The Cottage Hospital (Uxbridge) v. Ontario Nurses' Association, 1980 CanLII 939

[1980] OLRB Rep. March 304

1262-79-M The Cottage Hospital (Uxbridge), Applicant, v. Ontario Nurses' Association, Respondent.

BEFORE: Pamela C. Picher, Vice-Chairman and Board Members J. D. Bell and O. Hodg­es.

DECISION OF THE BOARD; March 4, 1980

1. This is an application under section 95(2) of The Labour Relations act. The Cot­tage Hospital (Uxbridge) has asked the Board to determine whether Ms. Judy Chadwick is an employee for the purposes of the Act. A decision under section 95(2) of the Act responds only to the issue of whether or not an individual is an employee under the Act. The determi­nation is not necessarily dispositive of the question of whether the individual falls within any particular bargaining unit.

2. The Hospital's position is that Ms. Chadwick, a registered nurse, exercises mana­gerial functions within the meaning of section 1(3)(b) and is therefore not an employee for the purposes of the Act. The Hospital submits that she is part of senior management and would have a conflict of interest if included in the bargaining unit with other nurses. The Hospital emphasized that she operates independently of both the nursing department and the registered and graduate nurses in the bargaining unit. Emphasis was also put on the fact that she is paid at the same level as the nursing co-ordinator who is two steps above a regis­tered nurse.

3. Section 1(3)(b) of the Act reads as follows:

"Subject to section 80, for the purposes of this Act, no person shall be deemed to be an employee,

(b) who, in the opinion of the Board, exercises managerial functions or is employed in a confidential capacity in matters relating to labour rela­tions."

In making determinations under section 1(3)(b) of the Act, the Board has continually recog­nized that effective collective bargaining necessitates an arm's length relationship between employees on the one hand and management on the other. The managerial exclusion in sec­tion 1(3)(b) is designed to exclude from the definition of "employee" those persons who, be­cause of the exercise of managerial functions, would be placed in a conflict of interest if they were included in the bargaining unit and allowed to engaged in collective bargaining. The Board must assess the facts of each case to determine whether the duties and responsibilities in question have true managerial significance.

4. 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 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 serni-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 Peterbo rough Civic Hospital, [1973] OLRB Rep. Mar. 154 the Board at 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.

5. Over the years the Board has developed general guidelines to assist 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 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. 44 and Canadian General Electric, [1979] OLRB Rep. Jan. 12).

6. Different considerations apply to the work of a second group of persons who may be characterized as having a 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)

7. Ms. Chadwick, a registered nurse, has a three-fold responsibility. She is the In-Service Co-ordinator, the Staff Health Nurse and the Infection Control Officer. Ms. Chadwick does not supervise any employees and does not, for example, take part in hiring, firing or disciplining employees, although some of her duties have a direct impact on the em­ployment relationship of others. Numerous other aspects of her work clearly do not have a direct impact on the terms and conditions of employment of other employees. Given the mix of her duties, the Board must consider both whether she has the power of effective recom­mendation and whether she exercises independent decision-making authority in matters of policy in the running of the Hospital.

8. As In-Service Co-ordinator, Ms. Chadwick facilitates and promotes educational programs for various departments in the Hospital. She does not make up the budget for the educational programs although she suggests to the Patient Care Committee how much money should be spent on education. The evidence does not reveal what weight the Com­mittee places on her suggestion. Ms. Chadwick does not herself evaluate employees. She testified, however, that as part of her job as In-Service Co-ordinator, she assists with em­ployee evaluations by providing input into the format to be used to carry out the evaluation. In this regard she works with department heads to develop evaluation forms which will be responsive to the particularized needs of the various departments. Additionally, she might provide health information relevant to an employee's evaluation from the standpoint of de­ciding whether or not a person could physically perform the job in question. The evidence establishes that the supervisor of the individual in question would have authority to overrule her appraisal. Ms. Chadwick stated her opinion that if a question arose over her assessment of an individual's physical ability to perform a job, consultation with the administrator and staff health physician should take place to resolve the matter.

