3071-99-R Canadian Union of Public Employees, Applicant v. Victorian Order of Nurses-Peterborough Victoria and Haliburton Branch, Responding Party.
BEFORE: M. A. Nairn, Vice-Chair.
DECISION OF THE BOARD; July 12, 2000
APPEARANCES: Nick Milanovic for the applicant; Janice Baker for the responding party.
The style of cause is hereby amended to reflect the correct name of the responding party “Victorian Order of Nurses-Peterborough Victoria and Haliburton Branch”.
This is an application for certification. By decision dated January 21, 2000 the Board directed that a vote be held. That vote was taken. The eligibility of certain employees to vote has been put in issue. A hearing was convened to hear the evidence and representations of the parties with respect to that issue. There is one other outstanding issue, that is, the appropriate manner of describing the exclusions from the bargaining unit.
I will deal with the challenges to the voters’ list. Initially there were six challenges. At the hearing the parties agreed that Linda Nelson, Therapeutic Touch Reflexologist, was not an employee and was therefore not eligible to vote. Any ballot cast by Linda Nelson is therefore not to be counted. I heard evidence from four of the remaining five challenged persons, as well as the Executive Director, Michele Nicholls. The parties are agreed that the evidence of Elaine Conlin is representative of the duties and responsibilities of Margaret Gourlie as well.
The responding party (the “Branch” or the “employer”) operates on a not-for-profit basis providing nursing and related services to members of its geographic community. It employs approximately 210 employees. Most are direct service providers.
Stefanie Thom was the Volunteer Coordinator at the relevant time. In this capacity Ms. Thom recruited, screened, retained, and oriented all volunteers who provide supplemental services to the Branch. In that capacity she had access to their personal information and developed volunteer roles and job descriptions. She also evaluated the volunteers. In short she was responsible for the provision of volunteer services for the Branch. However there is no dispute that none of the volunteers was “employed” by the Branch. They received no remuneration for their services and are not eligible to participate in collective bargaining. Ms. Thom had no access to confidential information relating to labour relations in the course of her work. The employer relies on a potential labour relations conflict which it asserts could arise between volunteers and employees. The objective of section 1(3) is to ensure an arms-length relationship between employees in the bargaining unit and the management of the enterprise, so as not to place either in a position of conflicting loyalties. While there may be concerns or tensions surrounding the scope of service properly available to volunteers, Ms. Thom cannot be said to be a managerial employee in the organization. She has no control over employees. The potential for tension regarding the scope of services performed by volunteers is insufficient to warrant characterizing her as a member of management and excluding her from collective bargaining. I find, pursuant to section 1(3) of the Act, that Stefanie Thom was an employee at the relevant time. As such she falls within the scope of the bargaining unit in issue, and was therefore eligible to vote. Any ballot cast by Stefanie Thom is to be counted.
The remaining four disputed positions report to the Director of Finance/Information Services. They are the Network and Facilities Manager, the Assistant to the Director of Finance, and two bookkeepers. The department employs a total of six or seven persons, including the Director. The employer asserts that the Network & Facilities Manager and the Assistant to the Director are properly excluded both on the grounds that they are managerial employees and have access to confidential information relating to labour relations. The employer seeks to exclude the bookkeepers on the basis that they have access to confidential information relating to labour relations.
The parties referred me to a number of cases which reflect on the Board’s approach to section 1(3) in both its aspects. In Board of Education for the City of Etobicoke [1989] O.L.R.B. Rep. Dec. 1203 the Board noted:
…In The Lakehead Board of Education, [1970] OLRB Rep. Feb. 1331, the Board made these observations:
Making a determination as to whether a person is employed in a managerial capacity is a more difficult assessment to make. The Board in a number of recent decisions has recognized the growing complexity of management structures, the diffusion of the lines of authority and the divergent elements that go into the decision making process. The Board, accordingly, in making such determination endeavours to distinguish between persons who truly exercise independent discretion or assert real authority, as opposed to those who merely implement decisions within a framework decided by others or whose independent discretion is limited to predetermined circumscribed areas. The Board is cognizant of the fact also that management today generally needs the assistance and advice of responsible and highly qualified individuals in the fields of their particular knowledge. The fact that such assistance or advice is sought and is accepted or taken into account by management does not mean that such persons exercise managerial functions in their own right. In all cases, the Board must evaluate the totality of each person’s job functions in deciding whether the person concerned, in an intrinsic sense, exercises managerial authority (see The Hydro-Electric Power Commission of Ontario Case, 1969 Aug. OLRB M.R. p.669 and Ajax and Pickering General Hospital Case, dated February 19, 1970, Board File No. 15917-68-R).
