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HomeMy WebLinkAboutUnion 06-05-09 IN THE MATTER OF THE ONTARIO LABOUR RELATIONS ACT -a n d - IN THE MATTER OF AN ARBITRATION BETWEEN: PRESCOTT -RUSSELL SERVICES TO CHILDREN AND ADUL TS/ SERVICES AUX ENFANTS ET ADUL TES DE PRESCOTT -RUSSELL - The Employer -a n d - ONTARIO PUBLIC SERVICE EMPLOYEES UNION - The Union AND IN THE MATTER OF A GRIEVANCE RELATED TO THE POSITION OF QUALITY ASSISTANT/ASSISTANT A LA QUALITE OPSEU GRIEVANCE #2005-426-012 BEFORE Kathleen G. O'Neil, Single Arbitrator APPEARANCES For the unIon Stephen J. Moreau, Counsel Josee Ravary, Grievance Committee Officer Suzanne Hebert-Vaillant, Grievance Committee Officer Carole Fortin, Data Entry Clerk For the Emplover Daryn Jeffries, Counsel Lynn Rivard, Supervisor, Human Resources Madeleine Lalonde, Supervisor, Quality Assurance Lynn Pressault, Quality Assistant A bilingual heanng was held In Ottawa, Ontano on October 5, 2005, January 30 and February 13, 2006 1 AWARD This decIsion deals with the union's gnevance claiming that the newly created position of Quality Assistant should be In the bargaining unit It represents In an agency providing child protection and other social services The employer posted the position In January 2005 as a non-bargaining unit position, which It defends on the basIs that the position has duties which are confidential as to labour relations, and that the Incumbent would be In a conflict of Interest If she were In the bargaining unit As well, the employer asserts that the community of Interest of the new position lies with positions excluded from the bargaining unit PrelImInary matters Onus and prematurIty At the outset of the heanng the union argued that the employer should proceed first This was based on the submission that the burden of persuasion should be on the employer because the rationale for the exclusion from the bargaining unit IS In the employer's exclusive knowledge Further, counsel was concerned about calling the Incumbent as ItS own witness, and submitted the employer should call the Incumbent as a witness and the union would cross-examine The employer took the opposite position At the same juncture, the employer asked for an adjournment until September 2006 or until fourteen to thirty days after the conclusion of bargaining, on the basIs that the Incumbent had only been In the position for about SIX months, dunng a penod where the department was short of staff, and she was filling In for an employee In another position on sick leave as well as starting the new position The employer asserts that she was not dOing the full duties of the position until September 2005, just over a month before the first day of heanng, and that the position was stili evolving Counsel also submitted that the matter could be dealt with In bargaining as the parties were In an open penod I ruled orally at the heanng that the heanng should proceed, as defernng the matter to bargaining was too open-ended and unpredictable as to length of time, given that the collective agreement had expired over nine months earlier and negotiations had not 2 started Although, In one sense, as argued by the employer, the case could be viewed as premature, on the other hand, the Issue had been outstanding many months by the time of the heanng As to the question of onus and procedure, I ruled that the union had the overall onus and should proceed first, to prove a prIma facIe case that the position falls within the bargaining unit However, It was not required to call the Incumbent as a witness If It could prove a pnma face case In some other manner If a prIma facIe case were made out, the employer would then have the eVidentiary onus to rebut that case by establishing the basIs for ItS claim that notwithstanding the fact that the position IS not specifically excluded by the language of the recognition clause, It should be excluded on other grounds In the end, the facts were not really In dispute, and the case did not turn on the question of onus CollectIve Agreement language The recognition clause reads as follows Article 1 Reconnaissance 1 01 L'employeur reconnait Ie syndlcat comme agent negoclateur de tous les employes des Services aux enfants et aux adultes dans les comtes de Prescott-Russell a I'exceptlon des su pervlseurs, des personnes au-dela du rang de supervlseur, de I'agent de direction pour Ie developpement communautalre, des secreta Ires confldentlelles, du personnel de comptablllte et de la paye, de la coordlnatnce des systemes Informatlques, des technlclens en Informatlque, des employes a contrat et des etudlants qUI poursulvent un programme scolalre ou un stage [English translation - not agreed language] Article 1 Recognition 1 01 The employer recognizes the Union as the bargaining agent for all employees of Services to Children and Adults In the counties of Prescott- Russell, save and except su pervlsors, persons above the rank of su pervlsor, managing officer of community development, confidential secretanes, accounting and payroll staff, computer systems coordinator, computer technicians, and contractual employees and students who are following an educational program or a training penod 3 The Facts The Quality Assistant position IS new to the Agency, having been posted In January 2005 This gnevance was filed as a number of bargaining unit members thought ItS duties