Ontario Nurses' Association v. Porcupine General Hospital
[1987] OLRB Rep. March 423
2209-86-R Ontario Nurses' Association, Applicant v. Porcupine General Hospital, Respondent v. Group of Employees, Objectors
BEFORE: M. G. Mitchnick, Vice-Chair, and Board Members J. Rundle and J. Sarra.
APPEARANCES: Mary Hodder, Carolyn Prepp, Marion Perrin, and Maureen O'Halloran for the applicant; Allan Shakes, Malcolm Winter, Vi Douglas and Bryan Benneits for the respondent; Terry Wyburn and Margaret McGinn for the objectors.
DECISION OF VICE-CHAIRMAN M. G. MITCHNICK; February 27, 1987
This is an application for certification in which the Board is asked to apply the provisions of section 6(3) of the Act.
The applicant, the Ontario Nurses' Association, ("ONA") asks the Board in this case to alter its normal bargaining unit description of "all registered and graduate nurses employed in a nursing capacity" by deleting the qualifying words "employed in a nursing capacity". The representatives for ONA explain that those words have, over the years, involved the Union in costly and time-consuming litigation (with varying success) over the inclusion or exclusion of such classifications as Resident Care Co-ordinator, Co-ordinator in Home Care/Patient Care Referral, Nurse Clinicians, Pre-natal Instructor and In-service Co-ordinator, Infection Control Co-ordinator, to name a few. At the present hospital the positions of Admissions/Discharge Co-ordinator and Pharmacy Materials Manager are currently being filled by Registered Nurses, whom the respondent submits are not in fact employed in a "nursing capacity", and would not form part of the bargaining unit being certified. The applicant recognizes that it will always be required to litigate from time to time the question of whether certain persons in dispute exercise "managerial functions" or are "employed in a confidential capacity in matters relating to labour relations", but submits that these tests are adequate to protect the interests of the employer, and that these ought to be the only tests for exclusion from their bargaining unit.
The Board understands the problem, from the applicant's point of view. Any definition in a bargaining unit description will always carry with it a potential for litigation, and in this case the incidence of such litigation has been relatively high. The difficulty here, however, is that the applicant seeks to invoke the provisions of section 6(3) of the Act to eliminate the problem, and those provisions are simply not available to it in the present circumstances. Section 6(3) provides:
Any group of employees who exercise technical skills or who are members of a craft by reason of which they are distinguishable from the other employees and commonly bargain separately and apart from other employees through a trade union that according to established trade union practice pertains to such skills or crafts shall be deemed by the Board to be a unit appropriate for collective bargaining if the application is made by a trade union pertaining to such skills or craft, and the Board may include in such unit persons who according to established trade union practice are commonly associated in their work and bargaining with such group, but the Board shall not be required to apply this subsection where the group of employees is included in a bargaining unit represented by another bargaining agent at the time the application is made.
That section creates an exception to the normal unfettered discretion of the Board (in section 6(1)) to determine what it considers in a given case to be an "appropriate" bargaining unit. It does so solely on the basis of collective-bargaining history, however, and the unit that an applicant trade union is thereby entitled to demand is the unit that that collective-bargaining history has itself established.
On the evidence placed before us, we have no problem with the argument that the particular group of employees ONA has historically represented are, in the words of section 6(3), "employees who exercise technical skills or who are members of a craft by reason of which they are distinguishable from other employees and commonly bargain separately and apart from other employees through a trade union that according to established trade union practice pertains to such skills or crafts", and that ONA is itself "a trade union pertaining to such skills or crafts". ONA's bargaining history does not show, in other words, the kind of "mixed-unit" problem adverted to by the Board in such cases as Essex Health Association, [1967] OLRB Rep. Nov. 716 and Waterloo County Health Unit, [1969] OLRB Rep. Jan. 1016. But falling within that section still only assists ONA to the extent of its own traditional bargaining unit. And, as the respondent points out, the "skills" by virtue of which ONA's members have always been set apart in their own bargaining unit have been defined by reference to nurses "employed in a nursing capacity".
The best elaboration by the Board of this limitation on the effect of section 6(3) is found in the case of Kidd Creek Mines Ltd., [1984] OLRB Rep. March 481. At paragraph 57, in particular, the Board observed:
Nor are the protections offered by section 6(3) absolute. An examination of the statutory language indicates that it has been carefully drafted to preserve the status quo. It is a recognition of historical organizing patterns, rather than any general endorsement of craft bargaining units. Those historical criteria are built right into the section itself, and must be satisfied before it has any application. Section 6(3) is available only if the group of employees whom the union seeks to represent already commonly bargains separately and apart from other employees; and only if the applicant trade union has traditionally represented employees with those skills. Both conditions require the Board to look to the collective bargaining system for historical precedent to establish that the separate bargaining is already "common", and that the union's representation of these employees is in accordance with "established practice". These conditions effectively preclude the development of new craft unions and, in our view, limit the extension of craft bargaining patterns beyond their traditional boundaries....
