Ontario Nurses' Association v. Victorian Order of Nurses, Lakehead Branch
[1984] OLRB Rep. February 395
0572-83-R Ontario Nurses' Association, Applicant, v. Victorian Order of Nurses, Lakehead Branch, Respondent
BEFORE: R. O. MacDowell, Vice-Chairman, and Board Members J. Wilson and C. A. Ballentine.
APPEARANCES: Dan Anderson for the applicant; F J. W Bickford for the respondent.
DECISION OF THE BOARD; February 28, 1984
Decision
1This is an application for certification.
2When this matter initially came on before the Board for hearing, the respondent raised certain objections to the composition of the bargaining unit proposed by the applicant union. In particular, the respondent asserted that the "assistant nursing supervisor" should be excluded on the grounds that she exercised managerial functions within the meaning of section 1 (3)(b) of the Act and was not, therefore, an "employee" under the Act who could properly be included in the unit. The respondent further contended that the some ten or eleven individuals employed as "community co-ordinator/case managers" also exercised managerial functions. In the alternative, it was contended that the "community co-ordinator/case managers" were not employed in a nursing capacity and that, on this independent basis, they should not be included in the proposed bargaining unit. The Board determined, however, that the union's right to certification could not be affected by the Board's ultimate decision as to the inclusion or exclusion in the bargaining unit of the individuals occupying the positions of "assistant nursing supervisor" and "community co-ordinator/case manager". Accordingly, pursuant to section 6(2) of the Act, the Board certified the applicant on an interim basis pending the resolution of the dispute concerning the final composition of the bargaining unit. The Board noted that a formal and final 'certificate must await the resolution of that matter, and appointed an Officer to inquire into the duties and responsibilities of the individuals whose status was in dispute.
3Pursuant to the Officer's appointment to inquire into and report to the Board on the duties and responsibilities of the subject individuals, the Officer convened a meeting of the parties at the premises of the respondent in Thunder Bay on September 14, 1983. At that meeting, the parties were able to reach agreement that the "assistant nursing supervisor" did indeed exercise managerial functions within the meaning of section 1 (3)(b) of the Act, and, accordingly, was not an "employee" who should properly be included in the bargaining unit. The parties were also able to agree that the evidence of Hazel McLean, one of the community co-ordinator/case managers would be representative of the group of individuals currently occupying that classification. The testimony of Ms. McLean was recorded and transcribed, as was the testimony of Ms. Ivy Isherwood, the respondent's district director. At the completion of this examination both parties were asked if they had any further evidence or witnesses that they wished to call and each of them indicated that it did not. In the course of the enquiry of the Officer, both parties were afforded full opportunity to be heard, to examine and cross-examine, and to introduce evidence bearing on the issues in dispute between them.
4Following the release of the Officer's report (which, as noted, included a transcript of the witnesses' testimony), the applicant union made written representations as to the conclusions which, in its submission, the Board should reach on the basis of that evidence; and the respondent requested a hearing. Upon the respondent's request, the Board scheduled a hearing which was held in Toronto on December 16, 1983. A representative of the union appeared to make representations as did counsel for the respondent employer.
5Section 1 (3)(b) of the Act has been in the statute in its present form since 1957 when, after the decision of the Supreme Court in Re OLRB Bradley et al. and Canadian General Electric Co. Ltd., 1957 CanLII 114 (ON CA), [1957] O.R. 316 (C.A.), reversing 1955 CanLII 162 (ON HCJ), [1956] O.R. 437 (O.H.C.), the Legislature amended the section to clarify the Board's jurisdiction and authority by adding the words "in the opinion of the Board" to the section. Section l(3)(b) currently reads:
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 "mischief' to which the section is addressed and the Board's general approach to its interpretation was discussed at some length in The Corporation of the City of Thunder Bay, [19811 OLRB Rep. Aug. 1121:
[Excerpt containing paragraphs 2-6 inclusive omitted.]
[See also Oakwood Park Lodge, [1982] OLRB Rep. Jan. 84; application for judicial review dismissed; and generally, Sack and Levinson, Ontario Labour Relations Board Practice, (Butterworths) 1973, pp.25-34, and 1977 updating supplement, pp. 9-14.]
