[1982] OLRB Rep. January 131
1723-81-R Service Employees Union, Local 478, Applicant, v. Waldheim Nursing Home Ltd., Respondent.
BEFORE: Kevin M. Burkett, Alternate Chairman and Board Members W. H. Wightman and
H. Simon.
APPEARANCES: Ron Davidson and Joe Aggimenti for the applicant; S. C. Bernardo and Mike Walter for the respondent.
DECISION OF THE BOARD; January 21, 1982
This is an application for certification.
The Board finds that the applicant is a trade union within the meaning of section l(l)(p) of the Labour Relations Act.
The applicant has applied to be certified as bargaining agent for the registered and graduate nurses employed by the respondent at its Huntsville Nursing Home. The respondent contends that all of the registered and graduate nurses employed at its Huntsville facility perform "managerial functions" within the meaning of section l(3)(b) of the Act.
The respondent operates a nursing home for the mentally retarded at Huntsville which employs 31 persons in a full time bargaining unit of support staff and an approximately equal number of part-timers who are excluded from the support staff bargaining unit. The home operates on a three shift per day, seven day per week basis. An administrator, with overall responsibility for the running of the home, works the day shift, Monday to Friday, as does the Director of Nursing. About half of the support staff are assigned to the day shift with the remainder working afternoon or midnights. The home employs four full-time registered. nurses. It is these four which the applicant seeks to represent. There is a registered nurse assigned to each of the three shifts per day. There is no one employed as a kitchen, maintenance or cleaning supervisor. The registered nurse is the senior person on duty during the afternoon and midnight shifts and is responsible for the direct supervision of the nurses' aides, and R.N.A.'s and the kitchen, cleaning and laundry staff who are working during these shifts.
There is no job description setting out the normal duties and responsibilities of the registered nurses employed by the home. The evidence before the Board, as agreed between the parties, is that the registered nurse has the authority to verbally reprimand other members of the staff. Where a member of the staff is engaging in culpable activity it is the responsibility of the registered nurse to correct the immediate situation and, if necessary, to send the employee home. Where a member of staff is engaging in culpable behavior, however, the registered nurse is required to report the incident to the Director of Nursing for follow-up. Support staff work assignments are routine in nature so that once the initial training has been given an employee is expected to know what is required of him and needs very little in the way of day-to-day direction. The registered nurse is involved in the initial training of the R.N.A.'s and aides. The registered nurse is not required to complete written assessment reviews with respect to the performance of support staff employees. However, a verbal report is made to the Director of Nursing. The Director of Nursing is responsible for the scheduling of all employees but the registered nurse in charge of a shift can grant casual time off. Where a shift is short staffed by reason of illness or other unexpected absence, the registered nurse in charge is responsible for reassigning work and calling in a part-timer to cover. Except in the absence of the Director of Nursing the registered nurse does not become involved in the hiring of staff. There is no evidence that the registered nurse acts as a member of management in the processing of grievances under the support staff collective agreement.
The patients of the home require regular medication. The registered nurses, in addition to their general supervisory duties described above, are responsible for administering the medication to the patients, for reviewing the nursing care plans, filing of medical records and responding to medical emergencies such as seizures. The Director of Nursing, who works the day shift, leaves instructions for the upcoming shifts and receives a report from each shift. She is available by phone in the event of a significant emergency.
Section l(3)(b) of the Act provides:
"1(3) Subject to section 90, for the purposes of this Act, no person shall be deemed to be an employee,
(a) who, in the opinion of the Board, exercises managerial functions or is employed in a confidential capacity in matters relating to labour relations."
The Act does not contain a definition of "managerial functions" so that it is left to the Board, working from first principles, to make the determination on a case by case basis. The Act is designed to provide for and support collective bargaining as the preferred means of determining terms and conditions of employment. The scheme of collective bargaining established under the Act, however, recognizes the competing interests of the employer on the one side and the employees on the other. The Board therefore, in applying section 1(3)(b) of the Act, must make determinations with respect to what constitutes "managerial function" in such a way as to allow for the broadest possible application of the Act without creating the potential for a conflict of interest which would be destructive of the collective bargaining process. In order to make the proper determinations in this regard the Board pays particular attention to both the nature of the employer's organization and the type of work being performed by the persons whose status as employees under the Act is in dispute.
