Ontario Public Service Employees Union v. Grand River Conservation Authority, 1988 CanLII 3683

[1988] OLRB Rep. March 298

3287-86-R Ontario Public Service Employees Union, Applicant v. Grand River Conservation Authority, Respondent

BEFORE: Owen V. Gray, Vice-Chair, and Board Members R. W. Pirrie and A. Hershkovitz.

APPEARANCES: Alick Ryder and Sandra Laycock for the applicant; Donald Francis, Ron Fox and Art Hulks for the respondent.

DECISION OF THE BOARD; March 21, 1988

1. This decision addresses the issues which remain outstanding in the certification applica­tion, namely:

2. Whether 15 "Superintendents" employed by the respondent exercise managerial functions within the meaning of clause 1(3)(b) of the Labour Relations Act ("the Act") and, so, would remain excluded from the bargaining unit for which the applicant was granted interim certification in this panel's decision dated March 25, 1987.

3. Whether the phrase "save and except managers and persons above the rank of manager" in the description of the unit for which the applicant has been granted interim certification should be replaced by the phrase "save and except Superintendents and persons above the rank of Superintendent" in the description of the unit for which the applicant is to be granted a final certificate.

4. The parties exchanged statements of material fact and documents relied upon with respect to these issues in response to a direction in our decision of March 25, 1987. In a decision dated July 23, 1987, we observed that:

6. The material exchanged in accordance with our earlier directions did not result in agreement on all (or even very many) of the facts relevant to the issue whether any or all of the "Superin­tendents" in dispute exercised managerial functions within the meaning of clause 1(3)(b) of the Act as of the application date. In view of the amount of testimony which may have to be col­lected with respect to factual issues still in dispute, the parties agree that a Labour Relations Officer should be appointed to inquire into and report to the Board on the duties and responsi­bilities of the individuals in dispute as of that date, before we determine whether the word "manager" in the unit description in paragraph 2 hereof will be replaced by "Superintendent" in finalizing the description of the appropriate unit in the full-time application. (It should perhaps be noted that that would not necessarily be the result of a finding that some or all "Superinten­dents" were "managers" on the application date. We would still be bound to ask whether "man­ager" is not the better word to use in whatever circumstances may be revealed by the evidence.)

In accordance with the agreement referred to in that passage, we then appointed a Labour Rela­tions Officer ("LRO") to inquire into and report to the Board on the duties and responsibilities as of the application date of the 15 "Superintendents" whose "managerial status" was in dispute. The LRO convened meetings of the parties in August and September, 1987, during which three of the 13 "Area Superintendents" in dispute (Messrs. Cunningham, Sherritt and Muir) were examined as to their duties and responsibilities as at the application date. The applicant and respondent then agreed that the evidence adduced in the examinations of those three persons is representative of the duties and responsibilities of the other Area Superintendents in dispute. The other Superinten­dents in dispute are Ronald Bloomfield, described as "Superintendent, Head Office", and Gerry Brousseau, described as "Superintendent, Small Dams". With respect to those persons, the parties agreed that their dispute could be resolved without conducting an examination. The terms of that agreement are described later in paragraph 23 of this decision.

3. In the course of the LRO's inquiry, counsel for the applicant sought to introduce evi­dence with respect to the duties and responsibilities of persons classified as "Interpreter", whom the parties had agreed would fall within the unit for which the applicant is to be certified. The applicant argued that such evidence would be relevant to the outcome because of similarities between the position of "Interpreter" and the position of "Area Superintendent". The LRO took the view that such evidence would not fall within the scope of the inquiry which she had been authorized to conduct. In a decision dated November 12, 1987 (and reported at [1987] OLRB Rep. Nov. 1371), we agreed that if evidence with respect to the duties and responsibilities of Interpret­ers was relevant to the outstanding issues, a matter we did not propose to then decide, such evi­dence was not within the scope of the inquiry which we had authorized and directed the LRO to conduct. The possibility of our expanding the scope of the LRO's inquiry or by other means con­sidering evidence with respect to the duties and responsibilities of Interpreters was expressly left open for consideration at a hearing to be held after the LRO's report on the three individuals examined had been completed and circulated. That hearing was later scheduled for and took place on February 10 and 11, 1988. Counsel for the applicant then chose not to pursue his request that the Board receive evidence about the duties and responsibilities of Interpreters.

