Ottawa General Hospital v. Ontario Nurses' Association, 1984 CanLII 1125

[1984] OLRB Rep. September 1199

1154-83-M Ottawa General Hospital, Applicant, v. Ontario Nurses' Associa­tion, Respondent

BEFORE: R. O. MacDowell, Acting Alternate Chairman, and Board Members F. W. Murray and B. L. Armstrong.

DECISION OF R. O. MACDO WELL, ACTING ALTERNATE CHAIRMAN, AND BOARD MEMBER B. L. ARMSTRONG; September 13, 1984

1. This is an application under section 106(2) of the Labour Relations Act. The parties seek the opinion of the Board on whether the individuals occupying the position of "nurse clinician" exercise managerial functions" within the meaning of section l(3)(b) of the Act. If, in the Board's opinion, they do exercise "managerial functions", then they are not "employ­ees" covered by the Act. They would not be entitled to engage in collective bargaining, they cannot be members of the Association's established bargaining unit, and they cannot be covered by the applicable collective agreement.

2. The applicant employer takes the position that the nurse clinicians have been a functioning part of the "management team" since the creation of that position in mid-1980. The employer asserts that it has a "decentralized" form of management organization of which the nurse clinicians are an integral part. The employer argues that they therefore must be excluded from collective bargaining under the Labour Relations Act. The respondent Associa­tion ("ONA") acknowledges the important professional functions performed by the nurse clinicians, but asserts that they do not play a "management role" within the meaning of section l(3)(b). They have little or no independent authority and even those duties of an arguably managerial character are circumscribed by the requirement of general discussion and approval by others.

3. We might note that this case arises, in part, because of the award of an arbitration board chaired by Martin Teplitsky, Q.C. The arbitration board had to determine whether the nurse clinicians were excluded from the collective agreement between ONA and the employer, which, in turn required a consideration of the "recognition" clause in the parties' collective agreement. The board of arbitration found that the nurse clinicians were neither "charge nurses" nor persons above that rank, and thus they were part of the bargaining unit covered by the collective agreement. The employer's position in this case is that the nurse clinicians are not "employees" within the meaning of the Act, so that they cannot be covered by the agreement in any event. Needless to say, whether that position can be sustained or not depends upon what the nurse clinicians actually do, and the interpretation of section l(3)(b) of the Labour Relations Act.

4. In accordance with the Board's usual practice in these matters, it appointed a Board officer to inquire into and report on, the duties and responsibilities of the disputed individuals. The evidence was transcribed in the officer's report, which, like the Board decision itself, notes certain agreements upon which the parties were prepared to proceed. Those agreements need not be repeated here. It suffices to say that following the release of the officer's report both parties were extended the opportunity to make representations as to the conclusion which Board should reach in light of the evidence, and both parties took that opportunity. Our opinion, therefore, is based on the evidence contained in the report and the written representations received from the parties.

5. In view of the circumstances of this case, and the submissions of the parties, it may be useful to refer to the jurisprudential background against which this decision is made. Although each case turns on its own facts, this is but the latest in a long series of cases where the Board has had to consider the status of registered nurses who were not primarily engaged in "hands on" nursing care, but rather were performing a variety of teaching, co-ordinating, administrative and professional functions. See Peterborough Civic Hospital, [1973] OLRB Rep. March 154; Ajax and Pickering Hospital, [1970] OLRB Rep. Feb, 1283; Essex Health Association, [1970] OLRB Rep. Nov. 824; and Toronto East General Orthopaedic Hospital, [1974] OLRB Rep. Oct. 671. It may be useful therefore, to review the background of section l(3)(b) of the Act, and the way in which the Board has approached its application in the health care field. As will be seen, in a professional milieu, it is often difficult to identify and distinguish undisputably "managerial functions" as that term is used in common parlance, or in a typical office or industrial setting. The nursing professionals in a modern hospital must necessarily share the responsibility for the quality of patient care, engage in collegial modes of decision making, defer to those members of the health care team with specialized training or experience, and faithfully report conditions potentially prejudicial to the patients' welfare — even if that implies some criticism of other members of the team. In this professional context, the "workers versus bosses" model — with its emphasis on conflicting interests — may underestimate the shared professional goals and responsibilities of the individuals concerned. Indeed, in the case of registered nurses, those duties may exist quite apart from the usual structures and lines of authority evident in the typical employer-employee relationship, because the nurses' conduct, judgments, and performance may be scrutinized by the College of Nurses pursuant to the Health Disciplines Act. Censure by that body can lead not just to loss of a job, but also the forfeiture of a career requiring years of training. It is hardly surprising therefore that, as a result of extensive professional training and external constraints, there is little need for the forthright front-line manager frequently found in the industrial setting. That is why it is sometimes difficult to distinguish those employees (in a common law sense) who should not be treated as employees for collective bargaining purposes. That is what section l(3)(b) is really about.

