Canadian Union of Public Employees v. Board of Education for the City of Etobicoke, 1989 CanLII 2987

[1989] OLRB Rep. December 1203

1926-88-M Canadian Union of Public Employees, Applicant v. Board of Education for the City of Etobicoke, Respondent

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

APPEARANCES: Helen O'Regan for the applicant; John Saunders and Chris Koester for the respondent.

DECISION OF THE BOARD; December 21, 1989

1. On November 4, 1988, a representative of the applicant trade union sent the following request to the Registrar:

RE: Board of Education for the City of Etobicoke and Canadian Union of Public Employees

During the course of negotiations the parties were unable to resolve the matter of whether or not the classification of Secretary V is appropriate for inclusion in the bargaining unit.

We therefore request that this matter be resolved by requesting the OLRB assign a field officer to make the appropriate inquiries into the duties and responsibilities of the said Secretaries and subsequently the OLRB make a determination as to their inclusion or exclusion from the said bargaining unit.

Upon being informed of the trade union's request, the respondent's manager of labour/employee relations advised the Registrar as follows:

Further to your letter of December 1, 1988, please be advised that the Board of Education for the City of Etobicoke challenges the assertion of the Canadian Union of Public Employees that the position of Head Secretary - Secondary School (Secretary Grade V) is an employee for the purposes of the Labour Relations Act. The Board of Education asserts that this position is excluded from the bargaining unit under Section l(3)(b) in that it exercises managerial functions.

In the opinion of the Board of Education this position should remain excluded from the bargaining unit since it performs the following responsibilities:

• provides supervision of the school's office staff in the day-to-day administrative routines and operation of the entire school;

• assists in the interviewing, selection and appraisal of office staff;

• provides guidance, discipline and training of staff, as required;

in consultation with the principal, allocates, assigns and checks work performed by the office staff.

For your reference I am enclosing a copy of the Position Description for Head Secretary-Secondary School (Secretary Grade V) which is used primarily for recruitment purposes. I am also enclosing a copy of the Labour Boards's [sic] decision, dated April 12, 1988, with respect to the certification of the bargaining unit. Item 5 was adhered to with respect to the negotiations of a first Collective Agreement. However, having considered the Union's request to include this position in the bargaining unit, the Board of Education was of the opinion that it was properly excluded for the above noted reasons.

2. In late February 1989, a Labour Relations Officer met with representatives of the applicant and respondent, who agreed that the evidence of three named persons would be representative of all persons in the classification Secretary Grade V/Head Secretary. Examinations of those three persons were conducted on May 1 and May 8, 1989 by the Labour Relations Officer, a representative of the applicant and counsel retained by the respondent. A transcript of those examinations was prepared and forwarded to the parties. The applicant's representative and the respondent's counsel made written representations as to the conclusions the Board ought to reach on the basis of the transcribed evidence as to the question whether persons employed in the position of Secretary Grade V/Head Secretary are deemed not to be employees by operation of the provisions of clause 1(3)(b) of the Labour Relations Act ("the Act"). In his written submissions, the respondent's counsel requested an oral hearing on this question.

3. When the application finally came on for hearing before this panel, the respondent's counsel asserted for the first time that the question whether those employed by the respondent as Head Secretaries exercise managerial functions or are employed in a confidential capacity in matters relating to labour relations was not one which the Board should answer under subsection 106(2) of the Act, for reasons to which we shall refer shortly. In the circumstances, we heard the parties' argument with respect to both the question the respondent's counsel first raised at the opening of the hearing and the question which the parties and the Board had come prepared to deal with at that hearing, and reserved our decision on both questions.

Should the "employee status" of Head Secretaries be determined in this application?

4. Counsel for the respondent drew our attention to the certification decision referred to in his client's letter to the Board of December 8, 1988. The decision recites that the parties met with a Labour Relations Officer on the day scheduled for the hearing of the matter, reached agreement on all matters in dispute between them and further agreed to waive their right to a formal hearing in the matter. It is apparent from the form of the decision that there was no formal hearing and that, therefore, the decision would have been made on the basis of the Labour Relations Officer's report and the membership evidence filed by the applicant. Paragraphs 3, 4 and 5 of the decision read as follows:

5. Having regard to the agreement of the parties, the Board further finds that all office and clerical employees of the respondent in Etobicoke in its secondary schools, save and except supervisor, persons above the rank of supervisor and persons for whom any trade union held bargaining rights as of March 2nd, 1988, constitute a unit of employees of the respondent appropriate for collective bargaining.

