Ontario Labour Relations Board
File No.: 3783-00-R Date: November 21, 2001
Between: Canadian Union of Public Employees, Applicant v. Victorian Order of Nurses, Ottawa-Carleton Branch, Responding Party.
Before: Laura Trachuk, Vice-Chair.
Decision of the Board
1This is an application for certification. In a decision dated June 7, 2001, the Board (differently constituted) certified the applicant as the bargaining agent of a bargaining unit described as "all office and clerical employees of the Victorian Order of Nurses, Ottawa-Carleton Branch, in the City of Ottawa, save and except supervisors, persons above the rank of supervisor, Executive Assistant to the Executive Director and HR Assistant". However, the parties continued to have a dispute as to whether the Billing/Systems Coordinator and Finance Clerk should be excluded from the bargaining unit pursuant to subsection 1(3)(b) of the Labour Relations Act, 1995 (referred to as the "Act"). Subsection 1(3)(b) reads as follows:
- (1) In this Act,
(3) Subject to section 97, for the purposes of this Act, no person shall be deemed to be an employee,
(b) who, in the opinion of the Board, exercises managerial functions or is employed in a confidential capacity in matters relating to labour relations.
2There was also an outstanding dispute as to whether the bargaining unit description should refer to "all office and clerical employees" or "all office, clerical and technical employees". The parties agreed that their disputes should be determined by the Board on the basis of their statement of agreed facts and written submissions. However, due to inadvertence, this file was only recently referred to a Vice-Chair for determination.
3The Board's jurisprudence with respect to status disputes is extensive but ultimately it is a question of fact whether or not an individual should be excluded from the bargaining unit pursuant to subsection 1(3)(b) of the Act. After considering the materials filed, the Board finds that the Billing/Systems Coordinator and the Finance Clerk are employees under the Act and should be included in the bargaining unit. The Board also finds that the bargaining unit description should not refer to "technical" employees.
Billing/Systems Coordinator
4The responding party argues that the Billing/Systems Coordinator is not an "employee" under section 1(3)(b) of the Act as she exercises managerial functions and is employed in a confidential capacity in matters relating to labour relations. The facts agreed upon by the parties disclose that the Billing/Systems Coordinator maintains the database and therefore has access to the information presumably including labour relations information, stored in the computer system. However, she does not use, or access, any confidential information relating to labour relations stored in the computer as part of her job. Furthermore, the anecdotal information she has with respect to workload as a result of the number of visits billed each week is also not confidential labour relations information which would lead to her exclusion from the bargaining unit. The Billing/Systems Coordinator does not have regular material involvement in matters relating to labour relations. She is not employed in a confidential capacity in matters relating to labour relations.
5The Billing/Systems Coordinator does not exercise managerial functions. She has some "leadhand" functions with respect to two billing clerks and a receptionist. However, she does not make determinations which materially affect their employment nor does she make effective recommendations with respect to such determinations. Her recommendation was sought once with respect to a probationary employee and another time with respect to the transfer of an employee. However, the Board has no other information as to how those decisions were actually made. The Billing/Systems Coordinator was also included on a three person hiring panel. There is no information as to her role on that panel. She has also been asked for input with respect to the performance of the clerks but there is no suggestion that she actually does their job evaluations. The fact that the Billing/Systems Coordinator has been consulted with respect to other employees on the three occasions referred to in the materials does not give rise to a conflict of interest for which she should be excluded from collective bargaining.
Finance Clerk
6The responding party also claims that the Finance Clerk is not an employee pursuant to section 1(3)(b) of the Act because she is employed in a confidential capacity in matters relating to labour relations.
7The Finance Clerk prepares the general ledger, reconciles bank statements and prepares statistical reports. Apparently the managers use the statistical reports when making operational decisions including decisions about hiring, work load and lay-off. There is no suggestion that the Finance Clerk is privy to those decisions. There is also no suggestion that the Finance Clerk is asked to do statistical reports directly related to labour relations issues. Furthermore, she reports to the Finance Manager so she is not the only person responsible for generating financial information or qualified to do so. Merely providing the financial tools which an organization uses to make its operational decisions is not being employed in a "confidential capacity in matters relating to labour relations". The Finance Clerk should be included in the bargaining unit.
Bargaining Unit Description
8The union claims that if the Billing/Systems Coordinator is included in the bargaining unit it should be described as all "office, clerical and technical employees". The Billing/Systems Coordinator is an office and clerical employee and it is not necessary to include the word "technical" in the bargaining unit description. Including the term "technical" in this bargaining unit in the health care sector could potentially cause confusion or even jurisdictional disputes in the future.
9As the Board has determined that the Billing/Systems Coordinator and the Finance Clerk are in the bargaining unit and that the description should not include the word "technical" there is no need to issue a new certificate to the applicant.
10The responding party is directed to post copies of this decision in locations in the workplace where they are likely to come to the attention of affected employees. The copies shall remain posted for 30 days.
"Laura Trachuk"
for the Board