[latter emphasis added]
There the International Brotherhood of Electrical Workers was seeking to require the Board to grant it in the mining industry a unit composed solely of electricians, on the basis of the traditional bargaining unit description it enjoyed in the construction industry. The Board, in refusing to carry that description over from one industry to another, pointed out that the historical requirement for having "commonly" bargained on the basis of a particular unit is very specific to the terms of the unit historically bargained for. At paragraph 62 the Board dealt with this point as follows:
Likewise, to determine the intended meaning of "common" in section 6(3) (i.e. to assess how common a union's bargaining practice actually is) one must necessarily delimit a field of bargaining behaviour against which the situation of the employees in question can be tested. To do that, it is helpful to refer to the purpose of section 6(3), for as we have noted, section 6(3) was intended to preserve rather than extend craft representation rights. It was meant to protect craft rights where they were already commonly established. At the very least, this requires the union to show that it commonly bargains for electricians like these separately and apart from other employees in the industry in which the certification application is made, or related industries; or, alternatively, that it commonly bargains separately and apart for electricians like these in the collective bargaining system as a whole, even if not in the particular industry in question. These are the reference points which appear to us to be most consistent with the thrust and terms of the section.
[emphasis again added]
The applicant's argument on the basis of section 6(3) of the Act does not, therefore, assist it in eliminating the words "employed in a nursing capacity" from the description of the bargaining unit, and those words will continue to be adopted by the Board in the case now before us.
The only persons in dispute in this case, however, being those in the positions of Co-ordinator and Pharmacy Materials Manager, are now agreed by letter dated February 19, 1987 to be excluded from the bargaining unit in any event.
On the basis of the foregoing, the Board hereby confirms its description of bargaining unit #2 as set out in paragraph 4 of its interim decision of December 8, 1986.
With respect to the "full-time" bargaining unit (bargaining unit #1), the Board ascertains that, taking into account the applicant's letter of February 19, 1987, there were 20 employees employed in that bargaining unit as of the date the application was filed. The applicant filed membership evidence on behalf of 15 of the employees in that unit. There were also filed with the Board by the terminal date statements from employees indicating their opposition to being represented by the applicant. The number of employees' names on such statements overlapping with the names of employees who signed membership cards in the applicant, however, is not sufficient to reduce the level of unqualified membership evidence below the 55 percent required for outright certification.
The Board accordingly certifies the applicant as exclusive bargaining agent for all registered and graduate nurses employed in a nursing capacity by the respondent at South Porcupine, save and except supervisors, persons above the rank of supervisor, and persons regularly employed for not more than 24 hours per week.
A certificate will now issue to the applicant with respect to both bargaining units #1 and #2.
DECISION OF BOARD MEMBER JANIS SARRA;
I concur with the decision of the Vice-Chair. I intend in this decision only to comment further on "nursing capacity".
The Board has no problem accepting the argument that the ONA is a trade union pertaining to craft and that the particular group of employees the ONA has historically represented are members of a craft, but it quite correctly confines this to the historical bargaining unit description of "in a nursing capacity". This is consistent with the requirements of section 6(3) of the Ontario Labour Relations Act as articulated in Art Wire and Iron Ltd., et al., 54 CLLC ¶17,080.
All parties to this application made submissions with respect to the issue of "nursing capacity". Given the importance of these submissions, it is both useful and necessary to provide a synthesis of the Board's jurisprudence with respect to "nursing capacity" as a bargaining unit description.
One of the reasons, but not the only reason that the ONA sought a craft bargaining unit in this application was to avoid the continuing litigation the union faces with respect to the definition of "nursing capacity". The Board has both the jurisdiction and responsibility to clarify its understanding of "nursing capacity" at the front end of the certification process with a view to foreclosing future problems, minimizing litigation, and with a view to fulfilling its mandate to foster healthy labour relations.
The Board's understanding of the concept of nursing capacity has matured and evolved. Fifteen years ago there were few, if any, nursing specialties. New job titles such as "discharge nurse" and "prenatal nurse" reflect the increasing specialization of nurses in response to the increasing complexity of health care service delivery. The term "nursing capacity" has evolved to encompass those jobs because they have historically been and continue to belong to nursing as a set of skills and indeed as a craft.
The Board has recognized that the work of nurses includes a range of skills and activities which are directed to prevention of illness and health education in addition to "hands on" patient care. In ONA v. Oakwood Park Lodge, 82 CLLC ¶16,153, the Board quotes from the Standards of Nursing Practice issued by the Ontario College of Nurses pursuant to its authority under The Health Disciplines Act, RSO 1980: in the context of considering the range of activities and supervisory functions inherent in nurses work:
The Registered Nurse performs acts requiring substantial specialized knowledge, skill and judgement, in assessing health needs, and in planning, implementing and evaluating nursing care. These include health education, promotion and maintenance of health, prevention of illness or injury, early case finding, rehabilitation and implementation of the prescribed medical regime. These acts are supportive and restorative to the health and well being of individuals, families and communities.
