Ontario Nurses' Association v. Oakwood Park Lodge, 1982 CanLII 1062

[1982] OLRB Rep. January 84

0557-80-R Ontario Nurses' Association, Applicant, v. Oakwood Park Lodge, Respondent.

BEFORE: R. O. MacDowell, Vice-Chairman, and Board Members B. K. Lee and F. W. Murray.

APPEARANCES: Dan Anderson, Katherine Moore, Marilyn Jacobs and Nicky Boyd for the applicant; L. Bertuzzi, R. Stevenson and M. Cox for the respondent.

DECISION OF THE BOARD; January 28, 1982

I

1. This is an application for certification. The applicant union seeks to be certified as the bargaining agent for a group of registered nurses employed at the respondent's nursing home in Niagara Falls, Ontario. The respondent contends that its entire complement of nurses — both full-time and part-time — exercise "managerial functions", and, in consequence, are not "employees" within the meaning of the Act. In the respondent's submission, they are not entitled to engage in collective bargaining. The applicant, on the other hand, argues that the nurses' functions do not differ significantly from those of many other nurses in other hospitals, nursing homes and health units throughout Ontario, and that to find that the nurses in the instant case are not "employees", would be inconsistent with both the results, and the principles, enunciated in the many Board decisions involving nurses in these other institutions.

2. By a decision dated October 29, 1980, the Board decided that it would inquire into the duties and responsibilities of the subject individuals, notwithstanding an earlier decision of the Board (in 1977) between different parties concerning their status. An application for judicial review of that decision was dismissed in early November 1981. Meanwhile, in accordance with its usual practice, the Board appointed a labour relations officer to conduct an inquiry and report to the Board.

3. The parties were agreed that the evidence of two nurses — Angela Bain and Margaret Ballam — would be representative of all of the nurses in the proposed unit. Subject to this agreement, both parties had a full opportunity to lead their evidence respecting the matters in dispute. Following the release of the examiner s report (which includes some 200 pages of evidence and exhibits), the parties were also extended the opportunity to make submissions concerning the opinion which, in their view, the Board should reach as a result of the evidence before it.

4. In view of the circumstances of this case and the submissions of the parties, it may be useful to refer initially to the jurisprudential background against which this decision must be made. This is not the first time that the Board has had to deal with the status of nurses, nor is it the first time that an employer has argued that all of the nurses in its employ must be excluded from collective bargaining because of their relationship with less skilled members of the health care team (who in this case, it might be noted, are in a separate bargaining unit, represented by another union). Similar submissions were made in: Corporation of the City of Hamilton (Macassa Lodge), [1972] OLRB Rep. July 697; Villacentres Ltd. [1973] OLRB Rep. Dec. 646; Crescent Park Lodge, [1978] OLRB Rep. Nov. 981; Peel Manor Home for the Aged, [1979] OLRB Rep. Jan. 52; Belvedere Home for the Aged, [1978] OLRB Rep. Oct. 890; and Regional Municipality of Halton, [1980] OLRB Rep. Nov. 1684. In each of these cases, the Board rejected the employer's assertion that his entire complement of nurses exercised managerial functions; and, in each case, the Board applied, or built upon, the approaches developed in earlier "health care sector" cases such as: Peterborough Civic Hospital, [1973] OLRB Rep. March 154; Ajax and Pickering Hospital, [1970] OLRB Rep. Feb. 1283; Essex Health Association, [1970] OLRB Rep. Nov. 824; and Toronto East General Orthopaedic Hospital, [1974] OLRB Rep. Oct. 671. It may be useful therefore, to review the background of section 1 (3)(b) of the Act, and the way in which the Board has approached its application in the health care field.

5. Section l(3)(b) of the Act currently reads as follows (emphasis added):

1(3) Subject to section 90, 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.

6. Section l(3)(b) has been in the statute in its present form since 1957, when, following the decisions of the Supreme Court in Re O.L.R.B., Bradley et al and Canadian General Electric Co. Ltd. 1957 CanLII 114 (ON CA), [1957] O.R. 316(C.A.) rev'g 1955 CanLII 162 (ON HCJ), [1956] OR. 437 (O.H.C.), the Legisla­ture amended the section to clarify the Board's jurisdiction and authority. The "old" wording read:

(3) For the purposes of this Act, no person shall be deemed to be an employee, .

(b) who is a manager or superintendent or who exercises managerial functions or is employed in a confidential capacity in matters relating to labour relations.

This change in statutory language did not change the basic problem to which section 1 (3)(b) is addressed.

7. The purpose of section 1 (3)(b) is to ensure that persons who are within a bargaining unit do not find themselves faced with a conflict of interest as between their responsibilities and obligations as managerial personnel, and their responsibilities as trade union members or members of the bargaining unit. Collective bargaining, by its very nature, requires an arm's length relationship between the "two sides" whose interests and objectives are often divergent. Section l(3)(b) ensures that neither the trade union, nor the employer and its management team, need be concerned that its members will have "divided loyalties". This purpose has been succinctly stated by the British Columbia Labour Relations Board in Corporation of the District of Burnaby, [1974] 1 Can. LRBR 1 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 exercised 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 seeking 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."

