The Windsor Star v. Windsor Newspaper Guild Local 239, 1988 CanLII 3770

Ontario Labour Relations Board

[1988] OLRB Rep. April 427

0896-86-M The Windsor Star, Applicant v. Windsor Newspaper Guild Local 239, Respondent

BEFORE: S. A. Tacon, Vice-Chair, and Board Members D. A. MacDonald and M. Jones.

APPEARANCES: Leonard P. Kavanaugh, Carl Morgan and Art Kainz for the applicant; Stephen Krashinsky, Dave Hall, Mary MacKay-Black and Denise Chuk for the respondent.

DECISION OF S. A. TACON, VICE-CHAIR, AND BOARD MEMBER D. A. MACDONALD; April 26, 1988

1. These are the reasons for the Board decision issued February 26, 1988. By letter dated September 2, 1986, a Board Officer was appointed pursuant to an application under 106(2) of the Labour Relations Act in which the applicant employer was seeking a determination as to whether Mary Jane Handy, classified as librarian, is an employee within the meaning of the Act. The appli­cant asserts that Handy is not an employee by virtue of section l(3)(b) of the Act; the respondent trade union disputes that assertion.

2. Examinations of Handy and witnesses called by the applicant and respondent were con­ducted and a number of exhibits filed. Subsequently, a hearing was convened at the parties' request at which counsel made extensive submissions. In the Board's view, it is appropriate to first set out those able and thorough submissions in a highly abbreviated form.

3. Counsel for the applicant reviewed the evidence in considerable detail in support of his position that Handy exercised managerial functions within the meaning of section 1(3)(b) of the Act. Counsel also asserted that the language of section 106(2) of the Act required the Board to undertake a full review of the duties and responsibilities of the individual in dispute. That is, coun­sel argued that the Board practice of restricting its inquiry in certain circumstances to "changes~~ in those duties and responsibilities was not permitted under the Act. Further, it was contended that the relevant date as of which the duties and responsibilities should be ascertained was not the application date but the conclusion of the section 106(2) inquiry or, in the alternative, the conclu­sion (or in the further alternative, the commencement) of the examination of the individual who is the subject of the inquiry. With respect to the relevant date, counsel submitted that the question of the "employee" status should be determined on the basis of the most current assessment of the person’s duties and responsibilities possible, i.e., the inquiry should not be limited to the applica­tion date. Cases referred to in support included: Ontario Hydro, [1981] OLRB Rep. July 931; The Corporation of the City of Thunder Bay, [1981] OLRB Rep. Aug. 1121; The Thunder Bay Public Library Board, [1974] OLRB Rep. Oct. 727; York University, [1975] OLRB Rep. Dec. 945.

4. Counsel for the respondent trade union argued that, as in certification applications, the appropriate point at which to assess the individual's duties and responsibilities was the application date. That cut-off date permitted the crystallization of the issues and evidence at a known point in time and prevented abuse by an employer who, otherwise, would be free to shape those duties and responsibilities in its self-interest. Counsel supported the Board policy of restricting its inquiry to "changes" in duties and responsibilities. It was further asserted that, once a person's status had been determined by the parties, the issue was always one of "changes", that is, the applicant bore a substantial onus to show that the circumstances had changed sufficiently to warrant a different conclusion as to employee status. Counsel did suggest that a different test might apply if the appli­cant was a trade union as the applicant would merely be responding to a situation created by the employer who controlled the work assignments. Counsel also reviewed the evidence in detail in support of his assertion that Handy was an employee within the meaning of the Act and, in this regard, stressed the distinction between "professional" and "managerial" responsibilities. Finally, counsel argued that, in contrast to section 1(3)(b) issues in a certification application, a higher stan­dard existed for exclusion under section 1(3)(b) once the person had previously been agreed to have employee status, as the collective bargaining history favoured retention of the status quo in the interests of labour relations stability. Cases referred to included: Ontario Hydro, supra; Westmount Hospital, [1980] OLRB Rep. Oct. 1572; The Corporation of the City of Thunder Bay, supra; Vagden Mills Limited, [1982] OLRB Rep. June 968; Belleville General Hospital, [1975] OLRB Rep. June 487; The Beacon Herald of Stratford Limited, [1975] OLRB Rep. Feb. 103; The Thunder Bay Public Library Board, supra; East York Public Library Board, [19711 OLRB Rep. Mar. 120; Macleans Magazine, [1983] OLRB Rep. Mar. 401; The Royal Ontario Museum, [1985] OLRB Rep. Feb. 325; Oakwood Park Lodge, [1982] OLRB Rep. Jan. 84.

