[1995] OLRB Rep. December 1457
3759-93-R Ontario Nurses' Association, Applicant v. Niagara-On-The-Lake General Hospital, Responding Party
BEFORE: Roman Stoykewych, Vice-Chair, and Board Members S. C. Laing and K. Brennan.
DECISION OF THE BOARD; December 21, 1995
This is an application for certification.
In a previous decision of the Board dated February 21, 1994, the applicant was granted a certificate on an interim basis pending the determination of a dispute between the parties as to whether the position of "Discharge Planning Co-ordinator" ought to be excluded from the bargaining unit granted to the applicant. The employer had taken the position that the position ought to be excluded on the grounds that the incumbent performed managerial functions and was engaged in a confidential capacity within the meaning of Section 1(3) of the Act. The trade union took the position that the duties performed by the incumbent did not give rise to the prohibitions to inclusion set out in section 1(3) and that therefore, the position ought not to be excluded from the bargaining unit description. The parties were unable to resolve their dispute upon the issuance of the interim certification decision.
In accordance with the Board's usual practice in these matters, it appointed an officer to inquire into and report on the duties and responsibilities of the disputed individual. The evidence was transcribed in the officer's report. Upon release of the officer's report, both parties were extended an opportunity to make representations as to the conclusions which the Board should reach in light of the evidence, and both parties took that opportunity. Our decision, therefore, is based on the evidence contained in the report and the written representations received from the parties.
At the time of the application, the responding party hospital was a relatively small facility consisting of approximately 40 beds for chronic care patients. In addition to the bargaining unit that is the subject of this application, certain of the other employees of the Hospital were represented by the SEIU.
The incumbent, who is a Registered Nurse, was employed as the Discharge Planning Co-ordinator for approximately 17 years at the time of the application, and was due to retire shortly thereafter. She worked on a part-time basis, averaging approximately 2.5 days per week. Generally speaking, her job required her to assume responsibility for programmes of care and treatment of the hospital's patients upon their discharge. It appears that this normally involved her in making the necessary arrangements for an appropriate placement in a nursing home or the provision for follow-up treatment for patients returning to a home setting. These functions, including programme design, were performed in consultation with other health professionals at the hospital in a "team" setting. Despite the Hospital requiring the position to be staffed by a Registered Nurse, the incumbent reported to the Hospital's Executive Director, rather than to the Director of Nursing.
Given the relatively small size of the Hospital, the incumbent was the only person engaged in her "department" and, the evidence revealed, during the course of her seventeen years at the Hospital, she did not directly supervise any other employee. The evidence discloses that the incumbent's sole involvement in the hiring process consisted of her participation in the selection of her successor. It is unclear in the evidence whether such activity occurred prior to or subsequent to the application date.
The incumbent exercised considerable independence in the course of her work. At a general level, she was responsible for developing and implementing the Hospital's policies as they relate to discharge planning, and her input was sought by the Hospital's directors and accountants with respect to her departmental budget. It is clear, however, that she did not participate in the actual setting of the budget, whether it be at the departmental or hospital-wide level. Although the evidence was less than entirely clear on this point, it appeared that she had the authority to spend up to $1,000.00 annually without further authorization; thereafter, her independent spending and budgetary powers were rather limited.
The hours worked by the incumbent varied according to the demands of the work, which required her to be present virtually on a full-time basis on some weeks, while providing her with "weeks off' on others. She was entirely free to set her own hours in accordance with these needs, and required no authorization or permission to be absent from work. However, the total number of hours she was permitted to work in the year was constrained by the annual budget of her department, which allocated a set number of hours She was remunerated on an hourly basis.
Considerable emphasis was placed by the employer on the incumbent's regular attendance at meetings with members of management and, in that respect, that she was considered part of the "management team" by the hospital. However, the weekly "multi-disciplinary" meetings, while including persons who are "managers" within the hospital, and which featured a consensual decision-making process in which the incumbent participated, was almost exclusively concerned
with the treatment of patients and in that respect, is of little relevance to the exclusions from collective bargaining sought by the employer.
