Ontario Nurses' Association v. The Regional Municipality of Halton
[1980] OLRB Rep. November 1684
0036-80-R Ontario Nurses' Association, Applicant, v. The Regional Municipality of Halton, Respondent
BEFORE: Pamela C. Picher, Vice-Chairman and Board Members J. A. Ronson and W. F. Rutherford.
APPEARANCES: Dan Anderson, Liz Woods and Cathy Martin for the applicant; Dennis Y. Perlin, Dennis Camm and Jack Carlton for the respondent.
DECISION OF PAMELA C. PICHER, VICE-CHAIRMAN AND BOARD MEMBER W. F. RUTHERFORD; November 18, 1980
1The name "Halton Centennial Manor" appearing in the style of cause of this application as; the name of the respondent is amended to read: "The Regional Municipality of Halton".
2This is an application for certification.
3The Board finds that the applicant is a trade union within the meaning of section l(l)(n) of The Labour Relations Act.
4The applicant has applied to this Board to be certified as the exclusive bargaining agent for all full-time and part-time registered and graduate nurses employed by the Municipality of Halton at the Halton Centennial Manor in Milton, Ontario. The respondent Regional Municipality contends that there is no bargaining unit appropriate for collective bargaining in this case because all of the registered and graduate nurses employed by the Municipality at the Halton Centennial Manor exercise managerial functions within the meaning of section l(3)(b) of The Labour Relations Act and are, therefore, not entitled under the Act to engage in collective bargaining.
5Given the dispute between the parties over the employee status of the registered and graduate nurses the Board appointed a Labour Relations Officer to inquire into and report to the Board on the duties and responsibilities of the people in question. Pursuant to the request of the respondent Regional Municipality the Board convened a hearing to enable the parties to make oral representations to the Board concerning the report of the Labour Relations Officer.
6In The Cottage Hospital (Uxbridge) [1980] OLRB Rep. March 304 the Board at pp. 305-306 summarized the approach the Board takes to evaluating whether or not a person exercises managerial functions:
Over the years the Board has developed general guidelines to assist it in evaluating whether an individual exercises managerial functions (see Inglis Limited, [1976] OLRB Rep. June 270, Chrysler Canada Limited, [1976] OLRB Rep. Aug. 396 and McIntyre Porcupine Mines Limited, [1975] OLRB Rep. Apr. 261). For those persons whose work has little or no impact on the employment relationship, the Board looks to whether or not they exercise independent decision-making responsibilities in matters of policy or the running of the organization. The Act does not operate to exclude those who only make effective recommendations in this regard. Nor does it exclude persons whose independent decisions are either circumscribed within pre-determined limits set by others or limited to technical and procedural determinations flowing from their expertise in a limited field. (See Libby, McNeil and Libby of Canada, [1967] OLRB Rep. May 193 Inglis Limited, supra; and Dominion Stores Limited, [1976] OLRB Rep. Aug. 444 and Canadian General Electric, [1979] OLRB Rep. Jan. 12).
Different considerations apply to the work of a second group of persons who may be characterized as having direct effect on the employment relationship or the terms and condition of employment of those in the employ of the organization. Supervisors of employees or those technical experts whose work affects terms and conditions of employment or hiring and employment policies would fall within this group. In determining whether such persons whose work has a direct effect on the employment relationship exercise managerial functions, the Board assesses whether or not they exercise effective control and authority over employees either in direct contact with the employees or through their decisions. In making this evaluation the Board looks to whether the person has, at a minimum, the authority to make effective recommendations relating to conditions of employment. An effective recommendation is a serious recommendation that the evidence demonstrates is usually acted upon, and therefore a recommendation that materially affects the economic lives of employees". (McIntyre Porcupine Mines Limited, supra, at 289)
7As well the Board in The Cottage Hospital (Uxbridge) at p. 305 commented specifically on the evaluation of professionals and registered nurses:
When assessing a professional person such as a registered nurse, the Board must distinguish between duties which emanate from an individual's professional training and duties which in fact reflect a managerial function. In Essex Health Association, [1970] OLRB Rep. Nov. 824 the Board noted, at p. 825:
Professional or semi-professional employees such as head nurses have a different relationship with management in matters falling within their professional competence and the performance of their professional duties than employees engaged in production in other industries. While the criteria applied to determine whether professional or semi-professional persons exercise managerial functions are basically the same as with persons concerned with production, in applying such criteria a distinction must be made between functions which are of a managerial nature and functions which are inherent in the exercise of such persons' professional or technical skills.
In Peterborough Civic Hospital, [1973] OLRB Rep. Mar. 154 the Board at p. 156 further commented on factors relevant to the assessment of the employee status of a registered nurse:
Nurses will participate in the decision-making processes which are relevant in the hospital's operations. Nurses are highly trained, and the combination of their training and experience permits them a consultative role which differs from employees in the industrial context: see Ajax and Pickering General Hospital, [1970] OLRB Rep. February 1283.
8The Board has carefully reviewed both the Report and the oral and written representations of the parties. On the basis of all of the evidence and representations the Board concludes that the registered and graduate nurses do not exercise managerial functions within the meaning of section 1(3)(b) of the Act and are employees under the Act. It is readily apparent on the evidence that they do not exercise effective control and authority over members of the nursing support staff in matters relating to labour relations and they do not have the authority to make effective recommendations as that term has been repeatedly interpreted by the Board.
