HomeMy WebLinkAbout1668-83-M - Blay 84-09-19
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File No. 1668-83-M
ONTARIO LABOUR RELAT!ONS BOARD
Between:
Ontario Public Service Employees Union,
Appl ican t.,
... and -
Fanshawe College,
Respondent.
BEFORE: Rory F. Egan, Vice-Chairman, and Board Members
W. H. Wightman and B. L. Armstrong_
APPEARANCES: Mike Pratt for the applicant, Brenda Bowlby
and Peter Myers for the respondent.
DECISION OF THE BOARD:
1. This is ~n application under section 81 of the
Colleges Collective Bargaining Act (hereinafter referred to
as "the Act II) for. a. determination of the employment status
of Mr. D. Blay who is classified as a Co-op Liaison Officer.
2~ A Labour Relations Officer was appointed by the
Board to inquire into the duties and responsibilities of
Mr. Blay and a hearing was held for the purpose of receiving
the submissions of the parties with respect to the
conclusions the Board should reach on the evidence contained
in the report of the Officer.
3. The applicant takes the position that Blay is an
employee within the meaning of the Act under whichever of
the schedules set out in the Act he might be placed. The
respondent argues that Blay does not fall within the
bargaining unit set out in the schedules.
4.
The relevant sections of the Act are:
Section 1(b):
1. In this Act and in the
Sohedules,
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. (b) "bargaining unit'l means the
academic staff bargaining unit
of employees or the support
- staff bargaining unit of
employees set out in Schedules
1 and 2 ;
S eo t ion 1 ( f ) :
(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;
Sect ion 1 ( 1) :
(1) "person employed in a
managerial or confidential
capacity" means a person who,
(i)" is involved in the
formulation of
organization objectives
and 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,
(tv) is employed in a position
confidential to any
person described in
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subclause (i)T (ii) or
(1ii),
(v) is employed in a
confidential capacity in
matters relating to
employee relations,
(vi) is not otherwise
described in subclauses
(i) to (v) but who, in
the opinion of the
Ontario Labour Relations
Board should n~t be
included in a .bargaining
unit by reason of his
duties and
resp~nsibilities to the
employe'r;
SCHEDULE 1
The academic staff bargaining unit
inoludes the employees of all boards of
governors. of colleges of applied arts
and technology who are employed as
teachers, counsellors or librarians but
does not include:
(i) chairmen,
(ii) department heads,
(iii) directors,
(iv) persons above the rank .of
chairman, department head or
director,
(v) other persons employed in a
managerial or confidential
capacity,
(vi) teachers who teach for six hours
or less per week,
(vii) counsellors and librarians
employed on a part-time basis,
(viii) teachers, counsellors or
librarians who are appointed for
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one or more sessions and who are
employed for. not more than twelve
months in any twentY-four month
period,
(ix) a person who is a member of the
architectural, dental,
engineering, legal or medical
profession, entitled to practise
in Ontario and employed in a
professional capacity; or
(x) a person engaged and employed
outside Ontario.
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) Superviso~s,
(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,
(v) other persons employed in a
managerial or confidential
capacity,
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(vi) persons regularly employed for
not more than twenty-four hours a
week,
(vii) students employed in a
co-operative educa~ional training
program undertaken with a school,
college or university,
(viii) a graduate of 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,
fix} a person engaged for a project
of a non-recurring kind,
(x) a person who is a member of the
architectural, dental,
engineering, legal or medical
profession, entitled to practise
in Ontario and.employed in a
professional capacity, or
(xi) a person engaged and employed
outside Ontario.
5. The Board has adopted a two-stage approach in
determining a personts status under the Act. The first step
involves determining in which bargaining unit the person
should be placed if found to be an employee. The second
step is to determine whether the person in question is in
one, or more, of the categories expressly excluded from the
relevant schedule.
6. If Blay is to be included in the academic
bargaining unit described in Schedule 1, he must be found,
on the evidence before the Board, to be either a teacher, a
counsellor or a librarian. The evidence clearly establishes
that Blay is neither a teacher nor a librarian. There is
evidence, how~ver, that he does ha~e contact with students
and does give them advice with respect to the cooperative
programme and the preparation of resumes for presentation to
prospective employers. He also advises students in order to
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help them prepare for jOb interviews. The evidence of Blay
is that he had been a teacher at Fanshawe College but said
he would have to distinguish "very much" between what he did
as a teacher and what he does as a Co-op Liaison Officer
II. In the latter occupation he is engaged in preparation
of students basically for the reality of going out to work.
The evidence of Blay is that while he imparts certain
practical knowledge to the students, his role is different
to that of teaching because the job is to promote
co-operative programmes to employers and to students. He
sees his job to be a marketing function and completely
different to the teaching function~ The job takes the Co-op
Liaison Offieer outside the College in order to enable him
to promote the programme with employers.
7. It is the view of the Board that the word
"counsellor" set out in Schedule 1 osecures its particular
context from being lumped together with 'teachers and
librarians' all of whom are in direct functional contact
with students and therefore comprise a bargaining unit
constituting 'the academic stafftll (Ontario Public Service
Em 10 eea' Union and The Board of Governors of Al on uin
COll~ge, 197 OLRB Rep. May 257)~ In our view ,the
marketTng of cooperative programmes to students and
employers does not fit into the academic context in which
the word "counsellor" appears in Schedule 1 together with
"teachers and librarians". The nature of the advice given
is related to the techniques of jOb seeking and placement
rather than to the academic matters dealt with by teachers,
counsellors and librarians. In the result, the Board finds
that the Co-op Liaison Officer would not fall into the
academic unit if he were found to be an employee, but that
he would be properly included in the support staff
bargaining unit provided he does not fall within the
exclusions set out in Schedule 2.
