[1994] OLRB Rep. January 96
2712-90-M; 0791-91-M; 0602-92-M York University Staff Association, Applicant v. York University, Responding Party
BEFORE: M. Kaye Joachim, Vice-Chair, and Board Members R. M. Sloan and H. Peacock.
DECISION OF M. KAYE JOACHIM, VICE-CHAIR AND BOARD MEMBER H. PEACOCK; January 28, 1994
The applicant made three applications under section 106(2) (now section 108(2)) of the Labour Relations Act, for a determination by the Board whether or not numerous persons are "employees" within the meaning of the Act.
Initially, the applications concerned eighty-three people (sixty-three in Board File No. 2712-90-M, seventeen in Board File No. 0791-91-M, and three in Board File No. 0602-92-M).
The Board authorized two Labour Relations Officers to inquire into and report to the Board with respect to the duties and responsibilities of the persons named in each of the three applications (also referred to in the decision as the "disputed persons").
The parties were able to resolve their disputes with respect to the majority of the persons named in the applications and the status of only seventeen persons remains in dispute.
The Officers' Reports consist of seven volumes of transcripts detailing the duties and responsibilities of the disputed persons and two volumes of exhibits. The Reports also contain agreements by the parties with respect to some of the duties and responsibilities of the disputed persons.
The parties made written representations concerning the conclusions the Board should reach in view of the Labour Relations Officers' Reports and replied to each other's representations.
General Legal Framework - Managerial Exclusion
The rationale for the exclusion of persons who exercise managerial functions from the operation of the Act was summarized by the Board in The Corporation of the City of Thunder Bay, [1981] OLRB Rep. Aug. 1121:
Section 1(3)(b) excludes from collective bargaining persons who in the opinion of the Board exercise managerial functions. The purpose of the section is to ensure that persons who are within a bargaining unit do not find themselves faced with a conflict of interest as between their responsibility and obligations as managerial personnel, and their responsibilities as trade union members or employees in the bargaining unit. Collective bargaining, by its very nature, requires an arm's length relationship between the "two sides" whose interests and objectives are often divergent. Section 1(3)(b) ensures that neither the trade union nor its members will have divided loyalties.
A further purpose was identified by the Board in Ford Motor Company of Canada Limited, [1993] OLRB Rep. January 1:
In addition to the obvious examples of conflicting interests on the shop floor, there are broader, systemic concerns which require the exclusion of '~management" from participation in trade union activities. For if management personnel were treated like ordinary employees, and were free to organize or promote particular trade unions, the freedom of these other workers could be undermined and the independence of their trade unions could be jeopardized.
Unless the alleged "managerial" personnel really are like other workers, and really do not have any significant authority over their fellow employees, nothing prevents them from using their influence against those workers or their union. ... Section 1(3)(b) not only defines who is excluded from the collective bargaining process; it also identifies who is prevented from using "managerial" authority to interfere with the collective bargaining rights of others.
(emphasis in original)
- With respect to the managerial exclusion, the discretion of the Board under section 1(3) operates on two levels as follows:
It operates firstly to exclude persons who can affect the terms and conditions of employment and/or the employment relationship of those in the employ of the organization and secondly it operates to exclude those who make decisions with respect to policy and the overall operation of the organization. (Inglis Limited, [1976] OLRB Rep. June 270 at 271)
- The Board has further commented on these two levels in The Corporation of the City of Thunder Bay, [19811 OLRB Rep. Aug. 1121:
3.... In the case of so called "first line" managerial employees, the important question is the extent to which they make decisions which affect the economic lives of their fellow employees thereby raising a potential conflict of interest with them. Thus, the right to hire, fire, promote, demote, grant wage increases or discipline employees are all manifestations of managerial authority, and the exercise of such authority is incompatible with participation in trade union activities as an ordinary member of the bargaining unit. In the case of more senior managerial personnel whose decision-making may have a less direct or immediate impact on bargaining unit employees, the Board has focused on the degree of independent decision-making authority over important aspects of the employer's business. It is evident that persons making significant executive or business decisions should be considered a part of the "management team" even though they do not exercise the kind of direct authority over employees which is characteristic of a first line foreman.
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. In this case, we are dealing with a university setting, and we examined the duties and responsibilities within the context of this particular university's corporate structure. (See Fanshawe College of Applied Arts and Technology, [1991] OLRB Rep. Sept. 1044 at page 1047).
Although there "... is no universal ratio of supervisors to subordinates" (Vagden Mills Limited, [1982] OLRB Rep. June 968 at 971) one generally looks for a rational relationship between the number of supervisors and subordinates. "The fewer the number of subordinates the stronger the need for demonstrative evidence of managerial status - especially if the next level of management is in close proximity and seems to be closely involved in the ultimate decision-making." (Town of Ajax, [1987] OLRB Rep. Sept. 1117 at paragraph 7, see also: Kitchener Waterloo Hospital, [1986] OLRB Rep. May 651 at paragraph 10).
Consultation or input should not be confused with decision-making.
Co-ordinating and directing the work of others is not akin to exercising managerial functions within the meaning of section 1(3) of the Act.
The situation of persons who exercise some degree of control over others, but who also perform bargaining unit work was discussed in Falconbridge Nickel Mines Limited, [1966] OLRB Rep. Sept. 379:
In other words, in determining an individual's status, one cannot look at a portion of his duties in isolation. If the functions of an allegedly "managerial" character occupy only a minor part of his time, it is unlikely that he will be excluded from the ambit of collective bargaining unless those functions involve a decisive impact on his fellow employees. (For example, a unilateral decision to fire an employee would be highly significant, even if the exercise of such power is infrequent; while incidental supervisory responsibilities do not raise the kind of conflict of interest underlying section 1(3)(b)).
