[1986] OLRB Rep. May 626
2030-85-R Service Employees International Union Local 204 Affiliated with the S.E.I.U., A.F. of L., C.I.O., C.L.C., Applicant, v. Green Gables Manor Incorporated, Respondent
BEFORE: R. O. MacDowell, Vice-Chairman, and Board Members W F. Rutherford and I. Stamp.
DECISION OF THE BOARD; May 15, 1986
I
This is an application for certification which was filed on November 12, 1985. It was scheduled for hearing before the Board on November 29, 1985. On that date, the parties met with a Labour Relations Officer prior to the hearing, in an effort to simplify or resolve the matters in dispute between them. The respondent was represented by Mr. R. Haluszka, the respondent's administrator, and Ms. M. J. Krizanc, an industrial relations "consultant". The applicant union was represented by Allen Ferens and Linda Ames-Elliott.
The representatives of the parties eventually reached complete agreement on the description of the unit of employees appropriate for collective bargaining. The parties then turned to the lists of employees filed by the respondent in accordance with its obligation (outlined in Form 4) to furnish a list of employees which it certifies to be accurate. The employee lists were amended and settled.
The Officer then turned to the union's documentary evidence of membership, noting its form and any defects or irregularities appearing on the face of same. There were none. The Officer also advised of the details of the Form 9 Statutory Declaration filed by the union, attesting to the regularity and sufficiency of the membership evidence. The respondent was given the opportunity to examine that document. The respondent was not given the opportunity to examine the union's documentary evidence of membership because section 111(1) of the Act reads as follows:
The records of a trade union relating to membership or any records that may disclose whether a person is or is not a member of a trade union or does or does not desire to be represented by a trade union produced in a proceeding before the Board is for the exclusive use of the Board and its officers and shall not, except with the consent of the Board, be disclosed, and no person shall, except with the consent of the Board, be compelled to disclose whether a person is or is not a member of a trade union or does or does not desire to be represented by a trade union.
The Legislature has recognized that an employee's decision to join a union is not a neutral event from the employer's point of view. Too often, the precise identification of union supporters has merely facilitated threats of discharge or other forms of employer reprisal.
- The Officer then turned to the "membership count": the degree of union support based upon the number of employees on the amended lists and the number of membership cards filed by the applicant union. This raised a minor complication because the employer was asserting that 9 of the 38 individuals potentially in the bargaining unit exercised "managerial functions" within the meaning of section 1(3)(b) of the Act and, therefore, were not "employees" covered by the Act. Section 1(3)(b) reads as follows:
(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.
[emphasis added]
It was the respondent's submission that these nine individuals were all part of the "management team", and were not entitled to join a trade union or engage in collective bargaining.
- As it turned out, the resolution of this dispute could not affect the union's right to certification on an interim basis pursuant to section 6(2) of the Act. It was apparent that whether or not the disputed individuals were included in the bargaining unit, the union enjoyed the support of well over fifty-five per cent of the employees. Indeed, the degree of union support ranges from eighty-nine to ninety-seven per cent, depending upon the precise composition of the bargaining unit. In the circumstances, the Officer advised the parties that, subject to the Board's normal second check of the union's membership evidence, an interim certificate would issue. The parties were asked if it was necessary to appear before the panel to make any further representations with respect to this application and, upon giving a negative response, they signed a "waiver of hearing form" which is framed as follows:
The parties have appeared before an Officer of the Board and subject to the Board's normal practice of second check, hereby consents to the Board issuing a decision in this matter based upon the submission made and agreements reached without a hearing before a panel of the Board.
