Supervisors are employees and part of bargaining unit: board

Only store owners and manager made decisions on discipline, hiring, firing

Supervisors are employees and part of bargaining unit: board

Supervisors at a grocery store don’t have enough managerial or confidentiality to justify excluding them from the collective bargaining unit, the British Columbia Labour Relations Board has ruled.

Sum’s Grocery Check Out is a grocery store in Vancouver. On Dec. 1, 2022, the BC Labour Relations Board certified the United Food and Commercial Workers International Union, Local 1518, as the exclusive collective bargaining agent for Sum’s employees. The process to negotiate a collective agreement soon began.

Sum’s employees included three supervisors. The union applied for a determination that the supervisors should be included in the bargaining unit, but Sum’s contested it, saying their responsibilities gave them a managerial and confidentiality exemption under the BC Labour Relations Code.

The code defines “employee” as a person employed by an employer but excludes someone who “performs the functions of a manager or superintendent, or… is employed in a confidential capacity in matters relating to labour relations or personnel.

Managerial exclusion

The board noted that the jurisprudence had established that to fall within the managerial exclusion in the code, a person must exercise “effective determination” with respect to discipline and discharge; labour relations input; or hiring, promotion, and demotion. Such cases would have a potential conflict of interest that would justify their exclusion from the bargaining unit, said the board.

As for the confidentiality exclusion under the code, it applied when someone had regular and substantial access to confidential labour relations or personnel information. However, employers had the onus to arrange their operations to avoid occasionally placing employees in a potential conflict if it could otherwise be avoided, the board said.

“That an employer wishes to keep information confidential does not in itself justify excluding employees who have access to it from collective bargaining, as trade union membership does not make employees inherently less trustworthy,” said the board.

The union argued that the managerial exemption did not apply to the supervisors because all determinations on discipline and discharge, along with managerial decisions, were made by the owners and store manager. It also said that hiring and promotion decisions were made by the owners and manager.

Supervisors assessed employees

Sum’s countered that the supervisors managed employees and assessed their performance and record of infractions, while providing the owner and manager with “insight and input in order to make final decisions on disciplinary action.” They were also involved in making and implementing store policies and procedures. Although supervisors weren’t involved in hiring decisions, they were asked each year to identify staff members who might be fit to be promoted, Sum’s said.

The board found that the supervisors “collect, analyze, and record employee information” but the store owners acknowledged that they and the manager made the final decisions on disciplinary matters. In addition, the supervisors were involved in implementing and recommending changes to Sum’s employment policies, but it was the owners and manager who actually made the policies.

The board also found that, while the supervisors had a “role surrounding team leadership” and they were a point of contact for staff concerns, they didn’t work in a confidential capacity regarding labour relations or human resources matters.

The board determined that the supervisors did not fall with the managerial or confidentiality exclusions of the code that would prevent them from being part of the collective bargaining unit. As for Sum’s conflict-of-interest concerns regarding a potential skewing of discipline and maintaining operations standards if the supervisors were in the bargaining unit, the board found this to be perceived and speculative with no evidence that the supervisors would be less reliable or trustworthy if they were in the bargaining unit.

The board declared that the supervisors were employees under the code and included in the bargaining unit. See Sum’s Grocery Check Out Ltd., 2023 BCLRB 171.

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