Ontario Nurses' Association v. Pembroke Civic Hospital, 1993 CanLII 7911

Ontario Nurses' Association v. Pembroke Civic Hospital

[1993] OLRB REP. OCTOBER 995

3998-91-R Ontario Nurses' Association, Applicant v. Pembroke Civic Hospital, Responding Party.

BEFORE: S. Liang, Vice-Chair, and Board Members R. M. Sloan and R. R. Montague.

APPEARANCES: E. Mcintyre, Mary Hodder, Sharon Foulds and Jeff Andrew for the applicant; Carole Piette, Bill Cowan and Lois Moss for the responding party.

DECISION OF S. LIANG, VICE-CHAIR, AND BOARD MEMBER R. R. MONTAGUE; October 19, 1993

1. This is an application for certification in which the Board by decision dated April 6, 1992, issued an interim certificate. The matter was adjourned sine die at the time, and on request of the applicant, has been re-listed for hearing.

2. The interim certificate granted the applicant bargaining rights on behalf of all registered and graduate nurses "employed in a nursing capacity" excluding, among others, the Nurse Clinician, Pharmacy Technicians, Discharge Planner and Occupational Health/Infection Control Coordinator. The term "employed in a nursing capacity" is in dispute for the purposes of the final certificate, as is the exclusion or inclusion of the above positions. At the hearing before us, the parties informed the Board that the position of Occupational Health/Infection Control Coordinator is no longer in dispute. The Discharge Planner is now called Discharge Planner/Infection Control Nurse.

3. It is the position of the applicant (referred to herein for ease of reference as "ONA") that the description of the bargaining unit ought not to include the limiting phrase "tn a nursing capacity". Whether or not that position is accepted by the Board, ONA also asserts that the positions of Nurse Clinician, Pharmacy Technician and Discharge Planner/Infection Control Nurse (hereafter referred to as simply "Discharge Planner") ought to be included in the unit. The employer (referred to herein as "the hospital" or "Pembroke Hospital") wishes the bargaining unit to be confined to those registered and graduate nurses employed in a nursing capacity. Further, it asserts that the positions in dispute are not employed in a nursing capacity and do not share a community of interest with the rest of the bargaining unit. The employer takes the position as well that the Nurse Clinician is excluded from the Act under section 1(3), as a person who exercises managerial functions or is employed in a confidential capacity in matters relating to labour relations.

4. The Board heard the evidence of Eleanor Wright, Geraldine St. Louis and Evie Cain, who are incumbents in the positions in dispute, as well as from Judy Peterson for ONA and Lorraine Weber and Lois Moss for the hospital. We have made findings of fact based on their evidence as well as on the documentary materials provided by the parties, which we have reviewed thoroughly, and have drawn inferences where necessary based on the above. We make one brief comment with respect to the evidence of Judy Peterson. Although Ms. Peterson's extensive background in nursing and nursing education amply qualifies her as an expert witness, we are unable, in assessing her evidence, to ignore the fact that she is an employee of ONA. We do not intend this comment to suggest that this played a large part in our determinations, for there was much in her evidence that was helpful and much that is not contentious. We merely state that in considering Ms. Peterson's opinions on the issues before us, we bear this in mind.

5. The evidence was, for the most part, thorough in its canvassing of the issues, credible and helpful. The parties also provided thoughtful and detailed statements of facts in accordance with the Board's prior direction and were efficient and cooperative in the presentation of their cases, all of which greatly assisted the Board in the hearing of this matter. Both the evidence and submissions have been necessarily abbreviated in the recounting below.

I

6. Pembroke Civic Hospital is a ninety bed acute care hospital with approximately 350 employees. Apart from the bargaining unit represented by ONA, the only other unionized group at the hospital are the Registered Nursing Assistants, who are represented by the Practical Nurses Federation of Ontario. In general, the structure of the hospital is as follows. There is an Executive Director, who has two Assistant Executive Directors ("AED") reporting to him. One is the Assistant Executive Director Hospital Services and the other is the Assistant Executive Director Patient Services, Lois Moss. Included in the responsibilities of the AED Patient Services are the areas of Nursing, Pharmacy, Respiratory, Physiotherapy and the positions of Nurse Clinician and Discharge Planner. In the area of Nursing, the staff nurses, among others, report to Nurse Managers, who have been excluded by agreement from this bargaining unit as falling within 1(3) of the Act. The Nurse Managers in turn report to Ms. Moss. The Nurse Clinician and the Discharge Planner report directly to Ms. Moss.

Nurse Clinician

7. Eleanor Wright presently holds the position of Nurse Clinician at the hospital. She also performs the functions of Occupational Health Nurse. Ms. Wright is a Registered Nurse holding a certificate of competence from the Ontario College of Nurses. She has been an RN since 1975. She started working at Pembroke Civic Hospital in 1976, as a staff nurse on a medical floor. From 1980 to 1992, she worked as a staff nurse and then Critical Care Coordinator in the Intensive Care Unit at the hospital. In March of 1992, she took the position of Nurse Clinician, as a result of downsizing in the hospital.