In its decision released January 28, 1986, the Board corrected the name of the respondent, found the applicant to be a trade union within the meaning of section l(l)(p) of the Labour Relations Act, and accepted the parties' agreement with respect to the bargaining unit description. The Board noted the extent of the parties' disagreement with respect to the composition of that bargaining unit, and then went on to say:
It is apparent that regardless of the disposition of this dispute concerning the composition of the bargaining unit, the union will be entitled to certification. On the basis of the documentary evidence of membership filed in support of this application, the Board finds that, whether or not the disputed individuals are included in the bargaining unit, more than fifty-five per cent of the employees of the respondent its the bargaining unit, at the time the application was made, were members of the applicant on November 21, 1985, the terminal date fixed for this application and the date which the Board determines, under section 103(2)(j) of the Labour Relations Act, to be the time for the purpose of ascertaining membership under section 7(l) of the said Act. Accordingly, the Board hereby certifies the applicant on an interim basis for the bargaining unit described above. A final certificate will await a resolution of the status of the disputed individuals, We wish, however, to make some concluding observations.
Obviously there is a dispute between the parties which may ultimately have to be resolved after hearing evidence about what the disputed individuals actually do; moreover, this is not the first time that there has been some question as to where to draw the "managerial line" in hospitals or nursing homes. However, the number of disputed individuals is quite unusual, given the size of the respondent's employee complement and the exclusion of registered nurses, paramedical employees, professional medical staff and however many persons there are whose managerial status is not disputed. While there is no fixed ratio of superiors to subordinates, and each case must be determined on its own merits, it is a little unusual for an employer to argue that there is a '~management person" for every three or four subordinates in the bargaining unit or that some of the employer's management team only work part-time.
The Board's approach to the "managerial exclusion" has been succinctly summarized in Corporation of the City of Thunder Bay, [1981] OLRB Rep. Aug. 1121. In that case the Board affirmed that the important question is the extent to which so-called managerial employees regularly make significant decisions affecting the economic lives of their fellow employees (hiring, firing, promotions, demotions, discipline, granting wage increases, etc.), thereby raising a potential conflict of interest with them. But this is not the same as "supervisory" or . co-ordinating" activities which are often largely routine, carried out within a pre-established framework of rules and policies, and subject to real managerial authority which is actually exercised from above. In addition, persons who perform technical functions or have specialized technical or professional training will commonly supervise or co-ordinate the work of other employees without triggering their exclusion from the Labour Relations Act. If that were the case, registered nurses would be denied the opportunity of collective bargaining since their professional responsibilities will often involve the coordination of the work of employees with lesser training. [In this regard, see: Oakwood Park Lodge, [19821 OLRB Rep. Jan. 84, where the Board rejected an employer's contention that its entire complement of full-time and part-time registered nurses exercised managerial functions within the meaning of section l(3)(b) of the Act; and Ottawa General Hospital, [19841 OLRB Rep. Sept. 1199, where a similar request to exclude registered nurses was also rejected. See also, in general, J. Sack and M. Mitchell, Ontario Labour Relations Board Law and Practice (1985), Butterworths & Co. (Canada) Ltd., Toronto at pages 79-98.1
Certification applications usually come on for hearing and are disposed of quickly with little in the way of formal pleadings. However, as a result, disputes about the bargaining unit may only arise on the morning of the hearing when the union first sees the employer's proposed list of employees, and the parties may not have had the opportunity to fully investigate the facts or the Board decisions potentially bearing on their positions. They may even have quite different perceptions of the disputed individuals' authority (or how the Board would regard it) which could be clarified by further consideration. If that appears to be the case (as it is here), it may well be appropriate for the Board to borrow from the Court practice of pleading and discovery in order that both sides and the Board itself will have a clear picture of the factual issues in dispute.
In the circumstances of this case, before appointing a Labour Relations Officer and embarking upon a time-consuming and expensive process of litigation, the Board considers it appropriate to require further clarification and elaboration of those duties and job functions which, in the employer's submission, would warrant a finding that the disputed individuals are not 'employees" within the meaning of the Labour Relations Act. Such written statement should include a detailed recital of the duties regularly performed by the disputed individuals, highlighting those which involve the conflict of interest which section l(3)(b) was designed to avoid, and citing concrete instances of the exercise of those functions. It should be forwarded to the Board and to the union within fourteen days of the receipt of this decision. The trade union representative will then have a further fourteen days to file with the Board a written submission, indicating the extent of its agreement or disagreement with the facts said by the employer to truly represent the employees' duties and such additional facts as the union may consider relevant.
