[1983] OLRB Rep. October 1681
0836-83-U Ontario Nurses' Association, Complainant, v. Kingston General Hospital, Respondent.
BEFORE: N. B. Satterfield, Vice-Chairman and Board Members J. A. Ronson and B. L. Armstrong.
APPEARANCES: Judith McCormack, Karen Leeder, Marianne Hunter and Elinor Leakey for the complainant; K. McGeorge, B. Snider, Donald Halpert, Steve Knox and R. A. Little, Q. C. for the respondent.
DECISION OF THE BOARD; October 12, 1983
- This is a complaint filed under section 89 of the Labour Relations Act alleging that the Kingston General Hospital ("the Hospital") has violated sections 3, 64, 66 and 70 of the Act. Those sections provide as follows:
[Sections omitted]
The complaint in summary is that the Hospital's job description for the classification of unit supervisor, a classification which is included in the bargaining unit, contains statements requiring unit supervisors to process grievances at the first step. of the grievance procedure set out in the collective agreement between the parties and to discipline other bargaining unit employees whom they supervise. The complainant Ontario Nurses' Association ("the Association") contends that the existence of those provisions in the job description, when assessed in the context of the history set out herein of the Hospital's several unsuccessful attempts to have the classification excluded from the bargaining unit and regardless of whether the unit supervisors perform the duties described, creates a conflict of interest between their responsibilities to the Hospital and to their fellow employees in the bargaining unit. That conflict in turn impinges on their opportunity and ability to participate in the lawful activities of the Association. It is that result which Association counsel alleges makes the Hospital's conduct in continuing to state that the unit supervisors are responsible for processing grievances of bargaining unit employees and for disciplining those employees constitutes a violation of the Act.
The Association seeks, as relief, to have the Board:
(1) issue a declaration that the Hospital has violated the Labour Relations Act;
(2) issue a cease and desist order to the Hospital prohibiting the Hospital from continuing to assign to unit supervisors the duty of responding on behalf of the Hospital to grievances filed by other members of the bargaining unit and the duty to discipline members of the bargaining unit;
(3) issue a cease and desist order to the Hospital prohibiting it from taking any action that would interfere with the right and ability of the Association to continue to represent all individuals and positions now within the scope of the bargaining unit;
(4) any other remedy necessary to make the grievors whole.
The job title unit supervisor was adopted by the Hospital in March 1981 and replaced the earlier job title of head nurse. Head nurses had been included in the bargaining unit since the Board issued the certificate to a predecessor of the Association in June 1971. The application for certification had been made in January 1971 and, at that time, the Hospital sought exclusion of head nurses pursuant to section 1 (3)(b) of the Act on the grounds that they exercised managerial functions. The Board conducted an inquiry into the duties and responsibilities of head nurses, found them to be employees within the meaning of the Act and included them in the bargaining unit covered by the certificate. The Association and Hospital concluded the first collective agreement in March 1972 and have concluded successive collective agreements since then, the most recent of which was made in April 1983 for the term October 1, 1982 to September 30, 1984. Throughout the terms of those collective agreements head nurses (and now unit supervisors) have been included in the bargaining unit. In March 1981, the Hospital reorganized its management structure for the stated aim of improving, amongst other things, the lines of reporting and communications and decentralizing the decision-making authority. The head nurse's job was part of the reorganization. The Hospital's view of what happened to the head nurses' job in the reorganization is that it was eliminated and replaced with a job of unit supervisor. The Hospital treated that job as one which was not in the bargaining unit and, therefore, it ceased deducting union dues for the former head nurses who had applied for and been appointed to the new position of unit supervisor.
The Hospital's action triggered two grievances from the Association, both of which were heard by an arbitration board chaired by Gail Brent. The nature of the grievances required the arbitrator to determine whether a new classification had been created by the change and, if so, whether it was in the bargaining unit described in the collective agreement. With respect to those questions, a majority of the arbitration board concluded that “… Unit Supervisor is not a new classification but ... it should be regarded for all purposes under the collective agreement as substantially the same as the Head Nurse classification". Prior to coming to that conclusion, the majority award comments as follows:
“...... It may be that the job of Head Nurse/Unit Supervisor is changing or has changed to the extent that it may no longer be possible to consider them employees under S. l(3)(b) of the Act. If that is so, then there is provision in S.95(2) of the Act to apply to the Ontario Labour Relations Board to seek to have the classification excluded from the bargaining unit. Such a determination is beyond the powers of this board which must concern itself only with the interpretation of the collective agreement.”