8. Essentially, the role of the Nurse Clinician is the education of staff nurses and RNA's within the hospital setting. The nature of this job and major responsibilities are usefully summarized in the Position Profile, which is consistent with the oral evidence of Ms. Wright:

NATURE AND SCOPE OF RESPONSIBILITIES

• The Nurse Clinician functions as an integral part of the Nursing Department. With responsibilities for assisting staff nurses in the assessment, planning implementation and evaluation of patient care and nursing practice activities, the nurse clinician works within the philosophy of nursing to foster, facilitate and achieve the highest standards of care in accordance with the Pembroke Civic Hospital's Mission Statement.

• The role is defined by the needs of the hospital, a select/patient/family population, and the goals for professional nursing practice.

MAJOR RESPONSIBILITIES

• Instruct and supervise nursing staff in delegated medical acts and added nursing skills.

• Function as a resource person to nursing staff in areas of patient care.

• Assist in the revising of nursing policies and procedures.

• Act as resource person to various Hospital Committees - Pharmacy & Therapeutics, Nursing Practice

• Maintenance of hospital's crash carts. Monitor Red Alert Drills.

• Identify learning needs of nursing staff through independent assessment and collaboration with Nurse Managers.

• Collaborate with health care professionals within the hospital and in other health care agencies and institutions in educational endeavours related to patient care and professional development.

• Communicate with Nurse Managers regarding nursing staffs' competencies.

• Facilitate problem-solving with nursing staff regarding clinical practice and/or patient care issues.

9. Much of the teaching for which Ms. Wright is responsible is in the category of "added nursing skills". These are defined in the College of Nurses "Guidelines for Decision making" as "acts in the practice of nursing for which the basic nursing programs provide neither specific theory nor clinical practice. These skills are not taught in basic programs, either because they are not needed by many clients or because they are required only in specialty areas of practice." Examples of added nursing skills which are taught by Ms. Wright include intravenous therapy, blood therapy, and accessing the central venous line.

10. Each unit of the hospital has specific added nursing skills which its staff nurses are expected to be able to perform. Ms. Wright researches the skill required, develops a policy to explain the procedure, then teaches the skill, usually through demonstration. When a nurse shows that she or he is competent to do the procedure, Ms. Wright certifies that person for the particular skill.

11. Ms. Wright is also involved in the education of staff nurses for "sanctioned medical acts". These are medical acts which can be delegated by physicians to nurses and include, for example, defribillation. Ms. Wright instructs the nurses on these procedures, under the supervision of a physician, who then certifies the competence of the nurse to perform the procedure.

12. As shown in the Position Profile, part of Ms. Wright's position involves functioning as a resource person to nursing staff in areas of patient care. Ms. Wright has regular contact with staff nurses in this troubleshooting role. Because of her knowledge, she is available to the nurses for assistance in solving patient care problems. Ms. Wright routinely visits the various units. She does not have a great deal of direct patient contact, but may do so in her troubleshooting role and also in clinical demonstrations.

13. The Position Profile states, among other things, that a requirement of the job is registration with the College of Nurses. As well, the hospital requires "demonstrated skills in the areas of communication, clinical practice and teaching" and "five years of acute care nursing experience." Ms. Wright states that it is very necessary to her job that she keep her own nursing and clinical skills current.

14. Where a nurse fails to pass a test for required skills on a nursing unit, Ms. Wright may work with the Nurse Manager to identify what can be done to help the nurse obtain more knowledge and skills in order to perform the procedure. She does not make decisions to impose disciplinary action. Ms. Wright may also be asked by Nurse Managers engaged in performance appraisals of the nurses if she has any concerns with respect to their competence.

15. At the present time (it was agreed by the parties that the Board could look at the positions as they currently exist), Ms. Wright also fulfills the functions of Occupational Health Nurse. She spends about one hour per week in this role. In this role, she essentially acts as a health advisor to hospital staff. She conducts tuberculous skin tests, immunizations if required, and other employee health assessments. The information she gathers on an employee's health is contained in confidential employee health records, which Ms. Wright states are not shared with management. Part of her role is health promotion and health teaching with respect to employees of the hospital.

16. Ms. Moss testified that Nurse Managers might require information from the Occupational Health Nurse on use of sick time by nurses, although the evidence is that such a request has never been made.

Pharmacy Technician

17. Geraldine St. Louis is one of three persons holding the position of Pharmacy Technician (which is now called Pharmacy Technician I). At present, one of these persons is on maternity leave. All of these persons work part-time. In the pharmacy, there is also a Pharmacist, Lorraine Weber, and a Pharmacy Technician II (which until November of 1992 was called the Pharmacy Clerk).

18. Prior to 1984, there were no Pharmacy Technicians employed at the hospital. The hospital had a Pharmacist, and a Pharmacy Clerk. In 1984, the three positions of Pharmacy Technician were created. The creation of these positions was related to a change within the hospital in the manner in which medications were dispensed. Prior to 1984, all of the nursing units had their own large stock of medications on the unit. Each staff nurse took medication as required from this stock. As of 1984, the function of dispensing medications from a large stock is now performed within the pharmacy, although the units still have a small "ward stock" of basic medications such as pain relievers. Nurses in the units are still involved in dispensing medication from the ward stocks.