6. Section l(3)(b) of the Act currently reads as follows (emphasis added):

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 or is employed in a confidential capacity in matters relating to labour rela­tions.

7. Section l(3)(b) has been in the statute in its present form since 1957, when, following the decisions of the Supreme Court in Re 0. L. R. B., Bradley et al and Canadian General Electric Co Ltd. 1957 CanLII 114 (ON CA), [1957] O.R. 316 (C.A.) rev'g 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. The "old" wording read:

(3) For the purposes of this Act, no person shall be deemed to be an employee,

(b) who is a manager or superintendent or who exercises managerial functions or is employed in a confidential capacity in matters relating to labour relations.

This change in statutory language did not change the basic problem to which section l(3)(b) is addressed, although in the decades following the amendment the Board has had to apply section l(3)(b) in employment settings markedly different from those prevalent and typical in the 1950's. (For an interesting commentary on the extension of collective bargaining to white-collar salaried professionals — a trend characteristic of the 1960's and 1970's, see: G. W. Adams, "Collective Bargaining by salaried Professionals" (1977) Industrial Relations, Volume 32, No. 2 at pp. 184-199).

8. The purpose of section l(3)(b) is to ensure that persons who are within a bargaining unit do not find themselves faced with a conflict of interest as between their responsibilities and obligations as managerial personnel, and their responsibilities as trade union members or members of 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 l(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 has been succinctly stated by the British Columbia Labour Relations Board in Corporation of the District of Burnaby, [1974] 1 Can. LRBR 1 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.

Similar general observations were also made by this Board in Toronto East General Orth­opaedic Hospital, supra, where the Board was also considering the status of health care professionals and had this to say:

The section l(3)(b) exclusions represent a legislative recognition that viable collective bargaining requires that employers be able to effectively partici­pate in that adversary process known generally as labour relations. It was felt that effective participation in the labour relations process — a process that centers on collective bargaining — requires some assurance of security in the ranks of management. Moreover, the inclusion of independent deci­sion-makers, particularly decision-makers in the realm of labour relations, in the bargaining unit might compromise the judgment of such individuals. But the section has not been an easy provision to apply. Because of the complexities of the work environment and the need to balance the rights of employees to join and fully participate in a trade union against the employer's interest in maintaining its labour relations, the Board has had to make very difficult judgments in drawing the line that demarcates management from the bargaining unit; (See generally The Corporation of the District of Burnaby and CUPE, Local 23 [1974], Can. LRBR 1 (B.C.); Reed, White-Collar Bargaining Units under the Ontario Labour Relations Act (1969) p. 27. For the United States approach to these exclusions see Note, Labour Law — The National Labour Relations Board redefines and Restricts the Scope of Managerial Employee Classification (1973) 26 and. L. Rev. 850). But because The Labour Relations Act must be interpreted as an Act in the public interest, it is incumbent on persons who seek to exclude employees from the scheme of the Act to prove that such persons exercise managerial functions. (See Bakery & Confectionery Workers I.UA. v. Salmi 1966 CanLII 84 (SCC), 56 D.L.R. (2d) 193).

