Canadian Union of Public Employees and its Local 1680 v. Peterborough County Board of Education
[1990] OLRB Rep. September 940
1473-88-M Canadian Union of Public Employees and its Local 1680, Applicant v. Peterborough County Board of Education, Respondent
BEFORE: G. T. Surdykowski, Vice-Chair, and Board Members J. A. Ronson and D. A. Patterson.
DECISION OF THE BOARD; September 7, 1990
1The applicant trade union seeks to have the Board determine, under section 106(2) of the Labour Relations Act, whether Nancy Brown (who is classified as a "Print Shop Supervisor"), and Susan McCaig, Patricia Warden, John Lapum, Nancy Chesher-Manbeck and Robert Ballarin (all of whom are classified as "Behaviour Counsellors") are "employees" within the meaning of the Labour Relations Act.
2In accordance with its usual practice in such applications, the Board authorized a Labour Relations Officer to inquire into and report to the Board with respect to the individuals whose "employee" status is an issue. Pursuant thereto, a Labour Relations Officer convened a meeting of the parties. That was adjourned when one of the individuals in question requested an adjournment to seek legal advice and, possibly, status to participate in the proceeding as a party.
3By decision dated March 6,1990 (reported at [1990] OLRB Rep. March 330), the Board ruled that the persons whose employee status is an issue herein were entitled to participate as parties. Subsequently, the Labour Relations Officer convened another meeting of the parties. Ms. McCaig, Mr. Lapum and Ms. Chesher-Manbeck attended and are shown in the Officer's Report to the Board as having participated as representatives of the intervener (which we take to be a reference to them and Pat Warden, having regard to the letter dated February 26, 1990 to the Board signed by those four individuals in that respect). Ms. Brown testified before the Officer. Ms. Warden also testified before the Officer and the parties agreed that her evidence would be representative of the duties and responsibilities of all the persons classified as Behaviour Counsellors whose employee status is an issue. All parties were given an opportunity to examine Ms. Brown and Ms. Warden and to present other evidence.
4Subsequently, the testimony of Ms. Brown and Ms. Warden, who were the only persons to testify before the Officer, was transcribed in the Officer's Report to the Board. A copy of the Officer's Report was circulated to the parties for their comment. Neither the applicant nor any of the individuals in issue made any comment or representations in that respect. The respondent made representations by letter dated August 16, 1990. No one requested that the Board hold a hearing with respect to the matter and we find it appropriate to dispose of this application on the basis of the material before the Board without a hearing.
5We note the agreement of the parties that the disposition of this application should be based on the duties and responsibilities of the individuals in question as of January 3, 1990.
6The respondent submits that the parties have agreed, since at least 1987, that Ms. Brown's position is one properly excluded from the bargaining unit and that nothing has occurred since which would justify including it in the bargaining unit. It also submits that the individuals classified as Behaviour Counsellors should be excluded from the bargaining unit. That, of course, is not the issue before the Board. As the respondent itself notes at page 4 of its August 16, 1990 letter, the mere fact that the Board finds an individual to be an employee within the meaning of the Labour Relations Act does not necessarily mean that that person is an employee in the bargaining unit covered by the collective agreement between the parties. That latter question is one for a Board of Arbitration to determine (see Re Miller et al and Algoma Steelworkers Credit Union Ltd. et. al. (1974) 1974 CanLII 860 (ON HCJDC), 6 OR. (2d) 676 (Ont. Div. Ct.); Nelson Crushed Stone, [1980] OLRB Rep. Oct. 1500; Northern Telecom, [1983] OLRB Rep. Jan. 95; The Windsor Star, [1988] OLRB Rep. Apr. 427). Consequently, while there may be an overlap between them, and while an answer to one may well answer the other for practical purposes, the two questions are not necessarily congruent. In this application, the Board will determine only whether the individuals named in paragraph 1 above are "employees" within the meaning and for the purposes of the Labour Relations Act, not whether they are employees in the bargaining unit covered by the collective agreement between the parties.
7Nancy Brown has been the respondent's Supervisor of the Print Shop since December, 1987 (this application was made in September 1988). As such, she oversees the incoming and outgoing mail. It is unclear exactly what it is she oversees since the mail is not opened in her department, but she presumably ensures that ingoing mail is distributed properly and that outgoing mail in fact goes out. Ms. Brown is also responsible for fulfilling the printing requirements of the respondent's office, the "Resource Centre", some schools, and some outside organizations which are apparently serviced by the respondent.
8In the course of performing these functions, Ms. Brown prices and schedules printing jobs, and answers questions with respect to how they are to be performed. Ms. Brown testified that one full-time operator, one part-time operator (who really seems to be a casual full-time employee who works in the department on an "as needed" basis), and a "summer" operator work under her direction and control. She performs a job training function with these people, assigns work to them, and reports verbally to her supervisor with respect to their work performance. She is not familiar with the respondent's discipline procedure (if there is one) and doesn't have the authority to suspend or discharge anyone. She did sit in on a hiring interview of an applicant for a position outside of her department. However, having regard to the fact that she did not participate in the hiring of the present full-time operator, and her description of her participation in the process she was involved in, it is apparent that she was involved to provide a female presence and that she had no real input into it. Regular hours of work are set by policy directive of the respondent. Vacations are scheduled, it seems, by "mutual accommodation" of those in the department. She has validated overtime; that is, confirmed that overtime claimed has in fact been worked. She has also scheduled overtime on her own authority and has granted "casual" time off for things like medical appointments. Finally, Ms. Brown appears to have some limited authority to requisition necessary materials for the print shop.