In Windsor Utilities Commission, [1971] OLRB Rep. May 296, the Board said in part:
Where a person is required to exercise functions which are of a managerial nature and is also required to perform the type of work which is performed by the bargaining unit employees, the Board must determine whether the work is merely incidental to his managerial functions or whether the functions which are of a managerial nature are merely incidental to his bargaining unit work. In order to make this determination, the Board must ascertain the nature of and the extent to which such functions are exercised. If the nature of the functions are such that they require a person to make independent decisions in meaningful matters which are of real consequence to the company’s operation rather than merely the application of expertise in technical matters, or if the person exercises his unfettered discretion concerning matters of substance in the employment relationship of other persons, the nature of such functions places him on the management side of the employee-management line, no matter how much bargaining unit work the person otherwise performs. …
…An employee’s exposure to “confidential” information is not enough to exclude her from the coverage of the Act. Before this branch of clause 1(3)(b) will be applied to an individual, the confidential information must relate to labour relations matters, and her involvement in handling such information must be a regular and material part of the normal course of her employment: see, for example, Comtech Group Ltd., [1974] OLRB Rep. May 291
Similarly, in Metropolitan Toronto Library Board [1991] O.L.R.B. Rep. Mar.339 the Board noted at paragraph 7:
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 Rep. 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 [sic] which is important for purposes of the Board’s considerations in an application under section 106(2) of the Act.
And see the cases cited in The Royal Ontario Museum [1985] O.L.R.B. Rep. Feb. 325.
Ms. Judy Mills is employed as the Assistant to the Director of Finance. She has performed a number of tasks during her relatively short employment, including taking on billing responsibilities previously completed by an accounting clerk. Her role however has been to take any overflow of work from the Director and primarily to review all accounting processes and procedures in order to make recommendations to maximize efficiency in that department. Initially she familiarized herself with the various systems in place and has then determined appropriate software requirements. Reviewing the evidence, including the progress report Ms. Mills submitted to the employer it is apparent that she has access to and works with all of the employer’s accounting information in an effort to assess and ensure that records are complete, accurate, clear, and up-to-date. She has recommended and implemented changes, for example, to record-keeping systems, collection practices, and ordering. These changes have the potential to affect work responsibilities, employee complement, and job value. I accept counsel for the employer’s description of her role as a “change agent”. While the union argued that there was no relationship between the information Ms. Mills’ received and her use of it for any labour relations purpose, there is a connection. The point of her access to the information is to critically review the processes in place and to recommend changes. Changes have resulted from those recommendations. Ms. Mills has been involved in hiring although her role has been as a member of a team, reaching collegial decisions. She performs certain bookkeeping functions that would not otherwise exclude her from the bargaining unit. However, on balance, I am persuaded that the primary purpose of her access to and regular work with all aspects of the employer’s operations and financial information is sufficient to properly characterize her position as part of the managerial team. I find therefore that, in accordance with section 1(3) of the Act, Judy Mills was not an employee in the bargaining unit at the relevant time and was therefore not eligible to vote. Any ballot cast by Ms. Mills is not to be counted.