See also J. M. Schneider Inc, [1987] OLRB Rep. Mar. 381 at 389:
In addition, in view of the underlying purpose of the Act, an employer has some onus to organize its affairs so that its employees are not occasionally placed in such position of potential conflict of interest if that result can be readily avoided. Distributing labour relations functions, piece-meal, over a large number of individuals will not necessarily deprive them of their prima facie right to engage in collective bargaining. On the contrary, such dilution of responsibility may make it harder for the Board to find that any of them should be excluded. This is not to say that this Board has any right to dictate an employer's managerial structure or business organization; however, where "managerial" or "confidential labour relations" functions are not clearly assigned to, or grouped in, particular positions or persons, it may be difficult for the Board to conclude that the requirements of section 1(3)(b) have been satisfied - bearing in mind that this involves both a qualitative and quantitative assessment, and that, ultimately, the onus rests upon the party seeking exclusion to establish the basis for it.
- Authority over employees who are not in the bargaining unit (i.e. casual staff, students) in which the disputed person may be placed may not be as significant as if that authority was being exercised over bargaining unit employees. (J. M. Schneider Inc., [1987] OLRB Rep. Mar. 381 at paragraphs 22 and 55).
Confidential Personnel
The "second branch" of section 1(3) of the Act, excludes from the Act persons employed in a confidential capacity in matters relating to labour relations. The basis for the exclusion was considered by the Board in Kitchener Waterloo Hospital, [1986] OLRB Rep. May 651, in part, as follows:
The second branch of section 1(3)(b) has a similar collective bargaining purpose: to exclude from a bargaining unit persons who have access to confidential material relating to labour relations, so that the employer can know that its internal strategies and communications are known and handled exclusively by persons of undivided loyalty (see Town of Gananoque, [1981] OLRB Rep. July 1010). Access to information which may be "confidential" is not, by itself, sufficient to exclude an employee from the application of the Act since what is important is not the confidentiality of the information, but rather its labour relations content and potential collective bargaining use. For example, the secretary to the industrial relations manager may have no independent managerial authority, but may still be privy to the employer's collective bargaining strategy or other sensitive labour relations information. At its most prosaic level, even a clerk or a stenographer who takes minutes at a management meeting to plan the employer's collective bargaining posture should not be faced with a potential conflict of loyalty because of his/her membership in the bargaining unit. However, as the Board indicated in York University, [1975] OLRB Rep. Dec. 945:
……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, 119741 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 the 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 The Toledo Scale Division of Reliance Electric Limited case, [1974] OLRB Rep. June 406).
Onus
- The applicant asserted that the onus is on the party seeking to exclude employees from the scheme of the Act. The responding party submitted that the applicant has the onus to satisfy the Board that the disputed persons do not exercise managerial authority and/or are not employed in a confidential capacity in matters relating to labour relations. The responding party relied on the basic principle that the one who asserts must prove and noted the absence of a reverse onus provision with respect to section 108(2). The responding party further stated that this application arises~ not in the context of a certification application, but in a context where the parties have a longstanding collective bargaining relationship. On this basis, it suggested that the Board decisions on onus, which arose in the context of certification applications, are not applicable. Rather, they submitted that the second "general approach" stated in the The Corporation of the City of Thunder Bay decision applies:
A party which is attempting to alter a status quo which reflected the earlier perceptions of the parties concerning an individual's status and which has apparently worked adequately for some years must recognize the importance of this historical dimension and be prepared to adduce clear evidence as to why a change is required to accommodate the interest section 1(3)(b) was designed to protect. (at page 1126)
- The Board has not had to rely on the onus of proof with respect to any of the disputed persons. In each case, the Board was able to determine, on a balance of probabilities, the status of each of the disputed persons.
Evidentiary Matters
The applicant (also referred to in the decision as "YUSA") called as witnesses Patricia Foulkes, Administrative Assistant to the Sociology Department at the Faculty of Arts, Maureen Blenkhorn, Budget Officer in the Office of the Dean at Atkinson, Jane Grant, then President of YUSA, on leave from her position as a Lab Technician IV in the biology department, and Professor Tom Meininger, former Acting Dean at Atkinson College. Ms. Foulkes, Ms. Blenkhorn and Ms. Grant gave evidence with respect to their own duties and responsibilities. Professor Meininger gave evidence with respect to Maureen Blenkhorn's duties and responsibilities.
The responding party objected to the admission of this evidence since it was not evidence of the duties and responsibilities of any of the disputed persons. The applicant responded that this evidence is relevant to establish context and to show that bargaining unit members often have input in hiring decisions.
The Board reviewed the evidence and concluded that it is relevant to show that some bargaining unit members have input in the hiring process at York University. This is one factor, among many, that the Board considered in determining the status of the disputed persons.
The responding party further objected to the admission of twenty-four position questionnaires which described the duties and responsibilities of bargaining unit employees. The responding party asserted that the questionnaires are not relevant since they do not relate to the duties and responsibilities of any of the disputed persons. Further, the responding party objected to the admission of the questionnaires on the grounds that they were designed for pay equity purposes and not for the purpose of determining managerial functions, they were outdated, and they constituted hearsay.