6. For the purpose of clarity the Board notes that the term "supervisor" as it appears in the bargaining unit description includes Secretary Grade 5/Head Secretary.

7. As part of the settlement of the issues in this application the parties agreed that notwithstanding the agreement on the bargaining unit and the clarity note the respondent agrees the applicant may raise the matter of the individual duties of Secretary Grade

5/Head Secretary at the forthcoming collective bargaining for consideration of their inclusion in the bargaining unit.

On the basis of the membership evidence filed, the Board (differently constituted) certified the applicant without a vote. It is common ground that the parties have since entered into a collective agreement in which the respondent recognizes the applicant as bargaining agent for a bargaining unit described in the language used in paragraph 3 of the Board's certification decision. It is also common ground that that collective agreement does not contain any express agreement with respect to the question whether the term "supervisor" as it appears in the recognition clause of that agreement includes or excludes Secretary Grade V/Head Secretary.

5. Having regard to paragraph 4 of the certification decision, counsel for the respondent argues that the position in question in this application was expressly excluded from the bargaining unit for which the applicant was certified. He submits that the Board does not and should not entertain applications under section 106(2) to determine the employee status of persons and positions expressly excluded from the scope of the collective bargaining relationship between the parties to the application. He relies on three decisions of the Board in that respect: City of St. Catharines, [1966] OLRB Rep. July 270; Township of Scarborough, [1966] OLRB Rep. Sept. 433; and, Dunlop Canada Limited, [1967] OLRB Rep. Apr. 95. His only explanation for the respondent's delay in raising this point is that counsel was not retained until after the Labour Relations Officer began his inquiry. We note that counsel was in attendance at the examination of employees in this matter roughly five months before the hearing at which this point was raised for the first time. That period of delay is unexplained, as is counsel's failure to raise this point in the statement of desire to make representations which he filed six weeks before the hearing date.

6. The applicant's representative took the position that the question whether Head Secretaries exercised managerial functions or were employed in a confidential capacity was unresolved at the time of the certification, and the parties had then agreed to discuss this during collective bargaining. During collective bargaining, she said, the parties had agreed to have the inclusion or exclusion of Head Secretaries determined by means of an application to this Board under subsection 106(2). As there had been no advance notice that this point would be raised, the applicant's representative did not have witnesses present who could testify as to the parties' discussions on this point.

7. Trade union and employer parties to certification applications not infrequently disagree about whether certain individuals or positions are excluded from the bargaining unit which is the subject of the application by operation of clause 1(3)(b) of the Act. If the dispute affects the description of the bargaining unit or the outcome of the application, it is generally resolved in the application. When the dispute affects neither the description of the bargaining unit nor the applicant's entitlement to a vote or to certification without a vote, the Board can and does dispose of the application without resolving the dispute, leaving it to be dealt with by a subsequent application under subsection 106(2) if the parties are unable to resolve it themselves: Robin Hood Multi-Foods Inc., [1985] OLRB Rep. July 1159. The Board does not do that, however, unless it is satisfied that the applicant trade union has the requisite membership support in the bargaining unit on each and every possible outcome of the dispute. In other words, such an outcome takes into account the wishes of the persons whose inclusion in the bargaining unit is at issue.

8. The Board's decision of April 12, 1988 does not treat the matter of inclusion or exclusion of Head Secretaries as a matter in dispute which did not need to be resolved. On the contrary, the language of the decision quite clearly shows the Board acting on an agreement by the parties that the position of Head Secretary would be excluded from the bargaining unit for which the applicant was to be certified. The rather unusual language of paragraph 5 of the decision suggests

that the parties disagreed about the reason for the agreed exclusion, since there would be no question of a subsequent extension of bargaining rights to the disputed position if both parties agreed that it was excluded from any bargaining unit by operation of clause 1(3)(b) of the Act. Having regard to the language used in the decision, the panel which made it would have assessed whether it could certify the applicant for the bargaining unit on which the parties had agreed without regard to the wishes of those then employed in the position of Head Secretary. In the circumstances, the best sense which can be made of the agreement referred to in paragraph 5 of the decision is that the parties contemplated the possibility of extension of the applicant's bargaining rights by voluntary recognition at the bargaining table if the parties could agree that the individual duties of those employed in that position did not bring them within ambit of clause 1(3)(b) of the Act.

