[1994] OLRB Rep. January 76
3765-92-R Communications, Energy and Paperworkers Union of Canada, Applicant v. The Corporation of the Town of Innisfil, Responding Party
BEFORE: M. A. Nairn, Vice-Chair, and Board Members J. A. Ronson and P. V. Grasso.
APPEARANCES: J. James Nyman and Jim Counahan for the applicant; David A. Chondon and Richard Groh for the responding party.
DECISION OF THE BOARD; January 31, 1994
By decisions dated October 19, 1993 and October 28, 1993 the Board determined that certain persons employed by the responding party (the "employer") were employees within the meaning of the Labour Relations Act (the "Act"). The Board further determined that Linda Sjerps, Records Management Coordinator is not an employee within the meaning of section 1(3) of the Act. The panel was asked to provide its written reasons and we therefore do so now.
The employer is the Corporation of the Town of Innisfil (the "municipality" or the "Town"). The applicant (the "trade union") filed an application for certification on March 25, 1993. Following their meeting with a Labour Relations Officer, the employer took the position that ten named individuals were not properly included on the list of employees. It was the position of the employer that Linda Sjerps, Denise Reeves, June Thompson, Tammy Keays, Gwen Gillespie, Helen Parr, Nancy Hill, and Linda Handy, were employed in a confidential capacity in matters relating to labour relations pursuant to section 1(3) of the Act. It was the further position of the employer that Kathleen Brislin and Steve Kinsella exercised managerial functions pursuant to section 1(3) of the Act. It was the position of the applicant that all of the above individuals were properly included on the list of employees and were not excluded by virtue of section 1(3) of the Act.
As indicated in the Board's decision of October 19, 1993 a Labour Relations Officer was appointed to inquire into and report to the Board concerning the duties and responsibilities of the ten individuals. Those examinations were held, evidence was taken, transcripts prepared and distributed to the parties, and written submissions were made by each party. A hearing was subsequently convened before this panel which heard the further representations of the parties.
The bargaining unit includes what are often referred to as the "inside workers" for the municipality, including for example, clerks, secretaries, receptionist, planners, municipal law enforcement officers, revenue/taxation officers, and building and plumbing inspector, and reflects, in a general way, an office, clerical and technical bargaining unit. At the time the unit was certified, there were thirty-three employees in the bargaining unit, including those challenged by the employer. The municipality is divided into seven departments, the Clerks, Treasury, Public Works, Fire, Municipal Law Enforcement, Planning, and Parks and Recreation Departments. Twenty-eight "outside" employees are represented by C.U.P.E. and eight full-time firefighters are represented by their Association. There may also be persons employed on a casual basis and the evidence was unclear as to the total payroll for the Town.
Six of the ten persons challenged are employed in secretarial, clerical, or receptionist responsibilities for a particular department. June Thompson is employed as Payroll/Payable Administrator (or Assistant to the Administrator - her title was unclear) and Linda Sjerps is employed as Records Management Coordinator. Steve Kinsella is employed as Inspector of Municipal Law Enforcement and Property Standards Officer and Kathleen Brislin is employed as Principal Planner.
We propose to first set out the principles that we took into account in reaching our conclusions, and to then review the evidence. With respect to the issue of whether or not Kathleen Brislin and Steve Kinsella exercise managerial functions in accordance with section 1(3) of the Act we accept and adopt the general comments set out in the Ford Motor Company of Canada Limited decision, [1993] OLRB Rep. Jan. 1 filed by the employer (see paragraphs 6 - 23). We note that the facts in that case are quite different from those before us.
