Ontario Labour Relations Board

[1991] OLRB Rep. March 339

0273-90-M C.U.P.E., Local 1582, Applicant v. Metropolitan Toronto Library Board, Respondent

BEFORE: G. T. Surdykowski, Vice-Chair, and Board Members W. A. Correll and H. Peacock.

DECISION OF THE BOARD; March 4, 1991

1. This is an application, under section 106(2) of the Labour Relations Act, for a determi­nation by the Board of whether Jayne Fillman (referred to in the Board's decision June 20, 1990 decision herein as "Jayne Smith") is an "employee" within the meaning of the Act.

2. In 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 duties and responsibilities of Ms. Fillman. The report submitted to the Board by the Officer designated to conduct the inquiry consists of the Officer's summary of the inquiry procedure, the testimony of Ms. Fillman, and a single exhibit, Ms. Fillman's job description. A copy of the Officer's report was provided to each party for their review and comments. Each party made written representations to the Board. Neither requested a hearing.

3. We wish to note that the applicant trade union sought to submit copies of job descrip­tions of bargaining unit employees so that these might be compared to the duties and responsibili­ties of Ms. Fillman. It appears that the respondent employer objected. In any event, the Officer refused to admit the job descriptions. The issue before the Board is whether Ms. Fillman is an "employee", not whether she is in the bargaining unit covered by any collective agreement between the parties. We are not persuaded that the job descriptions of persons who are in the bar­gaining unit are relevant or would be of any assistance to us in determining whether Ms. Fillman is an "employee".

4. Further, to the extent of the applicant's representations contain assertions of fact which are not based on the Officer's report to the Board, we give them no weight.

5. Ms. Fillman is classified as a "Public Relations Secretary". She reports to the respon­dent's Manager of Public Relations. She prepares the materials for and attends monthly manage­ment meetings. She takes the minutes of those meetings and subsequently transcribes and distrib­utes these to the appropriate management personnel. Although there is some inconsistency in Ms. Fillman's testimony in this respect, we are satisfied with the settlement of grievances and collective bargaining are among the things which are discussed at these meeting. Ms. Fillman also attends monthly public relations and programming committee meetings but there is little before the Board which indicates what is discussed in those meetings. Ms. Fillman also prepares budget information and draft budgets in the course of her duties, and types the performance evaluations of the seven bargaining unit employees in the public relations department. On one occasion, she was given advance notice of a discharge of an employee so that she could deal with any inquiries from the media in that respect. Ms. Fillman also types internal and external correspondence and opens mail addressed to the Manager of Public Relations. This mail includes confidential material relating to, for example, draft proposals for collective bargaining.

6. Finally, Ms. Fillman handles the booking of meeting rooms, maintains the public rela­tions departments files, and ensures that the department is adequately stocked with supplies.

7. The matter in issue between the parties is whether Ms. Fillman is employed in a confi­dential capacity in matters relating to labour relations. Pursuant to section 1(3)(b) of the Labour Relations Act, a persons who is so employed is deemed to not be an "employee". This exclusion enables an employer to better ensure that knowledge of its internal labour relations strategies and communications is restricted to persons whose loyalty is likely to be undivided (Town of Gananoque, [1981] OLRB Rep. July 1010, York University, [1975] OLRB Dec. 945). A persons involvement in such matters must be more than an occasional or incidental one to justify a finding that s/he is not an employee for purposes of the Act (Frito Lay Canada Limited, [1978] OLRB Rep. Sept. 831). Access to information which may be sensitive or confidential in some business or general sense is not, by itself, sufficient to cause an individual to be deemed to not be an "em­ployee". Similarly, access to personnel information is to be distinguished from access to confiden­tial labour relations information. It is the labour relations content or potential for use in the collec­tive bargaining or grievance resolution of information which is important for purposes of the Board's considerations in an application under section 106(2) of the Act.

8. The applicant concedes that Ms. Fillman's duties and responsibilities involved her in confidential matters relating to labour relations. It submits, however, that the "bulk of her time involves non-confidential matters essentially similar to those of other bargaining Unit [sic] employ­ees...". That is not the point. Nor is it the point that the respondent has other persons who are not in the bargaining unit to whom those of Ms. Fillman's duties and responsibilities which involve confidential matters relating to labour relations could be transferred. The question is whether Ms. Fillman is employed in a confidential capacity in matters relating to labour relations such that she should be deemed to not be an "employee" within the meaning of the Labour Relations Act.

9. It is clear that not all of Ms. Fillman's duties and responsibilities involve matters relat­ing to labour relations. However, on the basis of the material before the Board, we are satisfied that she is employed in a confidential capacity in matters relating to labour relations. Her duties and responsibilities are such that she is privy to a significant amount of information relating to the respondent's position with respect to potential or unresolved grievances and collective bargaining matters. Dealing with such matters occupies a substantial portion of her time and is an integral part of her job.

10. The Board therefore declares that Jayne Fillman is not an "employee" within the mean­ing of the Labour Relations Act.