HomeMy WebLinkAbout2510-92-M - L238 94-02-24 2510-92-M Ontario Public Service Employees Union Local 238,
Applicant v. Conestoga College of Applied Arts and
Technology, Responding Party.
BEFORE: Ken Petryshen, Vice-Chair, and Board Members
W. H. Wightman and J. Redshaw.
APPEARANCES: John Monger, Ann Wallace and Sherry Johnstone
for the applicant; Robert Drmaj and Colin MacGregor for the
responding party.
DECISION OF THE BOARD; February 24, 1994
1. This is a reference under section 82 of the
Colleges Collective Bargaining Act (the "Act"). By decision
dated February 5, 1993, the Board appointed a Labour
Relations Officer to inquire into and report to the Board on
the duties and responsibilities of a number of named
individuals. Pursuant to hisappointment, the Labour
Relations Officer met with the parties on a number of
occasions, for purposes of conducting examinations. A copy of
the Labour Relations Officer's Report (the "Report") was sent
to the parties, together with a (Form B-35) Notice of Report
of Labour Relations Officer. The parties filed written
submissions and a hearing was held where counsel made oral
submissions with respect to the conclusions the Board should
reach in view of the Report.
2. The Board has carefully reviewed the Report, the
parties' written and oral submissions and the relevant Board
jurisprUdence. Since the parties have the Report, we do not
propose to set out in detail the evidence contained therein.
3. The issue before the Board is whether
Janeen Hoover, Jennifer Blackie and Frania Banks are
employees within the meaning of the Act who are included
within the support staff bargaining unit. The applicant
contends that these three persons are employees who fall
within the support staff bargaining unit. The responding
party argues that these individuals perform duties and have
responsibilities which should lead the Board to exclude them
from the support staff bargaining unit.
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4. The support staff bargaining unit is defined in
Schedule 2 and section l(f) of the Act defines an employee as
a person employed in the position or classification that is
within either of the two units. For our purposes, the
relevant provisions of the Act are as follows:
1. In this Act and in the Schedules,
(f) "employee" means a person employed by a
board of governors of a college of
applied arts and technology in a
position or classification that is
within the-academic staff bargaining
unit or the support staff bargaining
unit set out in Schedules 1 and 2 ....
SCHEDULE 2
The support staff bargaining unit
includes the employees of all boards of
governors of colleges of applied arts and
technology employed in positions or
classifications in the office, clerical,
technical, health care, maintenance, building
service, shipping, transportation, cafeteria
and nursery staff but does not include,
(i) foremen,
(ii) supervisors, .
(iii) persons above the rank of foreman
or supervisor,
(iv) persons employed in a
confidential capacity in matters
related to employee relations or
the formulation of a budget of a
college of applied arts and
technology or of a constituent
campus of a college of applied
arts and technology including
persons employed in clerical,
stenographic or secretarial
positions,
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(v) o~her persons employed in a
managerial or confidential
caPacity,
(vi) -persons regularly employed for
not more than twenty-four hours a
week,
(vii) students employed in a
co-operative educational training
program undertaken with a school,
college or university,
(viii) a gradatei~f a college of applied
arts and technology during the
period of twelve months
immediately following completion
of a course of study or
instruction at the college by the
graduate if the employment of the
graduate is associated with a
certification, registration or
other licensing requirement,
(ix) a person .engaged for a project of
a~non-recurring kind,
(x) a persons who is a member of the
architectural, dental,
engineering, legal or medical
profession, entitled to practice
in Ontario and employed in a
professional capacity, or
(xi) a person engaged and employed
outside Ontario.
Item V of the exclusions is defined in section 1(1) of the
Act as follows:
1. In this Act and in the Schedules,
1(1) "person employed in a managerial or
confidential capacity" means a person who,
(i) is involved in the formulation of
organization objectives and
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policy in relation to the
development and administration of
programs of the employer or in
the formulation of budgets of the
employer,
(ii) spends a significant portion of
his time in the supervision of
employees,
(iii) is required by reason of his
duties or~ responsibilities to
deal formally on behalf of the
employer with a grievance of an
employee,
(iv) is employed in a position
confidential to any person
described in subclause (i), (ii)
or (iii) ,
(v) is employed in a confidential
capacity in matters relating to
employee relations,
(vi)' is not otherwise described in
subclause (i) to (v) but who, in
the Opinion of the Ontario Labour
Relations Board should not be
included in a bargaining unit by
.reason of his duties and
responsibilities to the employer.
