In the Matter of an Interest Arbitration BETWEEN ...

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In the Matter of an Interest Arbitration

BETWEEN:

SCARBOROUGH HEALTH NETWORK

(The “Hospital”)

AND

CANADIAN UNION OF PUBLIC EMPLOYEES, LOCAL 5852

(the “Union”)

(Local Issues)

BEFORE:

Eli A. Gedalof, Chair Brian O’Byrne, Hospitals Nominee

Joe Herbert, Union Nominee

APPEARANCES:

For Scarborough Health Network

Bob Bass, Bass Associates Mary Claire Bass, Bass Associates Shirley Ward, Manager, Labour Relations

Meredith dePaulsen, PCM Medicine S&G Jackie Yigitoz, Manager, Diagnostic Imaging

Rhodora Gutierez, Manager Surgical Services Michell Jubinville, Manger, HR Systems & Operations Michele James, Vice President, People & Transformation

For CUPE Local 5852

Lindsay Lawrence, Goldblatt Partners LLP Gaetano Jacono, CUPE 5852

Cathy Stinson, CUPE 5852 Judy Willcocks, CUPE 5852

Joanne Brown, CUPE National Susan Arab, CUPE National

Kimberly Blanchard, CUPE National

Hearing Held: April 13, 2019 Executive Sessions: May 2 and 7, 2019.

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AWARD

1. On November 23, 2016, the Minister of Health and Long-Term Care issued an integration order directing that the Birchmount and General

campuses of The Scarborough Hospital merge with the Centenary campus of Rouge Valley Health System. The merged hospital is now called “Scarborough

Health Network”. The hospital filed a Public Sector Labour Relations Transition Act, 1997 (“PSLRTA”) application, and following a May 8, 2018 decision of the

Ontario Labour Relations Board, CUPE now represents a bargaining unit consisting of 6 distinct pre-merger groups of employees, including the CUPE

Full-Time and Part-Time units from Scarborough General and Birchmount, the CUPE combined bargaining unit from Rouge Valley Health Systems, employees

previously covered by an OPSEU collective agreement at Scarborough General

and Birchmount, stationary engineers previously represented by UNIFOR, and various employees who were previously unrepresented at one site or the

other. This new post-merger bargaining unit contains approximately 2,100 employees. Although the parties were able to agree on a number of terms for

the post-merger collective agreement, the following issues remain outstanding: i) Wage Harmonization; ii) Insured Benefits Harmonization; iii)

Emergency Vacation Leave; iv) Mobility; v) RPN Wage Adjustment; vi) Porter Wage Adjustment; and vii) Temporary Vacancies/Posting.

2. This matter was argued before the same local issues board and in

conjunction with a number of participating hospitals, and this board was granted jurisdiction to determine the local issues and any issues arising from

the amalgamation. Of particular significance, the parties agreed to argue the RPN wage adjustment as a coordinated issue with the other participating

hospitals. This award should be read together with our main local issues award

for this round of bargaining, which addresses the RPN wage adjustment, sets out the principles of interest arbitration and addresses proposals which, while

not argued on a coordinated basis, we have determined in a consistent manner where those issues were raised.

Wage Harmonization

3. CUPE, consistent with its approach in numerous other instances of hospital merger, seeks to harmonize like classifications to the higher rate.

Unlike the circumstances at Lakeridge, discussed in our award released together with this award, the parties here have not been able to reach an

agreement on job matching, and CUPE therefore proposes: i) the creation of a Joint Job Harmonization Committee to identify which job classifications are

“substantially the same or similar” and to move the hourly rates to the highest

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among them; ii) retroactivity to December 1, 2016 (the changeover date); and, iii) that the committee refer any disputes back to this board by June 1,

2019.

4. In addition to relying on the same history of settlements and arbitral awards as referred to above and the principles of replication and

comparability, CUPE notes that the Integration Proposal for the merger, in weighing the benefits and costs of the merger, acknowledges the principle of

harmonization to the higher salary level across the organizations, and that the necessary pay equity exercise will also result in substantial costs. CUPE argues

that the hospital has since failed to implement these principles, and that employees continue to experience uncertainty and upheaval as a result of the

merger. This is one of the bases upon which CUPE argues for full retroactivity arising from harmonization, notwithstanding that with limited exception this

has not been the typical approach. A failure to grant retroactive increases,

argues CUPE, would incentivise employers to delay the harmonization process, notwithstanding the likely and predicable outcome.

5. The Hospital argues that such an approach would be improper, and that

this Board ought not to blindly follow arbitral precedents. In particular, the hospital argues that the circumstances of this merger warrant a different

approach for several reasons: i) past decisions do not unanimously support CUPE’s approach; ii) the facts of this case are unique and extreme; iii) the

hospital’s jurisdiction argument on the basis of pay equity has not been argued before; iv) the hospital has provided a comprehensive review of industry

comparisons that militates against it; v) it would have an extreme impact on internal equity; vi) the proposal is extremely costly and would be determined

in the absence of the necessary facts and without regard to market realities; and vii) for these reasons the principles of interest arbitration, and especially

replication but also total compensation and the HLDAA criteria, do not support

CUPE’s proposal. The hospital notes in particular its poor ratio of assets to liabilities in comparison to other comparable hospitals, and the potential

impact of the increases on hospital programs.

6. Instead, the hospital proposes the creation of Joint Compensation Steering Committee to, among other functions, “identify market adjustment,

harmonization adjustments and pay equity adjustments that are required” based on a “market analysis”. The hospital does not propose a specific timeline

for completing this process, but acknowledges that some direction would be required in that regard. In any event, the hospital proposes that wage

adjustments arising from the committee be effective April 1, 2019.

7. In response, CUPE notes that essentially the same argument and proposal was made by the hospital and rejected by the board in The Niagara

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Health System and Service Employees International Union, Local 204, July 5, 2002 (unreported) (Kaplan).

8. There is a well-established pattern in the hospital sector of post-merger

harmonization of wages to the higher rate. This pattern is reflected in numerous voluntary settlements, and Arbitrators have adopted this approach

on the basis of replication (See, e.g., The Niagara Health System and Service Employees International Union, Local 204, July 5, 2002 (Kaplan) at p. 2-4,

Participating Hospitals and Canadian Union of Public Employees, March 4, 2011 (Petryshen), Trillium Health Partners and CUPE, December 9, 2015

(Kaplan)). Having reviewed and carefully considered the parties materials and submissions, and on the basis of the principles identified in the opening section

of our main local issues award, including my determination of the pay equity jurisdictional argument, I am satisfied that it is appropriate to replicate the

established approach to post-merger wage harmonization. We therefore

order:

Wage Harmonization

1) The Parties will form a Joint Job Harmonization Committee (“JJHC”) to review bargaining unit jobs. There will be eight representatives appointed

by each of the Hospital and the Union (in addition to CUPE National Representative(s) and advisors for both parties). Each party shall appoint a co-chair for the JJHC. Meetings of this committee shall be held during

normal working hours. Time spent attending such meetings shall be deemed to be work time for which the representative(s) shall be paid by

the Hospital at his or her regular or premium rate as may be applicable.

2) The parties will identify job classifications and positions whose core duties, responsibilities and educational requirements are substantially the same or similar and whose hourly wage rates are different and will move the hourly

rates of pay of those job classifications and positions to the highest among them.

3) Wage adjustments resulting from the wage harmonization shall be

effective as of the date of this award and retroactive to that date for all

current and former employees.

4) In the event of any dispute(s) between the parties arising from the job harmonization process set out above, such dispute(s) will be referred back to this local interest board no later than August 1, 2019.

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Benefit Harmonization

9. CUPE proposes harmonizing to the highest level of entitlement for each insured benefit. The rationale behind harmonizing individual classifications to

the highest rate does not perfectly analogize at the level of individual benefits. Two plans of equal overall value might each contain a very different collection

of specific benefits, reflecting the different historical priorities of the bargaining parties. To cherry pick the costliest benefits from each of the plans

would go beyond ensuring that no employee loses the value of their pre-existing plan. Rather, every employee would end up with a plan that was more

valuable than the plan they started with. The reality is that in collective bargaining, parties often make benefit trade-offs in order to obtain the

improvements that matter the most to employees while containing the cost of the plan within a given envelope. In awarding benefit harmonization, we have

had regard to the principle of replication and total compensation in particular.

10. The hospital proposes moving all employees to the CUPE TSH legacy

plan, a plan which CUPE identifies as overall inferior to its RVHS legacy plan. In the alternative to its primary position, CUPE argues that if a single plan is

to be adopted it should be the RVHS plan, but with orthodontic and emergency travel benefits extended to all employees.

11. Unlike the circumstances at Lakeridge, where the parties had voluntarily

mixed and matched various benefits from the legacy plans, here the parties have not reached any such agreements. The hospital has strongly opposed

any “cherry picking” of benefits, insisting on the adoption of one of the existing plans. From the hospital’s perspective, that plan should be the TSH legacy

plan.

12. In all the circumstances, I find that adopting the terms of the CUPE

RVHS legacy plan represents the closest we can come to replicating what the parties might freely bargain. It appears to be, as CUPE asserts, the overall

superior plan, and therefore would not constitute a loss to the bargaining unit as a whole. While not the particular plan the hospital proposes, the hospital

has consistently asserted its interest in maintaining one of the existing plans. On the basis of the materials before us, I find that we are more likely to

replicate the balancing of interests inherent in choosing which individual entitlements will fill the basket of benefits by adopting a plan that at least

some of the constituent members of the merged hospital and bargaining unit found acceptable, than by substituting our own judgment for that of the

parties.

13. Given that this determination will alter the status quo for a significant number of employees, however, we find it appropriate to delay the

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implementation of these changes so that individual employees will have the ability to adjust to the changes. We also note that nothing in this award is

intended to preclude the parties from voluntarily agreeing to adjust these benefits as they see fit or at an earlier time.

14. For these reasons, order that:

Effective January 1, 2021 the benefit plan shall be harmonized to the CUPE Legacy RVHS plan.

Mobility Between Sites

15. In all the circumstances, I am satisfied that the hospital has established

a demonstrated need for mobility between sites, subject to reasonable limits. Further, as the Hospital argues, the ability to benefit from a reasonable degree

of mobility is among the advantages of the merger, to be balanced against the significant costs. It is unlikely the hospital would agree to both bear those

significant costs and forfeit the benefit of integrating its operations.

We therefore award the Hospital Mobility Between Sites Proposal

Temporary Vacancies/Posting

16. The Hospital proposes Temporary Vacancy language that largely

replicates the existing provision at RVHS, subject to an amendment to better

reflect the current statutory pregnancy/parental leave entitlement. This proposal was also the Union’s opening proposal, and the hospital was prepared

to accept that proposal subject only the minor amendment. CUPE, however, quickly found that its opening proposal was highly contentious amongst its

bargaining committee and it therefore withdrew and amended it. The Union’s current proposal, it asserts, reflects the practice at the other sites, and better

protects employee seniority. In all the circumstances:

We award the Hospital Proposal

17. The terms of the local agreement shall consist of the terms agreed to by the parties, as amended in accordance with this award. Any Union or

Employer proposals that have not been agreed to and are not explicitly addressed by this award are deemed dismissed. We remain seized with

respect to the implementation of our award and in accordance with s.9 of the Hospital Labour Disputes Arbitration Act.

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Dated at Toronto, Ontario, this 26th day of May, 2019

“Eli Gedalof”

______________ Eli A. Gedalof, Chair

“I dissent”

______________ Brian O’Byrne, Employer Nominee

“I dissent in part” _______________


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PARTIAL DISSENT

I agree with the disposition of the wage harmonization issue, where the award adheres to a

long established and pervasive hospital sector norm. However I am unable to agree with the

following other elements of this award.

Benefits

I agree with preferring the RVHS overall benefits plan to the predecessor TSH plan. I note that

elements of the predecessor TSH plan, expressly conflict with the entitlement provided under

the central portion of the collective agreement. However that is not the end of the matter.

There are employees caught by this amalgamation who previously were entitled to important

benefits (e.g orthodontic and out of country coverage) and, while I acknowledge that loss of

coverage will not occur until January 2021, in my view a more appropriate and likely bargaining

compromise would have been to order benefit harmonization at a much earlier date than some

nineteen months following the award, while continuing coverage to the presently insured until

the end of operation of the current collective agreement.

Temporary Vacancies

I would have awarded the union’s proposal in this regard. There is a significant difference in the

role played by seniority in the pre-existing provisions at the predecessor hospitals. In my view,

the normative result would be one which attaches significance to employee seniority rights as

opposed to the result contained in this award, which diminishes those rights.

Finally I note that the RPN adjustment issue, as stated in the main body of the award, is dealt

with in the Local Issues award.

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Dated at Ottawa, this 23rd day of May, 2019.

Joe Herbert

Union Nominee

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IN THE MATTER OF AN INTEREST ARBITRATION

BETWEEN:


(the “Hospital”)

AND

CANADIAN UNION OF PUBLIC EMPLOYEES

(the “Union”)

(Local Issues)

DISSENT

I dissent from the Chair’s decision with respect to wage harmonization as set out on page 4 of the award. In particular, I am completely opposed to the second paragraph of what the Chair awarded with respect to wage harmonization which is as follows:

“The parties will identify job classifications and positions whose core duties, responsibilities and educational requirements are substantially the same or similar and whose hourly wage rates are different and will move the hourly rates of pay of those job classifications and positions to the highest among them.”

What the Chair did was award the Union’s wage harmonization proposal. I dissent because, with respect, the Union’s proposal (and the Chair’s adoption of it) is not sound in principle, is unreasonable and is unworkable.

The Hospital had a far different proposal and I set out below the terms of that proposal as follows:

1. The parties will form a Joint Compensation Steering Committee (“JCSC”) to develop and implement a process to review options on how to integrate five different compensation frameworks into one compensation framework for all jobs in CUPE Local 5852. Then, to develop and implement the most appropriate compensation framework for all bargaining unit jobs no later than <@>. There will be eight representatives appointed by each of the Hospital and the Union (in addition to CUPE National Union Representative(s) and advisors for both parties). Meetings of this committee shall be held during normal working hours. Time spent attending such meetings shall be deemed to be work time for which the representative(s) shall be paid by the Hospital at his or her regular or premium rate as may be applicable.

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2. The compensation analysis will be completed by the JCSC, with the objective of identifying market adjustment, harmonization adjustments and pay equity adjustments that are required.

3. A market analysis will be carried out to compile up to date job data for all job classifications. JCSC will establish a harmonized pay structure which includes a pay equity compliant compensation that includes harmonized wage rates.

4. The priority of the Steering Committee will be to develop compensation objectives for the compensation framework; research options on an integration strategy for the new CUPE Local 5852 compensation framework; develop a project plan with specific timelines and roles and responsibilities; compile up to date job information for all job classes; and carry out the work in step 5 below to develop and implement an updated CUPE pay equity plan that will satisfy the joint responsibility to maintain Pay Equity, as well as the processes used by the JCSC to group jobs for creating a harmonized market adjusted pay structure.

5. The core steps in the process to compile the information needed by the JCSC for appropriate wages rates, pay equity compliant wage rates, and harmonized wages rates will include: administering the CUPE Job Questionnaire to all employees or groups of employees in each CUPE job title; selecting the most appropriate version of the CUPE Job Evaluation Plan; training a Job Evaluation Committee to carry out the evaluation of all jobs; developing of a hierarchy of jobs based on total point score. This information will be used for pay equity compliance and for creating a harmonized pay structure and harmonized wage rates.

6. Further to Step 5, the JCSC recognizes the need for clear, accurate and up to date job information from a common CUPE Job Questionnaire to guide decisions made regarding pay rates. Prior to administering the questionnaire, the JCSC will jointly identify job titles and positions whose core duties, responsibilities and educational requirements are substantially the same or similar. The JCSC will also jointly identify job titles and positions that require a unique job questionnaire. It is recognized by all stakeholders that there are a significant number of job titles where there is a lack of clarity on current duties and are very difficult to group together. This step will be carried out prior to the completion of job questionnaires, and further validated when the incumbents are in the process of completing the questionnaires.

7. The project workplan will be established to complete the information gathering, market comparison and job evaluation process within 3 months or other reasonable timeline agreed to by the parties. A gender-neutral job evaluation committee consisting of equal representatives of CUPE and the hospital will be selected and trained to carry out all job evaluations. The project workplan will be managed by the JCSC.

8. The analysis will be completed by the JCSC, and all pay equity adjustments and harmonization adjustment will be identified.

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9. The wage adjustments resulting from this process shall be effective April 1, 2019.

10. In the event of any dispute(s) between the parties arising from the above- referenced process set out above, such dispute(s) will be referred to an arbitrator agreed to by both parties. For clarity, the arbitrator will have jurisdiction on pay equity, wage harmonization and market comparators

In my view what the Hospital proposed should have been awarded. It was a far more thoughtful, reasonable and practical proposal. This is not a mere matter of having two proposals that were equally weighted and compelling and simply picking the one that was more compelling. The Hospital proposal is supported by logic and policy. The Union proposal adopted by the Chair is not.

In addition to my disagreement with the Chair regarding the wage harmonization issue, I also disagree with his decision that the Benefit Plan for all bargaining unit employees shall be harmonized to the Benefit Plan that currently applies to the employees in the legacy Rouge Valley Health System bargaining unit.

As pointed out by the Chair in paragraph 1 of his award, the integration that has given rise to the issues in this case occurred as a result of an integration order issued by the Minister of Health and Long-Term Care on November 23, 2016 directing that the Birchmount and General Campuses of the Scarborough Hospital merge with the Centenary campus of the Rouge Valley Health System.

As a result of a subsequent May 8, 2018 decision by the Ontario Labour Relations Board, CUPE is now the bargaining agent for a large bargaining unit consisting of six distinct pre-merger groups of employee, namely the CUPE full-time and part-time units from the Scarborough General and Birchmount, the CUPE combined bargaining unit from the Rouge Valley Health System, employees previously covered by an OPSEU collective agreement at Scarborough General and Birchmount, stationary engineers previously represented by UNIFOR and various other employees who were previously not represented by a Union at one site or the other. This new post-merger bargaining unit consists of approximately 2,100 employees.

For purposes of the analysis that follows, I think it is also important to note that the integration in question is deemed to be a “sale of a business” under the Ontario Pay Equity Act, such that a pay equity plan for the new bargaining unit will have to be developed, ensuring that the job rates of all female job classes are not lower than the job rates of male job classes of equal or comparable value.

We received a very comprehensive written arbitration brief from Mr. Bass for the Hospital setting out all of the classifications covered by the new bargaining unit and listing what prior bargaining unit each classification came from and what wage rate was being paid to the classification. It is noteworthy that the wage rates for jobs which, at first blush, might appear to be similar based on their titles are, in fact, different (in some cases significantly different), based on which bargaining unit the classification was in. There is obviously going to be a lot of work required to

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determine what exactly the duties and responsibilities are of all of the jobs; how they should be evaluated for pay equity purposes; what the titles of the jobs should be; what the market rates are for these jobs; how pay equity will be achieved and maintained for all the jobs; what wage rates should be paid to the different classifications and, perhaps most important from a bargaining/interest arbitration perspective, how much will all of this cost. These are just some of the matters that must be dealt with.

I said above that the Hospital’s proposal was thoughtful, reasonable and practical. When one looks at the specific tasks that the Committee has to perform and the information they need to compile, it can be seen that the Hospital was adopting a very thorough approach to coming up with a solution that was reasonable, fair and cost effective for all stakeholders, and which satisfied the statutory obligations imposed by the Pay Equity Act. These are the principles we are supposed to be relying on as an interest arbitration panel. The Union proposal adopted by the Chair does not meet any of these objectives or standards.

One of the key things that impressed me about the Hospital’s proposal was that it was going to do a lot of study to fully understand all of the jobs and the different compensation issues, including pay equity, that presented themselves. Only after all that information was compiled and various options were set forth would a decision be made on what the new wage rates would be. It is unreasonable to simply “skip” that step, as the Union and the Chair have done.

By contrast, the Union’s proposal, which the Chair has adopted, simply says that where the core duties, responsibilities and educational requirements are substantially the same or similar amongst different jobs, and where the hourly wage rates for these jobs are different, they will move to the hourly rate of pay that is the highest among them. Under the Union’s proposal, pay equity considerations are irrelevant; cost is irrelevant and external market comparators are also irrelevant. All of those considerations, however, would absolutely be relevant in free collective bargaining, which the interest arbitration process is required to replicate. It is difficult, if not impossible, to imagine parties who could bargain to impasse (and who would have the recourse of a strike or lockout) agreeing to these terms; the Award therefore by definition cannot be reasonable or in keeping with the guiding principles of interest arbitration.

The Chair is correct that there are a number of arbitration awards in the Hospital sector providing for post-merger harmonization of wages to the higher rate. Those awards, however, other than telling you the outcome, provide little to no analysis as to how the decision was arrived at and what factors the arbitrator took into account in fashioning his or her award. Following those awards and allowing them to dictate the result in this case without a close analysis of the distinct and challenging factual context facing these particular parties creates a result that cannot be justified by reason or principle. Allow me to elaborate on that point:

The fact that the Union can point to other awards with similar outcomes, is no reason to simply follow those awards. In a 1981 interest arbitration award involving 65 Participating Hospitals and CUPE, Professor Paul Weiler made the following comments:

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“For arbitrators to religiously follow precedents within that sector would be a rather incestuous reasoning process since these precedents are themselves fashioned by arbitrators, or by negotiators who are anticipating what an arbitrator might do to them. Thus the parameters of change in the Hospital system as a whole must be drawn from and be compatible with the external world of collective bargaining in the province.”

Just because there are a number of earlier awards where the arbitrator decided, on the facts before him or her, that it was appropriate to provide for wage harmonization to the higher rate, does not mean that a subsequent Board such as this Board, has to blindly follow that approach. Each case must be looked at on its own individual facts. The extent of integration, the degree of similarity of jobs, the degree of wage similarities, the extent to which pay equity may or may not be impacted, are all variables that would factor into the analysis in each of those cases.

This Board has the responsibility to fashion an outcome that replicates what this Hospital and this bargaining agent would have likely agreed to in free collective bargaining, having regard to their individual circumstances – not what other parties may have done or had forced upon them. In this case, the Chair has simply accepted that there is a “well-established pattern in the hospital sector of post-merger harmonization of wages to the higher rate” and concluded that this Hospital would have therefore, simply agreed to follow suit – notwithstanding the clear arguments advanced as to why it certainly would not have. The Chair also does not explain why he concludes that the Hospital would have followed suit and why the Hospital’s careful arguments were rejected.

Certainly, it is appropriate to have regard to prior awards but it is also very important and necessary to follow the criteria spelled out in the Hospital Labour Disputes Arbitration Act when deciding issues in the Hospital sector as well as the well-recognized principle of replication, i.e. that arbitrators determine what would be the likely result if the parties were in a strike lock-out environment as opposed to an environment where the arbitrator makes the decision for them.