9. These concerns underlie and help to explain the Board's decisions under section l(3)(b); however, the Labour Relations Act itself does not contain a definition of the term "managerial functions", nor are there any specified criteria to guide the Board in forming its opinion. The task of developing such criteria has fallen to the Board, and in recognition of the fact that the exercise of managerial functions can assume different forms in different work settings, the Board has, over the years, evolved various general approaches to assist it in its inquiry. In the case of so-called "first line" managerial employees, an important question is the extent to which they make decisions which affect the economic lives of their fellow employees thereby raising 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, and the exercise of such authority is clearly incompatible with participation in trade union activities as an ordinary member of the bargaining unit. In the case of more senior managerial personnel whose decision-making may have a less direct or immediate impact on bargaining unit employees, the Board has focused on the degree of independent decision-making authority over important aspects of the employer's business. It is evident that persons making significant executive or business decisions should be considered a part of the "management team" even though they do not exercise the kind of direct authority over employees which is characteristic of a first line foreman.

10. As we have already noted, a perusal of the Board's jurisprudence in the health care sector, and elsewhere, reveals the special significance accorded to the authority to make decisions which impact significantly and adversely on an employee's wages, benefits or job security. It is that kind of decision-making which the Board has always regarded as the exercise of a "managerial function" which justifies an exclusion from collective bargaining on the "conflict of interest" rationale set out above. Indeed, in Ontario, the Board has extended the ambit of section l(3)(b) beyond the actual or ultimate decision-maker, to those who make what the Board has called "effective recommendations" which materially affect the conditions of employment of those supervised. [See: Mcintyre Porcupine Mines Ltd., [1975] OLRB Rep. April 261, and Inglis Ltd. [1976] OLRB Rep. June 270; and for a contrary view of the effect of similar provisions in the Canada Labour Code, see: British Columbia Telephone 76 CLLC ¶ 16,015 at page 467 where the Canada Labour Relations Board expressed concern about the apparent "instant multiplication of managers" excluded from the Code, when the decision maker decides to base his decision upon the "input" of a number of informed subordinates, acting in committee or independently consulted.] In framing the test in this way, the Board has not ignored the real distinction between a person recommending or influencing a decision, and the one ultimately making it. Supplying information or "input" is not the same as deciding, and a person who does only the former has a much weaker claim when it is suggested that he is exercising "managerial functions". Modern business organizations — especially those employing professionals, — encourage the free flow of information and ideas from subordinates to superiors. Consultation and involvement in the decision-making process, improve communi­cation in both directions, clarify the employer's problems and objectives, improve employee morale, and make optimum use of employee ingenuity or expertise. "Participatory management styles" have become a prevalent technique in large organizations for reducing employee alienation and increasing commitment to the goals of the employer. In small organizations, consultation is inevitable because of the small number of individuals who must work together effectively if the goals of the organization are to be realized. One should not conclude however, that the existence of consultation, or an apparent "democratization" of decision-making, means that real managerial authority has percolated downwards. "Managerial" authority in the sense intended by the statute (i.e authority of such character that it excludes the individual(s) from the terms of the Act) cannot be substantially diluted, diffused, dispersed, distributed or decentralized throughout an organization, without raising a question about whether these various participants in "collective" decision-making must necessarily all be excluded from the scope of the Act. An employer is entitled to structure his organization as he sees fit, but there is a limit on the extent to which he can unilaterally multiply the number of excluded persons by purportedly creating additional "foremen", or by installing a process of management by committee. On the other hand, there will obviously be situations where individuals make serious recommendations which regularly and significantly impact upon the employment situation or security of fellow employees. If these recommendations, on the evidence, are routinely acted upon to the detriment of those employees, then it can be said that the person making the recommendation is, if not the actual decision-maker, then one decisively influencing that decision and thereby exercising a significant influence over the livelihood or economic destiny of his co-workers. Such influence carries with it the potential for conflict to which section l(3)(b) is directed. It remains a question of evidence whether an individual's own authority extends this far.

11. Unfortunately, as the Board noted in Toronto East General Orthopaedic Hospital, the line between "employees" and "management" for labour relations purposes is frequently very difficult to draw. In each case, the Board attempts to ascertain the degree of effective control which the alleged "manager" has over his "subordinates"' employment relationship — bearing in mind the employees' right to collective bargaining, and the potential for the kind of conflict which section l(3)(b) was designed to avoid. But there is no litmus test which is universally applicable and dictates the result in every situation. In assessing each case, the Board must have due regard to the nature of the industry, the nature of the particular business, and the individual employer's organizational scheme. Moreover, organizations, collec­tive bargaining structures and the Board's own jurisprudence are all in a process of evolution. In Peterborough Civic Hospital, [1973] OLRB Rep. March 154 the Board put it this way:

In earlier days when this Board was formulating criteria for determining managerial functions it was confronted in the majority of cases with indus­trial situations. Labour Relations has now evolved to the point where we are presently being confronted with increasing applications for white collar bargaining units, particularly in municipalities and other government bodies and also at Universities.

