1021-81-R Ontario Nurses' Association, Applicant, v. Manitoulin Nursing Home, Respondent.
BEFORE: R. O. MacDowell, Vice-Chairman, and Board Members W. Gibson and O. Hodges.
APPEARANCES: Dan Anderson for the applicant; W. E. Graham, L. Williams and H. Johnson for the respondent.
DECISION OF THE BOARD; September 2, 1981
This is an application for certification.
The Board finds that the applicant is a trade union within the meaning of section l(l)(n) of The Labour Relations Act.
There are five individuals potentially affected by this application. All five are registered nurses, employed by the respondent on a part-time basis. These five individuals comprise the respondent's nursing staff. The respondent contends that none of them are "employees" within the meaning of The Labour Relations Act, because they all exercise "managerial functions". In consequence, the respondent alleges that none of its nursing staff are entitled to participate in collective bargaining.
The respondent employer's Reply to the Application for Certification did not raise any issue concerning the employee status of the members of its nursing staff. There were no particulars concerning their duties and responsibilities or the functions which the respondent claimed were of a "managerial" character. In the circumstances, it seemed appropriate to ask the respondent to set out the facts upon which it intended to rely to support its position, and to determine whether any of those facts were disputed by the applicant. There was no point in following the Board's usual practice of appointing a Labour Relations Officer, or undertaking a protracted inquiry, if the nature of the nurses' duties was not in dispute. Nor was the issue raised by the respondent a novel one. There have been literally dozens of cases involving the status of nurses employed by health units, hospitals, and nursing homes (see, for example: Re Peterborough Civil Hospital, [1973] OLRB Rep. Mar. 154; Essex Health Association, [1970] OLRB Rep. Nov. 824; The Cottage Hospital, [1980] OLRB Rep. Mar. 304; Toronto East General and Orthopedic Hospital, [1974] OLR B Rep. Oct. 671 and the numerous cases noted in Sack and Levinson Ontario Labour Relations Board Practice at page 33 of the text and page 13 of the cumulative supplement). It would serve little purpose to undertake a protracted inquiry, substantially delaying the result in these proceedings, if the facts were not in dispute, and the Board was able on the basis thereof to render an immediate decision on the question of whether, in its opinion, the individuals affected by this application exercise managerial functions.
The statutory provision relevant to this matter is as follows:
(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.
Each of the cases to which we have referred, of course, turns on its particular facts; however, their general thrust is that the Board must be careful when assessing a professional person such as a registered nurse, to distinguish between duties which emanate from that individual's professional training, and those which in fact reflect managerial authority. In Essex Health Association (supra) the Board noted at page 825:
Professional or semi-professional employees such as head nurses and 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 on may expect from a journeyman concerning the progress of the apprentice. The head nurses report but they do not initiate independent action with respect to the employment status of others who must follow the assignments given by the head nurse. It is also interesting to note that the assistant head nurses, whom the parties have agreed are included in the bargaining unit, perform substantially the same functions as the head nurse on the shifts not worked by the head nurse.
In Peterborough Civic Hospital, [1973] OLRB Rep. Mar. 154, the Board further commented on factors relevant to the assessment of the employee status of a registered nurse, in a long passage to which we might usefully refer.
"9. Determinations in the white collar area have also become more difficult. We have indicated we must be cautious in using the industrial model to make assessments about non-industrial or white collar situations. However, we now have greater experience with the white collar section and we are able to draw on our specific experience in that area. In the non-industrial area we are now finding that the decision-making process and control of employees varies considerably. Like the industrial situation, personnel policies are usually developed by a personnel department, but the elements of management are usually dispersed throughout the organization. Real control and managerial functions are easily ascertained at the top of the management pyramid, but at the lower levels managerial functions are filtered through the organization in such a way that they are not easily ascertainable. Many non-industrial situations have developed a collegial decision-making process which reflects that type of organization. For example, technicians or draftsmen may work with an engineer in a white collar situation in such a manner that they participate in the decision-making process. Again, the nature of their work is such that they move from project to project so that it is difficult to ascertain who controls the employees; see e.g. The Hydro-Electric Power Commission of Ontario (1969) August OLRB Mthly. Rep. 669.
This type of situation also occurs in hospitals. As indicated in this case there may be a team approach to patient care. 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) February OLRB Mthly. Rep. 1283. It would be incorrect to view such a role as managerial and thereby render nurses managerial within the meaning of The Labour Relations Act.
Head nurses stand at the very boundary between the employee group and management. The head nurse in this particular case is indicative of the role usually played by head nurses. 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 management 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 is merely implementing policies decided at a higher level. This implementation should not be confused with the decision-making or 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. The duty to manage and the concept of a managerial function requires a corresponding and correlative responsibility. The head nurse in this case does not have that type of responsibility that one envisions as being managerial. She is not akin to the early foreman that we have spoken about, nor does she have duties that are incompatible with placing her in the bargaining unit. There is no conflict between the duty that she owes to management and her being a member of the bargaining unit. .
