[1980] OLRB Rep. September 1280

2238-79-R Ontario Nurses' Association, Applicant, v. Charlotte Eleanor Englehart Hospital, Respondent

BEFORE: R. D. Howe, Vice-Chairman, and Board Members Edward J. Brady and W. F. Rutherford.

DECISION OF THE BOARD; September 8, 1980

1. By decision dated March 27, 1980, the Board certified the applicant under section 6(1 a) of the Act as the bargaining agent for the full-time and part-time bargaining units de­scribed therein, pending final resolution of the composition of the bargaining units. In that decision, the Board also noted that the dispute between the parties with respect to the bargain­ing unit was as follows:

"The applicant contends that only the Director of Nursing and persons above the rank of Director of Nursing should be excluded from the bar­gaining unit. The respondent, on the other hand, proposes the following exclusions: Head Nurses, persons above the rank of Head Nurse, Em­ployee Health Nurse, Infection Control Officer, In-Service Co-ordinator, Discharge Planning Co-ordinator, and Registered and Graduate Nurses employed for less than 24 hours per week."

In view of the dispute concerning the bargaining unit, the Board appointed Mr. N. Wilson, Labour Relations Officer, to inquire into the list and composition of the bargaining unit and report to the Board thereon.

2. The parties met with the Labour Relations Officer and entered into a written agree­ment to proceed on the following basis:

"1. The classification of 'Supervisor' is an agreed exclusion from the bar­gaining unit: Namely:

Schedule 'A' #10 Opthof Margaret

Schedule 'B' #23 Rothera Irene

Schedule 'D' # 2 Freer Shirley

4 Hannon Norma

5 Hasson Agnes

#10 Parker Helen

And also excluding the classification of Employee Health Nurse, current­ly performed by #10 Parker Helen.

2. The parties are in dispute regarding the classifications of Head Nurse and In-Service and Discharge Planning Co-ordinator. Two classifica­tions only. The parties agree the testimony of Mrs. Dorinne Garrett shall be representative of herself and of all other Head Nurses affected by this application."

3. Following his meeting with the parties, the Labour Relations Officer submitted his report to the Board. The Board also received written submissions from each of the parties with respect to the report. The parties indicated in their respective written submissions that they did not request a hearing before the Board in this matter.

4. The respondent contended that the two classifications remaining in question, name­ly, "Head Nurse" and "In-Service and Discharge Planning Co-ordinator", should be excluded pursuant to section l(3)(b) of the Act.

5. In the recent decision of The Cottage Hospital (Uxbridge), [1980] OLRB Rep. March 304, the Board described the purpose and scope of section l(3)(b) as follows:

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

'1. (3) 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 l(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 engage 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...."

5. The approach which has been adopted by the Board in applying section l(3)(b) to Head Nurses was described as follows in Westmount Hospital, [1976] OLRB Rep. Feb. 24:

"8. The Board has, on a number of occasions, dealt with the application of section l(3)(b) to head nurses and has, in the course of its deliberations, developed certain insights which are helpful in applying the facts at hand. In the Peterborough Civic Hospital case, Board File No. 1970-72-R, the Board, in discussing a number of the functions of head nurses, stated:

'Head nurses form a link or a liaison between management and other employees; they are in charge of a hospital floor and therefore assume many different functions. For example a head nurse is still involved in patient care. Because of her experience she may be called upon by other nurses prior to consulting the doctor. She may also be required to assist in the orientation of nurses who are new to that particular floor. Neither of these roles is a managerial function, but is merely the function of the training and experience of head nurses. In addition, the head nurse carries out limited administrative duties. For example, she co-ordinates the policies of the hospital on her floor with respect to staffing. She sees that the scheduling and ar­ranging of personnel is such that there is adequate coverage for patients. This scheduling is carried out in correspondence with a predetermined policy and the head nurse merely implementing poli­cies decided at a higher level. This implementation should not be confused with the decision-making control function that goes hand in hand with management.