9The registered nurses, for example, do not take part in hiring or discharging the employees they supervise and at most have only minimal input into decisions management might make to discipline employees. Although they may enforce rules by, for example, telling someone not to smoke in a no smoking area, they do not make recommendations regarding the disciplining of an individual who breaks such a rule. Nor do they have any input into establishing wage rates for people under their direction apart from possible comments on evaluation forms they fill out from time to time.
10Although the registered nurses fill out evaluation forms for people they supervise, the evidence does not support the conclusion that any aspect of their evaluation could be characterized as an effective recommendation, that is, a serious recommendation that is usually acted upon which would affect the terms and conditions of the employment of the person being evaluated. If, for example, the person evaluated does not agree with the evaluation, then, instead of signing the evaluation, that person will meet with management for further discussion. The Board concludes on the evidence that the evaluation form is just one item among several considered by management in making its own decisions about matters affecting the employment of the staff supervised by the registered nurses.
11Additionally, while the registered nurses attend meetings with management the evidence does not support the conclusion that their participation in these meetings could be properly characterized as a managerial function. The minutes of these meetings detail the topics discussed and set out general rules and guidelines to be followed. They do not, however, reveal what role the registered nurses play at these meetings or indicate what input, if any, they have in the establishment of rules. In the minutes of one meeting, for example, the following direction is given, presumably to the registered nurses: "If aide stays too long in dining-room may be sent home after first warning. If aide sent home Mrs. Alexander [the Director of Nursing] to be advised, she will call aide re return to work." The sending home of a nurses' aide in this situation cannot be viewed as a managerial function. Firstly, there is no indication that the registered nurses had any input onto the establishment of this guideline. Secondly, when it is carried out it is within strictly prescribed limits. Thirdly, the extent of discipline that might result from being sent home is left within the control of Mrs. Alexander who decides when and under what conditions the aide will return to work. In summary, the minutes of these meetings do not support the conclusion that the registered nurses make effective recommendations in matters that affect the employment relationship.
12The authority of the registered nurses to check and correct the work of those they supervise, their responsibility for the health and welfare of the resident patients, their duty to call in people off a master time sheet prepared by management to ensure sufficient staff and their ability to assign work and grant casual time off do not, in the context of this case, suggest that they have effective control and authority over the people they supervise in matters relating to labour relations. Their authority in these areas is the natural result of their professionalism and extensive training. It does not, however, serve to classify them as part of management.
13With respect to the registered nurses' role in the grievance procedure for the nursing support staff, the Board cannot at this time evaluate whether they will be exercising a managerial function in this regard once the support staff collective agreement is in place. Although the grievance procedure clauses of that collective agreement had been agreed to, the collective agreement as a whole had not been finalized either at the time of the hearing, or, more importantly, at the date of the registered nurses' application for certification which is the point in time at which the Board assesses the evidence relating to the duties and responsibilities of anyone in dispute. Furthermore, the Board could not be guided solely by the words in the grievance procedure provisions. In this case it would have to gain an appreciation of how the grievance procedure provisions were applied in practice in order to evaluate the quality of the registered nurses' input.
14For the reasons set out above the Board finds that the registered and graduate nurses affected by this application are employees under the Act and are entitled to participate in collective bargaining.
15Having regard to the agreement of the parties to take effect in the event of a finding by the Board that the registered and graduate nurses are employees, the Board finds that all registered and graduate nurses employed in a nursing capacity by the Regional Municipality of Halton, at Halton Centennial Manor in Milton, Ontario, save and except the Assistant Director of Nursing, persons above the rank of assistant Director of Nursing and persons regularly employed for not more than 24 hours per week, constitute a unit appropriate for collective bargaining (hereinafter referred to as bargaining unit #1).
16The Board is satisfied on the basis of all the evidence before it that more than fifty-five per cent of the employees of the respondent in bargaining unit #1 were members of the applicant on April 16th, 1980, the terminal date fixed for this application and the date which the Board determines under section 92(2)(j) of The Labour Relations Act to be the time for the purpose of ascertaining membership under section 7(1) of the said Act.
17A certificate will issue to the applicant in respect of bargaining unit #1.
18Having regard to the further such agreement of the parties the Board finds that all registered and graduate nurses regularly employed for not more than 24 hours per week in a nursing capacity by the Regional Municipality of Halton, at Halton Centennial Manor in Milton, Ontario, save and except the Assistant Director of Nursing, and persons above the rank of Assistant Director of Nursing constitute a unit appropriate for collective bargaining (hereinafter referred to as bargaining unit #2.).
19The Board is satisfied on the basis of all the evidence before it that more than fifty-five per cent of the employees of the respondent in bargaining unit #2 were members of the applicant on April 16th, 1980, the terminal date fixed for this application and the date which the Board determines under section 92(2)0) of The Labour Relations Act to be the time for the purpose of ascertaining membership under section 7(1) of the said Act.
20A certificate will issue to the applicant in respect of bargaining unit #2.
DECISION OF BOARD MEMBER J. A. RONSON:
I dissent for reasons to follow.