The applicant responded that the questionnaires contain relevant information about the scope of responsibilities of members of the bargaining unit. Where the respondent is relying heavily upon budgetary and hiring responsibilities (among other things) to justify the exclusion of certain people as managerial, the applicant argued that it should be entitled to advise the Board that a large number of employees - who have long been recognized by the respondent as properly included in the bargaining unit - exercise the same or similar responsibilities. The questionnaires, in the applicant's view, are reliable evidence in this regard, in that they include not only the comments of the employee, but also of his or her supervisor. With respect to the issue of hearsay, the applicant responded that each of the questionnaires was reviewed by the employee's manager, who had the right to agree, disagree, and/or add comments. Most managers took advantage of this, and did so. The questionnaires submitted by the applicant include both sets of comments. In these circumstances, the applicant submitted that the questionnaires can be regarded as an admission against interest, and thus can be admitted as an exception to the general rule against hearsay.
Having reviewed the position questionnaires, the Board concluded they are admissible. They are relevant to the issue of the context of this particular workplace where bargaining unit members have input into hiring decisions and exercise budgetary responsibilities. However, the date of the questionnaires, the purpose for which they were designed and the absence of testimony by the persons who actually performed those duties~ lessened considerably the weight the Board placed on this evidence.
David Demonte
David Demonte is the Leisure Services Officer in the Department of Physical Education, Recreation and Athletics. He reports to the Assistant Co-ordinator, who reports to the Director, Athletics and Recreation. The top position in that department is the Vice-President. Mr. Demonte has been in this position since 1986.
The Recreation part of the department has four parts: intramurals, clubs, life-style programs and casual recreation. Mr. Demonte is responsible for intramurals and clubs. He does not exercise managerial authority over any bargaining unit employees.
In implementing the intramural program he oversees the hiring of approximately 160-180 casual staff, almost exclusively students. These students act as convenors, head officials and referees of the various intramural activities offered by the university. Some are volunteers. Others are paid according to the amount of work they do and can earn approximately twenty dollars to one thousand dollars annually. In addition, two students are employed to work evenings approximately twenty hours a week, twenty-four weeks a year. Mr. Demonte is responsible for all these part-time and casual workers.
At this University, students are often employed on a casual, part-time, or work study basis. None of them are in any bargaining unit. The exercise of managerial type functions over these non-bargaining unit workers, in this particular workplace, does not create the type of conflict of interest problems section 1(3) of the Act was designed to avoid. (J. M. Schneider, supra)
In running the intramural and club program Mr. Demonte operates within a budget of approximately $70,000. Most of the budget is taken up by the salaries of the aforementioned workers. The remainder of the budget is used to purchase equipment or rent off-campus facilities. Mr. Demonte has complete signing authority for these expenditures. Although Mr. Demonte operates independently within his area of expertise, he does not exercise such independent decision-making over important aspects of the operation of the university as to justify his exclusion from the operation of the Act.
Mr. Demonte is one of a five member Executive Committee consisting of two persons from Recreation, two persons from Athletics and the Director. During his employment, this committee once discussed cut-backs of personnel and programmes in the department. Mr. Demonte has one vote out of five on the committee. The committee recommendations are passed on to the Vice-President. This attendance at management meetings is not the kind of regular, material involvement in confidential matters relating to labour relations which would justify excluding him from the operation of the Act.
Margaret Wallace
Margaret Wallace is the Assistant Director of Athletics at Glendon College. She reports directly to the Director of Athletics and indirectly to the Dean of Student Affairs. She has been in the position for five years.
Ms. Wallace is responsible for designing and implementing all recreational and athletic programmes at Glendon. She is responsible for operating the Pro-Shop, liasing on behalf of Glendon students in intramural programmes, and renting facilities within the Proctor Field House.
Ms. Wallace is responsible for scheduling programmes and events at the Proctor Field House, which generates approximately $250,000.00 in revenue. Approximately $100,000.00 of that amount is generated from rental of the premises, for which Ms. Wallace has full responsibility. She is also responsible for the entire operation of the Pro-Shop which generates revenues of approximately $50,000.00 annually. Further, she has total responsibility for the equipment purchase budget of the department in the amount of approximately $58,000.00.
These areas of operation are not central aspects of the operation of the university nor does her independent decision-making within that area impact on the economic lives of employees in such a way as to justify her exclusion from the operation of the Act.
There are currently four full-time employees in the department who are members of a bargaining unit represented by YUSA ("YUSA employees"). Generally the director is responsible for supervising the bargaining unit staff. In the absence of the director, Ms. Wallace is "in charge". In the absence of the director, she can authorize overtime or grant casual time off. However, the evidence suggests that this has not happened frequently. Ms. Wallace does no formal assessment of YUSA employees' work performance. She is not responsible for hiring or firing bargaining unit staff, although she has been involved in interviews to fill positions of bargaining unit staff. However, this input must be weighed in the context of the University's inclusive decision-making management style where bargaining unit members do from time to time sit on hiring panels. Although Ms. Wallace was advised by the director that she has the power to discipline or suspend the four bargaining unit staff in the department, she has never done so. It was apparent from Ms. Wallace's evidence that although the four YUSA members report to her it is the director who has effective responsibility for these employees.
In addition, Ms. Wallace has responsibility for approximately twenty fitness instructors, twenty-five life-guards and five Pro-Shop staff. Many of these part-time, casual employees are students. It should be noted that the twenty-five life-guards report primarily to the recreation assistant, a bargaining unit member, who then reports to Ms. Wallace. The fact that a member of the YUSA bargaining unit exercises responsibility for these casual employees without affecting her status as an employee reinforces the Board's view that responsibility over non-bargaining employees is not a significant factor in this workplace.
