[1985] OLRB Rep. October 1492

1477-84-R Ontario Nurses' Association, Applicant, v. Ontario Cancer Treatment and Research Foundation, Respondent, v. The Canadian Union of Public Employees, Intervener, v. Group of Employees, Objectors

BEFORE: R. 0. MacDowell, Vice-Chairman, and Board Members B. L. Armstrong and D. M. Blair.

DECISION OF THE BOARD; October 16, 1985

I

1. This is an application for certification. In a decision dated October 31, 1984, the Board recorded the parties' agreement to a bargaining unit framed as follows:

All registered and graduate nurses employed in a nursing capacity by the respondent, at Ottawa, Ontario, save and except head nurse (general division) and nurse administrator, employees above the rank of head nurse (general division) and nurse administrator, and employees covered by subsisting collective agreements.

However, the parties were not in agreement about the precise composition of this agreed bargaining unit and, in particular, whether it included four part-time "nurse examiners" working in the respondent's Ottawa clinics. The respondent asserted that these nurses were employees of the National Cancer Institute of Canada ("NCIC"). The applicant contended that they were employees of the respondent (hereinafter referred to as "OCF").

2. On the basis of the documentary evidence of membership before it, the Board determined that the applicant was entitled to have its right to represent the respondent's nurses determined by a representation vote, whether or not the nurse examiners were included in the bargaining unit. The Board directed that such vote be taken, with the proviso that the ballots of the four disputed individuals would be segregated pending a resolution of the question concerning the identity of their employer. To this end, a Board Officer was appointed to inquire into that matter and make a report to the Board.

3. The representation vote was conducted on November 5, 1984. In a decision of the Board dated November 20, 1984, the results of the representation vote were reviewed, and the Board determined that the applicant had demonstrated sufficient employee support to warrant interim certification regardless of the disposition of the segregated ballots. The Board noted that a final certificate would have to await a determination of the status of the four nurse examiners.

4. On January 3, 1985, the Board Officer convened a meeting of the parties. At the meeting, the parties agreed that the evidence of Ms. Brenda Doyle, one of the nurse examiners, would be representative of all four disputed persons. Ms. Doyle's testimony was supplemented by that of Dr. Gordon Catton, the director of the respondent's Ottawa Regional Cancer Centre. In addition, the respondent filed (without objection) a number of letters which, it was said, would help clarify the relationship between OCF and NCIC. Following the release of the Officer's report recording the oral and documentary evidence to be put before the Board, both parties had the opportunity to make written submissions respecting the conclusion which, in their view, the Board should reach on the basis of the material before it. Accordingly, the issue that the Board must now determine is the identity of the "employer" of the nurse examiners and, thus, whether they are included in the bargaining unit which the applicant is entitled to represent.

5. We have not found this an easy task, for the evidence is both ambiguous and, in many respects, incomplete. There are plausible arguments in support of both parties' positions. The difficulty arises, at least in part, because neither of the possible "employers" is a commercial enterprise, nor is their relationship structured on a commercial basis. They are related "non-profit" organizations, dependent upon external funding, and in pursuit of their common (and laudable) objectives, they have paid much more attention to how to accomplish what they both regard as a desirable research project than to which of them will be the ''employer'' of the subject employees with the concomitant ''employer'' rights and obligations. Indeed, when the testimony is viewed as a whole, and, in light of such historical perspective as the evidence allows, it is evident that the study in Ottawa is something of a "joint venture To a degree, the four nurses are under common (or joint) control or direction by both OCF and NCIC.

6. In York Condominium Corporation, [1977] OLRB Rep. Oct. 645, the Board set out seven indicia which can assist in the determination of who is the "actual employer" in a given set of circumstances. The Board noted that an entity is more likely to be characterized as "the employer" when it is:

7. The party exercising direction and control over employees performing work;

8. The party bearing the burden of remuneration;

9. The party imposing discipline;

10. The party hiring the employees;

11. The party with the authority to dismiss;

12. The party perceived to be the employer by the employees; and

13. Whether there exists a subjective and mutual intention to create the relationship of employer-employee.

However, the relative weight to be attached to each particular factor may vary with the business and collective bargaining context. In Sutton Place Hotel, [1980] OLRB Rep. Oct. 1538, the Board observed:

The weight to be accorded the various indicia of employer status set out in York Condominium cannot be assigned in a vacuum. When one of the factors is combined with another in the hands of one company, the Board may conclude that they accurately identify the employer, though while standing alone or in some other combination they may not. The significance of each indicator can only be ascertained through an appreciation of how they all fit together within the facts of each case. It is only then that the Board can decide which factors in the particular case most accurately reflect and identify the employer for collective bargaining purposes.

