[1983] OLRB Rep. April 551
0806-82-M Kingston General Hospital, Applicant, v. Ontario Nurses' Association, Respondent
BEFORE: Ian Springate, Vice-Chairman, and Board Members E. J. Brady and S. Cooke.
APPEARANCES: R. A. Little, Q. C., Brenda Snider, Donald Halpert, Steven Knox and M. J. Milligan for the applicant; no one appearing for the respondent.
DECISION OF THE BOARD; April 13, 1983
- This is an application under section 106(2) of the Labour Relations Act in which the applicant Hospital has raised a question concerning the "employee status" of some 26 persons it classifies as "unit supervisor". The Hospital contends that the individuals involved are "managerial" and thus not "employees" under the Act. The respondent trade union contends that they are employees. The relevant provision of the Act reads as follows:
"l(3)(b) 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."
The respondent trade union was certified to represent registered and graduate nurses in the employ of the Hospital on May 5, 1971. During the course of the certification proceedings the Hospital took the position that "head nurses" in its employ exercised managerial functions and hence were not employees under the Act. After an inquiry into the issue, the Board concluded that head nurses did not exercise "that quality of supervision, control and independent discretion necessarily incidental to the exercise of managerial functions within the provisions of section l(3)(b) of the Act." In the result, head nurses were included in the bargaining unit for which the trade union was certified.
Subsequent to the union's certification, the union and the Hospital entered into a series of collective agreements which encompassed head nurses within the bargaining unit. Early in 1981 the Hospital reorganized its nursing department and introduced the new classification of "nursing supervisor". At the same time some 26 head nurse positions were "eliminated". (Six remaining head nurse positions in the operating room were left untouched). It appears that all of the unit supervisor positions were filled by individuals who had formerly been classified as head nurses. Prior to the reorganization, each head nurse reported to one of the hospital's six clinical supervisors. The clinical supervisors in turn reported to an Associate Director of Nursing Service and a Director of Nursing Service. At present, each unit supervisor reports to one of four associate directors. On the same "level" as the unit supervisors are an associate director of staffing and the operating room supervisor, to whom presumably the six head nurses in the operating room report. At the top of the nursing department is the director of nursing. To summarize then, there is currently a director of nursing and immediately below her four associate directors. The union does not dispute that the director and the four associate directors exercise managerial functions. Below the associate directors are the 26 "unit supervisors" whose status is the subject matter of this application. These unit supervisors occupy a position in the hierarchy similar to that occupied by the "head nurses" they purportedly replaced.
As did the head nurses previously, each unit supervisor has responsibilities for a "unit" or "floor" in the hospital. The units range in size from 8 to 41 beds, although the average is somewhere between 20 and 25. The evidence before us does not reveal the staff complement on each of the units. However, the evidence is that on one 20 bed unit, when the unit director is on duty there is a total of 14 regular staff, namely, four full time and two part time registered nurses, three registered nursing assistants, four orderlies and a ward clerk.
When the unit supervisor classification was established in 1981, the Hospital took the position that it was a new classification which did not fall within the bargaining unit covered by the existing collective agreement with the trade union. This position prompted the union to file two grievances touching on the matter. The two grievances both came before a board of arbitration chaired by Mrs. Gail Brent for determination. After a review of the work formerly performed by the head nurses and the work being performed by the unit supervisors, a majority of the arbitration board concluded that there had not been a substantial quantitative change in duties between the new positions. The majority then went on to state that "the Head Nurse classification has been re-named Unit Supervisor rather than that a new classification has been created". It followed from this finding that unit supervisors remained within the bargaining unit set forth in the collective agreement.
In the course of the arbitration board's award that board noted that its jurisdiction flowed only from the collective agreement between the parties, and that accordingly, its role was limited to a determination of whether or not the unit supervisors fell within the bargaining unit described in the agreement. The arbitration board expressly stated that it was not making a determination as to whether or not the unit supervisors were employees under the Labour Relations Act. The arbitration board issued its award on October 19, 1981. On July 27, 1982, the Hospital filed the instant application asking this Board to decide whether or not the unit supervisors are employees for the purposes of the Act.
