[1994] OLRB Rep. February 174
2861-92-R Ontario Nurses' Association, Applicant v. Public General Hospital Society of Chatham, Responding Party
BEFORE: Russell G. Goodfellow, Vice-Chair, and Board Members J. A. Ronson and P. V. Grasso.
DECISION OF RUSSELL G. GOODFELLOW, VICE-CHAIR, AND BOARD MEMBER P. V. GRASSO; February 24, 1994
This is the continuation of an application for certification.
By decision dated January 21, 1993, the Board certified the applicant on an interim basis for the following bargaining unit:
all registered and graduate nurses employed in a nursing capacity at Public General Hospital Society of Chatham, regularly employed for not more than twenty-four (24) hours per week, save and except Unit Managers, persons above the rank of Unit Manager, and pending resolution of the dispute excluding as well, Occupational Health Nurse.
A Labour Relations Officer was then appointed to inquire into and report to the Board on the duties and responsibilities of the Occupational Health Nurse, Janet Deactis.
The Officer has since reported with a transcript of Ms. Deactis' evidence and the parties have made written representations as to the conclusions the Board should draw from that report. It is the employer's position that Ms. Deactis is not an "employee" because she exercises "managerial functions" and "is employed in a confidential capacity in matters relating to labour relations" within the meaning of section 1(3) of the Labour Relations Act.
The Board does not agree. The evidence reveals that there is only one employee that can be described as having any sort of reporting relationship to Ms. Deactis. That individual is a clerical person, not in the applicant's bargaining unit, who shares an office with Ms. Deactis and reports primarily to Ms. Deactis' supervisor, the Director of Occupational Health Services.
With respect to other employees, including those in the applicant's bargaining unit, Ms. Deactis performs only a limited role in hiring, transfer and discipline, essentially predicated on her nursing expertise. For example, with respect to hiring and transfers, Ms. Deactis is involved in "pre-placement interviews". Her role is limited to assessing whether candidates meet the physical requirements of the job. She has no authority to hire, either alone or in conjunction with anyone else. Ms. Deactis' role with respect to employee transfers is similarly circumscribed.
In the case of "discipline", Ms. Deactis' involvement is restricted to advising the Director of Human Resources whether employees have completed their health tests in accordance with a predetermined schedule. If they have not, it is the Director of Human Resources that issues a letter of suspension until the employee completes the test, at which time the suspension is lifted. Likewise~ employees are required to advise Ms. Deactis as to why they have been off sick and to provide a doctor's note. In accordance with another policy, albeit one in which Ms. Deactis appears to have had some considerable input, failure to do so can result in non-payment for the relevant time period.
Somewhat more discretion is required, however, when Ms. Deactis assesses the quality of the doctor's note and the employee's ability to return to work. In the former case, Ms. Deactis may require that an untimely note be updated. In the latter, Ms. Deactis has the authority to determine whether an employee is, in accordance with her assessment of the employee's well-being and her knowledge of the job, fit to return. In the lone instance in which Ms. Deactis determined that an employee was unfit to return, the only consequence was that the employee remained off work, with pay, pending a further assessment by another physician.
In a similar vein, Ms. Deactis is involved in the administration of the hospital's absenteeism programme. Apart from what has already been described, however, her function here appears to be limited to record-keeping and advising management on such matters as the dates of illness and whether the illness is the same as a previous one.
Apart from input in respect of the clerical person, Ms. Deactis has no role in performance appraisals. She has no involvement with employee promotions or wage increases, and there is no evidence that she has any authority to schedule, direct or review the work of others. While she can grant some casual time off to the clerical person in the Director's absence, any significant period requires the Director's approval.
Ms. Deactis plays no role in respect of lay-offs, provides only limited input into the departmental budget, and may propose, but not adopt, policies for her area.
The employer also relies on Ms. Deactis' role in administering the workers' compensation programme and her participation in establishing and monitoring modified work programmes and hospital safety as evidence of her managerial status.
With respect to workers' compensation, Ms. Deactis completes the Form 7 (Employer's Report of Accidental Injury or Industrial Disease) on behalf of the Hospital. This may involve disputing the bona fides of a claim based on Ms. Deactis' own medical assessment of the alleged injury or the circumstances surrounding the claim. Ms. Deactis also completes the Form 9 and applies for second injury enhancement relief. None of these functions, however, are managerial within the meaning of section 1(3) of the Act. It is the Workers' Compensation Board that decides whether an employee's claim will be paid, not Ms. Deactis. Ms. Deactis' role is to provide information to the Board, largely based on her professional expertise, which may or may not be of assistance in determining whether an employee will be entitled to the income protection provided by the statute. There is no evidence that any such function either has been or could be the subject of a grievance under the collective agreement, or that they are carried out primarily or even substantially in relation to members of the applicant's bargaining unit. By definition, these matters are the subject of legislative prescription, not collective bargaining. They do not fall within the ambit of the union's exclusive bargaining agency.
The Board also finds nothing "managerial" in Ms. Deactis' involvement in hospital safety or modified work programmes for employees returning from illness or injury. In the former area, Ms. Deactis discusses safety concerns that come to her attention with the hospital safety officer or the manager responsible for the area. In the latter context, Ms. Deactis may serve as part of a team that designs and monitors a return to work programme. Neither of these activities involve the kind of decision-making required by section 1(3).
Finally, the employer maintains that Ms. Deactis is "employed in a confidential capacity in matters relating to labour relations". The Board sees no evidence, however, of a "regular and material involvement" in labour relations matters as required by this aspect of the section 1(3) exclusion. Merely being privy to employee medical information is not an impediment to employee status under section 1(3); nor is one episode of consultation on a limited number of collective agreement proposals, or the attendance, in the Director's absence, at management meetings where labour relations issues have been discussed.
In this respect, it is interesting to note that the collective agreement proposals upon which Ms. Deactis was asked to comment involved a request by the union for information on modified work programmes and copies of completed Form 7's. Neither of these requests were seen by Ms. Deactis as appropriate areas for collective bargaining. The evidence also fails to state what use was made of Ms. Deactis' comments, or why this isolated request could not have been satisfied by the Director.
There is also nothing on the evidence as to how often Ms. Deactis stands in for the Director at the management meetings or the precise nature of the labour relations issues discussed. Inasmuch as Ms. Deactis admitted to an entirely passive role in these meetings, it would be an odd labour relations result if this involvement were to deprive her of employee status under the Act.
The Board therefore finds and declares that Ms. Deactis is an "employee" within the meaning of section 1(3) of the Act.
A final certificate will issue to the applicant for the following bargaining unit:
all registered and graduate nurses employed in a nursing capacity at Public General Hospital Society of Chatham, regularly employed for not more than twenty-four (24) hours per week, save and except Unit Managers, and persons above the rank of Unit Manager.
DECISION OF BOARD MEMBER J. A. RONSON; February 24, 1994
- I disagree. Taken in their entirety, the job functions of Ms. Deactis place her in a conflict of interest vis-a-vis the rights and duties of her proposed union brothers and sisters. Nowhere is this potential for conflict made more plain than by the request of the union for information on modified work programs and copies of completed forms. I find that Ms. Deactis is not an "employee" within the meaning of the Act.