- In July 1982, the Hospital filed a referral under section 106(2) [formerly section 95(2)] of the Act seeking a determination from the Board that unit supervisors exercise managerial functions and were not employees for purposes of the Act. The Board followed its customary procedures, authorized a Board Officer to inquire into the duties and responsibilities of unit supervisors, received the submissions of the parties on the evidence contained in the Board Officer's report and issued its decision April 27th, 1983. The Board as constituted in that case had before it the same job description for unit supervisors as is before the Board herein. It concluded that unit supervisors were employees for purposes of the Act. In arriving at that conclusion, the Board stated the purpose of excluding from the Act persons who, in the Board's opinion, exercise managerial functions, to be one of ensuring "... that persons within a bargaining unit do not find themselves faced with a conflict of interest between their responsibilities and obligations as managerial persons, and their responsibilities as trade union members or employees in the bargaining unit.". The Board went on to review at length the reasoning behind that purpose, the Board's criteria for determining whether persons were exercising managerial functions, and relevant Board jurisprudence on the issue. The Board took note of the authority in the job description with respect to discipline, grievance handling and certain other duties and commented:
"If these and 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.
The Board noted, however, that the evidence before it indicated a very different role for unit supervisors than that set out in the job description and, having examined that role, found "... little concrete evidence ... of the kind of actual conflict of interest to which [the exclusion of persons who exercise managerial functions is directed]." After applying the Board's usual criteria to the evidence before it, the Board was unable to conclude that unit supervisors exercise managerial functions.
- When the Association received the Board's decision, it wrote to the Hospital on May 10, 1983 as follows:
Following receipt of the Ontario Labour Relations Board's decision re Unit Supervisor, please be advised that the Association believes that it is inappropriate for the Unit Supervisor to be involved with the grievance procedure or to be involved in formal disciplinary matters.
The subject matter of the Association's letter was discussed at a meeting of the parties on June 13th and, by letter dated June 28th, 1983, the Hospital replied to the union's request as follows:
This is in response to your letter of May 10, 1983 and our discussion on June 13, 1983.
We are not prepared to delete the Unit Supervisors involvement in the grievance procedure or formal disciplinary matters at this time.
This complaint was filed July 19th and it is the position taken by the Hospital in its June 28th letter which the Association alleges violates sections 3, 64, 66 and 70 of the Act. In other words, the Hospital, by continuing to have the job description for unit supervisors ascribe to them the duties of processing and replying to grievances of bargaining unit employees at the first step of the grievance procedure in the collective agreement and of disciplining bargaining unit employees, violates the aforesaid sections of the Act. The Association does not base its claim that the Act has been violated on any allegation that the Hospital harbours any anti-union motive.
The Association's argument in support of its allegation that the Hospital's conduct has violated the Act was framed against the rationale behind excluding from the collective bargaining relationship persons who exercise managerial functions. The assignment of such persons to the interests of employers and the resulting deprivation of their rights to collective bargaining, counsel claims, is an abridgement of the important right of all Canadians to the freedom of association now guaranteed and protected in the Canadian Charter of Rights and Freedoms and first recognized by the Parliament of Canada in 1918. Counsel argues that, since abridgement of that freedom arises out of a need perceived by the Federal and all Provincial jurisdictions in Canada to protect employers from the conflict of interest which would arise from the divided loyalties likely to be experienced by such persons if, at one and the same time, they were expected to represent the employer's interest in dealing with bargaining unit employees while they were represented in collective bargaining by the same bargaining agent and were in the same bargaining unit, this Board, in the case of Ontario, has an obligation to be sensitive to that same protection giving rise to interference with the rights and interests of unions. Counsel gave a number of examples where, with or without improper motive on the part of an employer, there could be unfair labour practices arising out of attempts or the aftermath of attempts to exclude persons from the bargaining process. The sheer number of cases where employers have sought managerial exclusions beyond those being sought by the unions applying for bargaining rights, counsel contends, expresses the labour relations reality that the policy of excluding persons who exercise managerial functions from the bargaining relationship primarily benefits management and not unions. If the reality was that both parties benefited, counsel claims that we would not see these numerous attempts to exclude persons on the grounds of exercising managerial functions. In fact, counsel claims, the assignment to the side of employers of such persons has increased the opportunity for conflict of interest between the bargaining agents and their members and amongst their members and has increased the potential for interference with their rights under the Act.
It is against that background and the Hospital's three unsuccessful attempts to remove unit supervisors from the bargaining unit, counsel asserts, that the Board must assess the impact on the rights under Act of bargaining unit employees, including the unit supervisors, from the Hospital continuing to purport that the unit supervisors are responsible for, amongst other things, disciplining bargaining unit employees and processing their grievances. That requirement, counsel argues, creates a conflict of interest between the unit supervisors responsibility to the Hospital and to their fellow employees in the bargaining unit which in turn interferes with their rights to participate in the lawful activities of the Association. The Association gave a number of examples where it saw the potential for interference with the rights and obligations of these employees under the collective bargaining to participate in the collective bargaining process as well as a potential for conflict with their duties and responsibilities as members of the Association under its constitution.