For the foregoing reasons and pursuant to section 102(13) of the Act, the Board directs the parties to file with each other and the Board the information mentioned above. It may be that in examining their position the parties will be able to resolve or narrow some of the issues in dispute between them. In any event, it is the Board's view that the filing of this material will facilitate the orderly disposition of whatever outstanding matters remain in dispute.
By letter dated February 4, 1986, Mr. R. Haluszka, the respondent's administrator, addressed the following comments to the Board:
Further to your correspondence, file no. 2030-85-R, dated January 31, 1986, on behalf of the owners of Green Gables Manor I wish to point out several factors which were not considered either at the certification hearing or subsequently. We feel these are urgent items, yet since the events of late November we have received no communication on this subject from anyone, leaving us in the uncomfortable state of "LIMBO" while having to cope with much misinformation and poor employee morale. Our employees have not been kept informed by their representatives, whomever they are, and as a result have been alienated by these events. Many employees have indicated in private conversations with myself or the owners that they were coerced through peer pressure into signing the Union cards and wish that they had never signed.
In this regard. I would first like to point out that in the opinion of the Owners, the issue of numbers and staff per centages [sic] has neither been addressed nor resolved. At the certification hearing a listing comprising 36 employees was presented by Mrs. Muriel Krizanc of Krizanc Consulting Ltd., which purported to indicate the employees of record at Nov. 21, 1985. This listing and copies of employee signatures was reviewed in-camera by the Union organizers and a Labour Board representative, who determined that 26 names and signatures matched. Not personally being permitted to examine any documentation, I cannot accept that as fact, after all you do not and would not accept my "word" without examination.
I am attaching a listing which I compiled prior to the hearing and presented to Mrs. Krizanc, who did not use it contrary to the best interests of the Owners. This listing was compiled from our personnel and payroll records, and indicates that in all probability the required fifty-five per cent was not obtained by the Union. Our payroll records are available for your scrutiny to verify names and numbers. I feel, in view of this question of numbers, at the very least a recorded vote is called for.
Additionally, I must note that the current staff list has a few additional changes, including employees who were never consulted with regard to the issue of belonging to a Union, whose individual Human Rights would be violated by the imposition of a Union. I would suggest that substantially fewer than fourty-five [sic] percent of our current staff have signed Union cards.
With regard to the decision of the Board, item 4 on page 1, we note that Registered, graduate and undergraduate nurses are excluded from the proposed unit. Our Registered Nursing Assistants perform essentially the same duties as our RN's, with the exception of tasks associated with the dispensing of medications. We do not agree with the applicant Union that our RNA's do not perform "managerial functions" and further do not agree with the Board, as it stated in item 5 on page 2 that whether or not these individuals are included, "more than fifty-five per cent of the employees of the respondent in the bargaining unit, at the time the application was made, were members of the applicant on November 21, 1985."
In view of these facts, and the current climate, where as you doubtlessly know, one Union is under fire in the media and the courts for the conduct of its officers, I request that you give serious immediate reconsideration to the issue of certification at Green Gables Manor. We regard item 9, pages 3 and 4 an insult, as you indicate that you do not wish to waste time or expense in a process you have weighted against all employers. Yet, the consequences of your decisions have forced employers to waste much time and money, and occasionally have forced bankruptcy. A truly impartial agency would recognize facts and would view its work seriously. However, we shall be forwarding the additional information you requested with the alloted [sic] time, which is fourteen days from today, or February 18, 1986.