The HLDAA criteria make it abundantly clear that interest arbitrators are to pay particular attention to the financial impact of their awards on the Hospital appearing before him or her. In this case, given the steps that necessarily have yet to be taken by these parties, this Board does not have an accurate picture of the financial impacts of its award. Not only does this run contrary to HLDAA, it is entirely inconsistent with the replication principle.

In an arbitration award involving Dana Manor and SEIU, in 1994, Arbitrator Joseph Samuels made the following comments:

“Our task is to establish the terms which would have been agreed had the parties been able to resort to free collective bargaining. By legislation, the parties have been prohibited from striking or locking out and, therefore, if the parties are unable to agree on the terms of their collective agreement, the disputed matters must be decided by arbitration. Virtually all arbitrators have agreed that, in the circumstances, our central focus it to produce the terms which would have

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resulted from an unfettered bargaining process. The purpose of the arbitration is to avoid a work stoppage in an essential industry, not to produce a collective agreement bereft of labour market realities.”

The replication principle obliged this Board to ask itself, whether the parties, had they been able to engage in free collective bargaining with the right to strike or lock out, would agree to significant wage increases, to the highest wage rate, where the total financial impact to the Hospital would be impossible to calculate because of steps that have yet to be undertaken: steps to determine jobs that are comparable and then to undertake the statutorily required pay equity analysis. The answer to that question would be a resounding “no”.

We were told by the Employer that its best estimate of what the cost would be for wage harmonization if the Union’s proposal were to be awarded, would be somewhere in the neighbourhood of four million dollars ($4,000,0000). The true cost to the Hospital of wage harmonization, however, is simply unknown because the pay equity implications, caused by harmonizing potential male comparators to the highest wage rate, have yet to be determined.

The Chair sets out at paragraph 5 of the award the various arguments that the Hospital made as to why the approach urged by CUPE (and which he, the Chair accepted) would be improper. The arguments of the Hospital essentially were that the principles of interest arbitration, most especially replication but also total compensation as well as the criteria set out in the Hospital Labour Disputes Arbitration Act, do not support the proposal that CUPE put forward. It was also rather telling that the Hospital led evidence as to its poor ratio of assets to liabilities in comparison to other comparable Hospitals and commented on the potential impact on Hospital programs of the wage harmonization costs that CUPE was advocating for.

At paragraph 8 of his award, the Chair said that he has reviewed and carefully considered the submissions and materials presented by the parties and was satisfied that it was appropriate to replicate what he considered to be the established approach to post merger wage harmonization in this case. Notwithstanding what is stated at paragraph 8, it is my respectful view that the Chair focussed almost entirely on what the precedents were (even though none of them are binding on him) and failed to look at the governing principles of interest arbitration, namely total compensation as well as the criteria set out in the Hospital Labour Disputes Arbitration Act. By focussing almost entirely on the arbitral precedents, the Chair failed to exercise his jurisdiction in a reasonable manner and, in fact, exceeded his jurisdiction .

As a result, the simplistic approach of the Union - harmonize to the highest rate - was accepted and the thoughtful and careful approach proposed by the Hospital was rejected.

One of the arguments that the Hospital made (in fact it was one of their main arguments) was that it would be a violation of the Pay Equity Act for an interest arbitration board to award an increase to a classification which could ultimately be a pay equity male comparator for other female job classes. In other words, if the Board, for example, awarded a $2.00 per hour increase to a pay equity male comparator job but did not award a similar $2.00 per hour increase to the

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female job classes tied to that pay equity comparator, , then that would create a pay equity wage gap and be a violation of the Pay Equity legislation. In my view, that was a compelling argument.

The relevant section of the Pay Equity Act is section 7(2) which provides as follows:

“No employer or bargaining agent shall bargain for or agree to compensation practices that, if adopted, would cause a contravention of subsection (1).

Subsection (1) reads as follows:

“Every employer shall establish and maintain compensation practices that provide for pay equity in every establishment of the Employer.”

I agree with Mr. Bass that we as a Board, do not have authority to make an award that would cause a contravention of subsection (1) of section 7 of the Pay Equity Act. Even though the section refers to an employer or bargaining agent not bargaining for or agreeing to compensation practices, that, if adopted would cause a contravention of subsection (1), surely, in a sector where free collective bargaining is replaced by interest arbitration, when the parties cannot agree on the terms of their new collective agreement, an arbitrator or arbitration board should be bound by the same law.

In my view, our Board has no jurisdiction to award something that would cause a contravention of subsection (1) of section 7 of the Pay Equity Act.

While the London and District Service Workers, Local 220 and Womens Christian Association case of the Court of Appeal that is referred to in paragraph 60 of the Local Issues award is not directly on point (since it involves the Social Contract Act and not the Pay Equity Act), I view the principles that are set out in that case as having equal application in this case. The basic principle is that arbitrators are not above the law. They have to follow the law just as unions and employers have to follow the law and when the Pay Equity Act says that an employer and a bargaining agent cannot bargain for or agree to compensation practices that, if adopted would cause a contravention of subsection (1) of section 7 of the Pay Equity Act, so also must an Arbitration Board not do anything in terms of awarding compensation that would cause a contravention of subsection (1) of section 7 of the Pay Equity Act.

Given the fact that the Chair’s award of harmonization to the higher rate will invariably result in some male jobs getting wage adjustments that the female job classes who have these male jobs as their comparators for pay equity purposes will not get, there is clearly a violation of section 7(1) of the Pay Equity Act.

But even if the Chair did not accept the argument advanced by the Hospital, the fact remains that in failing to give recognition to the unknown, unquantifiable but real costs implications that will result from harmonizing to the highest wage rate, the Chair has completely ignored the governing

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principles of interest arbitration and has saddled the Hospital with costs that it would never have agreed to incur had it been negotiating in a strike/lock out environment.

Accordingly, for all of the foregoing reasons, it is my view that the Chair’s award on wage harmonization is wrong in principle, unreasonable and unjustified; and the approach and proposal put forward by the Hospital should have been awarded.

I am also dissenting with respect to the Chair’s decision to award the Benefit Plan from the legacy Rouge Valley Health System collective agreement as the new Benefit Plan for everyone in the bargaining unit, effective January, 2021. I am pleased that the Chair awarded that the Plan going forward would be one of the existing Plans rather than cherry-picking the best provisions from all of the Plans. However, in my view, the Scarborough Birchmount Plan was the more appropriate Plan to award and I would have awarded it.

26 May, 2019 Brian O’Byrne

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In the Matter of an Interest Arbitration Under the Hospital Labour Disputes Arbitration Act

Between:


(The “Union”)

AND



(Wage Harmonization)

BEFORE:

Eli A. Gedalof, Chair

Brian O’Byrne, Hospital Nominee Joe Herbert, Union Nominee

APPEARANCES: By teleconference and written submissions

For the Union

Lindsay Lawrence, Goldblatt Partners LLP

Nadine Blum, Goldblatt Partners LLP

For the Hospital

Robert J. Bass, Bass Associates Professional Corporation

AWARD

INTRODUCTION

1. This Board of Arbitration was appointed to determine the local issues

between CUPE and the Participating Hospitals, including the Union and the Hospital, for the 2017-2021 round of collective bargaining. The bulk of the

issues between the parties were addressed in our May 26, 2019 award applicable to the participating hospitals and local unions (the Local Issues

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Award”) and in our May 26, 2019 award dealing specifically with these parties (the “SHN Award”). This award addresses the outstanding job matching

disputes between the parties arising from the harmonization of wages between the hospitals that merged to create the Scarborough Health Network

(“SHN”). The background to this dispute is summarized at the outset of the SHN Award as follows (at para. 1):

On November 23, 2016, the Minister of Health and Long-Term Care issued an integration order directing that the Birchmount and General campuses of The Scarborough Hospital merge with the Centenary campus of Rouge

Valley Health System. The merged hospital is now called “Scarborough Health Network”. The hospital filed a Public Sector Labour Relations

Transition Act, 1997 (“PSLRTA”) application, and following a May 8, 2018 decision of the Ontario Labour Relations Board, CUPE now represents a bargaining unit consisting of 6 distinct pre-merger groups of employees,

including the CUPE Full-Time and Part-Time units from Scarborough General and Birchmount, the CUPE combined bargaining unit from Rouge

Valley Health Systems, employees previously covered by an OPSEU collective agreement at Scarborough General and Birchmount, stationary engineers previously represented by UNIFOR, and various employees who

were previously unrepresented at one site or the other. This new post-merger bargaining unit contains approximately 2,100 employees.

Although the parties were able to agree on a number of terms for the post-merger collective agreement, the following issues remain outstanding: i) Wage Harmonization; ii) Insured Benefits Harmonization;

iii) Emergency Vacation Leave; iv) Mobility; v) RPN Wage Adjustment; vi) Porter Wage Adjustment; and vii) Temporary Vacancies/Posting.

2. In addressing the first issue, Wage Harmonization, and for the reasons

set out in the SHN award, we ordered as follows:

Wage Harmonization 1) The Parties will form a Joint Job Harmonization Committee (“JJHC”) to review bargaining unit jobs. There will be eight representatives appointed

by each of the Hospital and the Union (in addition to CUPE National Representative(s) and advisors for both parties). Each party shall appoint

a co-chair for the JJHC. Meetings of this committee shall be held during normal working hours. Time spent attending such meetings shall be deemed to be work time for which the representative(s) shall be paid by

the Hospital at his or her regular or premium rate as may be applicable. 2) The parties will identify job classifications and positions whose core duties, responsibilities and educational requirements are substantially the same or similar and whose hourly wage rates are different and will move

the hourly rates of pay of those job classifications and positions to the highest among them.

https://www.canlii.org/en/on/laws/stat/so-1997-c-21-sch-b/latest/so-1997-c-21-sch-b.html



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3) Wage adjustments resulting from the wage harmonization shall be

effective as of the date of this award and retroactive to that date for all current and former employees. 4) In the event of any dispute(s) between the parties arising from the job harmonization process set out above, such dispute(s) will be referred back

to this local interest board no later than August 1, 2019.

3. The parties engaged in the job matching process as directed and were

able to agree on a number of matches between positions at the legacy Rouge Valley and Scarborough sites. However, at the conclusion of the process there

remained a number of positions in dispute, and these were referred back to this Board for arbitration. Initially, there were also several ancillary and

procedural disputes between the parties, related in part to the fact that there is an outstanding judicial review proceeding with respect to our decision to

order wage harmonization to the higher rate. However, the parties were ultimately able to agree on a process for arbitrating the outstanding job match

disputes and for implementing wage harmonization dependant on the outcome of these various proceedings. With respect to the issues addressed in this

award, the parties agreed to file written submissions on their proposed

matches, and to have these disputes decided on the basis of those submissions without an oral hearing. The parties have now made those

submissions, together with supporting materials consisting of job descriptions and postings and related materials such as job analysis or evaluation

questionnaires. We have reviewed all of this material in reaching our decision here.

ARGUMENT AND ANALYSIS

The Union’s Argument

4. In support of its position on the various matches, the Union emphasises that in accordance with the SHN Award, jobs at the legacy sites need not be

“identical” to constitute a match. Rather, we ordered harmonization to the

higher rate where “core duties, responsibilities and educational requirements are substantially the same or similar” [emphasis added]. According to the

Union, given the similarity in operations across hospitals, it is likely that the core functions carried out by a position at one hospital will be carried by a

corollary position at another. While the Union allows that there can be some variation, it maintains that it would be unusual if there were a wide variation

across sites, and that one would expect to see at least some matches across every facet of the functions performed. The Union argues that in the matching

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process the Employer has agreed to only those matches where the positions are “identical” or “virtually indistinguishable”. According to the Union, many

of the positions in dispute are former OPSEU clerical positions where the only meaningful distinction is that the OPSEU rates were significantly lower than

the corresponding CUPE rates. There is no reason to believe, argues the Union, that there was anything qualitatively different about the clerical functions

performed at the respective hospitals.

The Hospital’s Argument

5. In support of its position, the Hospital emphasises the limited nature of this Board’s role in this dispute, which follows from the limited nature of the

task set by this Board for the Job Matching Committee. In particular, the Committee was required to identify only those job classifications and positions

whose “core duties, responsibilities and educational requirements are

substantially the same or similar and whose hourly rates are different”. It is only where these criteria are met that the Hospital was required to move the

hourly rates to the highest among the matched positions. What the committee was not tasked to do, argues the Hospital, was to reorganize the hospital,

collapse positions within a given site, or consider wage rates and where a job ranks in comparison to any others, unless there was a specific job match.

6. The Hospital argues that while the legacy hospitals may have provided

the same services to the public, they operated entirely independently of each other and allocated the roles associated with those services differently

amongst the various classifications. In addition to identifying differences between the allocation of responsibilities, the Hospital also argues that where

there are differences between the educational requirements amongst positions, they cannot be a match. Further, the Hospital maintains that it

would be inappropriate to order a match where a classification under a legacy

agreement is vacant and there are no incumbents or plans to hire into that classification.

Reply

7. In reply, the Union argues that the Hospital has misapplied the

“substantially the same or similar” standard in rejecting matches unless there is a perfect overlap in duties, responsibilities and educational requirements.

The Union further argues that it would not be appropriate to reject a match based on the absence of an incumbent in the higher paying position. The

existence of the classification under the legacy collective agreement means that while the Hospital may elect not to hire into the position, if it does so hire

it is required to pay the higher rate. Further, the Union maintains that in the job matching process, the Hospital did in fact agree to match to positions

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where there was no incumbent, and points to the Cook (TSH) and Culinary Specialist (RVHS) match as an example. The Hospital took issue with this last

point, asserting that there was in fact an incumbent in the Culinary Specialist position. The Hospital filed a sur-reply identifying this and what it described

as other “Factual Inaccuracies of CUPE’s reply”. CUPE in turn objected to this document as falling outside the process agreed to by the parties. We have

reviewed all of the materials, and where the sur-reply is made in response to factual assertions that first arose in CUPE’s reply, we find that it is appropriate

to consider those materials together with all of the other submissions and have done so.

Analysis

8. Each party emphasises a different aspect of the task to be carried out

by this Board, and there is merit in both parties’ position.

9. The Hospital is correct that this Board’s function is limited to settling the

dispute that could not be resolved by the Committee. It is not, as the Hospital argues, our function to reorganize the hospital, impose some general

obligation to compress classifications, or to conduct our own job evaluation process having regard to the relationships between the classifications in a

broad sense. As set out in the SHN Award, we rejected a broad evaluative approach to wage harmonization on the basis of the principle of replication,

and the manner in which we found that parties in the hospital sector have consistently resolved this issue. Thus, it is only where “core duties,

responsibilities and educational requirements are substantially the same or similar” that we should order a match and require harmonization to the higher

rate. This exercise is to be distinguished from one of identifying positions of equal value in a broader sense, and must instead focus on the specific duties,

responsibilities and educational requirements of the positions in dispute.

10. The Union is equally correct, however, that the standard adopted for

finding a match is not perfection. First, the standard identifies “core” duties, responsibilities and educational requirements. Thus, variations in duties,

responsibilities and educational requirements that are not central to the position will not preclude finding a match. Further, these factors must be

“substantially” the same or similar. Thus, minor or otherwise non-substantial differences between the duties, responsibilities and educational requirements

will also not preclude finding a match. Finally, the standard contains a disjunctive reference to “same or similar”, allowing that where there are

identifiable differences between core duties, responsibilities and educational requirements, there may still be a match if they are substantially similar.

Nonetheless, in allowing for some flexibility in comparing positions, it is important to remember that the task is not to identify positions that are of

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similar value, but rather to focus on the specific features of the positions in issue.

11. There are several instances where the Union has proposed to match an

occupied position to an empty classification in which there are no incumbents. In each instance, the position was essentially eliminated by the legacy hospital

but the classification remains listed in the legacy collective agreement. The Hospital argues that where there are no incumbents in a position, it would be

inappropriate per se to order a match with that position. The Union argues that so long as two classifications that meet the job matching standard exist

in the collective agreement, it is necessary to harmonize the wage rates since the Hospital could someday hire into that classification. In our view the issue

is not so clear cut as either party suggests.

12. We would not rule out the possibility of ordering a match simply because

there happens to be no incumbent in a position at the time the matching process is being carried out. However, it is also the case that in circumstances

where a position has been long vacant and the work has been eliminated or redistributed to other positions, the labour relations purpose underlying wage

harmonization—to ensure that two groups of employees are not working for the same employer performing the same job for a different wage—does not

appear to be immediately at issue. In such circumstances, to order a match begins to look less like harmonizing classifications and more like simply

ordering a wage increase for a single classification. Further, as a practical matter, it is also clear upon reviewing the materials before us that where a

position has been vacant for a significant period of time and the work of that position has been eliminated or distributed to other classifications, the

evidence is simply less likely to provide a compelling basis for finding that the match standard has been met. On the facts before us, and for reasons further

addressed below, we find that the evidence simply does not establish a

compelling basis for ordering a match to classifications with no incumbents.

13. With these principles in mind, we turn to the individual matches in dispute.

THE PROPOSED MATCHES

1. Material Handler (RVHS) and Supplies and Services Assistant (TSH)

14. The Union proposes to match the RVHS Material Handler position with the TSH Supplies and Services Assistant position. The Hospital opposes the

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match on the grounds that the Material Handler role straddles multiple positions at TSH.

15. Upon review of all of the materials filed we find that while there are

minor differences in the manner in which the duties of the positions are described, and while the responsibilities of the RVHS Material Handler may

overlap with more than one role at TSH, the core duties and responsibilities of the proposed match are at least substantially similar, and the educational

requirements are the same.

16. We therefore order a match between the Material Handler (RVHS) and Supplies and Services Assistant (TSH) positions.

2. Customer Service Representative (RVHS) and Facilities Support Technician

(TSH)

17. The Union proposes to match the RVHS Customer Service

Representative to the TSH Facilities Support Technician. The Hospital opposes the match on the grounds that TSH has eliminated this position and there has

been no incumbent in the role since 2017. It also opposes the match on the grounds that the Facilities Support Technician, when it was filled, used to work

closely with the Facilities Supervisor to investigate and solve more complex problems than is required of the Customer Service Representative. Further,

the position required the completion of a materials management course that is not required of the Customer Service Representative.

18. Having carefully reviewed the parties’ materials, we are satisfied that

while the information concerning the Facilities Support Technician is limited,

the job description and educational requirements are consistent with the Hospital’s assertion that the Facilities Support Technician included

substantially higher-level functions than the Customer Service Representative. In the absence of any further information, we cannot find that

the core duties, responsibilities and educational requirements of the proposed matches are substantially the same or similar.

19. We therefore decline to order a match.

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3. Patient Support Representative (RVHS) and Patient Service Associate

20. The Union proposes a match between the RVHS Patient Support

Representative and the TSH Patient Service Associate. The Hospital opposes the match on the grounds that the Patient Service Associate job was

eliminated in 2011, and there has not been an incumbent in the position since that time. The Hospital further relies on the fact that the Patient Support

Representative requires a Personal Support Worker Certificate whereas the Patient Service Associate does not, and points to differing responsibilities with

respect to patient care. The Union disputes that the PSW certificate is an essential requirement of the job, citing past examples of members of the

bargaining unit in the position without certificates. The Hospital acknowledges that there are incumbents in the role that were previously grandfathered into

the position without a PSW certificate, but maintains that the certificate is a

requirement without which both internal and external candidates will not be considered for the role.

21. While there are clearly areas of overlap between the duties as described

in the job descriptions, we are satisfied that the differing educational requirements and the differing focus on patient care constitute substantial

differences between the positions. The absence of any concrete evidence to the contrary is not surprising given that the Patient Service Associate position

has been vacant since 2011, but it nonetheless compels us to accept the Hospital’s position.


4. Nutrition Services Representative (RVHS) and Dietary Helper 1 or Dietary

Helper General (TSH)

23. The Union’s primary position is that the RVHS Nutrition Services

Representative position matches with the TSH Dietary Helper 1 position. Strictly in the alternative, it proposes a match between the Nutritional Services

Representative and the Dietary Helper General. The Hospital opposes a match on the grounds that the Nutrition Services Representative Role encompasses

both of the TSH positions, and it is not our function to reorganize the classifications. It also relies upon differences in the stated educational

requirements.

24. Having carefully reviewed the materials, we are satisfied that the core duties and responsibilities and educational requirements of the RVHS

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Nutritional Services Representative and the TSH Dietary Helper 1 are substantially similar. While the stated formal educational requirements differ

(grade 10 versus high school diploma), these are minimal educational requirements reflective of entry level positions and the substantive knowledge

requirements are substantially similar. Further, in matching these positions we are not collapsing existing positions, as suggested by the Hospital. Rather,

we are simply matching one existing position with another on the basis of the “substantially the same or similar” standard. The Dietary Helper General

position focusses on dishroom functions. It is true that these functions are also encompassed by the Nutritional Services Representative. But they are

not the main focus of the position, just as they are encompassed but not the main focus of the Dietary Helper 1 position. The fact that the Nutritional

Services Representative overlaps with the Dietary Helper General position in some respects does not detract from the fact that it is substantially similar to

the Dietary Helper 1 position.

25. We therefore order a match between Nutrition Services Representative

(RVHS) and Dietary Helper 1 (TSH)

5. Resource Centre Diet Clerk (RVHS) and Menu Clerk 4 (TSH)

26. The Union proposes to match the RVHS Resource Centre Diet Clerk with the TSH Menu Clerk 4. The Hospital opposes the match on the basis of differing

educational requirements and duties.

27. The Resource Centre Diet Clark position requires a two-year college degree, whereas the Menu Clerk 4 position requires only grade 12. Further,

while there are overlapping duties between the positions, the Resource Centre

Diet Clerk is responsible for specialty menu orders and complex dietary plans, which is not within the core duties of the Menu Clerk 4. The core duties,

responsibilities and educational requirements are therefore not substantially the same or similar.


6. Secretarial Matches

29. The Union proposes three different secretarial matches:

i) Sr. Medical Secretary (RVHS) to Secretary 5 (TSH);

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ii) Secretary III (RVHS) to Secretary 4 (TSH); and iii) Secretary II (RVHS) to Secretary 2 (TSH).

30. In the strict alternative the Union proposes that the Sr. Medical

Secretary and Secretary 2 (which has no incumbents) positions have no match, and that the RVHS Secretary III position be matched with TSH

Secretary 5 and the RVHS Secretary II position be matched with the TSH Secretary 4 position. The Hospital opposes any match.

31. Having carefully reviewed the materials we find that there are

substantial differences between the Union’s proposed matches, and that neither the RVHS Sr. Medical Secretary nor the TSH Secretary 2 positions have

a match. Neither do we accept the Union’s alternate position. However, on the basis of the materials before us, we are satisfied that the RVHS Secretary III

position should be matched to the TSH Secretary 5 position, and the RVHS

Secretary II position should be matched to the TSH Secretary 4. In the case of both matches, the core duties and responsibilities and the educational

requirements are substantially the same or similar.

