BETWEEN:

'IN THE MATTER OF AN INTEREST ARBITRATION UNDER THE COLLECTIVE AGREEMENT

Hospital Labour Disputes Arbitration Act

CASSELLHOLME FOR THE AGED FOR THE DISTRICT OF NIPISSING

AND

CANADIAN UNION OF PUBLIC EMPLOYEES And its LOCAL 146-00

AWARD

("the Employer'')

("the Union")

Board of Arbitration: Arbitrator: Barry Stephens Union Nominee: Menno Vorster Employer Nominee: Greg Shaw

Appearances for the Union: Andrew Ward, CUPE Research

Appearance for the Employer:

Janick Nadeau, CUPE National Representative Henri Giroux, Local President Corrine Haber, Bargaining Committee Member Laura Hamilton, Bargaining Committee Member Denise Sharshin, Bargaining Committee Member Angie Whaley, Bargaining Committee Member

Carolyn L. Kay, Counsel, Hicks Morley Hamilton Stewart Storie

Shani Giroux, Human Resources Director Jamie Lowery, Chief Executive Officer

Heard in North Bay, Ontario on August S, 2016

AWARD

[1] This award relates to an interest arbitration under the Hospital Labour Disputes

Arbitration Act Involving Cassellholme and CUPE Local 146-00. Cassellholme is a

municipal Home for the Aged located in North Bay, Ontario. There are approximately 237

staff in the bargaining unit, 111 full-time and 126 part-'t ime.

[2] I was appointed on consent ofthe parties to chair the Board of Arbitration in order

to resolve the outstanding issues required to finalize the collective agreement between

them. There were a number issues that were left in dispute at the t ime of referral of this

matter to arbitration. The issues were presented and reviewed at the hearing on August

6; 2016. No objections were raised to our jurisdiction to issue an award covering all

articles stm in dispute. After due consideration of the material placed before us1 and the

submissions of the parties, ind uding all of the criteria under Section 9 of H.L.D.A.A., the

Board has reached the following decisions with respect to the issues in dispute.

Issue ! -Article 23.01- Sick Days - Employer Proposal

[3] The Employer's brief contained proposals to reduce the monthly accumulation of

sick leave from 1.5 days to 1 day, and to reduce the cumulative maximum from 300 to

200. The union's brief only addressed the monthly accumulation issue.

There was a dispute between the parties, which became apparent after the hearing,

about whether this issue was properly before the Board. It was not necessary for the

Board to resolve this dispute because, even assuming we had jurisdiction to award the

proposal, in the view of the majority of the Board (Mr. Shaw dissenting) there was no

demonstrated need, nor would it reflect the likely outcome of free collective bargaining

to reduce the cumulative maximum.

Issue 2 - Article 24.04- Benefits - Vision Care and Dental Care - Union Proposal

[4] The union seeks an increase to vision care from $240 to $300 per twenty-four-

month period, an increase to eye examination coverage from $60 to $75 every two years,

and an increase to dental basic and preventative treatment from $1500 to $2500 per

calendar year. The employer is opposed to any increases to the vision and dental care

benefits.

[S] The union's vision care proposal is consistent with the benefit coverage recently

negotiated with the other CUPE local at Cassellholme, as evidenced by the memorandum

of settlement signed for that bargaining unit in February 2016. This MOS is the best

evidence the Board has with respect to the replication of collective bargaining. There was

no similar agreement with respect to the dental care increase sought by the union, and

we are not persuaded the dental care proposal should be granted. As a result, the Board

awards as follows:

Article 24.04

a) The Board shall pay one hundred percent (100%) of the premium for the Blue Cross Extended Health Care Plan or equivalent plan to all employees covered by this Agreement Including Vision Care to $300 per twenty-four (24) month period. Effective January 1, 2013, Article 20.04 (a) will be amended to include a drug card

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plan with the proviso that generic drugs be prescribed, unless the prescribing physician expressly stipulates otherwise.

b) The Employer will reimburse to seventy-five ($75) the cost of an eye examination for each employee and their dependents every two (2) years.

Issue 3 -Article 27.01 (a)- Uniforms - Union Proposal

[6] The union proposes to extend uniform coverage to additional classifications in the

bargaining unit, and to remove a requirement with respect to shoe colour. The current

language reads as follows:

27.01 a) The Board will supply three (3) uniforms annually to employees classified as Cooks, Food Service Workers, Housekeepers, Laundry Aides, and all Maintenance positions. Such uniforms shall be laundered and maintained by the emptoyees, and such uniforms shall be worn by employees while Ol'I duty.