Particularly relevant in this case are the comments cited from the decision in The Corporation of the City of Thunder Bay, [1981] OLRB Rep. Aug. 1121 at paragraphs 3-7, where the Board discusses the factors to be considered and states:
... There is no litmus test which is universally applicable and dictates the result in every situation, and in assessing each case, the Board must have due regard to the nature of the industry, the nature of the particular business, and individual employer's organizational scheme. There must, of course, be a rational relationship between the number of superiors and subordinates, consultation or "input" should not be confused with decision-making, and neither technical expertise nor the importance of an employee's function can be automatically equated with managerial status. On the other hand, there may be individuals whose nominal authority appears to be limited, and who have no formal managerial position or title, but who nevertheless make recommendations affecting the economic destiny of their fellow employees which are so frequently forthcoming, and consistently followed by superiors, that it can be said that, in fact, the effective decision is made by the challenged individual. It is this type of recommendation which the Board has characterized as an "effective recommendation" and the inclusion of these persons in the bargaining unit would raise the very kind of conflict of interest which section 1(3)(b) was designed to avoid. Persons making "effective recommendations" of this kind are regarded as part of the "management team", and are excluded from the bargaining unit.
In each instance, the Board seeks to determine the nature and extent of the individual's authority as well as the extent to which that authority is actually exercised. It is not sufficient if an individual has only "paper powers" contained in a job description or a "managerial" job title, if managerial functions are not actually exercised. Even the performance of certain co-ordinating functions may not be determinative. Where numbers of people work at a common enterprise (especially in the white collar - service sector) many persons may be engaged in co-ordinating activities which are largely routine, carried out within a pre-established framework of rules and policies, and subject to real managerial authority which is actually exercised from above. In addition, persons who perform technical functions or exercise craft skills which have been acquired through years of training and experience, will necessarily have a considerable influence over unskilled employees or less experienced "journeymen" or technicians. These experienced personnel will commonly supervise the work of those who are less experienced, and it is part of their normal job function to train and direct such persons and to instill good work habits. Often, it is only the most senior or skilled employees who will fully understand the technical requirements of the job and the tools and material required, and accordingly, it is they who will allocate work between themselves and the other employees in order to accomplish the task in a safe and efficient manner. In such circumstances, it is inevitable that they will have a special place on the "team" and will have a role to play in co-ordinating and directing the work of other employees; but this does not mean that they exercise managerial functions in the sense contemplated by section 1(3) (b) and must therefore be excluded from the ambit of collective bargaining -especially when most of their time is spent performing functions similar to those of other individuals in the bargaining unit and there is little or no evidence of the kind of conflict which section 1 (3)(b) is designed to avoid…..
It should always be remembered, however, that the Labour Relations Act is intended to extend collective bargaining rights to employees, and it is incumbent upon any party seeking to exclude employees from the scheme of the Act, to come forward with affirmative evidence that they exercise managerial functions. (See: Ajax and Pickering General Hospital, [19701 OLRB Rep. Feb. 1283 at paragraph 11; and Bakery and Confectionery Workers International Union v. Salmi, 1966 CanLII 84 (SCC), 56 DLR (2d) 193). Furthermore, (and in addition to the usual rule that "he who asserts must prove"), a party seeking to alter a status quo which has been settled and embodied in a series of collective agreements, must be able to provide a firm evidentiary foundation for its new position....
(emphasis added)
- The comments in paragraph 6 quoted above apply equally to the determination of whether or not someone is employed in a confidential capacity in matters relating to labour relations. In the Corporation of the Town of Dunnville, (unreported) dated May 27, 1985 the Board further stated:
5.... If an individual is not employed in a confidential capacity in matters respecting labour relations, which requires a regular and material involvement with sensitive labour relations information which is confidential because its disclosure would adversely affect the collective bargaining interest of the employer, he will not be excluded under section 1(3)(b), nor can an employer artificially "sprinkle" typing functions among a variety of employees so as to limit the right of those employees to engage in collective bargaining if that is their wish. One must remember that a denial of collective bargaining rights is something the employer must clearly sustain on the evidence...
The general approach that the Board takes in cases dealing with whether or not an individual is employed in a confidential capacity in matters relating to labour relations was set out in Metropolitan Toronto Library Board, [1991] OLRB Rep. Mar. 339 as follows:
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) [now section 1(3)] of the Labour Relations Act, a person 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 person['s] 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.
