The Wellesley Hospital v. Service Employees' Union, Local 204

[1981] OLRB Rep. December 1843

1900-80-M The Wellesley Hospital, Applicant, v. Service Employees' Union, Local 204, Respondent.

BEFORE: N. B. Satterfield, Vice-Chairman and Board Members J. D. Bell and O. Hodges.

APPEARANCES: W. J. Hayter, Paul Singer and Manu Malkani for the applicant; C. A. Mitchell and Alan Edge for the respondent.

DECISION OF THE BOARD; December 9, 1981

1. This is an application under section 106(2) [formerly section 95(2)] of the Labour Relations Act in which the Board is requested to determine whether three medical secretaries employed by the applicant, the Wellesley Hospital ("the hospital") are employees within the meaning of the Act. A Board Officer has inquired into the duties and responsibilities of the three persons and reported to the Board thereon. Copies of the Officer's report were given to the parties, in accordance with the Board's customary practice and the parties have made their submissions on the conclusions which the Board should reach from the report at a hearing which was scheduled for that purpose.

2. The three persons are Mrs. J. Sinton, Mrs. L. Byrne and Mrs. V. Besteman. All three are medical secretaries to doctors who are members of the hospital's board of directors and in that capacity are persons who are employed in a confidential capacity in matters relating to labour relations and, therefore, the hospital contends that they are not employees within the meaning of section 1 (3)(b) of the Act. The hospital seeks to have Besteman excluded on the additional claim that she is employed in a confidential capacity in matters relating to labour relations as a consequence of her position as secretary to the hospital's physician-in-chief.

3. The question of the status of each of these three persons arose in the course of bargaining for a renewal of the collective agreement between the parties. The respondent trade union ("the union") asks the Board to dismiss the application in respect of the secretary to the hospital's physician-in-chief on the grounds that the status of that position was determined when the parties agreed during the course of the 1978 negotiations that it was to be included in the bargaining unit. Counsel for the union argued that, since there had been no change in the position of secretary to the physician-in-chief, the Board should not entertain this aspect of the application in accordance with Board policy as expressed in its decisions dealing with applications under this section. Counsel for the hospital argued, in part, that, even if union counsel was correct in his view of Board policy, there had been confusion as to which job of secretary was to be excluded from the unit and which job of secretary was to be included in it. Therefore the Board should hear and determine this element of the application.

4. The Board's policy as to when it would accept applications under section 106(2) of the Act was recently reviewed in Westmount Hospital, [1980] OLRB Rep. Oct. 1572 at para. 4, the relevant part of which is set out below:

“… Where parties have by virtue of their collective agreement or other form of agreement settled upon the employment status of a person, the Board at one time refused to let either party at any time withdrawn unilaterally from that agreement by means of an application under section 95(2) of the Act. (See, for example, Belleville General Hospital, [1975] OLRB Rep. June 487.) The basis for this policy is that a party having entered into an agreement on the status of a particular person, cannot, in the absence of a material change in duties and responsibilities, come before the Board and claim that a "question" exists as to the status of that person. More recently, the Board has liberalized this policy so as to permit an application to be brought during negotiations for the re­newal of a collective agreement, after the collective agreement has expired. Parties therefore are no longer bound indefinitely to the terms of an initial agreement. The Board will not however, permit an application (other than one relating to changes in the duties and responsibilities) to be brought during the first set of negotiations following agreement upon the status of the person in question (Collingwood General Marine Hospital, [1975] OLRB Rep. Jan. 18). Nor will it permit a full application to be brought during the term of a collective agreement, unless it is satisfied either that the position is a new one arising during the term of the collective agreement, or that the applicant prior to entering into the collective agreement expressly reserved its right to bring a subsequent section 92(2) application on the person in dispute. Otherwise the appli­cant will be taken to have acquiesced in the position of the other party, and to have accepted it at least for the term of that collective agreement. The Board upon receipt of an application under section 95(2) during the term of a collective agreement therefore automatically limits the appoint­ment of a Board Officer in inquiring into changes in the duties and responsibilities since the date the agreement was entered into (e.g. Ontario Hydro, [1975] OLRB Rep. July 560). If the applicant feels that the appointment should not be limited to "changes", it may write to the Board setting out its reasons, and the Board may hold a hearing to deal with the proper terms of the appointment."