- By this time the consulting services of Ms. Krizanc had apparently been terminated. Subsequently, on February 18, 1986, the respondent sent to the Board certain undated, unsigned job descriptions together with a covering letter which reads as follows:
Attached please find copies of job descriptions of Registered Nurses, Registered Nursing Assistants and Nurse Aides at Green Gables. You will note that with the exception of the duties related to the dispensing of medications, which are statutory, there is no difference between our charge nurses as to their position of floor supervisors.
We are a small home, and rely on our professional staff to supervise their staff and ensure that the Nursing Care provided is of the highest standard, regardless of whether they are an RN or RNA.
As SEIU has stated that they are not representing supervisory personnel, in my opinion, our RNA's should be excluded from the bargaining unit.
There was no reference to the duties and responsibilities of the activity director or the supervisor of dietary staff. The respondent's submission was confined to the purported duties of the registered nurses ("RN's") and the five full-time and two part-time registered nursing assistants ("RNXs"). Moreover, while the decision of the Board quite clearly required a detailed recital of the duties of a managerial character which the respondent asserts are regularly performed by the disputed individuals, together with concrete instances of the actual exercise of those functions, no such facts or information were put before the Board. In summary then, the respondent's position amounts to an assertion, without foundation, that a large number of individuals (given the size of the bargaining unit) are not "employees" within the meaning of the Act, and in the face of a specific direction to elaborate the basis for its position, the respondent has neglected to do so. It merely asserts that because RN's and RNA's have certain professional training and responsibilities to ensure the adequate delivery of health care they should be regarded as "managerial" personnel prohibited from engaging in collective bargaining.
For its part, the union made a variety of submissions based upon its own discussions with the disputed employees (essentially that they do not exercise disciplinary or other powers of a "managerial" character in the sense contemplated by section 1(3)(b) of the Act) and concluded: "For all the reasons outlined above and because the respondent has failed to supply the Board with evidence it requested, we ask that the Board find all the employees in dispute are in fact "employees" within the meaning of the Labour Relations Act and do not exercise managerial responsibilities". The reference to "evidence" is perhaps inaccurate, but there is no doubt that the Board did direct that the respondent fully set out all of the facts supporting its assertion that the disputed individuals exercise managerial functions.
II
Before returning to the particular circumstances of this case and the various matters raised in the respondent's letters, it may be useful to sketch in some of the jurisprudential background which prompted the Board's direction to the respondent to fully particularize its position. While collective bargaining and trade union organization may be a novelty for the respondent, it is not new to the Board or the health care industry. General unions such as the applicant or the Canadian Union of Public Employees commonly represent bargaining units including RNXs (and sometimes RN's) at dozens of hospitals and nursing homes in Ontario. Likewise, the Ontario Nurses' Association typically represents bargaining units of registered nurses at those same institutions. RN's and RNXs have never been regarded by the Board as "managerial" simply because their higher level of training carries with it a professional responsibility to monitor or supervise the activities of employees further down the job hierarchy. That is why the Board directed the respondent's attention to its decisions in Oakwood Park Lodge, [1982] OLRB Rep. Jan. 84 (Application for Judicial Review Dismissed, sub nomine Medi-Park Lodges Inc. c. o. b. Oakwood Park Lodge v. Ontario Nurses' Association et al, 83 CLLC, ¶14,016), and in Ottawa General Hospital, [19841 OLRB Rep. Sept. 1199. The purpose of drawing these cases to the respondent's attention was to assist a party (unrepresented by counsel) to frame its submissions and focus on factors which were relevant.
