Ontario Public Service Employees Union v. Fanshawe College of Applied Arts & Technology

[1991] OLRB Rep. September 1044

0132-89-M Ontario Public Service Employees Union, Applicant v. Fanshawe College of Applied Arts & Technology, Respondent

BEFORE: G. T. Surdykowski, Vice-Chair and Board Members W. H. Wightman and R. R. Montague.

APPEARANCES: Timothy Hadwen, Tim Little, Jean Crawford and Ann Cummings for the applicant; Barry Brown, Gayle Malloy-White and Gail Rozelle for the respondent.

DECISION OF G. T. SURDYKOWSKI, VICE-CHAIR, AND BOARD MEMBER R. R. MONTAGUE; September 24, 1991

1. This is an application under section 81 of the College Collective Bargaining Act ("the CCBA") which provides that:

81. If, in the course of bargaining for an agreement or during the period of operation of an agreement, a question arises as to whether a person is an employee, including a question as to whether a person employed as a chairman, department head, director, foreman or supervisor is employed in a managerial or confidential capacity pursuant to clause 1(1) and the Schedules, the question may be referred to the Ontario Labour Relations Board and its decision thereon is final and binding for all purposes.

2. In section 1 of the CCBA, "bargaining unit", "employee", and "person employed in a managerial or confidential capacity" are defined as follows:

1. In this Act and in the Schedules,

(b) "bargaining unit" means the academic staff bargaining unit of employees or the support staff bargaining unit of employees set out in Schedules I and 2;

(f) "employee" means a person employed by a board of governors of a college of applied arts and technology in a position or classification that is within the academic staff bargaining unit or the support staff bargaining unit set out in Schedules I and 2;

(l) "person employed in a managerial or confidential capacity" means a person who,

(i) is involved in the formulation of organization objectives and policy in relation to the development and administration of programs of the employer or in the formulation of budgets of the employer,

(ii) spends a significant portion of his time in the supervision of employees,

(iii) is required by reason of his duties or responsibilities to deal formally on behalf of the employer with a grievance of an employee,

(iv) is employed in a position confidential to any person described in subclause (i), (ii) or (iii),

(v) is employed in a confidential capacity in matters relating to employee relations,

(vi) is not otherwise described in subclauses (i) to (v) but who, in the opinion of the Ontario Labour Relations Board should not be included in a bargaining unit by reason of his duties and responsibilities to the employer;

In addition, Schedule 1 and Schedule 2 to the CCBA provide, respectively, as follows:

SCHEDULE 1

The academic staff bargaining unit includes the employees of all boards of governors of colleges of applied arts and technology who are employed as teachers, counsellors or librarians but does not include,

(i) chairmen,

(ii) department heads,

(iii) directors,

(iv) persons above the rank of chairman, department head or director,

(v) other persons employed in a managerial or confidential capacity,

(vi) teachers who teach for six hours or less per week.

(vii) counsellors and librarians employed on a part-time basis,

(viii) teachers, counsellors or librarians who are appointed for one or more sessions and who are employed for not more than twelve months in any twenty-four month period,

(ix) a person who is a member of the architectural, dental, engineering, legal or medical profession, entitled to practise in Ontario and employed in a professional capacity, or

(x) a person engaged and employed outside Ontario.

SCHEDULE 2

The support staff bargaining unit includes the employees of all boards of governors of colleges of applied arts and technology employed in positions or classifications in the office, clerical, technical, health care, maintenance, building service, shipping, transportation, cafeteria and nursery staff but does not include,

(i) foremen,

(ii) supervisors,

(iii) persons above the rank of foreman or supervisor,

(iv) persons employed in a confidential capacity in matters related to employee relations or the formulation of a budget of a college of applied arts and technology or of a constituent campus of a college of applied arts and technology including persons employed in clerical, stenographic or secretarial positions,

(v) other persons employed in a managerial or confidential capacity,

(vi) persons regularly employed for not more than twenty-four hours a week,

(vii) students employed in a co-operative educational training program undertaken with a school, college or university,

(viii) a graduate of a college of applied arts and technology during the period of twelve months immediately following completion of a course of study or instruction at the college by the graduate if the employment of the graduate is associated with a certification, registration or other licensing requirement,

(ix) a person engaged for a project of a non-recurring kind,

(x) a person who is a member of the architectural, dental, engineering, legal or medical profession, entitled to practise in Ontario and employed in a professional capacity, or

(xi) a person engaged and employed outside Ontario.

