Employer wanted HR function put into clerk job description
After a 37-year employee retired as a payroll clerk, the employer removed the job category from the bargaining unit because of a “conflict of interest.”
On Sept. 29, 2016, Brenda Howie, financial services manager, at Cape Breton Island Regional Housing in Sydney, N.S., wrote a letter to the Canadian Union of Public Employees (CUPE), Local 4840 and requested the payroll clerk classification be changed to payroll and benefits coordinator (P&BC) which meant an employee would become “privy to confidential information relating to bargaining unit members such as garnishments, disciplinary actions, salary information for all employees, and confidential communication from the housing authority director.”
But the union disagreed with the move and on Oct. 11, both parties submitted to a third party for a resolution on the disagreement.
Meanwhile, the position was filled on Oct. 26 by Alana Spracklin, who then took maternity leave.
On Dec. 22, Tammy Long filled the position on a term basis and she signed a declaration of confidentiality agreement as a condition of employment.
But on Feb. 10, 2017, the third-party talks failed to provide an agreement, so CUPE formally grieved the decision and argued the employer violated three articles of the collective agreement and the Trade Union Act “by excluding from the bargaining unit the position of payroll and benefits coordinator.”
The employer argued the new position “should be involved in the grievance and bargaining process,” in a June 17 internal email regarding the new position description and, therefore, the P&BC should be excluded from the bargaining unit.
Because the housing authority’s HR department was centrally located in Halifax, there was a need to have someone in Sydney to manage HR issues, argued the employer, which meant the P&BC would periodically delve into personal employee matters for the 140 employees at the Cape Breton Island location.
“It is hard to rely always on Halifax human resources, we need someone local,” testified Howie.
But on Nov. 28, Stewart Matheson, director, decided, “Effective immediately, all union questions pertaining to payroll, benefits, service time, vacation, start dates, pension, dues remittances, rate of pay, increments, etc. are to be sent” to him pending a decision on the P&BC.
Arbitrator Augustus Richardson upheld the grievance and ordered the position to remain in the bargaining unit, and the employer was directed to compensate CUPE for losses of union dues.
“I was not persuaded that the employer had met the onus on it of establishing that the position of P&BC was one excluded from the bargaining unit as being a position involved in a confidential capacity in matters relating to labour relations,” said Richardson.
The authority’s argument that it needed to attach an HR component to the P&BC position was not warranted, according to- the arbitrator.
“I can certainly appreciate how it might be useful at least in theory to have someone local — someone intimately familiar with the office, operations and employees of the employer — to assist management and supervisors in labour relations matters. But in this case, the employer (or the government that set up the organizational structure) chose to centralize the personnel responsible for the provision of advice and support with respect to labour relations in Halifax,” said Richardson.
“But the employer cannot accomplish that end by fastening a few labour relations responsibilities that might arise only periodically onto a job that falls and has always fallen squarely within the bargaining unit, at least where there is no evidence of an actual (as opposed to a theoretical) need for such a position.”
Reference: Cape Breton Island Regional Housing Authority and Canadian Union of Public Employers, Local 4840. Augustus Richardson — arbitrator. Dorianne Mullin for the employer. John Gillies for the employee. Feb. 20, 2018. 2018 CarswellNS 125
