[1994] OLRB Rep. April 393
1590-93-R United Steelworkers of America, Applicant v. 681356 Ontario Limited c.o.b. as Foyer Sarsfield Nursing Home, Responding Party
BEFORE: Pamela Chapman, Vice-Chair, and Board Members J. A. Rundle and H. Peacock.
DECISION OF THE BOARD; April 12, 1994
- This is an application for certification. By decision dated September 8, 1993, the Board (differently constituted) certified the applicant on an interim basis as the bargaining agent for the following unit of employees:
all employees of 681356 Ontario Limited c.o.b. as Foyer Sarsfield Nursing Home in the Village of Sarsfield, save and except supervisors, persons above the rank of supervisor, office and clerical staff.
The only dispute remaining between the parties at the time of the earlier decision was whether certain named employees should be included on the list of employees in the bargaining unit, or whether they should be excluded because they exercise managerial functions or are employed in a confidential capacity in matters relating to labour relations within the meaning of section 1(3) of the Act. The responding party took the position that Stephane Henri, Rachelle Kowala, Christine Lanthier, Bernice McConnell, Joan Raphael, Norma Cummings, Janine Leroux, Tracy Marley, Gayle McCormick and Ruth Verbrugge should be so excluded; the applicant took the opposite position.
In the same decision, the Board appointed a Labour Relations Officer to inquire into and report to the Board on the duties and responsibilities of the employees named in paragraph 2 above.
The parties subsequently met with the Labour Relations Officer and reached agreement on the status of some positions. The remaining dispute was with respect to two positions: the classification of Activity Director, held by Rachelle Kowala; and the classification of Registered Nurse, filled by Christine Lanthier, Bernice McConnell, Joan Raphael, Norma Cummings, Janine Leroux, Tracy Marley, Gayle McCormick and Ruth Verbrugge. The parties agreed that the evidence of Norma Cummings would be considered representative of the classification of Registered Nurse.
The report of the Labour Relations Officer consists of one volume of transcripts and two exhibits. The parties were provided with a copy of the report and invited to make representations. While neither party requested an oral hearing, they each made representations to the Board by way of written submissions and we have considered those submissions in reaching our decision.
Foyer Sarsfield Nursing Home provides accommodation and care for approximately 76 patients on three floors. The home is staffed by Health Care Aides ("Aides"), Registered Nurses ("R.N.'s"), the Director of Nursing, the Activity Director, maintenance staff and cooks. On each 8 hour shift either three or four Aides are assigned, generally one to each floor, and a Registered Nurse is designated as "in charge". The other staff work mostly during the day shift, including the Director of Nursing.
Norma Cummings testified as to the duties and responsibilities of a Registered Nurse. She works primarily on the night shift, from 11:00 p.m. to 7:00 a.m., along with three Aides who are each assigned to a floor of the home. Her work during the night generally involves the following routine: she receives a report from the previous shift; she does rounds of each floor several times during the shift; she does charting on the patients; she does other paperwork and filing relating to the residents; she deals with any maintenance problems which arise during the shift, usually by contacting maintenance staff; she takes and deals with incoming calls; she restocks supplies; she provides care to the residents as required, including dispensing medication; she provides direction to the Aides as required; and at the end of the shift she reports to the oncoming shift. She may also report problems on the shift to the Director of Nursing or the owner. Once a month she orders drugs for the residents, to ensure an adequate supply of whatever medication is ordered by the physician, and checks that order once it is received.
While noting that it is difficult to be precise about the allocation of her time, Cummings testified that she spent about 10% of her time supervising the Aides, 30% engaged in direct patient care, and the other 60% performing other duties as detailed above.
At the beginning of each shift, Cummings and the Aide on the first floor divide up the patients between them and each then provides direct patient care to "her" patients. She acknowledged that the nature of the care she provides for her patients is very similar to that provided by the Aide, except that she does not do as much cleaning. The division of patients is generally done by consensus, although she does have the final authority to assign.
To a large degree the tasks performed by the Aides are ones with which they are well familiar, and thus Cummings only assigns specific tasks to experienced Aides if there is an unusual requirement. With newer staff, she reviews the routine with them at the outset of the shift, and then generally assigns them to another Aide for training. She may also spend time with the new Aide periodically during the shift to explain particular tasks to them, and will check on them regularly. She is available to answer questions or deal with problems raised by any Aide.