32. We therefore order matches between:

i) Secretary II (RVHS) and Secretary 4 (TSH); and ii) Secretary III (RVHS) and Secretary 5 (TSH).

We decline to order any further matches.

7. Unit Clerk Matches

33. The Union proposes two Unit Clerk matches:

i) Unit Clerk (RVHS) and Unit Clerk 4 (TSH); and ii) Unit Clerk II (RVHS) and Unit Clerk 5 (TSH)

34. The Hospital opposes any match. In the strict alternative, both parties

propose to match the RVHS Unit Clerk II to the TSH Unit Clerk 4, and to leave the RVHS Unit Clerk and TSH Unit Clerk 5 positions unmatched.

35. There is almost no information available with respect to the RVHS Unit

Clerk position, which has only 1 full time and 2 part time incumbents. The position may be unique. Certainly there is no basis upon which we could

conclude that it is a match for the Unit Clerk 4 position at TSH, and we accept the Hospital’s argument that it is not our role under the job match process to

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impose our own view of what a reorganized classification structure should look like.

36. Assessing the remaining potential matches between the RVHS Unit Clerk

II position and the Unit Clerk 4 or 5 positions at TSH is more challenging. At least as set out in the job descriptions, the educational and experiential

requirements for all three positions are essentially the same. Further, both the Unit Clerk 4 and Unit Clerk 5 job postings provided in the materials contain

essentially the same summary of the duties and responsibilities, both of which are substantially similar to the duties and responsibilities described in the

RVHS Unit Clerk II position. Clearly, the Unit Clerk II position is a match to one or the other. On balance, we accept that the better match is between the

RVHS Unit Clerk II and TSH Unit Clerk 5 position.

37. As the Union has argued, it will in most cases be true that the work that

must be performed at one hospital will also need to be performed at the other. It is of course also true, as the Hospital has argued, that different hospitals

may choose to distribute that work in different ways amongst diverse classifications. But this is not a case where the Unit Clerk II position appears

to be a hybrid of the Unit Clerk 4 and 5 positions, such that there are substantial differences between the Unit Clerk II position, on the one hand,

and either of the Unit Clerk 4 or 5 positions on the other. Rather, on the face of the materials before us it appears to match each of the possible

comparators individually. As the Hospital argues, it is not our role to collapse the Clerk 4 and 5 positions and we do not suggest that such a course would

be appropriate in any event. What we can conclude, however, is that whatever higher level functions were performed by the Unit Clerk 5 position at TSH,

they are likely performed by the Unit Clerk II position at RVHS. The substantially similar job descriptions in the absence of any evidence to the

contrary support this conclusion. Further, those features would necessarily be

core to both the Unit Clerk 5 and Unit Clerk II positions. On balance, we therefore conclude that the duties and responsibilities of the two positions are

substantially the same or similar.

38. We therefore order a match between the RVHS Unit Clerk II and the TSH Unit Clerk 5. We do not order a match for the RVHS Unit Clerk and TSH

Unit Clerk 4 positions.

8. Chart Management Specialist (RVHS) and Health Records Clerk 5 (TSH)

39. The Union proposes to match the RVHS Chart Management Specialist with the TSH Health Records Clerk 5. The Employer opposes the match,

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primary on the grounds that the Chart Management Specialist position requires the completion of a Canadian Health Information Management

Association recognize HIM program and CHIM certification. The Health Records Clerk 5 position requires a high school diploma or equivalent.

40. Having regard to the certification requirements set out in the Hospital’s

materials, including the description of George Brown College’s programme learning outcomes and standards, we are satisfied the educational

requirements for the positions are not substantially the same or similar.


9. Clerk 2-Health Records (RVHS) and Health Records Clerk 4 (TSH)

42. The Union proposes to match the RVHS Health Records position to the

TSH Health Records Clerk 4 position and asserts that there are three casual employees in the Health Records position performing substantially the same

work as the Health Records Clerk 4 position. There is no job description for the Clerk 2-Health Records position.

43. The Hospital opposes the match on the grounds that the Clerk 2 position

was effectively eliminated, has been essentially vacant since 2013, and there is no job description or basis for matching it to the Health Records Clerk 4

position. The Hospital explains that in 2014, RVHS created the Chart Management Specialist position addressed above. This position encompassed

the role previously carried out by the Clerk 2 position, but required completion of the HIM education and CHIM Certification. Incumbents who obtained the

certification were reclassified. The three incumbents relied upon by the Union

did not obtain the certification, were not reclassified as Chart Management Specialists, and therefore have not worked since 2013.

44. There is no basis in the materials before us upon which we could

conclude that the core duties, responsibilities and educational requirements of these positions are substantially the same or similar.


10. Printer (RVHS) and Printing Services Operator (TSH)

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46. There has been no incumbent in the Printer position since 2011 and neither party has been able to provide a description of that position. There is

no substantial basis upon which we could match the core duties, responsibilities and educational requirements of these positions. We therefore

decline to order a match.

CONCLUSION

47. We remain seized in accordance with s.9 of the Hospital Labour Disputes Arbitration Act.

Dated at Toronto, Ontario, this 9th day of April 2020

“Eli Gedalof”

_________________ Eli A. Gedalof, Chair

“I dissent in part”

_________________ Joe Herbert, Union Nominee

“I dissent in part”

_________________ Brian O’Byrne, Hospital Nominee

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BETWEEN:



AND


(the “Union”)

(Local Issues)

BEFORE:

Eli A. Gedalof, Chair Brian O’Byrne, Hospitals Nominee


Argued by Written Submission: Hospital submission filed on August 26,

2020; Union submission filed on September 9, 2020

AWARD

INTRODUCTION

1. On May 26, 2019 this board of arbitration issued an award in

Scarborough Health Network, 2019 CanLII 58078 (ON LA) (the “SHN Award”) that, together with an award settling local issues for a number of CUPE

represented bargaining units in the hospital sector in Participating Hospitals and Canadian Union of Public Employees, 2019 CanLII 58060 (ON LA) (the

“Participating Hospitals Award”), settled the terms of the local collective agreement between the parties for the term September 29, 2017 to

September 28, 2021. The collective agreement in issue was to be the first

collective agreement between the parties following the merger of the

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Birchmount and General campuses of The Scarborough Hospital with the Centenary campus of Rouge Valley Health System.

2. The SHN Award addressed several outstanding issues between the

parties, including proposals dealing with wage harmonization, insured benefit harmonization, emergency vacation leave, mobility, temporary

vacancies/posting, and a porter wage adjustment proposal. The Hospital was also a participating hospital under the Participating Hospitals Award and

subject to the terms of that award which addressed, among numerous other issues, a Union proposal for an RPN wage adjustment at the Hospital, and in

which the board also addressed a pay equity argument brought by the Hospital.

3. Following the release of the SHN Award, the Hospital sought judicial

review with respect to only the wage harmonization part of our award. By

decision dated July 22, 2020 in Scarborough Health Network v. Canadian Union of Public Employees, Local 2852, 2020 ONSC (Div. Ct.), the Divisional

Court quashed the wage harmonization aspect of the SHN Award on the grounds that the reasons in the award did not meet the minimum standards

of “justification, intelligibility and transparency”. As a remedy, the Divisional Court returned “the issue of the harmonization of wages” to this Board. In

accordance with the Divisional Court’s direction, this Award determines the wage harmonization issue that has been returned to us and provides

comprehensive reasons for the decision that we have reached.

4. One other development that bears mentioning by way of introduction, is that pending receipt of the Divisional Court’s decision, the parties agreed to

engage in a process of job matching for the purpose of wage harmonization. Through that process, the parties reached agreement on some 24 matches

and remitted the remaining proposed matches in dispute to this board for

determination. By decision dated April 9, 2020 in Canadian Union of Public Employees, Local 5852 v Scarborough Health Network, 2020 CanLII 26861

(ON LA) (the “Job Match Award”), we ordered 5 additional matches and declined to order 8 further proposed matches. As will become apparent below,

the conclusion of the matching process is significant to both the process the parties have agreed to for arguing the wage harmonization issue as returned

to us by the Divisional Court, and to addressing the substance of the parties’ arguments.

5. In returning the wage harmonization issue to this Board, the parties

agreed to the following process:

1) the employer will, within 3 weeks of this agreement, file submissions restricted to costings of upward wage harmonization based on the agreed

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matches, reference to the relevant sections of the employer’s Brief or Exhibits where the Board should place the job matches in context, and

possibly a planned timetable for Pay Equity determination. However, there will be no additional submissions beyond these costings, and with respect

to legal submissions, it is agreed that beyond the costing data (and any reply to that data as provided for under paragraph 2 below), the parties will rely only on the written briefs and oral submissions previously made,

and will make no further legal submissions including regarding ability to pay or otherwise;

2) the union will file written submissions within 2 weeks after the employer’s submissions are received, and these submissions will be

responsive only to the employer’s costings as provided for in paragraph 2 including any submissions the union may make as to the admissibility or

weight to be given to those costings; 3) the parties agree that there will be no oral hearing before the board of

arbitration, subject to the right of the board itself to request oral submissions.

6. The Union did not ultimately object to the admissibility of the Hospital’s costings, but rather relied on those costings as further support for its own

arguments.

7. The record before us therefore consists of the argument and supporting documents and authorities relied upon by the parties in the original hearing in

this matter, together with the further written materials filed by the parties in

accordance with the agreement set out above, in addition to the Participating Hospital and Job Match Awards, neither of which have been subject to judicial

review. Having considered all of these materials, we remain of the view that the appropriate outcome in this case is upward wage harmonization. What

follows are the reasons for this conclusion, having regard to the parties’ original submissions, and in light of the supplementary materials and

argument before us now.

THE WAGE HARMONIZATION PROPOSALS

8. In order to ground the parties’ arguments and my analysis, it is useful to set out the parties’ specific proposals, and to identify the significant features

of those proposals.

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9. The Hospital’s proposal, as set out in its initial brief, reads:

CUPE COMPENSATION, SALARY STRUCTURE DEVELOPMENT AND WAGE HARMONIZATION

1) The parties will form a Joint Compensation Steering Committee (“JCSC”) to develop and implement a process to review options on how to integrate 5 different compensation frameworks into one compensation

framework for all jobs in CUPE Local 5852. Then, to develop and implement the most appropriate compensation framework for all bargaining unit jobs

no later than ___________. There will be eight representatives appointed by each of the Hospital and the Union (in addition to CUPE National Union

Representative(s) and advisors for both parties). Meetings of this committee shall be deemed to be work time for which the representative(s) shall be paid by the Hospital at his or her regular or premium rate as may

be applicable.

2) The compensation analysis will be completed by the JCSC, with the objective of identifying market adjustment, harmonization adjustments and pay equity adjustments that are required.

3) A market analysis will be carried out to compile up to date job data

for all job classifications. JCSC will establish a harmonized pay structure which includes a pay equity compliant compensation that includes harmonized wage rates.

4) The priority of the Steering Committee will be to: develop

compensation objectives for the compensation framework; research options on an integration strategy for the new CUPE Local 5852 compensation framework; develop a project plan with specific timelines

and roles and responsibilities; compile up to date job information for all job classes; and carry out the work in step 5 below to develop and implement

an updated CUPE pay equity plan that will satisfy the joint responsibility to maintain Pay Equity, as well as the processes used by the JCSC to group jobs for creating a harmonized market adjusted pay structure.

5) The core steps in the process to compile the information needed

by the JCSC for appropriate wage rates, pay equity complaint wage rates, and harmonized wages will include: administering the CUPE Job Questionnaire to all employees or groups of employees in each of the CUPE

job title; selecting the most appropriate version of the CUPE Job Evaluation Plan; training a Job Evaluation Committee to carry out the evaluation of all

jobs; developing of a hierarchy of jobs based on total point score. This information will be used for pay equity compliance and for creating a

harmonized pay structure and harmonized wage rates.

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6) Further to Step 5, the JCSC recognizes the need for clear, accurate and up to date job information form a common CUPE Job Questionnaire to

guide decisions made regarding pay rates. Prior to administering the questionnaire, the JCSC will jointly identify job titles and positions whose

core duties, responsibilities and educational requirements are substantially the same or similar. The JCSC will also jointly identify job titles and positions that require a unique job questionnaire. It is recognized by all

stakeholders that there are a significant number of job titles where there is a lack of clarity on current duties and are very difficult to group together.

This step will be carried out prior to the completion of Job questionnaires, and further validated when the incumbents are in the process of completing the questionnaires.

7) The project workplan will be established to complete the

information gathering, market comparison and job evaluation process within 3 months or other reasonable timeline agreed to by the parties. A gender-neutral job evaluation committee consisting of equal

representatives of CUPE and the hospital will be selected and trained to carry out all job evaluations. The project workplan will be managed by the

JCSC.

8) The analysis will be completed by the JCSC, and all pay equity adjustments and harmonization adjustment will be identified.

9) The wage adjustments resulting from this process shall be effective April 1, 2019.

10) In the event of any dispute(s) between the parties arising from the above-referenced process set out above, such dispute(s) will be referred

to an arbitrator agreed to by both parties. For clarity, the arbitrator will have jurisdiction on pay equity, wage harmonization and market

comparators.

10. The Union’s proposal reads:

1) the parties will form a Joint Job Harmonization Committee (“JJHC”) to review bargaining unit jobs. There will be eight representatives appointed by each of the Hospital and the Union (in addition to CUPE National Union

Representative(s) and/or legal counsel). Each party shall appoint a co-chair for the JJHC. Meetings of this committee shall be held during normal

working hours. Time spent attending such meetings shall be deemed to be work time for which the representatives(s) shall be paid by the Hospital at his or her regular or premium rate as may be applicable.

2) The parties will identify job classifications and position whose core

duties, responsibilities and educational requirements are substantially the same or similar and whose hourly wage rates are different and will move

6

the hourly rates of pay of those job classifications and positions to the highest rate among them.

3) The wage adjustments resulting form wage harmonization shall be

effective as of December 1, 2016. 4) In the event of any dispute(s) between the parties arising from the job

harmonization process set out above, such dispute(s) will be referred back to the local interest board no later than June 1, 2019.

11. While both proposals provide for a joint job matching process and would ultimately result in wage harmonization, there are several critical distinctions

in their key features that bear emphasis.

12. The Union’s proposal is driven by specific collective bargaining outcomes it has already achieved with the pre-merger hospitals. It is designed to ensure

that on a job classification and position by position basis, the Union maintains all of the gains it has achieved through its history of collective bargaining and

carries those gains into the future. The resultant rates under the collective

agreement would be, generally, rates that the predecessor unions (mostly CUPE) had in fact bargained for the position in issue at one or the other of the

pre-merger hospitals.

13. The Hospital’s proposal, in contrast, is not driven by past collective bargaining outcomes between these specific parties, but rather by an as yet

undefined “market analysis” and pay equity considerations. To be clear, this is not to say that the rates bargained by the Union at the predecessor hospitals

could not form a part of the analysis, but they would not be the primary driver and would simply form part of a broader “market analysis”.

14. Further, on the Union’s proposal, at the conclusion of this Board’s work,

the parties would have a collective agreement with a single harmonized wage schedule. On the Hospital proposal, the determination of wage rates under

this collective agreement would not be determined by this board pursuant to

our jurisdiction under the Hospital Labour Disputes Arbitration Act. Instead, absent an agreement between the parties, wage rates would be set by “an

arbitrator agreed to by both parties” who “will have jurisdiction on pay equity, wage harmonization and market comparators”. The Hospital’s proposal

therefore effectively requires the Union to forfeit its right to have its collective agreement determined by this board of arbitration.1 And, even once the

process set out by the Hospital is complete, ongoing red circling would result

1 As addressed below, the Hospital has now proposed an entirely different approach as an alternate possibility in its supplementary submissions, but that proposal did not form part of its original proposal or argument leading to the SHN Award.

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in an indefinite period of time over which employees performing the same job would continue to work side by side at different rates.

ARGUMENT AND ANALYSIS

The Hospital’s Original Argument

15. We summarized the Hospital’s original argument against upward

harmonization in the SHN Award as follows:

16. The Hospital argues that such an approach would be improper, and

that this Board ought not to blindly follow arbitral precedents. In particular, the hospital argues that the circumstances of this merger warrant a

different approach for several reasons: i) past decisions do not unanimously support CUPE’s approach; ii) the facts of this case are unique and extreme; iii) the hospital’s jurisdiction argument on the basis of pay

equity has not been argued before; iv) the hospital has provided a comprehensive review of industry comparisons that militates against it; v)

it would have an extreme impact on internal equity; vi) the proposal is extremely costly and would be determined in the absence of the necessary facts and without regard to market realities; and vii) for these reasons the

principles of interest arbitration, and especially replication but also total compensation and the HLDAA criteria, do not support CUPE’s proposal. The

hospital notes in particular its poor ratio of assets to liabilities in comparison to other comparable hospitals, and the potential impact of the increases on hospital programs.

17. Instead, the hospital proposes the creation of Joint Compensation

Steering Committee to, among other functions, “identify market adjustment, harmonization adjustments and pay equity adjustments that

are required” based on a “market analysis”. The hospital does not propose a specific timeline for completing this process but acknowledges that some direction would be required in that regard. In any event, the hospital

proposes that wage adjustments arising from the committee be effective April 1, 2019.

18. The Divisional Court in its reasons quashing the SHN Award with respect

to wage harmonization emphasised that the Hospital had argued against past

practice on the grounds that its circumstances were “unique and extreme”, and that it had provided a “comprehensive review of industry comparisons

that militates against [the approach advanced by the Union”]. Thus, while we do not focus on these aspects of the Hospital’s argument to the exclusion of

the rest, they warrant further explanation in these reasons.

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19. The Hospital argued that CUPE’s proposal would be extremely expensive, that the Hospital was particularly poorly placed to pay the cost,

and that CUPE’s proposal “mandates the solution before the cost of the problem is determined”. The Hospital argued that its own proposal would allow

the parties to assess the costs, including the costs of any pay equity adjustments, before determining where wage rates should be set. It

maintained that any negative impact this might have on existing employees could be addressed through red-circling.

20. The Hospital relied in particular on its poor current ratio (i.e. ratio of

short-term assets to immediate liabilities). While the Hospital did not make an “ability to pay” argument, it argued that it was poorly placed to respond to

any economic shock, and that CUPE’s proposal “would have a material impact on programs”. It further argued that in the context of the modest across the

board increases in the central settlement, CUPE’s proposal on this local issue

would double the cost of the central settlement, when the economy has since turned down, and inflation has decreased.

21. The Hospital also relied on a comparison of wage rates at each of the

predecessor hospitals to the Hospital CUPE Median, 75th percentile and 90th Percentile. This comparison, argued the Hospital, demonstrates that the rates

at the Hospital are already, without adjustment, among the highest in the province, with 42% of the classifications already in the 90th percentile. CUPE’s

proposal, it argued, would exacerbate this problem. The Hospital also identified several specific positions including staffing and accounts payable

clerks, RPNS and Journeyman/Trades as posing particularly extreme examples of increases above the industry average rates that would result, both through

harmonization and through pay equity.

22. The Hospital also argued that CUPE’s proposal would result in internal

inequities, where positions with a higher match will increase, while comparable positions with no match will remain stagnant. The Hospital identified what it

described as several “potential” matches CUPE might pursue, the result of which is that employees in different unmatched positions who previously

earned the same rate might now earn as much as, in the most extreme example, $6.24 less.

23. In arguing in favour of its own proposal, the Hospital emphasises that

job matching and wage harmonization across sites is a complex problem. Tasks may be differently bundled at each site, and job titles may not

accurately reflect such differences. Further, the rates at each site reflect historical trade-offs in bargaining and local priorities, a balance that would be

undermined by harmonization to the highest rate. Employees in certain

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classifications would be seen as “winning the lottery”, giving rise to jealousy and bad morale.

24. For these reasons, while the Hospital recognized that CUPE would

present HLDAA precedents in favour of its position, it argued that the complexity of the Scarborough case distinguishes it from those precedents. In

particular, it noted that the Hospital: i) is already a market leader in wages; ii) has examples where upward harmonization would result in extraordinary

high adjustments; and iii) upward harmonization would result in extraordinary pay equity liability that either did not exist in other mergers or was not argued

by the hospital. The Hospital also relied on an award by Arbitrator Burkett in Sunnybrook and SEIU in which it asserts the arbitrator did not follow the

“match to the highest” precedent, the example of Durham Transit in which a merger under PSLRTA did not result in “match to the highest”, the AMAPCEO

and Ontario Government Job Evaluation project, which did not involve a

merger but in which the parties agreed to create a new wage schedule and in doing so agreed to extensive red-circling, and the bargaining between OPSEU

and the Community Colleges for part-time employees, in which they did not achieve parity with the full-time rates.

The Hospital’s Supplementary Submission

25. In its supplementary submission the Hospital takes the primary position

that the Board continues to lack key facts concerning the ultimate consequence of wage harmonization, and that to make a choice to harmonize

at this time is to make a decision without sufficient reasons. In the alternative, it argues that in light of the additional evidence that is available now that was

not available at the time of the original hearing, including the determination of the matches and the associated costings, the board should assess each

match to determine whether the rate should go to the highest, the lowest or

some point in between, and employ “red circling” to protect adversely affected classifications.

26. The costings provided by the Hospital in its supplementary submissions

indicate that the annual cost of harmonizing to the highest rate, exclusive of pay equity adjustments, is $1,204,692.64. The Hospital also quantifies what

it identifies as “internal inequities”, i.e., positions at one or the other of the predecessor hospitals that were previously paid the same, but which would

now receive different rates as a result of harmonization. The differences between positions that previously received the same rate range from $0.00

and less than $1.00 in many cases, to as much as $6.24 in a small number of cases.

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27. The Hospital also provides data with respect to the industry comparators upon which it relied. In particular, the Hospital compares the Hospital rates if

harmonized to the highest rate to what it identifies as the industry median, 75th percentile and 90th percentile. According to the table, the rates for all but

one of the classifications would exceed the median, and approximately half the classifications would exceed the 90th percentile.

28. With respect to its pay equity argument, the Hospital maintains that as

the Hospital’s pay equity exercise has not yet been completed, there is insufficient information to provide a final costing. The Hospital therefore

proposes that the board delay its final determination on harmonization and issue an interim award providing that the parties engage in a pay equity

process over a period of two months, after which if the parties have not reached an agreement the matter would be remitted to this Board. In the

alternative, the Hospital submits that the estimated annual cost of pay equity

where wages are harmonized to the highest rate would be conservatively estimated at $2,389,125.70.

29. In light of this newly available information, the Hospital maintains that

in the event the Board is satisfied that it has been provided with sufficient information concerning pay equity, it ought to review each classification and

determine whether it should go to the highest or “some more reasonable alternative.”