5. In reply, counsel for the applicant stressed that the statutory duty imposed by section 106(2) did not admit of the "changes" policy of the Board. Rather, it was submitted that section 106(2) recognized the fluidity of labour relations, including the status of persons involved in a col­lective bargaining relationship. This dynamic aspect should be particularly recognized where the parties, as here, are coming out of their first collective agreement which served as a "shaking out" period in the relationship. That is, the initial agreements should not be so immune from alteration. Counsel also pointed out that the Board policy enunciated in Westmount, supra, distinguished between issues arising during the currency of the collective agreement and, as here, in negotiations for a contract renewal. Counsel discounted the potential for abuse by employers seeking to "shape" a individual's duties and responsibilities and disagreed that a different standard for exclu­sion pursuant to section 1(3)(b) should be applied where the trade union was the applicant under section 106(2).

6. Before dealing with the factual findings and assessment of the duties and responsibilities of Handy, the Board must respond to the issue of the scope of the duties and responsibilities exam­ination and the relevant date as of which those duties and responsibilities must be reviewed. Indeed, the question as to the scope of examination itself has two aspects, namely, the Board's "changes" policy and the fact that the Board's endorsement of the instant application was restricted to "changes". The Board intends to consider the latter aspect first.

7. As noted, the Board's endorsement of September 2, 1986, appointing a Board Officer was restricted to an examination of "changes" in the duties and responsibilities of Handy. There was no dispute that, on the information then before the Board, the examination would fall within that period when the Board policy would restrict the inquiry to "changes", that is, the application appeared to have been filed during the currency of a collective agreement. It is not disputed that the applicant raised the issue of the proper scope of the examination at the commencement of the inquiry before the Board Officer and that a full duties and responsibilities examination was con­ducted, subject to the respondent's right to argue before the Board that only changes in those duties and responsibilities should be considered. It is also not disputed that the employer had raised the question of Handy's "employee" status during negotiations for the renewal of the collec­tive agreement and had withdrawn her proposed exclusion from the bargaining unit without preju­dice to its right to bring an application under section 106(2). Had that fact been communicated to the Board at the time of the original application under Section 106(2) of the Act, the usual applica­tion of Board policy would have resulted in a Board order for a full duties and responsibilities inquiry. Counsel for the respondent acknowledged that his argument to restrict the inquiry to "changes" on the ground that the original endorsement was so restricted was technical. The Board agrees with that characterization and sees no basis for restricting the inquiry to "changes" on this ground alone. Clearly, had the Board known the status question had been raised in negotiations, the endorsement would have directed a full inquiry. The applicant properly raised the matter before the examination commenced, the respondent suffered no prejudice and, accordingly, this argument for limiting the inquiry to changes fails.

8. The Board must next deal with the Board policy regarding the scope of the duties and responsibilities examination. In short, the applicant asserted such examinations could never be restricted to "changes" given the language of section 106(2), whereas the respondent contended that such examinations should always be restricted to "changes". Both parties submitted the cur­rent Board policy was inappropriate, as a matter of statutory interpretation or labour relations con­siderations.

9. Prior to the decision in Westmount, supra, in 1980, the thrust of the jurisprudence was to the effect that a party which had agreed at some point on the status of an individual should not be permitted to challenge or litigate that status through a section 106(2) application unless a "sub­stantial" or "material" change in those duties and responsibilities had occurred: Davis Lumber Co. Limited, (1959), 59 CLLC ¶18,184; City of London, [1967] OLRB Rep. Nov. 791; Hydro-Electric Power Commission of Ontario, [1970] OLRB Rep. Jan. 1246; City of St. Catharines, [1966] OLRB Rep. July 270; Oshawa Public Library Board, [1967] OLRB Rep. Nov. 793; Peel Memorial Hospital, [1968] OLRB Rep. May 216. That jurisprudence was not entirely rigid, however. Appli­cations under section 106(2) were considered "timely" and not restricted to "changes" in duties and responsibilities where the question of an individual's status had been raised during negotia­tions for a renewal of the collective agreement and, if not settled in those negotiations, the appli­cant party had expressly reserved its right to bring a section 106(2) application: F. J. Davey Home for the Aged (Algoma), [1974] OLRB Rep. Aug. 558; Belleville General Hospital, [1975] OLRB Rep. June 487.