In that case the Board determined that the individual was not an employee within the meaning of the Act. The employer relies on that decision in this case and on the decision in the Town of Gananoque, [1981] OLRB Rep. July 1010 in support of its position that the eight challenged individuals in this case are also so excluded from the list of employees. We find the decision in the Town of Gananoque to be of limited assistance in that the decision does not disclose the broader organizational framework of that employer.
In Airline (Malton) Credit Union Limited, [1981] OLRB Rep. Nov. 1521 the Board quoted an earlier case:
7.... United Community Fund of Greater Toronto, [1979] OLRB Rep. Dec. 1292, contains a useful review of the purpose and scope of that provision:
"3. The purpose of section 1(3)(b) of the Act is to ensure that persons who are within a bargaining unit do not find themselves faced with a conflict of interest, as between their responsibilities and obligations as persons who 'exercise managerial functions or are employed in a confidential capacity in matters relating to labour relations' and their responsibilities and obligations as members of the unit. Collective bargaining, by its very nature, requires an arm s length relationship between the 'two sides' whose interests, objectives and priorities are often divergent. Persons employed in a confidential capacity relating to labour relations are regularly involved with information and matters which, if disclosed, would adversely affect the collective bargaining interests of the employer. Section 1(3)(b) ensures that the employer need not be concerned that such persons will have 'divided loyalities [sic].'
- Section 1(3)(b) involves three separate criteria: the disputed individual must be employed in a confidential capacity; the material with which that individual works must be confidential; and the material must be related to labour relations. The Board summarized its approach to these criteria in York University, [1975] OLRB Rep. Dec. 945 at page 951:
‘……the Board must be satisfied of 'a regular, material involvement in matters relating to labour relations' to justify a finding excluding a person from operation of the Act. (See, The Falconbridge Nickel Mines Ltd. case, [1969] OLRB Rep. September 379). Mere access to confidential information that may pertain to labour relations, standing alone, is no reason for excluding employees from the bargaining unit. (The Metropolitan Separate School Board, case [1974] OLRB Rep. Apr. 220). Nor is mere knowledge of matters that may be deemed 'confidential' in the sense that the employer would not approve of disclosure of such information by his employees sufficient to justify a positive finding under section 1(3)(b). (See The Comtech Group Limited case [1974] OLRB Rep. May 291). The important test is whether there is a consistent exposure to confidential information on matters relating to labour relations so as to constitute such exposure an integral part of the employee's service to the employer's enterprise. (See, Toledo Scale Division of Reliance Electric Limited case [1974] OLRB Rep. June 406).
- The handling of collective bargaining information must be at the core of the disputed individual's job functions. An occasional or peripheral involvement is insufficient to justify his exclusion. As the Board observed in Falconbridge Nickel Mines Ltd., [1966] OLRB Rep. Sept. 379:
'A person to be excluded under this provision must be employed 'in a confidential capacity', i.e., such capacity must be part of his regular duties. An accidental or isolated involvement in some aspect of labour relations is not sufficient, in our view, to exclude a person from collective bargaining. However, a regular material involvement in matters relating to labour relations which are confidential because their disclosure would adversely affect the interest of the employer would exclude a person pursuant to the provisions of section 1(3)(b) of the Act. As can be readily seen, the degree of the involvement and the extent of the confidential nature of the matters dealt with become important factors to be considered in determining exclusions under these provisions.
The application of this 'test' of the facts in Frito-Lay Canada Ltd., [1978] OLRB Rep. Sept. 831 prompted the Board to reach the following conclusion:
'While the evidence indicates that the payroll clerks have regular access to a certain amount of confidential information, the Board is not convinced that this type of information is integral to the conduct of collective bargaining by the respondent. These payroll clerks merely collect and collate individual payroll information relating to individual employees. Access to such information does not make them privy to the respondent's industrial strategy, and the Board must conclude that these employees are not employed in confidential capacity in matters relating to labour relations.'
