[1982OLRB Rep. February 256
0079-81-M Ontario Nurses' Association, Applicant, v. Ontario Nurses' Association Staff Union, Respondent.
BEFORE: M. G. Mitchnick, Vice-Chairman, and Board Members J. D. Bell and B. L. Armstrong.
DECISION OF THE BOARD; February 23, 1982
- This is an application pursuant to section 106(2) of the Labour Relations Act, requesting the Board to determine whether Elizabeth Wall, Karin Lehnhardt, Dan Anderson, loma Robinson and Bharrat Latchman are "employees" for the purposes of the Act. The Board has now reviewed the Report of the Labour Relations Officer, together with the written submissions of the parties. The relevant provision of the Act is section I(3)(b) which reads:
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.
Elizabeth Wall is the administrative assistant to both the Director of Human Resources and the Director of Association Services. In the latter capacity, it is Ms. Walls' function to attend in the role of recording secretary the meetings of all committees of the Association's Board of Directors, including the Executive or "Working" Committee. In the period before this application was filed, not all of the Board's committees were called upon to meet. But for those that did, it appears that Ms. Wall attended as the recording secretary, and the Board is satisfied that this is in fact a regular part of her job.
The predominant portion of Ms. Wall's job appears to relate to the Director of Human Resources, Jean Lowery, to whom she reports directly, and who functions broadly in the capacity of a Personnel Director. The Director of Human Resources has the primary responsibility (along with the Chief Executive Officer) for the hiring and firing of staff and, more importantly here, for the negotiation and administration of both collective agreements with the staff Association. Ms. Wall has full access to all manner of files stored within her department, and which she has been in the process of reorganizing. In her support role to Ms. Lowery, Ms. Wall both receives and types the full range of confidential labour relations material that one might expect: instruction and opinion letters passing between the Association and its counsel, background reports on grievances to assist counsel in preparing for arbitrations, and draft proposals and "position papers", for internal circulation, in respect of ongoing contract negotiations. While Ms. Wall was candid in admitting her difficulty in pinpointing which of these specific functions were exercised in the short period preceding the application, as opposed to after it, she was able to identify sufficient instances to again satisfy the Board that she does in fact function in the capacity described, and that her exposure to the internal workings of the Human Resources department is virtually complete. In the Board's view, her position is a classic example of the kind of position for which the "confidential" exclusion was intended. The Board finds that Ms. Wall is not an "employee" within the meaning of the Labour Relations Act.
Karin Lehnhardt is the Administrative Services Supervisor, and was hired in July of 1980. Her exclusion concerns the office and technical unit, which is described as:
All office and technical employees of the Employer save and except the Officer [sic] Supervisor, Administrative Assistant to the Chief Executive Officer, those above the rank of Office Supervisor and Professional Administrative employees.
There is no longer a position called "Office Supervisor", and the evidence of Anne Gribben, the applicant's Chief Executive Officer, is that it has been replaced by the expanded position which Mrs. Lehnhardt now occupies.
Basically, Mrs. Lehnhardt appears to function in the general role of an office manager. Although the decision is clearly not hers alone, she appears to be effectively involved in the interviewing and hiring of head office staff generally, and particularly so with respect to the employees that report to her directly. In the latter regard, the receptionist and mailroom clerk are under her direct supervision, as well as students and temporary staff hired from time to time. She has the authority to direct the temporary-hiring agencies not to re-assign a particular employee to the applicant, and on her own initiative decided to change agencies at one point. She deals with any complaints or problems which arise with respect to the staff reporting to her, and authorizes both their overtime and time off. She is expected to issue oral or written warnings if necessary, but has not yet had occasion to go that far. Mrs. Lehnhardt carried out a formal evaluation with Ms. O'Neill, the receptionist, and recommended that Ms. O'Neill be upgraded to a higher level. This recommendation was accepted. Mrs. Lehnhardt has a general authority to order equipment and material for all of the Association's offices and uses her own discretion as to when the approval of the Controller should be sought. While many of her activities are of a routine, administrative nature, the Board finds that Mrs. Lehnhardt does exercise sufficient authority and discretion in her overall function as office manager to warrant exclusion under section l(3)(b) of the Labour Relations Act. The Board declares Mrs. Lehnhardt not to be an "employee" for the purposes of the Act.