Similar observations concerning the purpose of section l(3)(b) have been made by the Ontario Board. In Toronto East General Orthopedic Hospital, (supra) for example, the Board had this to say:

"The section l(3)(b) exclusions represent a legislative recognition that viable collective bargaining requires that employers be able to effectively participate in that adversary process known generally as labour relations. It was felt that effective participation in the labour relations process — a process that centres on collective bargaining — requires some assurance of security in the ranks of management. Moreover, the inclusion of independent decision-makers, particularly decision-makers in the realm of labour relations, in the bargaining unit might compromise the judgment of such individuals. But the section has not been an easy provision to apply. Because of the complexities of the work environment and the need to balance the rights of employees to join and fully participate in a trade union against the employer's interest in maintaining its labour relations, the Board has had to make very difficult judgments in drawing the line that demarcates management from the bargaining unit; (See generally The Corporation of the District of Burnaby and CUPE, Local 23 [1974], Can. LRBR 1 (B.C.); Reed, White-Collar Bargaining Units under the Ontario Labour Relations Act (1969) p. 27. For the United States approach to these exclusions see Note, Labour Law - The National Labour Relations Board Redefines and Restricts the Scope of Managerial Employee Classification (1973) 26 Vand. L. Rev. 850). But because The Labour Relations Act must be interpreted as an Act in the public interest, it is incumbent on persons who seek to exclude employees from the scheme of the Act to prove that such persons exercise managerial functions. (See Bakery & Confectionery Workers I. U.A. v. Salmi 1956 CanLII 429 (ON HCJ), 6 D.L.R. (2d) 193).

8. These concerns underlie and help to explain the Board's decisions under section 1(3)(b); however, the Labour Relations Act itself does not contain a definition of the term managerial functions", nor are there any specified criteria to guide the Board in forming its opinion. The task of developing such criteria has fallen to the Board, and in recognition of the fact that the exercise of managerial functions can assume different forms in different work settings, the Board has, over the years, evolved various general approaches to assist it in its inquiry. In the case of so-called "first line" managerial employees, an important question is the extent to which they make decisions which affect the economic lives of their fellow employees thereby raising a potential conflict of interest with them. Thus, the right to hire, fire, promote, demote, grant wage increases or discipline employees are all manifestations of managerial authority, and the exercise of such authority is clearly incompatible with participation in trade union activities as an ordinary member of the bargaining unit. In the case of more senior managerial personnel whose decision-making may have a less direct or immediate impact on bargaining unit employees, the Board has focused on the degree of independent decision-making authority over important aspects of the employer's business. It is evident that persons making significant executive or business decisions should be considered a part of the management team" even though they do not exercise the kind of direct authority over employees which is characteristic of a first line foreman.

9. As we have already noted, a perusal of the Board's jurisprudence in the health care sector, and elsewhere, reveals the special significance accorded to the authority to make decisions which impact adversely on an employee's wages, benefits or job security. It is that kind of decision-making which the Board has always regarded as the exercise of a "managerial function'' which justifies an exclusion from collective bargaining on the ''conflict of interest” rationale set out above. Indeed, in Ontario, the Board has extended the ambit of section l(3)(b) beyond the actual or ultimate decision-maker, to those who make what the Board has called "effective recommendations" which materially affect the conditions of employment of those supervised. [See: McIntyre Porcupine Mines Ltd., [1975] OLRB Rep. April 261, and Inglis Ltd., [1976] OLRB Rep. June 270; and for a contrary view of the effect of similar provisions in the Canada Labour code, see: British Columbia Telephone 76 CLLC 9116,015 at page 467]. In framing the test in this way, the Board has not ignored the real distinction between a person recommending or influencing a decision, and the one ultimately making it. Supplying information or "input" is not the same as deciding, and a person who does only the former has a much weaker claim when it is suggested that he is exercising "managerial functions". Modern business organizations — especially those employing professionals, —encourage the free flow of information and ideas from subordinates to superiors. Consultation and involvement in the decision-making process, improve communication in both directions, clarify the employer's problems and objectives, improve employee morale, and make optimum use of employee ingenuity or expertise. "Participatory management styles" have become a prevalent technique in large organizations for reducing employee alienation and increasing commitment to the goals of the employer. And, in small organizations, consultation is inevitable because of the small number of individuals who must work together effectively if the goals of the organization are to be realized. One should not conclude however, that the existence of consultation, or an apparent "democratization" of decision-making, means that real managerial authority has percolated downwards. On the other hand, there will also be situations where individuals make serious recommendations about the employment situation or security of fellow employees. If these recommendations, on the evidence, are usually acted upon to the possible detriment of those employees, then it can be said that the person making the recommendation is, if not the actual decision-maker, then one decisively influencing that decision and thereby exercising a significant influence over the livelihood or economic destiny of his co-workers. Such influence carries with it the potential for conflict to which section l(3)(b) is directed. It remains a question of evidence whether an individual's authority extends this far.

10. Unfortunately, as the Board noted in Toronto East General Orthopaedic Hospital, the line between "employees" and "management" is frequently very difficult to draw. In each case, the Board attempts to ascertain the degree of effective control which the alleged "manager" has over his "subordinates' " employment relationship — bearing in mind the employees' right to collective bargaining, and the potential for the kind of conflict which section l(3)(b) was designed to avoid. But there is no litmus test which is universally applicable and dictates the result in every situation. In assessing each case, the Board must have due regard to the nature of the industry, the nature of the particular business, and the individual employer's organizational scheme. Moreover, organizations, collective bargaining structures and the Board's own jurisprudence are all in a process of evolution. In Peterborough Civic Hospital, [1973] OLRB Rep. March 154 the Board put it this way:

"In earlier days when this Board was formulating criteria for determining managerial functions it was confronted in the majority of cases with industrial situations. Labour relations has now evolved to the point where we are presently being confronted with increasing applications for white collar bargaining units, particularly in municipalities and other government bodies and also at Universities.

The organization of industry in many instances has evolved to the point where it differs from the period when the Board was first formulating its views about managerial functions. Some account must be taken of the changing situation. Further, while many white collar bargaining units are similar to bargaining units in the industrial sector, there are many instances where the industrial model, which we have developed at this Board, is not applicable to the white collar model. It is therefore necessary that our decisions with respect to bargaining units and managerial personnel reflect the new and evolving situations rather than reflect an oversimplified application of the former industrial criteria to the white collar area.

That approach is not unusual, and we have recognized that certain industries and certain areas require separate treatment. For example, in the construction industry and in the printing trades, working foremen are generally included in the bargaining unit to reflect the peculiarities of those industries, whereas in the industrial situation foremen are generally excluded from the bargaining unit; see e.g. Federal Packaging and Partition Company Limited [1971] OLRB Rep. July 448 at p. 450.