Also, the head nurse forms a conduit between the general staff on her floor and management, or to put it another way she has a report­ing function. In this function she is a liaison between management and other employees; she enables management to 'keep its ear to the ground' and in touch with the daily operations and functions of the hospital, and at the same time she is a part of the vehicle for manage­ment to convey policies and decisions to other employees. Again, this reporting function should not be confused with the exercise of managerial duties.' (Emphasis is added)

9. The Board in distinguishing between managerial criteria as applied to professional or semi-professional employees and as applied to others, stated in the Essex Health Association case [1970] OLRB Rep. Novem­ber 824:

'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. While nurses may give certain directions to others, e.g., order­lies, in the exercise of their professional skills, these directions are not dissimilar to the directions given by a journeyman to an appren­tice in other crafts. Again, the reporting functions exercised by head nurses in this case may be likened to the reports one may expect from a journeyman concerning the progress of the apprentice.

10. Finally, the Board has taken further notice of the requirement for co­ordination of patient care as administered by doctors, nurses, nursing assistants, orderlies, dieticians and therapists etc. and has stated in the Toronto East General case [1974] OLRB Rep. October 671:

'Hence there is a tremendous need to co-ordinate the professional and technical activities of nurses and to this end elaborate policy formulations are communicated to them, and a specialized group of co-ordinators has been created. This group of co-ordinators in­cludes supervisors, head nurses, assistant head nurses, charge nurses and graduate nurses on occasion. Whether any in this group of co-ordinators exercises managerial functions, as well as per­forming a co-ordinating function, is a question that must be decided on a case by case basis, and any inquiry must consider whether the inclusion of such people would have a serious effect on the labour relations of the particular institution before the Board."'

(See also St. Peter's Hospital— Hamilton, [1975] OLRB Rep. March 247; and Ajax and Pick­ering General Hospital, [1970] OLRB Rep. Feb. 1283.)

7. As indicated above, the parties have agreed (in accordance with paragraph 8 of the Board's Practice Note No. 4) that the testimony of Dorinne Garrett shall be representative of the duties and responsibilities of herself and all other persons in the Head Nurse classification. Mrs. Garrett is the Head Nurse on the Obstetrics floor of the Hospital. She reports to Helen Parker, the Day Supervisor, who in turn reports to Helen Havlick, the Director of Nursing. Mrs. Garrett devotes forty per cent of her time to direct nursing care such as answering bells, helping patients on and off bed pans, helping to turn patients, moving trays, and helping to make beds. She spends another twenty per cent of her time performing "ward clerk work", which is essentially paperwork (such as making up requisitions, starting new charts, assemb­ling charts after patients have been discharged, and obtaining laboratory requisitions) and administrative work (such as making dental appointments for patients and contacting nursing homes on behalf of patients). Although the job description of the position filed as an exhibit by the respondent describes a Head Nurse as a "Registered Nurse assigned the responsibility and supervision of nursing service within a single unit of an agency" and includes in the list of func­tions of that position "[a]ssisting in the development and implementation of methods by which objectives of the nursing unit can be realized, i.e. — plan of organization, definition of job descriptions, function of personnel, performance evaluations, recommendation of appoint­ments, transfers and promotions, planning and implementing of in-service programs, inter­preting established policies and standards, planning for evaluation of existing total nursing program and unit program", the evidence concerning the job functions actually performed by Mrs. Garrett indicates that, in the remaining forty per cent of her time, she performs primarily a co-ordinating function rather than a managerial function. Although Mrs. Havlick testified that she intended Head Nurses to have disciplinary powers and for that reason circulated in September of 1977 a document entitled "Guidelines for Disciplinary Procedure", Mrs. Garrett testified that she did not have the authority to discipline employees. When asked if she could give a written reprimand, she stated: "No, I wouldn't do that. I would go to Mrs. Parker." In fact, the Obstetrics floor appears to be an employment setting of the type described in the Toronto East General case (supra, at paragraph 12) in which employees are so highly trained and work so closely together that little, if any, labour relations supervision is needed. Mrs. Garrett merely engages in "on-job counselling" by providing suggestions and advice based on her experience and professional expertise. She does complete annual evaluation forms for employees on her floor but this is done by rating their nursing skills on the basis of predeter­mined "benchmark" criteria. She makes no recommendations with respect to what action should be taken as a result of the reports. She is rather uncertain concerning the use which is made of the forms after she gives them to Mrs. Parker.

