training of new employees and, in that context has checked their work, but she has no ongoing responsibility for checking or correcting the work of others. That is a matter undertaken by her supervisor. From time to time her supervisor has asked her how other employees were "getting along" but these informal assess­ments are not obviously or directly connected to any employment consequences for the individual concerned. Ms. Fowler makes no formal assessment nor was she ever asked whether someone should be kept on or terminated. She has no part in hiring, interviewing prospective employees, disciplining employees or discharging employees, nor was she ever told that she had any discipli­nary authority. When she once volunteered the suggestion that someone should be disciplined that recommendation was not followed. She said that in the absence of her supervisor she could grant casual time off, but had to immediately advise the manager of compensation and benefits that someone was leaving early. She did not have the authority to sign the time sheets recording over­time and testified that, in any event, employees knew when they had to work overtime and volun­tarily did so. There is no indication that she could demand compulsory overtime work.

30. Ms. Fowler attended some management meetings which appear to be largely concerned with implementing the new computer system. She had no involvement with the budget, no author­ity to make purchases, and no "policy making" role. She has never been involved in the grievance procedure or meetings where collective bargaining matters were discussed for either the plant or office bargaining unit.

31. Ms. Fowler clearly had access to payroll information which, to a greater or lesser degree, was also available to other payroll clerks - although she said that the computer security sys­tem denied her access to certain kinds of information. She did have access to global hours of work, lost time, unemployment insurance information, premium payments, etc.; and much was made in argument of her knowledge of management salaries and the salaries of non-managerial personnel excluded from the bargaining unit. However, in our opinion, access to this "personnel informa­tion" does not mean that Ms. Fowler was employed in a confidential capacity in matters relating to labour relations within the meaning of section 1(3)(b) of the Act. In the first place, much of this information is not "confidential" in any general sense because employees will be well aware of their salary levels, degree of absence, etc. Moreover, it is not obvious to us why knowledge of the salaries of persons excluded from the bargaining unit and therefore, by definition, not involved in the collective bargaining process should lead to the conclusion that someone is employed in a con­fidential labour relations capacity. There is no obvious connection between the salaries paid to excluded personnel based upon their annual, personal salary review, and the employer's collective bargaining strategy vis-a-vis the plant or office bargaining unit, nor does the evidence suggest that there is. This information might be "confidential" from the perspective of the individual concerned or the employer, but, on the evidence, it does not have an established collective bargaining content with respect to the other payroll information or "breakdowns" with which Ms. Fowler was involved. We note also that much of this information was already available (albeit in disaggregated form) to the union, and to the extent that wage and benefit costs or payroll information enter into the process of collective bargaining at all, there is an evolving Board jurisprudence suggesting that the union is entitled to such information in order to facilitate the "rationale discussion" contem­plated and required by section 15 of the Act.

32. In the opinion of the Board, Ms. Fowler was not exercising managerial functions nor was she employed in a confidential capacity in matters relating to labour relations. She was an employee under the Labour Relations Act and properly included in the bargaining unit.

33. Martha Anton - Employment Assistant

The employer claims that Ms. Anton's position should be excluded from the bargaining unit because the incumbent both exercises managerial functions and is employed in a confidential capacity with regard to labour relations. Ms. Anton left the company about five months before the examination, however there is no dispute that her evidence accurately describes its duties and responsibilities.

34. Ms. Anton reported directly to the manager of employment. She hired casuals from a list set up by the manager of employment, and, as she describes it, any interviewing she did prima­rily involved informing the applicant of the type of work involved. Final decisions were made by the manager, but she did make recommendations which were ordinarily accepted. She did no hir­ing for office bargaining unit positions, or permanent staff in the plant.

35. Ms. Anton has never suspended, disciplined or recommended discipline of any casual worker. She had no authority to grant time off or vacation time to casuals. Upon a foreman's request for some casuals on a particular shift, she did have the authority to assign casuals to that shift or department, but she did not authorize payment and could not authorize overtime. She supervised no one and had no responsibility for layoff, transfers, full-time hiring or the general budget. Ms. Anton had no role in negotiations, did not represent management in any capacity and was not involved in any grievances. She may have accompanied the manager of employment to a management meeting if the subject of casuals was to be discussed, however her input would be entirely informational.

36. Although Ms. Anton may have had some ancillary role in the casual employees' entry into their employment relationship with a company the evidence does not establish any ongoing or effective involvement in subsequent labour relations activities. She may have informed casuals that they would be fired and may even have recommended it, but she did not make the final decision nor does the evidence clearly establish that she made the "effective" recommendation as that phrase has been defined in other cases (see Corporation of the City of Thunder Bay above). It would appear that the actual decision is made by the casual employee's direct supervisor based upon his/her assessment of the individual's performance.