19. Ms. St. Louis has been a Registered Nurse since 1973. She worked as a part-time staff nurse at Pembroke from 1977 to 1984, when she took on the position in the pharmacy. All three incumbents in this position are RN's, who came from within the hospital. At the time of their hiring and continuing until November of 1992, the hospital required a certificate of competence as an RN for the position. The current incumbents are the same persons hired in 1984 when the position was originally created. No additional courses or outside training was required of the incumbents. There was on-the-job training which involved about 8-10 days of instruction from and working under the direct supervision of the Pharmacist.

20. All of the incumbents in the position have also worked as staff nurses on a casual basis. At present, two of the incumbents still work the occasional shift as a staff nurse at the hospital.

21. The main responsibility of the Pharmacy Technicians I is the dispensing of medication orders in accordance with doctor's orders. The Position Profile in effect as of the certification application date states:

NATURE AND SCOPE OF RESPONSIBILITIES

• Under the supervision of the Director Pharmacy, the Pharmacy Technician assists in maintaining the drug distribution system and in the planning, organizing and supervising activities in hospital pharmacy according to hospital policies, standards of practice of the department and federal and provincial laws.

MAJOR RESPONSIBILITIES

• Dispenses medication orders for delivery to nursing units.

• Restocks medication carts on each unit on a weekly basis.

• Reconstitutes Pentothal and Brietal for OR, and chemotherapy drugs in accordance with health and safety guidelines.

• Fills orders for narcotic and controlled drugs and maintains accurate records for perpetual inventory.

• Maintains patient medication profiles.

• Assists physicians and nurses with drug information in absence of Pharmacist.

Prepackages medication for ward stock and completes appropriate documentation.

KNOWLEDGE AND SKILLS

• Current Certificate of Competence as a Registered Nurse in Ontario.

• Knowledge of drugs and dosage guidelines essential.

• Ability to communicate with all hospital personnel.

• Ability to make decisions independently in absence of Pharmacist.

22. Pharmacy Technicians I do not generally have any contact with patients, nor are they familiar with the medical histories of the patients beyond the diagnosis which is indicated on every order. As stated on the Position Profile, they are expected to have knowledge of drugs and dosage guidelines, and the indications and contraindications of common medications.

23. At night, when there is no one in the pharmacy, staff nurses who require medication have access to a cupboard in the pharmacy which contains a stock of most medication. Access to the cupboard is controlled and monitored electronically.

24. The evidence shows that the Pharmacist also engages in the dispensing of medication, although she clearly has more duties and responsibilities than the Pharmacy Technicians I. The Pharmacist is not a Registered Nurse.

25. The Pharmacy Technician II, on occasion, assists in dispensing medication by filling orders which are then checked by the Pharmacist or a Pharmacy Technician I. This is a small portion of her job, which consists of various duties around the pharmacy relating to dispensing, purchasing, receiving, clerical and portering tasks. In all, about 85% of this position relates to clerical, administrative and delivery tasks. In contrast to the Pharmacy Technicians I, the Pharmacy Technician II is not required to have knowledge of drugs and dosage guidelines, nor is required to make decisions independently in the absence of the Pharmacist.

26. The Pharmacy Technician II holds a certificate as a Registered Nursing Assistant which, however, is not a requirement of this position. This position is not included in the RNA bargaining unit, apparently by agreement of the parties. Also not included in the RNA bargaining unit are persons working at the hospital as ward clerks and laboratory assistants holding an RNA certificate.

27. In the hospital's evidence, registration with the College of Nurses was until very recently a requirement for the job of Pharmacy Technician I because the hospital always has staff nurses looking for part-time work. The hospital prefers to hire from within, and views the knowledge and experience of the staff nurses as a good basis for working in the pharmacy.

28. The evidence is that in November of 1992 (eight months after the certification application date), the Position Profile for the job of Pharmacy Technician I was changed. Instead of requiring a certificate of competence as a Registered Nurse in Ontario, the Profile now states: "Current Certificate of Competence as a Registered Nurse in Ontario or equivalent experience".

29. It was explained that the change to the qualifications required for this position came about as a result of the maternity leave taken by one of the RN's holding the position of Pharmacy Technician I. The hospital put out an internal job posting, looking for a Registered Nurse to fill the maternity leave vacancy. However, it was unable to find a Registered Nurse, and the hospital advertised the job, adding the phrase "or equivalent experience". The person hired for the maternity leave vacancy has more than twenty-five years experience as a pharmacy technician at another hospital, although she is not an RN. After the maternity leave is over, the hospital may continue to employ her for relief work in the pharmacy.

30. The job of Pharmacy Clerk was changed to Pharmacy Technician II in November of 1992.

Discharge Planner/Infection Control Nurse

31. Evie Cain presently holds the position of Discharge Planner/Infection Control Nurse. Ms. Cain has been a Registered Nurse since 1956. She has worked for the hospital since then. Immediately before taking her current position, she worked as an Admitting Officer. The Position Profile for her position states:

NATURE AND SCOPE OF RESPONSIBILITIES

• Co-ordinate and facilitate the patient's re-entry into the community in conjunction with families, nurses, physicians and referral agencies.

• Responsible for Infection Control and reporting of nosocomial infections.

