[1980] OLRB Rep. January 45
1974-78-R Ontario Nurses' Association, Applicant, v. Kent-Chatham Board of Health, Respondent, v. Group of Employees, Objectors.
BEFORE: Rory F. Egan, Vice-Chairman, and Board Members C. G. Bourne and H. Simon.
DECISION OF THE BOARD; January 30, 1980
The Board certified the applicant pursuant to section 6(la) of the Act. There remains to be decided the question as to whether the Home Care Administrator and the Family Planning Co-ordinator are to be included in the bargaining unit or excluded under the provisions of section l(3)(b) of the Act.
The Board has heard the arguments of counsel for both parties with respect to the decision it ought to reach upon the evidence contained in the report of the officer appointed by the Board.
The home care operation was described by the witness as involving "coordination of active treatment, medical treatment services to patients in their own homes, either on a follow-up basis from the hospital or in lieu of being admitted to hospital care".
Marjorie Tench, the present incumbent of the classification of Administrator of the Home Care Program, has held the office for some five and one-half years. She is directly responsible to Dr. Brown, the Medical Officer of Health and to the Board of Health.
As Administrator of the Home Care Program provided by the respondent, Tench is responsible [or its day-to-day monitoring. She admits and discharges patients to the program. She set up the program herself and promoted it with the Medical Association, head nurses, hospital boards and community agencies. She also arranged to use the services of those organizations and agencies.
The Administrator has a staff comprising physiotherapists and part-time speech therapists and occupational therapists. She buys other services from the existing community agencies like the Victorian Order of Nurses and the Red Cross Home Making Service. She also purchases drugs, dressings and lab work.
The Administrator also uses the services of what are termed "liaison nurses". These nurses were already employed in the Health Unit of the respondent organization when the Home Care Program was set up and remained on the staff of the Health Unit. This arrangement was brought about following a discussion of the question of setting up a separate liaison arrangement for the health care program. This discussion was between the Administrator, the Director and the Supervisor (presumably of nursing). The Administrator's evidence was that it was she who then decided that rather than having duplicate services, she would work in with the Health Unit liaison nurses and pay for the services but that she would have control over these as well.
As noted, the liaison nurses were already employed in the unit when the program commenced. The Administrator trained them to carry out the program. She discusses with the Director of Nursing and Supervisor at management meetings which of the staff nurses might be suitable for work in the program. The Administrator exercises a choice but the actual assignment to the unit is made by the nursing supervisor.
The control then exercised by the Administrator relates principally to methods to be used in carrying out the program. The liaison nurses are assigned to their various locations by the Administrator. The Administrator does not take part in the regular evaluation of nurses but the Administrator does discuss the matter with the supervisor of nurses.
Problems involving the actual patient care are discussed by the nurses and the Administrator and a consensus is sought. Problems such as time off are dealt with by the supervisor and not by the Administrator.
Management meetings are attended by the Director of Nursing, the supervisors and the Administrator. At the meetings they discuss staff programming, problems with the staff, staffing situations and development programs and new programs. The Administrator also represents management at the Staff Education In-Service program. When the Director or supervisor is absent, the Administrator takes charge and has to be familiar with the operation and this is one of the reasons for her attendance at management meetings. Discipline problems are also discussed at these meetings.
The relationship of the Administrator with the occupational therapists, physiotherapists and speech therapists is on a different level from that of the nurses. The Administrator does the hiring of the former categories directly. She sets the wages using the going comparative rates as a guideline. She schedules the hours of work. She goes over the quality of their work with them and goes out periodically to see how they are working with the patients. The Administrator determines how many therapists are to be hired without consultation with anyone else. She assigns the work to the therapists and changes the assignments as she deems necessary.
The Administrator has a budget of $32,000.00 out of which she pays for the services and supplies referred to above. She prepares and monitors the budget. After preparation by the Administrator, the budget is taken to the Medical Officer of Health who, as already observed, is the Administrator's direct superior. He looks it over and takes it to the Board of Health for approval. The money is supplied by the Ministry of Health.
The Ministry of Health has limited the budget increases, but the witness testified that additional funds can be obtained if the expense is justified. The Administrator produces a financial statement for the Ministry every month, a statistical statement and the financial status of the program. All decisions on the ordering of supplies are made by the Administrator. She allows no one to order supplies outside unless she authorizes them. The Administrator pays the Treasurer's office for paying the program's bills each month.