4. Subsection 1(3)(b) of the Labour Relations Act provides:

l.-(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 function or is employed in a confidential capacity in matters relating to labour relations.

The principles considered by the Board in formulating its opinions under this provision have been reviewed at length on a number of occasions. The Board's decision in The Corporation of the City of Thunder Bay, [1981] OLRB Rep. Aug. 1121, was referred to in argument. Paragraphs 2 through 7 of that decision contain a useful summary of the Board's jurisprudence, as do paragraphs 8 through 13 of the Board's decisions in Ottawa General Hospital, [1984] OLRB Rep. Sept. 1199 and paragraph S in The Royal Ontario Museum, [1985] OLRB Rep. Feb. 325. In coming to our opinion in this matter, we have considered the principles referred to in those decisions and in the decisions to which they refer.

5. The respondent (sometimes referred to hereafter as "the Authority") is a body corpo­rate governed by the Conservation Authorities Act, R.S.O. 1980, c.85, as amended, with responsi­bility for managing the water and related land resources of the Grand River watershed, which cov­ers an area of approximately 6,700 square kilometers. The Authority is involved in the construction, operation and maintenance of capital works to control flood and erosion hazards and other resource problems in the watershed. It regulates land use in flood plains and erosion hazard areas and in wetland areas, and reviews water-related aspects of municipal planning documents. It is also involved in the acquisition and management of lands for water control and outdoor recre­ation. In that regard, it maintains a number of conservation areas which are located at distances of up to 200 miles from the Authority's administrative offices in Cambridge. These conservation areas are open to the public from late spring until early fall each year. Each conservation area offers swimming in pools or lakes, playground facilities, picnic areas and hiking trails. Most also provide serviced and unserviced camping areas. Some conservation areas are also open during winter months for cross-country skiing or snowmobiling.

6. The Authority has a complement of approximately 170 "regular" (year-round, perma­nent) employees. This is augmented in the summer months by an additional 300 "seasonal" employees hired to work in the conservation areas. A smaller number of seasonal employees are also hired to work at certain of the conservation areas during the winter months. Some of these seasonal employees are hired pursuant to government-funded employment programs.

The Area Superintendents

7. Each Area Superintendent is a regular employee who works at and is in charge of one of the Authority's conservation areas. The precise job functions of an Area Superintendent vary from area to area, as do the numbers of other regular and seasonal employees employed in a par­ticular conservation area. As we have already noted, the applicant and respondent agreed that the evidence of three Area Superintendents would be taken as representative of the job functions of all 13 Area Superintendents in dispute. Each of the three Area Superintendents examined had some­what different job functions, different experiences in the exercise of those job functions and differ­ent views about his relationship with others of the respondent's employees. To give effect to the parties' agreement that the evidence of these three Area Superintendents be taken as representa­tive of the job functions of all Area Superintendents, we have synthesized from their testimony a composite picture of the position of Area Superintendent at the time the application was filed: see The Royal Ontario Museum, supra, at paragraph 16. We do not propose to paint that picture in this decision in great detail; rather, we will simply touch on those features of that picture which were of particular significance to the conclusion at which we have arrived.

8. In his or her conservation area, the Area Superintendent works with one or two other regular employees: an "Assistant Superintendent" and, perhaps, a "Lead Hand". These two or three regular employees may be the only employees working at the conservation area during the winter months. In the summer months, however, the work force at the conservation area will be augmented by more than a dozen seasonal employees. The Area Superintendent's duties and responsibilities in relation to other regular employees do not involve any significant management functions. The same cannot be said for their duties and responsibilities in relation to seasonal employees.

9. A position description for Conservation Area Superintendent formulated less than six months prior to the application date describes the duties and responsibilities of that position as including the making of recommendations to the Conservation Areas Co-ordinator and Safety Officer with respect to employment and discharge of casual employees. The evidence establishes that the Area Superintendent's recommendations with respect to casual employees are "effective" in the sense described in the Board's jurisprudence with respect to subsection 1(3)(b). Indeed, it appears that the acceptance of such recommendations is so much a formality and a foregone con­clusion that the Area Superintendents act and are permitted to act as though they actually exercise the power to hire and dismiss casual employees.