10. Westmount, supra, summarized the more liberalized approach to section 106(2) applica­tions. As that decision generally has been cited in subsequent decisions, it is useful to set out the relevant passage from Westmount:

11. The parties, however, are currently bound by the collective agreement entered into on May

12,1980. Where parties have by virtue of their collective agreement or other form of agreement settled upon the employment status of a person, the Board at one time refused to let either party at any time withdraw unilaterally from that agreement by means of an application under section 95(2) of the Act. (See, for example, Belleville General Hospital, [1975] OLRB Rep. June 487). The basis for this policy is that a party having entered into an agreement on the status of a particular person, cannot, in the absence of a material change in duties and responsibilities, come before the Board and claim that a "question" exists as to the status of that person. More recently, the Board has liberalized this policy so as to permit an application to be brought during negotiations for the renewal of a collective agreement, after the collective agreement has expired. Parties therefore are no longer bound indefinitely to the terms of an initial agreement. The Board will not however, permit an application (other than one relating to changes in the duties and responsibilities) to be brought during the first set of negotiations following agreement upon the status of the person in question (Collingwood General Marine Hospital, [1975] OLRB Rep. Jan. 18). Nor will it permit a full application to be brought during the term of a collective agreement, unless it is satisfied either that the position is a new one arising during the term of the collective agreement, or that the applicant prior to entering into the collective agreement expressly reserved its right to bring a subsequent section 95(2) application on the person in dis­pute. Otherwise the applicant will be taken to have acquiesced in the position of the other party, and to have accepted it at least for the term of that collective agreement. The Board upon receipt of an application under section 95(2) during the term of a collective agreement therefore automatically limits the appointment of a Board Officer in inquiring into changes in the duties and responsibilities since the date the agreement was entered into (e.g. Ontario Hydro, [1975] OLRB Rep. July 560). If the applicant feels that the appointment should not be limited to "changes", it may write to the Board setting out its reasons, and the Board may hold a hearing to deal with the proper terms of the appointment.

11. The determination of the scope of the duties and responsibilities examination is now rel­atively complex and may be summarized as follows. In respect of applications during the term of the collective agreement, the examinations will be restricted to "changes" since the commence­ment of the collective agreement unless the position is a new one or unless the applicant raised the matter in negotiations and, during those negotiations, reserved its right to bring a section 106(2) application if the matter was not settled in bargaining. In these instances, the examination will not be so restricted. In respect of applications during the "open" period, i.e., during negotiations for a renewal of the collective agreement, a full duties and responsibilities examination generally will be directed. An examination, however, will also be restricted to "changes" in respect of applications brought during the first set of negotiations following the parties' agreement as to the status of the individuals now in dispute. As noted, subsequent cases have followed the policy enunciated in Westmount: Owen Sound Public Utilities Commission, [1981] OLRB Rep. Nov. 1607; St. Joseph's General Hospital, [1981] OLRB Rep. Nov. 1638; The Wellesley Hospital, [1981] OLRB Rep. Dec. 1843; Cochrane Temiskaming Resource Centre, [1983] OLRB Rep. Feb. 222; The Corporation of the City of Brockville, [1982] OLRB Rep. May 655; Pathe Video Inc., [1984] OLRB Rep. Aug. 1123; St. Mary's General Hospital (Kitchener), [1986] OLRB Rep. Apr. 564.

12. Throughout the development of the jurisprudence, the Board has grappled with the issues of the extent to which a status determination is or should be binding for the future and of what constitutes a determination. In effect, the Board utilized estoppel principles to restrict subse­quent litigation of an individual's status. Parties were not permitted to resile from their agreements as to the status of an individual. The jurisprudence subsequently relaxed the application of the estoppel principles to permit unrestricted examinations in certain time periods. In consequence, however, the "restricted" or "full" examination has become an increasingly artificial distinction, dependent, in most circumstances, upon the timing of the application as within or outside the ''open'' period for collective bargaining or upon subtle assessments as to whether the right to apply under section 106(2) was "expressly reserved" during the last round of negotiations. An "express reservation" is not readily determined in the context of bargaining by persons without legal train­ing and whose focus at that point in time is the settlement of a collective agreement.

13. In the Board's view, based on its experience with section 106(2) applications since Westmount, supra, it is preferable to abandon that artificiality and appoint a Board Officer to con­duct a full duties and responsibilities examination where the Board is satisfied that a "question" has arisen as to the status of an individual. The statutory language permits a section 106(2) applica­tion during negotiations and during the currency of a collective agreement and appears to make no distinction between those time periods with respect to the treatment of an application. The section itself reads:

(2) If, in the course of bargaining for a collective agreement or during the period of operation of a collective agreement, a question arises as to whether a person is an employee or as to whether a person is a guard, the question may be referred to the Board and the decision of the Board thereon is final and conclusive for all purposes.