In contrast to applications to the Board under section 106(2) of the Labour Relations Act, in applications under section 81 of the CCBA the Board determines whether or not a person with respect to whom the application is made is in a bargaining unit to which the CCBA applies.

4. In accordance with its usual practice in applications like this one, the Board authorized

a Labour Relations Officer to inquire into and report to the Board with respect to the duties and

responsibilities of the persons whose "employee" status, within the meaning of the CCBA, is an

issue herein.

5. The Labour Relations Officer's report to the Board in that respect reveals that there were originally thirty persons whose "employee" status was in dispute. It further reveals that in discussions between the parties at meetings convened by the Officer it was agreed that Jane Allardyce, Carolyn Buchanan, John Devlin, Mike Farlow, Chris Flieser, Kent Garrett, Kathy Hogan, Doris Hollinsworth, Patricia Koziol, Debbie Laevens, Gary O'Brien, Doug Pinnell, and Lois Willick are not "employees" within the meaning of the CCBA, and also that Carl McCoomb is an "employee" within the meaning of the CCBA.

6. The "employee" status of sixteen persons remained in dispute between the parties. At the request of the parties, the Officer conducted an inquiry with respect to eight of those persons and submitted his report to the Board in that respect. The parties have requested that the Board determine the status of these eight persons prior to the Officer proceeding with the remaining eight.

7. The evidence before the Board is found in the Officer's report. It consists of a "questionnaire completed by each of the eight persons to whom the report relates and viva voce testimony adduced with respect to their duties and responsibilities. The Board received the representations of the parties at a hearing on May 13, 1991, and further written representations were submitted subsequent to the hearing.

8. The intent of the CCBA is to reduce as much as possible the conflicts of interest which would be faced by persons who exercise, or are employed in a position confidential to a person who exercises, managerial responsibilities, or who are employed in a confidential capacity in matters relating to labour relations while at the same time being members of a bargaining unit (see St. Clair College of Applied Arts and Technology, [1980] OLRB Rep. July 1067; Sheridan College of Applied Arts and Technology; [1976] OLRB Rep. Dec. 844). This legislative separation between two labour relations "sides" recognizes that true collective bargaining requires an arms length relationship between an employer and its employees because their respective labour relations interests and objectives often differ. (The purpose of this kind of separation has often been described elsewhere and does not bear repeating here: see, for example, Corporation of the District of Burnaby, [1974] CLRBR 1; Chrysler Canada Limited, [1976] OLRB Rep. Aug. 396; Cambrian College of Applied Arts and Technology, [1980] OLRB Rep. Jan. 8.

9. Although this kind of separation is common 'in labour relations legislation, it is not always easy to draw the line of demarcation. The Board has long recognized that an employer structure or organization is an important factor to consider in determining where that line should be drawn. As the Board explained in St. Clair College of Applied Arts and Technology, supra, in that respect:

3. The structure of a Community College differs from that of a private business, and some care must be taken before utilizing concepts developed in a private sector industrial setting, and superimposing them on a public sector educational institution. No doubt, it was an appreciation of these differences which prompted the Legislature to enact a specialised statute which spells out, in much more detail than in The Labour Relations Act, precisely those functions which, if exercised, should exclude an individual from the ambit of collective bargaining. It must be recognized however, that section 1(1) and Schedule 2 are framed in very general language. The application of these provisions to any particular situation is bound to raise interpretative difficulties. There will always be a grey area between those who are clearly included in the bargaining unit, and those who are excluded from it, and the degree and focus of managerial authority will change from employer to employer, and from time to time. The Board must consider the evidence in each case, and apply the legislation in light of the purpose of the statutory exclusions.

(See, also Sheridan College of Applied Arts and Technology, [1983] OLRB Rep. Jan. 147).