The Union’s Original Argument

30. The Union argued that there is nothing unusual or exceptional about the instant hospital merger, and that the Hospital had not established any basis

upon which these parties would have departed from the very well established

bargaining pattern in the sector.

31. The Union began its argument by noting that harmonization to the higher rate was explicitly contemplated by the Hospital from the outset of the

merger process. In the joint integration proposal put forward by both predecessor hospitals, they estimated the cost of aligning salaries across both

organizations at $1.4M, and explicitly indicated that “[t]his amount represents the cost to align salaries to the higher level across both organizations.” The

predecessor hospitals also accounted for the fact that the new entity would be required to engage in pay equity and estimated the costs of this exercise at

between $2.5M-$3.3M. Nonetheless, the hospitals concluded that the net benefit of integration would still result in $1.0M-$1.8M in annual

savings/increased revenue. Notwithstanding the Hospital’s recognition of the principle of upward wage harmonization and its purported commitment to

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fairness and transparency to its employees, the Union argues that the Hospital then refused to even engage in the work of matching positions, lest it

prejudice its position at interest arbitration. After two years of ongoing uncertainty and inequity, and in the face of what the Union described as

intransigence on the part of the Hospital (which included a failure to implement the central across the board increases and other grievances), the

Union argued that a fully retroactive wage harmonization order was appropriate.

32. In its brief, the Union relied primarily upon evidence arising from 9

amalgamations which it argued exemplify the established approach to wage harmonization in the hospital sector, all but one of which included CUPE

bargaining units. These materials in turn refer to numerous other instances involving a variety of bargaining agents in the hospital sector, in which unions

successfully negotiated upward wage harmonization, and in which the

agreement to harmonize wages was made prior to the completion of the job match process and prior to the determination of pay equity. Relying on the

principles of replication, comparability, gradualism and demonstrated need, the Union argued that its proposal is entirely normative and should be granted.

The Union’s Supplementary Submissions

33. In its supplementary submissions, the Union maintains that there is nothing unique about the circumstances of this hospital merger that would

merit a departure from the established history of wage harmonization to the highest rate, based on the reported decisions and negotiated settlements in

the sector, and the principles of replication, comparability, demonstrated need and gradualism. It emphasises that the wage harmonization costs of the

merger were anticipated and built into the Hospital’s own rationale in support

of integration. The only thing that has changed, argues the Union, is that the costs are now definitively known and have proven to be less than anticipated.

If anything, argues the Union, the job matches confirm and justify harmonization to the higher rate. To delay wage harmonization in these

circumstances would only perpetuate the ongoing inequities in the workplace. The Union also notes that of all the issues applicable to the Hospital that were

addressed in both the Participating Hospitals award and the SHN Award, wage harmonization was the only issue on which the board found in the Union’s

favour.

34. The Union does not dispute the Hospital’s costing of harmonization to the highest rate at $1,204,692.64, but points to the Predecessor Hospitals’

own July 2016 joint integration proposal in which they estimated the cost of upward wage harmonization at 1.4 million dollars annually, or approximately

12

$200,000.00 higher than it turned out to be. The Hospitals further recognized the need for future pay equity and estimated those future costs at $2.5-$3.5

million. Nonetheless, even with these costs built in to the proposal, the hospitals estimated the integration would result in $1.0-$1.8 million in annual

savings, in addition to allowing for infrastructure renewal, better funding and enhanced patient care. Having accepted the costs of upward harmonization

when choosing to integrate, the Union argues that the Hospital ought not to be permitted to avoid it now when those costs turn out to be even less than

anticipated. Neither, argues the Union, should the Hospital be permitted to rely on its own failure to provide these costings at the original hearing to

support its position, when it could easily have done so. The vast majority of the job matches, notes the Union, were obvious and inevitable (RPNs to RPNs,

PSWs to PSWs, trades to trades and the custodian and porter matches). It argues that the Hospital chose not to provide the cost estimates in order to

bolster its otherwise unsupportable position.

35. In response to the Hospital’s internal inequity argument, the Union

notes that the greatest inequity results from employees in matched positions continuing to receive differential wage rates. It further argues that when one

examines the alleged examples of internal inequity put forward by the Hospital, the gaps are either normative, were effectively rejected as

inequalities in this board’s job match decision, did not in fact come to pass, or relate to vacant positions. For example, the Union notes that while the Hospital

originally identified an inequality arising from a new maximum rate for the Patient Support Representative, the result of our Job Match Award is that the

rate for this position did not change. Finally, the Union notes that a number of the positions that were upwardly harmonized were within the former OPSEU

bargaining unit and comprised of only approximately 300 of the 2100 positions in the bargaining unit. To permit the Hospital to rely on those rates as the

basis for lower wages in the rest of the Unit would be “letting the tail wag the

dog”.

36. In response to the Hospital’s reliance on “Industry Comparators”, the Union notes that reliance on “Industry Medians”, which include hospitals

across the province in smaller centres with substantially lower costs of living, is meaningless. The Hospital’s own argument, it notes, as well as this and

other boards’ prior decisions, emphasises the importance of local conditions when adjusting wage rates. For example, while the Hospital’s trades rates may

be higher than at hospitals on other areas, this is explained by the higher rates paid to trades in the Greater Toronto Area, behind which the Hospital

rates continue to lag. Further, it notes that neither parties nor arbitrators have historically been concerned with the occasional circumstance in which

harmonized rates exceed their comparators. The rationale underlying upward wage harmonization has been given higher priority and greater weight.

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37. In response to the Hospital’s pay equity arguments, the Union maintains

that where wage adjustments are warranted on the principles of internal or external equity, interest arbitrators and courts have consistently rejected the

proposition that such adjustments should be denied because of their potential pay equity implications (see West Park Hotel v. SEIU Local 204, 1992 CanLII

8578 (ON SDC) and North Bay Police Services Board and North Bay Police Association, 2005 CanLII 53782 (ON LA)). Boards of arbitration have similarly

rejected the notion that harmonization ought to be delayed pending the outcome of pay equity (See Niagara Health System v. Service Employees

International Union, Local 204 (unreported, Kaplan, 2002)). The Union notes that this board reached essentially the same result in the Participating

Hospitals Award, which was not judicially reviewed, or in any way impugned by the Court’s decision to quash the SHN Award. In any event, the Union notes

that the Hospital contemplated the additional costs of pay equity in its

integration proposal, separate and apart from the costs of upward harmonization.

38. In conclusion, the Union maintains its position that the principles of

replication, demonstrated need and gradualism all support upward harmonization. The Union emphasises that replication is closely linked to

comparability, and that it must be applied objectively in light of prior settlements and awards, and not based on the subjective or self-imposed

limitations of the parties. The Union also emphasises that what the Hospital is seeking in departing from the established bargaining pattern is a collective

bargaining breakthrough for which it has not demonstrated any need, and which would be contrary to the principle of gradualism. To further delay

implementation of the harmonized wage rates, argues the Union, would perpetuate the ongoing inequality in the workplace. Further, it argues that the

impact of this delay is exacerbated by the fact that the Hospital is already

benefiting from the aspects of our prior awards that were to its benefit.

Analysis

39. The principle of replication and the associated concept of comparability

are central to our reasons for granting upward wage harmonization. And while these reasons are intended to explain why we reject to the Hospital’s

argument that its circumstances should be distinguished from the comparator mergers put forward by the Union, it is important at the outset to recognize

just how well established is the bargaining pattern relied upon by the Union. The evidence put forward by the Union of freely negotiated settlements and

arbitrated outcomes in which upward wage harmonization was either agreed to or ordered, including in circumstances where the job match process was

14

not complete and the costs arising from those matches and any subsequent pay equity exercise were unknown, is overwhelming.

40. Arbitrator Kaplan reached this conclusion in 2002 in The Niagara Health

System and Service Employees International Union, Local 204, unreported, July 5, 2002, summarizing the issues and setting out his decision as follows

(at pp. 2-4):

The issue before the Board is wage harmonization and, once established,

classification harmonization. In the union’s submission, the application of appropriate interest arbitration criteria, most notably replication but also, among others, comparability, required the Board to award wage

harmonization to the highest rate; a result, the union pointed out that it had voluntary achieved across the province in free collective bargaining in

the majority of merging hospitals, and once which was also normative in this sector and others following amalgamation. Once that principle was

established, the union advanced a method for grouping classifications. For its part, the employer rejected the union’s approach pointing out that

it is obliged under the Pay Equity Act to negotiate a new pay equity plan for the bargaining unit. Given this statutory requirement, not to mention

the need to ensure internal equity, order the formation of a joint job evaluation committee, and direct the parties to engage in a job evaluation process which will determine the relative value of all job classes for both

internal and pay equity purposes using the Modified SKEW Plan. Once that exercise was completed, the parties could, the employer suggested, turn

their attention to the appropriate wage rates for the amalgamated entity with this Board of Arbitration remaining seized in the event that the parties remained unable to agree.

In its reply, the Union noted that this suggested approach had been

followed nowhere else, was contrary to the replication and comparability principles and would, if implemented, result in the clerical and service employees at this bargaining unit not receiving a wage increase for years.

Moreover, the union took the position that the Board of Arbitration had no jurisdiction to do the job of the Pay Equity Commission and should, in

accordance with the established principles, follow establish patterns and direct harmonization at the highest wage rate and the provide a process for resolving any disputes arising out of that exercise.

Decision

Having carefully considered the submissions of the parties we direct harmonization of same or similar classifications at the highest rate. This

award is in accordance with the replication and comparability principles and is based on the evidence put before us which indicates that the parties

throughout the province in this sector have agreed to harmonization of the

15

same or similar classification at the highest rates in numerous voluntary settlements….

For these reasons arbitrator Kaplan ordered a process substantially similar to

the Union’s proposal before this board, providing for job matching and then harmonization to the highest rates, and indeed ordered that these

adjustments be retroactive to approximately 5 months prior to the date of the

award.

41. The evidence before us establishes that the bargaining pattern reflected in the Kaplan award has continued and has if anything only become more

entrenched. The sole hospital sector exception to this pattern relied upon by the Hospital was related to a small merger between the Sudbury campus of

the Northeast Mental Health Centre and the Sudbury Regional Hospital in 2007, which did not include harmonization to the highest rate and which

included red circling. This precedent was rejected by Arbitrator Petryshen, however, in Participating Hospitals and Canadian Union of Public Employees,

unreported, March 4, 2011. In that case, the Union put forward a wage harmonization proposal that was substantially the same as the proposal before

us. Arbitrator Petryshen summarized the hospital’s argument in opposition to that proposal and set out his reasons for rejecting the hospital’s position as

follows (at paras. 8-11):

[8] The Hospital opposes this approach. Until the hearing, it had requested that the status quo be maintained and was not prepared to engage in any discussion with the Union about harmonization of wage rates. At the

hearing, the Hospital proposed that there be a movement to the NGBH rates for all classifications.

[9] In addition to the concern about its cost, the Hospital submitted that the Union’s proposal has three flaws. One flaw is that the process is to

harmonize “like” jobs, rather than identical jobs. Another is that the process does not take into account pay equity. The parties agreed to

engage in a pay equity review process once the move to the new location is completed. The third flaw is that the process ignores the replicated outcomes for like parties. In this regard, the Hospital is referring to how

wages were integrated when the Sudbury campus of NEMHC amalgamated with the Sudbury Regional Hospital (“SRH”) in 2007. The parties agreed in

that case that the CUPE wage rates would apply and all employees above those rates were red-circled until the wage grid passes their existing rate. The Hospital submits that this freely negotiated outcome could be an

appropriate model for he NBGH amalgamation.

[10] After considering the position of the parties on this issue, it is our conclusion that the replication and comparability principles compel a result

16

that is generally in line with the Union’s proposal. In the Niagara Heath System decision, arbitrator Kaplan directed that like jobs be matched and

declined to accept a pay equity submission similar to the one made by the Hospital here. We are not convinced that we should depart from the normal

approach to wage harmonization in this sector based on what occurred when NEMHC amalgamated with the SRH. We understand that the NEMHC campus at Sudbury was very much smaller than its campus at North Bay,

which by itself might explain the different approach to wage harmonization at SRH. In any event, without knowing whether the circumstances at

Sudbury are similar to the circumstances in North Bay, it is difficult to conclude that there is a justifiable reason for departing generally from the usual manner of harmonizing wages in the hospital sector.

42. I agree with Arbitrator Petryshen’s assessment, and find the sole example put forward by the Hospital of a departure from the established

pattern of wage harmonization in the sector across the province equally

uncompelling. I note as well that the Sunnybrook and SEIU example relied upon by the Hospital in which it asserts that Arbitrator Burkett did not order

harmonization to the highest rate did not actually decide that issue. The fact is that the weight of precedent is simply overwhelmingly against the Hospital’s

position in this case. The real issue, as the Divisional Court made clear, is whether there are distinguishing features in this case that warrant a departure

from what a multitude of union and hospital parties have done. And what is clear from both the Petryshen and Kaplan awards but also the numerous

voluntary settlements relied upon by the Union here, is that the Hospital’s concerns about cost, uncertainty of outcome, internal equity and pay equity

are longstanding and have not deterred either the parties or arbitrators from maintaining the established pattern of upward wage harmonization.

43. We pause here to emphasise again what we have noted above: the

awards and settlements we refer to here are not to be treated as binding legal

precedents. Rather, they are evidence of a normative pattern of bargained and arbitrated outcomes that condition the parties’ expectations. They are

powerful indicators, which must be assessed by an interest arbitration board applying its labour relations expertise and knowledge, of what would be an

acceptable and reasonable outcome in a freely negotiated collective agreement. It is in this context that we have considered and rejected the

factors that the Hospital argues here are unique.

44. The Hospital argues that what distinguishes the instant case from the established pattern of comparators is that the implications of upward

harmonization for cost, internal equity and pay equity here are more extreme. In other words, the distinction is not the nature of the concerns raised by the

Hospital, which can reasonably be expected to arise in most cases where substantial and independently run hospitals merge, but rather of the alleged

17

magnitude of the problem. Yet the Hospital has not actually provided any comparative data to support this position. It has provided data to support its

position that the Hospital is experiencing financial stress, that upward wage harmonization will result in a reordering of internal relations between

classifications, and that there are instances where the wage differential between like classifications at the merged hospitals is large and the

adjustments for affected employees will be quite significant. It has also argued that on the basis of the materials before this Board, it is impossible to assess

just how costly upward wage harmonization will be, and that we should decline to order it on that basis. But it has not established that those consequences

did not exist at other hospitals, or that the instant case is materially unique with respect to any of these considerations. Further, a deeper look at each of

these issues highlights the Hospital’s failure to put forward substantial evidence for its position and supports the conclusion that the principles of

replication requires upward wage harmonization in this case.

45. Central to the Hospital’s rationale in support of its original proposal is

the argument that its was “the only method that allows the employer to understand the consequences of any decision it makes”. With respect, this is

a baseless claim. It is premised on the notion that the parties could not look at the existing job descriptions at the predecessor hospitals and, having

regard to the job match criteria (which were not in dispute), predict with reasonable confidence the likely outcome of the matching process. I reject

this premise, which is unfounded by any evidentiary basis, and which is belied by the fact that parties routinely compare similar classifications across

hospitals in this sector, just as the Hospital has done throughout its submissions before this board. The only difference between those comparisons

and the comparisons the Hospital was required to make between the predecessor hospitals is that with respect to the predecessor hospitals they

have access to far more and better information concerning the nature of the

positions they are comparing. The fact is that the Hospital chose not to provide a comprehensive estimate of upward wage harmonization to this board, and

instead chose to focus on a small number of hypothetical examples (including empty classifications, a fact that we did not know and which did not inform

our original decision) in order to bolster its proposal for an ill-defined process that is, on the basis of the materials before us, unprecedented in this sector.

The problem the Hospital purports to rely upon as proof that its proposal was the more reasonable alternative, was a problem of its own creation, which

appears to be designed to obfuscate rather than illuminate the decision making process.

46. Further, the Hospital proposal is not only unprecedented in the sector,

it is unprecedented in a way that makes it exceedingly unlikely it would ever be obtained through free collective bargaining in the hospital sector. First, it

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detaches the outcome of wage harmonization from the actual outcome of local collective bargaining by these particular parties. What the Hospital describes

as a comprehensive market-based approach, is in fact an approach that that would minimize, or at least significantly dilute the significance of, the market

forces that are most relevant to these parties, i.e., the rates that they have already bargained for the various classifications. The introduction of lower

rates for existing classifications would constitute a real collective bargaining loss for the union going forward. Red circling, which results in stagnant wages

for the affected employees in circumstances where but for the merger they would have continued to receive the same normative raises as everybody else

in the sector, is far from a panacea. There is nothing in the materials before us with respect to these parties in particular, this bargaining agent across the

province or in the sector generally to suggest that the Union would ever voluntarily enter into such an agreement. To say that the Hospital’s position

is the kind of proposal over which a union would strike in a free collective

bargaining environment is an understatement.

47. In contrast, the record before us establishes that the Hospital anticipated that it would enter into an agreement for upward wage

harmonization, costed this approach in its merger proposal, and concluded that the merger would still result in a net benefit to the Hospital, including

with respect to cost savings and the availability of funding. The position taken by the Hospital at this interest arbitration stands in stark contrast to the

position it took going into the merger. In our view, the latter is a far better reflection of what the Hospital would do in a free collective bargaining

environment. It is perhaps trite to note that parties will take to interest arbitration a position that they would never maintain through a long and

disruptive strike or lockout: a fact the Hospital emphasises in its submissions citing Professor Weiler’s award in 65 Participating Hospitals and CUPE

(unreported) June 1, 1981. We find that the Hospital’s independent

assessment of the costs and benefits of the merger are a better reflection of its realistic collective bargaining expectations, in keeping with the established

approach in the sector, rather than the unprecedented approach it has put forward in its proposal.

48. In rejecting the Hospital’s proposal, we have given careful consideration

to its argument that it is in a “dire financial situation” and that upward wage harmonization will be inordinately costly. The Hospital has not here made an

“ability to pay” argument, but it has argued that the cost of upward wage harmonization will have a “material impact on programs”. The Hospital has

not particularized this alleged “material impact” in any substantive manner, but there can be no dispute that hospitals operate within budgetary

constraints and that substantial wage increases can impact a hospital’s ability to deliver programming. The fact that the cost of upward wage harmonization

19

will exceed the cost of a normative settlement in a non-merger environment is plainly significant, particularly in light of the principle of total compensation

and the second HLDAA criterion. Neither are the market comparators put forward by the Hospital insignificant. It is particularly significant that while the

wage rates resulting from upward harmonization are all rates that these parties or their predecessors have bargained for the positions in issue, the

result of wage harmonization will be rates that are in the aggregate better than the rates the predecessor unions were able to bargain at either of the

predecessor hospitals. But the Hospital’s argument does not reflect the full picture of what has taken place in the merger. It considers only the costs

associated with upward wage harmonization, and not the savings and benefits associated with the merger, which is the context in which wage harmonization

is to take place. Overall, by its own estimation, the merged Hospital will be on better financial footing, even allowing for upward wage harmonization, than

its predecessors would have been with each operating under the previously

established wage grids. For this reason, we do not find that either the Hospital’s financial circumstances, the costs of upward harmonization, or the

alleged and unparticularized impact upward harmonization will have on services, are so extreme as to justify a departure from the established and

normative bargaining pattern applicable to mergers in the hospital sector for this bargaining agent. Viewed objectively, we find that on the balance of

probabilities it is more likely than not that in a free collective bargaining environment, the Hospital would have agreed to upward wage harmonization.

The Hospital has not established, particularly in light of its own pre-merger representations, that the impact in this case is so extreme that it would

maintain, as Professor Weiler articulated in 65 Participating Hospitals, the “tough choice in [its] negotiating position” through a “painful work stoppage”

(at p.27).

49. We have also given careful consideration to the non-hospital sector

comparators put forward by the Hospital but find that they do not support the Hospital’s position. The fact that they arose in completely different sectors

diminishes their significance as comparable examples. Further, the circumstances in each case are materially different than those of the instant

case. In the Durham Transit example, the contentious harmonization issues identified by the Hospital do not even include the harmonization of wages for

like positions. The AMAPCEO job evaluation exercise relied upon by the Hospital did not take place in the context of a merger. The fact that AMAPCEO

and the province voluntarily agreed to engage in a job evaluation process within a single bargaining unit is simply not instructive of how parties will

address wage disparities between employees performing essentially the same job in two or more previously separate but now merged bargaining units.

Indeed, the kind of exercise performed in the AMAPCEO job evaluation process is one the Hospital specifically argued was outside this board’s jurisdiction and

20

should be avoided here. Neither is the example arising from OPSEU’s certification of part-time college employees compelling. In that example,

OPSEU was not able to obtain, in a first collective agreement for newly certified part-time employees, wage parity with a pre-existing and long-unionized full

time bargaining unit. As a comparator, the facts in that case are so far removed from the instant case as to be of negligible significance.

50. It is also relevant to our determination that we did not award the Union

upward wage harmonization in a vacuum. As noted, wage harmonization was one of a number of outstanding issues in this round of bargaining, including

insured benefit harmonization, emergency vacation lave, mobility, temporary vacancies/posting, and proposals for a porter wage adjustment and an RPN

wage adjustment. We awarded the Union its wage harmonization proposal, but with significantly less retroactivity than the Union was seeking. We did not

award the Union any of its other proposals and awarded a significantly less

costly benefit harmonization provision than the Union was seeking. We granted the Hospital its proposals on Temporary Vacancies and Mobility. The

high cost of wage harmonization and the implications of wage harmonization on total compensation were significant factors in our overall decision and

formed part of the balance we sought to maintain in replicating a bargained outcome.

51. In granting the Hospital a substantially more favourable mobility

provision in particular, over vociferous objections from the Union and its nominee, we reasoned that:

In all the circumstances, I am satisfied that the hospital has established a demonstrated need for mobility between sites, subject to reasonable limits.

Further, as the Hospital argues, the ability to benefit from a reasonable degree of mobility is among the advantages of the merger, to be balanced against the significant costs. It is unlikely the hospital would agree to both

bear those significant costs and forfeit the benefit of integrating its operations.

But for the decision on wage harmonization, it is unlikely we would have awarded the Hospital a more favourable mobility provision. Indeed, the

calculus with respect to all the other proposals would have been changed, particularly with respect to the application of the principles of total

compensation and replication. The Hospital has not challenged the outcome on these more favourable conclusions, and the Court has not remitted these

issues for our reconsideration, but they do form an integral part of our overall

reasoning, and bear mentioning for that reason. For this reason, had we concluded that a different disposition with respect to wage harmonization was

appropriate, this would have presented a significant problem given our award

21

on these other issues, and we would have required further submissions from the parties.