10. Each year, each Area Superintendent prepares a budget for the operations of the area of which he or she has charge. This involves decisions by the Area Superintendent about the num­ber of seasonal employees to be hired and the length of employment and rate of pay of each sea­sonal employee. The senior management of the Authority will set the amount which can be spent on that area, and the Superintendent may have to adjust his initial budget to conform with that determination. While the Area Superintendent's budgetary decisions are circumscribed by practi­cal and economic considerations and by the policy guidelines promulgated by senior management, the range of discretion left to Area Superintendents is significant from the perspective of seasonal employees, particularly those "returnees" who have previously been employed by the Authority on a seasonal basis. For example, the evidence discloses that while senior management does con­sider it legitimate to pay returnees at a higher rate than that paid to seasonal employees not previ­ously employed by the Authority, the Area Superintendents have a discretion in that regard. At least one Superintendent has chosen not to pay returnees at a greater rate than new hires.

11. The Area Superintendent is involved in the training and supervision of seasonal employees and devotes roughly one-half of his or her time to those supervisory duties during the summer season. The balance of his or her time will be spent on administrative duties and on "hands on" work similar to that performed by others in the bargaining unit, particularly work for which greater skill and training is required, such as the operation of dams. Area Superintendents have the power to impose discipline in the form of oral or written warnings and suspensions of up to several days duration without prior reference to any higher authority. As we have already observed, they also have the de facto power to dismiss, notwithstanding that the Authority's per­sonnel policies appear to reserve that power to senior management. While Area Superintendents do not appear to prepare formal written appraisal reports on seasonal employees, they do appraise the employees as they work with them. Because they make the effective hiring decisions, their per­sonal appraisal of a seasonal employee during one season will have a considerable influence on whether a subsequent application by that employee for seasonal employment in the same area will be accepted.

12. The Area Superintendent's job functions are different outside the period during which seasonal employees are engaged in significant numbers. During the winter months, the Area Superintendent spends the most of his or her time on "hands on" work, administrative responsibil­ities and those year-round minor supervisory and reporting functions in relation to the regular employees which would not, by themselves, amount to the exercise of managerial functions. Their role with respect to seasonal employees does not disappear, however; the budget preparation and revision process and, later, the interviewing and hiring process all take place during this off-season.

13. In short, Area Superintendents exercise some degree of control over other employees, but also perform what might be described as bargaining unit work. The situation of such persons was discussed by the Board in Falconbridge Nickel Mines Limited, [1966] OLRB Rep. Sept. 379, at paragraph 29:

Most of the persons in dispute have more than one function and generally speaking it is the weight or emphasis attached to the different functions which must determine on which side of the managerial line 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 l(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.

See also Toronto East General Orthopedic Hospital, 11974] OLRB Rep. Oct. 671 at paragraph 5. In McIntyre Porcupine Mines Limited, [1975] OLRB Rep. April 261 at paragraphs 38 and 39, the Board made these observations:

38. It is noteworthy that this test, so not to be overly exclusionary, requires that a person be primarily employed in the direction and supervision of employees and, as well, possess effective control or authority over those employees....

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

14. By way of reference to the totality of the evidence, counsel for the applicant relies on the following circumstances:

(1) The apparently managerial functions exercised by Area Superinten­dents in relation to seasonal staff are qualitatively and quantitatively inconsistent with two official personnel documents of the Authority: its "Position Descriptions" dated 1986 and its "Staff Guidelines and Procedures", which appear to have been revised in 1986.

(2) The seasonal employees are students who fall outside both of the units for which the applicant has been certified.

(3) Many of the functions exercised by Area Superintendents in relation to seasonal staff are also exercised by Assistant Superintendents, whom the respondent has agreed would fall in the bargaining unit in this application.

15. The Board has repeatedly observed that job descriptions are generally of little assis­tance in determining whether a person exercises managerial functions. That is because subsection 1(3)(b) focuses on the functions actually "exercised" by the person in question. The more common situation is that a position description suggests that the job incumbent has considerably more man­agerial functions than would appear from the evidence to be actually exercised. This case presents the corollary: in relation to seasonal employees, the actual duties and responsibilities of the Area Superintendents appear to be more "managerial" than is contemplated by the employer's person­nel documents. The documents might have some significance if it appeared that they reflected an active, ongoing attempt to "rein in~~ unauthorized action by Superintendents. That does not appear to be the case here. While the documents in question may post-date some of the incidents referred to in evidence, there is no suggestion that the current documents reflect any material change from prior job descriptions or staff guidelines and procedures as they relate to the control exercised by Area Superintendents over the respondent's employment relationship with seasonal employees. It appears that senior management has regularly acquiesced in what may appear to be departures from its written policies and job descriptions as regards the Area Superintendents' control over seasonal employees. Counsel for the Authority represented to us that it had no intention of strictly applying its personnel documents in that regard.