10. In determining whether a person is an "employee" within the meaning and for the purposes of the CCBA, it is essential that his/her duties and responsibilities be examined as a whole within the context of the particular community college's corporate structure. Although the CCBA offers more guidance than does the Labour Relations Act in that respect, the Board must, as a general matter, determine whether a person whose "employee" status is in issue exercises managerial duties and responsibilities in the sense that s/he is able to affect the job security or economic interests of persons who are "employees" such that s/he is not compatible with them for collective bargaining purposes. We observe that while titles or job descriptions may shed some light on a person's position in that respect, they do not always reflect a person's actual duties and responsibilities. It is the latter which the Board is concerned with in applications such as this.

11. Similarly, a person who is employed in a confidential capacity in matters related to employee relations (which, for our purposes, is the same as labour relations) is not an "employee" for purposes of the CCBA. This "confidential" exclusion enables an employer to better ensure that knowledge of its confidential internal labour relations strategies or communications is restricted to persons whose loyalty is more likely to be undivided. A person's involvement with such information must be more than an occasional or a peripheral one to justify a finding that s/he is not an "employee". The real question is whether the person in dispute is consistently exposed to confidential labour relations information as an integral part of his/her functions in the employer's enterprise. Similarly, access to information which may be sensitive or confidential in some business or general sense is not, by itself, sufficient to justify a finding that a person is not "employee". In that respect, for example, 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 collective bargaining of information which is important for purposes of determining whether or not a person is an "employee".

12. Further, it is important to remember the purpose of the CCBA is to confer collective bargaining rights on employees of community colleges (as these are commonly referred to). It would frustrate this legislative intent to interpret the statutory exclusions in a manner which would erode or undermine those bargaining rights. The Board must therefore be sensitive to the interests of both sides of the labour relations line.

13. We turn now to deal with the eight persons whose status is being determined at this stage of the application.

(a) Debbie Okun-Hill

This person is classified as an Information Officer. She reports to the respondent's Manager of Public Relations. She plays no role in formulating objectives and policy in relations to the development and administration of programmes of the respondent or the formulation of the respondent's budgets. Other than as a conduit for the release of such information to the public, her access to confidential employee or labour relations information is insignificant. However, Ms. Okun-Hill does have direct supervisory responsibility with respect to four bargaining unit employees. She has the power to hire and discipline employees, and she evaluates their work performance. In addition, she schedules vacation time, authorizes and schedules overtime as required, and has the power to approve leaves of absence. In our view, Ms. Okun-Hill spends a significant amount of her time performing supervisory or other typically managerial functions. We therefore find that Debbie Okun-Hill is not an employee within the meaning of the CCBA.

(b) Dorothy Robinson

Ms. Robinson is classified as an "Administrative Assistant, Health Sciences and Human Services". As such she reports to the Chair of Health Services who is responsible for the overall planning, development and delivery of the respondent's Health Sciences and Human Services Division. There is no doubt that Ms. Robinson fulfills a very important organizational and administrative role. However, we are not satisfied, on the evidence before the Board, that she has any significant role in the formulation of organization objectives or policies with respect to programmes in the Health Sciences and Human Services Division or otherwise, or in the formulation of a budget. Nor are we satisfied that she spends a "significant" portion of her time supervising other employees, that she is formally involved in a truly effective way in hiring or disciplining employees, that she is employed in a position confidential to any person described in sub-clauses (i), (ii) or (iii) of clause 1(1)(l) of the CCBA, or that she is employed in a confidential capacity in matters relating to employer relations. Further, while Ms. Robinson does have some authority with respect to the scheduling of vacations, hours of work and overtime, we are not satisfied that her duties and responsibilities in that respect are such that she should not be included in a bargaining unit. Accordingly, we find, on balance, that Dorothy Robinson is an "employee" within the meaning of the CCBA.

(c) Maureen Korhonen

Ms. Korhonen is classified as a "Programme Manager, Middlesex Campus". Some of her duties and responsibilities have a managerial aspect or flavor to them, and she does occupy a position of responsibility with respect to part-time employees (who are not covered by the CCBA). For example, Ms. Korhonen testified that she once discharged a part-time employee. However, on balance, and having regard to the considerations set out in paragraphs 8-12 (above), we are not satisfied, on the evidence before the Board, that Ms. Korhonen's duties and responsibilities are truly managerial, or that there is any other reason why she should not be considered to be "employee". We therefore find that Maureen Korhonen is an "employee" within the meaning of the CCBA.

