[1984] OLRB Rep. December 1785
2672-83-R The Canadian Union of Public Employees, Applicant, v. Willows Estate Nursing Home, Respondent
BEFORE: M. G. Mitchnick, Vice-Chairman, and Board Members W. G. Donnelly and B. L. Armstrong.
DECISION OF THE BOARD; December 5, 1984
This is an application for certification in which the status of the Home's Registered Nursing Assistants remains in dispute. The Board has now reviewed the report of the Labour Relations Officer, together with the submissions of the parties in this matter.
As is normally the case, the respondent at this Home at all times has one individual designated to be "in charge" of each of the floors on each of the shifts. At this particular Nursing Home, this individual is either a Registered Nurse or a Registered Nursing Assistant, and is designated by the familiar term "charge nurse". Part-time Registered Nurses and Registered Nursing Assistants are designated as ''assistant charge nurses~~ . There is also one individual designated at the Home as the "senior charge nurse", and a Director of Nursing to whom all registered staff report. The respondent submits that the Registered Nursing Assistants acting as ''charge nurses'' in this case have responsibilities which place them in the kind of conflict of interest to which section l(3)(b) of the Act is directed. Whether the respondent is correct or not is a question of fact.
Section l(3)(b) provides:
l.-(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
Initially in its jurisprudence, the Board looked in applying section l(3)(b) for evidence of the authority to make independent decisions in a way that materially affects the economic lives of other employees. See the discussion, e.g., in Corporation of the City of Thunder Bay, [1981] OLRB Rep. Aug. 1121, at paragraph 3. More recently the Board has expanded the test to include persons who, by virtue of a proven power to make "effective recommendations", can impact on the economic lives of employees in the same way as the actual decision-maker can; see Mcintyre Porcupine, [1975] OLRB Rep. April 261. In making its factual assessment, as well, the Board has always been careful to take into account the norms of the industry in which the question arises. But even in the standard industrial context, the typical "lead hand" or "team leader'' has not been found to exercise ''managerial functions'' by virtue of the assignment only of a special degree of responsibility for the co-ordination and effective performance of work on the part of the particular crew or group of employees of which he is a part. See, e.g., Rehau Plastics, [1979] OLRB Rep. Sept. 910, at paragraph 3.
In the nursing-care setting, specialized training, standards of professional responsibility, and "collegial" forms of decision-making have added to the difficulty of drawing the "managerial" line in some cases. The Board recently took the time to review these problems in the case of Ottawa General Hospital [1984] OLRB Rep. Sept. 1199. There the Board observed:
Persons who exercise skills, or perform functions which reflect their own specialized training or responsibilities, will necessarily have a specialized role to play in respect of those with lesser or different training and experience. Frequently, it is only the most experienced, highly trained, or specialized employees who will fully understand the technical requirements of a particular job, and whether it is being done in the safest and most 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 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 co-ordinating 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 a lower level of skill, education and training or sometimes perform an assigned role as teacher and trainer — a role which inevitably involves some degree of evaluation — rendering a kind of "report card". In a blue collar context "master craftsmen" typically perform such functions in respect of "journeymen", "apprentices" and assorted "helpers". In a university setting, appraisal by professional peers is institutionalized, and it is not at all unusual for "tenure committees" composed of professors and associate professors to determine whether an assistant professor will move to the ranks of those whose job security and income status are much more secure. But this does not mean that these individuals are precluded from engaging in collective bargaining or, for that purpose, should not be treated as "employees" of the university. This is not to deny that professional or technical employees may also exercise "managerial functions" within the meaning of section 1(3)(b). It is simply that there must be a careful appraisal of the context, and the focus should be upon those powers exercised by the disputed individual which have a significant, 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 l(3)(b), and is forming its "opinion" in particular cases.
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 the significant feature of these cases is the extent to which the Board focused on the special role of professional employees, and declined to equate supervisory or co-ordinating 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....
(original emphasis)
It is the co-ordinating, monitoring and reporting functions of registered nursing staff serving in the capacity of "head" or "charge" nurse which brings them to the periphery of the definition of "employee" under the Act. And about these functions the Board in Peterborough Civic Hospital, [1973] OLRB Rep. March 154, had this to say:
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.