The organization of industry in many instances has evolved to the point where it differs from the period when the Board was first formulating its views about managerial functions. Some account must be taken of the changing situation. Further, while many white collar bargaining units are similar to bargaining units in the industrial sector, there are many instances where the industrial model, which we have developed at this Board, is not applicable to the white collar model. It is therefore necessary that our decisions with respect to bargaining units and managerial personnel reflect the new and evolving situations rather than reflect an oversimplified applica­tion of the former industrial criteria to the white collar area.

That approach is not unusual, and we have recognized that certain industries and certain areas require separate treatment. For example, in the construc­tion industry and in the printing trades, working foremen are generally included in the bargaining unit to reflect the peculiarities of those industries~ whereas in the industrial situation foremen are generally excluded from the bargaining unit; see e.g. Federal Packaging and Partition Company Limited [1971] OLRB Rep. July 448 at p. 450.

We have long recognized that in the early stages of industrial organization the foreman was a key person in the management hierarchy. Persons looking for a job came to the foreman, who had the right to hire, to fire, to grant raises and to assign work. The foreman was effectively "the king of the shop" insofar as the employees were concerned. He had a great deal of discretion and he was able to make decisions which greatly affected the welfare of the employees. Moreover, he exercised considerable control over their day to day work life. The evolving position of the foreman in industry is more fully described in the Spruce Falls Power and Paper Co. Limited case 47 CLLC ¶ 16,489, and it is not necessary for us to describe that situation any further.

However, a very important and significant factor in arriving at decisions about whether foremen were managerial was the conflict of interest theory which recognised that foremen owed a duty to management to control and discipline employees, and if the foreman was placed in the bargaining unit so as to become a union member, it would seriously impair his management function. As such, the duty to be owed to management would be incompati­ble with the trade union interests that he held in common with his fellow employees; cf. Ferranti-Packard Electric Limited [1968] OLRB Rep. Sept. 572.

The evolution of industrial organization and the advent of collective bargain­ing altered the position of the foreman in many situations. He is no longer the "king of the shop"; hiring and firing are done by the personnel depart­ment; the work may be controlled by the terms of a collective agreement or where there is no collective agreement the work may be controlled in a similar fashion. The result of the many changes in the hierarchical structure has diminished the foremen's responsibility to the point where he may be left with the vestiges of power that he once exercised and where he previously stood visibly with management he now stands on the periphery between being a member of management and being an employee. In a limited fashion he may still continue to exercise managerial functions and it is the usual rule of thumb in describing bargaining units to place a foreman in the management hierarchy.

Determination in the white collar area have also become more difficult. We have indicated we must be cautious in using the industrial model to make assessments about non-industrial or white collar situations. However, we now have greater experience with the white collar section and we are able to draw on our specific experience in that area. In the non-industrial area we are now finding that the decision-making process and control of employ­ees vary considerably. Like the industrial situation, personnel policies are usually developed by a personnel department, but the elements of manage­ment are usually dispersed throughout the organization. Real control and managerial functions are easily ascertained at the top of the management pyramid, but at the lower levels managerial functions are filtered through the organization in such a way that they are not easily ascertainable. Many non-industrial situations have developed a collegial decision-making process which reflect that type of organization. For example, technicians or drafts­men may work with an engineer in a white collar situation in such a manner that they participate in the decision-making process. Again, the nature of their work is such that they move from project to project so that it is difficult to ascertain who controls the employees; see e.g. The Hydro -Electric Power Commission of Ontario [1969] OLRB Rep. Aug. 669.