The Hospital and the union met with a Board Officer on October 26, 1982. At that meeting they reached agreement that the evidence of Miss Linda Morgan would be considered representative of the duties and responsibilities of all 26 unit supervisors. Miss Morgan gave her evidence before the Board Officer and the Hospital also called as a witness Miss Brenda Snider, the Director of Nursing. The Board now has before it a transcript of the evidence of both Miss Morgan and Miss Snider as well as written representations from both parties concerning the conclusions the Board should reach on the basis of this evidence. The Board also heard oral representations from counsel for the Hospital at a hearing requested for that purpose by the Hospital.
Section l(3)(b) of the Act is meant to exclude from collective bargaining persons who in the opinion of the Board exercise managerial functions. The purpose of the section is to ensure that persons within a bargaining unit do not find themselves faced with a conflict of interest between their responsibilities and obligations as managerial personnel, and their responsibilities as trade union members or employees in 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 1(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 was expressed as follows by the British Columbia Labour Relations Board in Corporation of the District of Burnaby [1974] 1 Can. LRBR at page 3:
"The explanation for this management exemption is not hard to find. The point of the statute is to foster collective bargaining between employers and unions. True bargaining requires an arm's length relationship between the two sides, each of which is organized in a manner which will best achieve its interests. For the more efficient operation of the enterprise, the employer establishes a hierarchy in which some people at the top have the authority to direct the efforts of those nearer the bottom. To achieve countervailing power to that of the employer, employees organize themselves into unions in which the bargaining power of all is shared and 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 seeing that the work gets done and the terms of the collective agreement are adhered to. Their decisions can have important effects on the economic lives of employees, e.g., individuals who may be disciplined for "cause" or passed over for promotion on the grounds of their "ability". The employer does not want management's identification in the activities of the employees union. More subtly, but equally as important, the exclusion of management from bargaining units is designed for the protection of employee organizations as well. An historic and still current problem in securing effective representation for employees in the face of employer power is the effort of some employers to sponsor and dominate weak and dependent unions. The logical agent for the effort is management personnel. One way this happens is if members of management use their authority in the work place to interfere with the choice of a representative by their employees. However, the same result could happen quite innocently. A great many members of management are promoted from the ranks of employees. Those with the talents and seniority for that promotion are also the very people who will likely rise in union ranks as well. In the absence of legal controls, the leadership of a union could all be drawn from the senior management with whom they are supposed to be bargaining. If an arm's length relationship between employer and union is to be preserved for the benefit of employees, the law has directed that a person must leave the bargaining unit when he is promoted to a position where he exercises management functions over it."
The Labour Relations Act does not contain a definition of the term managerial "' nor are there any specified criteria to guide the Board in reaching its opinion. Accordingly, the task of developing such criteria has fallen to the Board itself. In instances of so called "first line" managerial employees, the principal criterion utilized by the Board is the extent to which they make decisions which affect the economic lives of their fellow employees and thereby raise 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, which the Board views as being incompatible with participation in trade union activities as an ordinary member of the bargaining unit. The Board also recognizes that in certain enterprises there are individuals whose nominal authority appears to be limited to the making of recommendations, but where because of the circumstances involved it can reasonably be said that they are the ones who make the effective decision. The Board has characterized this as a power of "effective recommendation". Where such effective recommendations can affect the economic well-being of fellow employees, the Board has viewed the inclusion of the persons who make such recommendations in the bargaining unit as potentially giving rise to the very kind of conflict of interests that section l(3)(b) was designed to avoid. Accordingly, persons making "effective recommendations" of this kind are viewed as part of the "management team", and are excluded from the bargaining unit. In recognizing, the importance of "effective recommendations" the Board has not lost sight of the real distinction between a person recommending or influencing a decision, and the one ultimately making it. Supplying "input" into a decision is not the same as actually making the decision.
