HomeMy WebLinkAboutUnion 02-07-11
In the Matter of an Arbitration
Between
The Ottawa Hospital
(Employer)
And
OPSEU Local 464
(Union)
And
In The Matter of A Policy Grievance
Before:
M.B. Keller, Arbitrator
Appearances:
Andre Champagne for the Employer
Susan Ballantyne for the Union
Hearings in Ottawa December 19, 2001, April 9 and June 25, 2002,
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AWARD
On June 14, 2000 the Union filed a policy grievance seeking to have included in their
bargaining unit Radiation Safety Officers, Data Support Analysts and the Coordinator _
Library Services. This award deals only with the position of the Coordinator - Library
Services.
The incumbent of the position of Coordinator - Library Services reports to Ms. Jessie
McGowan, Director of Library SelVices. Ms. McGowan in turn reports to Dr. Ronald
Worton, Director of The Ottawa Hospital Research Institute and a Vice-President of the
Hospital. Ms. McGowan testified that prior to the amalgamation and the creation of The
Ottawa Hospital each of the Ottawa Civic Hospital, Ottawa General Hospital and the
Riverside Hospital had libraries. Her task post amalgamation was to pull three libraries into
one. She was responsible for dealing with the staff to ensure that they all understood their
roles and responsibilities, to ensure corporate policies and procedures were followed and
that basically the same services were offered across the three campuses.
According to Ms. McGowan in the first year of her mandate approximately 80% of her time
was spent dealing with human resources issues and this continued into year two beyond
the amalgamation. She indicated that she was incapable of doing her real job because
she was spending too much time on human resources and staffing issues. A determination
was made to eliminate a position within the CUPE bargaining unit and add a Coordinator
position to do the day-to-day human resources activity that she had been doing prior to
that.
That position was posted in June 2000 and subsequently filled effective September 2000
by Ms. Martha Vaughan who stayed in that position until March 2001 and was replaced for
a short period by Ms. Penny Day. Ms. Vaughan in turn replaced Ms. Day.
i\llt;, fv1cGuwcH 1 i80lified U ldl ille Cuuldimi(U[ i ICl~ taken lhe ddy~iuday ~ldffiJl~J concerns and
her involvement with human resources issues to absolute minimum and that she no longer
has any responsibility for front line human resources issues. All of her involvement in
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human resources issues, testified Ms. McGowan, now go through Ms. Vaughan. Ms.
McGowan further testified that staff are required to deal directly with Ms. Vaughan with
respect to all human resources issues.
Ms. McGowan meets with Ms. Vaughan once every week or two when Ms. Vaughan takes
the opportunity to update her on human resources issues that she needs to know about.
If there are particular issues that require her attention Ms. Vaughan will raise them with her.
According to Ms. McGowan because of the integration of three libraries in the three
campuses the interaction with the three campuses has changed because there is no longer
a person at each of the sights to deal with the issues of staffing, workload, time off etc.
Ms. McGowan indicated that the downloading of the human resources functions to the
Coordinator has meant that she has been able to focus on fine tuning strategic policies for
the libraries and has also allowed her to perform the research components of her job that
had been neglected.
With respect to specific human resources functions the expectation is that it is the
Coordinator's responsibility to orient, to hire, to staff, grant time off and vacations and to
discipline. With respect to the occasions where then has been hiring Ms. McGowan
indicated that the decision to hire, the reference checks and the determination of the
questions to be asked of the candidates were left to the Coordinator to deal with human
resources. Her involvement in the hiring process has been to act as a mentor for the
Coordinator and to provide another objective view. With respect to the issue of discipline,
Ms. McGowan stated that the Coordinator could uabsolutely" discipline and suspend and
that she could recommend termination. In any event it was acknowledged that there is a
need to consult with Human Resources and follow the collective agreement but that it was
up to the Coordinator to deal with Human Resources with respect to these issues. Ms.