Indeed, in Toronto East General Orthopaedic Hospital, supra, the Board emphasized both the difficulty in making managerial status determinations, and the need to reconsider and develop its approaches in light of the changing industrial relations environment:

Drawing the line is a particular problem where individuals are assigned more than one function, to varying degrees, or where actual decision-makers rely very very heavily on the opinion of experienced and highly trained personnel. The Board then has to be very cautious in balancing the aforementioned interests of employers against those of employees. Otherwise fragments of an enterprise's managerial function could be distributed over a great number of individuals within the enterprise or decision-makers might rely on information pooled from a great swath of lower line personnel, thereby denying legislative coverage to a large sector of the work force. Hence the Board has ruled that a person must be "primarily engaged in supervision and direction or other employees... [with] ... effective control over their employment relation-ship", [sic] (see Falconbridge Nickel Mines Ltd. [1966], OLRB Rep. Sept. 379. When assessing a person's duties and responsibilities the Board does not look at any one function in isolation but views all functions in their entirety: (Falconbridge Nickel Mines Ltd., [1966] OLRB M.R. 379). Moreover, titles alone are not of much assistance in determining what a person's functions really are; (see United Steelwor­kers, Local 2890 v. R. McDougall Co. Ltd. [1943] OWN 743). Similarly, the Board has ruled that unless a person has independent discretionary powers rather than merely incidental reporting functions which are subject to the discretion and authority of higher persons in management, there is no reason to exclude such a person from collective bargaining; (Falcon­bridge Nickel Mines Ltd., supra) and an incidental or isolated involvement in some aspects of labour relations is not sufficient to exclude a person from collective bargaining; (Falconbridge Nickel Mines Ltd., supra). With re­gard to management's reliance on the advise of employees who possess highly technical skills and knowledge, the Board has said the following: (CUPE, Local 1000 and The Hydro-Electric Power Commission of Ontario [1969] OLRB Rep. Aug. 669.

In addition, the fact that managerial persons rely on the expertise of senior employees or employees who possess highly technical knowledge and skills, and act upon the advice of such persons, does not change the nature of the functions exercised by the employees. The fact that an expert employee may recommend a course of action which a member of management may decide to follow does not of itself make the employ­ee' s recommendation a managerial function. Although a recommenda­tion may be the basis of the decision taken, however, it is the decision to implement that recommendation which can correctly be described as the managerial function.

But because of the dynamic contexts in which the Canadian labour relations system resides, (see John T. Dunlop, Industrial Relations Systems (1958) p. 7) the Board must constantly reappraise its standards and definitions as a result of its unique role in provincial labour policy formulation; (see Note, Labour Law — The National Labour Relations Board Redefines and Restricts the Scope of Managerial Employee Classification, supra, p. 862). For example, accelerated corporate growth and a rapid advance in technolo­gy have given rise to a greater concentration of economic power on the side of management and a concomitant bureaucratization of jobs that involve less supervisory duties, public contact and upward mobility. Nowhere do we see this trend more prevalent than in white collar sector of the Canadian labour market; (See generally, S. Goldenberg, Professional Workers and Collective Bargaining, Task Force on Labour Relations (1968); F. Bairstow, White Collar Workers and Collective Bargaining, Task Force on Labour Relations (1968) J. Crispo, Collective Bargaining and the Professional Employee (1966); The Current Industrial Relations Scene in Canada, Industrial Relations Centre, Queen's University (1974) p. S-MP-9); and many legislatures in jurisdictions where labour boards may have failed to be sufficiently appreciative of such contextual changes have now specifically provided for the extension of collective bargaining to these people; (see Canada Labour Code, R.S.C. 1970, c. L-l,s. 125(4), s. 107; Labour Code of British Columbia, S.B.C. 1973, c. 122, s. 1, s. 47; Manitoba Labour Relations Act, C.C.S.M., c. L-l0, enacted by S.M. 1972, c. 75, s. s. 2(2). The Ontario Board must be very conscious of the rapid growth in white collar employment and consider implications it has to their decision-making function.