We have long recognized that in the early stages of industrial organization the foreman was a key person in the management hierarchy. Persons looking for a job came to the foreman, who had the right to hire, to fire, to grant raises and to assign work. The foreman was effectively "the king of the shop" insofar as the employees were concerned. He had a great deal of discretion and he was able to make decisions which greatly affected the welfare of the employees. Moreover, he exercised considerable control over their day to day work life. The evolving position of the foreman in industry is more fully described in the Spruce Falls Power and Paper Co. Limited case 47 CLLC 9116,489, and it is not necessary for us to describe that situation any further.

However, a very important and significant factor in arriving at decisions about whether foremen were managerial was the conflict of interest theory which recognized that foremen owed a duty to management to control and discipline employees, and if the foreman was placed in the bargaining unit so as to become a union member, it would seriously impair his management function. As such, the duty to be owed to management would be incompatible with the trade union interests that he held in common with his fellow employees; cf. Ferranti-Packard Electric Limited[1968] OLRB Rep. Sept. 572.

The evolution of industrial organization and the advent of collective bargaining altered the position of the foreman in many situations. He is no longer the "king of the shop"; hiring and firing are done by the personnel department; the work may be controlled by the terms of a collective agreement or where there is no collective agreement the work may be controlled in a similar fashion. The result of the many changes in the hierarchal structure has diminished the foreman's responsibility to the point where he may be left with the vestiges of power that he once exercised and where he previously stood visibly with management he now stands on the periphery between being a member of management and being an employee. In a limited fashion he may still continue to exercise managerial functions and it is the usual rule of thumb in describing bargaining units to place a foreman in the management hierarchy.

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 reflect 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] OLRB Rep. Aug. 669.

Indeed, in Toronto East General Orthopaedic Hospital, supra, the Board emphasized both the difficulty in making managerial status determinations, and the need to reconsider and develop its approaches in light of the changing industrial relations environment:

"Drawing the line is a particular problem where individuals are assigned more than one function, to varying degrees, or where actual decision-makers rely very heavily on the opinion of experienced and highly trained personnel. The Board then has to be very cautious in balancing the aforementioned interests of employees against those of employees. Otherwise fragments of an enterprise's managerial function could be distributed over a great number of individuals within the enterprise or decision-makers might rely on information pooled from a great swath of lower line personnel, thereby denying legislative coverage to a large sector of the work force. Hence the Board has ruled that a person must be "primarily engaged in supervision and direction or other employees. [with] . . . effective control over their employment relation-ship", [sic] (see Falconbridge Nickel Mines Ltd. [1966], OLRB Rep. Sept. 379. When assessing a person's duties and responsibilities the Board does not look at any one function in isolation but views all functions in their entirety: (Falconbridge Nickel Mines Ltd., supra), moreover, titles alone

are not of much assistance in determining what a person's functions really are; (see United Steelworkers, Local 2890 v. R. McDougall Co. Ltd., [1943] OWN 743). Similarly, the Board has ruled that unless a person has independent discretionary powers rather than merely incidental reporting functions which are subject to the discretion and authority of higher persons in management, there is no reason to exclude such a person from collective bargaining; (Falconbridge Nickel Mines Ltd., supra) and an incidental or isolated involvement in some aspect of labour relations is not sufficient to exclude a person from collective bargaining; (Falconbridge Nickel Mines Ltd., supra). With regard to managements’ reliance on the advice of employees who possess highly technical skills and knowledge, the Board has said the following: (CUPE, Local 1000 and The Hydro-Electric Power Commission of Ontario [1969] OLRB Rep. Aug. 669.

'In addition, the fact that managerial persons rely on the expertise of senior employees or employees who possess highly technical knowledge and skills, and act upon the advice of such persons, does not change the nature of the functions exercised by the employees. The fact that an expert employee may recommend a course of action which a member of management may decide to follow does not of itself make the employee's recommendation a managerial function. Although a recommendation may be the basis of the decision taken, however, it is the decision to implement the recommendation which can correctly be described as the managerial function.'

But because of the dynamic contexts in which the Canadian labour relations system resides, (see John T. Dunlop, Industrial Relations Systems (1958) p. 7) the Board must constantly reappraise its standards and definitions as a result of its unique role in provincial labour policy formulation; (see Note, Labour Law - The National Labour Relations Board Redefines and Restricts the Scope of Managerial Employee Classification, supra, p. 862). For example, accelerated corporate growth and a rapid advance in technology have given rise to a greater concentration of economic power on the side of management and a concomitant bureaucratization of jobs that involve less supervisory duties, public contact and upward mobility. Nowhere do we see this trend more prevalent than in white collar sector of the Canadian labour market; (See generally, S. Goldenberg, Professional Workers and Collec­tive Bargaining, Task Force on Labour Relations (1968); F. Bairstow, White Collar Workers and Collective Bargaining, Task Force on Labour Relations (1968); J. Crispo ed., Collective Bargaining and the Professional Employee (1966); The Current Industrial Relations Scene in Canada, Industrial Relations Centre, Queen's University (1974) p. 5-MP-9); and many legislatures in jurisdictions where labour boards may have failed to be sufficiently appreciative of such contextual changes have now specifically provided for the extension of collective bargaining to these people; (see Canada Labour Code, R.S.C. 1970, c. L-l, s. 125(4), s. 107; Labour Code of British Columbia, S.B.C. 1973, c. 122, s. 1, s. 47;

Manitoba Labour Relations Act, C.C.S.M., c. L-l0, enacted by S.M. 1972, c. 75, s. l(k)(i), s. 2(2). The Ontario Board must be very conscious of the rapid growth in white collar employment and consider the implications it has to their decision-making function."