resembled those of bargaining unit positions Lynn Pressault, who started with the agency In June 2004 as a filing clerk, was successful In the competition for the Quality Assistant job and started In that capacity In March 2005 The duties of the job, as reflected In the eVidence and the posting, generally relate to working with databases, their validation and manipulation, and file control concerning all of the agency's programs, which Include child protection, fostenng and vanous other services supporting families and children, and the administrative support necessary to the provIsion of these services Madeleine Lalonde, who manages the Quality Assurance team, was hired In December 2002 as part of a new Initiative to bUild the Agency's Quality Assurance capacity, which Included Improving the statistics kept about the agency's operations and the ability to evaluate the results of the services provided The goal IS to have reliable data which gives a complete picture of the operations In order to be able to provide gUidance to the vanous service sectors of the Agency The Quality Assistant reports to Ms Lalonde, who testified that the Quality Assistant job was created as the workload was getting heavier, "everyone" needed statistics, so that someone was required to do some of the analysIs and preparation of the data Each month Ms Lalonde presents an eight-page report to the management team and a slightly different version to the Board of Directors The report presents data on activity In the Agency, where they stand budget-wise, the number and kind of clients, changes In this regard, and as to employees, what IS gOing on about such things as movement of employees and gnevances The assistant "feeds" the monthly report for her su pervlsor by collecting and Inputting data, some of which comes from Human Resources staff Ms Lalonde provides her with the budget data Ms Pressault estimated that this function took about one and a half days per month As well, there are a lot of ad hoc requests Internally and externally for data about the Agency's operations for which she may be asked to put statistics together 4 The Quality Assistant does not attend Board of Directors or management meetings, but does attend team meetings In the Quality Sector at which the supervisor dlstnbutes assignments to the team On two occaSions, she has been asked to work out the cost of different percentages applied to employee salanes Ms Pressault estimated at one pOint In her testimony that the costing duties took about 500/0 of her time when she was performing them, but later clanfled that 500/0 of her time was spent on all the statistics she did, not just statistics concerning costing She also said that the costing duties she had performed In January 2006 had taken about two days to perform For this purpose, a member of the Human Resources staff gave her Information concerning unionized employees and their salanes to which she did not have access herself There have been two meetings with members of the Human Resources team, each after the only two days of bargaining, which occurred dunng the Interval between the first and second days of heanng The type of Instruction that she received was to prepare a table companng the application of certain percentages to certain bargaining unit employee salary categones She was given no Information about what role these percentage compansons played In the employer's bargaining strategy, although she was told by the Human Resources supervisor that one percentage was what the union was proposing She has not worked with non-bargaining unit salary figures Another example of meetings the assistant attends was a meeting concerning a computenzatlon project for a service which IS open around the clock The Quality Assistant was responsible to Input Information to simplify the work of the supervisor and the social worker assigned to that service Previously everything was done on paper Ms Lalonde testified that It IS Intended that the Quality Assistant will be Involved In prepanng budget matenal In the future, but that the details of this are stili sketchy, and Ms Pressault had not yet been Involved In this activity The Quality Assistant spends approximately 500/0 of her time on data venflcatlon, checking for data coherence and Integnty If she finds errors, which would mostly be errors made by members of the bargaining unit, she corrects them If there IS a repetitive problem, she IS req u Ired to advise Ms Legault, a Quality Assurance Coordinator, an excluded position Much of the data entry IS done by a data entry clerk, a bargaining unit position, which reports to one of the two Quality Coordinators The 5 Quality Assistant does the data entry on sealed files, which are those which Involve staff of the agency directly or Indirectly, such as when an employee IS a member of the family of a client or foster family Access to the database concerning the sealed files IS limited to the social worker assigned to the family, his or her supervisor, and the Quality Assistant The assistant has the level of access to the data base know as administrator, which allows her to make changes In the database of a more extensive nature than other employees and to grant and remove access to other employees Josee Ravary, a legal assistant working for the agency, and a member of the bargaining unit, testified that If she