16. The second of the arguments noted in paragraph 14 above rests on the proposition that the casual employees in question are all "students employed during the school vacation period" (hereafter referred to simply as "students"). The unit with which we are concerned in this applica­tion consists of all employees of the respondent with certain exceptions. The exceptions include both students and persons regularly employed for not more than 24 hours per week ("part-time employees"). Those are common exclusions from a unit of full-time employees. This panel's finding that those exclusions were appropriate was based on their orthodoxy and the agreement of the applicant and respondent that the exclusions were appropriate in their circumstances. The applicant also applied for and was granted certification for a unit of part-time employees of the respondent. The applicant and respondent agreed that students should also be excluded from that unit. That is less orthodox. We again acted on that agreement, however, without first requiring that the parties offer some justification for the exclusion of students from both units. During bar­gaining for their first collective agreement(s), the applicant and the respondent have also agreed to exclude from these bargaining units persons employed pursuant to job creation programs of the sort contemplated by section 38 of the Unemployment Insurance Act.

17. The evidence does not support the contention of counsel for the applicant that all sea­sonal employees are students. While it appears that a substantial majority of the seasonal employ­ees are students, a not insignificant number of seasonal employees are persons who are not stu­dents and who would fall, therefore, within the bargaining unit. Even if the subsequent agreement to the "section 38 program" exclusion were relevant to a determination of the Area Superinten­dents' status as of the application date, it is not at all apparent that non-student seasonal employ­ees would all fall within that exclusion. In this connection, we feel we should make two comments with respect to our exclusion of "students employed during the school vacation period". First, we used that phrase in its usual sense, to describe only those persons who are on vacation between one period of schooling and the immediately following period of schooling. We do not agree with coun­sel for the applicant that someone who has finished a period of schooling and does not intend to return to school when it resumes remains a student" during the school vacation period unless and until he or she settles into a "full-time" or "permanent" job. Second, the evidence which has emerged in dealing with this "managerial functions" dispute gives us some retrospective concern about the exclusion of students from a unit which includes the equally seasonal non-student employees. We do not suggest that there could be no rational labour relations basis for the parties' agreement to exclude students. The evidence which emerged in connection with the managerial dispute may only have presented part of the picture with respect to the community of interest between student and non-student seasonal labour. It may be that other evidence would have emerged to justify the exclusion had the parties been required or invited to offer it. We do not pro­pose to reconsider our decision with respect to exclusion of students. We only wish to observe that if we had known what we know now at the time we were asked to make that decision, we would have invited some explanation before acting on the agreement of the applicant and respondent.

18. Although it cannot be said that all of the seasonal employees over which Area Superin­tendents exercise control fall outside the bargaining unit in which the applicant would have us place those Superintendents, it is apparent that most of them do. Thus, the exercise of control by Area Superintendents over persons within the bargaining unit is a relatively small portion of their total duties. If the exercise of managerial functions in relation to non-unit employees were of no importance, the applicant's argument in this regard might carry some weight even though the fac­tual premise on which it relies is not entirely correct. We do not agree, however, that the exercise of managerial functions with respect to non-unit employees is an irrelevant consideration. That proposition is not supported by Carleton University, [1975] OLRB Rep. June 500, the Board deci­sion cited by counsel for the applicant.

19. In the Carleton University case, the Board considered whether departmental chairmen should be excluded from a unit of full-time university faculty members by reason of subsection 1(3)(b) of the Act. It concluded that they should not. The passage on which counsel for the appli­cant relies appears at paragraph 23 of the decision. There, the Board observed that:

It is true, for example, that the Departmental Chairman has some independent discretion in the employment of the administrative staff and, possibly, summer lecturers. These persons, however, are not in the bargaining unit and we see no reason for excluding the Chairman on that ground. In our view, the infrequent exercise of authority over the office staff poses no dan­ger of conflict of interest within the unit. It is important to emphasize that the overwhelming proportion of the Chairman's duties have nothing whatever to do with the supervision or control of the department's small clerical staff. In this connection, we agree with the observation of the National Labour Relations Board in Adelphi University, 195 NLRB No. 107 at page 19; [19721 CCH NLRB ¶23,950:

"An employee whose principal duties are of the same character as that of other bar­gaining unit employees should not be isolated from them solely because of a sporadic exercise of supervisory authority over non-unit personnel."