More significant in that respect are the monthly "Department Managers' Meetings" attended by the incumbent. These meetings were attended by the various department heads of the Hospital, including the incumbent, and were chaired by Ms. Karen Tribble, the Hospital's Executive Director. The topics of discussion at these meetings were wide-ranging, and included various policy and operational issues confronted by the Hospital. Prominent amongst these topics were budgetary issues, such as the Hospital's implementation of cutbacks, including lay-offs; the development of the Hospital's strategy with respect to "Social Contract" negotiations; reports on the status of collective bargaining with the SEIU and management's strategy in this respect; and discussion of pending discipline and discharge matters. It appears that a certain amount of the information presented at such meetings was already public knowledge, or was disclosed to the participants for the very purpose of its wider dissemination. Nevertheless, a significant component of this information, comprised mostly of management's strategies relating to collective negotiations and grievances, was clearly not intended to beyond the circle of the participants of the meeting.
The evidence is clear that the incumbent was an active and regular participant in these meetings, and that she took part fully in the development of a consensus with respect to the matters discussed at the meeting, whether or not they were related to labour relations. On that basis, it was suggested that the incumbent was involved in the actual decision-making process in relation to these matters. In this respect, however, it is useful to consider the purpose served by the monthly "Department Managers' Meetings", particularly as it is described in the evidence of Ms Tribble, who also testified before the officer. Since the Hospital is a small one, it does not have an operational "senior executive committee". That function was served through ad hoc consultations by the Directors of Finance and Nursing with the Hospital's Executive Director. The Department Managers' Meeting, Ms Tribble testified, was for the purpose of disseminating information to the appropriate levels of Hospital personnel, on the one hand, as well as serving as an "advisory group" for her and the Directors on the other hand. Although the advice given by the group was considered by the directors and the Hospital Board in the course of its operational decisions, it is clear that these decisions were not taken at the department manager's meetings.
Underlying both the "managerial" and the "confidential" exclusions set out in the Labour Relations Act is a concern over the collective bargaining process placing persons engaged by employers into situations involving a conflict of interest. The Board has generally considered two distinct aspects of the managerial function with this purpose in mind. In circumstances where individuals perform in a direct supervisory capacity over others, on the one hand, the Board will exclude them from collective bargaining where the decisions, or the "effective recommendations", they make have a material impact upon the terms and conditions of employment of those they supervise. Accordingly, the Board will generally view persons who hire, fire, promote, discipline or grant substantial wage increases as performing "managerial functions" and will be subject to exclusion. On the other hand, the Board will exclude as managerial persons who, although performing no direct supervisory role, nevertheless exercise a high degree of decision-making authority with respect to matters that impact upon the broader organization and the working conditions of others. The Board's concern, in this respect, is to ensure for the employer that the members of its "managerial team" not be subject to divided loyalties as a result of participation in collective bargaining. (See, in particular, City of Thunder Bay, [1981] OLRB Rep. Aug. 1121.)
While the separation of collective bargaining interests has been a principal concern in
this context, nevertheless, the Board has been been sensitive to the various and evolving forms of organization of work and in particular, to the circumstances of the employment relationships of professional and technical employees. Especially in the hospital and nursing home sectors, the Board has been careful to distinguish between the exercise of independent discretion that is inherent in the practise of a profession from directions of a supervisory or managerial nature. (Royal Ottawa Hospital, [1980] OLRB Rep. Apr. 524.) Similarly, the Board has been alert to the distinction between diffusion of decision-making within a professional work environment and a shift of effective decision-making power. As the Board stated in Oakwood Park Lodge, [1982] OLRB Rep. Jan. 84:
Modern business organizations - especially those employing professionals, - encourage the free flow of information and ideas of subordinates to superiors. Consultation and involvement in the decision-making process improve communications in both directions, clarify the employer's problems and objectives, improve employee morale, and make optimum use of employee ingenuity and expertise. "Participatory management styles" have become a prevalent technique in large organizations for reducing employee alienation and increasing commitment to the goals of the employer. And, in small organizations, consultation is inevitable because of the small number of individuals who must work together effectively if the goals of the organization are to be realized. One should not conclude, however, that the existence of consultation, or an apparent "democratization" of decision-making, means that real managerial authority has percolated downwards.