sees something missing In the course of her work, she would let the person In charge know about It The data entry clerk, Carole Fortin, a bargaining unit member, IS also responsible to ensure the Integnty of her data on a regular basIs The Quality Assistant works In an open cubicle near Ms Fortin, to whom she supplies the documents for which Ms Fortin Inputs data Each time Ms Fort In re tu rn s a document to Ms Pressault, the latter IS required to make entnes In another database The Quality Supervisor, Ms Lalonde, and the Quality Coordinators have closed offices The Quality Assistant tracks complaints against the social workers, and how they were resolved, or not, which are accessible to the assistant and her supervisor Ms Lalonde Ms Pressault maintains a spreadsheet showing the nature of the complaint, whether there was discipline, If It was resolved, and when If an employee IS fired, she deactivates the employee In the system and enters Information on the employees who have qUit or were fired However, In a recent example, she did not know the reasons for the flnng Because of the above duties, she IS aware of who has received what discipline, but she does not make decIsions relating to discipline, nor has she been asked her opinion about discipline Nor are gnevances discussed at meetings she attends She also enters data on templates to track statistics concerning the Agency's clients, such as the complaints concerning them, and what services they are receiving The Quality Assistant also creates and compiles surveys as to satisfaction with the services provided by the Agency staff She reports that data to her supervisor, which would allow the Identification of employees who are mentioned In numerous complaints Ms Pressault testified to the effect that she would be uncomfortable with this and other functions requlnng reporting about other employees If she were In the bargaining unit 6 She would see It as a conflict of Interest, thought management would have a problem If she were Included In the bargaining unit as well As the level of confidentiality surrounding the work of the Agency IS very high, Involving as It does Issues such as child protection, all employees have to sign pledges as to confidentiality concerning the work that they do Further, It IS a goal of the employer to limit access to Information among employees on a "need to know" basIs SubmIssIons of the PartIes and ConclUSIons It IS against the above factual background that the parties' arguments must be considered The union starts with the position that after certification, an arbitrator's junsdlctlon IS clrcumscnbed by the recognition clause In this collective agreement, the recognition clause descnbes an all-employee unit, with the exception only of enumerated positions In the alternative, the union submits that If the cntena of community of Interest and confidentiality as to labour relations are considered relevant, the facts stili establish that the position should be In the bargaining unit, as such duties do not constitute a substantial and matenal portion of the duties of the position Unless a position IS Involved with labour relations as an Integral part of the job, the position should not be excluded, In the union's view Union counsel emphasizes that there IS no generalized "conflict of Interest" exclusion In the Labour Relations Act or the junsprudence of arbitrators or the Ontano Labour Relations Board Further, he notes that the nature of the confidentiality Involved In the Agency's work IS mainly related to pnvacy Interests rather than labour relations Issues The union relies on the case of The Crown In Rlqht of OntarIo (WS/B) and CUPE, Local 1750 (2003), 120 LAC ( 4 th) 333 (GSB - Nairn), for the proposition that this type of confidentiality should not lead to exclusion from the bargaining unit, even where the position In question had a duty to give pnvacy advice to the employer on labour relations Issues By contrast, the employer's position IS that putting the position Into the bargaining unit would be very problematiC, causing a conflict of Interest for the Incumbent Counsel argues that there are a number of aspects of the position that warrant exclusion, which together are sufficient to meet the cntena set out In the junsprudence He argues that there are several duties of the position, all with aspects that are confidential as to labour 7 relations, which the employer put together In one position, rather than spnnkllng them around a number of bargaining unit positions and arguing that they should all be excluded Counsel Invites the conclusion that the position should be excluded on the basIs of an application of s 1 (3) (b) of The Labour RelatIons Act, which reads In relevant part as follows for the purposes of this Act, no person shall be deemed to be an employee, who, In the opinion of the Board, exercises managenal functions or IS employed In a confidential capacity In matters relating to labour relations and further to s 48 (12)(J) of the same Act, which gives an arbitrator power, to Interpret and apply human nghts and other employment-related statutes, despite any conflict between those statutes and the terms of the collective agreement Counsel also submits that the concept of community of Interest should be used, together with the element of confidentiality as to labour relations to sustain the employer's position