8. Mrs. Garrett attends a Department Head Meeting once a month along with the other Head Nurses and Department Heads from other areas of the Hospital. The purpose of those meetings is to permit Mr. Miller, the Administrator, to communicate directions and plans of the Board of Directors. The meetings also provide the Head Nurses with an opportu­nity to discuss problems of concern to them. The Administrator then decides what the answers to the problems are. Salaries and the Hospital budget are also discussed at those meetings but this discussion also appears to be information oriented rather than decision oriented as, in the words of Mrs. Havlick, "...many of these things are imposed by the Ministry or imposed by an arbitrator or imposed by someone completely outside of the Hospital organization so.. .the ability to make a decision as to whether you will increase anyone's salary or not is pretty diffi­cult for anyone to make at this point in time." Mrs. Garrett also attends Supervisors and Head Nurses Meetings at which Supervisors and Head Nurses discuss problems and offer sugges­tions concerning possible solutions based on their experience and professional expertise.

9. Mrs. Garrett has no authority to grant time off, authorize payment for overtime, schedule vacations, hire employees, transfer employees, or obligate the Hospital to a financial investment. If she wants any time off, she must "go through Mrs. Parker". Her only involve­ment in the preparation of the annual budget is giving the Director of Nursing a list of the needs of her floor. It was her evidence that some of those requests are granted but others are denied. She is not involved in establishing the rates of pay for employees on her floor nor is she able to effectively recommend any increases in their wage rates. She refers to the Day Super­visor employees who have complaints about the operation of the Hospital or the treatment they are receiving from the Hospital. She is empowered to explain written Hospital policy but does not "make final decisions on anything that isn't already written down.~~

10. Mrs. Garrett acts as a conduit between the employees on her floor and the manage­ment of the Hospital and as a co-ordinator of her floor. However, she has no real authority to exercise independent decision-making responsibilities or make effective recommendations re­lating to terms or conditions of employment. Accordingly, having regard to all of the evidence and the submissions of the parties, the Board is of the opinion that she does not exercise mana­gerial functions and is not employed in a confidential capacity in matters relating to labour relations.

11. We are also of the opinion that Earlene Butler, In-Service Co-ordinator and Dis­charge Planning does not come within the ambit of section l(3)(b). Miss Butler reports to the Director of Nursing. Her primary functions are the training of new employees who are "brought in by Mrs. Havlick", ensuring that employees have opportunities for continuing education within the Hospital (by instructing employees herself or arranging for the seller of a particular piece of equipment to give in-service training sessions), and co-ordinating the discharge of patients from the Hospital by contacting outside organizations (such as V.O.N., Homecare, and Public Health) for those patients who will require outside assistance after they leave the Hospital. She familiarizes prospective employees with Hospital policies and procedures and provides Mrs. Havlick with an "informal report" concerning the level of some of their nursing skills, but the actual decision of whether or not to hire such persons is made by Mrs. Havlick. Miss Butler's reporting function is somewhat analagous to the reporting by an experienced journeyman concerning the progress of an apprentice (see Essex Health Association, supra, at paragraph 3). Staff nurses perform a similar function for newly hired personnel during the pro­bationary period.

12. Miss Butler receives the evaluation forms prepared by Head Nurses but uses them not to discipline employees nor to otherwise adversely affect terms or conditions of employ­ment, but rather to provide employees with opportunities for in-service training in their areas of weakness. Although she has access to employee files, she has never actually used them. She does not supervise any employees and has nothing to do with setting salary levels, granting time off, scheduling vacations, assigning work, disciplining employees, transferring employees or preparing the Hospital budget. She has no budget of her own and is not replaced on days when she is absent. Her role at the Head Nurses and Supervisors Meetings is informational and advisory, The occasional discussion of employee evaluations at those meetings is directed toward determining the areas in which staff are weak so that in-service training sessions can be arranged to remedy the weaknesses.

13. Accordingly, having regard to all of the evidence, the submissions of the parties, and the aforementioned agreement of the parties, the Board finds the following to be units of em­ployees of the respondent appropriate for collective bargaining:

BARGAINING UNIT #1

All Registered and Graduate Nurses employed in an nursing capacity by the respondent in Petrolia, Ontario, save and except supervisors, persons above the rank of supervisor, employee health nurse, and persons regu­larly employed for not more than 24 hours per week.

BARGAINING UNIT #2

All Registered and Graduate Nurses regularly employed in a nursing capacity for not more than 24 hours per week by the respondent in Petrolia, Ontario, save and except supervisors, persons above the rank of super­visor, and employee health nurse.

15. A certificate will issue to the applicant with respect to bargaining units #1 and #2.