7. Most of the factors enumerated in York Condominium are evidentiary indicia of "control", and are based upon the common-law notion that "control" is a key element in identifying a master-servant relationship. Control includes the power of deciding the thing to be done, the way in which it shall be done, the means to be employed in doing it, and the time and place where it shall be done. Control is reinforced by an employer's authority to hire, fire, direct the work force, grant or withhold economic rewards, and so on. However, where the evidence is equivocal and the lines of authority are blurred, it may also be useful to take a broader perspective and consider whether the disputed individuals are predominantly part of one business organization as opposed to another. With what organization are their activities most closely integrated? [We might also note, parenthetically, that ambiguity in identifying the employer for collective bargaining purposes was one of the labour relations problems which section 1(4) of the Act was designed to avoid. (See Sutton Place Hotel, supra, at paragraph 25.)

II

8. The NCIC has its offices in Toronto and is currently engaged in co-ordinating a national breast screening study ("study") at various facilities across Canada. Plans for such a study have been under consideration for some years. As early as December, 1978, Dr. A. B. Miller of the NCIC wrote to the then Ontario Minister of Health to outline the value and objectives of such a study and to request government support.

9. Drs. Catton and Meakin of the OCF also had some involvement in assessing the feasibility of Dr. Miller's proposal. In December, 1979, Dr. Meakin indicated that the OCF was prepared to make certain of its facilities available for the study but, at the time, could not endorse it completely "because of grave concerns about the feasibility and some concerns about the science of the proposal". These concerns must have been overcome, because later letters indicate a continuing dialogue about how the project should be organized and staffed.

10. It is interesting to note that very early on it was envisaged that OCF staff or consultants would take part, and that certain sums would be set aside to "recompense the individual department or practice for the time spent on the study". For example, one letter dated February 7, 1983, suggests that a radiology technician should be selected by the head of the department of radiology in each participating institution [here OCF] and secunded to the study. The same letter suggests that Dr. Catton of OCF should determine the required "mix" of clerical or administrative support staff - in particular, the advisability of hiring a full-time co-ordinator who would also perform some clerical functions, and reducing the secretarial complement accordingly.

11. Apparently, in August, 1982, there was pressure from a number of local women to establish a study centre in Ottawa. In response, Dr. Catton of OCF investigated the available facilities and decided that the study could best be accommodated at OCF's own facilities. With a grant from the Ottawa designated funds of the Cancer Society, OCF purchased some new equipment and undertook structural modifications at both of its clinics. These alterations were designed so that both areas could be restored to their original form at the end of the study. The study is scheduled to run for a five-year period with NCIC having the option to terminate it earlier should NCIC so decide. It is not clear what might prompt NCIC to exercise this option.

12. Funding for the study is derived from grants obtained from sources independent of OCF - although, as noted, certain funding for equipment and renovations was obtained by OCF from its own funding sources. We do not know what proportion of the actual cost of the Ottawa study centre can be attributed to OCF and its funding sources, or to NCIC and its funding sources, or whether some of the sources are the same. The evidence suggests that NCIC is a conduit for funds from federal agencies such as Health and Welfare Canada. We do know that in Ottawa, the premises, equipment and administrative facilities are all provided and managed by OCF. The NCIC office in Toronto does not, and probably could not, direct the day-to-day operations in Ottawa. Dr. Catton has a dual role (as he put it, he "wears two hats"). He is employed by OCF as its Ottawa regional director and, in addition, acts on a voluntary basis as director and administrator of the study in Ottawa. He testified that in this latter capacity he is acting on behalf of NCIC rather than OCF, and he clearly does have a liaison role and performs administrative functions in respect of the NCIC study in Ottawa. It is less clear that he is acting solely on behalf of NCIC. He is also supervising the use of OCE facilities being employed to accomplish an objective in which OCF has an interest. Dr. Catton testified that he reports on his activities to his own (OCF's) board of directors. This is hardly surprising, given that OCF donates physical premises, equipment, heat, electricity, administrative and managerial skills, and business office time.