McGowan stated that she could reasonably expect that if there was an issue of termination
the nl8tter would be discussed with her by the Coordinator
1\11s. Vaughan testified as to her functions and responsibilities. She stated tlliJt she has
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responsibility for the day-to-day operations of the library across the three campuses. She
is responsible for all staff and all staff report to her. Any issues of a human resources
nature and of an operational nature on a day-to-day basis are brought to her by the
employees.
She described her role in the various aspects of human resources. In relation to staffing
she testified that she has identified vacancies and has been involved in the filling of those
vacancies. She stated that she communicated with Human Resources and established
the necessary paperwork to start the staffing process. With respect to the staffing itself she
indicated that she took part in the interview process, she drafted the questions and it was
through consensus that the appropriate candidates were chosen. She then oriented the
new staff as she does all staff.
She testified that she is responsible and has performed performance appraisals, has
granted time off and leave within the terms of the collective agreement and is responsible
for disciplining when required. With respect to the issue of discipline she indicated that it
has not happened other than occasionally and further testified that on one occasion when
she was thinking of disciplining an employee in a particular fashion she consulted with
Human Resources and, following the input of Human Resources, followed their advice
which was different from what her initial inclination had been.
Ms. Mary-Sue Smith, a Charge Technologist in the Cytology Lab at the General Campus
testified as to her functions. She indicated that she was responsible for the day-to-day
functioning of the employees within her section. She determines workload, has been
involved in the hiring process including the drafting of questions, orients and trains new
hires, schedules, establishes the vacation schedule and updates and develops operational
protocols within her area. She is also responsible for quality assurance and keeps a
running total of time off in order to deterrnine whether with a dollar saved she can call
r.;::J~u;::Jjs She h8~ not done any peliorn18nce appr8is81s to date 8lthou~Jh she teslifip.d tll;:ll
in her last performance appraisal her manager indicaled that one of her tasks in the future
was to perform performance appraisals of those technicians and technologists working
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under her. With respect to the time spent on the functions just referred to Ms. Smith
testified that they represented approximately 40% of her time with the remaining 60%
devoted to actual laboratory work. She further stated that the amount of time spent on
day-to-day supervisory functions has been increasing over time.
With respect to the issue of discipline Ms. Smith testified that she has not done so and can
not, being a member of the bargaining unit of her fellow employees.
The Union argued that with respect to the criteria to be used in the instant case to
determine whether or not the position should be included in the bargaining unit, the criteria
established and used by the Ontario Labour Relations Board should be followed as well
as the rationale developed by them over many years. With respect to that rationale
specific reference was made to the decision of the Ontario Labour Relations Board in The
Comoration ofthe City of Thunder Ba v, [1981J OLRB REP. AUG. 1121. It was suggested
there was nothing in the evidence either of Ms. Vaughan or Ms. McGowan which indicated
that the position in question was managerial in nature but more closely resembled that of
the Charge Technologists. Both are involved in orientation, scheduling including vacations
and replacements, monitoring workload to ensure standards are met and assigning
workload. With respect to performance appraisals itwas submitted that whereas they are
performed by Ms. Vaughan they will also be performed Ms. Smith in the future pursuant
to the instructions of her supervisor.
Counsel also submitted that with respect to the issue of hiring the role played by Ms.
Vaughan was not different than that played by Ms. Smith. Both have been involved in
establishing questions, both have been involved in acting as members of hiring panels and
both played the same role within those panels.
With respect to the issue of termination, counsel referred to the evidence of Ms. McGowan
'.^!ho h2d statC'd th:Jt ff thC'r-c' was em issue of tefrninattor1 she \Nould dec11 with it cllon~J with
her Vice President and Human F~esources. In dealing with disciplino, although Ms.
Vaughan and Ms. McGowan both indicated that it was Ms. Vaughan's responsibility the
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evidence indicated, it was argued, that where she had a disciplinary issue she discussed
it with Human Resources and Human Resources overruled what she had wished to do.