As noted, the employer seeks to exclude the two bookkeepers on the basis that they have access to confidential information relating to labour relations. They both process and have access to all financial information of the employer. The employer relies on this access and the preparation of certain reports, including the employer’s regular financial statements to assert its position. The bookkeepers have access to payroll information for all employees, including management, and time per visit figures. The latter is relevant in determining revenue and productivity information in respect of nursing visits. The Board has found that access to executive compensation is not a matter confidential to labour relations (see No-Sag Spring Company Limited [1966] O.L.R.B. Rep. Dec. 667 at paras. 5-7). The employer acknowledged that certain of the information was either known to employees (vacation, benefits), or was public (approved budgets, published financial statements) but that the bookkeepers processed and had access to this information at an earlier stage. It is the case that the bookkeepers have assisted in formulating reports and providing information relevant to bargaining with the nursing staff at the request of management. Ms. Conlin identified a discrepancy in the manner of reporting the nursing time per visit. However while the employer argued that this activity was integral to the responsibilities of the bookkeepers, they actually spend the majority of their time simply inputting data and processing it. For example, the preparation of the actual financial statements essentially involves a bookkeeper directing the computer program to produce the report from data she inputs. Although the bookkeepers have access to that information, they do not work with the information. Payroll information is entered into the system and forwarded to a payroll company for preparation. Ms. Conlin was unaware of the use of certain information and had no understanding of any labour relations strategy taken by the employer in the past regarding the nursing staff. The mere providing of raw information to the employer does not create the conflict that section 1(3) seeks to avoid. Regular tracking of information in response to a letter of understanding with other bargaining units is information that would be disclosed to those unions. To the extent that the bookkeepers produce regular financial statements for the Director, such work is insufficient to warrant their exclusion from the bargaining unit. The employer cannot exclude essentially an entire department by distributing small portions of work involving information that may be confidential and relating to labour relations to those employees. Similarly, mere access to information is insufficient to draw a conclusion that one is employed in a confidential capacity relating to labour relations. The primary role of these individuals is to input data into the employer’s accounting systems. Given the duties that the bookkeepers primarily perform, I am not persuaded that the bookkeepers are employed in a confidential capacity in matters relating to labour relations such that they would be excluded by section 1(3) of the Act. Margaret Gourlie and Elaine Conlin were employees in the bargaining unit at the relevant time and are therefore eligible to vote. Any ballot cast by either of them is to be counted.
Julie Butson is employed as the Network & Facilities Manager. In that capacity she is responsible for maintaining the employer’s physical plant and its operational technology, and for ensuring their security. Her expertise is primarily in computer technology. Ms. Butson is responsible to ensure that the computer network used by the employees is functioning efficiently and that appropriate access to material stored in the databases is maintained. She provides or changes employee access to the computer files as directed. She troubleshoots problems with both hardware and software, and she provides in-house training to employees on various software issues. She was responsible for developing the employer’s Y2K compliance plan. In short she is primarily the employer’s “systems person.” As such she has access to all the employer’s computer files. However she does not open any files unless instructed to. Such occasions are rare. An administrative assistant in the bargaining unit also has the same level of access to the system. Ms. Butson maintains back-up for the system. This back-up is updated daily and Ms. Butson takes the tapes home each day for safekeeping. In the course of her work, Ms. Butson is not privy to any information concerning the employer’s labour relations strategy, its financial information, confidential memos to the Board or minutes of Board meetings.
She monitors equipment leases to ensure reasonable pricing and would recommend a change in supplier if she found more favourable terms. She has dealt with fax purchases and has negotiated equipment purchase prices. At the time of her evidence Ms. Butson was assisting the Director of Finance in ongoing negotiations in respect of a lease for office space in Lindsay. She assigns building access cards to new employees. She must call the security system provider if any changes are to be implemented. She recommended that an automatic alarm be implemented in case the system was not otherwise activated. That change was implemented. She keeps copies of all keys and distributes them as required.
Ms. Butson coordinated an office renovation. She consulted with members of a committee, contractors and the landlord. She received price estimates and assessed their reasonableness. She drew up a budget for the project in an amount over $10,000 and submitted it to the Director of Finance and the Executive Director. They approved the budget. Once approved the renovation proceeded. Ms. Butson has recently been asked to draft an office equipment budget. That has been submitted to the Director of Finance and to the Finance Committee. From there it must be approved by the Board. Recently she purchased a new network server costing $4000. However, Ms. Butson does not make the decision to purchase. She makes recommendations to the Executive Director and the manager responsible for the program involved. Those recommendations are generally accepted. She was recently involved in the preparation of a budget for computer supplies, which also required the approval of the Executive Director. She contacts repair persons, service providers, and a computer consultant, as required. The Director of Finance and the Executive Director must approve any invoice arising from these contacts. Her attendance at management meetings was to report on Y2K compliance. After these proceedings commenced she has attended one other management meeting.