(d) Laura Lush (who, on agreement of the parties, was substituted for Laurel Mattison).

Ms. Lush is classified as an "Administrative Assistant, Business and Management Division". In our view, Ms. Lush is quite clearly an "employee". Her "supervisory" responsibilities are not truly managerial in nature and, in any event, occupy only a minor portion of her time. We are not satisfied, on the evidence, that her duties and responsibilities are such that she is incompatible with other employees for collective bargaining purposes. We therefore find that Laura Lush is an "employee" within the meaning of the CCBA.

(e) Valerie Wisniewski

Ms. Wisniewski is classified as "Administrative Assistant, Nursing". Her duties and responsibilities are primarily organizational and administrative in nature. She does not spend a significant amount of her time performing supervisory functions. Nor is she in a position to affect other employees in ways such that she is incompatible with them for collective bargaining purposes. We are satisfied that there is no reason why she should not be considered to an "employee". We therefore find that Valerie Wisniewski is an "employee" within the meaning of the CCBA.

(f) Marion Robinson-Dietz

Ms. Robinson-Ditz is classified as a "Parking and Transportation Supervisor". She reports to the respondent's Manager of Electrical and Mechanical Services. She is a member of the Parking Committee which recommends policies and procedures in that respect, and she is responsible for administrating and controlling the respondent's parking and transportation system. Ms. Robinson-Dietz has supervisory responsibility for a General Clerk C, a Maintenance Handyman, Drivers and Security Guards. She has the power to hire, discipline and discharge employees. She schedules vacations, can vary employees hours of work, an authorizes overtime and leaves of absence. She also attends and participates in management meetings of which confidential labour relations matters are discussed and determined. We are satisfied that Marion Robinson-Dietz is not an employee within the meaning of the CCBA.

(g) Deborah McEwan

Ms. McEwan is classified as a "Manager, Futures". In the course of the Officer's inquiry, the parties agreed that Ms. McEwan is not an "employee" within the meaning of the CCBA and that the Board should so declare.

(h) Carole Rennie

Ms. Rennie was referred to both as a "Manager, Ontario Basic Skills" and as an "Administrative Assistant". In essence she provides administrative assistance to the Principal of the respondent's James N. Allan Campus. A Sessional Instructor (which she hired), 2 Secretary A's, and a Clerk C report to her. She also provides general direction to another employee in the office. Ms. Rennie evaluates the employees she supervises, has the power to issue oral and written reprimands, and schedules vacation and overtime as required. She is also involved in lay-off decisions. We are satisfied that Ms. Rennie spends a significant portion of her time in the supervision of employees. Further, the evidence suggests that Ms. Rennie attends management meetings in which significant labour relations matters are dealt with, and that she is involved in the formulation of policy and objectives in relation to the development and administration of programmes on the respondent. We therefore find that Carole Rennie is not an employee within the meaning of the CCBA.

14. In the result, the Board declares that Jane Allardyce, Carolyn Buchanan, John Devlin, Mike Farlow, Chris Flieser, Kent Garrett, Kathy Hogan, Doris Hollinsworth, Patricia Koziol, Deborah Laevens, Gary O'Brien, Doug Pinnell, Lois Willick, Debbie Okun-Hill, Marion Robinson-Dietz, and Carole Rennie are not "employees" within the meaning of the CCBA. The Board further declares that Carl McCoomb, Dorothy Robinson, Maureen Korhonen, Laura Lush and Valerie Wisniewski, are "employees" within the meaning of the CCBA.

15. The matter is referred back to the Labour Relations Officer for the continuation of his inquiry as previously authorized by the Board.

DECISION OF BOARD MEMBER W. H. WIGHTMAN; September 24, 1991

1. I dissent with respect to the finding that Maureen Korhonen is properly within the bargaining unit on the basis that, having discharged a part-time employee, she has demonstrated that she not only has managerial authority vested in her but that she has in fact exercised that authority.

2. The majority view, as I understand their notion of "balance", might have been different had she fired people with some frequency. For my part I can think of no authority more indicative of managerial responsibility than the authority to discharge and the exercise of that authority on even one occasion strikes me as sufficient confirmation of that authority. I suspect this view is shared by the individual who was discharged, if not by my colleagues.