Both of these cases begin with the proposition that it is incumbent on persons who seek to exclude employees from the scheme of the Act to demonstrate that such persons actually exercise managerial functions (see: Bakery and Confectionery Workers 1. U.A. v. Salmi, 1966 CanLII 84 (SCC), 56 D.L.R. (2d) 193). They then undertake a thorough review of the special characteristics of the health care sector and the Board's evolving jurisprudence as to what constitutes "management" (for collective bargaining purposes) in that employment context. It is unnecessary to reproduce that analysis here. It suffices to say that this panel of the Board adopts the approach to the interpretation of section 1(3)(b) enunciated in Oakwood Park Lodge at paragraphs 5 to 17 and, more recently, in Ottawa General Hospital at paragraphs 5 to 16, which distinguishes between "professional" and "managerial" responsibilities. Oakwood Park Lodge and Ottawa General Hospital both involved an employer's assertion that certain registered nurses should be excluded from the bargaining unit. After analyzing the special work environment and collective bargaining features of the health care sector, and a number of earlier decisions, the Board in Ottawa General Hospital observed:
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: coordinating 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.
In each of these cases the Board recognized that as collective bargaining has extended to technical and professional employees in the health care sector, it has had to refine its notion of what constitutes "management" in order that the "opinion" which it must express under section l(3)(b) of the Act will accord with the premises of the statute and collective bargaining realities. An attack on this process, launched by the nursing home operator in Oakwood Park Lodge, supra, was rejected by the Supreme Court of Ontario with the following comment:
In our view, the reference to unionization in other facilities of the applicant, as well as the consideration of developing themes in relation to the role of professionals in collective bargaining are matters within the expertise of the Board which it can consider in evaluating the case before it. The fact that the Board considered decisions made in earlier and other cases involving similar applications does not, in our view, constitute an examination of extraneous matters, but rather a consideration of matters which the Board is perfectly entitled to consider when bringing its specialized knowledge and expertise in labour relations to bear on the application for certification.
III
It is against this background that the Board made the direction found in paragraph 9 of its original decision. There have been dozens and dozens of cases in which RNA's have been routinely included in service bargaining units of the kind which the applicant seeks here. Similarly, there have been dozens of cases in which RN's have formed their own separate bargaining unit. There have been a number of cases where the Board has grappled with the question of whether a particular registered nurse (usually a "charge nurse" or a "head nurse" or "team leader", etc.) has exercised managerial functions so as to put her outside the definition of "employee" and the bargaining unit. The Board is not aware of any case in which an RNA has been excluded from the bargaining unit on the basis of "supervisory" responsibilities vis-a-vis health care aides, porters, orderlies, etc., and certainly there is no case in which an employer's entire complement of full-time and part-time RNA's have been considered to be "managers" for collective bargaining purposes. Of course, this is not to say that an employer such as the respondent is precluded from asserting such a novel or unusual proposition. It is possible that the respondent's administrative structure and the responsibilities of its RNA's are substantially different and distinguishable from those exercised by RNA's in other nursing homes or hospitals in Ontario, and that all seven RNA's (full-time and part-time) have hired, fired, promoted, demoted, disciplined employees (etc.) or otherwise exercised functions of a managerial character within the meaning of section 1(3)(b). It is possible that there could be a "manager" for every three or four "employees". But it is not probable, and in the circumstances of this case, the Board considered it appropriate to direct the filing of a full and detailed written submission before embarking upon a time-consuming and expensive process of litigation which would inevitably delay the issuance of a final certificate and significantly prejudice the rights of employees whose status is not in dispute.
What was the employer's response? In the case of the "activity director" and the "supervisor, dietary staff" there was none at all. In the case of the RNA' s, there was simply an undated and unsigned job description for RN's and for RNA's which, curiously, purports to give more "managerial authority" (in its collective bargaining sense) to RNA's than to RN's. The Board directed the filing of a "written statement which should include a detailed recital of the duties regularly performed by the disputed individuals, highlighting those which involve a conflict of interest which section 1(3)(b) was designed to avoid, and citing concrete instances of the exercise of those functions". There was none. Indeed, save for one item on the RNXs job description, none of the duties therein listed (assuming they were exercised) would prompt the RNXs exclusion from the bargaining unit. The only exception is a portion of item 18 describing "effectively recommends disciplinary activities which could culminate in dismissal" - a function which does not appear in the job description of the registered nurses who are clearly the RNA's professional superiors. In short, there is no factual assertion or concrete instance of the exercise of any function which would warrant a conclusion or even a formal inquiry into whether all of the full-time and part-time RNA's exercise managerial functions within the meaning of section 1(3)(b) of the Act.