As a Registered Nurse Cummings is responsible for the quality of patient care provided by the Aides on her shift, but she monitors their work through observation of the patients on rounds and by receiving reports from the next shift of any problems, rather than by constant supervision.
Cummings has been asked for her input on the performance of Aides at the end of their
3 month probationary period, but has no authority to decide whether they are kept on and has never recommended that an Aide not be retained. Once some years ago she was asked by the Director of Nursing to complete an annual assessment on an Aide who worked mainly on night shifts, as the Director was not sufficiently familiar with her work to complete the assessment herself. Otherwise, she does not complete the annual reviews of staff, but has been asked on occasion for her input on specific areas of an Aide's work with which the Director was not familiar. Any input by Cummings, either written or oral, is reviewed with the Director who carries out the interview with the Aide. Cummings testified that her comments could not impact on the salary an Aide received.
With respect to discipline, Cummings testified that she has the authority to send an Aide home for serious misconduct, although she has never had to do this. She would then report the misconduct to the Director of Nursing, who would handle the imposition of formal discipline. She has never issued a written warning to an Aide, or had a notation made of a verbal warning in an Aide's file. She does speak to Aides directly about conduct which she feels is inappropriate, particularly where it impacts on the well-being of the residents, and subsequently reports her concerns to the Director of Nursing. She does not have the power to terminate an Aide.
The schedule is prepared monthly by the Director of Nursing. Changes to that schedule made in advance are also generally handled by the Director. Cummings, however, has the authority to make last minute changes to the schedule where Aides request a switch, or where an Aide calls in sick or is otherwise unable to report to work. In these circumstances she may have to call through the list of Aides to find an available replacement, which may necessitate the approval of overtime. If she arranges a change in an Aide's assigned shift, she initials their punch card. She also has the authority to permit an Aide to leave early because of illness, or indeed to direct an Aide to go home in that situation.
The Registered Nurses and the Aides are all paid twice monthly, and receive the same benefits, including payment for overtime. Aides are not paid for the lunch period, however, while Registered Nurses are considered to be on call during lunch and are thus paid for that period. All employees of the home, including Registered Nurses, are required to punch in at the beginning and the end of their shifts.
Cummings testified that she played no role in the hiring of employees or the setting of rates of pay. She is not on any committees at the home, but does attend at general staff meetings which include Aides and Registered Nurses, as well as clinical training sessions for Registered Nurses. She does not attend management meetings. She has no role in the budget process. Cummings has keys to the entire building except for the office. She has no access to employee records.
It is clear from these facts that Registered Nurses at the home are not employed in a confidential capacity in matters relating to labour relations. It is asserted by the responding party, however, that the job description for Registered Nurses entered as Exhibit 2 demonstrates that the position involves managerial functions and that the evidence of Cummings confirms these responsibilities. Having reviewed that document and the transcript of evidence closely, however, we have concluded that the evidence discloses that Registered Nurses do not exercise managerial functions as that term has been defined by the jurisprudence of the Board.
In numerous cases dealing with nursing homes and hospitals, the Board has rejected the submission by an employer that the entire complement of Registered Nurses in those settings exercise managerial functions within the meaning of section 1(3) (then section 1(3)(b)) of the Labour Relations Act (see for example Oakwood Park Lodge, [1982] OLRB Rep. Jan. 84; Regional Municipality of Halton, [1980] OLRB Rep. Nov. 1684; Crescent Park Lodge, [1978] OLRB Rep. Nov. 981; Peterborough Civic Hospital, [1973] OLRB Rep. March 154; Toronto East General Orthopaedic Hospital, [1974] OLRB Rep. Oct. 671).
The reasoning of the Board in these cases is well summarized in the Oakwood Park Lodge, supra case, at paragraph 16:
All of these cases, (as well as the nursing home cases referred to earlier) involved individuals who, in varying degrees were performing various supervisory or coordinating 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, 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 breakdowns or "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, coordinating, 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 1(3)(b). And in a professional context where "reporting" is part of an individual's professional responsibilities and the actual decisions are made by someone else (usually an "administrator" who may or may not be a professional himself) then the "effective recommendation test" referred to above must be carefully applied.
For these reasons we find that the Registered Nurses do not exercise managerial functions within the meaning of section 1(3) of the Act.
Rachelle Kowala, the Activity Director, was examined as to her duties and responsibilities, which were also listed on a job description entered as Exhibit 1.