11. As collective bargaining extends to technical and professional employees (engineers, for example, were specifically included in the Act only in 1971), the Board had to deal with increasingly complex job hierarchies and reporting structures. In a professional context, the members of the bargaining unit are likely to be highly trained and responsible persons who are largely self-motivated, capable of exercising independent judgment and requiring little external direction in the performance of their regular duties. Such direction as is necessary will often be generated internally through group discussion, evaluation by peers, or "collegial" modes of decision-making; and one should not expect the managerial structure appropriate for professionals to be the same as that for manual workers. The technical or professional employee will have a special relationship with management, with fellow professionals, and with the less skilled employees at lower levels on the job hierarchy. It is the latter relationship which is material to this case.

12. Persons who exercise skills which have been acquired through years of training or experience will necessarily have considerable influence over those who are less trained or experienced. The most highly trained or skilled employees will routinely supervise the work of others, and it is part of their normal job functions to train and direct such persons, and to instill good work habits. Frequently, it is only the most senior or experienced employees who will fully understand the technical requirements of the job and, accordingly, it is they who will allocate work between themselves and the other employees in order to accomplish the task in a safe and efficient manner. It is part of theirjob to ensure that appropriate techniques are being applied and that the work is being done properly. Their expertise and technical judgment are an integral part of the group effort. In such circumstances, it is inevitable that they will have a special place on the "team" and will have a role to play in coordinating and directing the work of other employees — but this does not mean that they exercise managerial functions in the sense contemplated by section l(3)(b) and must therefore be excluded from the ambit of collective bargaining. To adopt so rigid a view would deny thousands of skilled or professional employees the right to engage in collective bargaining, simply because they typically work in semi-autonomous work groups which include a variety of individuals with lower levels of skill, education or training (in the case of "master craftsmen", these would include "journey-men", "apprentices", and assorted "helpers"; and in the case of "professionals", a variety of "technologists", "technicians", assistants and aides). To hold that persons with higher levels of education or training (whether acquired on the job or otherwise) exercise "managerial functions" with respect to lesser skilled or unskilled individuals at lower levels of the job hierarchy would be tantamount to saying that the Act has no application to much of highly trained and educated work force which is characteristic of the emerging high technology industries. This is not to deny that professional or technical employees may also exercise managerial functions" within the meaning of section l(3)(b). It is simply that the focus should be upon those functions which have a direct and provable impact (positive or negative) upon the terms and conditions of employment of the alleged subordinate employees. It is that kind of function which raises the "collective bargaining" conflict to which section 1 (3)(b) is addressed, and it is this collective bargaining purpose which must be kept in mind when the Board is exercising the broad authority granted to it under section 1(3)(b), and is forming its "opinion" in particular cases.

13. Of course, these themes are not new to the health care industry. Nurses were one of the first professional groups to organize and engage extensively in collective bargaining; and it is not surprising therefore, that many of these issues were first canvassed in cases involving nurses or other health care professionals. Often the person in question was a "head nurse", "charge nurse" or other person "in charge" of a hospital ward, and responsible for supervising the activities of the various R.N.s, R.N.A.s, health care aides, orderlies, kitchen staff, and so on, who made up the "health care team". These "head nurse" cases usually arose in a hospital setting, and to this extent are distinguishable from the instant case; but the significant feature of these cases which is equally relevant here, is the extent to which the Board focused on the special role of professional employees, and declined to equate supervisory or coordinating duties inherent in that role, with managerial functions. Thus, in Essex Health Association (supra) the Board wrote:

"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 one 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."

This notion that certain supervisory functions are inherent in a nurse's professional respon­sibilities is stated explicitly in the Standard of Nursing Practice for Registered Nurses and R.N.A.s issued by the Ontario College of Nurses. Those standards envisage that a nurse will have supervisory and professional responsibilities vis-a-vis other employees providing health care:

"The Registered Nurse performs acts requiring substantial specialized knowledge, skill and judgement, in assessing health needs, and in planning, implementing and evaluating nursing care. These include health education, promotion and maintenance of health, prevention of illness or injury, early case-finding, rehabilitation and implementation of the prescribed medical regime. These acts are supportive and restorative to the health and well-being of individuals, families and communities and are performed either independently or in cooperation with other members of the health team.

The registered nurse is responsible for provision of effective supervision of the registered nursing assistant and is accountable for the exercise of judgement in delegation of activities to the registered nursing assistant and others who contribute to the provision of nursing care.

The Registered Nursing Assistant performs acts requiring basic knowlege, skill and judgement in planning, implementing and evaluating nursing care for individuals whose conditions are stabilized. The registered nursing assistant assists the registered nurse in giving nursing care to individuals of all ages whose conditions are not stabilized.

The registered nursing assistant contributes to the continuing assement of health needs of individuals for whom care is provided.

The registered nursing assistant is responsible to the registered nurse for activities delegated by the registered nurse.”

Standard II The registered Nurse participates as a member of the health team.

The registered nurse:

1Collaborates with other members of the health team in the planning/provision of care.

2Co-ordinates nursing care with other aspects of health care.

3Refers and reports pertinent information to other members of the health team.

Standard III The Registered Nurse fulfills his! her responsibilities as a member of the nursing discipline.

A. As a member of the nursing team the registered nurse:

1. Collaborates with other members of the nursing team.

2. Delegates appropriate activities to the registered nursing assistant and others who contribute to the provision of nursing care based on an understanding of that person's role.

3. Provides effective supervision for the registered nursing assistant and others to whom he/she

delegates activities.

Nurses and Co-Workers

The Nurse sustains a cooperative relationship with co-workers in nursing and other fields.

The nurse takes appropriate action to safeguard the individual when his is endangered by a co-worker or any other person.

Standard III The Registered Nursing Assistant fulfills his/her responsibilities as a member of the nursing discipline.