- It is also necessary that the information with which the disputed employee works is confidential' so that its disclosure would undermine the employer's industrial relations position vis-a-vis his employee(s). In Holophane Co. Ltd., [1972] OLRB Rep. Dec. 999 the Board found that a switchboard operator, who had access to the absenteeism and disciplinary records of employees was not employed in a 'confidential capacity' because the employees knew, or should have known, the contents of those records. And in Daal Specialities Ltd., [1973] OLRB Rep. Nov. 592, the Board concluded that a switchboard - receptionist who types replies to grievances was not employed in a confidential capacity since these replies were obviously known to trade union officials to whom they were sent and were in no sense 'confidential."'
(See also Chelsea Park Nursing Home, [1978] OLRB Rep. Dec. 1080; Board of Education for the Borough of Scarborough, [1980] OLRB Rep. Dec. 1713; R.C.A. Limited, [1980] OLRB Rep. Sept. 1316; and Spruce Falls Power & Paper Co. Ltd., [1980] OLRB Rep. Jan. 110).
(emphasis added)
See also Transair Ltd., 74 CLLC 905, at pages 911-912; and St. Clair College of Applied Arts & Technology, [1980] OLRB Rep. July 1067 at paragraphs 16-27.
We do not intend to review the evidence in the Officer's report in detail. There are details that the parties referred us to that, overall, we were not persuaded were relevant or of assistance, and therefore they may not be referred to. We reviewed the written submissions of the parties. Those written representations were reviewed and supplemented at the hearing.
Some general comments may be useful. We are concerned that the parties have engaged in a very expensive and time-consuming process in circumstances where that may have been avoided. The evidence of any exercise of real managerial authority, in light of the individuals' "professional" responsibilities and technical expertise, given the overall size and structure of the employer, is entirely lacking.
Similarly, access to confidential information relating to labour relations must be distinguished from access to other information that may well be confidential to the employer but be irrelevant for collective bargaining purposes. The Board has also distinguished between personnel information and information relating to labour relations, particularly where the personnel information is known to the employee or is information that would be required to be disclosed in bargaining. It seems necessary to say that being an employee within the meaning of the Act does not diminish the trust and loyalty of employees in the performance of the work of the employer.
In all but one case the overwhelming amount of work done by each person challenged was work that gave rise to no potential for the conflict of interest sought to be avoided by section 1(3). There was no persuasive explanation or evidence for the assertion that discrete secretarial
help was required for each department. In fact each department has that; however the issue is whether each of those persons is so regularly involved in dealing with information of a confidential nature in matters relating to labour relations so as to justify the exclusion of those persons from the Act. In addition, the fact that certain department heads are involved in negotiations with other unionized groups of employees does not inevitably lead to a conclusion that each requires that a clerical person be excluded from their departments.
The employer relied on the participation of various individuals in the budget process as evidence of the exercise of managerial authority or access to confidential information. We note that for labour relations purposes, participation in the budget process of a public institution, such as a municipality, may well be of less significance than in a private enterprise, on the basis that the budget, once approved, becomes a public document. In any event, the evidence of participation such as making suggestions, obtaining capital expenditure costs, or tabulating expenditures does not give rise to any potential conflict or mischief under section 1(3). The act of typing a departmental budget submission which includes at most a percentage wage projection, even if arguably providing information that may be relevant to negotiations, but which is subject to further review and change by both the Treasurer and the Town Council, must be balanced against the fact that this activity constitutes a minute portion of the individuals' duties, and therefore argues for an alternate method of preparation so as not to limit the right of employees to engage in collective bargaining (see Corporation of the Town of Dunnville, supra).