• Responsible for notifying Medical Officer of Health of any contagious diseases.

MAJOR RESPONSIBILITIES

• Collaborate with community health care professionals to determine the most appropriate accommodation/placement for patients.

• Ensure that appropriate forms and applications required for placement or referral to other agencies are completed.

• Attend Utilization Committee and Chronic Care meetings.

• Provide inservice education regarding discharge planning to nursing staff.

• Follow guidelines of hospital policies and procedures.

• Provide funding information to patients and families.

• Assess needs of the hospitalized patients.

• Record all patients admitted with an infection.

• Environmental cultures when necessary.

• Recording of positive cultures on patients in hospital and preparing a monthly report for Infection Control Committee.

KNOWLEDGE AND SKILLS

• Registered with the Ontario College of Nurses.

• Familiarity with computers an asset.

• Excellent interview and interpersonal sills.

• Member of Community Hospital and Infection Control Association is encouraged.

• Member of Ottawa Organization of Practising Infection Controllers is encouraged.

32. As well, the Board was provided with a document titled "Department Manual Procedure" covering the position of Discharge Planning Nurse, which sets out the purpose of this department, the responsibilities of the position, the actions expected and their rationale. In this document, the hospital states that in general, the responsibilities of the Discharge Planner are to "identify, assess, plan, recommend, implement and evaluate patient discharge planning.

33. Essentially, the responsibility of the Discharge Planner is to coordinate and assist in planning for continuity of care for a patient who is being discharged. The Discharge Planner gathers information from various sources as to the patient's medical and social condition in order to coordinate the necessary services or care outside of the hospital. For example, an important part of this position is the referral of a patient to home care services, under which nursing care is provided to the patient at home.

34. The Discharge Planner gathers information from interviews with patients and their families, from her observations of patients (e.g. their mobility), the medical chart, including the medication profile, and from speaking to other members of the health care team in the hospital, such as doctors, staff nurses, the physiotherapist and the dietitian. Based on this information, she assesses the discharge needs of the patient. She may then, for example, recommend a home care referral. The recommendation is made to the patient's physician, who has the authority to order home care. The Discharge Planner may also be involved in helping the patient to apply for admission to a long-term care facility. Other services she may assist in arranging are volunteer visits by the Victorian Order of Nurses, Meals on Wheels, wheelchairs, etc.

35. If a patient is to be given home care, the Discharge Planner completes a home care referral form, which includes the nursing orders that will be the basis of the nursing care provided and any other specific needs of the patient based on the information she has gathered. Although for the most part the Discharge Planner gets the information for nursing and therapy orders from other sources such as the patient's chart, she does more than simply transcribe information. The Department Manual Procedure states that she is required to "[w]rite nursing and therapy orders and review the medications on client's discharge to the Home Care Program" in order to "ensure a written continuity of care and medication is provided so a smooth transaction from hospital to home (care giver) is maintained".

36. On her days off, Ms. Caine is replaced by either a staff nurse or by Geraldine St. Louis, one of the Pharmacy Technicians I who is an RN.

37. Although she has an office, most of Ms. Caine's time is spent in the nursing units. In her role as Discharge Planner, Ms. Caine attends nursing unit meetings once a week during which staff nurses report on the progress of patients in the unit. The purpose of her attendance is to be kept informed on the status of patients. Occasionally, Ms. Caine may make suggestions on the care of patients while in hospital so as to assist in their discharge planning. For instance, if a patient with mobility problems is being discharged into a home environment with stairs, she may suggest that nursing staff assist the patient in climbing some stairs during his or her recovery in the hospital. The Department Manual Procedure states that she is required to "[a]ttempt to assess clients with the nursing staff once a week" in order to:

[D]evelop a screening mechanism to identify clients who are at high risk of requiring more complex discharge planning and review the client's conditions so as to establish treatment goals that improve and enhance functioning level to maximize independence and revise the discharge plans when client's needs have changed.

38. Ms. Caine does not possess any certificates allowing her to perform any added nursing skills or sanctioned medical acts.

39. Ms. Moss testified that the job of Discharge Planner could be filled by a social worker, and that in some institutions, a social worker is employed in this function. There are some elements of what Ms. Caine does, however, that could not be performed by a social worker.

40. In her role as Infection Control Nurse, Ms. Caine receives culture and sensitivity reports from the hospital's laboratory. She gathers information with respect to the history of the infection from the patient's chart and then reports this information to the Infection Control Committee, of which she is a member. The reports are discussed by this committee to determine whether the infection is nosocomial in nature (i.e. originated in the hospital), and the pathologist makes the final determination. Ms. Caine spends about ito 1-12 hours on these duties per week.

"Employed in a Nursing Capacity"

41. The Board was provided with a number of documents from the College of Nurses of Ontario which set out standards and guidelines concerning the roles of Registered Nurses and Registered Nursing Assistants. The document titled "Standards of Nursing Practice" identifies the "minimum expectations for providing safe, effective and ethical nursing care" in the practice of nursing. Nursing practice is stated to be only one of four interacting dimensions of nursing; the others are management, education and research.