A. As a member of the nursing team the registered nursing assistant:

1. Collaborates with other members of the nursing team.

2. Is responsible to the registered nurse for activities delegated to him/her by the registered nurse.

3. These standards issued by the College of Nurses (which exercises its authority pursuant to The Health Disciplines Act R.S.O. 1980 c. 196) expressly recognize both the "team approach" to health care, and the responsibility of the R.N. for the supervision of the R.N.A.s to whom may be delegated specific responsibilities. Similarly the standards recognize the professional responsibilities of the R.N.A. to perform in accordance with the instructions of the R.N. But the welfare of the patient is of paramount importance, and it is expected — as a professional responsibility — that a nurse will take such action as he/she deems is required when the patient's "care is endangered by a co-worker or any other person". In these circumstances, directions are given and action taken because she is a nurse, and quite apart from any "managerial" authority of the kind with which section 1(3)(b) is concerned.

4. The notion that effective health care requires a "team approach" has not been absent from the Board's jurisprudence. On the contrary, the fact that health care could best be provided by a "team" and that the members of that team would have to have their functions co-ordinated by someone, was expressly recognized in Toronto East General Orthopaedic Hospital (supra):

But this is not to say that every employee goes his or her own way without regard to the necessary co-ordination needed within large institutions such as hospitals. Each employee's activities, while quite independently administered to the patient, must be co-ordinated throughout the hospital with the related activities of others. For instances, nurses must have regard to the duties of other nurses, to the duties of other nursing assistants, to the duties of ward aides and they must have regard to the directions of doctors caring for the various patients. 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. This Board is dealing with assistant head nurses employed by Toronto East General and Orthopaedic Hospital Inc. But it must be emphasized that mere co-ordination is an insufficient function to activate the exclusionary wording of s. l(3)(b); see The Faculty Association of Vancouver City College (Langara) and Vancouver City College, May 22, 1974, B.C. Labour Relations Board where Division Chairmen were included in the bargaining unit).

In Peterborough Civic Hospital (supra) these co-ordinating, monitoring and reporting functions were performed by the head nurses "in charge" of a ward, and were described by the Board this way:

"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. Again in this case, as in the Ajax and Pickering General Hosp ital case, supra, her very limited role indicates that she is not a member of management. For example, if an employee wants time off in excess of one hour the head nurse must consult her supervisor. Surely, if she were management she would have a greater hand in awarding time off. The type of limited responsibility permeates other areas as well and in our view her lack of responsibility indicates that she is not part of the management team."

(See also: Westmount Hospital [1976] OLRB Rep. Feb. 24; and St. Peters Hospital [1975] OLRB Rep. March 247.)

16. All of these cases, (as well as the nursing home cases referred to earlier) involved individuals who, in varying degrees were performing various supervisory or coordinating functions which historically or in other contexts might have been associated with managerial status. Such functions included: coordinating the work of others, ensuring that the work was done properly in a technical sense, checking and correcting it where necessary, scheduling, arranging for a "fill in" if a member of the team is absent, allowing an orderly or aide to go home a few hours early, giving an opinion on the proficiency, work habits, competence or compatibility of new or lesser skilled employees when asked to do so by a member of management, delegating or rearranging work assignments, calling in plumbers or maintenance persons to handle mechanical break-downs on "off-shifts", attempting to ensure compliance with the institutional "rules" laid down by management and admonishing or reporting an employee who did not comply, consulting with management on the running of the enterprise, and, even, on occasion, requiring an employee unfit to work to go home for the balance of the shift then reporting the incident to the director of nursing for disposition. Each case, of course, turns on its own facts, but their general thrust is the same: supervisory, coordinating, reporting, consulting and minor admonitory functions were not, in the opinion of the Board, (and in the context of this industry) considered to be "managerial functions". They did not signify the kind of effective control or authority over the employee and his employment relationship which justified exclusion pursuant to section l(3)(b). And in a professional context where "reporting" is part of an individual's professional responsibilities and the actual decisions are made by someone else (usually an "administrator" who may or may not be a professional himself) then the "effective recommendation test" referred to above must be carefully applied. (For specific comment on employee evaluations and the need for clear evidence of their impact see: Toronto East General Orthopaedic Hospital, supra, at 16; Ajax and Pickering Hospital, supra, at 91 17; Macassa Lodge, supra, at 91 19-10; St. Peters Hospital, supra, at 91 7-8; Regional Municipality of Halton, supra, at 91 10; and Sudbury and District Health Unit, Board File No. 2055-79-M decision released March 11,1981, unreported at paragraph 13.)

17. These general approaches, originally developed in a hospital setting, have also been applied in nursing homes where, as in hospitals, employers rely on registered nurses to perform health care and related supervisory responsibilities. But unlike the "head nurse cases", the nursing home decisions have focused more directly on the relationship between the R.N. and the less qualified members of the health care team, and have been much more predictable in their outcome. Save for Oakwood Park Lodge No.], none of the reported cases have accepted the argument that the home's entire complement of nurses — both full-time and part-time — must be excluded from collective bargaining by virtue of section l(3)(b) of the Act. In view of the reasons for decision given in these cases, and the numerous certificates issued in respect of nurses in nursing homes, there is considerable force to the applicant's claim that Oakwood Park Lodge No. I must be regarded as an exceptional case, somewhat at odds with the other cases arising in that sector. Moreover, it is by no means clear whether the evidence in Oak wood Park Lodge No. I was developed as fully as it was before us, or even that the various cases potentially bearing on the issues in dispute were raised before the Board. The decision is very short and cites none of the earlier decisions which are arguably relevant. However, it is on the basis of the established jurisprudence (including Oakwood Park Lodge No. 1) and the evidence led before us, that we must make our determination.

18. With this background, we turn to the facts in the instant case.

II

19. It will be useful to reproduce, at the outset, the printed job description which purports to describe the R.N.s' duties and responsibilities. That job description reads as follows:

"As a member of the management of Oakwood Park Lodge you have the responsibility to maintain discipline and efficiency on your shift and to enforce reasonable rules and procedures in this regard.