The Board concludes that Ms. Wallace does not exercise managerial functions and her inclusion in a bargaining unit does not create the type of conflict of interest problems section 1(3) of the Act was designed to avoid.
Terry Carter
Terry Carter is the Co-ordinator, Policy and Research for the Faculty of Education. She reports to Stanley Shapson, Dean of the Faculty of Education. At the time she was examined, she had been in her position for seven months.
Ms. Carter is part of the Dean's office and the only member of the Policy and Research Department. She is responsible for Policy, Research and Governance (Committee and Faculty Council Work).
Ms. Carter is responsible for developing program proposals and for responding to papers and reports generated from a number of sources including the Ministry of Education. One example of a program proposal in which Ms. Carter was involved was a proposal to the Ontario Council of University Affairs with respect to a French as a First Language program. Ms. Carter was involved in determining what information to include in the proposal, discussed the contents of the proposal with the Dean, and drafted portions of the proposal. If the proposal is accepted and receives funding, it would add one hundred full-time equivalents to the faculty enrolment and would therefore have a significant impact on the Faculty of Education in the areas of academic planning, staffing and budget.
Similarly, Ms. Carter's responsibility for responding to papers and reports on issues could have significant impact on the Faculty of Education. Both these areas involve policy development for the Faculty of Education and in this regard, Ms. Carter works closely with the Dean.
Formulating policies with respect to which direction the Faculty of Education should pursue is an exercise of independent decision-making responsibility in matters of importance to the University. Further, those policies which she has a role in formulating could impact on staffing, which would put her in a position of conflict with bargaining unit employees.
In addition to her policy work, Ms. Carter is the secretary of the Faculty Council which is comprised of all full-time faculty in the Faculty of Education and representatives from other faculty. The Faculty Council votes on major policy changes and new courses. She is also the secretary of several committees of Faculty Council: the co-ordinating and planning committee, the curriculum committee, the petitions and awards committee and the tenure stream appointments committee. As secretary she drafts the agenda, takes minutes, provides clarification, makes recommendations and acts as a resource person to the committee. She does not have a vote on any of these committees.
After Ms. Carter's examination, Dean Shapson testified to an additional duty carried out by Ms. Carter, the supervision of one YUSA bargaining unit employee employed in the Education Resource Centre. The applicant objected to the admission of Dean Shapson's evidence on the basis that Ms. Carter was not performing this function at the time of her examination. The responding party submitted that the Board should admit and consider this evidence on the basis that it reflects Ms. Carter's true duties and responsibilities, albeit new duties and responsibilities. It should be noted that each of the disputed persons described his/her duties at the time he/she was examined. At the time Ms. Carter was examined, she had already been given responsibility for the Education Resource Centre, including supervisory responsibility for the YUSA bargaining unit employee who staffs that Centre, although she had not yet exercised such supervision. In light of the fact that the examinations took place over an extended period of time, that each of the disputed persons described his/her duties at the time of his/her examination, and that Ms. Carter had already been assigned the supervisory duties in question at the time of her examination, the Board will consider Dean Shapson's evidence.
With respect to the bargaining unit employee in the Education Resource Centre, Ms. Carter is responsible for assigning work, monitoring work, disciplining (up to termination)~ granting time off, approving leaves of absence, approving vacation requests and authorizing overtime. In light of all her duties, the Board concludes that Ms. Carter exercises managerial functions and is therefore not an employee within the meaning of section 1(3) of the Act.
Reuben Tang
Reuben Tang is employed as the Administrative and Production Supervisor of Design and Production. He reports to the Assistant Director of the Communications department, who reports to the Director. The applicant made no submissions with respect to Mr. Tang.
It was submitted by the employer that Mr. Tang exercises independent discretion with respect to significant expenditures of York University funds and on this basis, he should be found to exercise managerial functions within the meaning of the Act. Mr. Tang supervises the printing of work for the University community. Approximately six hundred thousand dollars worth of printing is contracted to outside printers and Mr. Tang is responsible for this contract work. In addition he drafts the proposed budget for his department which he discusses with the Assistant Director and then submits to the Director.
Five YUSA staff members report to Mr. Tang; two graphic designers, one typesetter, one graphic artist and one secretary. Mr. Tang assigns and monitors their work. He hired the secretary. He has responsibilities for training employees and instructing them how the work should be done. He has been asked to indicate whether or not a probationary employee should be kept on. Mr. Tang has authority to grant time off, to grant a leave of absence and to schedule vacations. He can authorize overtime and he initiated the decision to pay overtime to employees instead of offering them time in lieu. He has suggested to employees a need for improvement. Mr. Tang has authority to suspend and discharge an employee although he has not yet had occasion to do so. He also received job re-evaluation requests from three of his staff and initiated re-evaluations for the remaining staff.
Based on his supervisory responsibilities for five bargaining unit members, the Board finds that Mr. Tang exercises managerial functions within the meaning of the Act and is therefore excluded from the operation of the Act.
Don Murdoch
Don Murdoch is the Fine Arts Liaison Officer. He reports to the Manager of Public Relations and Development and has been in his position for three years. Mr. Murdoch is responsible for student relations, including deciding how York University will be represented to students and developing strategies for student retention.
One full-time YUSA employee (Assistant to the Liaison Officer) reports to Mr. Murdoch. This employee was hired was by Mr. Murdoch and was granted a one year leave of absence by him. In addition he hired a YUSA employee on a contract basis to replace the assistant during her leave of absence.