13. Before the formal establishment of the Ottawa study centres, there were discussions about the number, kind, and training of employees required to meet the objectives of the research project. Dr. Miller and a Ms. Turnbull, of NCIC participated in these discussions, as did Dr. Catton and Ms. MacMillan, the respondent's administrator of nursing. It was determined that the study would require three or four part-time nurse examiners, some associated clerical support staff, and a full-time co-ordinator. Advertising for the nurse examiners was undertaken by OCF under its own name. Ms. Doyle contacted Dr. Catton and subsequently arranged an interview with Dr. Catton' s secretary. Ms. Doyle was interviewed by a panel of five individuals, including Dr. Catton and Ms. MacMillan and two surgeons associated with the study. The evidence does not disclose the precise involvement of the surgeons, their relationship with NCIC or OCF or both, or the identity of the fifth interviewer. Ms. Doyle was advised of the terms and conditions of employment and told that the study was expected to last for five years. She was informed that Ms. Judy Snider, the study co-ordinator, would be her immediate supervisor. Ms. Doyle recalls that she was informed by Ms. Snider of the success of her application for employment, although she may also have received a letter from Dr. Catton himself.

14. It is not clear why Ms. MacMillan was involved in this employee selection process, since, it was said, she has no direct involvement in the study. Dr. Catton suggested that as nurse administrator at OCF, Ms. MacMillan has to "supervise everything that is going on that affects the clinic nurses and the function of the clinic, the same as I do. . . [she must conduct] a cursory overview that everyone is behaving themselves". In the approximately eighteen months since the Ottawa Centre's inception, Ms. MacMillan has never been required to exert any managerial authority in respect of the nurse examiners. But that, in itself, is not surprising. Given the professional status and part-time hours of the nurse examiners, one would not anticipate that the kind of overt exercise of managerial authority which might be found in other contexts - particularly where, as here, the four part-time nurse examiners report immediately to Ms. Snider, and through her to Dr. Catton himself.

15. Dr. Catton holds himself out as having the authority to discharge the nurse examiners. In a memo dated December 13, 1984, they were advised that it was both "study" and OCF clinic policy that they could not recommend physicians either to participants in the study or outside of this setting. The nurse examiners were warned that if they did not abide by this policy, they would be dismissed. Dr. Catton also acknowledged that the nurse examiners could come to him if there were problems in the clinic. In one instance difficulties arose over the fact that only three nurse examiners had been hired, which created problems for the domestic arrangements of the employees. The nurse examiners initially raised this problem with Ms. Snider, their immediate supervisor, who, in turn, directed them to Dr. Catton. Dr. Catton resolved the problem by arranging for the hiring of a fourth nurse examiner.

16. OCF acts as paymaster. The nurse examiners receive cheques bearing OCF's name. OCF lists itself as "the employer", for taxation purposes, on the employees' T4 reporting forms. OCF makes the required tax, unemployment insurance, and pension deductions. OCF provides the nurse examiners with malpractice insurance coverage, even though their job description suggests that this is their own responsibility. However, their rates of wages are not the same as OCF's regular employees, nor is there any sharing of duties or interchange of functions. The nurse examiners work in a separate area, but share the same staff room as the OCF employees. According to Dr. Catton, the employees' wages are substantially determined by a budget which he established in conjunction with Dr. Miller of NCIC. His discretion to determine salaries is limited by that budget. The budget itself was not produced or explained, so we do not know its components, limits, sources, origins, or relationship to the OCF budget or budget-making process.