(emphasis added)

5. The Examiner's report contains the evidence of Mr. Alan Edge, business agent for the union and Mr. Manu Malkani, the hospital's assistant administrator for medical services, concerning the events related to the 1975 and 1978 negotiations. Edge was present during both the 1975 and 1978 negotiations. Counsel for the union objected to the Board giving any weight to Malkani's evidence and asked the Board to discount it altogether on the grounds that it was hearsay. The Board is satisfied that, while some of his evidence was in the nature of hearsay, much of it arose out of steps which he had taken shortly after his appointment as assistant administrator in order to inform himself as to the status with respect to the bargaining unit of the secretary to the chairman of the medical advisory committee and the secretary to the physician-in-chief. His evidence in that respect is worthy of consideration by the Board, but, since he was not present during the negotiations, the Board will give no weight to his evidence in the report, if any, about what took place during the bargaining sessions. Having regard to the foregoing, the evidence of Edge and Malkani reveals that the first collective agreement between the hospital and the union was reached in 1975 following certification by the Board. that agreement was followed by one for the term October 1st, 1978 to September 30th, 1980. Prior to or around the time that the first collective agreement was reached, the parties resolved certain issues arising out of the certification. Part of that resolution was an agreement that the position of secretary to the physician-in-chief be excluded from the bargaining unit as long as there was only one such position in the hospital. Accordingly, that position was excluded from the 1975 collective agreement. The union's proposals for the 1978 negotiations contained a request that the position of secretary to the physician-in-chief be included in the unit now that it was no longer held by the employee who occupied the position at the time it was excluded from the first agreement. During the course of the bargaining, it was ultimately agreed to include the position in the bargaining unit and to exclude the position of secretary to the chairman of the medical advisory committee. The bargaining unit described in Article 2 —Recognition of the collective agreement which expired September 30th, 1980 shows this latter position as one of the exclusions from the unit. According to Malkani, the position of secretary to the physician-in-chief was excluded from the bargaining unit in the first agreement because the physician-in-chief was a member of the board of directors and his secretary had access to confidential information. Malkani testified that it had been the hospital's intention all along to exclude the secretary to the chairman of the medical advisory committee for the same reason. His testimony confirms that, as things now stand, the secretary to the chairman of the medical advisory committee is excluded from the bargaining unit and the secretary to the physician-in-chief is included in it.

6. From that history of the bargaining it may be seen that the hospital has raised the status of the secretary to the physician-in-chief in the negotiations next following on those when its status was last settled by agreement of the parties. Those are precisely the circumstances referred to in the emphasized passage in the Board's decision in Westmount Hospital, supra, as usually causing the Board to refuse to entertain an application to determine the status of an employee. The Board finds nothing in the evidence of either Edge or Malkani which is indicative of any confusion of the parties over what position was to be excluded from the bargaining unit and therefore finds no basis for the grounds put forward by counsel for the hospital for the Board not to follow its policy in these matters. In the result, this application insofar as it pertains to the duties of Mrs. Besteman as secretary to the physician-in-chief is dismissed. This decision, however, does not affect the application as it relates to her duties to the physician-in-chief in his role as a member of the hospital's board of directors.

7. It remains, therefore, for the Board to determine the status of the three medical secretaries on the basis of their positions as secretaries to doctors who are members of the hospital's board of directors. Mrs. Sinton is secretary to Dr. H. A. Smythe, head of the hospital's rheumatic diseases unit. He is president of the medical staff association and because of that office is also a member of the hospital's board of directors. Mrs. Byrne is secretary to Dr. J. T. Rankin, head of the hospital's urology department, vice-president of the medical staff association and, as a consequence of that position, a member of the hospital's board of directors. Mrs. Besteman is secretary to Dr. Robert Volpe, physician-in-chief of the hospital. All three doctors are members of the hospital's medical advisory committee and Dr. Volpe is its vice-chairman and, as such he is also a member of the hospital's board of directors.

8. The hospital is a teaching hospital associated with the faculty of medicine of the University of Toronto. The doctors who provide service at the hospital are not employees of the hospital, the majority of them being employees of the University of Toronto Faculty of Medicine. They have admitting privileges at the hospital and they provide medical care for its patients, teach resident doctors at the hospital and students at the University of Toronto, carry out administrative duties for the hospital in connection with their medical services function and carry on the private practice of medicine. These conditions apply to the three doctors for whom the secretaries work.