that the position should remain outside the bargaining unit Counsel Invites a conclusion that the Incumbent's community of Interest IS more with the excluded positions than with those of the bargaining unit In evaluating the parties' Intention, counsel underlines that they could not have contemplated the current position at the time they agreed to the recognition clause, because It did not eXist He notes that the parties have excluded the employees In the Human Resources department even though they are not specifically mentioned In the recognition clause, a fact which should be sufficient to counteract the union's suggestion that the matter should be determined simply on the basIs of the fact that the new position IS not covered by the exceptions enumerated In the recognition clause In the alternative, counsel argues that the position ought to be considered as a confidential secretary as she develops and prepares matenals for meetings attended by Ms Lalonde and Ms Rivard and she assists them with a great vanety of tasks In reviewing the application of the concept of confidentiality as to labour relations In the junsprudence, employer counsel argues that the test of regular, matenal Involvement IS not set at some fixed percentage of an employee's time, but should be held to mean that a significant portion of the employee's day IS spent on confidential matenal, and that the 8 duties of the Quality Assistant should be found to have crossed the threshold The touchstone should be whether exposure of the Information to a member of the bargaining unit would negatively affect the Interest of the employer *** The focus of the Inquiry of this case IS whether or not the new position of Quality Assistance falls within the bargaining unit described by the parties In the above recognition clause Based on an analysIs of only the language In that clause, there IS no doubt that the position falls within the unit described The Incumbent IS an employee of the agency, IS not a supervisor or above the rank of supervisor, and does not fall within any of the named exclusions There was some reference In argument to the Idea that the position was like a confidential secretary, but the eVidence did not support a finding that this IS a secretarial position, or that It was like a confidential secretary There was a reference In the eVidence to the fact that Ms Pressault could type letters for Ms Lalonde, If necessary, but that she does not have many letters to be typed Beyond that, there was no eVidence which characterized the duties of th e position as secretarial, or which Justifies considering the Quality Assistant duties to be those of a secretary In the context of this workplace When the collective agreement uses the term secretary (secretalre) and the organizational chart clearly lists a number of other positions as secretarial, the fact that the position was not posted as a secretary suggests that It was not Intended as a secretarial position In the overall scheme of the Agency In those clrcu mstances, further eVidence would be required to establish that despite the lack of characterization of the duties of the Quality Assistant as secretarial duties In the posting or In the eVidence concerning the duties of the position, that there was sufficient reason to consider them secretarial As It IS, the eVidence before me, Including the posting, warrants the conclusion that this job has a more technical focus, dealing primarily with data control and statistics For the union, the Inquiry should end with the above consideration of the collective agreement language, and the grievance should be allowed However, as noted, the employer takes the position that that IS only part of the Issue, and Invites an application of the concepts of "confidential as to labour relations" from s 1 (3) (b) of The Labour 9 RelatIons Act and community of Interest, as applied both by labour boards and arb Itra to rs The parties have very differing positions as to the role of the above concepts at arbitration, rather than at the juncture of certification or a direct application to a labour board for a finding of whether the Incumbent of a position should be treated as an employee under the Act There IS a range of opinion In the JUrisprudence as well, which continues to evolve It has been held In a number of different contexts that parties are able to conclude collective agreements which capture persons who might have been excluded at the certification stage (see, for example, Re Horton CBI and United Steelworkers, Local 8473 (1990), 4 LAC (3d) 97 (Adell, Sharpe, McGowanl) as well as that these concepts can be applied directly by arbitrators to exclude employees (see, for Instance, Haves Dana Inc and CA W, Local 676 [Fraser], an unreported decIsion dated March 20, 1993), cases that represent somewhat divergent approaches It IS not necessary to attempt to define the precise limits of the application of those concepts at arbitration In general Suffice It to say that, given the spectrum of the JUrisprudence and the availability of the consideration of statutory provIsions under s 48(12) (j) of the Labour RelatIons Act, there IS some role for their use, for the correct purpose, Ie Interpretation of the collective agreement language See, for Instance, Re Loeb IGA Southqate and UFCW, Local 175 (1990), 12 LAC (4th) 392 (Fraser) and CanadIan Standards