Emptoyees are required to wear shoes in keeping with the safety policles of the Board. Nursing staff shall wear white shoes.

The union proposes to amend the language to read as follows:

27.01 a) The Board wm supply three (3) uniforms annually to employees classified as Cooks, Food Service Workers, Housekeepers, Laundry Aides, Personal Support Workers, Registered Practical Nurses and all Maintenance positions. Such uniforms shall be laundered and maintained by the employees, and such uniforms shall be worn by employees while on duty.

Employees are required to wear shoes in keeping with the safety policies of the Board. N1;1rsiAg staff shall wear white shaes.

The employer is opposed to the extension of the uniform provision to the PSW's and the

RPN's. The current coverage was negotiated by the parties and the classifications the

union seeks to add are not new.

[7] The Board is of the view that there is no demonstrated need for the extension of

the scope of the uniform provision.

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[8] The Board was advised that the hearing that the parties had agreed to the union's

proposal to remove the with respect to white shoes for nursing staff. That agreement is

confirmed and the parties are directed to amend the collective agreement accordingly.

Issue 4 -Article 28.01- Percentage in Lieu - Employer Proposal

(9) The current percentage in-lieu provision requires the employer to pay an

additional 14% to part-time employees in lieu of benefits. The employer proposes to

eliminate this percentage in lieu payment for temporary employees and students. The

employer argues there is no legislative requirement to grant benefits to such employees,

and that the employees in question do not have the type of permanent connections with

the employer as other employees. The union is opposed to the proposal.

[10) The Board is of the view that, given the key status of the percentage in lieu

payment in the bargaining relationship, it is unlikely that the employer would have

achieved this proposal in collective bargaining, and the proposal is denied.

Issue 5 -Article 30.02 - Paid Lunches - Employer Proposal

[11) The current language reads as follows:

30.02 The normal hours of work for all employees covered by this Agreement shall be as follows:

Full-Time Employees

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The normal hours of work per week shilll be forty (40) hours. Employees shall be required to work an average of five (5) eight (8) hour shifts, inclusive of a half (1/2) hour paid mea period.

The employer proposes to eliminate the paid lunch. The Board is of the view that the

proposal represents a major departure from the prior bargaining relationship and is one

that the employer is unlikely to have achieved in collective bargaining unless the

employer provided major compensation to the bargaining unit or in compelling financial

circumstances. The proposal is denied.

Issue 6 -Articles 31.01 and 31.02 - Shift and Weekend Premiums - Union Proposal

[12] The union seeks to increase the shift premium from $.75 to $1.00 per hour, and

the Weekend premium from $.30 to $.60 per hour. The employer proposes the

continuation of the status quo with respect to both premiums.

(13] The union's weekend premium proposal is similar to that recently negotiated with

the other CUPE local at Cassellholme, as evidenced by the memorandum of settlement

signed for that bargaining unit in February 2016, in which the parties agreed to a weekend

premium of $.SO per hour. The MOS is the best evidence the Board has with respect to

the replication of collective bargaining. There was no similar agreement with respect to

the shift premium increase sought by the union, and we are not persuaded that proposal

should be granted. As a result, the Board awards as follows:

31.02 Effective January 1, 2014, employees shall be paid a weekend premium of an additional $.SO per hour for all hours worked between Friday at 23:00 and Sunday at 23:00. This premium shall be In addition to the shift premium.

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Issue 7 - Article 33.01-Vacation Entitlement - Union Proposal

[14J The parties advised at the hearing that they had agreed to improve the vacation

entitlement at the six-week level by reducing the years of service for the sixth week of

vacation from 23 to 21 years. The union seeks to make a corresponding adjustment to

the part-time vacation entitlement.

[15) The Board is of the view that the relationship between the full-time and part-time

vacation entitlements should be maintained. As a result, the Board directs the parties to

amend Article 33.01 (b) to provide 12% of gross earnings after twenty-one (21) years of

service.

Issue 8 -Article 33.04 Paid Holiday- Union Proposal

[16] The union seeks the addition of one paid holiday for Family Day. The employer

seeks to maintain the status quo. The bargaining unit currently has a right to ten paid

holidays plus two floating holidays.

[17] The Board is of the view that the current holiday pay rights are within the

comparative norms for this bargaining unit and we decline to award the proposal.