9. The medical secretaries in question here are employees of the hospital and at the time the question of their status arose, were employees in the bargaining unit for whom the union is the bargaining agent. It is common ground between the parties that, if the three doctors for whom the secretaries now work are replaced by other doctors in their positions which are the reason for them being members of the board of directors, the secretaries of the replacing doctors would come with them. Therefore the three persons whose status is now in question would ordinarily cease to be secretaries to members of the board of directors.

10. Each of the three secretaries' duties and responsibilities reflect the work which is required of them by the mix of work performed by the doctors to whom they are assigned. The facts with which the Board is concerned are those which relate solely to the duties associated with the doctors' roles as members of the hospital's board of directors. Except where specifically noted otherwise, the facts set out hereunder apply to all three secretaries. There is nothing in the evidence about their duties connected with the doctors' functions at the hospital other than as members of its board of directors that has any potential for a conflict of interest in respect of the labour relations of the hospital. There is evidence that two of the secretaries deal with information relating to the appointment, promotion and remuneration of medical staff (doctors) of the hospital. Since these doctors are not employees of the hospital, these duties of the secretary pose no conflict of interest in respect of the hospital's labour relations and, therefore, will be given no weight by the Board in determining the status of these employees. See the Board's decision in Comtech Group Limited,[1974]OLRB Rep. May29l. The facts in respect of the duties of the secretaries associated with the doctors' as members of the board of directors are set out hereunder.

11. Much of the evidence about the activities of the hospital's board of directors and the matters with which it deals is from Malkani's testimony. He is not a member of the board or any of its committees, but he is responsible to the executive director who is a member of board, the medical advisory committee and the finance committee. Malkani does not routinely receive minutes of the meetings of the board or its committees, although he has access to them through the executive director when his job requires that he makes reference to these minutes and he has in fact done so. While his evidence about the board and its committees is in the nature of hearsay, the Boaikl is satisfied that his knowledge of these matters arises from the requirements of his job. His testimony within that scope of knowledge indicates that the matters with which the Board deals as the governing body of the hospital include:

(a) the negotiations with the various unions at the hospital, including the anticipated results of those negotiations;

(b) making the final decisions on the hospital's funding, including funding related to staff costs;

(c) final approval of the operating expense budgets for the hospital and its major departments;

(d) determination of what funds are to be made available for salaries and wages; and

(e) final decisions on steps to be taken for dealing with shortfalls with the hospital's funding.

12. When the Board is dealing with problems of shortfalls in the hospital's funding, it gets input in terms of alternate plans from the responsible staff in its various divisions. These plans are reviewed by the medical advisory committee which advises the Board on the impact which each plan will have on medical care. The Board then decides which plan, if any, it will implement. Its decision is reflected in the minutes of its meetings. Before the Board gives final approval to the hospital's operating expense budgets, these budgets have been screened by its finance committee. These budgets include estimates of the salary and wage cost and the impact of expected salary and wage settlements based on the best estimate available at the time the budget is prepared. The budget proposals contain estimates as to staffing levels. During the course of negotiations, the estimate of the per cent increase in salary and wage costs affected by the negotiations are revised. While the estimated percentage increase is minuted by the Board, there is no evidence that the estimates of staffing levels gets into the minutes of the Board or its finance committee. There is no documentary evidence before the Board as to the specific contents of minutes of the board of director's meetings. There is documentary evidence of the minutes of a meeting of the finance committee and these contain a general reference to a pending settlement in respect of union negotiations and to the fact that the hospital's budget contains an average increase of 81/2 percent in salary costs, while the anticipated "salary award" is estimated to be 12 per cent, creating a potential budget shortfall of $220,000.00 to $250,000.00.