AssocIatIon and CUPE, (1997) 48 C LAS 535 (O'Neil) In any event, In the circumstances of this case, It IS appropriate to consider the outcome on the tests proposed by the employer, to see If It Yields a different result than that on a straight reading of the recognition clause The main argument of the employer IS that the position should be excluded on the basIs that the Quality Assistant occupies a position that IS confidential as to labour relations The consideration of that concept by labour boards and arbitrators appears to have reached a broad consensus that, In order for a person to be excluded on this basIs, the Involvement with matters confidential as to labour relations (rather than personnel matters or other confidential material) must be "regular and material", and that, for reasons of policy embedded In labour relations legislation, the exclusion ought to be narrowly applied This approach IS summarized In the following quotes, from the Canada Labour Relations Board and the Ontario Labour Relations Board, respectively 10 The denial of collective bargaining rig ht to persons employed In a confidential capacity In matters relating to Industrial relations IS also based on a conflict of Interest rationale The Inclusion of a person In a unit represented by a union might give the union access to matters the employer wishes to hold close In ItS dealing with the union These Include bargaining, grievance and arbitration strategy To avoid that conflict and to assure the employer the undivided confidence of certain employees these persons are denied the right to be represented by a union even If they wish to be represented However, this exclusion IS narrowly Interpreted to avoid circumstances where the employer designates a disproportionate number of persons as confidential and to ensure that the maximum number of persons enjoy the freedoms and rights conferred by Part V Re Bank of Nova ScotIa and CUBE [1977] 2 Can LRBR 126 (Lapointe, Dorsey, Kldd), at page 18 and If the Board were to apply the confidential exclusion too widely It would mean that a large number of such [office and clerical] employees would be excluded from the benefits of collective bargaining For these employees to be excluded, therefore, the Board must be convinced that they have regular access to confidential Information and that th IS Information IS Integral to the collective bargaining process Frlto-Lav Canada LImIted [1978] OLRB Rep Sept 831 (Carter, Bell, Hodges), at para 19 An example of the application of those principles can be seen In Ottawa PublIc LIbrary Board [1995] OLRD No 100, where the Ontario Labour Relations Board was considering the application of s 1 (3)(b) directly to several positions Including Branch Heads and a senior payroll assistant In the context of a certification application The employer asserted both the managerial and confidential aspects of s 1 (3)(b) In regards to a position know as Head of Financial Services Despite the fact that the Incumbent had access to Information about possible salary Increases and might be directed to run costing Increases at annual budget time, It was found that she did not have such regular material Involvement as to material confidential as to labour relations to warrant her exclusion Similarly, the Senior Payroll Assistant was not excluded from the bargaining unit despite the fact that she did computer runs of salary change scenarios and prepared paperwork for terminated employees prior to their termination 11 I agree with the above approach, and have applied It to the facts of this case It IS my finding that the eVidence regarding the duties of the Quality Assistant did not establish a regular material Involvement In matters confidential as to labour relations The only thing that the Incumbent has dealt with that bears directly on labour relations IS some costing such as the application of a number of percentage figures to the eXisting salary grid, which she had done on two occasions prior to her testimony As a percentage of her work overall, this IS a very minor, and severable, part of her work In this regard It IS appropriate to note that costing of proposals did not appear In the summary of duties on the posting for the job Although I accept that the eVidence of actual duties IS to be preferred over the posting where there IS a conflict, the posting IS an Important Indication of the principal functions of the job as originally conceived, and there was no suggestion that the posting was not an accurate description of the job that was filled and grieved More Importantly however, the costing work did not Involve exposure to or Involvement with the Industrial relations strategy of the employer, relating to bargaining, grievances or arbitrations Although employer Counsel submitted that the strategy of the employer could be gleaned from the questions asked of her, such as costing of certain percentage Increases, I am not persuaded that the extent to which the Quality Assistant might guess what the employer Intended to do with the Information IS enough to warrant exclusion from the bargaining unit Occasional exposure to costing calculations, alone, does not amount to "being employed In a position confidential as to labour relations", either on the facts of this case, or those of the Ottawa PublIc Llbrarv board, cited above, and others like It Ms Pressault had no