37. Ms Anton had access to all personnel records except those of the personnel department and periodically consulted them to update or terminate files. She sought permission from the man­ager of employment before giving an employee access to his own files. She handled some typing assignments for the manager of employment, but was unspecific about the types of confidential correspondence involved. She typed general statistical reports for internal management use but, in her testimony, mentioned nothing which was of a sensitive labour relations issue. In particular, she had neither input nor access to negotiating documents.

38. Ms. Anton typed various standard form letters based upon personnel file information, for immigration or credit purposes, upon the request of an employee. Since she had no direct access to management records she had to apply to payroll for the necessary salary information. She also typed standard form letters to employees recording absences where records indicated an absentee problem, but she had no discretion in this. She typed no letters concerning discipline except possibly where a casual employee was concerned. This was not a significant part of her work load and since the letter would go to the casual anyway, it could not be considered confiden­tial. She was occasionally required to "fill in" for other employees in the personnel area who were absent, which extended her range of access to information but not her authority. Like other employees here under consideration, she had access to change advice slips and thus was aware of wage, transfer or termination information.

39. When Ms. Anton's evidence is viewed as a whole, and in light of the Board's approach to the interpretation of section 1(3)(b) set out above, there is exceedingly little evidence of the "mischief' to which section 1(3)(b) is directed or the kinds of authority which would warrant exclusion from the Act. In the opinion of the Board Ms. Anton was not exercising managerial functions nor was she employed in a confidential capacity in matters relating to labour relations.

40. Ann Gould - Payroll Clerk

The employer's position is that Ms. Gould is not covered by the Act because she is employed in a confidential capacity with regard to labour relations matters. The parties are agreed that the evi­dence adduced by Ms. Gould is representative of herself, as well as A. Perron and P. Parker, who are also payroll clerks. The parties have also agreed that Ms. Gould has access to the management payroll and that P. Parker does not.

41. Ms. Gould has been in her present position for six years and reports to Al Meyer, the supervisor of payroll and Wes Snarr, the assistant supervisor. She described the general nature of her work as: processing pays for the week, balancing, reconciling, producing UIC documentation, and preparing T-4 taxation statements at the end of the year. As her title suggests, she is also directly involved in producing the office payroll, and has access to the payroll information for the plant, sales group, and members of management. From time to time she may help out on the man­agement payroll and may type letters concerning garnishees.

42. Ms. Gould has no involvement whatsoever with the negotiation or administration of the office or plant collective agreements. She has never represented management in labour relations matters and does not attend management meetings. She has no input into the annual budget. She said she has no access to personnel records, maintains no records under lock and key, and has a desk in the general payroll office. She does have some knowledge of the salaries paid to particular individuals including persons excluded from the bargaining unit; but, as we have already noted in other cases, we do not think that mere knowledge of the salaries paid to excluded personnel is par­ticularly significant for collective bargaining purposes. Quite frankly, we do not think that it mat­ters very much that she may know the amount paid to the "cattle buyer" or "poultry buyer", nor do we think (and the evidence and not establish) that such information is closely connected to the employer's collective bargaining strategy. From a labour relations policy point of view (i.e. the mischief which section 1(3)(b) was intended to avoid) we see nothing which would warrant an interpretation which excludes her from the Act.

43. In our opinion Ms. Gould is not employed in a confidential capacity in matters relating to labour relations; and having regard to the agreement of the parties concerning the representa­tive nature of her evidence, we reach the same conclusion with respect to Ms. Perron and Ms. Parker. They may have certain access to "personnel" information regarded as "confidential", but that

is not sufficient to meet the test of section 1(3)(b) (see the discussion above).

44. Elizabeth Valenta - Occupational Health Nurse

The parties are agreed that the evidence adduced concerning Ms. Valenta's position is representa­tive of the position of Ms. J. Lang as well. The employer claims that both individuals should be excluded from the Act (and therefore the bargaining unit) because they are employed in a confi­dential capacity with regard to labour relations and, in addition, exercise managerial functions. The parties are agreed that the evidence adduced concerning Ms. Valenta's position is also repre­sentative of the position of Ms. J. Lang.

45. Ms. Valenta reports directly to the acting health and safety supervisor, Ms. June Totz­ke. Her work group consists of two full-time nurses and one part-time nurse, but it is apparent from the evidence that Ms. Totzke monitors their activities. The evidence is a little unclear about the position of Ms. Lang, and her precise role, but however one views it, the employer's "manage­rial argument" rests on the assertion that Ms. Valenta and Ms. Lang exercised managerial func­tions in respect of a very small number of other employees. Indeed, if the health and safety group is regarded as a separate department there would appear to be as many "managers~~ as "man­aged".