8. It was argued, among other contentions, that the
Co-op Liaison Officer II fell within exclusion (ii) of
Schedule 2 by virtue of the fact that, among other duties,
he is required to supervise, at present, a person classified
as a Co-op Liaison Officer I~ The provisions of section
1(1) (ii) of the Act cited above speak of da significant
portion of time spent in the supervision of employees". It
is clear therefore that the "supervisor" referred to in
Schedule 2 is a person woo spends less than a significant
portion of his time supervising employees. The exclusion of
supervisors must therefore be based on the performance by
them of additional managerial functions. The context of
SChedule 2 with its exclusion of foremen and supervisors
and, in (v), other persons emploved in a managerial or
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confidential capacity supports the foregoing conclusion. In
the present case the evidence shows that Slay did not spend
a significan~ portion of his time supervising employees. He
is consequently not excluded from the bargaining unit under
Schedule 2(i1).
9. The College argued that the Co-op Liaison
Officer, in any event, falls within the provisions of
Schedule 2(v)." This necessitates an examination of the
evidence against the background of the definition of "person
employed in a managerial or confidential capacity" contained
in section 1(1) of the Act.
10. The evidence establishes that the basic function
of the Co-op Liaison Officer is the marketing of the
programmes offered by the College to both students and.
employers~ Indeed, when asked by the respondent as to the
extent to which he saw marketing involved in his job, he
said that he would see it as one hundred per cent of his
work. The contention of the College is that in the
performance of his basic marketing job he qualifies as a
person employed in a managerial or confidential capacity as
defined in section 1(1) of the Aot, specifically having
regard to items (i), (ii), (iii) and (vi).
11. Section l(l}(i), as we have seen earlier, states
that" a person is employed in a managerial capacity when
involved in the formulation of organization objectives and
policy in relation to the development and administration of
programmes o~ the employer or in the formulation of budgets
of the employer.
12. In the course of his examination by the
respondent relating to meetings with management attended by
Blay, the latter agreed, wben it was put to him, that as a
Co-op Liaison Officer II he would have II input into the
formulation of the organization and policy objectives of the
programme". ije further agreed that he would have input into
the formulation of the administrative objeotives and
policies. It is abundantly clear, however, that the "input"
is simply advisory. Mr. Blay testified that the Co-op
Liaison Officers were asked to bring their knowledge to the
meetings where their advice is sought.. He said the officers
were consulted on a regular basis as to how they feel the
cooperative programme in general is proceeding and that they
attended meetings as a source of information for the
management people. The actual formulation is done by
others. The Co-op Liaison Officer is not required to.make
a~y ulti~ate decisions in the area of the formulation of
organization objectives and policy in relation to the
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development and administration of programmes of the
employer. Budgetary matters fall within the same category
in thatr while there is consultation with the Co-op Liaison
Officer about c~rtain aspects of that part of the budget
dealing with travel expenses, there is no participation
requiring decisiqns with respect to the formulation of the
budgets.
13. The managerial person as defined in section
l(l)(i) is surely the person who, in factr formulates the
organizational objectives, etc., which is to hreduce to,
express in, a formula; set forth systematically" (the
Concise Oxford Dictionary - Fifth Edition) which in turn
requires the making of decisions and not merely
participation in discussions or the giving of advice to
those charged with the responsibility of making the
decisions.
14. In view of all of the foregoing,. the Board finds
that the Co-op Liaison Officer II is not employed in a
managerial, capacity within the meaning of section l(l)(i) of
the Act.
15~ The evidence is that the Co-op Liaison Officer
II does not spend a significant portion of his time in the
supervision of employees. The officer is accordingly not
employed in a managerial capacity within the meaning of
section l(I)(ii) of the Act.
16. While there is evidence from Blay that if there
were a complaint from an employee he would be the first
person to whom the employee might come, there is, however,
no formal grievance procedure nor was there any evidenoe
that the Co-op Liaison Officer had been instructed on his
duties with respect to grievances or discipline~ Insofar as
the latter is concerned, the witness said that if a problem
arose, he woula report to the manager. In the result, the
Board finds that the Co-op Liaison Officer II does not fall
within the provisions of section 1(1)(iii) of the Act.
17~ There was no claim by the respondent that items
(iv) and (v) applied to the position of Co-op Liaison
Officer II.
18. Reliance was placed by the respondent upon the
provisions of section l(l)(vi) which, to repeat, is as
follows;
· ..is not otherwise described in
subclauses (i) to (v) but who, in the
opinion of the Ontario Labour Relations
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Board should not be included in a
bargaining unit by reason of his duties
and responsibilities of the employer.
19. In" this respect there was evidence that the
Co-op Liaison. Officer II supervised the co-op Liaison
Officer I. The degree of superVision, which is the criteria
used in this area, is slight and amounts to little more than
the guidance and advice of a senior and more experienced
employee to a junior whose duties are basically the same as
the senior's. The Co-op Liaison Officer II does submit a
progress report to management with respect to the Co-op
Liaison Officer I, but without recommendations. There is no
power to hire or fire employees or to effectively recommend
such action and, as noted above, there is no disciplinary
powers given to the Co-op Liaison Officer II. The Board
finds that the duties of "the Co-op Liaison Officer II do not
give rise to any conflict of loyalties between management
and labour by reason of the inclusion of the officer in the
bargaining unit.
20. The Board accordingly finds that the
Co-op Liaison Officer II is not a person employed in a
managerial or confidential capacity within the meaning of
the Aot and that the Co-op Liaison Officer II properly falls
within the support staff bargaining unit set out in Schedule
2 to the Act.
IIRory F. Eganll
for the Board
September 19, 1984
** TOTAL PAGE.11 **