Mr. Murdoch is responsible for training, instructing, assigning work and deadlines, authorizing overtime~ assessing the work and recommending improvement with respect to the assistant. He made the decision to retain his assistant at the completion of her probationary period.
Although Mr. Murdoch exercises managerial authority over only one employee, the evidence demonstrates that he has significant impact on her economic life as an employee and his inclusion in a bargaining unit would place him in a conflict of interest position. This is not the type of situation suggested in the Town of Ajax case, referred to earlier, in which the next level of management is in close proximity and seems to be closely involved in the ultimate decision-making. The Board concludes that Mr. Murdoch exercises managerial functions within the meaning of section 1(3) of the Act.
Michael Ecob
Michael Ecob has been employed since 1978 as the Advertising and Publications Officer. He works in the Editorial and Publications section of the Communications department and reports to the Assistant Director, who reports to the Director.
Mr. Ecob's primary duties and responsibilities are production of the undergraduate calendar, advertising, and listings in national and international directories. Although Mr. Ecob works independently in carrying out those responsibilities, the Board does not find those areas are of such importance to the operation of the university as to justify his exclusion from the protection of the Act.
Although two bargaining unit positions under his direction and control existed "on paper", Mr. Ecob was not supervising anyone at the time of his examination and had not been doing so for at least one year prior to that. As a result of the hiring freeze imposed by senior management of the university, there are no foreseeable plans to fill these positions. Although there are two clerical people in the department to whom he assigns work, they are not under his control or direction. The Board concludes that Mr. Ecob does not exercise managerial functions at the present time, and is therefore an employee within the meaning of the Act.
Marilyn DiFlorio
Marilyn DiFlorio has been the Administrative Officer in the Office of Research Administration since 1987. She reports to the Director. The department administers all research grants for the University.
Ms. DiFlorio functions as the Office Manager and has six YUSA employees reporting to her: a receptionist, two secretaries, an administrative assistant, an assistant information office and an information officer. Initially, the Director was responsible for supervising the staff in the department. However, in light of an increase in the Director's duties, she recommended the creation of Ms. DiFlorio's position to act as direct supervisor of the employees.
Ms. DiFlorio effectively recommended the hiring of five of the six YUSA employees and recently made recommendations which eliminated the position of one. She effectively recommended whether or not a probationary employee should be released or retained. She is responsible for training new employees. She instructs them as to the proper method and manner in which their work should be done and checks and corrects their work. She has the authority to suspend or discipline an employee although the occasion to do so has not arisen. She has authority to grant casual time off and to grant leaves of absence in accordance with the collective agreement. She can authorize overtime. On the basis of the above, the Board concludes that Ms. DiFlorio exercises managerial functions within the meaning of section 1(3) of the Act.
Diane Bates/Linda Keith
Diane Bates and Linda Keith both work in the Department of Private Fund-raising and report to the Acting Manager of the department. Ms. Keith is a Manager, Alumni Fund-raising, and Ms. Bates is a Fund-raising Manager. Ms. Keith had been in her position for three and a half years at the time of her examination and Ms. Bates was in her second year.
Their department is responsible for raising funds through private sources. Ms. Keith is responsible for raising funds from Alumni and Ms. Bates is responsible for raising funds through the Community Business Suppliers Programme, the Parent's Programme and Faculty Staff Fund-raising. There is one bargaining unit position under their joint direction and control. The position is currently vacant, although there is evidence that it would likely be filled shortly. When the position was filled, Ms. Bates and Ms. Keith jointly assigned the secretary work, supervised her work performance. They could grant casual time off or authorize overtime and could recommend discipline or discharge of this employee.
Although the evidence is not clear on this point, it appears that while the position of secretary reporting to them is vacant, they currently share the services of another YUSA secretary in the department. They both assigned this secretary work, monitored her work performance, and recommended areas for improvement. They believe they have the authority to discipline this secretary although the occasion to do so has not arisen.
Quantitatively, the truly managerial functions that Ms. Bates and Mr. Keith exercise jointly over the one secretary is minimal. As stated in J. M. Schneider Inc., supra, "an employer has some onus to organize its affairs so that its employees are not occasionally placed in such a position of potential conflict of interest if that result could be readily avoided." Excluding two employees from the protection of the Act on the basis that they jointly exercise minor managerial functions over one employee, which managerial functions could easily be assigned elsewhere, is not justified in the context of the scheme of the Act.
Ms. Keith and Ms. Bates hire approximately twenty-four to twenty-seven students who engage in casual or part-time tele-marketing under their supervision. The Board does not find the supervision of these non-bargaining unit employees to be a significant factor in this workplace.
For the reasons set out above, the Board finds that Ms. Keith and Ms. Bates do not exercise managerial functions and are therefore employees within the meaning of the Act.
Sheila Creighton
Sheila Creighton is the Convocation Officer. She reports to the Director of Student Affairs who reports to the Assistant Vice-President, Campus Relations and Affairs. She has been in her position since April 1988.
Ms. Creighton is responsible for convocation at York University. There are approximately 7,000 graduates annually and Ms. Creighton's responsibilities are very important to York University's public relations. Ms. Creighton is responsible for determining the site of the ceremony, for negotiating and entering into contracts on behalf of the University, for scheduling the ceremony, and for securing the diplomas.
Although Ms. Creighton works independently in carrying out her duties for Convocation, we do not find that she exercises the kind of independent decision-making over such important aspects of the university as would justify her exclusion from the Act.