Similarly, the Board has understood that the purpose of the confidential capacity exclusion is to ensure for the employer that its internal strategies and communications in the labour relations context are known exclusively by persons of undivided loyalty. (J. M. Schneider Inc., [1987] OLRB Rep. Mar. 381; Town of Ganonoque, [1981] OLRB Rep. July 1010.) Accordingly, where the handling of information relating to the employer's collective bargaining strategies and operations forms an integral part of the disputed individual's job functions, and where the disclosure of such information by him or her would adversely affect the interests of the employer vis a vis the trade union, the Board will generally find the person not to be an employee for purposes of the Act, and therefore, not entitled to associate for collective bargaining purposes. (York University, [1975] OLRB Rep. Dec. 945, supra; Falconbridge Nickel Mines Ltd., [1966] OLRB Rep. Sept. 379; Frito-Lay Canada, [1978] OLRB Rep. Sept. 831; CLRB v. Transair Limited and Canadian Association of Industrial Mechanical and Allied Workers, Local No. 3, 76 CLLC Par. 14,024 (S.C.C.))
Bearing these considerations in mind, and based upon the evidence set out in the officer's report, we are not persuaded that the duties performed by the incumbent in the Discharge Planning Co-ordinator position are such as to cause the Board to exclude her position on managerial grounds. It is clear that her position entails no direct supervisory or evaluative role with respect to other employees at the Hospital. In this regard, her role in the hiring of her replacement can hardly be considered a constituent part of her position. Moreover, the highly independent work she performs, while requiring considerable exercise of professional or technical judgement, nonetheless takes place within a fairly concrete set of budgetary guidelines and, more importantly, her decision-making in this respect does not appear to affect the employment destinies of other employees.
Finally, we are not persuaded that her membership on the management team, or her attendance at the department head meetings, in themselves involve her in decision-making functions in relation to labour relations. The issues discussed at such meetings, although of considerable concern and importance to the Hospital's management, are clearly not resolved at such meet-
ings. In this respect, we accept the evidence of Ms Tribble that the meetings are primarily consultative in nature, and that the real decisions affecting the matters discussed by the participants of the meeting are made at a significantly higher level of the Hospital's administrative structure. Accordingly, we cannot conclude that the incumbent exercises managerial functions and that she should be excluded from collective bargaining on that basis.
Nevertheless, in the Board's view, the incumbent's participation in the department manager's meeting raises a substantial possibility for conflict of interest on confidentiality grounds. As noted, the monthly meetings involved the incumbent in discussions of a wide range of matters, including the employer's strategies for collective bargaining and the handling of individual grievances. The evidence indicates that these matters are not otherwise known to employees. While, as we have found, her participation in such discussions did not involve the incumbent in the making of effective decisions with respect to these matters, she nevertheless would become apprised of information in the course of such meetings that would without question significantly affect the employer's ability to conduct its labour relations were they to become known to the trade union.
The Board is conscious that the incumbent's possession of such confidential information in relation to labour relations results from the employer's practice of its dissemination to a person at a non-decision-making level, and in this respect, it would be possible for the employer to structure its affairs otherwise. However, given the incumbent's longstanding and full participation in the department heads' meetings, and her operational integration at the department head level in the other respects of her work, we are not persuaded that the possession of this information is merely incidental to her position. Under such circumstances, we are not prepared to include her position in the bargaining unit on that basis. Accordingly, the Board is satisfied that the incumbent, as a regular part of her job, is advised of information relating to the grievance and collective bargaining strategies of the employer, and that a conflict of interest would therefore likely arise were her position to be included in the bargaining unit granted the applicant. Therefore, the position of "Discharge Planning Co-ordinator" shall be excluded from the bargaining unit granted to the applicant.
Having regard to the foregoing, to the decision of the Board dated February 21, 1994 and to the provisions of the Labour Relations Act the Board finds that the following unit is appropriate for collective bargaining:
all registered and graduate nurses employed in a nursing capacity by Niagara-On-The Lake General Hospital in the Town of Niagara-On-The-Lake in the Region of Niagara, save and except Nurse Managers, persons above the rank of Nurse Manager and Discharge Planning Co-ordinator.
- A final certificate shall issue.