42. The most recent version of the Standards was published in 1990. In the versions before this, the Standards incorporated a list of "basic nursing skills". Although the current Standards incorporate descriptions of basic skills, they are less detailed and technically-described. The Standards state with respect to this change:

Skills lists, which were appended to previous versions of the standards, focused primarily on technical or psychomotor nursing skills. The new approach to skills in these standards emphasizes the knowledge, decision-making techniques, and communication techniques that RNs and RNAs must use in a time of rapid technological advancement, changing delivery patterns, and increasing complexity of care. It also reflects a shift in nursing from task orientation to goal orientation and integrates the performance of skills into the nursing process.

43. The evidence is that the move away from a technical skills list in the Standards is related to changes in health care in general. The nursing profession has developed a more holistic and generalist approach to patient care. Registered Nurses have expanded their role beyond the traditional health care institutions, to community-based agencies or clinics, and in health teaching and promotion. There are many RN's working in such roles as infection control, quality assurance, home care coordination and discharge planning. The role of nurses today overlaps to some extent with the roles of other both well-established and developing health care disciplines.

44. Other than the positions in dispute and persons excluded from the bargaining unit as managerial, the only person in the hospital who is an RN and who is not in this bargaining unit is the AED of Hospital Services. Prior to taking this position, this person was a purchasing agent within the hospital.

II

45. It is the position of ONA that its bargaining unit ought to include all registered and graduate nurses, excluding managerial personnel. In the alternative, it submits that the phrase "employed in a nursing capacity" should be interpreted broadly enough to include the positions in dispute. In the final alternative, ONA suggests that the Board frame new language to describe its bargaining unit, in order to accommodate the reality of expanding nurses' roles. It suggests that the Board adopt the phrase, for example, "all registered and graduate nurses employed as health care professionals".

46. ONA acknowledged that there is a well-developed practice with respect to nurses' bargaining units in favour of the restriction which it seeks to eliminate, and that the onus is on it to persuade the Board to move away from this historical practice. To a large extent, the arguments of ONA are based on two factors: the lack of predictability in the application of the phrase "employed in a nursing capacity" and the community of interest amongst RN's working in health care institutions, regardless of job classification. The Board was provided with a large number of arbitration and Board decisions in which there was a dispute over whether a particular RN was "employed in a nursing capacity" and therefore included in the ONA bargaining unit. The litigation which has resulted over this phrase, it is submitted, does not make for good labour relations.

47. Further, a move away from this restriction enhances the mobility of nurses within the hospital, which is a positive labour relations result, without increasing fragmentation of bargaining units. With developments in health care, such a restriction imposes a glass ceiling on nurses by confining them within a one-classification box. As well, it imposes a cement floor for nurses who have moved beyond staff nurse positions in their career and, as a result of downsizing, have difficulty moving back into the bargaining unit.

48. It is submitted that the professional interests of nurses extends beyond those in staff nurse positions to include, for instance, the incumbents in the disputed positions. Further, it includes nurses who might have had a staff position, and because of lay-off, have taken a position within the hospital which is clearly not in a nursing capacity. These persons have a continuing community of interest with other nurses.

49. In any event, ONA asserts that all of the positions in dispute involve functions and responsibilities which are part of if not integral to the nursing profession and therefore fall within the phrase "employed in a nursing capacity".

50. In the hospital's submission, the Board has considered and rejected the position taken by ONA, in Porcupine General Hospital, [1987] OLRB Rep. Mar. 423. There is nothing different in the case before this panel, and no reason why the reasoning of the Board in that case does not apply here. Further, even if this panel were inclined to take a fresh look at the issue, the bargaining unit proposed by ONA violates the basic labour relations principles applied by the Board in fashioning bargaining units. ONA's bargaining unit is premised on professional community of interest which is very different from the employment-related community of interest that the Board has found relevant. The result of this is the possibility that different employees in the same job classification may be in two different bargaining units. This does not lead to viable and rational collective bargaining.

51. In dealing with the positions in dispute, the hospital asserts that the Board cannot isolate the various components of the Standards of Nursing Practice, and find that a person doing tasks found within these Standards must be engaged in a nursing capacity. To do so would mean that almost every employee in the hospital performs nursing functions. Rather, the Board should look at the practice of nursing as an integrated whole, and decide as a whole whether the persons in the disputed positions are working as nurses.

52. In addition to the arbitration cases dealing with the issue of "employed in a nursing capacity", the parties referred the Board to: Kidd Creek Mines Limited, [1984] OLRB Rep. March 481, The Hospital for Sick Children, [1985] OLRB Rep. Feb. 266; Porcupine General Hospital, [1987] OLRB Rep. Mar. 423; West Lincon Memorial Hospital and Ontario Nurses' Association,(Board File No. 1001-87-R, dated October 11, 1989, unreported); Strathroy Middlesex General Hospital, [1992] OLRB Rep. Oct. 1103; Sudbury Algoma Hospital, [1989] OLRB Rep. April 390; Victorian Order of Nurses, [1984] OLRB Rep. Feb. 395; The Toronto General Hospital, [1986] OLRB Rep. Jan. 176; The Wellesley Hospital, [1974] OLRB Rep. Jan. 55; Brockville General Hospital, [1967] OLRB Rep. Jan. 776; The Mississauga Hospital, [1991] OLRB Rep. Dec. 1380; Usarco Limited, [1967] OLRB Rep. Sept. 526; Essex Health Association, [1967] OLRB Rep. Nov. 716; and The Hospital for Sick Children, [1985] OLRB Rep. Feb. 266.