The "employee" or "guard" status of an individual is clearly a matter exclusively to be determined by the Board. The Board should not deprive itself from hearing evidence as to the mischief against which section 1(3)(b) or section 12 is directed simply because the timing of the application does not fit within an artificial category leading to a "full" duties and responsibilities examination. The par­ties are not to be deprived, through recourse to an equitable principle, from coming to the Board for adjudication on the merits in respect of a matter specifically and exclusively within the Board's statutory authority.

14. Therefore, the Board will no longer restrict the evidence to be adduced before a Board Officer with respect to the duties and responsibilities of the person(s) in dispute to "changes" in those duties and responsibilities, as in the past. Section 106(2) applications commonly are initiated through an often sparse letter to the Board merely naming the individual(s) in dispute. Hence­forth, the applicant must, in addition, indicate the basis for the application, i.e., the nature of the position, including duties and responsibilities (to the extent known, where the applicant is a trade union), the historical dimension to the position (if any) including any Board determinations and parties' agreements and how the mischief against which sections 1(3)(b) or 12 are directed has ari­sen or has ceased. The respondent must outline fully any grounds it asserts as to why the Board should not entertain evidence as to the duties and responsibilities of the person(s) in dispute. The Board must be satisfied a "question" has arisen as to the "employee" or "guard" status of the indi­vidual(s) in dispute before a duties and responsibilities examination will be directed. Where the individual's status has not been previously determined by the Board in a certification or earlier 106(2) application or by specific agreement of the parties, an examination will generally be directed. Where the Board has previously determined the status of a person in a certification appli­cation or prior section 106(2) application or where the parties have reached a specific agreement as to the person's status, the Board will not permit evidence as to the person's duties and responsibili­ties to be adduced before a Board Officer unless the Board is satisfied~ on the face of the applica­tion, that it appears the mischief against which section 1(3)(b) or section 12 is directed has arisen or has ceased. Where the Board is not so satisfied, the application may be dismissed without a hear­ing. In the Board's opinion, this policy does not undermine agreements of the parties as to a per­son's status and avoids repeated or frivolous examinations, yet provide sufficient flexibility to ade­quately respond to circumstances where the mischief against which sections 1(3)(b) and 12 are directed has arisen or has ceased.

15. The question of "changes" in duties and responsibilities moves from a vehicle for ini­tially and artificially classifying the type of examination to an evidentiary matter. That is, the status quo and the duties and responsibilities of the disputed individual, including any changes thereto, become matters of evidence and appropriate weight in the circumstances of each case. This histori­cal dimension, the placing of "changes" in its historical context, is currently a theme in the Board's jurisprudence dealing with section 106(2) applications: Corporation of the City of Thunder Bay, supra; Vagden Mills, [1982] OLRB Rep. June 968; Kingston General Hospital, [1983] OLRB Rep. Apr. 551. It is useful to refer to the following passage from the Corporation of the City of Thunder Bay, supra:

16. ...Furthermore, (and in addition to the usual rule that "he who asserts must prove"), a party seeking to alter a status quo which had been settled and embodied in a series of collective agree­ments, must be able to provide a firm evidentiary foundation for its new position. The Board in Windsor Transit, 11979] OLRB Rep. Mar. 262 put it this way:

Counsel argued that the respondent had included the disputed classifications in the bargaining unit for more than 15 years, and should be estopped from now claiming that these employees are managerial. There is considerable merit in this argument. Where, over an extended period of time, an employee has been included in a bargain­ing unit and has not been treated as "managerial", there is a natural inference that he has not been exercising managerial functions and is, therefore, an "employee" within the meaning of the Act. As evidentiary onus rests upon any party who seeks to estab­lish the contrary. Generally, the Board will require evidence of a change in duties and responsibilities before the Board will alter the previously agreed upon status quo. At the same time, the Board recognizes that section 95 relief is not restricted to situa­tions in which parties are negotiating their first collective agreement. Organizations and systems of management can change. Over time the degree and focus of decision-making power can be altered.