In the present case, the charge nurses will have 4 to 5 aides, being either health care, nurse s or housekeeping aides, working under them. The responsibility of the charge nurses evidenced here to assign work, train employees and ensure proper coverage of their floor is neither unusual nor "managerial". Nor is the resort to them by the Home for an evaluation of the performance and professional competence of employees working under them during the probationary period of their employment. This reflects no more than the consultative process one would expect with the professional individuals working most closely with these probationary employees. More important would be the ability to make effective recommendations with respect to wage increases, discipline or termination of employees on an ongoing basis, and there is no evidence in the transcript that this is done. The charge nurses do fill out and file from time to time written "evaluation reports" concerning problems they may have with the performance of other staff. The witness testified with respect to one of these reports that her "recommendation has been followed through in the past", but on further examination, it became apparent that the witness saw her role as simply noting examples of inadequate standards of performance for management's consideration, and that no recommendation at all was made as to what action the charge nurse felt was justified. Her function, therefore, appears more in line with the reporting or conduit function alluded to in the Peterborough Civic case, supra, than with a "managerial" function. With respect to the "written reprimands" that the respondent submits are issued by the charge nurses in this case, the evidence does not make it clear how the evaluation reports relate to the overall disciplinary process at the Home or even the new disciplinary process discussed at a meeting a short time prior to the witness giving her evidence (and possibly after the application, or "cut-off' date of the present proceedings). The best information the charge nurse who was examined could offer as to how this employee evaluation is used is that it "goes on their employee folder, I guess".
Unlike the "written reprimand", the transcript makes clear that the witness has always felt that she had the authority to issue oral reprimands on a daily basis, but it is apparent from the discussion of the types of matters involved that all of these matters relate to the proper care of the resident, ranging from inadequate timekeeping by the staff-member, to the incorrect method of lifting a resident, and appear on the evidence to be traceable to the charge nurse s technical expertise and professional responsibility, more than to any "disciplinary" role as a member of management.
With respect to hiring, the charge nurse can recommend for employment someone that she knows, or give her opinion on someone she has worked with before, but the final decision is made by the Director of Nursing. The charge nurse plays no role in the interviewing of new prospective employees. At one point the charge nurses as a group recommended to the Director of Nursing an increase in staff, but "not much" happened. The charge nurse can only authorize the working of overtime to cover a shift on an emergency basis, and only if the Director of Nursing is herself not available. The charge nurse can approve an employee leaving early on a shift only if the employee has been successful in arranging for someone to cover. Otherwise, the matter must go to the Director of Nursing. Similarly, all requests by employees to switch shifts must be submitted to the Director of Nursing, who has the responsibility at this Home for all scheduling. The charge nurses also participate in what the respondent described as "management" meetings, and which are made up of the "registered nursing staff' of the Home. These meetings, however, appear to be no more than is consistent with the role of the professional nursing staff of the Home acting as conduits for the implementation or communication of management's policy to the full staff. There was, once again, no development in the evidence of the discussion of the disciplinary process which took place at one of these meetings, or even the date as of which such a meeting occurred.
Each case must turn on its own facts, but it is necessary for the Board to develop through its experience certain broad tests against which each set of facts can be measured, in order to be able to provide some measure of continuity and predictability in the community. On all of the evidence here, the Board cannot conclude that the Registered Nursing Assistants, acting in the capacity of "charge nurses" at Willows Estate Nursing Home, have been exercising "managerial functions" within the meaning of section l(3)(b) of the Act, and the Board finds them to be "employees" for the purposes of the Act. The Board does, however, draw to the parties' attention the recent decision of the Board in Windsor Western Hospital, [1984] OLRB Rep. Nov. 1643, in connection with the union's duty of "fair representation", insofar as persons exercising limited supervisory functions may also come to hold positions of responsibility within the union.
The Board accordingly now certifies the applicant on a final basis as bargaining agent for all employees of the respondent in Aurora, Ontario, save and except Registered Nurses, Graduate Nurses, Supervisors and persons above the rank of Supervisor. For the sake of clarity, the Board notes that the term "Supervisor" does not include the Registered Nursing Assistants examined by the Board in the present application.
A certificate will issue to the applicant.