52. In light of the analysis above, I also find that nothing in the Hospital’s

supplementary submissions alters our original conclusion in this case. To the extent that the supplementary materials repeat and rely on the original

submissions, these arguments have already been addressed. Indeed, as the Union notes, the cost of upward wage harmonization, now capable of

calculation and not just estimation, has turned out to be slightly less than anticipated. The fact that the Hospital was able to estimate these costs to a

high degree of accuracy in its merger proposal is not at all surprising given the information that it always possessed. We need not repeat here our pay

equity analysis, which is set out in our Participating Hospitals Award and which was not challenged by the Hospital. We note, however, that with the

completion of the job match process, the Hospital has also estimated the costs

of pay equity as slightly less than its pre-merger estimates.

53. In particular, we continue to reject the so-called “market analysis” approach put forward by the Hospital, which is at odds with the established

approach to mergers in this sector and which would undermine the collective bargaining gains obtained by this local bargaining agent at this specific

hospital’s predecessor institutions. Such an outcome would be unprecedented in the hospital sector. The fact that this merger will result in wage rates that

are, overall, higher than many potential comparators is a relevant consideration, but insufficient to overcome the more compelling comparison

to how similarly situated hospitals and bargaining agents have addressed wage harmonization. The cost in this case is indisputably high, but this cost

was anticipated by the Hospital, and is more than offset in the Hospital’s estimation by the cost savings of the merger. As noted by the Hospital, the

rates at this hospital were always at the higher end, a fact that is undoubtedly

attributable to its location in the Greater Toronto Area, but also to the bargaining agent’s success in negotiating those rates over decades of

collective bargaining. I agree with the Union that in this context, a comparison to the mean or even the 75th percentile, which incorporates many hospitals in

much smaller markets with very different bargaining histories, is simply not compelling evidence of the likely bargaining outcomes at this particular

location in the context of a merger.

54. With respect to the Hospital’s internal equity argument, the job match outcomes and the data provided establish that some of the extreme examples

anticipated by the Hospital did not materialize or were never real in the first place (in the case of vacant classifications). There can be no doubt that upward

wage harmonization will provide a greater benefit to some employees than others, and that many employees (i.e. those already earning the higher rate

22

or those in unmatched positions) will obtain no benefit at all. But no employee will suffer the long-term economic loss that is inevitable on the Hospital’s

proposal. The Hospital focuses on the inequity that results when some employees get a greater benefit than others, but ignores the inequity that

results when some employees, but not others, will receive no wage increases, potentially for a period of years, and may stand to lose decades of collective

bargaining gains solely because her or his employer merged with another hospital. There is nothing in the material before us in this regard to support

the conclusion that the outcome of upward wage harmonization in this case is materially different from the many examples of voluntary and arbitrated

outcomes put forward by the Union. The reordering of the relationship between different classifications is simply a function of how parties in this

sector have chosen to solve the wage harmonization problem. From an internal equity perspective, this solution is clearly more tolerable than to have

employees working side by side in the same classification for different rates.

A NOTE ON THESE REASONS

55. It will be apparent that these reasons are far more expansive than a typical interest arbitration award. We have found it prudent in the context of

this award, arising as it does from a judicial review for insufficiency of reasons, to provide such expansive reasons. It should not be implied from the extent

of these reasons, however, that we think that the Divisional Court required such an approach, or that it would be appropriate in other circumstances. The

Divisional Court was careful to note that reasons in interest arbitration awards may be very brief, while also meeting the minimum standards of justification,

intelligibility and transparency (at para 28). The Divisional Court provided, at paragraph 27, several examples where interest arbitrators have provided such

brief reasons while also meeting the requisite standard set out in Canada

(Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC.

CONCLUSION

56. The job match process is now complete, and it is therefore unnecessary

to repeat that aspect of our prior award. For all of these reasons, we order that the hourly rates of pay for all matched job classifications and positions

will move to the higher of the two rates. Wage adjustments resulting from wage harmonization shall be effective May 26, 2019 and retroactive to that

date for all current and former employees. All other aspects of our prior awards in this matter remain in effect.

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57. We remain seized with respect to the implementation of our award and in accordance with s.9 of the Hospital Labour Disputes Arbitration Act.

Dated at Toronto, Ontario, this 15th day of December 2020.

“Eli Gedalof” ______________


“I dissent-dissent attached” ______________

Brian O’Byrne, Hospital Nominee

“I concur”

_______________ Joe Herbert, Union Nominee

https://www.canlii.org/en/on/laws/stat/rso-1990-c-h14/latest/rso-1990-c-h14.html#sec9_smooth

https://www.canlii.org/en/on/laws/stat/rso-1990-c-h14/latest/rso-1990-c-h14.html

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DISSENT

I issued a written Dissent on May 26, 2019 with respect to the Chair’s wage harmonization ruling

as set out in his initial award dated May 26, 2019.

In the instant award, the Chair concludes that nothing in the Hospital’s supplementary submissions

altered his original conclusion on the wage harmonization issue and hence he has ordered that the

hourly rates for all matched job classifications and positions be moved to the higher of the two

rates.

My views have also not changed since the initial proceeding and I continue to disagree with the

Chair’s views. In my view, the Hospital proposal should have been awarded for all of the reasons

set out in my May 26, 2019 Dissent.

I would also like to make the following additional comments regarding the instant award.

First, in a number of places in the award, the Chair refers to the premerger assessment by the

Hospital of what the anticipated cost of wage harmonization would be (which turned out to be not

all that different from what the actual costs will be) and how the Hospital was prepared to accept

this and proceed with the merger, notwithstanding this significant cost, because the overall cost

savings resulting from the merger would still result in a net benefit to the Hospital. He indicates at

paragraph 47 of the award that the Hospital’s premerger position stands in stark contrast to its

position at this arbitration and he states that the Hospital’s premerger position is a far better

reflection of what the Hospital would do in a free collective bargaining environment. That may

very well be true had the Hospital’s premerger understanding (that the wage harmonization costs

would be funded by the Ministry of Health) come to pass. Unfortunately, however, as Mr. Bass

told us at the hearing, that did not happen. Hence I disagree with the Chair’s view as to what the

Hospital would have done in a free collective bargaining environment in these circumstances.

Secondly, the Chair set a very high bar for the Hospital to get over in order to avoid what he viewed

as an established bargaining pattern of harmonization to the highest rates involving this Union in

mergers that have taken place in this sector. In my Dissent of May 26, 2019, I stated:

“Just because there are a number of earlier awards where the arbitrator decided, on the facts before

him or her, that it was appropriate to provide for wage harmonization to the higher rate, does not

mean that a subsequent Board, such as this Board, has to blindly follow that approach. Each case

must be looked at on its own individual facts. The extent of integration, the degree of similarity of

jobs, the degree of wage similarities, the extent to which pay equity may or may not be impacted,

are all variables that would factor into the analysis in each of those cases.

This Board has the responsibility to fashion an outcome that replicates what this Hospital and this

bargaining agent would have likely agreed to in free collective bargaining, having regard to their

individual circumstances – not what other parties may have done or had forced upon them”

Yes, I acknowledge that the Chair did consider the individual circumstances of the parties in this

case. However, in rejecting the Hospital’s arguments as to why these individual circumstances

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should have led to a different result, the Chair indicated at paragraph 48 that these individual

circumstances - the Hospital’s financial circumstances, the costs of upward harmonization and the

impact upward harmonization would have on services – were not so extreme as to justify a

departure from what he viewed as the established bargaining pattern. In my view, that amounts to

setting the bar too high and I do not agree that such an approach is appropriate.

December 15, 2020 Brian O’Byrne

1


BETWEEN:

PARTICIPATING HOSPITALS

(The “Hospitals”)

AND


(the “Union”)

(Local Issues)

BEFORE:


Brian O’Byrne, Hospitals Nominee Joe Herbert, Union Nominee

APPEARANCES: See Appendix “A”

Hearings Held: September 25, 2018 (RPN Wage Adjustment Coordinated

Submissions), October 4, 19, 26 and 30, 2018, November 1, 6, 8 and 14, 2018, December 6, 7, 18 and 19, 2018, February 14 and 28, 2019, March 1,

2019 and April 13, 2019.

Executive Sessions: March 23 and 24 and April 27 and 28 and May 2 and 7

2019.

AWARD

Introduction

1. This board of interest arbitration was convened pursuant to the terms

of the Hospital Labour Disputes Arbitration Act, R.S.O. 1990 c.H 14, as amended (“HLDAA”) to determine local collective bargaining issues between

the Participating Hospitals identified in Schedule “A” (the “Participating Hospitals”) and Canadian Union of Public Employees, Local Unions of

OCHU/CUPE, also identified in Schedule “A” (the “Local Unions”).

2

2. Bargaining between the various Participating Hospitals and CUPE and its Local Unions is divided between “central issues” and “local issues” in

accordance with the Memorandum of Conditions for Joint Bargaining signed June 16, 2017. On April 22, 2018, the parties entered into a Memorandum of

Settlement resolving the central issues. The settlement of the central issues included annual wage increases of 1.4%/1.4%/1.6%/1.65% effective each

September 29 from 2017-2020.

3. This Board of arbitration was appointed to determine the local issues that the parties were not able to otherwise resolve. We conducted 17 days of

hearing between September 25, 2018 and April 13, 2019. For the most part, although there was significant overlap between the issues arising at many of

the different hospitals, each Participating Hospital and each Local Union made its own freestanding submissions on their specific issues. The exception was

with respect to the Local Unions’ proposal for a global Registered Practical

Nurse (“RPN”) wage adjustment, to create an 8-year rate set at 75% of the rate for ONA represented Registered Nurses (“RN”). On September 25, 2018,

the parties made coordinated submissions with respect to the RPN wage adjustment issue, which submissions were adopted by each of the

Participating Hospitals and Local Unions. In some cases, these submissions formed the totality of the representations made by the local parties, but in

many cases the Participating Hospital and Local Union also provided site-specific materials and submissions in support of their position.

4. Consistent with the manner in which the issues were argued before us,

we will begin by addressing the coordinated RPN Wage Adjustment submissions, with reference to the supplementary Local materials and

submissions where appropriate. We will then address the remaining Local Issues.

5. In addressing all of the issues before us, we have had regard to all of the materials before us which, in light of the number of hospitals and local

unions, were voluminous. We have also had regard to the established principles of interest arbitration and the jurisprudence filed by the parties in

support of the applicability of those principles. Without limiting the foregoing, we have had particular regard to the principles of replication, total

compensation and demonstrated need. This last principle is of particular significance where a proposal deviates from established bargaining patterns

in the sector.

6. We have also had regard to the statutory criteria set out in s.9 of the HLDAA, which reads as follows:

3

9 (1) The board of arbitration shall examine into and decide on matters that are in dispute and any other matters that appear to the board

necessary to be decided in order to conclude a collective agreement between the parties, but the board shall not decide any matters that

come within the jurisdiction of the Ontario Labour Relations Board. R.S.O. 1990, c. H.14, s. 9 (1).

Criteria

(1.1) In making a decision or award, the board of arbitration shall take into consideration all factors it considers relevant, including the following

criteria:

1. The employer’s ability to pay in light of its fiscal situation.

2. The extent to which services may have to be reduced, in light of the decision or award, if current funding and taxation levels are not

increased.

3. The economic situation in Ontario and in the municipality where the

hospital is located.

4. A comparison, as between the employees and other comparable employees in the public and private sectors, of the terms and conditions

of employment and the nature of the work performed.

5. The employer’s ability to attract and retain qualified employees. 1996,

c. 1, Sched. Q, s. 2.

…

7. The various local parties were able to resolve a number of issues either

prior to the hearing or in the course of the hearing. The local agreements shall

consist of the terms of the expired agreements, as amended in accordance with the agreements of the parties and this award.

8. Any Union or Hospital proposals that have not been agreed to and are

not explicitly addressed by this award are deemed dismissed.

RPN Wage Adjustment

Overview

9. RPNs form approximately ¼ of CUPE’s Participating Hospital

membership. The Union proposes the creation of an 8-year RPN rate of $33.51 to be added to the wage grid at each of the Participating Hospitals effective

September 29, 2017, after the application of the general wage increase. The

4

new rate would thereafter be subject to the across the board increases already negotiated for 2018-2020. The Union’s intention is to set the job rate for RPNs

at 75% of the established rate for RNs under the ONA central hospital agreement. There is currently no centrally established job rate for CUPE

represented RPNs, and the extent to which the proposed increase would raise the job rate for RPNs therefore varies to some degree amongst the various

locals. On average, however, RPNs earn approximately 65% of the RN job rate, and the adjustment sought by the Union is in many cases in excess of

10%. In almost all cases, the proposed rate would constitute a substantial increase beyond the negotiated annual increases for those nurses with 8 or

more years of service.

10. In broadest terms, the Union argues that this correction to RPN compensation is required because of the substantial and increasing overlap

between the work performed by RPNs and RNs. The Union argues that the

substantial gap between RN and RPN compensation is unwarranted given the similarity in the jobs they perform. Indeed, the Union argues that Ontario is

an outlier when it comes to RPN compensation, in that it is a leader in expanding the scope of practice of RPNs, while its wage rates more closely

resemble those provinces that have maintained a far more restricted scope of RPN practice. In other provinces where RPNs have a robust scope of practice,

RPN rates range from 71% to 82% of the RN rate.

11. The Hospitals object to the Union’s proposal on both technical and substantive grounds. The Hospitals argue that as a local issues board, we have

no jurisdiction to order a standardized provincial wage for RPNs. The Union, argue the Hospitals, is seeking to gain a windfall on top of the wage increases

obtained at the central table, in violation of the principle of total compensation. They further argue that an RPN wage adjustment has not even been bargained

for at a local level and that in seeking to tie itself to the RN wage rate, the

Union is seeking to avoid having to bargain altogether. I note in this regard that while both parties agree that there was no substantial local bargaining

with respect to an RPN wage adjustment, each side alleges that it was the other that was responsible for this refusal.

12. Further, the Hospitals object to the manner in which the Union’s current

proposal was brought forward. The Union’s initial proposal was to increase the existing job rate to 75% of the ONA 8-year rate; it was not until shortly before

the first day of hearing in this matter that the Union proposed that the rate fall on a new 8-year step on the grid. The Hospitals argue that this change in

position violates the conditions for joint bargaining, which required the exchange and vetting of proposals well in advance of the commencement of

this proceeding. Ultimately, the Hospitals argue that there is an onus on each local union to establish that there are local conditions that would warrant

5

adjusting the RPN rate beyond the previously negotiated annual increases. In the absence of such local conditions or any demonstrated need for an RPN

wage adjustment, the Employer argues that the Union has failed to meet its onus.

13. The Union disputes that there is anything improper in amending a

proposal that has been vetted and is undoubtedly a local issue, particularly to make it more moderate in the face of opposition. The Union further maintains

that the Hospitals cannot on the one hand refuse to bargain or arbitrate the RPN wage adjustment centrally (despite the Union’s persistent requests to do

so), and then object to the Union pursuing it at the local issues arbitration, including as a common issue, based on the comparability of RPNs to RNs

across the province.

Union Argument

14. The Union’s proposal arises out of a significant legislative and arbitral

history and it is helpful to briefly (and by no means exhaustively) summarize this background in assessing each parties’ position.

15. The Union traces the evolution of the RPN classification from its

antecedent the Registered Nursing Assistant (RNA) created in 1939. RNAs worked subordinate to RNs, who would delegate to them basic care for stable

patients. According to the Union, by 1976 RNAs performed approximately 52 percent of the RN skills.

16. In 1991, with the introduction of the Nursing Act, 1991 and the

Registered Health Professionals Act, 1991, RNAs were renamed RPNs, and recognized as “nurses”. At this time, RPN education was a 3-semester

certificate program (compared to either a 6-semester diploma or 8-semester

degree for RNs), and the scope of RPN practiced remained relatively restricted. By 2005, RPNs required a 4-semester diploma, while the RN education shifted

to an exclusively 8-semester degree program.

17. The major change relied upon by the Union, however, occurred in 2009 when the College introduced new practice guidelines expanding the scope of

RPNs autonomous practice, and introducing the “three factor framework” for determining which category of nurse is competent to care for a given patient.

The three factors are, in broad terms: 1) Client (complexity, predictability and risk of negative outcomes); 2) Nurse (the particular skills, knowledge and

experience of the individual nurse); and, 3) Environment (practice supports, consultation resources, stability and predictability of the environment). These

factors considered together form a continuum, such that the more acute the patient, the less skilled, knowledgeable or experienced the nurse and the less

6

stable the environment, the less likely it is that care can be provided autonomously by an RPN. Conversely, argues the Union, an experienced and

skilled RPN with appropriate supports may provide care for a client with significant acuity, in circumstances where a less experienced RN might not be

capable of doing so.

18. In terms of the current entry to practice guidelines, the Union identifies 100 competencies expected of RNs, of which 90 are also expected of RPNs.

The Union argues that as a result of this paradigm shift, there is now a 90% overlap between the roles of RNs and RPNs, and a substantial number of

strategies and interventions that were formerly the exclusive jurisdiction of RNs that are now performed by RPNs. This shift, argues the Union, is reflected

in surveys completed by its members at 51 of the local hospitals, and in the increasing proportion of RPNs as compared to RNs in the hospitals (from 4.5

RNs per RPN in 2007/08 to 3.9 in 2014/15 and an estimated 3.4 by 2021/22).

Following the coordinated submissions and in the course of arguing the specific circumstances of many of the local hospitals, the Union also filed materials in

support of its claim that: a) RPNs routinely fill in for RNs; b) in some instances serve as charge nurses; c) are in many cases expanding their role in the

hospital working on wards where they were previously excluded; d) are performing more complex interventions; and e) are mentoring junior RNs and

taking on preceptorships.

19. The Union also relies heavily on comparative data for RN and RPN (a.k.a. Licenced Practical Nurses) compensation across Canada. The Union’s

comparative analysis reveals that in other provinces where practical nurses practice autonomously (Saskatchewan, Manitoba, Alberta, Quebec and soon

British Columbia), practical nurses earn a higher percentage of the RN salary (between 71% and 79%) than do Ontario’s RPNs (at approximately 66%).

The Union argues that while Ontario has been a leader in expanding the

autonomous practice of RPNs and generally pays higher wages than other provinces in the hospital sector, it has lagged in adjusting RPN salaries in

particular, both in real dollar values (other than in comparison to Quebec) and as a percentage of the RN salary. Instead, Ontario’s rates compare to those

remaining provinces where the practice of practical nurses remains restricted. Similarly, the Union argues that compared to the wage difference between

two-year and four-year educated nurses in the United states, the “wage penalty” imposed on RPNs in Ontario is inordinate.

Hospitals Argument

20. As noted above, the Hospitals argue that this board should refuse to

entertain the proposed RPN wage adjustment, because the Union had not proposed that the adjustment RPN wage rate be implemented at a new 8-year

7

step on the wage grid until shortly before the arbitration in this matter began. The inclusion of this new proposal, argue the Hospitals, is a breach of the

Memorandum of Conditions between the parties.

21. The Hospitals emphasise that the RPN wage adjustment is a local issue, and cite several awards finding that local issues boards must address the

particular needs and circumstances of the particular local parties in issue. The Hospitals argue that those boards that have ordered RPN wage adjustments

in the past have lost sight of this important distinction and improperly treated the Union’s proposal as a central issue. Why, ask the Hospitals rhetorically,

should one hospital have to bear the costs of an RPN wage adjustment, in the absence of compelling local circumstances, particularly when the gap between

its rates and those of another hospital frequently arises from pay equity circumstances that may not exist at that first hospital.

22. Further, the Hospitals argue that those boards have failed apply the correct principles of interest arbitration and instead applied a subjective

standard in determining whether the spread in wage rates was “justified”, or whether there is some perceived “unfairness”. The result of this inappropriate

arbitral intervention, argue the Hospitals, has been a complete lack of local bargaining. Further, efforts to create a standardized RPN wage rate (i.e. to

eliminate the spread across hospitals) are futile in light of pay equity and local bargaining. In any event, argue the Hospitals, while pay equity has resulted

in some hospitals paying higher RPN rates, there is no widespread pay gap of the nature that Arbitrators have addressed in the past, and CUPE is not relying

on the spread as justification for its proposal in this round of interest arbitration.

23. Applying the usual interest arbitration criteria, the Hospitals argue that

CUPE has not made any case for an RPN wage adjustment at the local level.

This, argue the Hospitals, is the conclusion Arbitrator Kaplan reached in the last round of CUPE Local Hospital interest arbitration, and the facts have not

changed since then. At the local level the hospitals did not dispute that the role of the RPN has evolved over time, but did not agree that RPNs were filling

in for RNs in the widespread manner that the unions alleged. While the local hospitals did not accept the premise of the Union’s argument, they also

challenged the utility of the surveys prepared by CUPE, noting that they did not reveal the frequency with which RPNs performed any of those functions.

In general, the local hospitals maintained that there was a material difference between the manner in which they deployed RNs and RPNs, notwithstanding

the undisputed overlap between many of the functions any given nurse might perform on any given day.

8

24. Central to the Hospitals’ argument on the merits is their position that there is no evidence of difficulties in recruitment and retention or

demonstrated need. Neither, argue the Hospitals, has the Union established any basis for a “tie-point” between RNs and RPNs, for looking to RN/RPN wage

ratios across the country, or for adopting RN rates as a comparator for RPN rates at all, particularly at the local level. Adopting these comparators would

run counter to the principle of replication. Further, RPNs have received the benefit of the across the board increases arising from the central agreement,

and those increases already represent a substantial cost to the Hospital. To superimpose a further wage increase of the magnitude sought by the Union

for such a large group of employees would result in inordinate cost, reduction of services and strain on the hospital system in still-challenging economic

circumstances, and would violate the principle of total compensation.

Arbitral History

25. Both parties referred to the legacy of interest arbitration awards

addressing RPN wage adjustments, but characterized the significance of those awards to the Union’s current proposal quite differently. I will therefore briefly

summarize those awards and the manner in which they addressed the RPN wage adjustment before addressing the Union’s current proposal.

1977—The Burkett Award (1)

26. In Ontario Nurses’ Association and The Wellesley Hospital, April 4, 1977

(Unreported) (Burkett), in the context of setting wage rates for RNs under an ONA collective agreement, Arbitrator Burkett found that the RNA classification

was the appropriate “tie-point” for determining the appropriate rate for RNs. He reached this conclusion in part because RNs and RNAs are in the same

work group and further because as a classification found in the private sector

the RNA rate was presumed to reflect private sector clarifications. But Arbitrator Burkett also found that the parties had an established practice of

bargaining a differential of approximately 74-75% between the two classifications. The parties had freely bargained a differential of 75% in 1975,

the last year for which ONA and the hospital had bargained wages. Arbitrator Burkett therefore awarded increases in 1976 and 77 to that would maintain

that differential.