46. The duties of the various nurses are roughly similar. These include assisting the physi­cian in pre-employment medical examinations, and assessing the workers' condition on return from health related absences. In addition, Ms. Valenta processes worker compensation claims and, she says, evaluates the work of other staff members. However, she said that there is no direct evalua­tion but only a verbal "how are they doing" assessment expressed to the health and safety supervi­sor. On the basis of the evidence, we are satisfied that if there is any managerial authority at all exercised in respect of this work group, that authority rests with the health and safety supervisor not Ms. Valenta.

47. Ms. Valenta has no decisive input into hiring and has no discharge or disciplinary authority. She has never had occasion to discipline any employee or issue a written reprimand or suspension period. She has minimal authority to grant casual time off - only if her supervisor is not in the building. She does not sign the employees' time sheets and did not know whether any inac­curacies might be noted. She was quite uncertain about how her supposed subordinates were paid. She has no role in contract administration or negotiation, and does not represent management in any labour relations matters. In the pre-employment examinations (i.e. before the prospective employee even becomes involved in the labour relations process) the decisive input comes from the company doctor and Ms. Valenta's superior.

48. Ms. Valenta has no responsibility for teaching or training other employees but may, occasionally, investigate and discuss performance problems, as they arise, with the nurse con­cerned. She cited, as an example, bandaging techniques or the failure to wear a hard hat where it was required. She has devised an orientation program for other nurses and once even recom­mended the release of a new nurse whom she found to be unsuitable.

49. Vacations are settled by seniority. Ms. Valenta works an early day shift and the other two nurses rotate shifts every two weeks. Ms. Valenta has custody of the time sheets, but since nurses work different shifts with little over-lap, each nurse is responsible for recording her own time and Ms. Valenta is not responsible for ensuring their accuracy. She clearly does have access to confidential health and compensation records which are kept locked in her private office and, in her professional capacity, she might refuse to permit an employee to return to work without a satisfactory doctor's note, or in the case of infectious diseases the required negative specimen. She has also sent employees home when she assessed them as medically ill or mentally unstable. In this regard, the other nurses have the same responsibility and authority. She has investigated worker compensation claims, views the job site and the work, and discusses the matter with the foreman before deciding on the appropriate position to take. If she and the foreman cannot agree, she refers the matter to her supervisor, and if the company contests the position, she may write a letter to the Workers' Compensation Board outlining the company's objections of the claim. She has not, in practice ever been directly involved in an appeal and indicates in her evidence that, in her absence, either of the full-time nurses could perform the same technical role. She has drafted cer­tain health plan policies to augment government health standards, and these have been submitted to management but, in her opinion, she has no authority to institute such policies without manage­ment approval. Yet she admittedly has some authority to exercise her professional judgment in assessing hazards or sending employees home when their continued employment may put them in jeopardy or raise potential difficulties for other employees.

50. In Ottawa General Hospital [1984] OLRB Rep. Sept.1199, the Board reviewed, at some length, the problem of determining the employee status of "professionals" who, by reason of their training had a degree of control over other employees. We do not think that it is necessary to repeat that analysis here. It suffices to say that, in our opinion, the functions exercised by Ms. Valenta (and inferentially Ms. Lang) are grounded in their professional responsibilities, rather than their managerial authority, or their alleged employment in a confidential labour relations capacity. They undoubtedly have access to certain information which may, in some sense, be con­sidered "confidential", but we are of the opinion that their duties and responsibilities do not fall within the ambit of section 1(3)(b) of the Act.

51. Mary Anne Holtz - Employment Assistant

The employer claims that Ms. Holtz is not an "employee" under the Act because she both exer­cises managerial functions and is employed in a confidential capacity with regard to labour rela­tions matters. We have left her position to the last, because the evidence is somewhat ambiguous and incomplete - perhaps because Ms. Holtz has occupied her present position for only eight months. Indeed, there was even some confusion as to how that position should be described. The employer suggested that she occupies the job of senior employment assistant, however, Ms. Holtz herself said that she was unaware of the term "senior". She reports to Harold Blake, the manager of employment and, on occasion, to Murray O'Brian, the manager of compensation.

52. Ms. Holtz has a variety of functions including those related to employment, the administration of certain social programs, and miscellaneous duties concerning the ladies' dressing room, the locker rooms and lock assignments. She co-ordinates athletic events, picnics, etc. and plans events for the "golden age club". About half of her time is taken up by employment-related duties, and some of them do (at least arguably) raise the spectre of the "mischief' to which section 1(3)(b) is directed. In the eight months that she has been on the job, she has had some involve­ment in job postings for employees in the office unit, has participated in interviews, and has had a degree of "input" into the selection of the successful candidate - subject always to the overriding, and, on the evidence, decisive influence of the department or employment manager. Harold Blake indicated that her role was to ensure that there were no human rights violations. She also does a pre-screening of the applications for job openings in order to match the applicants' qualifications with those described in the job description accompanying the job posting. To this extent, she may influence the access of potential applicants to these job opportunities subject to review by her own supervisors to whom she directs any questions. If there is any complaint about the exclusion of par­ticular individuals she may be involved in the discussion but, it is interesting to note that she said that she would not be involved (and has not been involved) in any grievance concerning such mat­ters. If her role were as significant as the employer now suggests, one would have thought that she would be involved.