III

53. The Board does not accept the appropriateness of the bargaining unit description urged on us by ONA. In arriving at this determination, we have considered each of the factors relied on by ONA. Ultimately, we do not find that any of them support a change to the long-standing practice with respect to nurses' bargaining units.

54. As was acknowledged by counsel for ONA, there are good labour relations reasons for the Board to apply well-established practices with respect to the description of bargaining units, and predictability for the purposes of organizing is one of those reasons. We also recognize that from time to time, it may become apparent that history should not rule the day, and that the Board and the labour relations community should be willing to challenge outmoded assumptions about the organization of the workplace.

55. It is not clear to us that the unit which has been the well-established one for nurses has outlived its usefulness. The dividing line which has been drawn by the Board with respect to nurses working in the health care sector can be likened to the line which the Board has drawn around craft bargaining units, under section 6(3) of the Act, and in the construction industry. In Porcupine General Hospital, supra, the Board accepted the idea that the standard nurses' unit is a craft bargaining unit for which ONA could rely on section 6(3). In Hospital for Sick Children, supra, the Board stated that over time and through practice, nurses have acquired "almost a quasi-craft status" which entitles them to their own distinct and separate bargaining unit.

56. The standard unit for nurses, and for other craft-type units whose members hold professional or technical qualifications, has been confined to those employees who are actually engaged in the work of that craft or profession. The definition, for instance, of "professional engineer~~ in the Act speaks of those members of the profession "employed in a professional capacity"[section 1(1)]. The Act also speaks of employees in architecture, dentistry, engineering, land surveying and law "who are employed in their professional capacity" [section 6(4)]. As well, in the construction industry, the Board determines the members of a bargaining unit confined to a specific trade with reference to the actual work done by the employees, and whether it is the work of that trade. Thus, for instance, the Board will determine whether an employee who is a certified electrician was engaged in the work of an electrician at the time of an application for certification.

57. The result of attaining craft or craft-like status, whether by decisions of the Board or operation of statute, is that in a certification application (assuming the applicant to be a union which is the traditional representative of that craft), the Board assumes the viability of the unit, the community of interest amongst the members of the unit, and assumes the absence of any serious labour relations problems that would result from the granting of such a unit. The instant, however, that one moves away from the standard unit, these assumptions no longer apply.

58. ONA urges the Board to "go back to first principles" in assessing the bargaining unit which it seeks. On these first principles, the Board has serious difficulty with the unit proposed. Essentially, ONA wishes to represent all persons who hold a professional qualification as a nurse, regardless of the nature of their employment. We accept that all persons who work in a health care institution share, at some level, a community of interest, just as all employees of a particular employer may be said to share a community of interest. Thus, it may be that an RN working as a purchasing agent (as has happened at this hospital) shares some community of interest with RN's working in their capacity as nurses. We also accept that beyond the general community of interest that might be shared by all employees at the hospital, there might be more of a shared interest amongst persons who have the same professional standing.

59. The consequence, however, of moving away from employment-related categories and lines of division between employees, is the potential that bargaining unit descriptions will become dependent on the incumbents that hold the positions in question. Thus, for instance, the result of the type of dividing line which ONA asserts is appropriate is that the RN who held the position of purchasing agent may be in the ONA bargaining unit, while the next person who holds the same position, who is not an RN, is not in the ONA unit. If there is more than one incumbent in the job, some may belong in one bargaining unit, and some in another. The labour relations difficulties presented by such a situation are obvious. Employees working in the same position may have different terms and conditions of employment, seniority structures and potentially career paths.

60. We do not accept, therefore, that the interest which may be shared amongst all RN's outweighs the interest as between employees working side by side in the same job classification, or outweighs the labour relations difficulties inherent in a bargaining structure based on personal qualifications. We see no reason to doubt, based on the factors relied on by ONA, the correctness of the Board's approach to craft and craft-like units.

61. This does not mean, however, that the Board may not find that an RN working in a position is engaged "in a nursing capacity" while a non-RN filling the same position is not. As observed by the Board in Victorian Order of Nurses, supra, the work of various health professionals are not enclosed in watertight compartments. Registered nurses filling a position might be expected to use their professional qualifications in the performance of their work and so are "employed in a nursing capacity", while a non-RN in the same position would fall outside of the unit. This is quite different from saying that all RN's who are clearly not working in a nursing capacity must also be in the nurses' bargaining unit.