Denise Reeves was involved in the budget process in a way that might give rise to concern, in that she appears to have typed revisions to the overall budget as it is debated in Council. It is not clear whether the Council budget debates are open to the public and therefore much of the information available for public scrutiny in any event. Even assuming not, her responsibilities in connection with the budget, including typing of notes, constitutes only a small portion of her duties. Seventy-five percent of her time is spent as receptionist. She also does accounts receivable, is responsible for postage, files tax certificates, and completes other secretarial work for the Treasury Department. While we agree that it may make some sense to have someone available in the Treasury Department to work on the budget, we were not persuaded that Ms. Reeves' duties as a whole led to the conclusion that she is employed in a confidential capacity in matters relating to labour relations.
Our primary conclusion with respect to the eight individuals challenged (on the basis of access to confidential labour relations information) was that, even to the extent that there might be some duties that may give rise to a concern regarding confidentiality with respect to labour relations, seven of the individuals performed them so irregularly or they formed so small a portion of her regular duties, it was not appropriate to conclude that the individual was not an employee on that basis. In light of our general comments and the caselaw cited we will briefly review some of the evidence regarding the six "secretarial" persons (Handy, Keays, Hill, Gillespie, Parr and Reeves), referring to some of the activities that appeared to give rise to concern.
The employer relied on evidence that certain individuals had a role in preparing for negotiations. Ms. Handy collated information from payroll records concerning the amount of overtime worked by crews and the amount of lieu time necessary to compensate. We note that this information could be requested by the union in negotiations and is known to the employees. Ms. Keays collected wage information from other fire departments. This information appears to be of public record. Ms. Keays also collected statistics of the number and type of calls received by the fire department, for example, how many were fire-related as opposed to medical emergencies. While this information maybe indirectly be relevant for negotiations, it is primarily information as to the nature of services, the work of the department, and as Ms. Keays testified, is utilized for a variety of purposes. Ms. Hill has also obtained what would appear to be public information from other municipalities.
Ms. Handy recalled once typing some recommendations for proposals for the CUPE negotiations, which it appears were forwarded from the Director of Public Works to the Chief Administrative Officer (the "CAO"). The evidence of the Director regarding Ms. Handy's duties was of limited assistance in that he referred generally to what Ms. Handy would do and there was little evidence of her having actually performed some of the duties relied on. Minutes of management meetings typed by Ms. Handy concerned business of the department, not matters involving employees or negotiations. By contrast, Ms. Keays has had no involvement in typing proposals for negotiations~ although it appears that the Fire Chief is involved in negotiations with the fire fighters' Association. Ms. Reeves was unclear about the nature of contract documents that she had typed, although she understood they concerned unionized staff.
A number of these individuals (Ms. Handy, Ms. Hill, Ms. Gillespie, and Ms. Parr) had typed memos recommending merit increases or "band" increases, which recommendation would be subject to approval. In some cases the employee involved would already be advised of the recommendation. Ms. Keays has typed letters advising of the successful completion of exams by firefighters. It is not clear whether they are aware of the results at that point and it is also not clear what effect success or failure in the exam has on the individual's employment circumstances.
Similarly, certain individuals had had occasion to type a disciplinary notice. Ms. Keays has typed disciplinary notices regarding volunteer firefighters (who are excluded from the labour relations process), and which do not therefore reflect on the confidential nature of her duties. She has had no such duties in respect of the full-time employed firefighters. Ms. Hill has typed warning letters to unionized staff after the employee is informed. The other secretary (who is in the bargaining unit) has the same access to that information as she does. Ms. Parr recalls three instances over a period of fifteen years that she has typed a disciplinary notice. She testified there was other discipline in her department in which she had no such involvement.
We note that there has been little occasion for the employer to have to resort to disciplinary measures. The employer may argue that although there may be little evidence of the performance of duties in that regard by these individuals, it does not mean that the responsibility does not exist. By the same token, the fact that the responsibility is engaged so infrequently suggests that it cannot be relied on to conclude that these persons are not employees for purposes of the Act.