9. The evidence of Ms. Chadwick's duties as In-Service Co-ordinator satisfied the Board that Ms. Chadwick does not, in this aspect of her work, perform managerial functions within the meaning of section 1(3)(b) of the Act. While Ms. Chadwick may express an opin­ion as to a person's physical ability to perform a job, the evidence establishes that she does not make either the final determination or an effective recommendation as that term has been interpreted by this Board. Additionally the Board is not persuaded that her role facili­tating educational programs for the Hospital and providing input into the design of evalua­tion forms involves the exercise of managerial functions. Even if the Board were to conclude, as submitted by the Hospital, that Ms. Chadwick's duties relating to the evaluation form have a direct impact on the employment relationship, the Board would not conclude on the evidence before it that her input constitutes an effective recommendation. The same conclusion must be drawn regarding her limited input into the formulation of the budget.

10. Ms. Chadwick is the Infection Control Officer. She is responsible for determining whether there are infectious agents on the floor with patients. The evidence establishes that all registered nurses make determinations of this nature although clearly Ms. Chadwick plays a dominant role. This aspect of her job clearly has no direct impact on the terms and conditions of employment of others. There is no evidence before the Board to support the conclusion that her duties as Infection Control Officer involve the exercise of independent decision-making authority in matters of policy and the running of the Hospital. According­ly, the Board concludes that as Infection Control Officer Ms. Chadwick does not exercise managerial functions.

11. As Staff Health Nurse Ms. Chadwick performs staff physicals and immuniza­tions. Additionally she decides whether a staff member is sufficiently sick to go home. In evaluating an individual's physical condition, Ms. Chadwick indicated that if a difference of opinion were to arise between herself and the individual, she would consult the staff health physician. It is apparent on the evidence that she does not have the authority either to make the final decision in the face of disagreement, or even the power of effective recommenda­tion. Clearly, the physician would draw his own independent conclusions. The Board does not view this aspect of her responsibility as managerial but rather reflective of her profes­sional skill. Additionally, her decisions in this regard do not directly affect an individual's employment relationship; they are not, for example, disciplinary decisions. Although her evaluation or series of evaluations relating to a particular individual may at some point be used by someone else in a way that might directly affect the individual's employment rela­tionship, it is not Ms. Chadwick who in those circumstances would be the one exercising the managerial function. There is no evidence to support the conclusion that in this situation her evaluation of a person's physical condition could be properly characterized as an effective recommendation.

12. Finally Ms. Chadwick's performs some duties relating to Workmen's Compensa­tion claims. Ms. Chadwick indicated that the job description of her duties as health care nurse filed with the Board was accurate. That description states that"... [u]nder administra­tion, the nurse will ensure regulations under the Public Hospital's Act and Workmen's Compensation Board are carried out". The evidence relating to her role in processing Workmen's Compensation claims is extremely vague. Ms. Chadwick stated that she investi­gates claims and authorizes their payment. She indicated that in three years she had done approximately ten. There is no evidence whatsoever to indicate to the Board precisely what procedure Ms. Chadwick follows in investigating and authorizing Workmen's Compensa­tion claims. If Ms. Chadwick looks into the circumstances of the injury to assess whether it is job-related and thus the proper subject of a Workmen's Compensation claim, and further performs the necessary paper work to send the claim to the Workmen's Compensation Board for processing, she would not thereby become managerial. Clearly it is the Work­men's Compensation Board which makes the final decision as to whether or not a claim should be paid. Nothing in the facts as set out in the Labour Relations Officer's Report indi­cates to the Board that Ms. Chadwick's role in processing Workmen's Compensation claims involves the performance of managerial functions. There is no evidence to suggest, for ex­ample, that Ms. Chadwick sets the Hospital policy regarding such claims. Moreover, even if it could be said that these duties have a direct effect on the employment relationship of others, the evidence does not establish that she exercises power of effective recommenda­tion.

13. For the reasons set out above therefore the Board is fully satisfied that Ms. Chadwick does not exercise managerial functions within the meaning of section 1(3)(b) of the Act. The Board is further satisfied that notwithstanding her access to employees' files she is not engaged in a confidential capacity in matters related to labour relations.

14. Accordingly, the Board finds that Ms. Chadwick is an employee for the purposes of the Act.