1985-86—The Burkett Award (2)

27. In Participating Hospitals and Canadian Union of Public Employees and 68 Local Unions, October 10, 1986 (Unreported) (Burkett), Arbitrator Burkett

determined the central issues for the September 29, 1985 to September 28, 1986 collective agreement. In that award, Arbitrator Burkett awarded across

9

the board increases to all of the CUPE classifications on the basis of a number of factors, including the fact that those increases would reflect the “prevailing

level of settlement in the community”, and at the same time “maintain the historical relationship between the average wage paid to these hospital

employees and the Industrial Composite and the rate paid to the R.N.A. as a percentage of that paid to the R.N.”

1989-91—The Stanley Award

28. In 71 Participating Hospitals and Canadian Union of Public Employees

and Its Participating Locals, October 30, 1989 (Unreported) (Stanley), Arbitrator Stanley was also determining the central issues and awarded across

the board increases. This appears to be the first round in which the Union proposed a standardized wage rate for RNAs. The Union also proposed moving

away from a comparison to the start rate for RNs, since ONA had bargained

an expansion to its wage grid resulting in depressed start rates and greater compensation in later years. Arbitrator Stanley looked to a number of factors,

including RN rates and the rates of OPSUE represented PNAs working in a variety of government run institutions, in addition to general economic and

settlement data. He awarded across the board increases to all classifications (other than Laboratory Technologists) intended to, among other

considerations, re-establish a fair relationship between the RNAs and RNs, effectively restoring the 75% differential that had eroded over the previous

years.

2001-04—The Carrier Award

29. In the 2001-04 round of bargaining, CUPE again sought an RPN wage adjustment through the creation of a common end rate tied to the ONA RN

rate. The board of arbitration for Local Issues, chaired by Arbitrator Carrier,

issued an interim award addressing just this issue in The Participating Hospitals and Canadian Union of Public Employees, February 25, 2004

(Unreported). Arbitrator Carrier’s award was influenced by the award of Arbitrator Kaplan in The Participating Hospitals and Service Employees

International Union, October 7, 2003 (unreported) in which Arbitrator Kaplan looked to the commonality of RPN functions across the sector and recent

settlements substantially raising the base rate in some hospitals, and found that the disparity between the lowest and highest paid RPNs was not justified.

Arbitrator Carrier found that the Kaplan award established a “norm” for RPN wages, and agreed that the current spread between the lowest and highest

paid RPNs was excessive. He therefore adopted the same minimum rate as was awarded to the SEIU. Arbitrator Carrier did not rely on a tie-point between

the CUPE RPN and ONA RN wage rates.

10

2004-06-The Albertyn Award

30. In the 2004-06 round of bargaining, the parties again addressed the Union’s proposal to establish a standardized provincial RPN rate through the

local issues arbitration chaired by Arbitrator Albertyn in The Participating Hospitals and Canadian Union of Public Employees, 2007 CanLII 2090 (ON

LA). CUPE argued that the board should re-establish a standardized RPN wage rate as existed in the mid-80s, and that the board should restore the ratio

between RPN and RN wages. Arbitrator Albertyn rejected the proposal to create a standardized central RPN rate for several reasons, including the fact

that CUPE does not represent all RPNs in the province (unlike ONA and the RNs) and because pay equity and RPN wage adjustments are addressed

locally1. The result, found Arbitrator Albertyn, is that any effort to create a standardized RPN wage rate could be easily destabilized at the local level,

including through further increases mandated by pay equity. Arbitrator

Albertyn did find that if there continued to be a significant disparity between the highest and lowest paid RPNs, it would be appropriate to gradually narrow

that gap over time. However, he found that given the substantial correction awarded by Arbitrator Carrier in the prior round, and given that there was no

demonstrated need to raise salaries in order to recruit RPNs, it was not necessary to grant a further increase in that particular round.

2006-09-The Briggs Award

31. In 2006-09, the Union again sought an RPN wage adjustment, although

in this round it did not seek a standardized rate, but rather sought to raise the minimum RPN job rate. Arbitrator Briggs, in Participating Hospitals and

Canadian Union of Public Employees, August 4, 2009 (unreported) (Briggs) found that at that time there was a 13.2% spread between the highest and

lowest paid CUPE represented RPNs. This, she concluded, was too great a

spread. In reaching her conclusion, Arbitrator Briggs also noted that (at p.7):

In arriving at our conclusion we have taken into account the educational background, licensure requirements as well as the duties and

responsibilities of RPNs. We have compared these elements against those of other hospital workers and their wage ranges from the data provided by

the parties. We have also considered the various settlements of other Hospitals and the Union regarding wages for RPNs. We also considered the request for maintenance of internal equity, general fiscal restraint and the

current severe economic environment. We have also taken into account the principles of replication and demonstrated need. This analysis has led

1 Arbitrator Albertyn notes, as CUPE argued in the instant arbitration, that pay equity could be conducted on a central basis, if the parties so chose, but finds that in the absence of such an agreement it constitutes an impediment to the creation of a standardized RPN wage rate.

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us to find that a wage increase for RPNs is appropriate yet this award provides neither the level of increase urged by the Union nor the level of

restraint urged by the Hospitals. We note in passing that of the four settlements put before this Board, three yielded both higher end rates and

longer periods of retroactivity for RPNs.

In the result, Arbitrator Briggs awarded a 5% increase to the end rate effective

June 1, 2009, after the last of the centrally established economic increases for that round.

2009-13-The Petryshen Award

32. In Participating Hospitals and Canadian Union of Public Employees,

February 10, 2012 (unreported) (Petryshen), Arbitrator Petryshen addressed another CUPE proposal for an RPN wage adjustment. Again, CUPE sought a

minimum end rate intended to close the gap between both the lowest and highest CUPE RPN rates and between RPN and RN rates. Arbitrator Petryshen

found that the differential between the highest and lowest CUPE RPN rates continued to be “too wide a spread for a group of professional employees that

have a high degree of commonality in function.” With respect to the RN

comparator, Arbitrator Petryshen noted:

We are also influenced by the general erosion of RPN rates in relation to RN rates of pay. Although there are obvious differences between RNs and

RPNs, these two classes of professional employees have a close association. This reality was referenced most recently by Arbitrator

Albertyn in the CUPE interest award referred to previously. Although we do not suggest that there should be a magic tie point for RN and RPN rates,

we are convinced that it is appropriate to adjust the RPN rates in light of their erosion in relation to RN rates in the hospital sector, particularly given that RPNs generally now perform tasks previously performed only by RNs.

33. Consequently, Arbitrator Petryshen increased the minimum job rate for CUPE represented RPNs such that the spread between the highest and lowest

rates was reduced to $1.34 per hour. In so doing, Arbitrator Petryshen rejected the argument that he was treating a local issue as though it were a

central issue, noting that he was simply conducting the same comparative analysis that interest arbitrators conduct routinely.

2013-17—The Kaplan Award

34. The last local issues arbitration board prior to the current round was chaired by Arbitrator Kaplan, in Participating Hospitals v CUPE, Local Unions,

2015 CanLII 43930 (ON LA). In that round, CUPE first proposed to address RPN wages rates in the same manner that it has proposed before this board

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of arbitration, i.e., with the introduction of an 8-year step on the RPN wage grid set at 75% of the ONA RN rate. Also as before this board, CUPE relied on

the fact that RPNs are now performing virtually all of the nursing functions performed by RNs, and are doing so autonomously. The Hospitals opposed the

proposal on the grounds that the proposal was not properly a local issue, would amount to an increase of 2.31% of total compensation, and on the

grounds that there was no demonstrated need and no difficulties whatsoever in recruitment and retention. Arbitrator Kaplan rejected the proposal, referring

to the basis upon which previous wage adjustments had been granted, and the absence of any current basis for awarding further adjustments:

In our view, given the commonality in function across this classification, large gaps in rates for RPNs were completely unjustified. For all intents and

purposes, however, those gaps – “the enormous spread” no longer exists. Currently, 56 of the participating hospitals where this issue arises pay $28.55. Nineteen pay between $28.61 and 29.90. One hospital, Mattawa

General, pays $30.18 and another, North Bay General, pays $32.72 (with these two high and outlier rates, the participating hospitals submit,

resulting from pay equity not free collective bargaining). It would be completely inconsistent with, indeed contrary to, the arbitral intervention

to date, clearly directed at removing the unjustified gaps, to bring all participating hospitals up to the top rate enjoyed by employees at a single hospital even if doing so was proposed in the context of establishing a

percentage wage relationship between RPNs and RNs because of

commonality in scope and autonomy in practice.

The union’s request is denied.

35. The Union argues that in determining that the spread between CUPE RPN rates no longer warranted further wage adjustments, Arbitrator Kaplan

failed to address the proposal and the argument that was before him, which was based on the unwarranted disparity between the wages paid to RNs and

RPNs given the substantial overlap in the work they perform.

36. I do not read Arbitrator Kaplan’s award as having misconstrued the Union’s argument, particularly in light of the fact that he identifies that

argument at page 2 of his reasons. Rather, I think a fair reading of the award is that Arbitrator Kaplan rejected the position that the disparity between RN

and RPN wage rates warranted increasing RPN wage rates in the absence of

other compelling factors. Historically, one such compelling factor was the inordinate spread between the RPN wage rates at the various hospitals, and

Arbitrator Kaplan found that as that problem had now been effectively solved further intervention was not required.

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37. Subsequent to the parties’ initial coordinated submission on the RPN wage adjustment, Arbitrator Kaplan issued his award in Service Employees

International Union v Participating Hospitals, 2019 CanLII 23931 (ON) determining the SEIU local issues. Both parties provided the board with

written submissions addressing this award. Like CUPE here, the SEIU also sought an RPN wage adjustment to include an 8-year rate set at 75% of the

RN rate. The union founded its position on, among other factors, the increased accountability, responsibility and scope of practice of RPNs and the historical

relationship between RPN and RN rates, in addition to relying on higher RPN rates at three of the participating hospitals and the principle of replication.

The hospitals opposed the proposal on the grounds that in light of the local conditions, and the absence of any locally-based justification for the wage

adjustment, none of the normal interest arbitration criteria supported granting the wage adjustment. There was no evidence of difficulty in recruiting and

retaining RPNs, and no basis for finding that RN’s were an appropriate

comparator.

38. Arbitrator Kaplan rejected the proposal. He accepted that as a local issue, the determination of whether a wage adjustment is appropriate must

be based on local conditions (p.6). He found, as he did in his prior CUPE local issues award, that the parties had abandoned any adherence to a historical

ratio or “tie-point” between RPN and RN rates. Arbitrator Kaplan accepted that the RPN scope of practice had increased over the years and that RPNs now

perform many of the same job functions once performed exclusively by RNs (although he also found that RNs now also perform duties once performed

exclusively by doctors). However, he found that having regard to the normative interest arbitration criteria there was no case to be made for the

union proposal. He noted in particular that there was no evidence of difficulties in either recruitment or retention. Neither was there any evidence to support

increases under the replication principle. While a small number of hospitals

had bargained higher rates, the differences were relatively small compared to the substantial wage increase sought by the union, were not based on RN

rates, and did not create the kind of gap would give rise to a “catch-up” adjustment at large (p.7).

39. Perhaps most significant is Arbitrator Kaplan’s reasoning in rejecting the

RN rate as an appropriate comparator for the purpose of establishing the RPN rate. As this issue is central to the parties’ arguments before this Board, I set

that reasoning out in full as follows (at pp.8):

The best comparator, of course, for an RPN is another RPN. That is not to

say that one ignores other wage outcomes in the hospital sector, and RN outcomes are certainly worth careful consideration. But when ONA

adjustments have taken place, both at the 8- and 25-year rates, while

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memorialized in awards, this was effectively the result of free collective bargaining and a shared recognition that there was a real problem in

recruitment and retention that needed to be addressed. Both of these factors are completely absent here and these outcomes cannot, therefore,

form the basis for an RPN wage increase. In terms of sectoral replication, it is fair to say that in general, and with extremely limited exceptions, RPN rates outside of hospitals are invariably much lower than those here.

Simply put, RN collective bargaining outcomes do not drive RPN collective

bargaining outcomes and vice versa. The terms and conditions of RN collective agreements do not mirror the terms and conditions of RPN collective agreements. This is reflected in the agreements these parties

have reached. For example, it is legally and factually significant that a comparison of negotiated RN and RPN ATBs over many years amply

illustrates this point – completely different outcomes, and in contractual language as well. All of the criteria are important, but replicating free collective bargaining is the main mission of the interest arbitration

process.

It is worth emphasizing, and among the reasons for this decision denying the union request – as the Participating Hospitals pointed out – is that

there is no evidence whatsoever, again for decades, evidencing either mutual agreement or dispositive and governing arbitral recognition of a ratio relationship between the RPN and RN rates; a relationship that in any

way informs compensation. The actual fact of the matter is that an enormous spread between hospital RPN rates was earlier found to be

unjustified, and then corrected. The gap between hospital RPN rates has been almost completely narrowed as it was an unjustifiable given commonality of core functions (even while acknowledging that deployment

of RPNs varies considerably at the Participating Hospitals and not all RPNs work to their full scope). But that is not the basis for establishing a system-

wide RPN/RN ratio in a local process on an issue that is, as agreed, a local one where local conditions need to be considered even if the matter is argued in a single submission. It is also worth taking note that the cost of

the proposal – and this was not contested by the union – was equivalent to a 2.887% wage increase across all employees covered by the central

collective agreement. Given the cost, compelling evidence responsibly and satisfactorily satisfying some of the governing interest arbitration criteria would have to be present, but it is not. Accordingly, and for all of these

reasons, the union request for RPN adjustments at the Participating Hospitals is denied.

40. CUPE argues that Arbitrator Kaplan’s reasoning is flawed, and that in any event this board has received evidence that distinguishes this case from

the circumstances before Arbitrator Kaplan. Further, CUPE argues that it is by far the larger bargaining agent and has set the bargaining patterns in the

sector. It is CUPE that has historically taken the lead in collective bargaining,

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and SEIU that has followed. In its submissions, CUPE provided many examples of this historical pattern, including with respect to RPN wage adjustments. This

board, argues CUPE, ought to decide the case before it on its own merits and not follow the SEIU outcome where the recognized pattern is in fact to do the

reverse. In this regard, CUPE argues that the evidence before this board shows that there has been a significant increase in the overlap between RN and RPN

scope of practice, proved on a hospital by hospital basis, including specific examples of RPNs replacing RNs, mentoring RN students, and in some

instances taking on the role of charge nurse. CUPE argues that it has provided evidence of RPNs providing more complex and autonomous care than ever

before at each individual hospital.

41. CUPE also argues that Arbitrator Kaplan erred in attaching any greater significance to the fact that the RPN wage adjustment is a local issue than to

recognize that it is only local “by definition”, because the parties could not

agree to make it central.

42. With respect to Arbitrator Kaplan’s conclusion that the SEIU had failed to make any case for the wage increase on the basis of replication, CUPE

argues, citing P.A.M. Gardens Non-Profit Housing Inc. v. Brick and Allied Craft Union of Canada, 2018 CanLII 13736 (ON LA) (Nyman), that the correct

approach to replication is to look to the manner in which the related RPN/RN classifications are dealt with across Canada. In every province but Ontario

where RPNs have an autonomous scope of practice, CUPE argues that RPNs are compensated between 71% to 79% of the RN rate. On this comparator,

CUPE argues that Ontario RPN rates have fallen below any reasonable ratio, and the replication principles supports the increases sought. To the extent

that this argument was not put clearly before Arbitrator Kaplan, CUPE argues that the case should be further distinguished.

43. The Hospitals do not suggest that the Kaplan SEIU award is necessarily determinative of this matter, or dispute that this matter should be decided on

its own merits. However, they maintain that as an award dealing with an identical proposal supported by the same or similar arguments, it ought to be

given significant weight. Further, they maintain that Arbitrator Kaplan has properly identified the applicable principles of interest arbitration, and that the

application of those principles cannot be distinguished on the basis of the facts before this board. The Hospitals specifically dispute the suggestion that the

award mischaracterizes the significance of the wage adjustment as a local issue, or that there is a material distinction between the nature of the “local”

evidence before this board versus the evidence before Arbitrator Kaplan. Local issues, argue the Hospitals, must be addressed at the local level in accordance

with the established principles of interest arbitration. The Hospitals argue that

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to abandon these criteria that govern the interest arbitration exercise in favour of “whatever criteria they deem to be compelling” is untenable.

Decision

44. In assessing whether or not to award an RPN wage adjustment, I reject

the Hospitals’ jurisdictional and preliminary arguments that this board ought not to consider the proposal. The bargaining structure adopted by these

parties necessitates that specific wage adjustments be addressed at the local level, and there is no principled basis for precluding the Union from seeking a

common outcome for each of its locals. Whether that common outcome can be justified at each of the local hospitals in light of the local conditions is

another matter, but the distinction between central and local issues does not preclude the Union from seeking that outcome.

45. Neither is there anything improper in the Union seeking further wage increases for specific classifications on top of the central across the board

increases. Again, the need for the Union to pursue the wage adjustments locally arises from the manner in which the parties have agreed to divide local

and central issues. It cannot be said therefore that the Union has improperly sought to obtain a windfall on top of the central compensation award.

However, it is also the case that in assessing whether or not to grant the wage adjustments, the principle of total compensation requires that this Board

consider the costs to the Hospitals of the central wage increases. In other words, the wage increases in the central award do not preclude the Union from

seeking further targeted wage adjustments, but they are clearly relevant to whether or not those adjustments should be granted.

46. Finally, I also find that the manner in which the Union has pursued the

RPN wage adjustment ought not to preclude us from granting it. I am troubled

by the absence of any evidence of meaningful local bargaining with respect to this issue. Interest arbitration is an alternative to strike/lockout: it is not

intended to serve as an alternative to bargaining at all. However, on the basis of the materials before us, I would not attribute the failure to bargain this

issue to CUPE in particular. Rather, it appears to arise from the structure of central and local bargaining and equally each party’s desire to protect their

strategic interests. This is not a case of unilateral intransigence. Neither do I find anything improper in the manner in which the Union amended its proposal

to move the wage adjustment to the 8th year. This kind of softening of an existing proposal is not of a nature that would undermine either the

central/local vetting process or the interest arbitration process in general.

47. I also accept, as the Union has argued and the Hospitals have not disputed, that this board must decide the case that is before it. As will be

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apparent, I am persuaded by the reasoning in Arbitrator Kaplan’s recent SEIU award. As an award dealing with the same class of employees in the same

sector and addressing the identical issue, there can be no doubt that Arbitrator Kaplan’s award warrants serious consideration. Nonetheless, had CUPE made

out a compelling case for an RPN wage adjustment, the fact that it was not awarded to the SEIU would not preclude my granting that proposal here.

However, having carefully considered all of the evidence before us, including the materials presented with the coordinated submissions together with the

representations of the local parties, I find that I must reach the same conclusion for substantially the same reasons.

48. In terms of the status of the RPN wage adjustment as a local issue, I

have no difficulty concluding that it should not be awarded unless it is warranted at the local level. I accept the Union’s characterization that the only

distinction between local and central issues is whether or not the parties

happen to have agreed to include or exclude the issue from the central table (as opposed to a principled distinction based on the nature of the issue itself).

But the absence of an agreement to deal with the issue centrally is nonetheless a significant fact. When parties agree to bargain central terms, they effectively

agree to throw their lot in together. Central proposals must necessarily be weighed against the aggregate circumstances of the group that is bargaining

together. The end result might differ, even significantly, from what would be warranted if one considered the circumstances of one particular member of

the group in isolation. That is the nature of central bargaining. In local bargaining, there is neither a need nor any compelling reason to adopt such

an aggregate approach. Rather, local parties must necessarily bargain in the context of their own specific circumstances.

49. This is not to say that the same considerations could not militate in

favour of the same result across locals. Indeed, that is essentially what CUPE

argues should happen here, and in this respect the distinction between local and central bargaining as a matter of jurisdiction is something of a red herring.

Neither do I suggest that the locals should be considered as islands unto themselves. Arbitrators routinely look to the outcomes at associated

bargaining units in applying the principle of replication at the local level. But the ultimate outcome must be warranted at the local level.

50. At the core of the dispute between the parties is whether RN rates

should be the determinative comparator in setting RPN wage rates, and whether it is appropriate to look outside the province and consider RPN wage

rates and the relationship between RPN and RN rates across the country in setting rates in Ontario. The Union argues that three post-2001 Arbitrators

have found it was “fully appropriate to compare RPN and RN wage rates.” In

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my view, this characterization overstates the significance of the RPN/RN comparison in those awards.

51. As summarized above, it is clear that the RN “tie-point” comparator has

not been a factor in either settlements or arbitral outcomes for decades. Where the tie-point was applied by Arbitrators, they did so specifically because

it had been adopted by the parties themselves in free collective bargaining. That is no longer the case, and while CUPE seeks to restore a tie-point between

RN and RPN compensation, it does not (and cannot) seek to justify it on the basis of bargaining patterns as it did in the past. Since 2001, Arbitrators have

at best referred to RN compensation as one consideration among many in setting RPN wage rates. But reading those decisions as a whole, it is clear that

in each case where increases were awarded, those increases arose primarily from comparisons of RPN (not RN) compensation across the hospital sector as

a whole, with no substantial analysis or reliance on RN compensation in

support of the outcome. The bottom line is that there is no evidence before us to establish that adopting an RN comparator, in the absence of any other

factors supporting a wage adjustment, would in any way replicate the outcome of free collective bargaining. In this regard I agree with and adopt the

reasoning of Arbitrator Kaplan. Neither is there anything before us to support adopting extra-provincial comparators in replicating the outcome of local

collective bargaining of for RPN wage rates. For the same reasons articulated by Arbitrator Kaplan above, I find that the evidence does not support the

conclusion that RN collective bargaining outcomes drive RPN collective bargaining outcomes.

52. Arbitrators have long recognized that wage adjustments can be an

appropriate response to difficulties with recruitment and retention. In this regard, the Union presented limited evidence at a small number of hospitals

that it argued supported a need for increased wage rates to address difficulties

in recruitment. In all cases, this evidence was contested by the local hospital, who maintained that they were the employer of choice for RPNs in their local

area and that any difficulty in recruiting was limited to RNs, and not RPNs. Having considered all of this evidence, including the evidence filed by the

Hospitals with the coordinated submissions as well as the representations at the local level, I cannot find that there are significant difficulties in recruitment

and retention such as would support a wage adjustment.

53. Having considered the evidence as a whole, I find that CUPE has not established grounds for an RPN wage adjustment at any of the local hospitals.

The Union has undoubtedly established that there is a significant degree of overlap in the duties of RNs and RPNs, and that the role of the RPN has evolved

over time. But the fact remains that RPNs and RNs are different classifications within the hospitals, with substantially different educational requirements. The

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overlap between duties and the manner in which RNs and RPNs are deployed is not complete and the distinctions continue to be significant at the macro

level. It is also clear that other factors that drive compensation, such as recruitment and retention, do not necessarily apply equally to RNs and RPNs.