Increasingly the Board has been asked to determine where the management line is to be drawn in situations involving technical and professional employees where the bargaining unit members are generally highly trained and largely self-motivated. Every employee in this type of situation is generally capable of, and indeed expected to, exercise independent judgement and to perform his or her duties with a minimal of direction. The Board discussed the status of such employees in Oakwood Park Lodge, [1982] OLRB Rep. Jan. 84 as follows:
"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 their job to ensure that appropriate techniques are being applied and that the work is being done properly. Their expertise and technical judgement 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", "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 required 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 the 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 l(3)(b) is addressed, and it is this collective purpose which must be kept in mind when the Board is exercising the broad authority granted to it under section l(3)(b), and is forming its "opinion" in particular cases."
- The considerations expressed in the Oakwood Park Lodge case are particularly relevant to the nursing profession. Indeed, since nurses were one of the first professional groups to become extensively organized, most of the Board's cases in the area of professional workers have involved nurses, and in particular whether or not the nurses "in charge" of a hospital ward were persons who exercised managerial functions. In most cases, the nurses involved were classified as "head nurse", although a variety of other terms were also employed. In that different hospitals have different managerial structures and have given different degrees of authority to their "head nurses" it is not surprising that the results in the various cases that have come before the Board has not been uniform. In a number of cases the Board concluded that sufficient real decision making and authority had been vested by the hospital in its head nurses such as to justify a conclusion that they were not "employees" for the purposes of the Act. In at least one case, Westmount Hospital [19811 OLRB Rep. May 593, the Board concluded that notwithstanding an earlier Board decision some years previously to the effect that head nurses were "employees", the hospital involved had made sufficient changes in their duties and responsibilities as to make their inclusion in the bargaining unit no longer appropriate. In the majority of cases that have come before the Board, however, the Board concluded that the duties actually performed by the "head nurses" were not sufficient to make them managerial. Perhaps typical of these decisions was the Peterborough Civic Hospital case [1973] OLRB Rep. March 1521 where the Board described many of the duties of the head nurse in that case as follows:
"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 the 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 Hospital 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."
- The Oakwood Park Lodge case, (supra) contains a lengthy review of many of the hospital and nursing home '~head nurse" cases. The Board concluded that the general thrust of these cases was as follows:
"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)."
The "Job Description" drawn up by the respondent Hospital with respect to the unit supervisors appears to give to them very extensive authority, including "correcting unsatisfactory work performance, counselling staff, taking disciplinary action where necessary, terminating employment if necessary". The description also lists as one of their duties: "Participating, on behalf of the Hospital in union negotiations, including consultations to assist in the development of the bargaining position for the Hospital and representing the Hospital on the bargaining committee". If these and the other duties listed on the job description were in fact exercised by the unit supervisors, we would have no hesitation in finding the unit supervisors to be persons who exercise managerial functions. There is no question that the job description indicates that the unit supervisors have a real and independent decision making authority which would be incompatible with membership in the bargaining unit. However, the evidence of Miss Morgan relating to what she actually does and her relationship with one of the associate directors indicates a role very different from that set out in the job description. (It might be noted that this difference between the duties set out in the job description and the duties actually performed by the unit supervisors was also commented on by the board of arbitration). We were not given any explanation as to why Miss Morgan's actual duties do not more closely coincide with the job description.
Miss Morgan does have some involvement in the "hiring" of staff. According to Miss Morgan, on two occasions when job vacancies were posted, she received the list of candidates for the positions. We assume from her reference to a posting that the job applicants were employees of the Hospital who were seeking to transfer into the vacancies from other hospital jobs. After reviewing the personnel files of the applicants, Miss Morgan first selected those she wanted to interview, and then chose the candidate she felt to be most appropriate. In both instances her next step was to get Mrs. A. Rajan, an associate director, to verify her choice. There was another occasion when there was a vacancy for a registered nurse on Miss Morgan's unit. Miss Morgan played no role in filling the vacancy. Rather a nurse was hired from the "outside" by the associate director of staffing. Miss Morgan saw this nurse for the first time when she arrived on the unit for her orientation.
Miss Morgan is responsible for supervising the nursing staff on her unit. To this end she ensures that the nurses are performing their tasks properly and if they are not doing so she advises them as to how to do it correctly. Miss Morgan does some "hands on" nursing, particularly when things are busy. If a nurse has a difficult dressing to do which she has not previously performed, Miss Morgan will do it for her while showing her how it is done. Miss Morgan makes work assignments using patient needs as the criteria. In terms of scheduling, the nurses work off a rotating master schedule. Miss Morgan has at times altered the rotation in consultation with Mrs. Rajan, the associate director. It appears that at least once a day Mrs. Rajan will come to the unit to be briefed about recent developments by Miss Morgan.