9In determining whether a person is an "employee" within the meaning and for purposes of the Act, the Board examines the duties and responsibilities of the persons in question as a whole within the context of the employer's business and structure. The Board assesses the extent to which the persons whose status is in issue exercises duties and responsibilities which affect the job security or economic position of other persons such that they are incompatible with them for collective bargaining purposes (see, for example, Caledon Hydro-Electric Commission, [1979] OLRB Rep. Oct. 924; Corporation of the Township of West Lincoln, [1981] OLRB Rep. April 436; The Corporation of the City of Thunder Bay, [1981] OLRB Rep. Aug. 1121; Oakwood Park Lodge, [1982] OLRB Rep. Jan. 84).
10Other than her ability to schedule overtime, there is nothing in what Ms. Brown does which suggests that she exercises real managerial functions. Since there is no evidence of what use, if any, is made of her reports concerning work performance, it cannot be said that Ms. Brown has any power of effective recommendation in that respect. And, except for her ability to authorize overtime, there is nothing which she does which could be said to have an impact on other employees such that she is incompatible with them for collective bargaining purposes. Even in authorizing overtime, her authority is rather limited given that the need for it is determined by the work to be done and given that she has very little flexibility in assigning it (by virtue of the number of people who work in the department). On balance, we are not satisfied that her overtime authority alone would cause us to find Ms. Brown to not be an employee.
11However, Ms. Brown also has ready access to and must, in the course of her work, review documents which contain material used by the respondent in various of its meetings. This material includes the respondent's collective bargaining strategy and material relating to the discipline of other employees.
12The purpose of what is commonly referred to as the second branch of section 1(3)(b) of the Act is to exclude from operation of the Act persons whose work brings them into contact with confidential material relating to labour relations. This enables an employer to better ensure that knowledge of its internal labour relations strategies and communications is restricted to persons whose loyalty is more likely to be undivided (Town of Gananoque, [1981] OLRB Rep. July 1010; York University, [1975] OLRB Rep. Dec. 945). A person's involvement with such information must be more than occasional or peripheral to justify a finding that s/he is not an employee for purposes of the Act (Frito-Lay Canada Ltd.,[1978] OLRB Rep. Sept. 831). There is also a distinction to be drawn between labour relations information, access to which would bring the person within the section 1(3)(b) exclusion, and personnel information, access to which would not necessarily do so.
13On the evidence before the Board, we are satisfied that Ms. Brown has regular access to confidential information which is material to the respondent's labour relations. We therefore find that Ms. Brown is employed in a confidential capacity in matters relating to labour relations within the meaning of section 1(3)(b) of the Act and that she is therefore not an "employee" within the meaning and for the purposes of the Act.
14The other five persons in issue in this application are classified as Behaviour Counsellors. There is some suggestion in the Officer's Report to the Board that some of the duties and responsibilities of these persons have changed since January 3, 1990, as of which date the parties agreed their "employee" status should be assessed. However, there is no suggestion that the Board should consider anything that may have occurred subsequent to that date. Indeed, in the respondent's submission, this application should "...be specifically restricted to the status of those individuals as at or prior to January 3, 1990." Having regard to the agreement of the parties, the Board finds it appropriate to dispose of this application, insofar as it relates to the five persons who are classified as Behaviour Counsellors, on the basis of the agreed January 3, 1990 date.
15When dealing with a professional context, it can be difficult to distinguish professional from managerial functions as the latter term is commonly applied in a typical office or industrial setting. Nevertheless, there is a distinction between the two. The evidence in this case suggests that Ms. McCaig, Ms. Warden, Mr. Lapum, Ms. Chesher-Manbeck, and Mr. Ballarin are highly qualified individuals with important responsibilities, and that they play a significant role in the respondent's business of providing educational services. However, the mere fact that an individual exercises professional responsibilities, which may include some professional supervision of other professionals, does not mean that that individual cannot be an employee for purposes of the Labour Relations Act (see Spar Aerospace Products Ltd. [1979] OLRB Rep. July 700; Ottawa General Hospital, [1984] OLRB Rep. Sept. 1199; Kitchener-Waterloo Hospital, [1986] OLRB Rep. May 651).
16On the evidence before the Board, none of the five persons who are classified as Behaviour Counsellors exercise or have any power to hire, fire or discipline other employees. They have no power to affect, either directly or indirectly, the wages, benefits or hours of work of other employees. While they do have access to confidential medical records, they have no access to any information which is confidential in the labour relations sense. In short, there is nothing before the Board to indicate that these five persons, or any of them, exercise any managerial functions, or that they, or any of them, are employed in the confidential capacity in matters relating to labour relations. We therefore find that Ms. McCaig, Ms. Warden, Mr. Lapum, Ms. Chesher-Manbeck, and Mr. Ballarin are employees within the meaning and for the purposes of the Labour Relations Act.