The remaining three individuals in dispute are all classified as "co-ordinators" within the applicant's organizational structure. All three are presently included in the respondent's "professional administrative" bargaining unit. There are other individuals, classified as "Co-ordinators", who are included in the office and clerical bargaining unit of the respondent, and these individuals are not in dispute. Both of the bargaining units arose out of a voluntary recognition agreement. The evidence of Anne Gribben, respecting the history of the Co-ordinators' agreed inclusion in the bargaining units, is instructive:
At that time I entered into discussion with the executive of the union on the basis of what had initially been discussed as a scope clause and said at that time I wish co-ordinators to be excluded. We had considerable dialogue on this. My main concern was that although some of the coordinators were now coming into play in relationship to having people under them to direct, nevertheless their functions would be as a supervisor and a co-ordinator of the programs that they would in fact have the managerial functions one warrants and gives to a person in that category. The union took exception to it at the time and said that it was relatively, that the positions were relatively new in terms of the people they would be directing. They were not convinced in fact they were carrying out the role as outlined by the employer and stated at that time that they were not prepared to agree to their exclusions. However, if in fact what I said was true and proved to be true in the future and they did exercise these functions, then naturally, if the union didn't agree with me, I could go to the Board and have the positions, and have the positions examined, and that's basically then why they were in at that time.
The question before the Board then is whether each of the Co-ordinator positions in dispute have evolved to the point where the responsibilities being carried out are no longer compatible with inclusion in the bargaining unit. (Cf. Corporation of the City of Thunder Bay, [1981]
OLRB Rep. Aug. 1121.)
Bharrat Latchman is the Research Co-ordinator. It is the function of his area to carry out special research projects as requested, to provide backup information for collective bargaining, and to circulate appropriate reference material to staff on a regular basis. Mr. Latchman works at the applicant's head office in Toronto, and reports to the Senior Executive Officer, Operations. He has reporting to him in turn a Research Officer, a Research Assistant, and a Librarian. Given the nature of their work, Mr. Latchman indicates that each of these individuals functions in large measure on their own, and their areas of responsibility are known. Mr. Latchman becomes involved only in terms of responding to a backlog, or in identifying areas of priority. These the Board notes are typical functions of a Group Leader. Mr. Latchman spends the bulk of his own time carrying out research. By his own admission, Mr. Latchman's role in hiring is limited, and has never been specifically discussed with him by his superiors. Neither has he been advised that it is his responsibility to discipline, or recommend discipline. Mr. Latchman has no input into the budget for his department, and the specific direction the department's work will take stems largely from consultative meetings with other co-ordinators and the arbitration officers. None of those individuals are excluded from the bargaining unit. The Board on the whole finds Mr. Latchman, by his evidence, to be performing more the role of a team leader within the unit than a member of management, and finds no basis to now exclude him. The Board finds that Mr. Latchman continues to be an "employee" for the purposes of the Act.
loma Robinson is the Co-ordinator of the Education Centre. The Centre and its staff are located in Ottawa, and Ms. Robinson is the only one of the three Co-ordinators who reports directly to Anne Gribben, the Chief Executive Officer. The role of the Centre is to develop and carry out programs which will meet the education and training needs of the Association's members, its staff, and the Board of Directors. When Ms. Robinson began in 1975, she was the Centre's only staff member and worked out of Toronto. At that time Ms. Robinson not only developed the program but did virtually all of the teaching herself. As the size of the Association and its needs have grown, the Centre has added two full-time education offices and an administrative assistant, all upon the recommendation of Ms. Robinson. Ms. Robinson in fact selected the administrative assistant on her own, and that individual was not interviewed by anyone else in the Association. With the increase in staff and demands, Ms. Robinson now spends virtually all of her time developing program ideas and training and supervising her subordinates. She personally monitors the seminars of her officers when she is able, but otherwise relies on feedback from those attending. She feels it is her responsibility to recommend discipline where necessary. She regularly meets with members of management, including the Board of Directors, for the purpose of developing policy objectives. She prepares her own budget, which is now in the neighborhood of $90,000, and no budget which she has submitted has ever been cut back. Within that budget, Ms. Robinson can expend and allocate funds as she chooses, including the hiring of guest speakers of her own selection. If a request is made for a new type of program to be implemented, Ms. Robinson assesses the need against the funds available in the budget, and decides whether to go ahead with it. The Board is satisfied on the evidence that Ms. Robinson does in fact operate at the managerial level, and is not an "employee" for the purposes of the Act.