9. The possibility that we would so interpret the language of the Board's decision of April

12, 1988 was brought to the attention of the applicant's representative during argument on this point. We observed that the Board would not look behind the language of the decision in the absence of an application for reconsideration and noted that such an application would ordinarily be dealt with by the panel which made the original decision. We asked the applicant's representative whether she proposed to make such an application. After retiring to consider the matter, she advised us that the applicant did not propose to make such an application. She reiterated her understanding that, during the negotiation of their first collective agreement, the parties had agreed that the inclusion in or exclusion from the bargaining unit of Head Secretaries would turn on the outcome of an application under 106(2) with respect to that position.

10. The applicant's representative was unable to answer our further questions with respect to the precise nature of the agreement she alleged had been made at the bargaining table. She undertook to file a written statement on that subject at a later date. As it appeared possible that the applicant would allege an agreement at the bargaining table that it would have bargaining rights for Head Secretaries if the Board found them to be employees within the meaning of the Act, we invited and received the submissions of counsel for the respondent on the proposition that the existence of such an allegation, even if disputed, was a sufficient reason for the Board to answer the question posed under subsection 106(2) in the circumstances of this case.

11. Following our hearing, the applicant filed a written statement by Jack Kirkby that

on or about July 12th 1988, while in contract negotiations with the Board of Education for the City of Etobicoke and Local 2897 of the Canadian Union of Public Employees, I reached an agreement with Mr. Christopher Koester, Personnel Officer for the Board of Education, that the issue of whether or not the Grade 5 Secondary School Secretaires [sic] employed by the Board of Education would become members of the bargaining unit, would be decided by the Ontario Labour Relations Board through a determination under Section 106(2) of the Ontario Labour Relations Act.

12. Subsection 106(2) of the Act provides that

(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.

As it has repeatedly observed, the question the Board addresses under this subsection is whether an individual is an employee for the purposes of the Act, not whether he or she falls within the scope of a trade union's bargaining rights: see Northern Telecom, [1983] OLRB Rep. July 1134. The three decisions on which the respondent relies stand for the proposition that the Board need not entertain a trade union's application to determine the employee status of an individual whose position is clearly excluded from the scope of the applicant's bargaining rights, where the application is brought in order to pave the way for a request for voluntary recognition. In those cases there was no allegation that the employer had agreed that the disputed individuals would fall within the scope of the applicant union's bargaining rights if they were found to be employees for the purposes of the Act. It does not appear to us inconsistent with the principles elaborated in those decisions for the Board to entertain an application under subsection 106(2) with respect to a job classification about which such an agreement has been made. Of course, we are not at this point in a position to say that there is such an agreement. All that can be said is that the applicant alleges the existence of such an agreement.

13. If the respondent had raised this objection at the outset, the Board might have chosen to resolve any dispute about what was agreed at the bargaining table before entering into any enquiry about the question raised by the applicant. As it is, all concerned had expended considerable time and energy on the question raised by the applicant before the respondent raised this last minute objection. Indeed, the late raising of the objection had made it prudent for the Board to actually hear the parties' argument on the merits of the question before deciding whether to give effect to the objection. With all that effort already expended on a determination on the merits, we think it makes more sense to give the parties that determination, for what it is worth, than to first inquire into matters which might have been, but could not now be, inquired into before that effort was expended.

14. We therefore propose to express our opinion on the question whether those employed in the disputed position were employees within the meaning of the Labour Relations Act as of the time or times relevant to this applicant.

Are those employed as "Secretary Grade V/Head Secretary" deemed not to be employees by operation of clause l(3)(b) of the Act?

