Ontario Labour Relations Board

[1995] OLRB Rep. November 1364

3941-94-M Ontario Public Service Employees' Union, Applicant v. The Dufferin County Board of Education, Responding Party

BEFORE: Kevin Whitaker, Vice-Chair, and Board Members S. C. Laing and B. L. Armstrong.

DECISION OF KEVIN WHITAKER, VICE-CHAIR, AND BOARD MEMBER B. L. ARM­STRONG; November 29, 1995

1. This is an application, under section 114(2) (formerly 108(2)) of the Labour Relations Act (the "Act"), for a determination by the Board of whether Betty Curylo, Records Management Co-ordinator, is an "employee" within the meaning of the Act.

2. By decision of March 14, 1995, the Board directed a Labour Relations Officer to inquire into and report to the Board with respect to the duties and responsibilities of Betty Curylo. Pursuant to this direction, Betty Curylo was examined by the appointed Labour Relations Officer and the parties. The parties were offered the opportunity to call further evidence and to make sub­missions on the evidence of Betty Curylo. The Board has now had the opportunity to review the transcript of the examination of Betty Curylo as well as the written representations which have been filed by the parties. For the following reasons, the Board finds that Betty Curylo is an employee within the meaning of the Act.

3. Ms. Curylo at the time of the application occupied two positions, each on a half time basis. One position, Program Services Secretary is on agreement of the parties within the appli­cant's bargaining unit and for which she is an employee for purposes of the Act. The other position of Records Management Co-ordinator is the position for which Ms. Curylo is the subject of this application. Although Ms. Curylo is at all times simultaneously responsible for the duties of both positions, as a practical matter she works one day on and one day off in the two respective posi­tions.

4. In the position of Records Management Co-ordinator, Ms. Curylo is responsible in a general sense for all records generated by the respondent. This includes the responsibilities of Net­work Administrator, the term "Network", referring to a local area computer network used by the respondent. Once a file has been created, whether that is paper or electronic, Ms. Curylo from that point forward has access to anything that might be contained within the file.

5. It is apparent that this broad right of access extends to files that relate to matters of col­lective bargaining with the applicant union. The difference between the parties however is that the applicant takes the position that access to confidential labour relations information is not a regular, material or integral part of the job. The respondent's position is that the involvement is sufficient to render the position an exception for purposes of section 1(3) of the Act.

6. According to Ms. Curylo, she only has access to information which has been catego­rized as a file and following that surrendered to her for incorporation into the institutional file management system. This means for example that some documents relating to confidential labour relations matters that have yet to be formally consolidated into a file would not be within her sphere of access.

7. When and if documents enter the filing system, Ms. Curylo's job is not to read and act on the substantive content of the document. Rather, her job is to accurately classify, label and store the information according to the categories of existing file management. If for example a file were to contain the respondent's proposals for collective bargaining and notes on what might be acceptable to the respondent in a "bottom line" fashion, Ms. Curylo would not be responsible for knowing the content of the document. Rather she would have to know what is represents for pur­poses of classifying it and organizing it.

8. It should also be noted that documents that would be considered to be confidential in a labour relations sense comprise a very small percentage of the universe of documents that must be managed by Ms. Curylo within the file management system. A review of the document entitled "The Dufferin County Board of Education Directory of General and Personal Information Banks" marked as an exhibit to the examination of Ms. Curylo reveals literally hundreds of categories of documentation, of which only a small fraction are comprised of confidential labour relations mat­ters. The job description for the position which was identified by Ms. Curylo as accurate does not describe any responsibilities relating to confidential labour relations matters. There is an obligation of confidentiality generally but nothing specific to labour relations.

9. Section 1(3) of the Act states as follows:

1.- (3) For the purposes of this Act, no person shall be deemed to be an employee who, in the opinion of the Board, exercises managerial functions or is employed in a confidential capacity in matters relating to labour relations.

10. For purposes of this section, a person may be excluded from the category of "em­ployee" under the Act if they exercise managerial functions or are employed in matters relating to labour relations. The terms are disjunctive and need not overlap. In this case the respondent argues that Ms. Curylo should be excluded on both grounds, however it is apparent and not seri­ously pursued by the respondent that she does not exercise any management functions. She does not hire, promote, direct or fire other employees. She has no real control either direct or indirect over the economic livelihoods of other employees and exercises none of the powers normally thought to reflect management authority. For this reason, the only aspect of section 1(3) which is significantly in dispute is the portion dealing with the phrase "employed in a confidential capacity in matters relating to labour relations".

11. There is little doubt that Ms. Curylo is employed in a confidential capacity. We do not believe however that she is so employed in matters relating to labour relations. Although Ms. Curylo could if she wished read in detail the documents which have been entrusted to her care, she does not have to absorb the contents of those documents in order to do her job other than to iden­tify for purposes of classifying and eventually, culling. Further, those documents which would con­tain confidential labour relations matters would be few and far between when viewed as part of all the documentation generated by the employer and entered into the file management system.

12. The importance of having a regular and material involvement in confidential matters of labour relations was stressed by the Board 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 Falcon-bridge 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 intergral 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)."

13. In Metropolitan Separate School Board, [1974] OLRB Rep. Apr. 220, the Board dealt with a similar situation where the employee had access to confidential labour relations documents but was not required to read and understand the contents of the documents. In that case, the Board noted that access to these types of documents in itself is not sufficient to justify excluding the position from collective bargaining. The Board emphasized that there had to be "regular mate­rial involvement" with the matters relating to labour relations.

14. The respondent in this case relied on the Board's decision in The Corporation of the Town of Innisfil [1994] OLRB Rep. Jan. 76. In that case, the Board found a Records Management Co-ordinator to not be an employee for purposes of the Act. There, the incumbent of the position also performed clerical work that was confidential in nature and related to labour relations over and above simply having access to all of the employer's records. In our view, those facts are differ­ent from those in the instant case.

15. Accordingly, we hereby determine that Betty Curylo is an employee for purposes of the Act.

DECISION OF BOARD MEMBER S. C. LAING; November 29, 1995

1. I dissent from the majority decision.

2. The Board's findings with respect to a position of Records Management Co-ordinator in The Corporation of the Town of Innisfil, [1994] OLRB Rep. Jan. 76 decision are, in my view, dis­positive of this application.

3. In that case, the Board, in determining whether the Records Management Co-ordinator was an employee within the meaning of the Act stated in paragraph 26:

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....

The facts of that case are similar to the instant case.

4. Accordingly, in these circumstances, I would find Ms. Curylo not to be an employee within the meaning of the Act as her work as Records Management Co-ordinator routinely involves the responsibility for the Board of Education's records management system including con­fidential information related to labour relations matters.