13. As noted above, minutes of the meetings of the board of directors are circulated to all of its members, together with the minutes of meetings of any of the board committees. The evidence indicates that, from time to time, the financial statements of the hospital are included as well. The three secretaries receive these minutes in envelopes addressed to their respective doctors and marked confidential. They open the envelopes and give the minutes to the doctors. Except for Mrs. Sinton, they are responsible for filing them. All three have unrestricted access to the minutes. While Mrs. Besteman's job description requires her to read the minutes, her evidence is that she does not read them unless Dr. Volpe asks her for some specific information. Mrs. Sinton does not read the minutes at all and Mrs. Byrne stated that it was not part of her job to read them, but she may scan the first page or two to check for dates of future meetings before turning the minutes over to Dr. Rankin. Mrs. Byrne had reviewed her file on the board of director's meetings prior to going to the examiner's meeting and, as a result, was aware that the financial statements of the hospital cross her desk. While she admitted that they may contain budget information in respect of the general staffing levels in the hospital, she was unable to recall whether the most recent budget contained a reference from the board of directors as to the need to reduce the expense budget. The three doctors for whom they work play no role in respect of the hospital's collective bargaining activity, including the negotiation of its collective agreements or the administration of those agreements. If they have any role at all, it is limited to participating in any discussions which the board of directors might have pertaining to negotiations. None of the secretaries have been asked to prepare for their doctors, any memoranda, reports or other documents which deal with the hospital's labour relations.

14. The purpose of the provisions in section l(3)(b) of the Act which deal with persons employed in a confidential capacity in matters relating to labour relations is to protect employers from the potentially adverse effects of the disclosure of such matters. In a similar way, it protects the employees who are so employed from being placed in a conflict of interest between the union which would represent them were they not excluded from the bargaining unit and the employer. The avoidance of such conflicts of interest is important to the effectiveness of the collective bargaining relationship. The Board has consistently followed the criteria referred to in its decision in Falconbridge Nickel Mines Limited, [1966] OLRB Rep. Sept. 379 which are most often quoted as being". . . a regular, material involvement in matters relating to labour relations.. . .". That decision also states that ". .. the degree of involvement and the extent of the confidential nature of the matters dealt with become important factors to be considered in determining exclusions under these provisions [of section 1 (3)(b) of the Act]".

15. Counsel for the hospital recommended to the Board as an example of the application of these criteria, the Board's decision in RCA Limited, [1980] OLRB Rep. Sept. 1316. In that case the Board found that the secretary to the manager of financial operations and the secretary to the manager of quality and reliability were not employees within the meaning of section l(3)(b) of the Act on the basis of their regular and material involvement with ..... sensitive information going to the heart of the bargaining strategy and goals of the company.". As a result of this finding, the Board excluded them from a bargaining unit of office, clerical and technical employees. The Board reached this conclusion from the fact that the two employees typed".. . financial reports and budget material which contain statements of the amount budgeted for future clerical salaries. Although these amounts are stated in the form of an overall figure, percentages can be easily deduced from them.". They were two of five secretaries whose status the Board was considering. The three other secretaries were not excluded from the bargaining unit since the Board found that they did not have regular and material access to the same kind of sensitive material.

16. Before coming to both of these conclusions, the Board had considered the following circumstances.

"The issue respecting the above individuals is whether they handle information which would place them in a position of conflict of interest as between their employer and the union. The evidence establishes that all of these individuals type and handle documents in the nature of business planning statements. These include periodic profit and loss statements, statements of departmental expenses, the company's estimate requests or appropriations requests, and forcecasts of production schedules. Handling such documents and information does not itself make these individuals confidential in respect of labour relations matters. Some of the documents the secretaries handle are more detailed than others; some are extremely general. In each case the Board must deter­mine whether the information handled by the individual secretary is sufficiently particular in respect of material labour relations information such as projected hirings, lay-offs or wages as to raise the likelihood of a genuine conflict of interest."

In the case at hand, the only involvement of the three secretaries is in the limited handling of the minutes of the board of director's meetings and the other documents related thereto. They perform no other tasks than the receiving of these documents and the custody of them, except for an extremely limited reading reference in the case of Mrs. Besteman and Mrs. Byrne. The facts of this case readily distinguish it from RCA Limited, supra, as they do from the Board's decision in Simmons Limited, [1980] OLRB Rep. May 787, another case on which counsel for the hospital relied. In that case the only secretary to the general manager and assistant general manager handled a wide range of duties which involved her in working with and typing information which was confidential in respect of labour relations.

17. On the evidence before the Board that the three secretaries simply have access to the information which flows from the minutes of the board of director's meetings, their exposure to material which might be sensitive to the hospital's labour relations is far too remote to be termed a regular and material involvement. The Board finds, therefore, that they are not employed in a confidential capacity in matters relating to labour relations and therefore are not excluded from the bargaining unit.