While the Board is not going to detail the Association's arguments or the examples it has given of the impact of the managerial exclusion policy on the rights and interests of unions or examples of the rights of employees alleged to have been violated by the Hospital's conduct in this particular case, the Board has reviewed these in the context of Association counsel's entire argument and suffice to say that the Board does not agree with counsel's view that, in the push and pull of the competing interests of the parties to a collective bargaining relationship, the assignment to employers of those persons who exercise managerial functions operates to the benefit of employers and not to trade unions. To that extent, the Board finds this complaint to be misconceived.
Counsel referred the Board to a decision of the British Columbia Labour Relations Board in Corporation of the District of Burnaby, [1974] 1 CLRBR at page 3, for an expression of why persons exercising managerial functions have been assigned by all legislative jurisdictions in Canada to the side of management. The passage to which counsel directed the Board's attention is the first paragraph in a quotation from that decision referred to in paragraph 8 of the Ontario Labour Relations Board's decision with respect to the Hospital's July 1982 referral under section 106(2) of the Act. See, [1983] OLRB Rep. April 551, paragraph 8 of which reads as follows:
"8. Section 1 (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 CLRBR 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."'
(emphasis added)
As counsel for the Association correctly pointed out, the District of Burnaby decision explains the purpose of the managerial exclusion as protecting the arm's length relationship which is essential to effective collective bargaining. No doubt that is the rationale underlying section l(3)(b) of the Act and the Board agrees with counsel that it is the rationale behind similar provisions in the legislation of the other jurisdictions in Canada. But the rest of the quotation goes on to describe the protections which this affords to both parties to the relationship. It is quite clear, from the emphasized passage quoted above, that real benefit accrues to bargaining agents as well as to employers, thus there is balance to the protection afforded by managerial exclusions. The maintenance of that balance and the weighing of the interests of employees represented and seeking to be represented in collective bargaining, their bargaining agents and the employers is part of the balancing which the Board does every time it determines on the facts before it whether a person exercises managerial functions, be it a representation application or a reference under section 106(2) of the Act. The protection of the interests of employees, bargaining agents and employers lies in that balancing. The result of that balancing may be less than perfect in the eyes of the beholder. For example, some or all of the unit supervisors may have been satisfied to retain their access to the collective bargaining process, but find themselves in a state of limbo, to use Association counsel's term, with respect to their relationship with other members of the bargaining unit and with the Hospital's management because their duties contain some elements of managerial function, although not enough to exclude them from the bargaining unit. This is frequently the lot of persons who occupy a lead-hand type of job. Absent evidence of anti-union motives or evidence that the state of limbo is interfering with rights protected under the Act, the mere presence of that state is not a violation of the Act.
The respondent's motive is not an issue in this complaint and the Board finds that there is no evidence before it which would sustain the allegation that the Hospital's conduct referred to herein violates the Act. In the result this complaint is dismissed.
While the Board is satisfied that the facts of this case do not substantiate the alleged violation of the Act, the Board remains concerned about one aspect of it. As was the situation in the earlier proceedings before the board of arbitration and another panel of this board, there is no anti-union sentiment at play here. There is nothing in the evidence before the Board herein, including the findings of fact made by the earlier tribunals, which suggests that the parties do not have an effective collective bargaining relationship. It is patently clear that the Hospital, for sound management reasons, wishes to introduce a new level of managerial authority which would subsume all of the duties previously performed by head nurses and would include the authority and responsibilities set out in the job description with respect to the processing of grievances and the exercising of discipline. In these circumstances, rather than the Hospital baldly asserting its management rights to structure the work force and the Association pursuing its legal rights under the Act, it seems to the Board that they might better serve the interests of their respective constituents by discussing and resolving the issue.
The earlier decision of the Board, differently constituted, and the arbitration award offer reasonably clear guidelines for the Hospital with respect to the action it should take if it wishes to succeed in having unit supervisors accepted as exercising managerial functions and thus not employees in the bargaining unit. A decision to take such action is one which the Hospital can make without any requirement under the collective agreement to discuss or negotiate it beforehand with the Association. The impact of that decision on the bargaining unit employees, particularly the unit supervisors, is, however, a potentially beneficial subject for the discussion between the parties, whether or not the collective agreement obligates discussion. Such discussion could enable the hospital to ascertain through the Association which of the unit supervisors would be content to leave the benefits of collective bargaining behind them for whatever opportunity they see in the new position and which employees might prefer to forego the unit supervisor job in order to retain access to the collective bargaining process. If some employees were to exercise the latter option, it would be left open for the parties to explore and determine what job assignments and working conditions would be available for those employees; what effect their choices might have on other bargaining unit employees; and, whether bargaining unit employees would receive any preferential consideration in applying for immediate and/or future unit supervisor openings. At the very least, discussion would clarify for the present unit supervisors the consequences of remaining in that job.