[emphasis added]

As can be seen from this passage, while the fact that the supervised employees were not in the bar­gaining unit seems to have been of some significance, the most significant fact was that the exercise of control over those employees was a very small part of the job in question there. It cannot be said of the Area Superintendents that their exercise of authority over seasonal staff is infrequent, nor that the overwhelming proportion of the Area Superintendent's duties have nothing whatever to do with the supervision or control of those employees.

20. The applicant and respondent did agree at the outset that Assistant Superintendents would fall within the applicant's bargaining unit. The evidence establishes that the Assistant Super­intendents perform many of the same functions as the Superintendents in the supervision of sea­sonal employees. One of the Superintendents testified that he had delegated to his Assistant Super­intendent the job of interviewing and hiring the seasonal employees who would be engaged in their area as lifeguards. Another testified that interviews of applicants for summer positions might be conducted by himself, his Assistant Superintendent or possibly the lead hand if there was one in the area. Those examinees who thought they had the power to effectively dismiss a casual employee also thought their Assistant Superintendent could exercise that power as long as there was some consultation with him. The Assistant Superintendents are also involved in the supervi­sion of and assignment of work to casual employees, although it is not clear that the Assistant Superintendent would spend as much of his or her time on those functions as does the Superinten­dent. While the Assistant Superintendent may play some role in the budgeting process, it is not apparent that he or she shares with the Superintendent any effective decision-making with respect to the number of casual staff to be employed, their rates of pay and the length of employment of each. Indeed, it does not appear to us that Assistant Superintendents make the effective decisions in those areas where "effective control" by the Area Superintendents is most clearly significant: decisions about the re-employment and rate of pay of "returnees" among the casual staff.

21. The exclusion from collective bargaining of persons who exercise managerial functions on behalf of an employer is, for the most part, an accommodation of the interest an employer has in ensuring the undivided loyalty of those whom it entrusts with the management of its enterprise and the conduct of its employment relationship with its employees. The question whether an employee with a particular set of duties and responsibilities would be said to exercise "managerial functions" within the meaning of subsection 1(3)(b) cannot be answered in a vacuum. In each case, the answer depends on the nature of the employer's organization and other aspects of the context in which the question arises. When an employer agrees that a particular position falls within a bar­gaining unit, that must be taken to signify either that those of its interests which subsection 1(3)(b) is intended to serve do not require the exclusion of that position or that the employer does not expect that the Board would form the opinion that the incumbents in that position exercise mana­gerial functions as at the relevant time. Once one knows something about the job functions exer­cised by those incumbents, the employer's agreement says something about the nature of its orga­nization and the context in which any other position comes into question under subsection 1(3)(b). For those reasons, we do not accept the proposition that the employer's agreement to inclusion of employees in one position in the bargaining unit can in no event have any relevance to the determi­nation of a dispute about whether those in another position exercise managerial functions. We do agree, however, that the interest of the Board and the affected parties in the expeditious resolution of questions of that kind (by agreement, wherever possible) warrants a certain reluctance to expose the parties' agreements and the bases of them to searching analysis. An appropriate balance between these considerations is struck by requiring that the analogy between a disputed position and one on which the parties have reached agreement must be compelling before it will lead the Board to a conclusion different from the one at which it would have arrived but for the parties' agreement on the other position. On the evidence before us, the analogy offered between the Area Superintendents and their Assistant Superintendents does not meet that test.

22. We conclude that the Area Superintendents exercise managerial functions and would be deemed not to be employees in the summer months when they exercise effective control over casual employees of the respondent. We are not sure it makes much sense to say that they become employees during the winter months and, thus, oscillate in and out of the bargaining unit on a sea­sonal basis. Neither party suggested that as a possible outcome. Although the considerations which favour it are in almost equal balance with those which do not, we have come to the conclusion that, on the evidence before us, the Area Superintendents did exercise managerial functions within the meaning of subsection 1(3)(b) of the Act as of the date of application in this matter.