Finally, Dan Anderson is the Co-ordinator of Employment Relations Services, and has been so since 1978. He coordinates the activities of the Association's seventeen Employment Relations Officers, who are spread over six cities in the province. Mr. Anderson works out of the head office in Toronto, but still visits the other offices from time to time, although less frequently than in the past because of general staff meetings now held in Toronto. Mr. Anderson himself presents a portion of the Association's cases that go to interest arbitration, and handles certification matters before the Ontario Labour Relations Board. With respect to the Officers, Mr. Anderson in the Report describes his role generally as follows:
Generally, I'm responsible for the Employment Relations Officers. I have a role to play with respect to their hiring, I have a role to play with respect to discipline, discharge. I'm involved in their orientation program. I'm the one who is assigned to evaluate them. As far as negotiations are concerned I have somewhat of a co-ordinating function in that regard.
The report goes on, however, to better define these roles.
- To begin with, the reference to "negotiations" is to the negotiations which the Association's Officers (or staff representatives) carry out with the various employers for whom the Association holds bargaining rights. Mr. Anderson explains that he is able to act as a central source in that respect. Regarding negotiations with the Association's own staff, Mr. Anderson could recall only one instance where he was consulted, and that was in a casual way, based on his experience with hospital collective agreements. As far as his hiring role is concerned, Mr. Anderson does not appear to have input into the initial decision that a vacancy is to be filled, and he describes is role in the interviewing process which follows as "minimal" or "very minor", although he has generally been a part of the consensus with regard to which individuals to hire. Regarding discipline, because the Officers function essentially as autonomous professionals, Mr. Anderson appears to get involved only when a complaint about an Officer is registered, either with him or with his superior, Marg O'Connor, the Senior Executive Officer, Operators. Mr. Anderson then interviews the individuals affected and prepares a report for Ms. O'Connor. Although there has been one instance where he was involved directly and recommended to Ms. O'Connor that a warning letter be given (which was done), he described his own role in these situations generally as that of"a fact-finder". He has never himself disciplined anyone either orally or in writing. As an extension of this, he was asked:
In your own mind, though, have you spoken to an employee in the hope or expectation that he or she will change his behavior or whatever he's doing?
His answer was:
No, I can't say that those circumstances have come up or I can give you a specific example ...
As far as the orientation program is concerned, Mr. Anderson acknowledged that others in the bargaining unit play a role in that as well. He further acknowledged that the orientation program is presently the subject of a joint committee established under the collective agreement, and that he had no idea what was being done in that regard.
II. In addition to the areas mentioned, the Board notes that the question of work assignment has, according to Mr. Anderson, been left to the Officers to work out themselves. Where a problem has required his involvement, it appears he gives his approval only after speaking with Ms. O'Connor. The matter of vacation requests, Mr. Anderson acknowledges, is dictated by the collective agreement and Association policy. In the latter regard, a grievance has been filed, clearly not against Mr. Anderson himself, but against the policy which he has had to announce from his superiors. That policy in fact overrules Mr. Anderson's earlier handling of vacation scheduling. With respect to "compensating" time off (for overtime), the Officers, because of their flexible hours, appear to work this out on their own. Regarding job evaluations, Mr. Anderson indicates that he believes he ought to do evaluations of the officers, but adds that he has yet to do one.
- It is not without significance that Mr. Anderson attended a meeting with legal counsel and members of management to discuss the Association's approach to discipline following the release of an arbitration award, but the Board does not find that this overrides its assessment of the evidence as a whole. Given the independent nature of the Employment Relations Officers' jobs, and, more importantly, the limited delegation of authority which appears, to date, to have taken place between Ms. O'Connor and Mr. Anderson, the Board is not able to conclude that Mr. Anderson has ceased to be an "employee" for the purposes of the Labour Relations Act. Mr. Anderson twice emphasized that his actual duties bore no relationship to his written job description, and presumably for that reason the applicant did not consider it useful to file the job description for this particular job with the Board. From the evidence, the Board does not perceive a conflict between Mr. Anderson's duties as he is performing them and his inclusion within the bargaining unit, and declares Mr. Anderson to be an "employee" for the purposes of the Act.