Nevertheless, if a person has been included in a bargaining unit for some years, there has not been a significant alteration of his duties and responsibilities, and there is little concrete evi­dence of the kind of "mischief' to which section l(3)(b) is directed, it is unlikely that this Board will conclude that the individual exercises managerial functions and must now be excluded from the unit. An employer's organizational scheme has a historical dimension which must be consid­ered when the evidence is being weighed.

and from Vagden Mills, supra:

12. Had the situation of Ms. MacLellan been viewed afresh or been raised shortly after her pro­motion to her present position, the Board might well have concluded that, on balance, her supervisory or admonitory functions are purely incidental to her quality control concerns, and are not such as to require her exclusion from the bargaining unit. But it appears that she was always treated as excluded by both parties, and in consequence, developed a relationship with her employer (for example, by taking minutes of grievance meetings on behalf of the employer) which associated her with the "management team". This historical dimension cannot be ignored when deciding close cases; for as the Board observed in Corporation of the City of Thunder Bay, supra;

"A party which is attempting to alter a status quo which reflected the earlier percep­tions of the parties concerning an individual's status, and which has apparently worked adequately for some years must recognize the importance of this historical dimension, and be prepared to adduce clear evidence as to why a change is required to accommodate the interest section 1(3)(b) was designed to protect."

We do not think the evidence adduced by the applicant union falls within those parameters and having regard to it in its totality (including the historical dimension wherein the union accepted for many years that the quality control supervisor should be excluded from the bargaining unit,) we are of the opinion that Ms. MacLellan exercises managerial responsibilities within the mean­ing of section 1(3)(b) of the Act and must therefore be excluded from the applicant union's bar­gaining unit.

The Board affirms the principles just cited in the context of the Board's new policy in dealing with section 106(2) applications.

16. For the foregoing reasons, then, the Board concludes that the duties and responsibilities examinations of Handy should not be restricted to "changes

17. The Board next turns briefly to counsels' submissions as to the effective date as of which those duties and responsibilities should be measured. Briefly, counsel for the applicant asserted the appropriate date would be the conclusion of the section 106(2) inquiry, or, in the alternative, the conclusion (or, in the further alternative, the commencement) of the examination of the individual who was the subject of the inquiry in order to ensure the determination was on the basis of the most current information available. Conversely, counsel for the respondent contended that the application date was the most appropriate to crystallize the issues and, thereby, prevent abuse by the employer seeking to "develop" the duties and responsibilities in its self-interest. In the Board's view, it is not necessary to conclusively resolve that issue in the instant case because the Board's ultimate conclusion on the merits would not be different whether the duties and responsibilities assessment was restricted to the application date or to those dates suggested by applicant's counsel.

18. The Board notes that the new approach does not affect several other aspects of the sec­tion 106(2) jurisprudence. Specifically, only a party to the collective agreement or bargaining rela­tionship (the employer or the trade union) may apply under section 106(2); the employees in the bargaining unit do not have standing to seek such a determination: Central Park Lodges, supra; Wallace Barnes Limited, (1961) 61 CLLC ¶16,198; Indusmin Limited, [1975] OLRB Rep. Mar 184; York University, [1978] OLRB Rep. Aug. 790. However, either such party may apply under sec­tion 106(2) and the application will not be regarded differently depending on the identity of the applicant. Further, the Board assesses the evidence of duties and responsibilities of disputed per­son(s) only in relation to whether those persons are "guards" or "employees" for purposes of the Act, and not whether they are excluded from or included in the bargaining unit, although, in many instances, the "managerial-employee" status determination will implicitly resolve the latter ques­tion as well: Northern Telecom, [1983] OLRB Rep. July 1134. It is for arbitration to resolve a dis­pute concerning solely the bargaining unit status of an individual. The Board, though, does have jurisdiction to determine the identity of the employer in a section 106(2) application where such is in dispute notwithstanding agreement that the persons themselves are employees: Ontario Hydro, supra. Finally, the jurisprudence as to the purpose of the section 1(3)(b) or section 12 exclusion and the various indicia of managerial or employee or guard status are affirmed: The Corporation of the City of Thunder Bay, supra, and the cases cited therein.

19. The Board now deals with the merits of the application, i.e., whether Handy is an employee within the meaning of the Act. The applicant asserted that Handy should be excluded as "managerial" by virtue of section 1(3)(b). The jurisprudence dealing with section 1(3)(b) of the Act has been thoroughly canvassed in J. M. Schneider Inc., sup ra. The Board does not regard it as necessary to reiterate that jurisprudence herein but, rather, affirms the principles and consider­ations expressed in J. M. Schneider, supra, and the cases cited therein.