Although different departments appear to keep different types of employee files, the information contained in most is not of a confidential nature within the meaning of section 1(3), although it is information personal to an employee. Other bargaining unit staff often have access to these files. There appear to be other files kept to which access is not available by these individuals. For example, Ms. Keays has certain information about the full-time firefighters, but she has no access to their files kept by the Fire Chief. Ms. Gillespie, Ms. Parr, and it appears, Ms. Reeves, do not have access to "personnel" files. Even the files kept by Ms. Thompson in the Treasury Department appear to contain personal information pertinent only to payroll and benefit coverage.
Ms. Thompson and Ms. Sjerps generally perform more accounting and/or clerical functions than the other disputed individuals. Ms. Thompson is responsible for preparing invoices, reports, cheques, the payroll, and processing benefit claims. She receives a copy of discipline imposed after it has issued in order to adjust the payroll. She has locked personnel records in her office, although there was no evidence to suggest that they included any grievance information, rather than simply a notification of discipline. She has access to this personal employee information in order to properly prepare the payroll. She has been asked to obtain benefit cost information for purposes of negotiations, although the Deputy Treasurer has also obtained this type of information.
By contrast, Ms. Sjerps has access to, and is responsible for all the files of the Town, wherever situate, including files coded as H007, labour relations. We concluded that Linda Sjerps, Records Management Coordinator, is not an employee for purposes of the Act in that she regularly deals with and is responsible for the Town's record management system, including information that is confidential in respect of labour relations. In addition, she performs clerical work and has been and is available to the employer to perform clerical work that is of a confidential nature in matters relating to labour relations. She has typed budget and contract proposals and has filled in for other secretaries who are excluded from the bargaining unit. This includes the secretary to the CAO and the secretary to the Mayor. All these individuals are situate in the CAO Office and Clerks Department.
Steven Kinsella prosecutes municipal by-law infractions in the Provincial Court in Barn and administers parking infraction notices and conducts traffic studies regarding speed signs and their locations. In the last couple of years the Town has taken over the prosecution of parking infractions from the police and as a consequence the workload has gone up considerably. He also receives any drainage complaints with respect to Town by-laws. Mr. Kinsella reports to the Director of Municipal Law Enforcement. In that department there are also three municipal law officers and two secretaries (one of whom was also challenged in these proceedings). Mr. Kinsella spends all of his time performing these functions for the Town. None of the other employees in the department report to him although he is consulted with respect to law enforcement matters. He has considerable expertise and skill in this area arising from education, training and prior experience.
Mr. Kinsella is to fill in for the Director when absent, although the evidence did not indicate whether he had ever in fact done so. At most it would appear that Mr. Kinsella would fill in if the Director were absent on vacation or due to illness for short periods. If the officers have questions after hours, they attempt to contact the Director first, failing which, they would attempt to contact Mr. Kinsella.
Mr. Kinsella is in a higher rated classification than the officers. He is paid a salary. He
is required to be on call seven days a week. He requires authorization in order to work overtime or to take time off. He receives compensation for overtime in the form of time off. He has the use of a municipal vehicle.
He had conducted one or two performance appraisals prior to 1991 but was then told evaluations were to be done by the Director. That occurred in circumstances where he had not recommended an increase as high as was ultimately given to the employee. Mr. Kinsella's involvement in the budget is simply obtaining information regarding capital costs. While the employer relied on Mr. Kinsella's conduct concerning the reporting of improper conduct on the part of other employees in the department, his actions in those situations do not amount to the exercise of managerial authority. In one instance he advised the Director that an employee was breaching policy by collecting cheques instead of delivering summonses. The Director asked him to speak to the employee. He did. She was not aware of the policy. No discipline issued. In another example, Mr. Kinsella suggested that an employee be suspended because in his view the employee was neglecting his duties. No action was taken against the employee. Finally, Mr. Kinsella offered his opinion with respect to the performance of a temporary employee.