(emphasis added)

12. In recent years, as collective bargaining has extended to technical and professional employees (engineers, for example, were specifically included in the Act only in 1971), the Board has had to deal with increasingly complex job hierarchies and reporting structures. In a professional context, the members of the bargaining unit may well be highly trained and responsible persons who are largely self-motivated, capable of exercising independent judg­ment, requiring little external direction in the performance of their regular duties and ultimately responsible to external regulatory authorities, entirely independent of their employer. As we have already mentioned, such direction as is necessary will often be generated internally through group discussion, evaluation by peers, or "collegial" modes of decision-making; and one should not expect the managerial structure appropriate for professionals to be the same as that for manual workers. The technical or professional employee will have a special relationship with management, with fellow professionals, and with the less skilled employees at lower levels on the job hierarchy.

13. 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 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 l(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 l(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.

14. 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 soon, 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. It is also interesting to note that the assistant head nurses, whom the parties have agreed are included in the bargaining unit, perform substantially the same functions as the head nurse on the shifts not worked by the head nurse.

(emphasis added)

Registered nurses necessarily perform duties requiring specialized knowledge, skill and judg­ment, in assessing health needs, and in the planning, implementing, and evaluation of nursing care — evaluation which can extend to both the suitability of the prescribed medical regimen and the adequacy of the "delivery system" established to meet the patient's needs. In this context, professional assessments and decisions may be taken, or professional opinions acted upon, quite apart from any "managerial" authority of the kind with which section l(3)(b) is concerned.

15. The notion that effective health care requires a "team approach" has not been absent from the Board's jurisprudence. On the contrary, the fact that health care could best be provided by a "team" and that the members of that team would have their own specialized professional functions typically co-ordinated by a "team leader", was expressly recognized in Toronto East General Orthopaedic Hospital, supra

But this is not to say that every employee goes his or her own way without regard to the necessary co-ordination needed within large institutions such as hospitals. Each employee's activities, while quite independently adminis­tered to the patient, must be co-ordinated throughout the hospital with the related activities of others. For instance, nurses must have regard to the duties of other nurses, to the duties of other nursing assistants, to the duties of ward aides and they must have regard to the directions of doctors caring for the various patients. Hence there is a tremendous need to co-ordinate the professional and technical activities of nurses and to this end elaborate policy formulations are communicated to them, and a specialized group of co-ordinators has been created. This group of co-ordinators includes super­visors, head nurses, assistant head nurses, charge nurses and graduate nurses on occasion. Whether any in this group of co-ordinators exercises manageri­al functions, as well as performing a co-ordinating function, is a question that must be decided on a case by case basis, and any inquiry must consider whether the inclusion of such people would have a serious effect on the labour relations of the particular institution before the Board. This Board is dealing with assistant head nurses employed by Toronto East General and Orthopaedic Hospital Inc. But it must be emphasized that mere co­ordination is an insufficient function to activate the exclusionary wording of s. l(3)(b); (see The Faculty Association of Vancouver City College (Lan gara) and Vancouver City College, May 22, 1974, B.C. Labour Rela­tions Board where Division Chairmen were included in the bargaining unit).

In Peterborough Civic Hospital, supra, these co-ordinating, monitoring and reporting functions were performed by the head nurses "in charge" of a ward, and were described by the Board this way:

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. She is not akin to the early foreman that we have spoken about, nor does she have duties that are incompatible with placing here 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.

(See also: Westmount Hospital, [1976] OLRB Rep. Feb. 24; and St. Peters Hospital, [1975] OLRB Rep. March 247.) In the instant case, the parties have clearly excluded "charge nurses from the bargaining unit, and the issue is whether another employee group which does not exercise the range of charge nurse functions and are not "above the rank of charge nurse in an organizational sense should also be excluded.