15. Counsel for the respondent took the position that our determination whether persons employed as Head Secretary are employees for the purpose of the Act should be made as of the date of preparation of the transcripts of the witnesses' evidence or, in the alternative, as of May 1, 1989, the first day evidence was taken. The applicant's representative said that the determination should be made as of March 2, 1988, the date on which it made its application for certification. The applicant's representative said there was an understanding that the examination would be conducted as at that date. Counsel for the respondent agreed that questioning focused on March 2, 1988. Remarks counsel is recorded as having made near the beginning of the examination of Peggy Gooch appear to indicate agreement that the examination of that witness, at least, be limited to events occurring prior to March 2,1988. It is not apparent to us why that date would have had any significance other than for the determination of the count in the certification application, a count from which Head Secretaries were excluded by agreement. That date was approximately fourteen months prior to the commencement of the examinations. During those examinations some of the witnesses were asked questions about whether certain things had occurred during the preceding year. The agreement referred to in Mr. Kirby's statement must have been made after certification was granted and before the first collective agreement was concluded. The latter event occurred in April 1989, we are told. No one suggests that the duties and responsibilities of the position of Head Secretary changed in any material respect between March 2,1988 and May 1,1989. The respondent was certainly prepared to have the evidence in the transcripts determine the question at hand as of May 1,1989. In those circumstances, it is perhaps sufficient to note that our determination is made on the basis of that evidence.

16. There appears to be no challenge to the proposition in the respondent's letter of December 8, 1988 that the position description used by the respondent for the position of the Head Secretary/Secondary School (Secretary Grade V) includes the following:

THE BOARD OF EDUCATION FOR THE CITY OF ETOBICOKE

HEAD SECRETARY - SECONDARY SCHOOL

GRADE V

POSITION DESCRIPTION

BASIC OBJECTIVE

Working under the direction of the school principal who is responsible for the administration and management of the school:

• provides supervision of the school's office staff in the day-to-day administrative routines and operation of the entire school;

• provides secretarial and administrative support to the principal;

• maintains good working relationships and communications with teachers, business and support staff, the student body and the community under the direction of the principal.

MAJOR RESPONSIBILITIES

• through consultation with the principal, determines the assignment of responsibilities and duties for the office staff throughout the entire school;

• responsible for ensuring the preparation of a variety of correspondence, reports, newsletters, memos, et al, as required;

• develops, implements and maintains a variety of office records and files in keeping with current and developing technologies;

• ensures the timely completion of records and statistical reports;

• co-ordinates or oversees special school programs such as commencement exercises, parents' night;

SUPERVISION

• assists in the interviewing, selection and appraisal of office staff;

• provides guidance, discipline and training of staff, as required;

• ensures that positive working relationships are fostered and maintained;

• in consultation with the principal, allocates, assigns and checks work performed by the office staff.

In addition to the responsibilities outlined above, the incumbent of this position may be called upon to assume other duties as assigned and as approved by the principal.

17. As we have already noted, the parties agreed that evidence given by Helen Wallbank, Doreen Batterbury and Peggy Gooch would be representative of the duties and responsibilities of all those employed in the position of Head Secretary. As almost invariably occurs in cases of this sort, the duties and responsibilities actually performed vary among the three individuals examined. When the parties to an issue of this sort agree that the status of all those employed in a particular position will be determined on the evidence of a few of those employed in that position, we are obliged to form a composite view of the position: Royal Ontario Museum, [1985] OLRB Rep. Feb. 325 at paragraph 16.

18. Leaving aside for a moment the reference to providing "discipline.., of staff', the evidence confirms that Head Secretaries generally perform the functions set out in the position description. In addition to providing secretarial and administrative support to the school principal, Head Secretaries do allocate and co-ordinate the performance of secretarial work for Vice-Principals, teachers and students by others employed at that school as Secretaries. There were eight other such secretaries at the school where Ms. Wailbank was employed as Head Secretary, two other secretaries at the school where Doreen Batterbury served as Head Secretary and three others at the school where Peggy Gooch served as Head Secretary prior to September 1988. The Head Secretary checks the work of the other secretaries. She is expected to and does admonish them if the work is unsatisfactory and may require that unsatisfactory work be redone. As for the Head Secretary's having the power to "discipline" other secretaries in the sense in which that word is used in the labour relations context, the following passage from the examination of Helen Wallbank is instructive:

Do you feel you have the authority to discipline at all?