The general comments are equally apposite in the present context, for if the Board is not careful to distinguish incidental supervisory or coordinating functions consequent upon an individual's skill, training, experience, or seniority, many high skilled, professional, technical or senior employees might be deprived of the right to engage in collective bargaining. It is worth recalling the purpose of the managerial exclusion itself. That purpose was succinctly stated by the British Columbia Labour Relations Board in Corporation of the District of Burnaby, [1974] 1 Can. LRBR at page 3:
"The explanation for this management exemption is not hard to find. The point of the statute is to foster collective bargaining between employers and unions. True bargaining requires an arm's length relationship between the two sides, each of which is organized in a manner which will best achieve its interests. For the more efficient operation of the enterprise, the employer establishes a hierarchy in which some people at the top have the authority to direct the efforts of those nearer the bottom. To achieve countervailing power to that of the employer, employees organize themselves into unions in which the bargaining power of all is shared and excercised in the way the majority directs. Somewhere in between these competing groups are those in management on the one hand an employee equally dependent on the enterprise for his livelihood, but on the other hand wielding substantial power over the working life of those employees under him. The British Columbia Legislature, following the path of all other labour legislation in North America, has decided that in the tug of these two competing forces, management must be assigned to the side of the employer.
The rationale for that decision is obvious as far as the employer is concerned. It wants to have the undivided loyalty of its senior people who are responsible for seeing that the work gets done and the terms of the collective agreement are adhered to. Their decisions can have important effects on the economic lives of employees, e.g., individuals who may be disciplined for "cause" or passed over for promotion on the grounds of their "ability". The employer does not want management's identification in the activities of the employees' union.
More subtly, but equally as important, the exclusion of management from bargaining units is designed for the protection of employee organizations as well. An historic and still current problem in securing effective representation for employees in the face of employer power is the effort of some employers to sponsor and dominate weak and dependent unions. The logical agent for the effort is management personnel. One way this happens is if members of management use their authority in the work place to interfere with the choice of a representative by their employees. However, the same result could happen quite innocently. A great many members of management are promoted from the ranks of employees. Those with the talents and seniority for that promotion are also the very people who will likely rise in union ranks as well. In the absence of legal controls, the leadership of a union could all be drawn from the senior management with whom they are supposed to be bargaining. If an arm's length relationship between employer and union is to be preserved for the benefit of employees, the law has directed that a person must leave the bargaining unit when he is promoted to a position where he exercises management functions over it."
What functions do the nurses exercise in the instant case? Do they make decisions which affect the economic lives of their fellow employees (non-nursing staff) thereby raising a potential conflict of interest with them? For example, do they have the right to hire, fire, promote, demote, grant wage increases or discipline employees? All of these are indications of managerial authority, and the exercise of such authority would clearly be incompatible with participation in trade union activities as an ordinary member of the bargaining unit. (In addressing this issue we will assume, without finding, that the respondent's assertions of fact are correct).
The respondent told the Board that the initial selection and hiring of nurses aides and health care aides is done by the Director of Nursing. The part-time nursing staff may assist in the employee orientation and may give a verbal opinion as to how the new employee is doing; but there are no instances in which such employees have not been retained, and in any event, that decision clearly rests with the Director of Nursing. The nursing staff have never been involved in disciplining employees. In two instances, an incident was reported to the Director of Nursing (a failure of an employee to appear for work as scheduled, and an employee apparently intoxicated) and it was the Director of Nursing who issued the written warning. There have been no other incidents of discipline in which the nurses were even remotely involved. Nor are they involved in scheduling or granting time off. Employees work in accordance with a master rotation and, if they are unable to switch shifts to accommodate their needs, they approach the Director of Nursing for a leave of absence. Nurses have never had any involvement with collective bargaining or the grievance procedure. They have no impact on employee salaries. They do fill out a pro-forma "evaluation" form but these are submitted to the Director of Nursing for her consideration. The respondent could cite no instance of the kind of adverse impact on employees being "evaluated" which would give rise to the conflict of interest which section 1(3)(b) was designed to avoid. In short, while the part-time nursing staff no doubt has a special role to play on the "health care team" and performs certain limited supervisory and coordinating functions associated with their professional training, it cannot be said that the entire nursing staff "exercises managerial functions" vis-a-vis the non-registered health care employees and must therefore be excluded from collective bargaining.
Assuming, without finding, that the respondent's statement of facts is correct, it is the opinion of the Board that the employees affected by this application do not exercise managerial functions within the meaning of section 1(3)(b) of The Labour Relations Act. Of course, if the duties and responsibilities of one or more of the nurses change, so that they do, in fact, begin to exercise real managerial authority over their fellow employees, then either party is free to seek a clarification of their status pursuant to section 95(2) of the Act.
Having regard to the representations of the parties the Board finds that all registered and graduate nurses employed in a nursing capacity by Manitoulin Nursing Home, Gore Bay, Ontario, save and except the Director of Nursing and persons above the rank of Director of Nursing, constitute a unit of employees appropriate for collective bargaining.
The Board further finds that more than fifty-five per cent of the employees in the bargaining unit, at the time the application was made, were members of the applicant on August 20, 1981, the terminal date fixed for this application and the date which the Board determines pursuant to section 92(2)(j) of the Act, to be the time for determining membership under section 7(1) of the Act.
A certificate will issue to the applicant.