62. Further, although ONA decries the amount of litigation that has arisen over the use of the phrase "employed in a nursing capacity", thd decisions that have emerged do provide certain principles that can guide the parties and, on some level, contain an element of predictability. To summarize some of the principles in these decisions which are most applicable to the case before us:

(a) "employed" or "engaged in a nursing capacity" means something broader than performing hands-on nursing or direct patient care;

(b) the phrase identifies incumbents of positions "in which the individual, who is already a registered or graduate nurse, is employed in a position in which he or she is expected to possess the training and skills of a nurse in order properly to carry on her work": see La Verendry General Hospital, (Fort Frances) Inc. and Ontario Nurses Association, (December 15, 1980) unreported (Abbott);

(c) the fact that the qualifications for a position require a Bachelor of Science degree in Nursing or its equivalent and experience in nursing would not necessarily by itself be sufficient to make employment in a "nursing capacity": Beacon Hill Lodges (1984) Limited, (2 December 1987) (Brunner);

(d) however, the fact that a degree or qualification in nursing is required for a position is a strong indicator that the training and skills of a nurse are required in order to properly carry out the work: see Victorian Order of Nurses, supra;

(e) as observed in Victorian Order of Nurses, the "professional skills exercised by various health care professionals are not enclosed in watertight compartments". A position for which an RN is required may be employed in a nursing capacity, but if in future the position is filled by a non-RN it may then fall outside the nurses' unit.

63. In our view, many of the concerns which were expressed by ONA with respect to the narrow scope of its bargaining unit description can be accommodated within the above principles. To the extent that ONA is concerned that the traditional description imposes a glass ceiling on nurses by confining them to a one-classification box, it is apparent that this is no longer true. In arbitration and Board decisions on the issue, the concept of "employed in a nursing capacity" has been applied flexibly, to include positions far removed from the traditional staff nurse. Developments in health care, in the variety of health care roles and skills, and in the concept of what it is to be a nurse within the health care system, can be taken into account within the existing principles. Thus, it may well be that the notion of "employed in a nursing capacity" is not static, and is different today from what it was a few decades ago.

64. In conclusion, we see no good reason why the traditional description of the nurses' bargaining unit ought to be amended in the way sought by ONA. We therefore find that the appropriate bargaining unit description ought to include the phrase "employed in a nursing capacity".

65. The parties ask in light of this where the predictability lies, and how it can be determined when a person is "employed in a position in which he or she is expected to possess the training and skills of a nurse in order properly to carry on her work". Without pretending to reconcile all of the strands within the cases cited, in our review of them we have found that in every case (about 10) in which the employer required an RN qualification for the position, the position was found to be employed in a nursing capacity. There were no cases cited to us where an employer required an RN for the position in the dispute, and the position was found to be outside the nurses' bargaining unit. It appears to us, therefore, that unless it is very clear that an RN requirement is an anomaly, and the position has only the most peripheral relation to nurses' training and skills, it will be difficult for a party to argue that a position which requires an RN qualification is not one in which an incumbent is "expected to possess the training and skills of a nurse in order properly to carry on her work".

66. Applying the above principles to the positions in dispute before us, we are satisfied that all of them are in the bargaining unit. By requiring a current certificate of competence as an RN for each of these positions, the employer has indicated that it expects the incumbents to possess the training and skills of a nurse in order to carry on her work. In none of these cases can it be said that the requirement to have an RN qualification is an anomaly in terms of the duties of the job and is clearly unrelated to those duties. Further, in none of these cases can it be said that the position has only the most peripheral relation to nurses' training and skills. To a greater or lesser extent, the knowledge and skills exercised by the incumbents in these positions are related to the knowledge and skills acquired in RN training, and exercised by RN's working as staff nurses.

67. The position of Nurse Clinician is perhaps the easiest one to determine. In fulfilling the role of on-site educator of staff nurses, Ms. Wright is clearly required to maintain and upgrade her own knowledge of the nursing process and its specific applications. She is required to maintain her technical skills, for the purposes of teaching and demonstration. She does not have much direct patient contact but is regularly called upon as a resource person to assist in resolving nursing problems.

68. We are also satisfied that the position of Nurse Clinician ought not to be excluded from the Act by virtue of section 1(3). To the extent that Ms. Wright supervises the skills of the nursing staff, we are satisfied that the supervision is professional and not managerial in nature. Although Ms. Wright's assessments of a nurse's competence to perform added nursing skills may be relevant to decisions on discipline or discharge, there is no evidence that she ever makes recommendations or decisions on these measures. These decisions are made by Nurse Managers or those above that rank. Rather, Ms. Wright's role is to assist nurses in attaining the knowledge and skills which will enable them to perform the nursing skills required.

69. With respect to the Discharge Planner, we place significant weight on the hospital's requirement that the incumbent be an RN. It may well be that other hospital have hired non-RN qualified personnel to perform similar functions in the role of discharge planner. It is a job whose functions appear to overlap with other professionals, such as social workers. Many of the functions are administrative in nature. However, it is clear that the hospital expects its Discharge Planner to have the knowledge and skills of an RN in order to perform her job, and in our assessment, this expectation has a reasonable relation to the functions actually performed by Ms. Caine. In assessing a patient's discharge needs, Ms. Caine augments the patient chart and other information with her own observations with respect to that person's ability to perform necessary tasks of daily living after discharge from the hospital. As part of her role as Discharge Planner, she attends nursing unit meetings and is expected by the hospital to have some input into a patient's care where that is related to the discharge planning.