20. The Board, in reaching its findings of fact in the instant case, has reviewed the transcript of the examinations at which the parties were afforded full opportunity to question witnesses and to lead relevant evidence, both documentary and viva voce, in support of their respective positions. The Board has weighed and assessed all of that evidence and the documentary material filed. In the Board's view, it is more appropriate to indicate its factual findings at the same time that the facts in the instant case are placed in the context of the jurisprudence, rather than deal with those matters sequentially.

21. The issue the Board must determine is whether Handy should be considered "manage­rial" within the meaning of section 1(3)(b). In determining that issue, for the reasons noted earlier, the Board must evaluate the full duties and responsibilities of Handy as of the date the Board Offi­cer's inquiry commenced. The Board notes that the focus has been the actual duties and responsi­bilities rather than title. Specifically, the Board's conclusion is irrespective of whether Handy was viewed or called "chief librarian" or "librarian".

22. Handy, who commenced her job in January 1984, is responsible for the day-to-day operation of the library and for assessing, recommending and implementing a major reorganization of the library to bring that department into "the 21st century". She reports directly to C. Morgan, the editor. With respect to the library reorganization, Handy conducted research, formulated a proposal and formally recommended a specific firm to conduct the automation of the library ser­vices, i.e., the storage and retrieval of information. That recommendation was accepted. Handy evaluated the access to the library by the public and the library hours generally. She determined that the hours of public access should be reduced and the Saturday morning shift eliminated. Those changes were implemented. Handy assigned various duties to the staff and altered those duties as appropriate. Handy concluded that additional staff were required for the library to function prop­erly. When she took up her post, the library had three full-time staff - herself, D. Chuk and S. Rowe. Since her hiring, Handy advertised, interviewed, hired and trained, as needed, two part-time temporary staff, one full-time permanent staff and one full-time temporary staff member. She formulates the library's budget and her recommendations as to equipment purchases have been approved. It is accurate to note that "final" approval, in one sense, of library budget, purchases, hours, etc. lies with the editor, Morgan, and, ultimately, the publisher. It is evident, however, that those sorts of decisions are effectively made by Handy. Even if her "decisions" are characterized as "recommendations", they are "effective recommendations" which, in the context of the juris­prudence, support a conclusion that Handy is "managerial".

23. Handy also approves overtime and time off, schedules vacation and completes attend­ance records for payroll. Those duties, as well as training new employees, are also performed by other department heads, some of whom are included in and others excluded from the bargaining unit. While such responsibilities, in isolation, would not support Handy's classification as managerial, those duties, in the context of her other responsibilities, strengthen rather than weaken that classification. Moreover, Handy not only trained new employees, she also trained the existing staff with respect to the electronic equipment installed as part of the automation of the library.

24. The Board is cognizant that there must be a sophisticated assessment of duties and responsibilities in a professional context in connection with section 1(3)(b) of the Act. Much of the jurisprudence has concerned the nursing profession but some has dealt with professional librarians as well. The Board has reviewed the cases cited by counsel but does not regard it as useful to com­ment upon those cases individually or at length. All cases affirmed the general indicia for charac­terizing a person as an "employee" or "managerial" and the result in each case reflected the partic­ular constellation of duties and responsibilities by the individuals in dispute in the context of that employer's organization. In several cases, the employee status of the "librarian" was resolved on agreement (e.g., MacLean Magazine, supra) or not directly an issue (e.g., The Beacon Herald of Stratford Limited, supra; East York Public Library Board, supra). In the last noted case, chief librarian, assistant chief librarian and librarians in charge of branches were excluded whereas in The Thunder Bay Public Library Board, supra, the branch librarian was regarded as an "em­ployee", in contrast to the district librarian who was "managerial". While none of the cases are directly on point, the most helpful to the instant determination is probably York University, supra, which supports the applicant's position. There, the head of acquisitions in the law library was excluded as having "effective control" of that operation notwithstanding that she had "subsumed a managerial function that may very well not have been anticipated in her job description". In the instant case, Handy is responsible for and has "effective control" over the library in a sense which goes beyond the "professional librarian" context and is "managerial" in nature. As noted infra (at paragraph 33), the evolution of Handy's responsibilities is yet further in the direction of the "man­agerial" end of the "manager-employee" continuum.

25. The Board is also sensitive to the concerns expressed in J. M. Schneider Inc., supra, that, where the alleged "manager" has only a small number of subordinates, the Board will care­fully scrutinize the situation for concrete instances of the actual decision-making authority and that "an employer has some onus to organize its affairs so that employees are not occasionally placed in such positions of potential conflict of interest if that result can readily be avoided". Indeed, the Board therein cautioned that the "sprinkling" of managerial duties over a number of persons might well result in the exclusion of none of them as managerial. Having carefully reviewed the evidence in the instant case, the Board is satisfied that the presence of Handy in the bargaining unit does raise precisely the "mischief' which section 1(3)(b) was intended to avoid.