Two work study students work for two six-week periods under her supervision. As well, a number of casual employees are hired for the convocation ceremony itself. None of these employees are members of any bargaining unit. We do not find her supervision of these casual employees to be significant in determining her status under the Act.
One full-time YUSA employee, a Convocation Assistant, reports to Ms. Creighton. This position has been vacant on two occasions and Ms. Creighton has hired the person to fill the vacancy on each occasion. She was asked to indicate in writing at the end of the employee's probationary period whether the employee had performed satisfactorily. Ms. Creighton assigns work to the Assistant, provides training, and checks and corrects her work. Ms. Creighton has not had occasion to dismiss an incumbent in the YUSA position reporting her. However, she is currently in the process of addressing unsatisfactory work performance by this employee and has met with a Labour Relations person from Human Resources for guidance on how to proceed further.
Although Ms. Creighton exercises managerial functions over only one YUSA employee, the evidence demonstrates that she has significant impact on this employee's economic life, and her inclusion in a bargaining unit would place her in a conflict of interest position. The Board concludes that Ms. Creighton exercises managerial functions and is therefore not an employee within the meaning of the Act.
Anita Herrmann
Anita Herrmann is the Financial Aid Administrator and the Co-ordinator, Prestigious Awards. She reports to the Director of Financial Aid and Prestigious Awards and she has been in her current position for two years.
Ms. Herrmann is responsible for granting bursaries to students in financial need, for administering the guidelines of the Canada Scholarship Programme, for giving advice to potential scholarship donors, and for administering private awards once they have been approved by Senate. Overall, she is responsible for significant sums of money. Nonetheless, the Board concludes that Ms. Herrmann does not exercise such independent decision-making in areas of importance to the university as would justify her exclusion from the Act.
There is one bargaining unit employee under her direction and control, the Administrative Assistant. She assigns work to this employee, monitors the work, can grant casual time off and can authorize overtime. Although Ms. Herrmann has been told that she has the power to hire, fire, and discipline this one employee, she has never done so. She did not know whether she would need approval to do so.
Additionally, Ms. Herrmann oversees a work study student in the department. When the administrative assistant took a maternity leave, it was the Director who made the decision to replace the administrative assistant with the work study student already working in the department.
In light of the fact that there is only one YUSA employee at issue and the fact that Ms. Herrmann's immediate supervisor, the Director, has effectively exercised managerial functions concerning this employee, the Board finds that Ms. Herrmann does not exercise managerial functions within the meaning of the Act.
Penny Bissett
Penny Bissett is the Assistant Director of Secondary School Liaison. She reports to the Associate Director of Admissions and Liaison who reports to the Director of the department. She has been in the position for two and a half years.
The department is responsible for the recruitment of students to York University. Ms. Bissett is in charge of the recruitment of secondary school students. She contributes to the formulation of recruitment strategies and then implements them. She is responsible for assigning, scheduling and supervising liaison staff. On an annual basis, she organizes the training conference for liaison staff throughout the campus. Except as described below, the liaison staff are excluded from the YUSA bargaining unit.
During the recruitment season, which occurs from approximately mid-August until December, Ms. Bissett hires three YUSA employees on contract to attend at various schools for the purpose of recruiting potential applicants.
Ms. Bissett initiated the recommendation that contract staff be hired on a seasonal basis and since that time has hired approximately nine YUSA contract staff. She is responsible for training the contract employees for their liaison responsibilities. She performs a formal assessment of their work and decides whether to retain or reject contract staff for the duration of the contract.
Ms. Bissett has authority to grant the contract staff casual time off, authorize overtime and schedule vacations. She monitors their time-keeping. On one occasion she investigated and reported on a Workers' Compensation claim with respect to a contract employee.
Ms. Bissett exercises direct supervisory responsibilities with respect to these bargaining unit employees. Although this aspect of her work only occurs on a seasonal basis, approximately four months a year, during that time her supervisory responsibilities form a significant portion of her work load. Further, there is no evidence that this type of supervisory responsibility could be transferred to anyone else in the department. The Board concludes that Ms. Bissett exercises managerial functions and is therefore not an employee within the meaning of the Act.
Lawrence Mattiussi/Jim Priestly/Walter Joost
Lawrence Mattiussi has been employed as a Project Co-ordinator in the Operations department for approximately eight years. He reports to the Superintendent of Maintenance who reports to the Director of Operations who reports to the Assistant Vice-President, Physical Resources. The function of the Operations department is to maintain existing services, i.e., electricity, plumbing, furnishings, exterior and structural content.
Mr. Mattiussi is assigned projects by his immediate supervisor and advised how many dollars can be spent. Once assigned a project, he has total authority and responsibility to ensure that it progresses smoothly, on schedule and according to the assigned budget. Mr. Mattiussi selects contractors from an approved list and oversees their work. Mr. Mattiussi's particular area of concentration is housing (i.e., drapery, carpeting, painting) and he is responsible for the roofs on campus.
Mr. Mattiussi has been involved in projects valued from one dollar to three hundred thousand dollars. He indicated that he consults with more senior people on the larger projects.
Approximately eighty per cent of Mr. Mattiussi's projects are contracted to outside contractors. On some projects, university employees may be involved, where they are indirectly under Mr. Mattiussi's direction and control. However, he does not exercise direct managerial functions with respect to these employees.