Therefore, it was suggested, the conclusion has to be reached that she had no
independent authority to discipline employees in the bargaining unit. If, however, she does
have the authority to act, it was suggested that pursuant to the Schneider decision of the
Ontario Labour Relations Board Ms, Vaughan could not be occasionally placed in a conflict
of interest situation when it could be avoided because Ms. McGowan was close by and can
perform that function,
The Employer argued that this issue has tobe looked at in the context of the amalgamation
of the three hospitals and the library services contained therein and the fact that Ms.
McGowan who had the primary responsibility for it was incapable of fully fulfilling her
mandate because of the amount of time she was spending on human resources functions.
It was therefore reasonable and logical that those functions should be downloaded to the
position that it is now known as the Coordinator. With respect to the criteria to be used in
determining the instant case it was acknowledged that the criteria of the Ontario labour
Relations Board as suggested by counsel for the Union were the appropriate ones to be
used. It was suggested that whatever test is used the result is the same; that the pith and
substance of the job held by the Coordinator is such as to put her within the ambit of a
manager. Counsel reviewed all of the functions performed by Ms. Vaughan including her
involvement in the staffing process, evaluation, budget, discipline, performance evaluation,
her maintenance of personnel files in her office, the fact that all employees report to her
and asked the Board to reach the conclUSion that the combination of all of those functions
indicate that she is a manager and should not be included in the bargaining unit.
In the Citv of Thunder Bav Case supra the Board wrote as follows:
"3. THE LABOUR RELATIONS ACT does not contain a definition orlhe
tenn "rnanagerial fUflction", nor are there any specified criteria to
Cjuide ttle Board in reaelllng Its opinion. Ino tasK or deveioping sucr1
criteria has fallen to the Board itself, and in recognition of the fact that
the exercise of managerial functions can assunlC different forms in
different work settings, the Board has, over the years, evolved various
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general approaches to assist it in its inquiry. In the case of so called
"first line" managerial employees, the important question is the extent
to which they make decisions which affect the economic lives of their
fellow employees thereby raising a potential conflict of interest with
them. Thus, the right to hire, fire, promote, demote, grant wage
increases or discipline employees are all manifestations of managerial
authority, and the exercise of such authority is incompatible with
participation in trade union activities as an ordinary member of the
bargaining unit. In the case of more senior managerial personnel
whose decision-making may have a less direct or immediate impact
on bargaining unit employees, the Board has focused on the degree
of independent decision-making authority over important aspects of
the employer's business. It is evident that persons making significant
executive or business decisions should be considered a part of the
"management team" even though they do not exercise the kind of
direct authority over employees which is characteristic of a first line
foreman.
4, The line between "employee" and "management" is often shaded, and
while it is helpful to consider the principles articulated by the Board in
previous cases, ultimately the determination must turn on the facts of
the particular case. There is no litmus test which is universally
applicable and dictates the results in every situation, and in assessing
each case, the Board must have due regard to the nature of the
industry, the nature of the particular business, and individual
employer's organizational scheme. There must, of course, be a
rational relationship between the number of superiors and
subordinates, consultation or "input" should not be confused with
decision-making, and neither technical expertise nor the importance
of an employee's function can be automatically equated with
managerial status. On the other hand, there may be individuals
whose nominal authority appears to be limited, and who have no
formal managerial position or title, but who nevertheless make
recommendations affecting' the economic destiny of their fellow
employees which are so frequently forthcoming, and consistently
followed by superiors, that it can be said that, in fact, the effective
decision is made by the challenged individual. It is the type of
recommendation which the Board has characterized as an "effective
recommendation" and the inclusion of these persons in the bargaining
unit would raise the very kind of conflict of interest which section
1 (3)(b) was designed to avoid. Persons making "effective
recommendations" of this kind are regarded as pafi of the
"rn;Jnoqcmont tC3m", 3nd :Ire excluded fmrn thr:.' bc1rC]8ining IInit