26. Notwithstanding respondent counsel's vigorous attempts to minimize the "managerial" nature of Handy's duties and her "interchangeability" with the other staff, specifically D. Chuk and S. Rowe, the only reasonable conclusion is that Handy's role is qualitatively different. The matters noted in paragraphs 26, 27 and 28 need not be repeated here. Beyond that, it is apparent that, in Handy's absence, Rowe and/or Chuk assume only routine aspects of Handy's position. Any significant matters are referred to Morgan or Handy is contacted by telephone if possible or simply await Handy's return. That Handy, when at work, will also answer the telephone if no one else if available or photocopy something needed immediately does not detract from the overall managerial cast of her job.

27. The involvement of an individual in the discipline and the evaluation of other workers has always been closely examined given the inevitable conflicts which would arise if persons with critical authority in such areas were included in the same bargaining unit with such workers. In the instant case, Handy has faced precisely such conflicts in seeking to fulfill her responsibility for the library's operation. On one occasion, Handy instructed D. Chuk to refrain from spending so much time on personal telephone calls during working hours. Briefly put, Chuk did not take kindly to such an admonition from a "fellow employee". The incident escalated and was more or less resolved at a meeting of Handy, Chuk, Morgan and D. Firby, the union president. Respondent's counsel strenuously tried to characterize the incident as a "personality conflict". The Board dis­agrees. What happened was an attempt by Handy to exercise her supervisory authority so as to prohibit what she regarded as an inappropriate use of the telephone for personal matters during working hours. That attempt, not surprisingly, was opposed by an employee with roughly 15 years service in the library who resented that "intrusion" by a "co-worker". Handy is responsible for running the library. There are no other "management" personnel to assume a disciplinary role as Handy reports directly to Morgan and the library is functionally quite distinct from the other departments. This is not an instance where an employer has multiplied "managerial-sounding" job titles and sub-divided its organizational structure in an effort to proliferate "management" per­sons.

28. A similar conflict arose over the attempt by Handy to evaluate her staff. Chuk and Rowe (another long service employee in the library) adamantly opposed such evaluations. Again, meetings with Firby and Morgan ensued which confirmed that Handy could not conduct "formal" evaluations as only "management" could do so and she was a bargaining unit member. The result is not to confirm Handy's bargaining unit status but, again, to underscore the inherent conflicts which would repeatedly surface if Handy was to remain in the bargaining unit. Realistically, Handy is the only person who could evaluate the library staff and must do so to properly carry out her responsibilities.

29. Several other matters are worthy of comment. One is that Handy's position bears mar­ginal resemblance at best to that of F. Curry, the former "librarian" who retired in December 1983. More importantly, the issue before the Board is not what Curry ostensibly did but what Handy actually does. The Board's decision is based on an assessment of the latter. Secondly, Handy's job has evolved since assuming her position in January 1984 and the development has con­sistently been in the direction of increasing the "managerial" aspects and lessening more routine duties given the changes in the operation of the library department with the advent of electronic storage and retrieval of information. Thirdly, the parties' collective bargaining relationship itself is in its early stages. The respondent was certified in June 1983 and the first collective agreement set­tled in April 1984, effective January 1, 1984 to December 31, 1985. The second collective agree­ment, covering January 1, 1986, to December 31, 1987 was finalized in May 1986. It is to be expected that there be some "shaking out" during this period particularly given the overhaul of the library functions. This is not an instance where an individual has functioned for many years either in or out of the bargaining unit in the context of a long-standing collective bargaining relationship. In the Board's view, the initial readjustment period flowing from the inauguration of a collective bargaining regime has revealed precisely the mischief against which section 1(3)(b) was directed, namely, the inappropriateness of the continued inclusion of Handy in the bargaining unit.

30. For the foregoing reasons, this Board finds that Handy exercises managerial functions within the meaning of section 1(3)(b) of the Act. Accordingly, the application under section 106(2) of the Act is granted.

DECISION OF BOARD MEMBER M. JONES;

1. I dissent from the majority decision. At issue in this decision are two fundamental alter­ations to Board practice: the need to prove changes in a position and the need to expressly reserve at the bargaining table the right to bring an application.