As her job description indicates, Kowala is responsible for planning and implementing a programme of activities for the residents of the home. As part of that responsibility she coordinates the recruitment, selection, training, scheduling and assessment of volunteers, as well as other individuals and groups who provide services to the home such as a hairdresser, entertainers, and community groups. She liaises with residents, families and staff, through her attendance at meetings of the Resident Council and also the production of a monthly newsletter. She maintains records on the activities of each resident, and attends quarterly and annual assessment meetings on each patient. Kowala also plans and directs fund-raising events.
The job description for the position of Activity Director states that the position is "under the direction of the Director of Nursing". There was some dispute about Kowala's reporting relationships in the evidence. On examination by the Labour Relations Officer, Kowala stated that her immediate supervisor was the Director of Nursing, but that she might occasionally go to the Administrator. Later in the same examination she indicated that she had never actually reported to the Administrator but that she went to him to advise him of outings, etc. at which he might want to attend. On examination by the responding party and the applicant, Kowala stated that she in fact officially reported to the Administrator, and only went to the Director of Nursing when he was not available, although she admitted that that was often the case.
Kowala has contact with other staff at the home on an ongoing basis, to advise them of activities planned for the residents and to ensure that they carry out whatever role they are expected to play vis-a-vis those activities. For example, she tells the kitchen staff what food and facilities will be required for activities, and tells the Registered Nurses and Aides what preparations will have to be made, i.e. dress, for the residents to attend. She speaks directly to staff in all departments if she is dissatisfied with their role in these arrangements, but reports problems to the Director of Nursing if she is unable to resolve them on her own. While she believes that she has the authority to reprimand staff in these circumstances, she has never actually done so, and has no authority to impose formal discipline or to terminate other staff. She plays no role in the scheduling or evaluation of staff.
Kowala does recruit, select, train and evaluate a group of unpaid volunteers. She schedules the weekly attendance of a hairdresser retained by the home on a contract to service the residents, and stated that she would have the power to select a replacement for that individual if she gave up the contract, although this has not occurred during the time she has held the job.
Kowala also testified that she selects her own replacement during her vacation period each summer. This past year, she approached a volunteer at the home and asked her to take on the position for the two weeks of her vacation (there was no evidence as to whom she chose in the two previous years). She did this without consultation with anyone else as to her choice, and then advised the Director of Nursing as to the arrangements she had made. The Director then told the replacement employee what pay she would receive and provided her with a time card. Kowala did not actually work with this individual except for three days of training prior to her departure, but she spoke to other staff upon her return to check on the performance of her replacement, and then passed on their assessment to the Director of Nursing.
There was also some evidence about plans to hire an assistant for Kowala. She testified that at some time prior to the application for certification she was advised by the Administrator that funds were being approved for a new position to be established. Kowala stated that she was confident that she would have complete authority to hire someone as her assistant, and to assign work to and evaluate that employee. She testified that the previous Activity Director selected her for the position when she was hired, and that she did not even meet the Director of Nursing or the Administrator until some time after she started. She did not know, however, whether the approval of the Director or the Administrator had been obtained before she was hired. In any event, no assistant had been hired at the time of the application for certification, and it was not clear when or if this employee would be added to the complement.
The activities arranged by Kowala are funded in part by the Administration of the home and in part out of an "Activity Fund" made up of monies from fund-raising activities. She estimated that she spends about $2,000.00 per year on resident activities, but was imprecise as to what portion of that comes from the Administration. The home does regularly pay for certain activities such as a contribution each week for bingo, the cost of movies and of food. The fund-raising money is spent in part on large items such as a new VCR for the residents' use and musical instruments. Kowala testified that she had complete discretion as to the allocation of monies from the Activity Fund, and is responsible for raising funds to replenish the Fund.
Kowala is responsible for running meetings of the Resident Council. This duty appears on her job description, and she testified that she was told that this was expected of her when she was hired. It appears, however, that the regulations governing this Council may have changed since her employment began and that it is now required that the residents nominate a staff member to the Council. She has been so nominated at present, and was not sure whether the residents had the right to nominate anyone else. She is the only staff member who attends these meetings with residents, their families and a volunteer. She prepares minutes of the meetings and passes them on to the Administrator, who may report back to her so that information may be passed back to the Council if necessary. Part of the purpose of these meetings is so that residents can pass on any complaints they have about the home and/or the staff. She does not act on these complaints directly if they are related to a department other than her own, but rather passes the complaints on to the Administrator for action.