6We do not think it is necessary to undertake any exhaustive review of the Board's decisions in the health care sector. Such review was conducted in Oakwood Park Lodge, supra, and need not be repeated here. Nor, in our view, is it necessary to reproduce in these reasons a condensation of the testimony appearing in the transcript. It suffices to say that, having carefully considered that testimony, we are unanimously of the opinion that the community co-ordinator/case managers do not exercise managerial functions within the intended meaning of section 1 (3)(b) of the Act. Indeed, they have virtually none of the usual indicia of managerial authority and exercise none of the usual functions which might give rise to the kind of conflict, rooted in the adversarial nature of collective bargaining, that section 1 (3)(b) was designed to avoid.
7The evidence indicates that the alleged "managers" do not have any employees under their direction and control. They do not have responsibility for the quality or kind of work done by other employees. They do not instruct other employees on the manner in which their work should be done. They do not check or correct work of others. They do not assign work. They have no role to play in disciplining employees. They do not do job evaluations. They do not schedule employees' working hours or vacations. They do not authorize overtime or grant casual time off. They have no real role in hiring, firing, employee transfers or layoffs. They are not involved in the determination of other individuals' rates of pay. They have no significant role in the budgeting process and cannot be said to exercise the kind of significant executive decision-making responsibilities which would warrant the exclusion of senior members of management who may not have a direct role in personnel matters.
8The evidence of the respondent's district director confirms that "the co-ordinators" have no role in staffing, hiring, firing, layoff, or other personnel matters and no role in the billing/payment process. Their primary role is to assess and monitor the needs of patients referred to the programme by a physician and help co-ordinate the delivery of services (be they from other health care professionals or other community agencies) to meet those patient needs. That is a professional judgment of health needs made in conjunction with other health care professionals and, no doubt, will ultimately have some effect on the activities of the respondent's other employees, as the respondent deploys its resources to meet the demand for them. But this no more makes the co-ordinators "managerial" (within the sense intended in a collective bargaining statute) than, in another context, salesmen who identify consumer demands in the market which a production facility seeks to meet. If the co-ordinator is of the opinion that a particular patient requires nursing visits — as many of the patients in the home care programme do - more nursing visits may in fact be provided and the co-ordinator may continue to monitor the situation and discuss with the visiting nurse how things are going. But as to the nursing complement, whether nurses will be hired, whether part-timers or casuals will be called in, the scheduling of nursing staff, their wages, job evaluations and so on —all those matters are dealt with by individuals who do exercise the kinds of functions to which we have already referred and are therefore "management" in a traditional sense. The community co-ordinator/case managers are not.
9Nor do we accept the respondent's submission that the community co-ordinator/case managers are not employed "in a nursing capacity" — even though they do not personally do "hands on" patient care. At the present time all of the incumbents in this position are in fact registered nurses who, on the evidence, are employed in positions in which they are expected to be able to use their qualifications as a registered nurse. It is interesting to note that when a vacancy was advertised the respondent itself made it a qualification that applicants have a Bachelor's Degree in nursing. If the respondent did not think that the successful individual should possess the training and skills of a nurse in order to properly carry out her work, why make that an advertised qualification for the job? It is also interesting to note that a number of the individuals in the co-ordinator position were R. N. 's who came from the respondent's own "hands on" nursing group in what the director of the programme described as a "lateral transfer". Moreover, the testimony of the co-ordinator who gave evidence indicates that she does in fact rely upon her nursing background and experience in carrying out her duties. She interacts with other members of the health care team and with physicians, exercising the diagnostic skills and professional judgment of a nurse. It may be that there is no regulatory requirement to have a nurse in this position and at some time in the past and early phases of the home care programme there was a co-ordinator who was not a registered nurse but a physical and occupational therapist. But that does not mean that those who are registered nurses and using their skills as such are not employed in a nursing capacity. It means only that the professional skills exercised by various health care professionals are not enclosed in watertight compartments, and that if the respondent were once again to hire a co-ordinator who was not a registered nurse, that individual would fall outside the nurses' bargaining unit.
10Having regard to the foregoing, a final certificate can issue to the applicant union in respect of a bargaining unit framed as follows:
"All registered and graduate nurses employed in a nursing capacity by the respondent in the City of Thunder Bay, save and except assistant nursing supervisor, nursing supervisor, and persons above the rank of nursing supervisor."