- The Board has in the past explicitly considered the meaning of "nursing capacity" as the bargaining unit description. In ONA v. Victorian Order of Nurses, [1984] OLRB Rep. Feb. 395, the Board held that community co-ordinator/case managers were employed in a nursing capacity though they were not performing "hands on" patient care duties. In its unanimous decision the Board adopted the broad interpretation of "nursing capacity":
Their primary role is to assess and monitor the needs of patients referred to the programme by a physician and help co-ordinate the delivery of services (be they from the health care professionals or other community agencies) to meet those patient needs. This is a professional judgement of health needs made in conjunction with other health care professionals...
Nor do we accept the respondent's submission that the community co-ordinator/case managers are not employed "in a nursing capacity", even though they do not personally do "hands on" patient care...
Moreover, the testimony of the co-ordinator who gave evidence indicates that she does in fact rely upon her nursing background and experience in carrying out her duties. She interacts with other members of the health care team and with physicians, exercising their diagnostic skills and professional judgement of a nurse.
Every registered nurse in Ontario must qualify for and have a valid nursing certificate. Every nurse operating in a health care capacity is subject to the regulations and discipline of the Ontario College of Nurses established by law through The Health Disciplines Act. No nurse working in the health care sector, whether in a "hands on" capacity in the narrowest sense or in pre-natal education, supply services, pharmaceutical services or discharge planning is working without that certification or that accountability. Any nurse in breach of procedure or public health practice such as poor sceptic practices in the handling of materials, could suffer a misconduct charge, revocation of her/his license and ultimately discharge. This reinforces the proposition that all these nurses are employed "in a nursing capacity".
The issue of the appropriate interpretation of the "nursing capacity" phrase where one position is held sometimes by a nurse and sometimes by a non-nurse has also been raised and addressed by the Board. In ONA v. Victorian Order of Nurses, supra, at page 398 the Board wrote:
It may be that there is no regulatory requirement to have a nurse in this position and at some time in the past and early phases of the home care programme there was a co-ordinator who was not a registered nurse but a physical and occupational therapist. But that does not mean that those who are registered nurses and using their skills as such are not employed in a nursing capacity. It means only that the professional skills exercised by various health care professionals are not enclosed in watertight compartments, and that if the respondent were once again to hire a co-ordinator who was not a registered nurse, that individual would fall outside the nurse's bargaining unit.
[emphasis added]
The Board's approach in this decision protects the employer right to hire, the accessibility of other workers to jobs and the right of other bargaining agents to claim representation of non-nurses when they hold these jobs.
The broad interpretation of the bargaining unit description "employed in a nursing capacity" which has been set out by the Board should not engender any conflict in community of interest, as exclusions from the bargaining unit based upon the Board's "managerial" and "confidential capacity" tests will continue to apply.
This brief review of Board jurisprudence illustrates the broad interpretation the Board has given to "nursing capacity". It is incumbent upon us to continue to clarify this term at the outset of the certification process to minimize problems and in order to facilitate and expedite the establishment of a healthy collective bargaining relationship between the parties.
DECISION OF BOARD MEMBER J. RUNDLE;
With respect to the decision of Vice-Chair Mitchnick I concur and would only add that the current designation "employed in a nursing capacity" is appropriate and necessary to deal with community of interest tests in cases involving claims by other unions of representation rights.
In response to the decision of Board Member Sarra, I feel it appropriate to make the following comments.
The sole issue before this panel was the O.N.A.'s request pursuant to section 6(3) of the Act that its normal bargaining unit description be altered by deleting the qualifying words "employed in a nursing capacity". As our decision properly holds, section 6(3) does not assist the applicant. That section provides that the Board can determine that a craft unit is appropriate only where that unit has historically bargained separately. Therefore there is no statutory authority for extending an existing craft unit, which is what the applicant seeks.
Furthermore, section 6(3) requires that employees in a craft unit exercise technical skills by which they are distinguishable from other employees. The technical skills by which nurses have been distinguished have historically been defined by reference to the concept of "employed in a nursing capacity". To delete that qualification from the bargaining unit description might dilute the technical skills exercised by the members of the unit to the point that its status as a craft unit could be jeopardized.
The decision of Board member Sarra describes the evolution through Board jurisprudence of a broad definition of "employed in a nursing capacity", and in so doing makes a number of statements to which I would not subscribe. However, the Board heard no evidence or argument with respect to this issue, and in my opinion, ought to make no ruling on it.