Tuesday, 30 April 2019

Supervisor position successfully included in bargaining unit
In today’s climate, where Unions are continuously being challenged, membership density is decreasing and we’re seeing pressure from all side, it is more important than ever to ensure that we protect the integrity of our bargaining units. In practice, we are seeing Employers try to undermine our solidarity and strength in numerous ways, including but not limited to the example provided below. We cannot allow the employer to continue to undermine our bargaining units.

OPSSU and OPSEU (2017-28), Re, 2019 CarswellOnt 11

The union filed a grievance challenging the Employer’s unilateral exclusion of a Supervisor position. This position (“Incumbent”) was excluded from the bargaining unit without any explanation or justification. This was a major concern for the Union, as the parties had negotiated a recognition clause which covered “all employees”. It was important to the Union to protect the integrity of the bargaining unit and not allow the Employer to attempt to chip away at the scope of our membership. It was our position that it is the Employer’s duty to justify any and all exclusions from the bargaining unit.

When the Employer failed to provide a reasonable explanation, the Union grieved the unlawful exclusion of the Incumbent’s position. The matter proceeded to arbitration and we were successful on behalf of the Union. 

Employer’s Argument

The employer argued two reasons why the position should be excluded from the bargaining unit. First, they asserted that the incumbent was a supervisor and supervisory roles (such as investigations) were excluded pursuant to the recognition clause. Secondly, they argued that the incumbent was employed in a confidential capacity related to labour relations and was therefore not an employee for the purposes of the Labour Relations Act

Our Position

We took the position that there is no way, based on the evidence provided by the Employer, that the Incumbent should be excluded from the bargaining unit. We argued that the Employer failed to meet the test for exclusion outlined by the Ontario Labour Relations Board as (1) the Incumbent was not involved in managerial functions and (2) was not engaged in a confidential labour relations capacity.

(1) Was the Incumbent employed in a supervisory role?

We started our argument by identifying the significance of an ‘All Employees’ bargaining unit, arguing that this provision provides that anyone employed by the Employer is automatically included in the bargaining unit, unless they fall within the exceptions. Therefore, the onus is on the Employer to prove that this position should be excluded.

After successfully cross-examining the Employer’s witness, we argued that it would be impossible to classify the Incumbent as a supervisor as he did not assign, direct, or control the work of other employees in the general course of his duties. Moreover, he did not approve time off, respond to grievances, supervise, hire, fire, suspend, demote, or promote employees.

Finally, we argued that when tasked with investigations, the Incumbent was merely a conduit who was directed by management to gather and retrieve information pertaining to an investigation.

The Arbitrator held that our legal position was correct.

(2) Was the Incumbent engaged in a confidential labour relations capacity?

We went on to argue that the Incumbent never had access to confidential labour matters, and alternatively, even if the Incumbent did have access, it was not sufficient to justify an exclusion. To exclude an employee for access to confidential information, the person must be employed in a confidential capacity in matters relating to labour relations, and it must be at the core of the disputed individual's job functions. An occasional or peripheral involvement is insufficient to justify his exclusion.

Moreover, without proving this element of confidential capacity, arbitrators have taken the approach that the impact on the employer's interests is not sufficient to counter-balance denying employees access to statutory bargaining rights, therefore, the Employer failed to meet the test and the Incumbent should be included.

HELD: We were successful, the bargaining unit was protected and the “supervisor” position was added to the membership.