Information about what the employer would propose In bargaining, nor any eVidence about what was done with the tables she provided On one occasion Ms Ravary of Human Resources told her one number was the percentage proposed by the union, but this IS hardly Information that would be problematic If she were a member of the bargaining unit Employer counsel argued that dUring bargaining as much as 500/0 of the Incumbent's time IS spent on costing, and that there IS no eVidence that the Incumbent will not continue to spend a similar amount of time In the fu tu re The more precise Indicator In this respect IS the Incumbent's clarification that the 500/0 figure applied to statistics In general, Including the two occasions of costing dUring bargaining In which she had been Involved up to the time of her testimony Moreover, there was no eVidence that she had anything like the regular Involvement with labour relations matters described for the positions considered In cases cited where the 12 positions were excluded, such as the confidential secretary In Re Mount Alltson Unlversltv and CUPE, Local 3433 (1995), 50 LAC (4th) (MacLean, Weaver, Miller) who was found to be required, as a significant portion of her dally work, to deal with tenure and promotion files, contract administration and discipline In regard to members of the faculty bargaining unit The costing aspect of the Incumbent's duties, dealt with just above, IS the one with the strongest connection to matters confidential as to labour relations The remaining question IS whether, when considered together with the other factors highlighted by employer counsel, the job ought not to be In the bargaining unit The next factor relied on by the employer IS the collection of statistics, a very significant component of the Incumbent's job Employer counsel focussed on such statistics as patterns of sick leave use, for which the nature of the request could disclose the employer's labour relations strategy Another example was tracking grievances and their source Although the union IS obviously privy to what grievances are filed, the nature of the analysIs requested would broadcast employer strategy In an unacceptable manner, In the employer's view The Incumbent IS also privy to Information as to who has been disciplined from the flow of Information that she records Fu rther, collecting statistics concerning client satisfaction surveys, which apply to managers as well as bargaining unit employees, IS said to be Incompatible with Inclusion In the bargaining unit as the Information could lead to discipline as well as the fact that It could be used In cross-examination of managers In grievance litigation A further general category of the Incumbent's functions proposed by the employer as favouring exclusion IS the analysIs of trends The exercise of analyzing trends IS aimed at determining the validity of certain service data and the Incumbent has to decide whether the discrepancies are reportable at all, which counsel treats as a level of discretionary analysIs, which favours exclusion from the bargaining unit The fact that discrepancies can result In discipline distinguishes this aspect of her work from that of the bargaining unit position of data entry clerk which IS not responSible for In-depth trend analysIs In the employer's submission 13 Lastly, counsel refers to data collected for reports which Ms Lalonde shares with Human Resources personnel and the Board of Directors, which contains, In his submission, a lot of human resources material not supplied to the union I have considered all these factors together and separately, and do not find that they amount to sufficient reason to find that the Quality Assistant position IS not, or should not be, Included In the bargaining unit described by the recognition clause She has access to more Information than other employees, and much of It IS confidential, as IS a very large portion of the Information dealt with by the Agency's employees However, little of It was confidential as to labour relations The eVidence concerning data verification, tracking of complaints against staff, and patterns of sick leave usage, are all things that could become the subject matter of bargaining or discipline However, the Quality Assistant's role IS to keep track of these things and to pass on the Information There IS no eVidence that Ms Pressault has been privy to anything that would disclose to her, or Involve her In, discussion of the employer's Intentions or strategy about any of these subjects, other than from the nature of the requests themselves, which has been dealt with above Counsel submitted that the reports compiled by Ms Pressault for Ms Lalonde Include Information that IS not shared with the union However, the specifics of the eVidence about what IS compiled for those reports does not warrant a finding that the material IS confidential as to labour relations or would harm the employer's Interests If known by a member of the bargaining unit The aspects of staff movement, Including hires, fires, and qUitS, were not argued to be confidential, and are generally known to members of the bargaining unit In any event Aspects of the data of who uses sick leave In what quantities may be confidential for health and privacy reasons, but without more, does not disclose labour relations strategy Moreover, some co-workers are likely to