Yes, I do.

To what extent?

Well, just to.. only just talk to them... not to say "If you don't do this, this is what's going to happen." I don't have that, no.

If you don't have that, who has that authority?

Well, I think the Principal could make a recommendation to the Board to do it.

While one of the examinees thought she had the power to issue a written warning, she had never done so. It seems to us that Head Secretaries do not have any significant power to "discipline" other secretaries in the sense in which that word is ordinarily used in a labour relations context.

19. Although the evidence is not as detailed as one might have liked, it appears that employment relations between the School Board and school secretaries is controlled centrally from the School Board's administrative offices. In particular, the actual decision to hire, fire, or formally discipline a secretary is made by someone in the School Board's administrative offices on the basis of information received from the school principal, the Head Secretary and, perhaps, others as well. Candidates for employment to fill a vacant secretarial position in the school are sent by the School Board to be interviewed by the principal, who is joined in these interviews by the Head Secretary and, perhaps, a Vice-Principal. It appears that the interviewers attempt to form a judgement on a consensus basis, which judgement is then communicated to the School Board. We can fairly infer that a negative judgement by the principal and Head Secretary of a school would result in the candidate's not being employed as a secretary at that school; it is not clear what effect the interview has on the candidate's prospects for employment at the Board generally. Similarly, while there appears to have been at least one occasion on which a secretary with whose work a Head Secretary was dissatisfied left that Head Secretary's school, it is not apparent that it resulted in her losing her employment with the Board.

20. Head Secretaries keep track of and report to the Board on the absences of other secretaries from work. They also deal with other secretaries' needs for time off. It appears that there are rules or guidelines set out by the School Board with respect to the circumstances in which time may be taken off. The respondent argues that the Head Secretary "grants" time off. It is clear that she exercises some co-ordinating function in attempting to minimize the impact of a secretary' taking time off work. It is not clear that the Head Secretary has any more than a limited discretion as to whether other secretaries take time off or not.

21. Ms. Wallbank testified that she made written valuations of the other secretaries at her school, using a form found by the business teacher at that school. This was at the suggestion or the request of the principal for whom she worked; the written evaluations went to him. The other two examinees were not involved in preparing or maintaining written evaluations with respect to other secretaries at their schools.

22. Many scores of the Board's decisions review the meaning and application of the words "exercises managerial functions" in clause 1(3)(b) of the Act. In formulating its opinion as to whether those words apply to any particular individual, the Board applies a number of qualitative and quantitative criteria, as may be seen from the decisions cited or referred to in the brief of authorities filed by counsel for the respondent. In The Lake head Board of Education, [1970] OLRB Rep. Feb. 1331, the Board made these observations:

Making a determination as to whether a person is employed in a managerial capacity is a more difficult assessment to make. The Board in a number of recent decisions has recognized the growing complexity of management structures, the diffusion of the lines of authority and the divergent elements that go into the decision making process. The Board, accordingly, in making such determination endeavours to distinguish between persons who truly exercise independent discretion or assert real authority, as opposed to those who merely implement decisions within a framework decided by others or whose independent discretion is limited to predetermined circumscribed areas. The Board is cognizant of the tact also that management today generally needs the assistance and advice of responsible and highly qualified individuals in the fields of their particular knowledge. The fact that such assistance or advice is sought and is accepted or taken into account by management does not mean that such persons exercise managerial functions in their own right. In all cases, the Board must evaluate the totality of each person's job functions in deciding whether the person concerned, in an intrinsic sense, exercises managerial authority (see The Hydro-Electric Power Commission of Ontario Case, 1969 Aug. OLRB M.R. p. 669, and Ajax and Pickering General Hospital Case, dated February 19, 1970, Board File No. 15917-68-R).