17. Ms. Snider did not give evidence, but it is apparent that she is the immediate supervisor of the nurse examiners. As her job title suggests, she co-ordinates their activities and those of the women participants in the study. She oversees the collection of data and ensures that the nurse examiners' tasks are being performed in accordance with the NCIC research guidelines. Training of the nurse examiners was undertaken by Ms. Snider in conjunction with study personnel, presumably designated by NCIC. Ms. Snider has periodic meetings with NCIC officials in Toronto. The evidence does not disclose the frequency, or participants in those meetings, or their precise purpose. There is no evidence that they have anything to do with the employment relationships of the employees working on the study in Ottawa.

18. Ms. Snider herself reports to Dr. Catton. She was hired by Dr. Catton and served a three-month probationary period. Her terms and conditions of employment are the same as the full-time employees of OCF. In short, her situation is as ambiguous as that of the nurse examiners, and there are strong indications that she too is an employee of OCE.

19. Just as Ms. Snider has occasion to visit the NCIC offices in Toronto, NCIC officials sometimes visit Ottawa. This was particularly so in the early months when the study was getting underway, but thereafter the frequency declined. On one occasion Ms. Turnbull of the NCIC had occasion to discuss the wages paid to the nurse examiners. Ms. Doyle indicated that the question was raised because she thought that Ms. Turnbull would be able to explain the rationale for their rates of pay because of Ms. Turnbull's familiarity with general study administration. However, it appears that, on this occasion, the purpose of Ms. Turnbull's visit was to ensure that the study information was being properly collected. It had nothing to do with employer-employee concerns. There is very little evidence that NCIC has shouldered the burdens of, or has represented itself to be the nurse examiners' employer, except to the extent that their wages may come from funds administered by NCIC.

20. The forms and letters utilized for study purposes refer only to the national breast screening study. There is no explicit reference to the Ontario Cancer Treatment and Research Foundation, although, of course, study participants come to OCF's Ottawa clinics for examination. The nurse examiners themselves were not very clear about who their employer was. They knew they worked on the study which was sponsored by NCIC, but they also regarded themselves as being part of OCF because the Ottawa component of the study was being undertaken in OCF facilities, under the direction of Dr. Catton, the OCF director.

III

21. The problem posed by the evidence in this case is primarily one of characterization. Is OCF providing facilities, equipment, expertise, managerial skills, administrative assistance, and the services of some of OCF's employees so that NCIC can accomplish its research objectives in Ottawa with four of NCIC's own employees working within an organizational framework provided by OCF? Or should one view the situation as an effort by OCF to expand its own organization, including its own employee complement, in order to participate in a national research project in which OCF is interested, which OCF has helped to initiate in the Ottawa area, but which is co-ordinated by NCIC and funded, at least in part, by NCIC's funding sources? We are inclined to this latter view which, in our opinion, is most consistent with the totality of the evidence; moreover, the situation here is not as unique as might first be supposed. In our modern society, information (scientific or commercial) is a valuable commodity for which customers are prepared to pay. It is not at all unusual for a business or government organization to commission research which, in turn, requires careful specification of the data required and continuing liaison with the co-ordinating or recipient agency to ensure that its needs are properly met. The fact that a university, research organization, or "think tank" chooses to involve itself in a research project, and to this end, engages several individuals on a part-time basis to gather information, does not, in itself, make those individuals "employees" of the ultimate recipient of the information or its funding agency. The difficulty with the respondent's position is that it relies almost entirely on Dr. Catton's personal opinion that while he works for and is paid by OCF, in hiring the employees, changing the employee mix, arranging for a new employee to be hired in response to employee concerns, determining their salary (albeit within limits specified by the budget), threatening to discharge them if they contravened "study" and OCF policy, exercising (with Ms. MacMillan) ultimate residual authority, paying employees on OCF cheques, providing them with malpractice insurance paid by OCF, and specifying OCF as "the employer" on the employees' tax documents, he and OCF were acting only as unpaid agents for NCIC.

22. We do not accept that proposition. While NCIC may provide or be a conduit for funds for the study, it is not their employer. Having carefully considered the evidence, and noting its deficiencies, we find that the disputed nurses are employees of OCF and are, therefore, properly included in the applicant's bargaining unit.

23. A final certificate will now issue to the applicant in respect of the bargaining unit set out in paragraph 1 hereof.