Ontario Labour Relations Board
[1981] OLRB Rep. May 593
1030-80-M Westmount Hospital, Applicant, v. Ontario Nurses' Association, Respondent.
BEFORE: M. G. Mitchnick, Vice-Chairman, and Board Members F. W. Murray and B. L. Armstrong.
APPEARANCES: F. J. W. Bickford and R. G. Halstead for the applicant; J. McCormack and L. Gosselin for the respondent.
DECISION OF THE BOARD; May 25, 1981
This is an application by the employer Hospital pursuant to section 95(2) of The Labour Relations Act requesting the Board to determine the status of its Head Nurses. A previous examination by the Board, at the time of the Registered Nurses' initial certification, determined that the Head Nurses were "employees" within the meaning of the Act (Board File No. 0974-75-R, released February 3, 1976). The Hospital takes the position that the duties and responsibilities of the Head Nurses have changed to a sufficient extent to make the Board's prior determination no longer applicable.
Since the time of the Board's prior determination, the Head Nurses have of course been treated as members of the nurses' bargaining unit and covered by the collective agreement pertaining thereto. As the Board pointed out in Sudbury and District Health Unit, (Board File No. 2055-79-M, unreported decision released March 11, 1981), at paragraph 5, "an employer's organizational scheme has a historical dimension which must be considered when the evidence is being weighed", and accordingly, "a party seeking to alter a status quo which has been settled and embodied in a series of collective agreements, must be able to provide a firm evidentiary foundation for its new position". In the present case the applicant is also faced, as noted, with a problem of resjudicata, and the changes upon which it seeks to rely must be significant.
The evolution of this employer's organizational structure does, however, provide an explanation for the bringing of the present application. Immediately adjacent to the Westmount Hospital is the Walter P. Hogarth Memorial Hospital, for whose nurses the respondent was also certified as bargaining agent in 1976. The Head Nurses at Hogarth apparently performed functions somewhat different from those at Westmount, and were excluded from the bargaining unit by agreement of the parties. The relationship between Hogarth and Westmount is not clear, particularly from the Officer's report (which is meant to be the source of all evidence from the parties). It would appear, however, that the two hospitals had always shared a common administrator, but were otherwise operated separately, through separate Boards of Directors. In April of 1980, the two hospitals amalgamated, and a single system of administration was adopted. One of the changes which the employer sought to implement was to bring the job functions of the Head Nurses at Westmount into line with those at Hogartli, so that all Head Nurses could be treated on a similar basis. Indeed, since the amalgamation, the Head Nurses at Westmount have begun meeting with the Head Nurses at Hogarth, together with more senior staff, on a weekly basis. In addition, some five or six meetings were held with the Head Nurses, over a period of two months, for the purpose of obtaining from them input into the form which their revised job descriptions would take. That study has now been completed and the new job description implemented.
The Briard has no difficulty understanding the preference of the employer that all of its Head Nurses now be treated on the same basis (see McIntyre Porcupine Mines Limited, [1975] OLRB Rep. April 261 at paragraph 18, and Delta's Inn of the Provinces, Board File No. 2191-79-M, October 27, 1980 (unreported), at paragraph 9). The Board does not, however, have the duties of the Hogarth Head Nurses before it, and accordingly, can derive no guidance whatever from their agreed-upon exclusion. The present application must be assessed on the basis of the examination conducted of the changes in duties and responsibilities of the Head Nurses at Westmount. In this regard, one further point should be noted. From a reading of the examination transcript it quickly became evident that the witness herself was of the view that she was a member of management. There is nothing improper in a witness' own perception of how she has been treated by her employer, through her experiences, can be one of the factors that the Board will consider in weighing the evidence. The problem in t is case, however, was that counsel for the applicant employer, in his portion of the examination, proceeded to put to the witness at great length questions in an unmistakenably leading manner, so that the Board finds itself in difficulty discerning precisely whose evidence was in fact being received. Notwithstanding the fact that this took place in "cross" examination, in a technical sense, the Board accordingly finds that that portion of the examination is of very limited probative value or assistance to it.
Counsel for the respondent sought to go further and impugn the credibility of the witness, Mrs. Gray, on the question of "changes" by reference to the 1976 transcript before the Board. The Board noted, however, that the evidence which the transcript represents becomes merged in the actual findings of fact which the Board sets out in its decisions, so that the transcript cannot be used to establish facts which are inconsistent with the findings of fact contained in the Board's decision. The Board notes as well that the Head Nurse examined on the earlier occasion was not Mrs. Gray (although Mrs. Gray was one of the Head Nurses represented and bound by the witness' testimony), and, as a matter of credibility, individual perceptions and experiences can vary to some degree. On the basis of all the material before it, including the prior transcript, the Board does not find the evidence of Mrs. Gray to be unworthy of belief. The Board has, however, taken into account those areas of the evidence which appear to be entirely subjective in nature, and concentrated its attention on the specific areas of authority which the transcript discloses. The Board has, in addition, its earlier decision as a reliable guide to the Head Nurses' authority as it previously existed.