fJ, In each instance, the Board seeks to determine the nature and extent
of the individual's authority as well as the extent to which that
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authority is actually exercised. It is not sufficient jf an individual has
only "paper powers" contained in a job description or a "managerial"
job title, if managerial functions are not actually exercised. Even the
performance of certain co-ordinating functions may not be
determinative. Where numbers of people work at a common
enterprise (especially in the white collar - selVice sector) many
persons may be engaged in co-ordinating activities which are largely
routine, carried out within a pre-established framework of rules and
policies, and subject to real managerial authority which is actually
exercised from above. In addition, persons who perform technical
functions or exercise craft skills which have been acquired through
years of training and experience, will necessarily have a considerable
influence over unskilled employees or less experience "journeymen"
or technicians. These experienced persons who commonly supelVise
the work of those who are less experienced, and it is part of their
normal job function to train and direct such persons and to instill good
work ha bits. Often, it is only the most sen ior or skill ed employees who
will fully understand the technical requirements of the job and the
tools and material required, and accordingly, it is they who will
allocate work between themselves and the other employees in order
to accomplish the task in a safe and efficient manner. In such
circumstances, it is inevitable that they will have a special place on
the "team" and will have a role to play in co-ordinating and directing
the work of other employees; but this does not mean that they
exercise managerial functions in the sense contemplated by section
1 (3 )(b) and must therefore be excluded from the ambit of collective
bargaining - especially when most of their time is spent performing
functions similar to those of other individuals in the bargaining unit
and there is little or no evidence of the kind of conflict which section
1(3)(b) is designed to avoid. The situation of persons who exercise
some degree of control over others, but who also perform bargaining
unit work was discussed by the Board in FALCONBRIDGE NICKEL
MINES LIMITED (1966] OLRB Rep. Sept. 379, as follows:
Most of the persons in dispute have more than one
function and generally speaking it is the weight or
emphasis attached to the different fu nctions which must
determine on which side of the managerial line the
persons fall. Senior or skilled employees often have
more responsibil itles than othe r rank and file employees
and they exercise certain control and direction over the
other employees because of their greater experience
.::md sld!!. !t is the Board's difficull l:::lsk 10 determine
whether the additional responsibiliUm.> are managerial
functions within the meaning of section 1 (3)(b) of the
Act or are merely incidental to the prime purpose for
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which the employee is engaged (Le., to perform work
properly performed by persons within the bargaining
unit). If the majority of a person's time is occupied by
work similar to that performed by employees within the
bargaining unit and such person has no effective control
or authority over the employees in the bargaining unit
but is merely a conduit carrying orders or instructions
from management to the employees, the person cannot
be. said to exercise managerial functions within the
meaning of section 1 (3)(b) of the Act. On the other
hand, if a person is primarily engaged in supervision
and direction of other employees and has effective
control overtheir employment relationship, even though
the person occasionally performs work similar to the
rank and file employees when an emergency arises or
to relieve an employee during occasional periods of
absence or even to perform a particularly important job
requiring special skill and experience, such occasional
work in no way derogates from his prime function as a
person employed in a managerial capacity. When
assessing a person's duties and responsibilities the
Board does not look at anyone function in isolation but
views all functions in their entirety. As stated in the
MCDOUGALL case above referred to, titles alone are.
not much assistance in determining what a person's
functions really are....
In other words, in determining an individual's status, one cannot look
at a portion of his duties in isolation. If the functions of an allegedly
"managerial" character occupy only a minor part of his time, it is
unlikely that he will be excluded from the ambit of collective
bargaining unless those functions involve a decisive impact on his
fellow employees. (For example, a unilateral decision to fire an
employee would be highly significant, even if the exercise of such
poweris infrequent; while incidental supervisory responsibilities do not
raise the kind of conflict of interest underlying section 1 (3)(b).