70. The position of Pharmacy Technician I is perhaps the most problematic and again, we place great reliance on the fact that when the incumbents were hired, the hospital required an RN qualification for the position. We are reluctant to place much weight on the hospital's stated rationale for this requirement, that it wished to hire from within and provide its staff nurses with the opportunity of movement within the hospital. This purpose could easily have been met without restricting the incumbents in the position to RN-qualified personnel. Rather, we are inclined to conclude that the hospital wished to have persons with the training and skills of an RN for this position. RN training includes pharmacology, and the staff nurses in the hospital are routinely involved in the dispensing of medication to patients. It was to the hospital's advantage that it have persons with this training and experience for the position. It is also significant to us that the work of the Pharmacy Technician I was, before 1984, performed by staff nurses in the nursing units. As well, staff nurses currently perform some of the same functions as the Pharmacy Technician I, in dispensing medications from ward stocks. We do not rely in our findings with respect to this position on the fact that some of the present incumbents may occasionally work a casual shift as a staff nurse (and we do not understand ONA's position to be based on this factor).

71. Thus, before the position was created, the functions had been fulfilled by staff nurses. After the creation of the position, all of the incumbents have been RN's, and until 1992, all were required to be RN's. Only in 1992, after this application was filed, did the hospital change the qualifications for this job in order for it to hire a non-RN as maternity relief. After this temporary placement is over, all of the regular incumbents will again be RN's.

72. It may be that the hospital has decided that it can accept alternative qualifications to the RN qualification for this position. It has changed the Position Profile to reflect this. If one of the incumbents leaves and the hospital hires a replacement under the new Position Profile who happens to be an RN, there may be a question as to whether this person is in the nurses' bargaining unit, for it may be less certain that the hospital expects that Pharmacy Technician Ito possess the training and skills of a nurse in order to perform the duties of the job. This is not the case before us. The dispute before us concerns RN's working in the position of Pharmacy Technician I who were hired at a time when the hospital required this as a qualification, and have worked until very recently under a job description which required this qualification. We are satisfied that in the circumstances, the hospital has and continues to expect these persons to possess the training and skills of an RN in order to perform their job.

73. By our decision, we intend only to make the findings necessary to resolve the positions in dispute between these parties. In particular, while we are satisfied that the RN's currently holding the position of Pharmacy Technician I are included in the bargaining unit, we do not make any findings as to the status of any RN who may be hired into this position in the future.

74. In conclusion, the Board finds the following unit to be appropriate for collective bargaining:

all registered and graduate nurses employed in a nursing capacity by the Pembroke Civic Hospital in the City of Pembroke, save and except Nurse Manager, person above the rank of Nurse Manager and persons regularly employed for not more than twenty-four (24) hours per week; and

all registered and graduate nurses employed in a nursing capacity by the Pembroke Civic Hospital in the City of Pembroke regularly employed for not more than twenty-four (24) hours per week, save and except Nurse Managers and persons above the rank of Nurse Manager.

75. For purposes of clarity, the Nurse Clinician, Discharge Planner/Infection Control Nurse and the Registered Nurses currently employed as Pharmacy Technicians I are included in the bargaining unit.

76. A final certificate shall issue to the applicant.

DECISION OF BOARD MEMBER R. M. SLOAN; October 19, 1993

1. I dissent only with respect to that part of the majority decision that deals with the Pharmacy Technician classification. I concur with all other aspects of the majority decision.

2. There is abundant evidence to show that holding a certificate of competence as a registered or graduate nurse is not a requirement in order to qualify to perform the functions of a Pharmacist; a Pharmacy Technician I; or a Pharmacy Technician II. In fact, we know that a number of incumbents currently employed in the afore-mentioned positions do not hold such certification and indeed, are not now, nor have ever been registered or graduate nurses.

3. The majority decision recognizes this and directs and limits its findings with respect to ONA bargaining unit membership only to those three incumbents who had previously been employed as Staff Nurses and have been assigned on an occasional basis to perform the functions of a Staff Nurse while classified as Pharmacy Technologist I.

4. It is my view that it is a serious anomaly that will create difficult and vexing labour relations problems to have employees in the same job classification, doing identical work (except for the occasional and infrequent relief work as Staff Nurses as referred to in the previous paragraph) with some of those employees being independent of union representation while others are represented by a trade union.

5. In my view, the solution to the matter is quite simple. Exclude all members of the pharmacy group from the ONA bargaining unit. ONA, ultimately, only claims those employees who are Registered Nurses, as I understand their position, not for their "pharmacy" functions but because they are employed from time to time as Staff Nurses. When the three R.N.'s who are employed as Pharmacy Technician I are temporarily assigned as Staff Nurses they would be subject to the terms and conditions of any collective agreement that might be in effect at the time of, and during the temporary assignment. The temporary assignment of employees into classifications that are not their regular classifications and the transfer of employees into and out of bargaining units is not an unusual occurrence.

6. I agree with the majority decision which finds that the position of Discharge Planner/Infection Control Nurse is properly included in the bargaining unit on the basis that, in order to perform an integral part of the job functions, the incumbent is required to hold a current certificate of competence as a Registered Nurse. This is in sharp contrast with the Pharmacy Technician I position (and all other positions in the pharmacy section of the hospital) where none of the intrinsic job duties require the holding of a certificate of competence as a Registered Nurse.