16. All of these cases involved individuals who, in varying degrees were performing supervisory, co-ordinating, admonitory or "quality control" functions which historically or in other contexts might have been associated with managerial status. Such functions included: co-ordinating the work of others, ensuring that the work was done properly in a technical sense, checking and correcting it where necessary, reporting or making note of errors or deviations from the prescribed medical regimen, scheduling, arranging for a "fill in" if a member of the team is absent, allowing an orderly or aide to go home a few hours early, giving an opinion on the proficiency, work habits, competence or compatibility of new or lesser skilled employees when asked to do so by a member of management, delegating or rearranging work assignments, calling in plumbers or maintenance persons to handle mechanical break-downs on "off-shifts", attempting to ensure compliance with the institutional "rules" laid down by management and admonishing or reporting an employee who did not comply, consulting with management on the running of the enterprise, and, even, on occasion, requiring an employee unfit to work to go home for the balance of the shift then reporting the incident to the director of nursing for disposition. Each case, of course, turns on its own facts, but their general thrust is the same: supervisory, co-ordinating, training, testing, 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). And in a professional context where "reporting" is part of an individual's professional responsibilities and the ultimate decisions are made by someone else (usually an "administra­tor" who may or may not be a professional himself) or by a group of individuals, then the "effective recommendation test" referred to above must be carefully applied. (For specific comment on employee evaluations and the need for clear evidence of their impact see: Toronto East General Orthopaedic Hospital, supra, at ¶ 16; Ajax and Pickering Hospital, supra at ¶ 17; Mascassa Lodge, supra, at ¶ 20; St. Peters Hospital, supra, at ¶ 7-8; Regional Municipali­ty of Halton, supra, at ¶ 10; and Sudbury and District Health Unit, Board File No. 2055-79-M decision released March 11, 1981, unreported, at paragraph 13.)

17. With this background then, we turn to the evidence in the instant case, which included testimony from Roberta Coutts, the Director of Nursing, Margaret Arnott, a nurse clinician, and Monica Leslie a "team leader". We will not repeat, as reasons for our opinion, the text of their testimony as transcribed and reproduced in the Officer's report. Having set out our approach, at length, we will only briefly sketch in an overview of the evidence.

18. The collective agreement excludes charge nurses, administrative assistants and co­ordinators from the bargaining unit. The position of nurse clinician was ranked by the hospital on an organizational basis at the level of charge nurse — expecting that by so doing the seven nurse clinicians would automatically be excluded from the bargaining unit. A typical day shift would include 15 R.N.'s, 4 R.N.A.'s and 2 orderlies working with a charge nurse, nurse clinician and administrative assistant in each area. The employer's position is that there are 4 "manage­ment team" members of roughly equal status who are accountable to and work in conjunction with a programme manager. While the employer characterizes this as a unique system of "decentralized management", in many settings it would be considered 'top heavy" — especially since the trained professionals are unlikely to require the degree of direct supervision and control of, say, a factory worker in an industrial plant.

19. The evidence indicates that the primary concern of the nurse clinician, and the majority of her time is spent on instruction and orientation, both on a group and "one to one basis. This is essentially a training function — although for professionals, it obviously involves continuing education and evaluation to maintain and up-grade their skills, as well as, for the nurse clinician, the ongoing assessment and initiation of new practices and procedures. This necessarily involves some supervision of those practising new procedures or the incidental assignment of work (e.g., to have a staff nurse give a short report on a new or unusual problem she is dealing with). None of these functions are "managerial" within the meaning of section 1(3)(b), and we repeat, they are the duties which take up the majority of the nurse clinician's time. The employee evaluations are done in connection with this role and are not made independently except perhaps in the case of probationary employees — and even then the written report is submitted to the Human Resources department as one factor to be considered in the retention of an individual. Traditionally, the Board has not given much weight to assessments of probationary employees because it is not at all unusual for management to solicit a wide range of opinions from bargaining unit and non-bargaining unit employees concerning how a probationer is getting along, all of which are often weighed in the balance by someone other than the person expressing the view or making the assessments. Input at this stage is not particularly significant for collective bargaining purposes nor can one attach much significance to the fact that a variety of individuals may sit in and provide information and input at the point of hiring. One would expect the person responsible for orientation and training or familiar with the work to sit in on such meetings which, again, make collective decisions. Ms. Arnott had never sat alone on a selection committee for on-call (casual) employees, and she said, she had been part of the selection committee for regular full-time employees in only 40% of the cases. She further indicated that for regular full-time employees it is the relevant charge nurse or co-ordinator who does the performance evaluation. The nurse clinician's role is primarily one of providing background written documentation, or she may sit in on the appraisal to explain the documentation she has already provided or address specific issues. It is not entirely clear how much actual impact such evaluations have as a practical matter, or who decides whether something tangible like a promotion, demotion or wage increase will or will not be granted based on such documentation, or what role, if any, the nurse clinician plays in such decision making.