In the Ottawa Public Library decision (1995) O.L.R.B. No. 1001 the Board wrote:
'19 Most of the individuals examined have been in their present positions
for many years. Except for the Senior Payroll Assistant, all of the
pX:1rninees "run" the dep8rtrnents they head and are responsible for
the quantity and quality of work produced. It appccHs that discipline
or discharge of employees, especially permanent fulHirne ernployees,
is relatively rare in any of the departments run by the people
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examined. As noted above, prior to the certification application, all of
the people examined were eligible for membership in the Ottawa
Public Library Employees Association (OPLEA). Through that
organization and under the Ottawa Public Library Employee
Regulations, it has been possible for employees to file grievances.
None of the examinees were aware of any grievances being filed in
their departments. All of the examinees report to a Director. All of the
Directors are members of the Administrative and Management
Committee (AMC) which, as the name suggests, manages the library
and reports to the Ottawa Public Library Board. The AMC includes
the Chief Librarian, Deputy Chief Librarian and the Directors. It does
not include the positions in dispute. The incumbents of the Head
positions in dispute sit on another committee which does not have the
same policy and personnel authority as the AMC. It appears that the
"Heads" committee is a forum in which the Directors can advise the
Heads of decisions made by the AMC and the Library Board and in
which those decisions can be discussed.
1(10 There appeared to be general agreement between the examinees
that all of the Head positions in dispute have the same technical
authority for hiring, firing and discipline which is set out to some extent
in the Employee Regulations. They all sit on hiring'committees with
their Directors, someone from human resources and sometimes
subordinate supervisors from their own departments. These
committees all make their decisions by consensus. Usually, the
intelViewee with the highest point score is awarded the position.
Occasionally, one of the Heads has preferred a different candidate to
the one chosen but has deferred as part of the consensus process of
a majority of the other committee members preferred another
candidate. All of the Heads have the power to impose verbal
discipline. Some of them have reduced that verbal discipline to
writing without consultation with someone else, some have reduced
it to writing after consulting with superiors, some have done so at the
direction of superiors. None of the Heads have the authority to
suspend or discharge a permanent employee. The Board finds that
the Branch heads and the Head of Circulation, however, have the
authority to effectively recommend discharge and discipline, whereas
the other Heads may sometimes recommend, but not always
effectively, and more often provide input or acta as a conduit for
information. All of the Heads have the power to approve schedules,
vacations and short-term leave, e.g. for a doctor's appointment or a
sick child. Some approve overtime and some do not. Some of the
non-lihra rin n H p ;:-vls v,/ork OVl'l rlirnf.~ if :1!)prO\l(::,d by th err directors.
'"/11 All of the Heads are involved in the employee performance appraisal
process. Employees are appraised twice during probation, at three
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determined is the nature and extent of the individuals authority as well as the extent to
which that authority is actually' exercised. Among other things what has to be looked at is
how much of the time is spent on the so called managerial duties as opposed to functions
similar to those in the bargaining unit.
The instant case is a perfect example of a case that falls within the shaded or the grey
area. If each of the criteria established by the Board in its' various decisions over the years
is looked at in isolation a reasonable conclusion could be that the position of the
Coordinator should not be excluded and should fall within the bargaining unit. However,
that is not the way these decisions should be made. What has to be looked at is the
totality of the functions performed by the incumbent of the position, Further, one must also
examine the amount of time spent on those functions as opposed to any other functions,
the relationship in performing those functions with her immediate superior and perhaps
most importantly, the amount of day-to-day control actually exercised over employees who
report to her. One must also look at the relationship that would result with her fellow
bargaining unit employees if she was included in the same unit as them,
In the instant case there was no suggestion that the incumbent of the Coordinator position
performs any actual hands on bargaining unit work. Whereas in the job description the
work entitled "Human Resources" only makes up one portion of the work, the rest of the
job functions provided in the job description, as well as the evidence, reveals that the
totality of the work performed by the incumbent relates to the day-to-day operation of the
section i nclud ing specific hu man resou rces function. The incu mbent does not perform day-
to-day work of the nature or type performed by other members of the operations who are
within the bargaining unit.