She also attends at quarterly and annual patient assessments, along with the patient, his or her family, the Registered Nurse or Aide who works most closely with the patient, the doctor, and the Director of Nursing. She passes on information and participates in discussions concerning the activities of the patient in question. In addition, she sits on the Quality Assurance Committee along with representatives from each of the departments, the Director of Nursing, and the Administrator, and is a representative on the home's Social Contract Committee which has been struck to come up with cost-saving ideas.
Kowala works 65 hours every two weeks, with a basic schedule of 8:30 a.m. to 3:30 p.m. Monday to Friday. There is some flexibility in this, however, depending on her scheduled activities, so she may work longer hours some days or on weekends and will then take time off in lieu of overtime. She works out of an assigned area near the dining room, where she maintains records relating to the activities of the patients. She does not have access to employee records.
Having carefully reviewed this evidence and the job description marked as Exhibit 1, we have concluded that the Activity Director is an employee within the meaning of the Labour Relations Act. It is clear that she is not employed in a confidential capacity in matters relating to labour relations. The responding party asserts, however, that she exercises managerial functions within the meaning of section 1(3) of the Act.
The evidence of Kowala reveals that she is not normally engaged in the supervision of employees, which is confirmed by her job description. Her limited contact with the other staff at the home does not involve her exercising effective control over them as that term has been defined in the jurisprudence of the Board. She does supervise volunteers, but they are not employees within the meaning of the Act. The employer argues, however, that she exercises effective control over the employee which replaces her during her summer vacation, and also that she will exercise such control over an assistant whom they submit is to be hired.
Although there was some evidence that an assistant to Kowala was likely to be hired by the home, the Board's determination on the status of the Activity Director is limited to the time at which the application for certification was filed. At that time, there was no employee working under Kowala's direction, and it would be speculative to reach any findings of fact with respect to Kowala's likely role in the hiring and supervision of any employee who may be hired.
We are also not convinced that Kowala's role in the selection and monitoring of her replacement over the summer vacation period results in her exercising managerial functions within the meaning of the Act. While Kowala testified that she has complete discretion in the selection of a replacement, we find it more probable than not, and consistent with the nature of her duties as a whole, that Kowala's supervisors retain a considerable discretion to accept or reject her choice as replacement. At most, the evidence only demonstrates that in the past three years, the home has not had reason to reject her choice. The fact remains, however, that the Activity Director reports her selection to the Director of Nursing who makes the actual arrangements for the employment of that individual, including communicating rates of pay and making practical arrangements such as providing her with a time card.
The remainder of Kowala's activities vis-a-vis her replacement are clearly not in the nature of managerial responsibilities. She does not engage in the day-to-day supervision of the employee in question as she is on vacation for all but a brief orientation period. And while she does consult with other staff about the performance of the replacement employee upon her return, she reports this information to the Director of Nursing for whatever limited purpose it may have given that the employee is no longer engaged by the home and her employment can thus not be affected by this evaluation.
Where individuals are not engaged directly in the management of employees, the Board has nonetheless excluded them from the application of the Act where they exercise a significant degree of independent decision-making authority over important aspects of the employer's business. The employer relies on this analysis as well in seeking a managerial exclusion of the Activity Director, citing in particular her responsibilities vis-a-vis the residents and their families, and her control of the Activity Fund. While these job duties are clearly important functions for the home, it is not really accurate to characterize them as giving Kowala authority over important aspects of the employer's business. Kowala has been nominated to sit on the Resident Council, but she reports any complaints raised in that forum relating to aspects of the home other than the activity programme to the Administrator, and he is responsible for responding to and/or taking action on those complaints. She is only one of several staff, including senior staff such as the Director of Nursing, involved in patient assessments. And her discretion with respect to the relatively small Activity Fund budget is clearly circumscribed by the mandate for activities set out on her job description.
For these reasons we find that the Activity Director does not exercise managerial functions within the meaning of section 1(3).
A final certificate will issue to the applicant in respect of the bargaining unit described in paragraph 1.
CONCURRING OPINION OF J. A. RUNDLE; April 12,1994
I concur with the result of this decision, as that result articulates that which is contemplated by the Labour Relations Act in cases of this sort. I do however feel that the role of "Activity Director" is one that cannot be properly evaluated under the current scheme of the Act.
The role of "Activity Director" is a pivotal one in an institution of this sort, due to the unique role they are called upon to play in the relationship between client, administration and staff. Perhaps once the assistant to the Activity Director is hired, the role will more clearly fall within the exclusion parameters defined by the Board.