2. The new detailed procedures for future applications of this type would appear to have considerable merit. Also, the support for making a duties and responsibilities review a full one appears to be simply a recognition of the reality of most examinations that occur in this type of complaint.

3. However, at risk in this decision is the practice of requiring a change in duties to be proven before a change in status can be justified. The standard tests for managerial and confiden­tial duties do not assist in situations such as this one where the issues revolve around professional status. The decision may be interpreted as replacing the objective yardstick of actual changes in the job with an as yet to be determined different emphasis. When one considers the type of evidence that might be relevant, the evidence would be of changes unless any prior determination or negoti­ation or other agreement as to the person's status fell into question as well. Consequently, an effect of this decision may be to lessen the weight of the agreements of the parties as this has been reflected through the history of job postings, certifications and negotiated agreements. The Board has traditionally viewed these agreements between the parties as the best possible representation of the facts and has accepted such agreements (and prior determinations) as evidence of the great­est significance. This decision appears to undermine that importance and in my view such a move would not assist labour relations.

4. In addition, this decision implies that the "expressed reservation" of the negotiating procedure is no longer necessary before such an application may be made. The failure to express a reservation about the status of a particular position during the course of bargaining would appear to become part of the history of the position and therefore part of the evidence once a complaint has been made and is being heard. This does not recognize the dynamics of the negotiating pro­cess. In effect, this decision implies that a particular position could be tabled during negotiations, discussed by the parties, decisions made on the basis of the discussions, withdrawn by the tabling party, and decisions made on the basis of the withdrawal. All this occurs within the very inexact process of giving and taking during negotiations. A party could then turn around and ignore the process and apply virtually anytime for a determination of the person's status. If it is no longer nec­essary to declare this intention at the bargaining table, the balance will shift to the detriment of the other party. The effect of this change of practice may be very far reaching and not conducive to the establishment of harmonious labour relations.

5. With respect to this individual's status, I disagree with the majority. When Ms. Handy joined the Windsor Star, she did so in a bargaining unit position. She then proceeded to do the duties outlined in the job posting she responded to. This position was included in the bargaining unit at certification and in the first agreement.

6. From the beginning, the individual indicated that she felt her professional status was somewhat diminished by the actual job. Her attempts to change the situation and place herself in charge were all defeated by her supervisor. Much evidence exists that the bulk of her work is per­formed by the other two full-time members of the department as well. Certainly, their work sta­tions were similar in status, their duties interchangeable.

7. Also shared were some of the functions which could be deemed to be most significant, such as cash access and training of part-timers. Taking the total testimony, there is nothing to sug­gest that Ms. Handy did or needed to supervise the other employees in this very small department.

8. Regarding the claim that she exercised managerial functions, while not being invited to management meetings, there is not a single instance to uphold that claim. It is most unlikely that a lot of managers consider delivering memos and picking up routine filing material to be part of their jobs. In fact, numerous references are made, some of them in writing, to her need to seek permis­sion. Even her recommending power was extremely limited, as her testimony over the automation of the library proved. This part of her job, to research and advise on automation, was included as part of the initial posting and hiring and thus should not be pointed to now as proof that she is a manager.

9. The only example of the alleged managerial duties was the cancellation of Saturday office hours. It is difficult to characterize this as a management decision when it would likely have been a collegial decision within the department. All other attempts at decision-making were squel­ched, and Ms. Handy's attempt to discipline is a prime example.

10. Within the testimony, three aspects strongly oppose the decision to declare her excluded from the bargaining unit:

i) While much is made of her control over the automation of the library, she, herself, testified that her two recommendations about automation -- first, not to do it, and second, her original choice of company -- were both overturned by her superiors in the company~ thus refuting her recommending power.

ii) The decision to cancel the Saturday work hours is offered as proof of her managerial status. However, until what was probably a collegial decision was made, she, like the other two members of the staff, worked her share of Saturdays and substituted a mid-week half-day off, just like all employees.

iii) Extensive examination about the practices of other department heads who were members of the bargaining unit was instructive in that it showed that all of their decisions, like all of Ms. Handy's, ulti­mately required approval.

11. Of great concern should be the impact of this decision on the make-up of the bargaining unit. Counsel for the Union made the point that in unionized workplaces where small departments exist to service the primary function of the enterprise, it is not unusual for there to be no excluded manager of the department but rather a lead-hand arrangement. Certainly, there are numerous agreements in which librarians work professionally and are deemed to be non-managerial. These two elements are not in contradiction in this case and I would have dismissed the application.