We are left with a bald assertion, without foundation, that all of these persons are "managerial" together with a written submission which is totally inadequate and fails to comply with the Board's direction to the respondent to fully particularize its position in the manner set out in paragraph 9 of the earlier Board decision. Having directed the employer to clarify and particularize its position, having pointed the employer to the relevant Board jurisprudence and having received a submission which is not responsive to the Board's direction, the Board is not persuaded that it should inquire further into the duties and responsibilities of the individuals whom the respondent says are not "employees" within the meaning of the Act. Should their status be in question at some future time (and we repeat there is nothing in the material before us to indicate any basis why it should be), the parties can address that question at the bargaining table or under section 106(2) of the Act.
IV
Is there any basis to reopen and reconsider the Board's initial decision, or to allow the employer, at this late date, to amend the employee lists, or to direct the taking of a representation vote? In our view, the answer is no.
In support of this application for certification the union filed documentary evidence of membership on behalf of some ninety or more per cent of the employees in the bargaining unit. This documentary evidence took the form of membership cards which include a combination application for membership and an attached receipt. The card is signed by the individual employee concerned, and is also signed by the individual soliciting his support ("the collector") to verify that the proper signature and one dollar payment have been secured. All of the cards indicate that a payment of one dollar has been made. The documentary evidence is supported by a properly completed Form 9, Statutory Declaration, concerning the regularity of the membership material. The membership evidence was all filed by the "terminal date" fixed pursuant to section 103 of the Act. There was no allegation of impropriety in the solicitation of the union's membership evidence.
Notice to employees of the certification application in Form 6 was posted on the employer's premises in conspicuous places where it would come to the attention of the employees potentially affected by this application. The Notice specifically advises employees of their right to object and the general manner in which such objection should be filed. No objection was filed, nor has any employee complained about the manner in which the union has conducted its organizing campaign. Whether or not "peer pressure" would be a factor for the Board to consider in assessing the weight to be accorded to the employees' written support for the union, and whether or not it is significant that these purported employee concerns surfaced only much later in "private conversations" with the employer's owners, the fact is that no employee has ever indicated any opposition to the trade union, nor resiled from the support indicated by signing a membership card - whatever they might have said in conversations with their employer. No such employee representation was made either on the day of the hearing or at any time thereafter.
There is no basis whatsoever, at this late date, to reconsider and reopen the hearing to permit the employer to reconstruct the employee list, long after the union membership has been revealed and, indeed, after the union has been certified on an interim basis - particularly since it was the employer's obligation to submit a list certified to be accurate prior to the hearing date. Contrary to Mr. Huluszka's submission, the list was fully and finally resolved on November 29, 1985, and a formal waiver of hearing was executed on the respondent's behalf. It is too late now to say that the list submitted by the employer is inaccurate and should be revised. Whether the consultant representing the respondent properly used information provided to her is a matter between the respondent and that consultant (but it is not obvious to us why persons purportedly terminated prior to the application date should somehow continue to be treated as the respondent's employees). In any case, questions concerning the employee list and the union's membership evidence were finally determined on November 29, 1985, and we do not think that it is appropriate to reopen the matter now any more than it would be appropriate if the application had been dismissed for the union to challenge the employee list or submit more membership cards.
Having regard to the foregoing, a final certificate can now issue to the applicant in respect of the bargaining unit more particularly described in paragraph 4 of the Board's decision of January 28, 1986. For the purpose of clarity, and for the reasons set out above, the Board is not prepared to exclude from that bargaining unit either RNA's or the "activity director" or the "supervisor - dietary staff".