Ms. Butson reviews and signs invoices in relation to various security, computer, and communications accounts and forwards them to accounting for payment. Prior to purchasing Ms. Butson obtains two signatures (the Director of Finance or the manager responsible for the program and the Executive Director) before she completes an order. The Director of Finance also signs any invoice that does not arise from a standing purchase order. Her recommendations regarding system changes have been approved. Major changes involved the input of a consultant.
By letter and memo dated January 18, 2000 the employer advised Ms. Butson and the staff that she was being added to the management team. That was the certification application date. Although Ms. Nicholls testified that the change had been in the works prior to that time, since then, Ms. Butson’s responsibilities have not changed. There has been no change to her salary.
The employer relies on the decision in The Town of Ajax [1987] O.L.R.B. Rep. Sept. 1117 in support of its assertion that Ms. Butson is properly excluded from the bargaining unit. In contrast the union relies on portions of the decisions already cited and the decision in The Dufferin County Board of Education [1995] O.L.R.B. Rep. Nov. 1364. The responsibilities exercised in The Town of Ajax, supra, can be distinguished from those of Ms. Butson. She has none of the line management responsibilities of assigning work or monitoring performance. Any training she provides is specific to her familiarity with the computer systems. She does not hire or fire. Nor has she been intimately involved in the budgeting process or involved in the costing of bargaining proposals. While that decision notes the high level of access to computer files, there is no consideration of how such access is utilized in the normal course. This is to be contrasted with the Board’s decision in The Dufferin County Board of Education, supra, where the Board commented:
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 to read in detail the documents which have been entrusted to her, 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.
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 he Act. (See. The Falconbridge Nickel Mines Ltd. case, [19691 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 [19741 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 Corneech 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).”
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.
That decision also properly distinguishes the decision in The Corporation of the Town of Innisfil [1994] O.L.R.B. Rep. Jan. 76 where the Records Management Coordinator had additional and substantial responsibilities involving collective bargaining and other clerical work that was confidential to labour relations.
In this case, Ms. Butson’s access to information and security of that information is simply that. She has no regular and material involvement in matters relating to labour relations. Her involvement in budget arises as a result of her expertise. She is far removed from any budget approval process. Similarly, she has little if any independent authority to commit the employer financially. Any recommendations in this regard again arise as a result of her expertise. This expertise does not translate, as the Board has held, into managerial authority. Her involvement in facility security is again one of maintaining a system, which system is actually operated by an independent security provider. Coordinating a renovation project, assisting in the negotiation of leases, reviewing equipment prices, or recommending system improvements, do not give rise to the kind of conflict that the managerial exclusion is designed to avoid. These are all duties performed by a trusted and trained employee. I find therefore that, pursuant to section 1(3) of the Act, Julie Butson is an employee. Her position falls within the scope of the bargaining unit applied for. She is therefore eligible to vote. Any ballot cast by Julie Butson is to be counted.
The remaining issue before me is the proper manner of describing the exclusions from the bargaining unit. Given the employer’s current position titles and my findings, the bargaining unit cannot be described as the employer asserts, that is, as effectively excluding all those above the rank of supervisor. However the union’s description does not appear to reflect the excluded position titles either. “Manager” positions fall both within and outside the bargaining unit. It is not apparent whether the Executive Administrative Assistant also bears the title of Quality Management “Trainer” or “Manager”. The Volunteer Coordinator position appears to be the only “coordinator” position, falls within the bargaining unit, is now vacant, but is apparently not to be filled. In light of these issues, I hereby refer this matter back to the parties for their further consideration in light of this decision and these comments. Failing agreement by the parties, written submissions will be directed. I remain seized of that issue.
In summary, any ballot cast by Julie Butson, Elaine Conlin, Margaret Gourlie, or Stefanie Thom is properly to be counted. This matter is referred to the Registrar for the purpose of counting the ballots in order to determine the outcome of this application and for the parties’ discussion regarding the bargaining unit description as directed above.
“M. A. Nairn”
for the Board