CUPE firmly believes that the gap between RN and RPN compensation grossly overvalues the distinctions between the two classes of nurse. Clearly, CUPE

believes that this wage gap is unfair. But it has not identified any basis, statutory or otherwise, upon which this board of interest arbitration ought to

intervene to address this perceived unfairness. The considerations that motivated prior boards to adjust RPN wage rates are absent here. Even

considering RN compensation as one factor among several warranting consideration, there is no evidence to suggest that the relationship has

changed materially since those prior adjustments were awarded. Were we to grant an adjustment now, we would not be replicating the outcome of free

collective bargaining, or applying any of the principles of interest arbitration,

statutory or otherwise, as we are required to do. Rather, we would be imposing our own value judgment as to what would constitute a fair reflection

of the distinction between the two classes of nurse. That is simply not the role of the interest Arbitrator. Further, in light of the fact that any wage adjustment

would be on top of the across the board increases already achieved at the central table, the principle of total compensation militates against any

additional wage adjustment in the absence of other compelling factors.

54. For all of these reasons, we decline to award an RPN wage adjustment.

Other Issues

55. While no issues other than the RPN wage adjustment were dealt with on a coordinated basis, there were 2 other issues that arose at several different

local hospitals where we have concluded that local conditions warrant a

common outcome.

56. The evidence before us establishes that the uniform allowance at a number of the local hospitals has fallen well behind the cost to employees of

purchasing uniforms. Arbitrator Kaplan reached a similar conclusion in the most recent round of SEIU local hospital interest arbitration, increasing the

uniform allowance there to $150 for full-time and $100 for part-time employees. The evidence before us also establishes that CUPE has succeeded

in freely bargaining increases to the uniform allowance for both full-time and part-time employees at a number of locals in this round of bargaining. In its

proposals, CUPE has generally sought to increase the quantum to $160 and to collapse the distinction between full and part-time employees, a result it

has achieved through free collective bargaining at several of its locals. While the evidence does not warrant collapsing the distinction between full and part-

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time employees at those hospitals where it continues to exist, it does warrant a significant increase to the quantum of the uniform allowance where CUPE

has argued for the proposal in front of this board, as reflected below. In all cases the increases shall be implemented in the first full pay period following

the date of this award, with prorating, and except where specifically identified without otherwise amending the existing language or pre-requisites.

57. The second such issue is preceptorships. In the last round of CUPE Local

Hospital interest arbitration, CUPE was awarded preceptorship language in each local where it had an outstanding proposal. In this round, the Union has

sought slightly modified language at a number of additional locals, and in some instances to increase the quantum of the premium. We are satisfied that

in circumstances where this language has been agreed-to or ordered across the sector, and where there is evidence that RPNs are taking on an increased

role in supervising students at the local level (and in some instances are

receiving the premium even absent language in the collective agreement), both the principles of replication and demonstrated need warrant granting

preceptorship language where it does not exist. We would not, however, depart from the standard language that has been agreed-to or ordered across

the sector or increase the premium in this round. Instead we order the inclusion of the language and premium as ordered in the prior round of interest

arbitration, in those hospitals where CUPE has argued for its inclusion before us.

58. In addition to the RPN wage adjustment which CUPE seeks for almost

all of its local bargaining units, the Union has sought wage adjustments with respect to over 65 separate classifications in over 15 separate bargaining

units, not including adjustments arising from harmonization of merged bargaining units, which are dealt with in supplementary awards. In each case,

we have considered all of the principles of interest arbitration, including the

statutory considerations, with a particular eye to the principle of replication and the identification of appropriate comparators (including considering

whether there are established bargaining and interest arbitration patterns and looking to the nature and geographic location of the hospital), and having

regard to the principle of total compensation and any particular local conditions (including whether there are demonstrated issues of recruitment

and retention and internal equity).

59. We note in particular, and as reflected below, that several of the wage adjustments related to certain paramedical classifications where, as a result

of established bargaining patterns, Arbitrators have looked to OPSEU comparators in the hospitals. Where appropriate and consistent with the

findings in Briggs, Petryshen and Kaplan awards cited above, we have also looked to the OPSEU comparators. In some instances, the established tie-

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point between the CUPE and OPSEU rates were not maintained through recent rounds of bargaining. In my view, these lapses reflects structural differences

in the CUPE and OPSEU agreements from that round, (including two years of zero across the board increases in the case of OPSEU and reduced across the

board increases in subsequent years for CUPE with the payment of lump sums), rather than any abandonment of the OPSEU comparator by the

parties. While we have found a return to the OPSEU rates appropriate we have, as have prior boards, made allowances for the transition to the higher

rates.

60. A common theme raised by many of the local hospitals, and argued most comprehensively by the Scarborough Health Network was the argument that

many of the wage adjustments sought would disrupt the existing pay equity balance, and could in many cases result in cascading pay equity increases to

other classifications. The hospitals raised particular concern where the

adjustment related to a classification with few incumbents (and therefore a relatively modest immediate cost to the employer) but which could be a pay

equity comparator for other highly populated classifications. In some instances, the hospitals argued that as an interest arbitration board with no

pay equity jurisdiction, granting the wage adjustments sought and therefore rendering the hospitals non-compliant with pay equity would exceed our

jurisdiction. The Union vociferously opposed these arguments, arguing that to rely on pay equity to artificially restrain wage rates for a male comparator

in order to avoid having to pay a predominantly female job classification a higher wage is to subvert pay equity’s very purpose. The parties referred to

decisions in North Bay Police Services Board and North Bay Police Association, 2005 CanLII 63782 (ON LA) (Snow), West Park Hotel v. S.E.I.U. Local 204,

1992 CanLII 8578 (ON SCDC) London & District Service Workers, Local 220 and Women’s Christian Assn., 1996 CarswellOnt 1279 (OCA) (“Parkwood”), in

addition to decisions finding that parties have contravened the Pay Equity Act

when agreeing to wage increases that violated their existing pay equity plan, all of which I have carefully reviewed and considered.

61. In my view, pay equity legislation does not raise a jurisdictional

impediment to granting the wage adjustments sought by the Union. Both parties agree that we do not have the jurisdiction to determine pay equity

outcomes (and we do not have before us anything approaching the information we would require to make those determinations in any event). We

do, however, have the unequivocal jurisdiction to determine whether the principles of interest arbitration warrant granting individual wage

adjustments. Where those outcomes have pay equity implications, those issues can be dealt with by the parties and, failing agreement, a tribunal of

competent jurisdiction. In granting wage adjustments in this award, we do not purport to override pay equity or the statutory obligations of the parties under

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the Act. The circumstances here are therefore distinguishable from the circumstances in Parkwood. The legislative provision in that case specifically

fixed compensation at the rates in effect on a particular date, and the Court found that it was therefore not open to an arbitration board to order a different

amount (at para 29). That is not the circumstance here. In this case, if the statute requires further pay equity adjustments as a result of wage

adjustments granted here, then the obligation rests with the parties to ensure that they are in compliance with those statutory obligations. It would be

absurd to conclude that this board’s jurisdiction to carry out its explicit statutory function could be ousted by the mere mention of an issue that all

parties agree falls outside of our jurisdiction, particularly where there is no impediment to the parties addressing that issue themselves or, absent

agreement, addressing it in the appropriate forum.

62. Where the Union has established a compelling basis for a wage

adjustment, the mere fact that that adjustment could result in pay equity increases for others ought not to preclude granting the increase. I agree that

to adopt such a principle would constitute a failure to carry out our function under HLDAA while subverting the principles of pay equity.

63. However, the fact that pay equity does not preclude us from granting

wage adjustments does not mean that pay equity considerations are irrelevant. In many cases the relationship between classifications in the

hospitals before us have arisen from extensive (and in some cases repeated) job evaluation and pay equity processes. It is in my view entirely appropriate

and important to carefully consider the significance of this internal balance when determining whether there are compelling reasons to disrupt that

balance through the grant of a targeted wage adjustment. Internal equity is clearly a factor that drives collective bargaining outcomes and we would be

remiss to ignore it entirely.

64. With all of the above in mind, we direct the following:

Geraldton District Hospital

Uniform Allowance-Increase quantum for full-time employees only to $150. Status Quo for part-time and casual employees.

Preceptorship-Replicate the language ordered in the 2013-17 Interest Arbitration

Sioux Lookout Meno-Ya Health Centre

Northern Health Travel Grant

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65. CUPE has put forward a compelling basis on both the principles of

replication and demonstrated need for its proposal to reinstate a Northern Health Travel grant provision that was, from CUPE’s perspective, removed

from the 2013 collective agreement under a misapprehension concerning the scope and significance of local bargaining. The Employer has recently agreed

to an amended version of a similar provision with another bargaining agent, the terms of which we find most appropriate. In all the circumstances, we

order the inclusion of the following provision:

Northern Health Travel Grant

A full-time employee will be granted two days off with pay to

attend a personal, medical or dental appointment which is a referral from a family physician or dentist to see an out-of-town specialist. A full-time employee will be granted one day off with

pay to attend with a spouse or their child, medical or dental appointment which is a referral from a family physician or dentist

to see an out-of-town specialist. The employee will supply a copy of the Northern Ontario Travel Grant or equivalent documentation to verify the appointment.

Notre Dame Hospital

Uniform Allowance-Increase quantum to $150 for Full-Time and $100 for Part-Time.

Hornpayne Community Hospital

Uniform Allowance-Increase quantum to $150 for Full-Time and $100

for Part-Time.

Trillium Health Partners

Distribution of Overtime-K.9 Distribution of Overtime to read:

Overtime will be offered in rotating order of seniority within the classification within a pay period, among those available who normally perform the work. It is understood that overtime will be

offered to full time employees prior to being offered to part time employees.


24

Hawkesbury And District General Hospital

Preceptorship-Include a preceptorship provision replicating the language ordered in the 2013-17 Interest Arbitration.

West Nipissing General Hospital


Meal Allowance-Increase quantum for employees working four

(hours) or more beyond his or her regular scheduled shift to $9.

Winchester Memorial Hospital

Meal Allowance-Increase quantum to $9. Preceptorship-Amend R-2 (a) and (b) to replicate the preceptorship

provision ordered in the 2013-17 Interest Arbitration.

Pembroke Reginal Hospital

Parking-Increase maximum rate to $22 per pay period in the ‘paid parking’ lots.

Paramedical Wage Adjustments—All adjustments effective September 29, 2017 and inclusive of the 2017 1.4% general increase.

Retroactive to September 29, 2018.

• MRI Technologist-$42.65 • Occupational Therapist-45.13

• Physiotherapist-$45.13 • Rehabilitation Assistant-$27.56 • Pharmacy Technician-$29.47

Cornwall Community Hospital

Uniform Allowance- Increase quantum to $150 for Full-Time and

$100 for Part-Time.

Preceptorship-Include a preceptorship provision replicating the language ordered in the 2013-17 Interest Arbitration.

Queensway Carleton Hospital

25


Preceptorship-Include a preceptorship provision replicating the

language ordered in the 2013-17 Interest Arbitration Cardiology Technologist (E.C.G.) Wage Adjustment-Increase job rate to

32.76 effective September 29, 2017, inclusive of the CUPE General Wage Increase for that year.

Hamilton Health Sciences and CUPE Local 7800 (Service, Office and Clerical)

Meal Allowance-Increase quantum to $9.00.

Uniform Allowance-Increase quantum for full-time employees to $12.50 per month.

LOU-Responsibility Pay West Lincoln B Ward Complex Continuing Care—Renew LOU

66. Both parties also have outstanding proposals with respect to scheduling additional shifts. It is clear from the representations before us that the current

system of scheduling additional shifts is not working. For example, the Hospital notes that between August 2-16, 2018 it needed to fill 2,848 shifts,

requiring 8, 158 phone calls. The current system has also given rise to almost 200 grievances since the commencement of the expired collective agreement.

The hospital has clearly established a demonstrated need for change, a fact which is acknowledged to some degree by the Union’s counter-proposal. The

three most significant differences between the parties’ proposals are: i) the application of the provision to casual employees; ii) the frequency with which

employees can indicate their willingness to work additional shifts, the total number of hours they are willing to work and their availability (whether twice

or year or before each schedule); and, iii) the application of the provision to employees on temporary assignments (whether based on their home position

or on their temporary assignments).

67. Having considered all of the parties’ submissions, I find that an

incremental approach to this problem is warranted, so as not to disrupt the status quo more than is required to address the demonstrated need. If

necessary, the parties are of course free to further address the problem in a subsequent round of bargaining. In all the circumstances, and in an effort to

break the existing deadlock while providing the parties with an opportunity to craft their own language, we order that the collective agreement shall include

a provision that reflects the Union’s proposal with respect to the casual

26

employee issue and the Hospital’s proposal with respect to the application of the provision to employees on temporary assignments. We remain seized and

if the parties are not able to resolve the remaining issues in dispute with respect to this proposal it shall be remitted to us within three months of the

date of this award.

Hamilton Health Sciences and CUPE Local 7800-01 (Trades)

Meal Allowance-Increase quantum to $9.00.

Huron Perth Healthcare Alliance

Preceptorship-Include a preceptorship provision replicating the

language ordered in the 2013-17 Interest Arbitration

Markham Stouffville Hospital

68. The remaining outstanding issue at Markham Stouffville Hospital is

CUPE’s proposal to eliminate the existing float holiday and substitute remembrance day as a fixed holiday in its place. In support of its proposal,

CUPE relies on a consistent line of arbitral awards including The Participating Hospitals and The Canadian Union of Public Employees, December 19, 1989

(unreported) (Thorne), The Participating Hospitals and Canadian Union of Public Employees, May 3, 2004 (unreported) (Carrier), Participating Hospitals

and Canadian Union of Public Employees, August 4, 2009 (unreported) (Briggs) and Participating Hospitals and Canadian Union of Public Employees,

September 21, 2012 (unreported) (Petryshen). While I accept that there is a

cost attached to this proposal, there is a clear and established pattern in the sector of this bargaining agent successfully converting float to fixed holidays,

the principle of replication strongly supports granting this proposal and I find that there are no other factors that would warrant departing from the norm in

this instance.

Paid Holidays- Effective January 1, 2020 Delete 1 Float Holiday for

Full-Time and Part-Time employees and substitute Remembrance Day.

North Bay Regional Health Centre and Mattawa General Hospital

(Paramedical)

69. CUPE seeks a wage adjustment for the paramedic classifications at both

hospitals. As noted by prior boards of interest arbitration, these paramedics are differently funded than the Hospitals’ other employees (in this case the

Nipissing DSSAB) and the majority of paramedics in the province are

27

employed by municipalities. Arbitrators have therefore looked to comparators outside the hospital sector in setting wage rates for paramedics employed by

the Hospitals.

70. CUPE here seeks to narrow the gap between the current paramedic wage rates at the Hospitals and the top rates for municipal paramedics in

Durham, and seeks increases of 2.5% in each of the four years of this agreement in order to achieve that result. The Hospitals oppose the request,

arguing that the general wage increases obtained through central bargaining are entirely sufficient, the rates obtained through those general increases

maintain the Hospitals’ paramedics in line with settlements generally, and that there is no demonstrated need for further increases.

71. I see no basis for dramatically increasing the rates at this hospital to

approach parity with the highest paid paramedics in the province at this time,

particularly in light of the settlement trends in the sector more broadly. I would, however, seek to maintain the comparability established by the prior

board of interest arbitration. I therefore order the paramedic rates (Paramedic 1 at North Bay and Paramedic at Mattawa) adjusted as follows, together with

the equivalent increase to the related Paramedic 2 and Team Leader classifications where applicable, so as to maintain the existing differentials:

Paramedic Wage Adjustment

Effective September 29, 2017-$38.32 Effective September 29, 2018-$38.96 Effective September 29, 2019-$39.62

Effective September 29, 2020-$40.27

All increases are inclusive of the general wage increase, and retroactive to all current and former employees within sixty days.

North Bay Regional Health Centre

Work Schedules-Amend T.05 c) to read:

No shifts shall be added to the schedule after it has been posted, without verbal confirmation from the Employee that they will

accept the shift.

LOU-12 Hour Extended Tours-Status quo/Maintain Existing LOUs

Hôpital Glengarry Memorial Hospital

28

72. For the same reasons as articulated above with respect to Markham Stouffville Hospital, we will also award CUPE fixed holidays here. However, as

the Hospital notes, the combination of fixed holidays proposed by CUPE (adding both Remembrance Day and Easter Monday) do not align with the

existing fixed holidays the Employer has agreed to with another bargaining agent or with several other comparators. We therefore order the following:

Article 8.01 – Paid Holidays (FT & PT)-Effective January 1, 2020 Delete Employee’s Date of hire (first day of work) and float holiday and

substitute 3rd Monday in June and Remembrance Day.

Hospital for Sick Children

73. For the reasons articulated above we would also grant CUPE’s proposal

to substitute fixed holidays for the two existing float holidays:

Article G.01-Holidays and G.02 Float Days-Effective January 1, 2020

Delete Article G.02 and amend article G.01 to delete reference to Two Floating Holidays and substitute Easter Monday and Remembrance Day.

CONCLUSION

74. We remain seized as identified above and in accordance with s.9 of the Hospital Labour Disputes Arbitration Act.

Dated at Toronto, Ontario, this 26th day of May, 2019

“Eli Gedalof” ______________


“I dissent” ______________

Brian O’Byrne, Employer Nominee

“I dissent” _______________


29

DISSENT I disassociate myself from this award. One reading the award, might reasonably wonder how a matter could proceed on some sixteen

days of hearing after the coordinated RPN issue was argued in September of 2018, and end

with a result that merely increases the quantum of the uniform allowance to the level of the

Kaplan SEIU award; raises the meal allowance to a level $1.00 less than was awarded by the

Local Issues board in the 2009-2013 round, and; repeats the previous Local Issues award on

preceptorship, while providing only a small number of other collective agreement changes. The

answer to that query is that wage adjustment proposals of the union, to various classifications

not mentioned in the award, constituted a large part of the robust cases presented at various

hospitals across the province. In a fashion entirely unprecedented for Local Issues awards

between these parties, these proposals have been systematically ignored in the award and very

obviously dismissed as a class, resulting in an outcome that is severely imbalanced, again in an

unprecedented fashion. I make this comment in contrast to the frequent acknowledgment in

dissents to prior Local Issues awards between these parties, that acknowledge a Chair’s effort

to reach a balanced and fair result Regrettably, the outcome of this award is not one reflective

of that goal.

Wage Adjustments I will deal with the dismissal of the RPN adjustment proposal separately below. At many of the hospitals where the parties appeared before this board, the union made

proposals for wage adjustments that go individually unmentioned. Except for Pembroke

Hospital in relation to a small number of employees in professional classifications usually

represented by OPSEU; a handful of employees in a like classification at Queensway Carleton

Hospital, and; paramedics at North Bay and Mattawa, all of the union’s proposals for wage

adjustments, without regard to comparability, have been dismissed. I will deal with the most

egregious example, Hospital for Sick Children, separately below.

30

The union’s proposals for wage adjustments concerned various classifications from entry level

Aide classifications, through to trades. By my count, some 62 such proposals were made at 16

different hospitals throughout the province. In almost every case these proposals were

supported by OHA wage surveys for hospitals in the same region, of the same type (e.g.

community or teaching), and of the same size. From that data, the board was able to make

assessments in respect of comparability and thus replication.

By noting that there were 62 such classifications at issue which do not include lightly populated

‘OPSEU-related’ professional classifications or paramedics, I am not suggesting that the mere

making of a number of proposals by the union should be a guarantee that some number should

be accepted. But the opposite is also true. Those proposals deserved assessment on their

merits, which has occurred in every prior Local Issues awards, but not in this one. Instead,

every one of them has been dismissed, indicative of their dismissal as a class. The result is an

extraordinarily one-sided and imbalanced award.

The arbitrator purports to address this result at paragraphs 62-63. If I may paraphrase

paragraph 62, it states that if a bald argument be made that a wage adjustment to a male-

dominated classification should be denied solely on the basis of pay equity, that argument

cannot be sustained. This of course, should be obvious as it would subvert the legislative

structure of the Pay Equity Act. But the arbitrator continues to say that while such an argument

cannot be sustained in its bald version, it should nonetheless receive favour in assessing wage

adjustments. In my view, the same subversion of the legislative structure then enters through

the back door, having been supposedly denied entry through the front. It makes little sense to

say that wage proposals for male-dominated classifications should not be dismissed flatly by

virtue of their pay equity implications, but that the pay equity implications should nonetheless

be considered in order to arrive at the same result.

31

At paragraph 63, the arbitrator accepts a commonly-made, and otherwise commonly rejected

employer argument that to award wage adjustments would undermine what he calls “internal

equity” and “internal balance”. First of all, it is the arbitrator’s own unsupported conclusion

that the status quo represents “balance” and “internal equity”. In few if any cases was the

board provided with such evidence of balance and equity. Instead, there is merely the status

quo, where wage rates bear a percentage relationship to other wage rates, as any two numbers

bear a relation to each other. But that does not create ‘balance’ or ‘equity’, and rarely was

evidence provided that would suggest that external comparability should be outweighed by

some greater ‘internal good’.

The arbitrator writes “Internal equity is clearly a factor that drives collective bargaining

outcomes and we would be remiss to ignore it entirely”. It is not all apparent where the

arbitrator sources his purported knowledge of what “drives collective bargaining outcomes” in

the hospital sector. Certainly no such evidence has been provided to this board in respect of the

hospital sector. But more importantly, what has been ignored entirely, is external comparability.

While I note above that the union, having proposed 62 wage adjustments at 16 different

hospitals, was not guaranteed a result simply by the number of such proposals, it is

extraordinary indeed that of those proposals, based upon the best evidence of comparability,

not a single one succeeded. What has been ignored instead of internal “balance” and ‘equity”,

whether existent or not, is comparability itself. This result is most egregious at the Hospital for

Sick Children.

Hospital for Sick Children

The first collective agreement at the Hospital for Sick Children, was the result of an arbitration

award by R. Joyce some thirty years ago. In that award, the arbitrator accepted an obviously

flawed employer argument that because hospital sector bargaining occurs provincially,

therefore wages should be set at the level of the provincial mean rather than the Toronto

mean. In my dissent at the time, I noted the obvious flaw. If Toronto rates, which were

32

significantly higher, were negotiated on the basis of the provincial rather than local mean, there

would be no difference in rates at all between Toronto and the rest of the province, as there

clearly was. Since that time, employees at HSC have generally worked for wages considerably

less than those paid at other Toronto-area hospitals where employees are also represented by

CUPE.

A significant improvement to that situation was made in respect of trades classifications in the

2009-2013 Petryshen award. In this round, the union sought adjustment to numerous

classifications, including the most lowly paid aide classifications. A dietary aide at HSC for

example, receives wages comparable to those negotiated in remote rural areas of Ontario.

