Position would have had conflict of interest if it was in union: Arbitrator
As part of its plan to amalgamate mental health and hospital services at one new site, Providence Care created a new, full-time nursing position.
When the employer placed the new job — Advanced Practice Leader, Nursing — outside the bargaining unit, the union grieved.
The union argued that the new position ranked below that of Nursing Supervisor and requested the new job be placed in the bargaining unit.
The employer’s job description outlined a corporate level leadership position that was designed to provide guidance on issues concerning nursing practice guidelines, evaluating performance standards and recruiting. The position was also relied upon to counsel management on the referral of issues to the College of Nurses and to make recommendations on discipline with respect to professional practice issues.
The employer said it was always its intent to exclude the position from the bargaining unit and argued that in view of the job’s labour relations responsibilities, there could be conflicts of interest if the new position was placed in the bargaining unit.
The new position was modeled on two other excluded positions, the employer said. Moreover, it was paid at a higher level than Nurse Supervisors and the job was corporate-wide, which meant that responsibilities over non-union employees in mental health services also formed part of the package.
Other responsibilities included directly supervising two unionized employees, sitting as management co-chair on the Hospital Association Committee and acting for the chief nursing executive when he was away.
No real power
The union argued Nursing Supervisors ranked above the Advanced Practice Leader. The union said Nursing Supervisors are more than front-line managers. During off hours, they are the top person on duty. By contrast, the union said, the powers of the Advanced Practice Leader were circumscribed by terms like “monitors,” “make recommendations,” “participates,” and “contributes” — words, said the union, that indicated no real power. The union said that the main focus of the Advanced Practice Leader was on professional practice expertise not on managerial responsibilities. The union said that the job belonged in the bargaining unit.
The arbitrator disagreed.
The straightforward question was whether or not the position of Advanced Practice Leader was ranked above Nursing Supervisor, the arbitrator said. In the event the job was at the same level or lower, then the employer had improperly excluded the position from the bargaining unit.
The arbitrator rejected the union’s assessment that Nursing Supervisors ranked above line managers. The evidence did not support that assertion, the arbitrator said.
“The assessment of whether one position is above the rank of another is not simply a question of whether someone is situated higher on the same line on an organization chart. It is a question of whether the position has greater responsibilities in the area of labour relations — the duties that can create the kind of conflict of interest that is key to defining a bargaining unit exclusion under the Labour Relations Act, 1995.”
Conflict of interest
The arbitrator cited the conflict of interest test for bargaining unit exclusion formulated in Brant County Health Unit:
“(i) persons who exercise, at minimum, powers of effective recommendation over decisions that affect the working lives of their fellow employees (e.g., with respect to hiring, firing, discipline, performance appraisals, promotion, demotion, work assignments, scheduling, granting overtime and time off, etc.); and (ii) persons who, even though they do not exercise those important, ‘hands-on,’ labour relations functions themselves or through others, make decisions in the organization that are at such a level or are of such a magnitude as to necessarily impact on such matters indirectly.”
In the circumstances, the arbitrator said it was clear the Advanced Practice Leader — Nursing was vested with considerably more responsibility for labour relations than the Nursing Supervisors.
The Advanced Practice Leader — Nursing directly managed two unionized employees. The incumbent in the new position participated on hiring committees and was authorized to advise management on whether or not discipline was warranted in relation to allegations of professional misconduct.
The position was properly excluded from the bargaining unit, the Arbitrator said.
The grievance was dismissed.
Reference: Providence Care — St. Mary’s of the Lake Hospital and Ontario Nurses’ Association. Lorne Slotnick — Sole Arbitrator. Jock Climie for the Employer. Sandy Donaldson for the Union. April 11, 2013. 18pp.
When the employer placed the new job — Advanced Practice Leader, Nursing — outside the bargaining unit, the union grieved.
The union argued that the new position ranked below that of Nursing Supervisor and requested the new job be placed in the bargaining unit.
The employer’s job description outlined a corporate level leadership position that was designed to provide guidance on issues concerning nursing practice guidelines, evaluating performance standards and recruiting. The position was also relied upon to counsel management on the referral of issues to the College of Nurses and to make recommendations on discipline with respect to professional practice issues.
The employer said it was always its intent to exclude the position from the bargaining unit and argued that in view of the job’s labour relations responsibilities, there could be conflicts of interest if the new position was placed in the bargaining unit.
The new position was modeled on two other excluded positions, the employer said. Moreover, it was paid at a higher level than Nurse Supervisors and the job was corporate-wide, which meant that responsibilities over non-union employees in mental health services also formed part of the package.
Other responsibilities included directly supervising two unionized employees, sitting as management co-chair on the Hospital Association Committee and acting for the chief nursing executive when he was away.
No real power
The union argued Nursing Supervisors ranked above the Advanced Practice Leader. The union said Nursing Supervisors are more than front-line managers. During off hours, they are the top person on duty. By contrast, the union said, the powers of the Advanced Practice Leader were circumscribed by terms like “monitors,” “make recommendations,” “participates,” and “contributes” — words, said the union, that indicated no real power. The union said that the main focus of the Advanced Practice Leader was on professional practice expertise not on managerial responsibilities. The union said that the job belonged in the bargaining unit.
The arbitrator disagreed.
The straightforward question was whether or not the position of Advanced Practice Leader was ranked above Nursing Supervisor, the arbitrator said. In the event the job was at the same level or lower, then the employer had improperly excluded the position from the bargaining unit.
The arbitrator rejected the union’s assessment that Nursing Supervisors ranked above line managers. The evidence did not support that assertion, the arbitrator said.
“The assessment of whether one position is above the rank of another is not simply a question of whether someone is situated higher on the same line on an organization chart. It is a question of whether the position has greater responsibilities in the area of labour relations — the duties that can create the kind of conflict of interest that is key to defining a bargaining unit exclusion under the Labour Relations Act, 1995.”
Conflict of interest
The arbitrator cited the conflict of interest test for bargaining unit exclusion formulated in Brant County Health Unit:
“(i) persons who exercise, at minimum, powers of effective recommendation over decisions that affect the working lives of their fellow employees (e.g., with respect to hiring, firing, discipline, performance appraisals, promotion, demotion, work assignments, scheduling, granting overtime and time off, etc.); and (ii) persons who, even though they do not exercise those important, ‘hands-on,’ labour relations functions themselves or through others, make decisions in the organization that are at such a level or are of such a magnitude as to necessarily impact on such matters indirectly.”
In the circumstances, the arbitrator said it was clear the Advanced Practice Leader — Nursing was vested with considerably more responsibility for labour relations than the Nursing Supervisors.
The Advanced Practice Leader — Nursing directly managed two unionized employees. The incumbent in the new position participated on hiring committees and was authorized to advise management on whether or not discipline was warranted in relation to allegations of professional misconduct.
The position was properly excluded from the bargaining unit, the Arbitrator said.
The grievance was dismissed.
Reference: Providence Care — St. Mary’s of the Lake Hospital and Ontario Nurses’ Association. Lorne Slotnick — Sole Arbitrator. Jock Climie for the Employer. Sandy Donaldson for the Union. April 11, 2013. 18pp.