The other "Superintendents" in dispute

23. In addition to their dispute with respect to the 13 "Area Superintendents", the appli­cant and respondent disagreed about whether the Head Office Superintendent, Ronald Bloomfi­eld, and the Superintendent of Small Dams, Gerry Brousseau, exercised managerial functions as of the application date. The Labour Relations Officer's report records that:

The parties agree that the facts set out in both the Applicant's and the Respondent's briefs with respect to Messrs. Bloomfield and Brousseau is sufficient to determine their status provided that the term "hiring" as used in the parties briefs shall be read and understood to be defined by the "hiring" duties and responsibilities testified to by Messrs. Cunningham, Sherritt and Muir.

The briefs referred to are the statements of material fact and documents relied upon which the par­ties exchanged as a result of our original direction of March 25, 1987.

24. There is no substantial inconsistency between the parties' descriptions of the position of Superintendent, Small Dams. The primary duties and responsibilities of that position involve the operation and maintenance of a number of dams. It is said that the Superintendent of Small Dams is involved in the hiring and supervision of three seasonal employees each summer and that, during the period of their employment, this Superintendent spends approximately 10% of his time super­vising those employees. There is no suggestion that this position has the same budget formulation and wage determination powers as are exercised by the Area Superintendents.

25. From the parties' descriptions of "Head Office Superintendent", it appears that this person carries out day-to-day maintenance and care of the respondent's administrative offices and grounds and "supervises" the work of S similarly-occupied employees: a "mechanical assistant", a "custodial assistant" and three cleaning staff. The material is silent as to the relative proportions of time spent by this person on bargaining-unit work and on supervision of other employees. Other than a statement that the Head Office Superintendent is responsible for interviewing and recom­mending the hiring of applicants for positions under his supervision and that his recommendations have been followed in the past, there is nothing from which we could conclude that this Superin­tendent has "effective control" over the persons he supervises.

26. The Labour Relations Act is intended to extend collective bargaining rights to employees. It is incumbent upon any party seeking to exclude employees from the scheme of the Act to come forward with affirmative evidence that those persons exercise managerial functions: see The Corporation of the City of Thunder Bay, supra, at paragraph 6. The respondent is the person seek­ing to exclude the persons occupying the positions of Superintendent, Small Dams, and Superin­tendent, Head Office. The material on which it is content to have us determine that issue does not support our excluding those positions. Accordingly, we find that the incumbents of those positions did not exercise managerial functions within the meaning of subsection 1(3)(b) of the Act as of the application date.

The Bargaining Unit Description

27. Although it may be said that substantially all of the positions which the respondent labels as "Superintendent" have been found to or were agreed to involve the exercise of manage­rial functions as of the application date, we are not persuaded that this label should be used in exclusionary language in the bargaining unit description. For one thing, not every "Superinten­dent" did exercise managerial functions as of the application date. With respect to the Area Super­intendents, the balance of their duties and responsibilities was very close, and might change in the future as a result either of collective bargaining with respect to the present bargaining unit or the adoption by the respondent of a more centralized approach to determination of the employment and wages and working conditions of casual employees, particularly returnees. The Area Superin­tendents would not and should not remain outside the bargaining unit if the balance of their func­tions shifts so as to diminish the managerial aspects of their positions either quantitatively or quali­tatively. The language we use to describe the bargaining unit will be the language which appears in the parties' collective agreement unless they can agree otherwise. If (as these parties agree) the question at this point is how to describe the first-line managerial position, we think it better in these circumstances to use a generic label rather than the name of a position which may or may not in future involve the exercise of managerial functions. Accordingly, we have determined that the appropriate bargaining unit in this application will be described as follows:

All employees of the respondent in the Cities of Cambridge, Brantford and Waterloo, the Towns of Dunville and Haldimand and the Townships of West Garafraxa, Peel, Pilkington, Guelph, East Luther, South Dumfries, North Dumfries, Brantford and Burford, save and except managers and persons above the rank of manager, professional and graduate engineers employed in an engineering capacity, office and clerical employees, persons regularly employed for not more than 24 hours per week and students employed dur­ing the school vacation period.

In this description, the term "manager" describes a person to whom subsection 1(3)(b) of the Labour Relations Act applies. The Board has found that "Area Superintendents" were "manag­ers" as of the application date herein, while the "Superintendent, Head Office" and "Superinten­dent, Small Dams" were not.

28. A final certificate shall issue with respect to the aforesaid bargaining unit.