Jim Priestly has been employed as a Project Co-ordinator since 1990. He reports primarily to the Director of Construction, Physical Resources Group, and occasionally to the Interim Director, Facilities and Planning. With respect to one project he reported directly to the Assistant Vice-President , Physical Resources. His department is involved in the demolition, rehabilitation and remodelling of university space.
Like Mr. Mattiussi, Mr. Priestly is assigned a project by his immediate supervisor and he works within a specified budget. He is responsible for choosing a contractor, generally from an approved list, and is responsible for the completion of the project. This involves inspecting the work on a regular basis to ensure that it is being done properly; authorizing change orders as well as approving interim payments, and withholding final payments until the work is completed.
The dollar value of projects on which Mr. Priestly has worked ranged from less than ten thousand dollars to over two million dollars for the asbestos removal program. He indicated that approximately eighty per cent of his projects were valued at less than ten thousand dollars.
Some of the projects are completed internally by university employees. Although he has overall responsibility for the work, he does not exercise direct managerial functions over any bargaining unit employees.
Walter Joost is employed as a Project Co-ordinator in the Construction department. He reports to the Director of Construction and the Assistant Vice-President, Physical Resources. He has been in this position for five years.
The Construction Department does new construction and major renovation work. Like Mr. Mattiussi and Mr. Priestly, Mr. Joost is assigned projects from the supervisor and is responsible for the entire project to ensure that it progresses according to expectation, standard, budget and time.
Mr. Joost works on projects from a minimal dollar size to approximately two million dollars, and many of his projects involve large sums of money.
Once assigned a project he has a role in estimating the cost. If the project is greater than ten thousand dollars, it is sent out to tender. Mr. Joost decides which contractors will be invited to bid on the tender, generally from a standard list, and puts together the tender package. On very large projects Mr. Joost may also be involved in hiring a consultant. In projects estimated at less than then thousand dollars Mr. Joost chooses the contractor without tender. Once the project has commenced, Mr. Joost is responsible for its completion and is responsible for authorizing payment to contractors both on a periodic basis and upon completion of the project.
York University bargaining unit employees may be employed on some of Mr. Joost's projects. Although he is responsible for all matters on the projects, including employees, he does not exercise direct managerial functions with respect to those employees.
Additionally, Mr. Joost was assigned the task of re-estimating a very large renovation budget known as the "ripple programme" which he re-estimated at a cost of approximately $970,000.00.
Notwithstanding the degree of independence with which Messrs. Mattiussi, Priestly and Joost carry out their projects and the amounts of money for which they have responsibility, the Board finds that they exercise technical and specialized expertise, rather than managerial functions. There is nothing in the nature of their work which would be inconsistent with their status as employees. The Board finds that they are employees within the meaning of the Act.
Bachar Amer
Bachar Amer is employed as a Construction Engineer/Project Administrator in the Physical Plant, Construction Division. He reports to the Director of construction who reports to the Assistant Vice-President, Physical Resources. The work of the department is new construction.
Mr. Amer is generally involved in one to three projects at a time. He may become involved as early as the concept or planning stage, when the end users of the building are solicited for input. He also participates in the design of the project with architects and engineers. He is involved in the bidding stage, both sending out tenders and receiving bids back. Once the contract is awarded and work commences, he has on-the-job responsibility to inspect the work, approve payments, approve change orders, approve design changes and test and approve mechanical and electrical equipment. It is his responsibility to ensure that the final paperwork and accounting is completed. Following the construction of new buildings, it is Mr. Amer's responsibility to "commission" the building. That means that he establishes that the work was completed and receives documentation and warranties. He is then responsible for "handing over" completed buildings, which is the process of transferring responsibility of the building from the Construction Division of the university to the Operations and Maintenance Division of the university.
Mr. Amer was involved in completing the construction of Calumet College. He had initially become involved in the project when it was fifty per cent completed. He revised the budget estimate at a total cost of approximately twenty-one million dollars, seventeen million of which was allocated for construction. The second project which Mr. Amer has been involved in is the construction of a science building. The entire budget is twenty-five million dollars of which eighteen million dollars was allocated for construction. Mr. Amer has overall responsibility for the money allocated for construction.
There are some differences between the work of Mr. Amer as Project Administrator and the work of Messrs. Mattiussi, Priestly and Joost as Project Co-ordinators. Construction of a new building requires involvement in every aspect of the new building, whereas maintenance or renovation involves only those areas being maintained or renovated. The size of a new project increases the complexity of the co-ordination and decision-making functions required. Further, there are some additional duties which are unique to new construction such as "commissioning" and "handing over". He is responsible for significantly larger sums of money. Although the position of Project Administrator requires a higher level of qualification, experience and expertise, the Board concludes that Mr. Amer essentially exercises technical and specialized expertise rather than managerial functions.
Although Mr. Amer is responsible for large sums of money, he is not the person who decides whether the money will be spent. The Vice-President of Physical Resources reviews the prospective projects and makes effective recommendations to the Vice-President, Finance and Administration about which maintenance and construction projects the university will undertake. The Board concludes that Mr. Amer does not exercise such independent decision-making over important aspects of the business of the university as to justify his exclusion from the Act. The Board finds that Mr. Amer is an employee within the meaning of the Act.
Marion Stehouwer
Marion Stehouwer is the Manager of Administrative Computing and Telecommunication Services. She reports to the Director of Facilities and Support Services for Atkinson College. The department is responsible for the physical furnishings of Atkinson College, support services (i.e. print shop, mail services, stationery stores), the Administrative Computing Section and Micro Lab, desktop design publications, and word-processing. The Director oversees this Department and has twelve people reporting to her, one of which, Ms. Stehouwer, is currently excluded from the bargaining unit.