5. During the parties' submissions, counsel referred
us to the following decisions: Whitb¥ General Hospital,
[1989] OLRB Rep. June 664; The Board of Governors of
Alqonquin College, [1977] OLRB Rep. May 257; Cambrian
Colleqe of Applied Arts and Technology, [1980] OLRB Rep.
Jan. 8; St. Clair College of Applied Arts & Technology,
[1980] OLRB Rep. July 844; and, Sheridan College of Applied
Arts and Technology, [1976] OLRB Rep. Dec. 844. These
decisions canvass well the interpretation issues that arise
in this case and it is unnecessary for our purposes to refer
to them in any detail.
6. J. Hoover has been employed by Conestoga College
of Applied Arts and Technology (the "College") since 1980.
J. Blackie has been employed by.the College for twenty-four
years and F. Banks has also been employed by the College for
some time. For the most part, these individuals have been
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excluded from the bargaining unit. Since the early 1990's,
the College has undertaken an integration process which has
had a considerable impact on jobs at the College. The
positions held by Hoover, Blackie and Banks have been
affected by this process to the extent that the applicant
claims they should no longer be excluded having regard to
their duties and responsibilities as of the application date,
November 24, 1992. The College argues that these three
persons should be excluded from the support staff bargaining
staff unit since they are employed in a managerial or
confidential capacity. The College also claims that Hoover
and Blackie should be excluded since they are engaged in the
formulation of college budgets.
7. We are satisfied that neither Hoover nor Blackie
are entitled to be excluded from the support staff bargaining
unit on the grounds that they are engaged in the formulation
of college budgets. Both Hoover and Blackie, although
performing some budgetary functions, are not involved with
the formulation of the budget of college or a campus of a
college. Their budgetary role is more on a department basis.
In any event, their budgetary functions are such that there
is no labour relations basis for excluding them. This leaves
the issue of whether any of the three individuals are
employed in a managerial or confidential capacity.
8. J. Hoover occupies a position entitled Supervisor
Continuing Education Registration and Systems. She has been
in that position since May, 1992. She works in the office of
the Registrar and is responsible for registration and the
systems that support registration, including the staff.
Given the nature of her duties, the only basis for excluding
Hoover would be if she fell within section 1(1)(2) of the Act
in that. she spent a significant portion of her time in the
supervision of employees. Hoover does supervise two
full-time clerks, two ten month clerks and peak part-time
staff. ~.With respect to these persons, she does exercise some
"managerial" functions. Hoover estimated she spent ten
percent of her time recruiting, selecting, training,
motivating and evaluating full-time and part-time staff. It
would appear that a large portion of this time is spent is
supervising part-time staff. Part-time employees are
excluded from both bargaining units and by definition are not
considered employees under the Act. As the Board has
previously found, time supervising non-bargaining unit
employees is not relevant when making a determination under
section 1(1)(2) (see, Cambrian College of Applied Arts &
Technoloc~v, supra, paragraph 16). We agree with the
assessment of the applicant that close to ninety percent of
Hoover's time is spent on tasks with a technical system
maintenance and develoPment focus. Since Hoover does not
spend a significant portion of her time in the supervision of
employees and there is no other basis for excluding her, the
Board finds that J. Hoover is an employee within the support
staff bargaining unit.
9. J. Blackie is the Administrative Assistant to the
Dean of the School of Trades and Apprenticeship and Principal
of the Guelph and Cambridge Campuses. F.- Banks is the
Administrative Assistant to the Director of
Continuing/Community Education. In reviewing their duties
and responsibilities, we are satisfied that they are persons
employed in a managerial or confidential capacity and that
they are employed in positions confidential to persons
described in subclauses 1, 2 and 3 of section 1(1) of the
.Act. Although the evidence.is somewhat sparse, we find that
the Dean of the School of Trades and Apprenticeship and
Principal of the Guelph and .Cambridge Campuses and that the
Director of Continuing/Community Education are persons
described in Clause 1, 2 or 3 of section 1(1) of the Act.
This determination is based on the position descriptions
filed with the Board and the examinations of Blackie and
Banks which contain references relevant to this issue. The
duties of Blackie and Banks require them to act as "sounding
boards" to their superior. They are engaged in dealing with
confidential information including staffing issues. The
Board is satisfied that Blackie and Banks are involved in the
sort of confidential matters which provides a labour
relations rationale for their exclusion from the bargaining
unit, In making our determination on the exclusion of Banks'
Position, the Board has not relied on evidence in the Report
subsequent to the application date. The Board therefore
finds that J. Blackie and F. Banks are excluded from the
support staff bargaining unit.
"Ken Petryshen"
for the Board