The Administrator testified that the budget "is a movable budget", so that if she overspends in one area, she can apply money that is not being used to that area. This decision is made by the Administrator. She deals directly with the Ministry of Health's Fiscal Branch. She described a transaction in which she obtained approval for an extra $5,000.00 without going to anyone else.
It was argued by the union that the relationship between the Administrator and the nurses with whom she worked was one of collegiality and was analogous to the status of the departmental chairmen dealt with by the Board in the Carleton University case, [1975] OLRB Rep. June 500 where the departmental head was in effect found to be "primus inter pares". The union contended that policy decisions were made by the Administrator and nurses on a convulsive or committee basis and that the Administrator was simply a leader among equals. The argument also was that in giving direction, the Administrator was only extending to the other nurses the benefit of her professional knowledge and experience.
It was further argued [again with reference to the Carleton University case, supra that any authority she might exercise over members of the staff not covered by the bargaining unit would not cause a conflict of interest with respect to persons in the bargaining unit so extensive as to militate against her inclusion in the unit.
In the Carleton University case, supra, the Board, in dealing with models of managerial authority, was careful to point out that the university model is significantly different from the industrial model or with the hospital model to both of which reference is made in the award. The Board, in paragraph 19 of the Carleton University decision, supra, says:
"It is clear to us from the evidence that the effective initial decisions on hiring, promotion and tenure, curriculum, etc. are made by the faculty as a group. This, no doubt, reflects the fact that the university is seen, historically, as a community of scholars where common educational interests and goals - at least ideally - transcend the traditional management/non-management distinctions. In Hamburger v. Cornell University, 240 N.Y. 238, Mr. Justice Cardoza wrote:
'A governing body of a University makes no attempt to control its professors and instructors as if they were servants. By practice and tradition the members of the faculty are masters and not servants... . They have the independence appropriate to a company of scholars.' (underlining added)”
The Health Unit is not analogous to a community of scholars. While there are discussions and consultations on professional matters and mutual decisions are arrived at in that area, there is no committee approach to administration and budgetary or other managerial decisions. These lie entirely with the Administrator. It is also very clear that the authority exercised by the Administrator over the therapists is neither infrequent, minor nor sporadic.
As to the lack of conflict of interest as dealt with in the Carleton University case, the Board came to the conclusion that the degree of managerial authority exercised by the Chairman was so infrequent and represented such a minimal amount of his duties that it could not give rise to a conflict of interest within the unit. This conclusion, again, it should be emphasized, is reached having in mind the significantly different managerial scheme of a university. In the result and having regard to the whole of her responsibilities, the Board finds that the Home Care Administrator exercises managerial functions within the meaning of section 1(3)(b) of the Act and is consequently excluded from the bargaining unit.
The Board has carefully reviewed the evidence with respect to the duties of the Family Planning Co-ordinator in light of the submissions made by counsel. There can be no doubt that the position is one requiring the exercise of special professional knowledge and the ability to deal with public bodies, as well as private persons, in matters relating to family planning.
The incumbent is a public health nurse and is in charge of the program. She has limited budgetary responsibilities and some small discretion with respect to purchase of books and equipment. She reports to the Director of Nursing who, in turn, reports to the Medical Officer of Health. She does not attend management meetings and has no authority to hire nurses, although she may be consulted on the matter. She uses public health nurses in the program as group leaders. These nurses also set up programs in small communities but none have the same overall responsibility as the Co-ordinator.
On the evidence, the Board finds, as indicated earlier, that the Family Planning Co-ordinator carries out a program of importance to the Health Unit, but the burden of the job rests in the exercise of her professional knowledge and communication skills rather than in any managerial activities. We accordingly find that the Family Planning Co-ordinator does not exercise managerial functions nor is she employed in a confidential capacity within the meaning of the Act and is consequently included in the bargaining unit.
The composition of the bargaining unit is thus finally resolved. The Board accordingly finds that all registered and graduate nurses employed by the respondent save and except Supervisors — Public Health Nurse, persons above the rank of Supervisor — Public Health Nurse, the Administrator — Home Care Program, and persons regularly employed for not more than 24 hours per week, constitute a unit of employees of the respondent appropriate for collective bargaining.
A formal certificate will now issue to the applicant.