23. In Hydro Electric Commission of The Borough of Etobicoke, [1981] OLRB Rep. Jan.

38, the Board noted that

25. Exercising supervisory functions does not by itself exclude a person from engaging in collective bargaining. Even when a person is primarily engaged in the supervision of others he is not managerial unless he also has effective control over their employment relationship. (See Falconbridge Nickle Mines Limited, [1976] OLRB Rep. Sept. 379 and Mcintyre Porcupine Mines, supra.) Scheduling work for employees and co-ordinating their efforts (something regularly done by the foremen in this case) is not itself a managerial function. (See, in addition to the cases previously cited, Second Manufacturing, [1975] OLRB Rep. Sept. 658; Thames Steel Construction Limited, [1979] OLRB Rep. May 440 and Caledon Hydro-Electric Commission, [1979] OLRB Rep. Oct. 924.)

26. To determine whether the foremen in this case exercise managerial functions within the meaning of section 1(3)(b) of the Act, the Board will look to whether or not they exercise effective control and authority over the people they supervise as may be seen by an ability, at a minimum, to make effective recommendations in areas that materially affect the economic lives of the employees. If they act merely as conduits for management and do not themselves effectively control the economic lives of their employees, they would not be exercising functions with true managerial significance. As well, foremen would not be exercising managerial functions if they merely gather facts relating to their men from which management is then able to make its own decisions as to how to deal with particular situations. Even if foremen's evaluations of employees are given serious consideration and are relied on by their supervisors in making their decisions affecting employees, the foremen would not be making effective recommendations unless the recommendations are so consistently and frequently followed that it could be said that through the recommendations the foremen are effectively controlling or determining the decisions. A recommendation would not be effective, for example, if it was merely one of several factors considered or relied on by a supervisor in the course of making his own independent decision. Similarly, foremen would not be viewed by the Board as exercising managerial functions if they merely act within strict supervisory guidelines set by others.

27. In Windsor Utilities Commission, [1971] OLRB Rep. May 296, the Board said, in part:

28. where a person is required to exercise functions which are of a managerial nature and is also required to perform the type of work which is performed by the bargaining unit employees, the Board must determine whether the work is merely incidental to his managerial functions or whether the functions which are of a managerial nature are merely incidental to his bargaining unit work. In order to make this determination, the Board must ascertain the nature of and the extent to which such functions are exercised. If the nature of the functions are such that they require a person to make independent decisions in meaningful matters which are of real consequence to the company's operations rather than merely the application of expertise in technical matters, or if the person exercises his unfettered discretion concerning matters of substance in the employment relationship of other persons, the nature of such functions places him on the management side of the employee-management line, no matter how much bargaining unit work the person otherwise performs. It is not uncommon in small businesses for the owner or a foreman to perform work alongside the employees and at the same time administer all phases of the management end of the business. This is less likely to happen in larger companies.

29. In larger companies, however, persons are often delegated limited managerial functions with no real independent authority or discretion, in such cases, it is necessary to determine the extent to which such functions are exercised. If a person is engaged in these functions, which are limited in their nature, for the majority of time, any other work performed may be properly described as merely incidental to the managerial functions exercised. If, however, a person is required to perform bargaining unit work for the majority of the time and is also required to exercise managerial type functions which are of a restricted nature, the functions which are of a managerial type may be said to be merely incidental to the bargaining unit work. If the managerial type functions are merely incidental to the bargaining unit work performed, the person must be found to be an employee for the purposes of the Act.

30. Counsel for the respondent referred to three certification decisions which excluded Head Secretaries from units of school board office and clerical employees. In one of those decisions, the exclusion was on agreement of the parties. In another, the decision simply said that "having regard to the Report of the Examiner dated February 15,1971 the Board finds that head secretaries employed in the Junior High and Secondary Schools exercise managerial functions within the meaning of section 1(1)(3) of The Labour Relations Act and accordingly are not included in the bargaining unit." There is no indication what facts were revealed by the report of the Examiner in that case. In Board of Education for the Borough of Scarborough, [1980] OLRB Rep. Dec. 1713, the Board did say something about the evidence from which it concluded that while there was some doubt about whether they exercised managerial functions, that School Board's head secretaries did have a regular involvement and confidential matters relating to labour relations. That decision quoted from the Lakehead Board of Education, supra, a decision in which the Board found that the Head Secretaries in the secondary schools of that respondent school board did not exercise managerial functions and were not employed in a confidential capacity in matters of labour relations within the meaning of clause 1(3)(b) of the Act. These decisions illustrate the trite proposition that the application of clause 1(3)(b) in each case depends on the facts in that case.