The uncontradicted evidence of Ms. McGowan is that she has downloaded what used to
take up approximately 80% of her t,ime and she now spends her time focused on research
and policy and procedure issues. Her further uncontradicted evidence is that she may
meet with Ms. Vaughan every week or two weeks at which tirne Ms. Vaughan keeps her
inforrned of the operations of the library There is no suggestion that anyone other than
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Ms. Vaughan is responsible forthe day-to-day operations of the library. Both Ms. Vaughan
and Ms. McGowan testified that employees go to Ms. Vaughan in the case of any
operational or human resources issues. There was no evidence to suggest that anything
other than that was actually done by employees. Thus whereas it can be argued that each
ofthe functions taken in isolation show less than true managerial authority the reality is that
all the functions taken together, the fact that employees report to Ms. Vaughan, that Ms.
Vaughan on a weekly or bi-weekly basis keeps Ms. McGowan informed and that 100% of
Ms. Vaughan's time is spent in human resources supervisory and the day-to-day running
of the operations points to a conclusion that the function performed by Ms. Vaughan is that
of a first line manager.
It should also be pointed out that Ms. Vaughan retains the personnel files of the employees
in her unit, an important criteria as seen by the Ontario Labour Relations Board in
examining cases of this sort.
The evidence shows a clear distinction between the role of the Coordinator and that of the
Charge Technologist. The latter, unlike the Coordinator, principally performs work of the
bargaining unit - 60% of her time. She can not discipline employees, She does not retain
personnel files. There was no evidence that her supervisor has downloaded functions to
her as Ms. McGowan has done to the Coordinator. The personnel function is an adjunct
to her primary responsibilities. In the case of the Coordinator it is her only role.
Reference was made by counsel forthe Union to the Ottawa Public Library decision quoted
above wherein the Board determined that Heads should be included in the bargaining unit
but that Branch Heads were excluded in support of her argument.
Part of the ratio of the Board in deciding to exclude the Board Heads is analogous to the
situation being determined here. What is being dealt with in the instant case is a multi
location library with the Coordinator responsible for each of lhern. There is also very
!irnited contact between the ernployees in the bargaining unit and fvls. fvlcGowml the
Director, being thai all personnel rnatlcrs qo fran: staff to the Coordinator, tho Coordinator
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then having the discretion to raise issues as she sees fit with Ms. McGowan. Further, the
evidence in the Ottawa Public Library decision was that in disciplinary matters the Head
was a conduit. The evidence in the instant case does not support such a finding but rather
that the Coordinator can either discipline or effectively recommend.
As weH, importantly, the Board appears to have relied on the fact that the authority of the
head is limited to hiring and firing casual employees who are excluded from the bargaining
unit. That is an important distinction with the instant case. The Coordinator has the right
to hire, discipline and fire bargaining unit employees. In fact, the evidence is that the
Coordinator has been involved in the hiring of bargaining unit employees.
The result of the above analysis clearly demonstrates that the inclusion of the incumbent
in the bargaining unit would create a conflict of the type the Ontario Labour 'Relations
Board strives to avoid. It would put in the bargaining unit a person who has real control
and direction over other employees on a regular, systematic basis. The functions relied
on by the employer to justify her exclusion are not incidental to the main function of the
Coordinator: they are her only functiOns.
Thus, just as serious labour relations problems would arise, in the words of the Board in
the case of the Branch Heads in the Ottawa Public Library case thus justifying their
inclusion, similarly serious labour relations problems would arise if the position of
Coordinator was to be included in the bargaining unit.
The decision therefore is to not include the position of Coordinator ~ Library Services in the
bargaining unit but to retain its exclusion.
Signed this 111h day of July, 2002.
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,,____________.'T',.............
Iv1. f3. f<ljller I /\rbitrator