Indeed the hospital relied upon rates of pay at Hornepayne Ontario, a community of 980

people some 1,100 km. away with a cost of living of course, far lower than Toronto. When

compared to Toronto-area hospitals, the lack of comparability is clear.. For example,

Housekeeping Aides and Dietary Aides at HSC are paid $21.45 per hour, more than $1.00 hour

less than at University Health Network a few steps away, and significantly less than the

comparability data evidenced was normative for CUPE-represented Toronto-area hospitals.

Ignoring comparability to the detriment of the most economically disadvantaged employees, as

occurs in this award, is something that brings no credit to the interest arbitration process. The

arbitrator’s claim to have examined and applied local comparability, as is required at s.9 (1.1)4

of the HLDAA, is entirely inconsistent with the result at Hospital for Sick Children, and

elsewhere. The data before the arbitrator indicated a clear disparity in wage rates when HSC

rates are compared to those at other Toronto hospitals. And while it is obvious that paying

normative rates costs an employer more than does paying sub-normative ones, that surely

cannot be the basis for repudiating, as this award does, the comparability principle.

RPN Adjustment

33

My views on this issue are set out in my dissent to the award in the prior round. In Ontario,

while the nursing profession has moved toward what is now a single scope of practice,

influenced by three-factors (including the nurse, whether RN or RPN), collective bargaining

results for RPN wage rates have not kept up with the transformation of the practice. Instead,

RPN rates have been affected by two other things – first, comparison to other male-dominated

male classifications in the same bargaining unit rather than to RN’s with whom they now share

a scope of practice, and second; narrowing the gap between RPN’s. When compared to other

provinces, RPN’s in Ontario bear a salary relationship to RN’s that appears in provinces where

RPN’s practice under the supervision of RN’s, notwithstanding that in Ontario they practice

autonomously. In provinces where RPN’s practice autonomously, like Ontario, RN and RPN

rates bear a closer relationship.

It is not enough for arbitrators to trace the history of RPN wage adjustments in the hope of

demonstrating that RPN rates and RN rates have developed separately. As the practice of

nursing becomes more uniform, that is exactly the problem, rather than a solution.

The evidence before the board was supportive of this increased overlap in the practice of

nursing. For example, at one hospital we heard that senior RPN’s at the commencement of a

shift are substituted for more junior and less experienced RN’s.

In my view an adjustment to the RPN rate was warranted and ought to have been awarded.

Dated at Ottawa, this 26th day of May 2019.

Joe Herbert Union Nominee

34

SCHEDULE “A”

APPEARANCES

September 25, 2018-Toronto (RPN Wage Adjustment Coordinated Submissions)

For CUPE

Jonah Gindin, CUPE Tracey Pinder, CUPE Heather Farrow, CUPE

For The Participating Hospitals

Carolyn Kay, Counsel, Hicks Morley Hamilton Stewart Storie LLP Adrian Di Lullo, Consultant, Labour Relations, OHA

Joyce Chan, Labour Relations Analyst, OHA

October 4, 2018-Thunder Bay

For Geraldton District Hospital

John Bruce, Counsel Dean Osmond, Executive VP and CVO

AJ Lee For CUPE Local 3074

Jonah Ginden, CUPE National Representative

Mike Walters, CUPE National Representative Anita Larocque, Local President Tracey Hewitt, Local VP

For Lake of the Woods District Hospital

John Bruce, Counsel

For CUPE Local 1781

Jonah Ginden, CUPE National Representative Judy Bain, Local President Christopher Anderson, VP RPN

Mike Rodrigues, CUPE National Representative

For Sioux Lookout Meno-Ya-Win Health Centre

35

John Bruce, Counsel Dean Osmond, Executive VP and CVO

AJ Lee, Director of Human Resources

For CUPE Local 4373 Jonah Ginder, CUPE National Representative

Mike Rodrigues, CUPE National Representative

October 19, 2018-Timmins For Notre Dame Hospital

Robert Hickman, Counsel

Tina Désormier, Hospital Marylene T. Comeau, Hospital

For CUPE Local 3549

Tracey Pinder, Healthcare Coordinator Norm Berthiaume, CUPE National Representative

Pierrette Nolet, RPN Elaine Roy, RPN

For Chapleau Health Services

Michael R. Carré, Counsel Ehran Baldauf, HR Consultant

For CUPE Local 4108

Tracey Pinder, Healthcare Coordinator Norm Berthiaume, CUPE National Representative Joanne Serre, Local President

Catherine Couture, Local Vice President

For Hornpayne Community Hospital Robert Hickman, Counsel

For CUPE Local 3178

Tracey Pinder, Healthcare Coordinator Felicia Forbes, National Representative

Darlene Gergais, Secretary Treasurer

For Temiskaming Hospital

36

Wayne Stratton, HR Consultant Karen Maisonneuve, Interim HR Manager

For CUPE Local 904

Tracey Pinder, Healthcare Coordinator Dick Black, President

Tammy Robinson, Staff Rep. Felicia Forbes, Staff Rep.

October 26, 2018-Toronto

For Trillium Health Partners

David Foster, Counsel Antoinietta Baruzzo, Manager, Employee and Labour Relations Catherin Calder

For CUPE Local 5180

Tracey Pinder, Healthcare Coordinator

Joe Ricci, Local President Pasquale Romano, Local Vice President CVH Chris Kremizis, Maintenance Representative

Peter Karastamatis, Local Vice President, Mississauga Site Sandra Higginson, CUPE National Representative

October 30, 2018-Sudbury

For Health Sciences North

Jesse Stanson, Employee/Labour Relations Advisor Diane Barbeau, Manager, Employee/Labour Relations

For CUPE Local 1623

Tracey Pinder, Healthcare Coordinator Cathy Donnelly, CUPE National Representative Dave Schelefontiuk, Local President

For St. Joseph’s Continuing Care

Kari Gervais, VP Clinical Services King Long, Director of Human Resources

For CUPE Local 1623.01


37

Dave Shelefontiuk, President Cathy Donnelly, CUPE National Representative

November 1, 2018-Peterborough

For Campbellford Memorial Hospital

Elizabeth Vosburgh, VP, Corporate Services

For CUPE Local 2247 Jonah Ginden, CUPE National Representative

Grant Darling, CUPE National Representative Maggie Jewel, OCHU Area 4 VP

For Northumberland Hills Hospital

Elizabeth Vosburgh, VP, Corporate Services

For CUPE Local 2247

Jonah Ginden, CUPE National Representative Grant Darling, CUPE National Representative Alice Cunnington, Local President

David Comeau, Chief Steward

For Ross Memorial Hospital Greg Shaw, Counsel

Emma Elly, Director Human Resources Sharon Gilchrist, Lead Consultant HR/LR

For CUPE Local 1909

Jonah Ginden, CUPE National Representative Grant Darling, CUPE National Representative

Maggie Jewell, Local President Melissa Lotton, Local Vice President and Chief Steward

For Peterborough Regional Health Centre

Sue Haydn, Labour Relations and Compensation Consultant Jenna Koyanagi, Scheduling Supervisor

For CUPE Local 1943

Jonah Ginden, CUPE National Representative Grant Darling, CUPE National Representative

38

Laurie Hatton, Local President Debbie Ridge, Chief Steward

Carol Brundage, Treasurer Glenda Ainsworth, Steward

Doug Given, Steward November 6, 2018-Ottawa

For Royal Ottawa Hospital

Jacquie Dagher, General Counsel Alicia Bouchard, Manager, Labour Relations and Conflict Resolution

Jessica St. Pierre, Articling Student

For CUPE Local 942 Tracey Pinder, Healthcare Coordinator

Margo Pasley, CUPE National Amir Sigarchi, Local President

Lisa Riasyk, Chief Steward

For Hawkesbury and District General Hospital André Champagne, Counsel

Julie Mathé, Researcher Benoit Daigneault, Senior Advisor, Labour Relations

For CUPE Loal 1967 Paul Boileau, CUPE National Representative

Tracey Pinder, Healthcare Coordinator Linda Villeneuve, Local President

Therese Crête, Local Vice President Sylvie Vandette, Treasurer Gilles Crête, Recording Secretary

November 8, 2018-Sudbury

For West Nipissing General Hospital

Carole Galarneau, Human Resources Manager Dan McPherson, Bass Associates

For CUPE Local 1101

Tracey Pinder, Healthcare Coordinator Martin Coursol, CUPE National Representative

Steven Lamarre, Local President Sue Legault, Steward

39

For Manitoulin Health Centre

Geoff Jeffrey, Counsel

Nicole St. Georges, Director of Human Resources For CUPE Local 1332


Roxanne St-Amour, Local President Collee Bruder, Bargaining Committee Frank Lapensée, CUPE National Representative

November 14, 2018-Ottawa

For Winchester District Memorial Hospital

Paquel Chisholm, Counsel Paula Campbell, Director of Research Emond Harnden LLP

Michelle Blouin, VP Corporate Services

For CUPE Local 3000 Tracey Pinder, Healthcare Coordinator

Paul Boileau, CUPE National Representative Corrine Wicks, Local President

For Pembroke Regional Hospital

Raquel Chisholm, Counsel, Emond Harnden, LLP Paula Campbell, Director of Research, Emond Harnden, LLP

Melanie Leclair, Director of Human Reserouces, Pembroke Regional Hospital Shelley Sypes, Manager of Scheduling, Pembroke Regional Hospital Tara Gallagher, Coordinator Leave/Attendance and Labour Relations

For CUPE Local 1502

Simone Burger, President Graeme Reniers, CUPE National Representative

Greg Tate, CUPE Local 1502 Josef Allen, CUPE Local 1502

Katie Birkas, CUPE Local 1502 Jodi Julius, CUPE Local 1502 Robert Ramsay, CUPE National Researcher

Jonah Gindin, CUPE National

December 6, 2018-Ottawa

40

For Brockville General Hospital

Colin Youngman, Counsel

Patricia Lewis, Manager, People Services Angel Smith, Human Resources Consultant

For CUPE Local 5666

Christine Lang, National Servicing Representative Tracy Pinder, Healthcare Coordinator Nancy Holmes, President

Diane Hampton, Chief Steward

For Cornwall Community Hospital Lennie Lejasisaks, Chief Privacy and Human Resources Officer

Brian Todd, Manager, Human Resources Crystal Roy, Manager, Staffing, Scheduling and Support Services

For CUPE Local 7811

Diane Pecore, President Jonah Gindin, Research Officer

Paul Boileau, National Servicing Representative Tracey Pinder, Health Care Coordinator

December 7, 2018-Ottawa

For Carlton Place District Memorial Hospital

Porter Heffernan, Counsel, Emond Harnden LLP Liz Glover, Director of Human Resources

Kimberley Harbord, VP Finance and Chief Financial Officer Cindy Woods, Integrate HR Business Partner

For CUPE Local 3323

Debbie Wark, President Cathy Harker, Vice President

Tonya Kenney, Bargaining Committee Member Tracey Pinder, Health Care Coordinator Graeme Reniers, CUPE National Representative

For Queensway Carlton Hosptial

Porter Heffernan, Counsel, Emond Harnden LLP

41

Janet Brown, Director of Human Resources Rhonda Donovan, Senior Labour Relations Consultant

Susan Lauton, Clinical Manager Jeff Phillips, Director Support Services and Procurement

For CUPE Local 2875

Tracy Pinder, Health Care Coordinator Margo Pasley, National Staff Representative

Colin MacDougall, National Staff Representative Drew Haughton, President

December 18, 2018-Hamilton

For Hamilton Health Sciences

Stephanie Jeronimo, Counsel Ron Lowe

Maria Colalillo Melina Senchyshak

Carolyn Ferrante Dave Di Simoni Dale Bialas

Pam Clark Brad Elms

Anita Lamond For CUPE Local 7800 Service

Matt Alloway, CUPE National Representative

Tracey Pinder, CUPE Healthcare Coordinator Davey Murphy, President Local 7800 Cathie Weaver, MUMC Site Chair

Tania Sgambelluri, WLMH Site Chair

For CUPE Local 7800-01 Trades Tracy Pinder, CUPE Healthcare Coordinator

Gus Oliveira, CUPE National Representative David Murphy, Local President

Alan Peters, General Site Chair Wayne Davies, Juravinski Site Chair Bruno Freudenreich, MUMC Site Chair

For Halton Healthcare-Georgetown

Stephanie N. Jeronimo, Counsel

42

For CUPE Local 145.2

Sandra Higginson, National Representative

Tracy Pinder, National Representative Pam Vaughn, RPN Jannette Jenson, VP Unit

Eric Witvoest, President

For Guelph General Hospital Rod Carroll, Vice President Human Resources and Support Services

For CUPE Local 57

Linda Pelligrini, President Velma Rabey, RPN Cmte

Jill Smyth, CUPE National Representative Tracey Pinder, National Representative

December 19 2018-Hamilton

For St. Joseph’s Hamilton Healthcare

Sarah A. Eves, Counsel

Danielle McCrindle, Manager, Employee & Labour Relations For CUPE Local 786

Tracey Pinder, CUPE Healthcare Coordinator

Gus Oliveira, CUPE National Representative Susan Thornton, RPN Kevin Cook, Chief Steward

Sam Forsythe, Bargaining Committee

For Huron Perth Healthcare Alliance Frank A. Angeletti, Counsel, Filion Wakely Thorup Angeletti LLP

For CUPE Local 4727

Jill Smyth, CUPE National Representative Kim Lincoln, President

Linda O’Rourke, Vice President Tracey Pinder, CUPE Healthcare Coordinator

For Joseph Brant Hospital

43

Sarah A. Eves, Counsel, Hicks Morley Hamilton Stewart Storie LLP

Geoff Wood, Senior Manager, Labour Relations Julie Robinson, Human Resrouces Business Partner

For CUPE Local 1065

Edward Harris, CUPE National Representative Luidia Iannone, President, Local 1065


February 14, 2019-Toronto

For Lakeridge Health Shana French, Counsel, Sherrard Kuzz LLP

Jeffrey A. Stewart, Counsel, Sherrard Kuzz LLP Jeremy McLeish, Student at law, Sherrard Kuzz LLP

Barry Nayler, Lakeridge Health Neil Clarke, Lakeridge Health

Ramona Visser, Lakeridge Health Janice Henderson, Lakeridge Health

For CUPE Local 6364

Susan Arab, Research Representative Lee Douitsis, National Representative Lorrie Boake, Chief Steward

Cindy Dowbson, Site VP, Ajax Tracey Pinder, CUPE Healthcare Coordinator

February 28, 2019-Toronto

For Toronto Grace Health Centre

Antonietta Kotandidis, CHRO Patricia Skol, Director Quality Patient Experience

For CUPE Local 929

Susan Arab, Research Representative Jo Anne Brown, National Representative Robert Beveridge, President, CUPE Local 929

Robyn Sharke, Recording Secretary, CUPE Local 929

For Markham Stouffville Hospital/Uxbridge Cottage Hospital

44

Carla Black, Counsel, Rae Christen Jeffries LLP Amy McArthur, Human Resources Business Partner

Maria Pavone, Director of Facilities, Support and Food Service Paul Schaedlich, Director of Environmental Services

For CUPE Local 6364-01

Susan Arab, Research Representative Lee Douitsis, National Representative

Lorna Pearson, VP CUPE Local 6364 Lorrie Boake, Chief Steward, CUPE Local 6364 Pam Parks, President, CUPE Local 6364

For CUPE Local 3651

Susan Arab, Research Representative Rick Zeeman, VP CUPE Local 3651

JoAnne Brown, National Representative Wayne Stevenson, Chief Steward, CUPE Local 6364

Jimmy Tsoutsas Omwatti Rampsaud

Shelly-ann Pollard Jada Parcells

March 1, 2019-Toronto

For North Bay Regional Hospital Shelley Belanger, Labour & Health Services Lead

Joanne Diggles, Labour Relations Specialist Ryan Wood

For CUPE Local 139

Jennifer Barnett, CUPE National Representative Tracey Pinder, CUPE Health Care Coordinator

Susan Arab, CUPE Researcher Doug Allen, CUPE Researcher Brett Campbell, Vice President

Rick Cowden, Chief Steward

For Mattawa General Hospital Amy Morrison, VP Corporate Services

Ryan Wood

For CUPE Local 1465-02

45

Fran Bélanger, CUPE National Representative Tracey Pinder, CUPE Health Care Coordinator

Susan Arab, CUPE Researcher Doug Allen CUPE Researcher

For Hôpital Glengarry Memorial Hospital

Kim Woods, Chief Nursing Officer & Vice-President of Clinical Services Kayla MacDonald, Human Resources and Patient Relations Manager

For CUPE Local 2027

Chantal Bellemore, President Susan Arab, Research Officer

Paul Boileau, National Representative Tracey Pinder, Health Care Coordinator

For the Hospital For Sick Children

Stephanie N. Jeronimo, Counsel, Hicks Morley Hamilton Stewart Storie LLP Amanda P. Cohen, Counsel, Hicks Morley Hamilton Stewart Storie LLP

Cristina Amaral, Senior Manager, HR Operations & Labour Relations Sandra Paiva, Labour Relations Consultant Navdeep Greywal

For CUPE Local 2816

Leonara Foster, President Michelle Collins, Recording Secretary

Gus Giftakopoulos, Chief Steward Peter Paulekat, National Representative

Tracey Pinder, Healthcare Coordinator Susan Arab, Researcher

April 13, 2019

For Scarborough Health Network Bob Bass, Bass Associates

Mary Claire Bass, Bass Associates Shirley Ward, Manager, Labour Relations

Meredith dePaulsen, PCM Medicine S&G Jackie Yigitoz, Manager, Diagnostic Imaging Rhodora Gutierez, Manager Surgical Services

Michell Jubinville, Manger, HR Systems & Operations Michele James, Vice President, People & Transformation

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For CUPE Local 5852

Lindsay Lawrence, Goldblatt Partners LLP Gaetano Jacono, CUPE 5852

Cathy Stinson, CUPE 5852 Judy Willcocks, CUPE 5852 Joanne Brown, CUPE National

Susan Arab, CUPE National Kimberly Blanchard, CUPE National

Participating Hospitals Relying Only on Coordinated Submissions

Almonte General Hospital Arnprior Regional Health

Espanola General Hospital Kingston Health Sciences Centre North Shore Health Network

Perth & Smith Falls District Hospital Red Lake Margaret Cochenour Memorial Hospital

Renfrew Victoria Hospital Riverside Health Care Facilities

St. Joseph’s Health Centre Guelph William Osler Health Systems

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IN THE MATTER OF AN INTEREST ARBITRATION

BETWEEN:

PARTICIPATING HOSPITALS

(the “Hospitals”)

AND


(the “Union”)

(Local Issues)

DISSENT

The proceedings in this matter were lengthy with many issues having to be determined.

I agree with the Chair’s rejection of the Union’s proposed wage adjustment for RPNs. The Chair is correct that the Union did not establish grounds for a RPN wage adjustment at any of the Hospitals. Registered nurses are NOT the comparator for RPNs and there is absolutely no basis for establishing a ratio to RNs.

With respect to the other issues in dispute, the Chair dismissed a significant number of Union proposals - a great many of which involved proposals for wage adjustments for various classifications at different Hospitals. In my view, the Chair’s rejection of these proposals was correct. The proposals were without merit. The Chair did see fit, however, to partially or wholly grant a number of other Union proposals as follows:

1. An increase to the Uniform Allowance at 8 hospitals

2. Preceptorship at 6 hospitals

3. An increase to the Meal Allowance at 3 Hospitals

4. A change from Floating Holidays to Fixed Holidays at 3 Hospitals

5. Wage Adjustments to a total of 10 different classifications at 4 Hospitals; and

6. Four other diverse proposals

In contrast, proposals put forward by the Hospitals did not fare nearly as well. By my count, there were a total of 17 proposals put forward by the Hospitals and the Chair saw fit to award only one

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of them - an increase to the maximum parking rate that could be charged at Pembroke Regional Hospital. In my view, a great many of the Hospital proposals were meritorious and I would have awarded them. I would have expected, at least in terms of having some balance in the award, that more Hospital proposals would have been awarded.

With respect to the Union proposals that were either wholly or partially granted, I disagree with the Chair’s disposition of these proposals. I will not get into comprehensive reasons for my disagreement with the Chair but will confine my comments to what I consider to be the ones that I view as most inappropriate.

Uniform Allowance

The Chair decided to follow Arbitrator Kaplan’s award in the case of Participating Hospitals and SEIU dated February 13, 2019 with respect to the quantum of the uniform allowance even though he acknowledged at paragraph 7 of his Lakeridge Health and CUPE award (which is being released at the same time as this award) that this amounts to a significant increase. In my view, the allowances awarded are not just significant, they are excessive; not supported by the evidence before us and are costly to the Hospitals. I made the same points in my Dissent to the Kaplan award on this issue.

Changing Floating Holidays to Fixed Holidays

In my view, the Union’s proposals at three Hospitals to change floating holidays to fixed holidays were nothing more than a money grab and I am very disappointed that the Chair saw fit to grant the proposals. A floating holiday gives an employee the opportunity to take a “holiday: on a day of her choosing subject to that day being approved by the employee’s manager. At the three hospitals where this proposal was advanced, there was no evidence that the day requested by the employee had ever been refused. Floating holidays are good for both employees and Hospitals. In the case of an employee , the opportunity to take a “holiday” on a day selected by the employee is certainly more advantageous than having , for example, Remembrance Day as your holiday when most other employees in the community (including the employee’s spouse) are probably working and the employee’s children are likely to be at school .In the case of the Hospitals, floating holidays are good because the Hospitals will not have to pay premium pay to an employee who replaced the employee who was taking her “holiday” on the particular day she chose . Remembrance Day is not a statutory holiday in Ontario. It is a recognized holiday for federal sector employees but they make up only approximately 10% of the workforce. Hospitals are open on Remembrance Day and must be fully staffed that day to meet patient needs. By replacing a floating holiday with Remembrance Day, the Chair has saddled the three Hospitals where this Union proposal was awarded with a significant premium pay bill for that day. In my view this is completely unreasonable and unjustified.

Wage Adjustments for Other Classifications

In my view, none of the wage adjustments that were awarded were justified. The evidence before us was that there were no recruitment and retention problems involving the classifications at any

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of the Hospitals where adjustments were awarded. Furthermore there had been no changes in the duties and responsibilities of the employees in the classifications where adjustments were awarded. In addition, the cost of these adjustments was not insignificant and it is important to bear in mind that all of these classifications had already been granted the same general wage increases that had been negotiated centrally.

Final Comment

Interest arbitration is supposed to replicate what the parties themselves would have agreed to had they been engaged in free collective bargaining. In my view many of the union proposals that have been awarded would never have been agreed to in free collective bargaining. Furthermore, to the extent that some of these proposals would have been agreed to, this would have been in exchange for the union agreeing to certain hospital proposals.

All of which is respectfully submitted.

May 26, 2019 Brian O’Byrne Nominee of the Hospitals

In the Matter of an Interest Arbitration BETWEEN ...

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