You have the authority to establish operating standards and procedures on your shift for the care, comfort and safety of the residents.

You have the authority to assign duties, transfer, remove from duty, suspend of otherwise discipline subordinate personnel on your shift. You have the authority to plan, direct and control the work of all subordinate personnel on your shift.

You are responsible for certain necessary operational decisions affecting the running of the nursing home such as arranging for snow removal, emergency repair work, scheduling replacement personnel.

You have the responsibility to recommend the hiring, transfer, lay-off, promotion, suspension or discharge of any employee subordinate to you.

You are required to report monthly to the D.O.N. or administrator on the performance, conduct and ability of all subordinate personnel to provide written and verbal assessment on all probationary employees under your control, when requested by the D.O.N.

You have the authority to affect the terms of employment, or discharge from employment, of all personnel on your shift who are subordinate to you."

20. If the nurses actually performed the functions set out in the above noted job description, the Board would have little difficulty in concluding that they exercised managerial functions within the meaning of section l(3)(b) of the Act. Indeed, the job description is almost a precis of precisely those duties which the Board has regarded as indicating managerial status (see paragraphs 8 and 9 supra). Moreover, the evidence makes it clear that the nurses have been told that they are members of management, and told that they have, inter alia, disciplinary power. The difficulty is that this job description is highly misleading when compared with what the nurses actually do — and it will be recalled that section l(3)(b) refers to an individual who "in the opinion of the Board exercises managerial functions." A job description may be helpful to delimit an individual's responsibility, but the Board must be very careful in dealing with documents which do not accord with what the alleged "manager" actually does.

III

21. At the time of the examination, there were six full-time and six part-time registered nurses (R.N.s). They worked a variety of shifts in association with varying numbers of R.N.A.s, nurses aides, kitchen, laundry, and housekeeping staff. The director of nursing, who is on the premises during the day, is responsible for drawing up the work schedules and assigning individuals to their shift and work station. The director of nurses also assigns vacations. If there are any complaints about either of these matters, they are taken up directly with the director of nursing.

22. R.N.s and R.N.A.s may "cover for each other", or trade shifts, provided the director of nursing is advised. Shifts are also changed occasionally by the director of nursing herself. If an employee phones during the afternoon shift to advise that she will not be coming to work on the following shift, the R.N. then on duty may arrange for a replacement by running down a pre-established list of part-time employees and telephoning them until she finds one who is willing to come in. She has no authority to require someone to fill in. It appears that during the day, this kind of scheduling difficulty is handled by the office. Neither R.N. has ever asked an employee to work overtime to cover a gap in a shift.

23. Nurse Bain works on the "evening" (3:00 p.m. — 11:00 p.m.) shift. Nurse Ballam works on the "night" (11:00 p.m. — 7:00 a.m.) shift. Both nurses testified that, on those shifts, they could allow an employee to leave early — in response, for example, to illness or a family problem which had arisen (Ballam hadn't had such request in the last year); however, if an employee requested an entire shift off, such request would have to be taken up with the director of nursing. The evidence does not indicate whether the employee would be paid for the entire shift, but, since R.N.A.s and aides punch a time clock, they presumably would not be. (Because no nurse on the day shift gave evidence, it is not clear whether they have similar authority with respect to leaving early, or whether, like the rescheduling problems referred to above, these matters are handled by the office staff or director of nursing.) If an R.N. A. or aide forgets to punch the time clock, an R.N. can sign his or her time card. There is no evidence of any employer-employee dispute arising with respect to this practice. The R.N.s themselves are expected to sign in and sign out. They do not punch a time card.

24. Both nurses described their duties and routine is some detail. For Bain, these were: counting drugs; taking a report from the nurse going off duty; making rounds to check on the patients and reading what had occurred on the earlier shifts, giving out cigarettes to residents; coffee-break; giving out medications; ensuring that the patients go to the dining room or eat in their rooms, making rounds again and doing treatments; discussing any problems which the R.N.A.s or aides were having; calling a doctor if necessary; doing another round of cigarettes and medications; writing up reports; cleaning up the medicine room; stocking drugs if necessary; and doing a report and count of drugs. Ballam gave a similar catalogue of her duties on the night shift. She visits all the patients on hourly rounds, does assorted paperwork with respect to drug supplies and updating the patients' charts, awakens the patients at 6:00 a.m. to dispense medication, and makes a report to the R.N. on the next shift. If a patient is ill, Bain and Ballam can both call the doctor indicated on the patient's file, and receive directions over the telephone. Both nurses can also call the maintenance department to fix a mechanical breakdown, or in the case of a maintenance "emergency", can call a repairman from a list prepared by the administrator or the director of nursing. Bain once had to consult this list to call a plumber. Ballam has never used it. The two nurses write memos to the director of nurses drawing her attention to equipment in need of repair.

25. Both nurses' duties bring them into contact with other employees of the nursing home. In Bain's case, she may occasionally request how meals should be made, or trays set up or may advise the laundry that a particular patient's clothes should be labelled. Usually however the R.N.s have nothing to do with the laundry. Their principal contact is with the R.N.A.s and aides who perform their functions within the parameters established by the College of Nurses. The nurses' aides do the actual primary nursing care under the supervision of the R.N. and the particular R.N.A. who, in Bain's words, "runs the area". The R.N.A.'s higher accreditation permits them to dispense some medications and treatment, and to tell the aides how to perform such functions as bathing patients. The R.N. does not usually assign tasks to the R.N.A.s, tell them what to do, or discuss their work, because they know their established routine; however, the R.N. is responsible for ensuring that medication and treatment are being properly dispensed, and the R.N. tells the R.N.A. of any new doctor's instructions. Bain testified that it is highly unusual for her to have to correct the mistakes of others, although it is her responsibility to do so if needed. R.N.A.s are usually trained by other R.N.A.s after being shown the shift routine by the R.N.. All of the employees participate in the orientation and training of a new aide. Both R.N.s and R.N.A.s instruct aides about any new or special patient needs. Ballam testified that on the day shift, the R.N.s are too busy to be involved in training of new nurses' aides. That function, she said, was performed by the director of nursing. Complaints from residents or their families are forwarded by the R.N. to the director of nursing for her consideration and action, if any. There is no evidence that the R.N.s have ever acted upon them.