Within the department, Ms. Stehouwer is responsible for overseeing and managing all administrative computing systems within Atkinson College. Specifically, she is responsible for the Micro Lab facility which houses twenty-five computers, and which is used for classes, drop-in hours for students, and computer training for faculty and staff. Ms. Stehouwer is also responsible for standardizing Atkinson College technology, assessing the College's computing equipment requirements, and purchasing the required equipment.
Ms. Stehouwer has two full-time YUSA bargaining unit employees under her direction and control: the Micro Lab Assistant and the Technical Support Assistant. Ms. Stehouwer effectively recommended that the position of Micro Lab Assistant be created, which was done on a one year contract basis. She hired the person to fill that position. The employee temporarily in the position of Technical Support Assistant was not hired by Ms. Stehouwer. However, she has written the job description for the position and will shortly be involved in hiring a person to fill that position.
With respect to these two employees, Ms. Stehouwer is responsible for monitoring, priorizing, assigning, checking and correcting their work. She has authority to grant them casual time off, approve vacation, and authorize overtime.
Although there is another level of supervision, the Director of the department, who has general responsibility for the department, the Director does not have the technical expertise required to supervise the staff in Ms. Stehouwer's area. The Board finds that Ms. Stehouwer exercises managerial functions with respect to these two bargaining unit employees and is therefore excluded from the operation of the Act.
Summary of Findings
In summary, the Board concludes that the following persons exercise managerial functions and are therefore not employees within the meaning of the Act: Terry Carter, Reuben Tang, Don Murdoch, Marilyn DiFlorio, Sheila Creighton, Penny Bissett, and Marion Stehouwer.
The Board concludes that the following persons are employees within the meaning of the Act: David Demonte, Margaret Wallace, Michael Ecob, Diane Bates, Linda Keith, Anita Herrmann, Lawrence Mattiussi, Jim Priestly, Walter Joost, and Bachar Amer.
DECISION OF BOARD MEMBER R. M. SLOAN; January 28, 1994
With respect to my colleagues I dissent from their findings with regard to those persons who the majority decision declares to be employees within the meaning of the Act.
As stated in paragraph 2 of the majority decision, the applicant initially filed a section 108(2) application for positions occupied by eighty three (83) employees and this number was reduced, following discussions between the parties, to the present seventeen (17) which are the subject of this decision.
It is my view that for the respondent to maintain its position with respect to the seventeen employees, after having had ample opportunity to consider that position over an extended period of time should suggest to the Board that there are good and sufficient reasons to maintain the status quo.
In addition, the information contained in the Labour Relations Officer's report supports the view that all of the seventeen (17) employees should remain excluded, the most obvious being - Margaret Wallace, Anita Hermann, Lawrence Mattiussi, Jim Priestly, Walter Joost, and Bachar Amer.
With respect to Messrs. Mattiussi, Priestly and Joost, I believe that the majority decision is in error when it states in paragraph 97 of the majority decision that "...The Board finds that they exercise technical and specialized expertise, rather than managerial functions." The implication here seems to be that the distinctions are mutually exclusive and that an individual cannot exercise managerial functions if his responsibilities are somehow technical or specialized. Board jurisprudence does not support such a finding.
The independent managerial decision - making responsibilities of Messrs. Mattiussi, Priestly, and Joost, will clearly place them in positions of conflict with their employer if they are included in the bargaining unit.
With respect to Ms. Margaret Wallace, the majority decision concedes that Ms. Wallace has the authority to exercise functions that should clearly exclude her from the bargaining unit, see paragraph 36 of the majority decision which reads as follows:
……In the absence of the director, Ms. Wallace is "in charge". In the absence of the director, she can authorize overtime or grant casual time off. However, the evidence suggests that this has not happened frequently....
and then at paragraph 36 the majority goes on to state:
……Although Ms. Wallace was advised by the Director that she has the power to discipline or suspend the four bargaining unit staff in the department, she has never done so....
Both of the above mentioned quotations clearly indicate that Ms. Wallace is in a position that requires the exercises of managerial functions and by placing Ms. Wallace within the bargaining unit the Board is creating the potential for serious labour relations problems. The fact of the infrequent exercise of managerial functions cannot be determinative of managerial status, it is the authority vested in the individual that dictates managerial status.
In the case of Ms. Anita Hermann, I believe that the majority decision erred when, in paragraph 74 it confirms that Ms. Hermann has one bargaining unit employee under her direction and control, assigns work, can grant casual time off and can authorize overtime - all indicators used by the Board in determining managerial status - and yet in paragraph 76 it states:
……finds that Ms. Hermann does not exercise managerial functions within the meaning of the Act....
My comments at the conclusion of paragraph 8 above apply to Ms. Anita Hermann as well.
With respect to Mr. Bachar Amer, I find that the importance of his function in the management of the enterprise clearly designates his position as managerial - excluded. For the reasons outlined in paragraph 5 of this dissent, I cannot subscribe to the notion that technical and specialized expertise excludes the exercise of managerial functions.
I believe that is is also important to consider that the parties had agreed to exclude the seventeen (17) positions from the scope of collective bargaining - in at least one case dating back to 1985, and that the applicant has not shown that there were changes in job/position content significant enough to warrant changes in the status quo with respect to managerial exclusion.
For all of the above reasons, I would find that in the unique circumstances of this case, all of the seventeen (17) employees should remain excluded employees for purposes of the Act.