The Board has had extensive experience in dealing with the status of registered nurses as employees under the Labour Relations Act. In a series of hospital cases the Board has been called upon to decide the employee status of head nurses. (See Peterborough Civic Hospital [1973] OLRB Rep. Mar. 154; Ajax and Pickering Hospital[1970] OLRB Rep. Feb. 1283; Essex Health Association [1970] OLRB Rep. Nov. 824; Toronto East General & Orthopedic Hospital Inc. [1974] OLRB Rep. Oct. 671; St. Peter's Hospital, [1976] OLRB Rep. Mar. 247; Westmount Hospital [1976] OLRB Rep. Feb. 24; Cottage Hospital (Uxbridge), [1980] OLRB Rep. Mar. 304.) In all these cases the Board has recognized the professional competence of the registered nurse and, within the context of the hospital work setting, has refused to automatically equate the supervisory, co-ordinating and reporting role of the nurse, as a professional member of the health care team, with "managerial functions" within the meaning of section l(3)(b) of the Act.
The following passage found in re Essex Health Association, supra, is especially instructive.
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.
The same considerations which govern in the hospital cases have been applied in a series of nursing home cases dealing with the employee status of registered nurses. The employer has argued in these cases that all of his registered nurses exercise managerial functions" within the meaning of section l(3)(b). (See Regional Municipality of Halton, [1980] OLRB Rep. Nov. 1684, Belvedere Heights Home for the Aged, [1978] OLRB Rep. Oct. 890, Peel Manor Home for the Aged[1979] OLRB Rep. Jan. 52, Villacentres Limited[1973] OLRB Rep. Dec. 646, Corporation of the City of Hamilton [1972] OLRB Rep. July 697, Oak wood Park Lodge [1977] Board File No. 0643-77-R. In deciding these cases the Board has not distinguished the nursing home setting, from the hospital setting and, as in the hospital setting, has recognized the professional training and competence of the registered nurse working in a nursing capacity. The Board, as in the hospital cases, has refused to automatically equate the supervisory, co-ordinating and reporting role of the registered nurse with "managerial function" within the meaning of section l(3)(b) of the Act.
On the evidence before us in this matter it is clear that the registered nurses for whom the union seeks bargaining rights exercise the supervisory, co-ordinating and reporting functions which are required of most registered nurses in their professional capacity. Can it be said, however, that their duties and responsibilities go beyond the professional responsibilities expected of a registered nurse and encompass "managerial functions" which, if permitted to reside in a person bargaining collectively under the Act, would create the potential for the type of conflict of interest referred to earlier? The answer is no. We are satisfied on the evidence before us that "managerial function" with respect to the discipline, assessment, scheduling and hiring of staff rests with the Director of Nursing and not with the registered nurses. It is the Director of Nursing who acts upon the report of the registered nurse in discipline matters. Similarly, it is the Director of Nursing who acts upon the report of the registered nurse with respect to the assessment of staff members. It is the Director of Nursing who schedules the staff of the nursing home. It is the Director of Nursing, presumably in conjunction with the Administrator, who hires staff. The Director of Nursing is present on the day shift and can be reached at other hours in the event of significant emergencies. Having regard to the foregoing, it is our view that managerial authority resides in the Director of Nursing and we hereby find the registered nurses who are the subject of this application to be employees within the meaning of the Act.
Having regard to the agreement of the parties the Board further finds that all registered and graduate nurses employed by the respondent at Huntsville, Ontario, save and except the Director of Nursing, the Director of Nursing in Training and those above the rank of Director of Nursing, persons regularly employed for not more than 24 hours per week, and persons covered under subsisting collective agreements, constitute a unit of employees of the respondent appropriate for collective bargaining.
The Board is satisfied on the basis of all the evidence before it that more than fifty-five per cent of the employees of the respondent in the bargaining unit, at the time the application was made, were members of the applicant on November 18, 1981, the terminal date fixed for this application and the date which the Board determines under section 1 03(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.
A certification will issue to the applicant.