20. The initiation of discipline is obviously an important managerial function even if the decision is ratified by a personnel manager or other higher level of authority. The discipline of fellow employees is an important manifestation of authority, not least because it can give rise to employee grievances under the collective agreement which may place the employer and the union in an overtly adversial role. However, the role of the nurse clinician in the imposition of discipline is peripheral and not much different in character from that of other professional nurses who are expected to report incidents of error or misconduct which could directly or indirectly affect patient care. Medication errors or breaches of procedure are reported by all nurses, and it is interesting to note that Ms. Leslie testified that misconduct is to be reported to the charge nurse, not the nurse clinician. The documentation or follow up of a medication error, although it may be done by a nurse clinician is not considered disciplinary. The nurse clinician does not give verbal or written warnings when acting in that capacity. In the case of nurse "O.B.", the actual incident at issue was brought to Ms. Arnott's attention by a staff nurse and the team leader, (both in the unit), reporting in accordance with their professional responsibilities. The written warning issued to Ms. OB. was not given by the nurse clinician. Employee grievances under the collective agreement are not presented to the nurse clinician but to the immediate supervisor — the charge nurse. The nurse clinician is not involved, except perhaps as a witness in an arbitration hearing in respect of what she has seen or done in the exercise of her professional responsibilities. That is no different — and clearly no more troubling in a collective bargaining sense — than the staff nurse and team leader who might be called upon to testify "against" nurse O.B. in respect of the errors they observed. Whether the nurse clinician is exercising managerial functions when she is filling in for someone who has such authority is not really material. Ms. Leslie, a team leader has replaced the charge nurse a number of times in the last few months, and whatever her status for those limited periods of time, no one is suggesting she is no longer an "employee" within the meaning of the Act. The nurse clinician is in no different position.

21. Clearly, the hospital has, for administrative purposes, treated the nurse clinician as a part of "management", and accordingly, they have some of the trappings of management. They receive the same benefits as other RN's, are on salary, and work the same hours but do not receive overtime. They even attend some "management" meetings which other employees do not — although not meetings to deal with specific employee grievances, collective bargaining negotiations, and so on. However, when the evidence is considered in its totality, it is our opinion that the nurse clinicians do not exercise management functions within the meaning of section l(3)(b) of the Act. Their principal role is not managerial in character, and any residual authority they exercise is so subordinate and attenuated as to be insignificant, for collective bargaining purposes, and in this professional context, from the activities and responsibilities of other members of the bargaining unit. In our opinion they are employees within the meaning of the Act.

DECISION OF BOARD MEMBER F. W. MURRAY;

1. I dissent.

2. I do agree that in a professional context it is often difficult to draw a line between managerial and non-managerial employees for collective bargaining purposes. While I also believe that it would be an abuse of section 1 (3)(b) for the Board to permit an employee to declare employees to be managerial and excluded from collective bargaining by means of so distributing the managerial functions amongst an unreasonable number of employees, I do not believe that this has occurred in this case. I do believe that the Board in this case should find that the nurse clinicians have sufficient managerial authority so as to exclude them from the bargaining unit.

3. In so finding, I make quite a distinction between the responsibility for initiating an evaluation report which may affect another nurse's continued employment as opposed to the act of being subpoenaed by a board of arbitration and giving testimony under oath which may be "against" another nurse.

4. In the difficult task of drawing the line between managerial and non-managerial employees, even in this "professional" context, one cannot ignore the natural "closing of ranks" that may well occur within a profession unless there is a clear distinction made between managerial and non-managerial employees, even setting aside the collective bargaining environ­ment. It can therefore be very important that those required to report on the shortcomings of others be clearly identified as having managerial authority. Having regard to the fact that the Board has recognized that the structure of any managerial team is not carved in stone for all time but can change as the needs of the undertaking require, it would seem to me that the Board should not impose its concepts of how a complex operation such as this hospital should be staffed and supervised unless there is clear evidence of distribution of the management function to an unnecessary number, and in so doing the Board should be mindful of the continuous nature of the operation itself.

5. I would have found that the nurse clinicians are exercising a managerial function and should accordingly be excluded from the bargaining unit.