The employer also relied on Mr. Kinsella's involvement in the hiring process. Mr. Kinsella sat in on two interviews at the request of the Director and offered his views as to whether or not he felt the candidate was qualified. In both cases the job was that of Municipal Law Enforcement Officer. While the employer asserted that Mr. Kinsella made an effective recommendation to the Director, on the evidence, it would appear more accurate to state that the Director made an effective recommendation to Town Council which is responsible for hiring. In one case the Director had no reservations about the candidate. In the other he sought Mr. Kinsella's view as to whether the individual was able to "handle" the job. This individual had been employed as a secretary by the Town and it would seem both individuals knew her work in that regard. A temporary employee was hired without any input from Mr. Kinsella.
While there is little doubt that Mr. Kinsella has more extensive experience and perhaps training, and a broader range of job duties than do the Municipal Law Officers, that does not lead to the conclusion that he exercises managerial authority with respect to their employment. The fact that he may have sat in on interviews and offered his views as to the qualifications of the candidates is insufficient to bring his functions within the ambit of section 1(3). Similarly the fact that he raises mistakes in performance with the employees or with the Director, in the absence of evidence of some greater involvement in a disciplinary process, only suggests that he is conscientious with respect to the performance of the work in his department. To the extent that he has on occasion offered his opinion as to an appropriate consequence, it appears his suggestions have not been followed. We concluded therefore that Mr. Kinsella did not exercise managerial authority pursuant to section 1(3) of the Act, and that he was therefore an employee for purposes of the Act.
Our general comments with respect to the duties and responsibilities of Kathleen Brislin echo those made in respect of Mr. Kinsella. As Principal Planner, Ms. Brislin is primarily responsible for longer term planning policy and development, including reviewing official plan amendments and other land use planning matters. The Planning Department is headed by a Director and divided into the planning division and building division. The planning division includes two additional planners whose responsibilities are primarily more immediate implementation of planning policy, and two secretaries (one of whom is challenged in these proceedings). Ms. Brislin fills in for the Director when he is absent. The evidence disclosed one occasion where, in the absence of the Director, Ms. Brislin authorized certain time off for an employee. In any event, and similar to Mr. Kinsella, the fact that a departmental member may fill in for the Director for vacation or sick leave is insufficient to conclude that that person exercises managerial authority as a regular part of their functions. Mr. Brislin attends in-camera Town Council meetings with the Director. However these involve planning matters and not personnel or collective bargaining matters. Other planners also have attended in-camera meetings. Her involvement in the budget is simply to provide suggestions to the Director, as do other planners.
Ms. Brislin did sit on interviews with respect to the hiring of a planner approximately one and a half years ago. She participated in those interviews and offered her views on the candidates. We note there was no dispute or question between the Director and Ms. Brislin as to the appropriate candidate to recommend to Council for hire.
The employer also relied on one occasion where Ms. Brislin spoke to the secretary who completes work for the Director and Ms. Brislin. Both had concerns over the employee's productivity. Ms. Brislin asked the employee if they could both work to be more productive and the problem apparently improved. Ms. Brislin did not view this as disciplinary action. According to the Town's employee by-law this would not be viewed as disciplinary action in that it was not followed up in writing. The fact that Ms. Brislin generates work for the secretary to complete and is therefore in a position to assess the secretary's performance, is an insufficient basis from which to conclude she exercises managerial functions.
Overall, the fact that Ms. Brislin sat in on interviews with respect to the hire of one employee was insufficient in our view, in light of her other responsibilities, to conclude that she exercises managerial functions such that she is excluded from the operation of the Act.
It may be that as a result of this decision the employer will be required to reassess the assignment of certain duties and responsibilities and review and identify those areas where it has legitimate concerns regarding the mischief to which section 1(3) is addressed. In cases like this, decisions of the Board inevitably influence the organizational structure of the employer. The evidence reflected at best the irregular and limited performance of duties and responsibilities that might give rise to concern that there existed potential for the conflict of interest sought to be avoided by section 1(3). That is insufficient to warrant a finding that persons are not employees for purposes of the Act. Therefore, our decision as set out in paragraph 1 herein issued.