26. "Department head" meetings began to be held on a regular basis in the fall of 1980 (i.e. after the instant application was filed). These meetings discuss the situation of the home, complaints, resident's care plans and so on. They are attended by both bargaining unit and non-bargaining unit personnel. R.N.s and R.N.A.s are also involved in safety meetings. In addition, there had been infrequent meetings of the R.N.s themselves which were apparently called and attended by the director of nursing (Bain testified that there had not been such a "special" meetings of R.N.s in the last 6 months). At the R.N.s' meetings, there is no discussion of the R.N.A.'s collective agreement, collective bargaining matters, or employee grievances. To date, the R.N.s have had no role in the processing of employee grievances. Ballam had never been asked her opinion about a grievance. Bain testified that a "union problem" had arisen because of the relationship between several aides and an R.N.A., but she only learned about it later. Interestingly, the notice of the R.N.s' meeting dated September, 1979, indicates that it will be attended by the R.N.s and director of nursing from the respondent's companion home in the region, Crescent Park Lodge. The applicant union was certified to represent the R.N.s at Crescent Park Lodge in November 1978. (See Crescent Park Lodge [1978] Rep. Nov. 981 where the respondent's contention that all of these R.N.s were "managerial employees" was rejected.)

27. The R.N.'s authority to discipline employees will be discussed in more detail below. It suffices at this point to note that both witnesses indicated that the competence of individual aides could be raised at an R.N.s' meeting. But except for the suggestion that it might be advisable to monitor their work more closely, neither could recall any decision having been taken which bore adversely upon the individual's employment relationship with the respondent. Bain testified that there was never any suggestion, for example, that an aide should be disciplined or that an aide on probation should be let go.

28. The R.N.s are not involved in the respondent's budget making process, nor can they commit the respondent to expenditures in any significant amount. Ballam testified that salaries, budget or finances had never been discussed at the "special R.N.s' meetings". Requisitions for material or replacement equipment are dealt with by the director of nurses. R.N.s can order some prescription medications from a local pharmacy, but it is the director of nursing who orders stock drugs and supplies. R.N.s have no input into the home's manual of policies and procedures.

29. Bain has no authority to hire employees, has never been involved in interviewing employees, and has never recommended that someone be hired. Bain is not involved when an employee quits — although on one occasion, she took a telephone call from an employee who told her that she was resigning, and Bain passed this information on to Mrs. Hughes, the director of nursing. Bain said that the usual practice, as he understood it, was for the employee to write a letter to Mrs. Hughes. Ballam likewise, has never been involved in interviewing prospective employees. The R.N.s have no direct control of the employees' wage rates or progressions, and Bain testified that she was unaware of what they were. Bain has never seen, asked to see, or need to see, an employee's personnel file. There is no indication that Ballam has either. Neither had ever recommended a wage increase and there is no evidence that they had ever been consulted about such matters.

30. For the reasons which we have already set out at length above, the Board has always attached considerable significance to the degree to which an individual's decisions can impinge upon the livelihood or job security of his fellow employees. Of real importance then, is the extent to which the R.N.s in the instant case can actually influence the employment status of the other members of the health care team, and the extent to which they participate in decision-making which impacts upon them. Much of the evidence in this regard involves the R.N.'s authority to discipline and "evaluate" other employees. We will deal with each in turn.

31. Disciplining employees is a "management function", and there is no doubt that some of the documentary evidence suggests that the R.N.s have this authority. We have already mentioned the employees' job description, and the minutes of an R.N.s' meeting which Bain and Ballam attended in September 1979, indicate that the topic of "progressive discipline" (warning, then suspension, then discharge) was raised, and further that the employer had told the nurses they have disciplinary authority. The documents also indicate that employees have in fact been disciplined by written warning and suspension. What is lacking however, is any evidence from the nurses themselves, that this purported authority has actually been exercised by R.N.s — as opposed to Mrs. Hughes, the director of nursing. Evidence that (for example) nurses had suspended or discharged employees, or had been directly involved in the decision to do so, would be highly significant; but Mrs. Hughes did not give evidence, and none of the nurses who did give evidence have ever exercised such authority either directly or by "effective recommendation". Although discipline had been meted out, these two nurses had never been involved in such decision-making, and there is no clear evidence that any of the other nurses had either. Insofar as the two nurses who did give evidence are concerned — and they were carefully examined on this point — the extent of "discipline" that they imposed never extended beyond a verbal admonishment that an employee should "shape up", or "stop fooling around" or speak more quietly to a resident or observe the home rules respecting smoking areas.

32. Bain testified that if she thought it was required, she would speak to a "girl", and if there were no improvement, she could report the matter to Mrs. Hughes for disposition. She has no recollection in the last year of "disciplining" anyone, or reporting anyone to the director of nursing. She has never sent anyone home as a disciplinary matter — although she thought that as a registered nurse, she had the authority to send someone home whose presence might threaten a patient's well-being. She has never suspended or fired anyone, nor is there evidence that she has ever issued a written warning (which might trigger a grievance while a verbal reprimand probably would not). Bain said she had been told she has the authority to discharge someone in serious situations; but not only has she never done so, she testified that she would not, in fact, discharge anyone, but would tell them to go home, and report the matter to the office.