53. Against these indicia of the potential existence of the "mischief' to which section 1(3)(b) is directed, one must consider the absence of concrete evidence about those matters (again, bearing in mind that Ms. Holtz has been in her position for only a short period of time).

54. Ms. Holtz has no employees under her immediate direction or control. She does no evaluation of other employees. She is not responsible for the wage increases or adjustments of other workers other than to record them. It is the company's practice to start a new employee in a new job at the minimum rate for that position, but even that must be approved by the manager of compensation. There is no exercise of significant independent discretion.

55. Ms. Holtz has not been asked whether probationary employees are suitable for contin­ued employment. She said that this was the foreman's responsibility and, when she once made a recommendation about a particular student the matter had to be considered by others. It will be recalled that students and casual employees are not included in any bargaining unit. Accordingly, at this point, any concerns about their treatment do not raise collective bargaining dilemmas because they are not engaged in the process of collective bargaining.

56. Ms. Holtz told the Board that she had no authority to discharge or discipline employees nor had she ever been told that she had such authority. She has never reprimanded anyone for absenteeism, carelessness or other failings, and had not recommended discipline or improvement to the particular employees' foremen. She has no authority to suspend employees, grant casual time off, or influence the scheduling of employee vacations.

57. She has no input or influence with respect to employee hours of work, shift changes or layoff decisions. She said that she might authorize overtime hours, in some circumstances, but would need the approval, first, from the manager of employee relations. On the evidence she had never done so, nor had she required overtime of persons who might not be willing to work it. She does not attend management meetings, neither does nor performs performance appraisals, and has made no recommendations with respect to employees promotions, or demotions. Initially, she said that she had no involvement in the hiring of full-time employees. In short, it is very difficult to con­clude that she exercises any "managerial functions" within the meaning of section 1(3)(b) of the Act.

58. Nor does the testimony substantiate that she is employed in a confidential labour rela­tions capacity.

59. She is involved in administering employee transfers but it is the department foreman who identifies the job opening. Transfers are voluntary and regulated by a list of employee prefer­ences subject to seniority considerations. The department manager decides whether there will be a vacancy in any particular area and the job descriptions for such vacancy are based upon a pre-es­tablished format. The job posting is a relatively mechanical function, and to the extent that it requires some "fine tuning" for the particular circumstances, Ms. Holtz refers the matter to Diane Peters who is excluded from the bargaining unit. She has some responsibility for the hiring of cas­ual employees, but once again, this is a fairly routine, mundane, and mechanical function quite unrelated to the process of collective bargaining from which these individuals are excluded. To the extent that "testing" is required, she merely administers tests to the applicants and, it would appear, other members of management may suggest that such tests are necessary. Transfers are largely governed by seniority for, as Ms. Holtz observed, the collective agreement contains certain protections in this regard and, we "have to ask them [the senior employees] no matter what".

60. Ms. Holtz testified that she had no input into labour-management negotiations. She has no access to material used by the employer in negotiating with the union. She does not type any documents respecting negotiations nor has she been involved (see above) in determining the employer's response to particular grievances - although she may have provided certain background information at meetings attended by employer and union officials. She said that she had no input into or participation in the negotiation process. She was "not quite sure" if she had any role in the administration of the collective agreement, other than to ensure that the contractual standards set out in that agreement were, in fact, being followed.

61. On the evidence before us, we conclude that Ms. Holtz may have some occasional or peripheral involvement in labour relations matters but, to date, that has not been the core of her employment activities, nor, in our opinion, can it be said that she is employed in such confidential labour relations capacity. However, in her case in particular, we stress the fact that our opinion is based upon evidence relating to a relatively short tenure in her current job. It may be that, over time, as she acquires further responsibilities (perhaps then warranting the title of "senior employ­ment assistant" which she found unfamiliar), her exclusion pursuant to section 1(3)(b) would be warranted.

DECISION OF BOARD MEMBER JAMES A. RONSON;

1. Save for the ruling respecting Josephine Fowler, I agree with the decision of my col­leagues.

2. I would exclude Ms. Fowler from the bargaining unit because of her responsibility for the management payroll. She is employed in a confidential capacity in matters relating to labour relations.