[1999] OLRB REP. MARCH/APRIL 288
1230-98-R Power Workers' Union, CUPE Local 1000 - C.L.C., Applicant v. Ontario College of Teachers, Responding Party
BEFORE: Mary Ellen Cummings, Alternate Chair.
APPEARANCES: Nick Coleman and John Sprackett for the applicant; Nancy Eber, Richard Lewko and Karen Sargent for the responding party.
DECISION OF THE BOARD; March 17, 1999
- This is an application for certification. The applicant seeks to be certified to represent the following bargaining unit:
all employees of the Ontario College of Teachers in Toronto, save and except supervisors and persons above the rank of supervisor
- At the start of the hearing, 8 positions were in dispute:
Senior Evaluator
Evaluator
Executive Secretary to the Co-ordinator Investigations and Hearings
Executive Secretary to the Co-ordinator Membership Services
Executive Secretary to the Co-ordinator Professional Affairs
Casual employees
Membership Records Officer
Client Services Officer
- The responding party ("the Employer" or "the College") submitted that all should be excluded for reasons including a lack of community of interest with the rest of the bargaining unit; or being managerial and/or confidential in respect of labour relations, within the meaning of section 1(3)(b) of the Act. The Board made a preliminary determination, with respect to all the positions except Membership Records Officer and Client Services Officer. The preliminary decision said:
In the interests of bringing this application for certification to a point where the ballots cast in the representation vote can be counted, I am issuing this decision with respect to the disputed positions of:
Senior Evaluator
Evaluator
Executive Secretary to the Co-ordinator Investigations and Hearings
Executive Secretary to the Co-ordinator Membership Services
Executive Secretary to the Co-ordinator Professional Affairs
Casual employees
The College seeks to exclude the Evaluators and Casual employees on the basis that they do not share a community of interest (albeit for different reasons) with the reminder of the bargaining unit. First, although counsel for the College characterized the bargaining unit as a "clerical" bargaining unit, in my view, it is more properly characterized as an "all employee" unit, composed of clerical, technical, library, and accounting staff. Second, in recent years, the Board has granted an applicant the bargaining unit it seeks, unless there are very compelling reasons not to do so. The applicant wants to have both casual staff and Evaluators included in the unit, and the College has offered no compelling reason why they should be excluded from an "all employee" bargaining unit. Hence, the Board concludes that both casual staff and the Evaluators should be included.
Turning to the Senior Evaluator, the College sought to have the position excluded both because of a different community of interest (the same argument that was made about the Evaluators) and because the position exercises managerial authority, and should be excluded pursuant to section l(3)(b). The College's submissions established that the Senior Evaluator has superior technical skills to the other Evaluators, and is the most senior person in the College with the expertise to check the accuracy of the work performed by the Evaluators. The College submitted that the Senior Evaluator has responsibility to train Evaluators, and oversees the quality of the work product of the Evaluators. The Senior Evaluator's responsibilities for the work of the Evaluators do not provide the basis for an exclusion pursuant to section l(3)(b). There is no assertion that the Evaluators report to the Senior Evaluator, nor is the incumbent responsible for the hiring, firing, discipline, or evaluation of the Evaluators. No doubt, the Senior Evaluator provides important technical support and quality control functions, but they are not of the nature that places him in a conflict of interest position that justifies taking away his access to collective bargaining.
Turning to the Executive Secretaries, the employer submitted that although they work for different people in different parts of the organization, they do similar work. By agreement of the parties, three other Executive Secretaries have been excluded. They are all in the Executive Department and report to the Registrar, to the Executive Co-ordinator and to the Chair of the College. The Executive Secretaries at issue report to the heads of the operating departments of the College: Membership Services; Investigations and Hearings; and Professional Affairs.
Counsel for the College acknowledged that in the event the applicant is certified, labour relations would be determined centrally, in the Executive Department, but that the Co-ordinators, as senior management, would have a significant role in both advising on and implementing that policy. Counsel submitted that if the Co-ordinators' Executive Secretaries are included in the bargaining unit, the Co-ordinators will be hampered in their ability to implement labour relations policy.
Further, counsel submitted, since the Co-ordinators have primary responsibility for the hiring and discipline in their departments, their Executive Secretaries are both privy to, and prepare documentation relating to job competitions and the hiring process, as well as occasional disciplinary letters. The Executive Secretaries also have access to confidential information relating to performance evaluations (although the affected employee would have already seen or participated in the evaluations), as well as recommended salary increases.
Ultimately, counsel argues that unless the Executive Secretaries are excluded, the Co-ordinators would be hampered in their administrative management of their departments.
The Board is not satisfied that either the nature or amount of the secretaries' involvement in confidential labour relations matters justifies the exclusion from the bargaining unit of the Executive Secretaries to the Co-ordinators. First, as counsel indicated, labour relations policy and personnel practices are established centrally, in the