33. The evidence of any actual exercise of disciplinary authority by Ballam is equally thin. Again, the situations were largely hypothetical. She believed that by virtue of the College of Nurses Standards of Practice, she had the authority to discipline an aide not properly attending to a resident. But what would she do? She would "speak to the aide", tell her to report to the office, and leave a note for Mrs. Hughes in which she would not make any recommendation as to what should be done. Like Bain, she had never imposed any discipline for lateness, misconduct, etc. In one instance (Ex. 26), she wrote a note to Mrs. Hughes that an employee was taking too long on her breaks; but when asked about this, she testified that she hadn't really "warned" the person about it, and there is no recommendation on the note, or any evidence of what immediate follow-up, if any, Mrs. Hughes made. The employee was fired later Ballam thought (how, or by whom, is not clear) on account of an unrelated incident of which Ballam had no direct knowledge. In the so called "cap incident", Mrs. Hughes had seen an aide without her cap and advised Ballam, in writing, that if she came to work again without her ~ap she should be sent home. Ballam testified that she didn't know quite what the dispute was about but followed Hughes' instructions. She learned later that Hughes had issued the individual a written warning. There is no indication of any involvement by Ballam. On another occasion, Ballam told an aide that if she were sleeping on the job, she would be sent home, and sent a note in those terms to Hughes. Once again, there is no indication of any follow-up, or impact on the employee other than the verbal warning.

34. It is clear that such "disciplinary authority" as the nurses exercise is carefully circumscribed. Real disciplinary authority rests with Mrs. Hughes — even on the two shifts where the respondent contends the R.N.s are fully "in charge". It is difficult on the evidence to find any recommendations concerning discipline which materially impact upon the individuals in the other bargaining unit. Unless we totally accept the respondent's assertion of the R.N.'s hypothetical authority, and totally ignore the functions that they actually perform, we cannot attach must weight to the disciplinary aspect of their role. The function which they actually perform are in marked contrast to their purported powers as described in their job description. This case amply illustrates why the Board must be cautious with respect to such documents. Otherwise, an employer could unilaterally exclude persons from the statute simply by preparing an appropriate job description and telling them that they are "management" — and regardless of the functions which they actually exercise.

35. A similar problem infects the evidence of employee "evaluations" which are filled in by the R.N.s and given to Mrs. Hughes. With these, the real question is: what effect to they actually have on employees, how much weight are they given, what decisions are made, and who is involved in making them?

36. Nurses' aides on probation are evaluated by the R.N. on a standard form on which she records her own observations, together with those of other R.N.s, R.N.A.s and aides. The evaluation is given to the aide to sign and make comments. It is then sent to Mrs. Hughes. Mrs. Hughes has never discussed an evaluation with Bain, and, while there is a place on the form for recommendations, Bain could not recall whether her recommendations had ever been followed. In one instance, Bain recalled that she had suggested on an evaluation that an employee required more supervision. The employee had indicated that she intended to quit. Subsequently, she did so. Bain was not involved.

37. The evidence indicates that the R.N.s also do evaluations of non-probationers on an annual basis at the instance of Mrs. Hughes, who asks them to fill out a prescribed form. Once again, there was no follow-up, the form does not have a place for salary recommendations, the nurses do not keep a copy, and the nurses were unaware of the effect which the evaluations might have on their co-workers' employment conditions or status. Ballam testified that "as far as I know" the form was placed on an employee's personnel file, but no one had ever consulted Ballam about one, nor did she know if Mrs. Hughes or anyone else talked to the employee about it. Ballam could not recall ever recommending that a probationer not be kept on. Bain knew of no decisions taken as a result of her evaluations, and, like Ballam, had never recommended a salary increase. In the case of one probationer, Ballam knew that she had left following an evaluation questioning her competence; but Ballam had no idea how long she worked thereafter, whether she completed her probationary period or not, and whether she quit or was terminated. As in the case of the nurses' disciplinary authority, (and even applying the "effective recommendation" approach) it is difficult to accord much significance to these evaluations or, find, on the evidence, that the nurse's role has a real impact on the other employees' employment relationship. Once again, the written job description is quite misleading.

38. On the basis of the evidence before us, (which, we repeat appears to have been much more fully developed than in the earlier case) we cannot find that the situation here differs significantly from the numerous other nursing home situations where the Board has granted bargaining rights (see cases cited supra). We are not persuaded that the evidence of the nurses duties demonstrates the kind of conflict of interest which section l(3)(b) was designed to avoid. On the contrary, it is our view that the unionization of the respondent's nurses here —as has already occurred at the respondent's other facilities — will not impair their supervisory and professional responsibilities vis-~-vis the employees in the other bargaining unit, because, in our opinion, the R.N.'s do not exercise 'managerial functions" within the meaning of section 1 (3)(b) of the Act. To so find would require an interpretation of section 1 (3)(b) at odds with the Board's earlier cases, and destructive of the dozens of successful collective bargaining relationships. There may be situations where an employer's entire complement of nurses exercise managerial functions. This is not one of them.

IV

39. The Board finds that the applicant is a trade union within the meaning of section 1(1) of the Labour Relations Act.

40. The Board further finds that:

Bargaining unit # (Full-time)

"all registered and graduate nurses employed in a nursing capacity by Oakwood Park Lodge, in Niagara Falls, Ontario, save and except the director of nursing, those above the rank of director of nursing, and those persons regularly employed for not more than twenty-four (24) hours per week; and

Bargaining unit #2 (Part-time)

"all registered and graduate nurses regularly employed for not more than twenty-four (24) hours per week in a nursing capacity by Oakwood Park Lodge, in Niagara Falls, Ontario, save and except the director of nursing, those above the rank of director of nursing,

constitute units of employees of the respondent appropriate for collective bargaining.

41. The Board is satisfied on the basis of all of the evidence before it that more than fifty-five per cent of the employees of the respondent in bargaining units #1 and #2 at the time the application was made, were members of the applicant on June 19, 1980, the terminal date fixed for this application and the date which the Board determines, under section 103(2)(j) of the Labour Relations Act, to be the time for the purpose of ascertaining membership under section 7(1) of the said Act.

42. Certificates will issue to the applicant.