When additional staff is required for her unit Miss Morgan notifies the staffing office, which in turn ensures that part-time staff is made available. Miss Morgan has on a number of occasions scheduled staff for overtime work, but on about half of these occasions her decision has been overturned by the nursing office. The longest Miss Morgan has given an employee time off with pay has been for a couple of hours. On one occasion she did purport to grant an employee a six month leave of absence without pay, but this was later rescinded by the director of nursing.
Miss Morgan does an evaluation of regular staff, apparently once a year. In that wage increases are automatic under the collective agreement, the evaluation does not have any direct impact on employee wages. Indeed, the evidence is not at all clear as to impact these evaluations have on other employees. Miss Morgan indicated that if there is a problem with an employee's evaluation, she will inform the associate director about it ahead of time. Miss Morgan also does an assessment of probationary employees, however she discusses these evaluations with the associate director before completing them.
Notwithstanding the wording of the job description, Miss Morgan has not played any role in negotiations, or provided any input into the Hospital's bargaining proposals. She did have the collective agreement explained to her by Mr. Knox, a management official, but only after it had been negotiated. The first step of the grievance procedure in the Ontario Nurses' Association collective agreement calls for a nurse to submit a grievance to her "immediate supervisor". Although this has not yet happened, Miss Morgan believes that she would be the person to receive the grievances. It is clear, however, that Miss Morgan plays no direct role in the grievance procedure affecting orderlies and registered nursing assistants employed on her unit.
Miss Morgan has an input into the setting of the budget for her unit, but she does not make any final decisions in this regard. Miss Morgan indicated that she might request five wheelchairs but get two. She also stated that if she makes a case for a 7 percent allowance for sick time (as opposed to a projected 2.5 percent allowance), she might end up with a 5 percent allowance. Any staffing or supply costs which exceed the amount budgeted for them must be accounted for by Miss Morgan.
In terms of discipline, Miss Morgan has not gone beyond the giving of verbal warnings without first consulting Mrs. Rajan, the associate director. In Miss Morgan's own words:
“... If you're going to go further into a written warning or suspend someone you would discuss that with the associate director for your area. And, of course, anything like a termination would be discussed with an associate director and with personnel."
Miss Morgan has issued two or three written warnings in consultation with the associate director, and has also imposed a ten day suspension after discussing the matter with the associate director and the Hospital's employee relations manager, who was the one who suggested the ten day suspension. With respect to the written warnings, Miss Morgan made the following comment.
"Usually what I do is decide that the written warning is the next step to take and then I would review the situation with the associate director and get her input and then go to the written warning unless she objected (which she has never done)".
From the evidence, it appears that generally before Miss Morgan takes any action which might impact on other employees, she clears it first with Mrs. Rajan, the associate director. Mrs. Rajan appears never to have objected to anything which Miss Morgan has proposed (although others have done so with respect to planned overtime and the proposed six month leave of absence). This situation does not strike us, however, as one where Miss Morgan makes a decision and it is routinely approved by Mrs. Rajan. Rather it appears that Mrs. Rajan, who is kept informed of developments in the ward, puts her mind to what Miss Morgan has proposed, and then makes her own decision as to whether or not Miss Morgan's proposal is a correct one.
The individuals whose status is in dispute have been included in the bargaining unit for some ten years. As the Board indicated the Corporation of the City of Thunder Bay case t1981] OLRB Rep. Aug. 1121, a party seeking to remove individuals from a bargaining unit must be able to provide a firm evidentiary foundation for its position. With respect to Miss Morgan, however, there is little concrete evidence before the Board of the kind of actual conflict of interest to which section l(3)(b) is directed.
When all of the above matters are considered, we are unable to conclude that Miss Morgan exercises the type of real decision making that would make her a person who exercises managerial functions. In the result we are of the opinion that Miss Morgan, and the other unit directors, are "employees" for the purposes of the Labour Relations Act.