be aware of others' absences on sick leave The mere fact that the figures are collected after the fact In one place does not render the material "confidential as to labour relations", when the crucial element of employer strategy or opinion IS absent As to Information concerning discipline of employees, the fact that there has been discipline IS not generally a confidential matter, as many bargaining unit members, Including those who are active In regards to grievances, will be aware of discipline to 14 their co-workers There was no suggestion that Ms Pressault had any role concerning discipline sufficient to make her managerial Whatever margin of discretion Ms Pressault may have In deciding what IS enough repetition of errors to report, on which the eVidence was not specific, the role she plays In communicating Information she collects IS that of a classIc "conduit of Information", a role that has routinely been allowed by labour boards to be part of bargaining unit jobs See for Instance Bannerman EnterprIses Inc and Steelworkers [1994] 0 L R D No 4056 (O'Neil), and the cases cited therein As In RCA Limited [1980] OLRB Rep September 1316, one must determine If the Information IS sufficiently particular In respect of material labour relations Information such as projected hlrlngs, lay-offs or wages as to raise a genuine conflict of Interest Here, the eVidence IS not persuasive that the Information collected by the Quality Assistant IS at that level On the eVidence, the Information may be personnel Information, but It did not have the additional elements of Involvement with strategy or proposals that have usually been required In the JUrisprudence for exclusion from the bargaining unit Without this additional element, the cases take the approach that the Impact on the em ployer's Interests IS not sufficient to cou nter-balance denYing employees access to statutory bargaining rights Similarly, collation of data concerning client satisfaction surveys, or the fact that management and human resources staff use the data she compiles for planning purposes, does not engage the regular material Involvement In labour relations required by the JUrisprudence to exclude an employee from the legislated scheme of collective bargaining The final element to be considered IS whether a consideration of the community of Interest of this position with the excluded positions IS such that the position should not be In the bargaining unit As noted In many cases, Including CanadIan Standards AssocIatIons, cited above, the concept of community of Interest has various levels, but all employees of a single employer share a certain community of Interest Further, It IS not a static concept, and In recent history has been Interpreted more broadly by labour boards Counsel submitted two cases where arbitrators excluded positions based on an application of considerations as to community of Interest The first of these, The MunlclPalltv of MetropolItan Toronto and CUPE, Local 79 (Dunn), an unreported decIsion dated June 20, 1995, IS readily distinguishable from the case, on the basIs of the wording of the recognition clause and a history of exclusion of duties like those of the 15 disputed position Similarly, Haves-Dana, cited above, IS distinguishable both as to the duties of the position and the history of exclusion of the predecessor positions There IS nothing In the eVidence that warrants a conclusion that the position of Quality Assistant lacks a sufficient community of Interest to be Included In the bargaining unit, or that the position IS so closely tied to excluded positions that It should be excluded, when the other aspects of this case Indicate the position fits within the bargaining unit Most of the Incumbent's work IS on a continuum with that done by the data entry clerk who works In the same area, and to whom she regularly supplies files, although the Incumbent's work Involves more extensive analysIs and manipulation of data Counsel acknowledged that about 100/0 of the Incumbent's work used to be done by bargaining unit employees This Included printing of documents, and entering data from sealed files The fact that the Incumbent and management employees might feel more comfortable with the Quality Assistant out of the bargaining unit, IS not the applicable criterion, and may well be based on a definition of conflict of Interest which IS much broader than that supported by the JUrisprudence on Inclusion and exclusion of positions within bargaining units As for the Idea that management may wish to Involve the position In more confidential matters In the future, the grievance falls to be decided on the eVidence of what the grlevor's duties were at the time the eVidence was given, at the latest For the reasons set out above, the grievance IS allowed, as the position of Quality Assistant properly falls within the recognition clause of the collective agreement, and ItS duties as reflected In the eVidence at the time of the hearing do not warrant exclusion on a consideration of the criteria of confidentiality In matters relating to labour relations or community of Interest I will remain seized to deal with any Issues of remedy or Implementation flowing from this decIsion that the parties are unable to resolve themselves Dated this 9th day of May, 2006 ---------------------------------- Kathleen G O'Neil, Arbitrator 16 17