'Management has authority to make good-faith decisions based on its own view of things'
“Just because an employee happens to be involved with the union or participates in the administration and activities of the union doesn't insulate that employee from bona fide business or operational changes and their consequences.”
So says James Kondopulos, a partner at Vancouver labour and employment law boutique Roper Greyell, after an arbitrator dismissed a grievance claiming that a B.C. non-profit organization’s changing of a worker’s duties and office location were due to the worker having a prominent role in the union.
Prominent role with union
The Immigrant and Multicultural Services Society of Prince George (IMSS) is a non-profit, government-funded agency providing settlement and integration services to immigrants and refugees in Prince George and northern British Columbia.
IMSS hired the worker in 2016 to be a full-time language program co-ordinator. Her employment contract stated that she “may also perform the duties of a language instructor for up to 15 hours per week for short-term assignments” when funding wasn’t available for a language instructor.
In late 2018, IMSS staff became unionized and, soon after, the worker became bargaining chair of the union’s bargaining committee. She was involved in the negotiations of the first collective agreement. Eighteen employees were represented by the union with two outside of the bargaining unit.
During the bargaining, it was confirmed that two co-ordinators would remain – including the worker – while other positions would no longer be co-ordinators as a way of differentiating non-unionized management from bargaining unit members.
In the spring of 2019, the worker became a union steward and later, a member of the joint labour management committee.
Soon after, IMSS removed the worker’s responsibilities for supervising the organization’s childminding centre and assigned them to a new managerial position that wasn’t part of the bargaining unit, while the other co-ordinator retained their supervisory duties.
Laid off from regular position
In September, IMSS notified the worker that she was being laid off from her language co-ordinator position. It then placed her in a new position of head English language instructor, which was a decrease from 52 weeks at 35 hours per week to 40 and 25, respectively. IMSS said that this was to align with collective agreement and federal funding guidance. At the same time, IMSS increased another employee’s hours and hired a part-time HR advisor.
In October, IMSS started assigning student assessment work to another employee to do outside of regular hours, even though it was part of the worker’s duties until her position ended in December.
After the worker assumed the head English instructor position, IMSS moved her office from her preferred upstairs location to an office downstairs with the rest of the staff. At a staff meeting, IMSS explained that the move was to help with communication and safety – the worker was alone upstairs, it was accessible from the outside, and a competitor had offices on that floor.
Read more: Mild discipline from different managers had no characteristics of anti-union bias, an Ontario arbitrator found.
In January and February 2020, IMSS directed the worker to only complete student assessments and administrative work within her regular part-time hours. It called in a substitute instructor to cover her teaching duties while the other employee was still allowed to do assessments outside of regular hours.
The union filed a grievance alleging that IMSS discriminated against the worker for union activity, contrary to the collective agreement – which had a provision prohibiting discrimination against any employees because of their union membership or activity. The union alleged that the redirection of the worker’s duties to a position outside the bargaining unit, singling her out for layoff and reducing her hours, redirecting the student assessment duties to someone else, and moving the worker’s office were all done because the worker was a union activist.
The union also pointed out that at no time during the collective bargaining process did IMSS mention any financial difficulties or plans to restructure or reorganize.
Union activity protected in agreement
It’s somewhat unusual for a collective agreement to have a provision prohibiting discrimination for union activity because B.C.’s labour relations legislation, as with other jurisdictions, has strong protections already, says Kondopulos. However, it gave the union a second avenue with which to pursue a complaint.
“No harm to the union for having a contractual protection as well,” he says. “It's just another level of protection, but probably redundant – unless you prefer to pursue the matter before a grievance arbitrator as opposed to before the Labour Relations Board.”
However, the process of evaluating such a complaint is similar regardless of whether it goes before a board or an arbitrator, says Kondopulos.
“The union has to show that there were decisions made or changes implemented which adversely affected one of its members,” he says. “Then the employer has to show that the decisions and changes were bona fide, legitimate, and not driven by anti-union animus.”
Read more: The BC Labour Relations Board overturned a worker’s dismissal for poor performance when it found that the worker’s union organizing efforts were a factor in the termination decision.
The arbitrator found that it was reasonable for IMSS to assess the needs of its organization and amalgamate supervisory functions after unionization, with the purpose of clearly delineating bargaining unit members and management along with consolidating managerial oversight functions in a small workplace with limited resources.
The arbitrator noted that the language co-ordinator position was not eliminated, but it was made vacant due to the restructuring. The evidence indicated that if IMSS need the role in the future, the worker could exercise her rights under the collective agreement to obtain the position.
The arbitrator also found that the reassignment of student assessments was due to a backlog and the worker was never entitled to be the only employee to perform this work.
In addition, moving the worker’s office to be with the other staff members had practical reasons – safety, better communication, and privacy.
Strong rebuttal of allegations
IMSS did well by effectively rebutting each of the union’s allegations of discriminatory action and it further helped its case by remaining positive about the worker, says Kondopulos.
“At no point did the employer ever express any negative comments about the [worker] and, in fact, it expressed praise in relation to her competence, capabilities and work ethic – that sets the context for rebutting the union's evidence and allegations,” he says. “The employer not only was able to offer reasonable explanations, but treated this employee quite well – that's not what you would expect if the employer was motivated by anti-union animus.”
The arbitrator determined that IMSS was within its managerial rights to make the moves it did in order to achieve cost efficiencies and there was no evidence of anti-union bias. Just because the worker wasn’t aware of the organization’s specific efforts and motivations, IMSS didn’t have to fill her in on all of its plans, said the arbitrator in dismissing the grievance.
Kondopulos notes that employees can be treated differently based on different tasks, as long as it’s in good faith, for legitimate business reasons, and not based on anti-union animus.
“Don't run too quickly to a conclusion that discrimination is unlawful – the onus is on the union to call evidence from which it can be inferred,” he says. “The evidence supported the conclusion that while the actions complained about occurred when the [worker] was a union activist, they did not occur because of her union membership or activism.”
“The arbitrator found that the worker and the union had a different view of how funding should be spent, but management was well within its rights to achieve cost efficiencies in providing its services,” Kondopulos adds. “Management has authority to make good-faith decisions based on its own view of things.”
See Immigrant and Multicultural Services Society of Prince George and BCGEU (Bacon), Re, 2022 CarswellBC 1658.
