An Ontario municipality did not breach the province’s Labour Relations Act or its collective agreement when it removed three payroll workers from their collective bargaining unit and made them non-union employees, the Ontario Labour Relations Board has ruled.
The City of Belleville, Ont., had a human resources staff of seven people, of which three worked in payroll. All of the HR staff worked at city hall. The payroll workers were traditionally members of the collective bargaining unit though, when they were integrated into the city’s HR department, there was some discussion of whether they should remain unionized because HR staff often handled confidential and personal labour relations information. However, it was ultimately agreed the payroll staff would remain part of the bargaining unit.
Conflict of interest concerns
In 2007, the city decided to move the HR department to another location. The new quarters were more open without offices or walls, which raised confidentiality issues between the unionized payroll employees and the rest of HR. The city determined this increased interaction coupled with the fact they would be geographically removed from the rest of city administration would create an “untenable mix of union and non-union staff when dealing with labour relations issues.” It also felt this mix had affected the working relationships and efficiency of the department. On Nov. 16, 2007, the city informed the union it would be designating the payroll staff to be non-union on the date of the department move early in 2008.
The union contested this action, arguing the work performed by the payroll staff was bargaining unit work and to exclude any members would require a change to the collective agreement, which would have to be negotiated in the next round of collective bargaining.
The city responded by saying the payroll staff were “integral” to the HR department and were regularly exposed and expected to contribute to labour relations issues. As time went on, they were consulted on payroll-related issues that were tied to labour relations and the HR department worked more collaboratively. The payroll employees also provided suggestions to management proposals for changes to the collective agreement. As a result, the Labour Relations Act required them to be excluded from the bargaining unit because their activities caused them to fall outside of the act’s definition of a regular employee.
On Jan. 2, 2008, the city stopped deducting union dues from the wages of the payroll employees and designated them as non-union. It gave them new titles, job descriptions and a pay increase. On Feb. 14, 2008, the union filed a grievance arguing the unilateral removal of the payroll employees from the bargaining unit was an unfair labour practice, showed an anti-union bias and violated the Labour Relations Act. It demanded the return of the payroll employees to the bargaining unit and payment of their union dues.
The city and the union began collective bargaining for a new agreement in April 2008. The city proposed to exclude the three payroll employees as well as several others from the unit, but the union refused. As a result, a new collective agreement was settled upon which continued to include the payroll positions.
No unfair labour practices or anti-union bias
Arbitrator Patrick Kelly found the city honestly believed its payroll staff participated in activities that crossed a boundary and they could not be considered regular employees under the Labour Relations Act and there was no evidence of an anti-union bias in this consideration. It had the opinion, Kelly found, that the removal of the payroll employees was justified and in accordance with the legislation, with no motive to undermine the union or deprive the employees of their rights.
Kelly also said for an employer’s actions to constitute an unfair labour practice, it had to threaten or undermine the union and interfere with an issue that should fall under the umbrella of collective bargaining. He found the switch of the payroll employees only incidentally affected the union and didn’t interfere with its collective bargaining rights, though he said the city could have handled the situation better once the union contested the decision. He suggested an application to the Ontario Labour Relations Board for a determination on the status of the payroll staff under the act rather than a unilateral decision would have been a better course of action, though it didn’t mean the city wasn’t within its power to make the decision as a managerial prerogative in the course of operations.
“I have little doubt the union was taken aback by the city’s unilateral decision regarding the payroll staff,” said Kelly. “To the extent there was any interference by the city, it only incidentally affected the union and it does not give rise to an inference that the employer intended such a consequence.”
Kelly ruled the city did not breach the Labour Relations Act nor the collective agreement and dismissed the union’s grievance.
For more information see:
C.U.P.E., Local 907 v. Belleville (City)
, 2009 CarswellOnt 5677 (Ont. L.R.B.).
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