The Board on the evidence must conclude that significant material changes have in fact occurred in the duties and responsibilities of the Head Nurses at Westmount, so as to make their inclusion in the bargaining unit no longer appropriate. In the earlier decision, as in the Sudbury and District Hospital case, supra, it was obvious that no meaningful managerial authority had yet become focused at the level of Head Nurse (or its equivalent). The mere scheduling and assigning of work, a responsibility of Head Nurses even at the time of the earlier examination, has historically been recognized as a typical "group leader", rather than "managerial", function. Beyond this, the Head Nurses at Westmount carried out very little significant action affecting the conditions of employment of their staff without some form of consultation with their superiors, and this is reflected in the earlier transcript and Board decision. It was clear that effective decision-making was centered above the rank of Head Nurse.
That has now been substantially altered. The Head Nurse now can clearly grant time off, without conferring with anyone, for a period of three days or less. Overtime for staff to complete assignments may also be required without consultation, and it is now the Head Nurse whose signature is required on the pay authorization, unless she is absent. In fact, all monitoring of attendance is now in the hands of the Head Nurse. The time-clocks in use for members of the bargaining unit at the time of the earlier decision have been dispensed with, and it is the Head Nurse alone who is responsible for maintaining the full attendance record, which she then admits directly to Payroll rather than through the Director of Nursing. The Head Nurse now has an office of her own, away from the nursing station, and spends substantially less time than she did previously in direct patient care. While evaluations of staff were performed from time to time in the past, these have now been regularized, and have been demonstrated to form at the very least the basis on which probationary employees are retained or not, or continued on further probation. In addition, the Head Nurse is now, at least nominally, the first step in the grievance procedure.
The meetings which the Head Nurse now attends appear to differ significantly from those considered by the Board in 1976. The weekly meetings already alluded to discuss matters which regularly include staffing or disciplinary problems. These are confidential matters of the type which can raise a conflict of interest. There are now, in addition, meetings at the conclusion of negotiations, and from time to time, to review the terms of the collective agreement and discuss management's interpretation. While this involvement, as well as a nominal role on behalf of the employer in the grievance procedure, is, as the Hydro Electric Commission for the Borough of Etobicoke case, [1981] OLRB Rep. Jan. 38 points out, insufficient on its own to establish the kind of effective control necessary to signify a "managerial" person, such circumstances do at least provide some insight as to how the individuals are being perceived and treated by either party. They represent, in effect, at least some of the "trappings" of management. The present case goes further, as well, as the Head Nurses are also now made party to meetings leading up to negotiations at which current bargaining developments amongst hospitals are discussed and commented upon, and input for changes is solicited.
On the subject of hiring, firing and discipline, the new job description provides that the Head Nurse is: "responsible for the appointment, transfer, promotion, demotion, discharge or discipline on all nursing personnel assigned to [her] unit". Mrs. Gray testified that she has hired the registered nurse and two nurses' aides since the new job description came into effect in June of 1980. In all three cases the applicants were first screened by the nursing office, and then hired if Mrs. Gray, following an interview with them, gave her approval. Mrs. Gray testified that she has not yet had occasion to suspend or discharge anyone. As the Board noted again in Sudbury and District Health Unit, supra, at paragraph 5: "It is not sufficient that an individual has 'paper powers' contained in a job description, or a 'managerial' job title, if managerial functions are not actually exercised". That comment, however, was not meant to suggest that every power enumerated in a job description must be exercised before the Board will believe it exists. As here, for example, an individual need not first go out and fire one of her fellow members before the Board will find she has been given that authority, and is accordingly now a member of management. Rather, the Board was indicating that an employer cannot rely on a status or change in status contained only on paper, when that paper-statement is inconsistent with the kind of authority that the individual is generally being allowed to exercise in practice. In the Sudbury and District case, for example, the "new" management structure had not yet been implemented or even fully discussed with the participants, and the powers relied upon, on all of the evidence, could not be found to exist. In the present case, the changes in authority have clearly been communicated to the Head Nurses and implemented, and that authority has at this point been exercised in a sufficient number of areas to demonstrate to the Board that a real delegation has in fact taken place.
On the basis of the evidence before it, the Board in this case finds that the duties and responsibilities of the Head Nurses at Westmount Hospital have changed to such an extent that the Board's prior determination is no longer applicable. The Board further finds that the Head Nurses are not "employees" within the meaning of The Labour Relations Act, by virtue of the exclusionary provisions of section l(3)(b) of the Act.