Two scheduling coordinators at a Windsor long-term care home must be included in the CUPE bargaining unit after an arbitrator found the City failed to show their duties represented a meaningful departure from work historically performed by unionized employees.
The ruling, issued in February 2026, upholds a union policy grievance filed in October 2020 challenging the City of Windsor’s decision to establish the Coordinator, Attendance and Scheduling classification as a non-bargaining unit position at Huron Lodge, a municipally operated home for the aged.
Background
The dispute traces to 2019, when the City introduced a workforce management software system called WFM across its operations. Before WFM, bargaining unit employees in the Nursing Records Assistant classification had performed most day-to-day scheduling and absence management functions within pre-approved guidelines set by management. After WFM was implemented, the system was configured so that only non-bargaining unit personnel could enter schedule changes — a technical restriction that significantly increased the scheduling workload of the Director of Care.
To address that workload, the City first created temporary placeholder positions and then, in 2020, established the permanent Coordinator, Attendance and Scheduling classification. One of the two incumbents had previously worked in the Nursing Records Assistant role and moved into the new position directly. She testified that more than 80 per cent of her duties as coordinator were the same as those she had performed as a bargaining unit employee.
The city’s position
The City argued the coordinator role was a management position properly excluded from the bargaining unit on two grounds. First, it contended the positions had been added to a list of classifications covered by a separate agreement with a non-union employee association — a document it characterized as equivalent to the Schedule A exclusions list referenced in the collective agreement. Second, it argued the coordinators exercised managerial functions that precluded their inclusion in any bargaining unit under the Ontario Labour Relations Act.
The City pointed to duties including directing timekeepers, approving vacation requests, participating in hiring interviews, accessing confidential employee medical information, and conducting performance appraisals.
The union’s position
The union argued the coordinators’ core duties had always been bargaining unit work and that the City had simply repackaged those duties with a thin overlay of supervisory responsibilities. It contended the City could not unilaterally add the classification to any exclusions list without union agreement, and that the notice provided before the positions were established was insufficient to satisfy the collective agreement’s requirement for discussion and negotiation.
Analysis and findings
On the Schedule A question, the arbitrator found the City’s attempt to rely on the non-union association document as its exclusions list was not supported by the evidence. The collective agreement expressly provides that classifications may only be added to the exclusions list by agreement of both parties. The City had added the coordinator positions unilaterally, without union consent. The arbitrator noted, however, that the absence of the classification from Schedule A did not automatically mean inclusion in the bargaining unit either — that question had to be resolved on the merits.
On the question of whether inadequate notice and negotiation should void the City’s decision, the arbitrator found that while the collective agreement requires discussion when new positions are created, a failure to negotiate is not by itself enough to overturn the exclusion. The union’s local president had been informed of the City’s intentions and chose to grieve rather than engage further. The arbitrator found that was a legitimate choice, but not one that independently resolved the jurisdictional question.
On the central question of whether the coordinators performed managerial functions, the arbitrator found the evidence fell short of what was required. Most of the work — preparing master schedules, filling absence replacements, administering shift changes and vacation requests according to pre-set guidelines — was substantively the same work the incumbents had done as bargaining unit employees. The key differences were modest: coordinators no longer needed the director’s formal approval for decisions made within established parameters, they directed timekeepers on correct payroll entries, and they were nominally responsible for timekeeper performance appraisals. In practice, one incumbent had never completed a performance appraisal and was never disciplined for failing to do so. The other had completed one. Their participation in hiring interviews was limited to providing a letter grade on one occasion.
The arbitrator found this did not constitute a material change. Citing established case law on the concept of “sprinkling” managerial functions onto bargaining unit work, the arbitrator concluded the supervisory authority the coordinators exercised was no greater than what the parties’ own joint job evaluation manual already contemplated for bargaining unit positions.
The arbitrator also rejected the argument that the WFM software configuration should drive the legal outcome. The fact that the system was built to restrict certain entries to non-bargaining unit personnel was a design choice, not a legal determination. Allowing a technology platform to define bargaining unit scope, the arbitrator found, would not be appropriate.
The arbitrator remitted the question of remedy to the parties, retaining jurisdiction over any disputes in implementation.
For more information, see Canadian Union of Public Employees Local 543 v Windsor (City), 2026 CanLII 9834 (ON LA).