31. In addition to performing the functions on which the respondent's argument focused, the respondents' Head Secretaries also spend time doing secretarial, clerical and administrative work which is in no way "managerial" and is similar to work performed by secretaries in the bargaining unit represented by the applicant. There is no evidence before us from which we can determine whether the time spent by a Head Secretary on such "bargaining unit" work is greater or less than the time she spends on allegedly managerial tasks. We are not persuaded that Head Secretaries exercise such unfettered discretion concerning matters of substance in the school board's employment relationship with other persons as to make this quantitative consideration irrelevant. It is incumbent upon anyone seeking to exclude persons from the scope of the Labour Relations Act by application of clause 1(3)(b) to come forward with affirmative evidence that the clause bears application in the circumstances: The Corporation of the City of Thunder Bay, [1981] OLRB Rep. Aug. 1121 at paragraph 6. In the absence of evidence which establishes that fact, we cannot find that Head Secretaries spend a majority of their time performing "managerial type functions which are of a restricted nature." We would add that it is difficult to say whether we would have found in the employer's favour on this branch of clause 1(3)(b) even if the evidence had persuaded us that Head Secretaries spent a majority of their time performing certain of the functions on which the employer's argument concentrated.

32. Accordingly, we are not persuaded that Head Secretaries "exercise managerial functions" within the meaning of clause 1(3)(b) of the Act.

33. The employer also argued that those in the position of Head Secretary are "employed in a confidential capacity in matters relating the labour relations" within the meaning of clause 1(3)(b). An employee's exposure to "confidential" information is not enough to exclude her from the coverage of the Act. Before this branch of clause 1(3)(b) will be applied to an individual, the confidential information must relate to labour relations matters, and her involvement in handling such information must be a regular and material part of the normal course of her employment: see, for example, Comtech Group Ltd., [1974] OLRB Rep. May 291.

34. Other secretaries confide in a Head Secretary with respect to personal problems and other matters which may affect their employment. The one Head Secretary who was asked by her Principal to do written evaluations of the other Secretaries at their school continued to have access to those evaluations. It appears from the evidence that as secretary to the school Principal, a Head Secretary becomes privy to some information about the collective bargaining between the School Board and its teachers and about School Board developments which will effect the careers of teachers of the School at which the Head Secretary is employed. In that connection it is important to note that the school principal to whom a Head Secretary reports is a member of the teacher bargaining unit which bargains collectively with the School Board under the School Boards and Teachers Collective Negotiations Act, R.S. 0. 1980, c. 464, as amended.

35. The confidentiality branch of clause 1(3)(b) of the Act is concerned with excluding from a bargaining unit persons who have access to information in the possession of management which is relevant to its labour relations and which management wishes to keep confidential from bargaining unit employees and their bargaining agent. Information received by the Head Secretary from members of the secretarial bargaining unit or from members of the teacher bargaining unit would not fall within this category, nor would information about labour relations with teachers which is revealed by the School Board to the school principal, who is a member of the teacher bargaining unit. A Head Secretary's continued access to her own written observations and opinions about other secretaries would not bring her within the excluded classification either. It is not at all clear from the evidence what role (if any) a school's Principal plays on the management side in matters of labour relations between the School Board and employees outside the teacher bargaining unit. The provisions of the Education Act to which counsel referred (clauses (b) and (i) of section 236) are not enough to support the conclusion that someone who provides secretarial and administrative assistance to a school Principal must of necessity be directly involved in matters relating to the School Board's labour relations with its employees to such a degree as to warrant her exclusion from the benefits of collective bargaining under the Labour Relations Act. We are not persuaded on the evidence before us that the respondent's Head Secretaries are "employed in a confidential capacity in matters relating to labour relations" within the meaning of clause 1(3)(b) of the Act.

36. We conclude that persons employed in the position Secretary Grade V/Head Secretary are employees within the meaning of the Labour Relations Act. The consequences which flow from that opinion will have to be resolved between the parties themselves or, failing that, in some other proceeding.