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Issue 9-Article 33.06 ·Statutory Holiday Pay for Part-Timers-Employer Proposal

. [18) The employer seeks a change to the method of calculation of pay for part-time

employees who do not work on statutory holidays but are entitled to a paid holiday. The

current practice to that part-t ime employees are paid for a full shift, i.e. for eight hours.

The employer submits that the statutory holiday pay for part-timers should be calculated

on the basis of a formula; similar to that used in the Employment Standards Act, pegged

to an average number of hours worked in the prior four-week period.

[19) In the view of the Board, it is appropriate to use such an averaging formula in order

to accurately estimate the value of a paid holiday to a part-time employee. As a result,

the Board awards the following paragraph is to be added to Article 33.06, as follows:

"Any part-time employee who does not work a holiday designated under Article 33.04, and who is eliglble to be paid for the holiday, shall be paid the amount of regular wages earned and vacation pay payable to the employee in the four work weeks before the work week in which the public holiday occull'ed, divided by 20."

Issue 10 - Schedule A - Wages

[20) The union seeks an across-the-board increase of 3% in each year of the renewal

collective agreement. The employer opposes the union proposal for a wage increase.

[21) The Board is of the view that the current settlements among comparator

workplaces would justify increases of 1.4 to 1.5%. As a result, the Board awards as

follows:

Effective January 1, 2014 - increase of 1.5% to aH steps on the wage grid in Schedule A Effective January 1. 2015 - increase of 1.4% to alt steps on the wage grid in Schedule A

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(22) Retroactivity shall be in accordance with the provisions of Article 35.01, which is

amended to read as follows:

35.01 For all employees the new wage rates set out in this Agreement shall be retroactive to the 1

11 day of January 2014 and January 1, 2015 respectively for all paid hours.

Similarly, for those who have terminated since those dates, the new wage rates shall be paid retroactively for all paid hours until the date of their respective termination. They shall have thirty (30) days from the date of notification thereof by the Board to request their pay. The Board shall notify such employees of their entitlement as soon as possible by registered mail at their last known address. Unless otherwise specified all other terms of this Agreement shall be effective on the 1

11 day of January

2014.

[23) The Board was advised at the hearing that the parties had agreed to add the RAI

RPN classification to Schedule A at the same rate as the RPN, and also to add the

classification of Rehab Nurse at the same rate as the RPN. The Board hereby confirms

that agreement and directs the parties to amend the collective agreement accordingly.

Term -Article 37.01

[24) The parties have been unable to agree on the term for this collective agreement.

In accordance withs. 10(11) of HLDAA, the term of the collective agreement shall be two

years. Thus, the collective agreement shall take effect on January 1, 2014, and shall

continue in full force and effect until December 31, 2015, and shall continue automatically

thereafter for annual periods of one (1) year each unless either party notifies the other in

writing within the period from ninety (90} days preceding the expiry date of the Collective

Agreement, that it desires to amend or terminate the Collective Agreement.

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[25) All previously agreed Items are incorporated into this award~ including those

agreed on the date of the hearing, and form part of the collective agreement. Any

proposals put to the Board for determination that are not agreed or awarded above are

hereby dismissed.

[26) The parties are ordered to prepare and execute a collective agreement in

accordance with the above and we retain j urisdiction to resolve any issues arising from

the implementation of th;s award.

1 Arbitrator IJ&(]~r 14, 2016

Partial dissent attached

Menno Vorster, Union Nominee

Partial dissent attached

Greg Shaw, Employer Nominee

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Partial Dissent by Union Nominee Menno Vorster

Canadian Union of Public Employees, Local 146-00 and

Cassellholme Home for the Aged District of Nipissing

H.L.D.A.A. Interest Arbitration

I dissent in part from the Award for this Home.

The Union proposed a number of modest improvements to the collective agreement on behalf of the employees at Cassellholme. They were restrained considering the difficult work performed by these CUPE members and the rigourous expectations placed on them each day.

For example, the Union requested that there be a tempered improvement to the benefit plan for full-time employees by increasing the annual maximum benefit for the dental plan from $1,500 to $2,500. The award denied this proposal, meaning that in the most serious cases required dental work may still be beyond the reach of these employees. While there was a small increase granted to the shift premium for employees who work during the evening and night shifts, a proposal to increase to the weekend premium was denied and, in my opinion, this will leave Cassellholme at a lower weekend premium rate than is the norm. Further, the award did not add the Family Day to the holidays recognized each year. I submit this statutory holiday should have been added even if it meant converting one of the two float holidays to this fixed date.

I must applaud this award, however, for denying the substantial collective agreement changes proposed by the employer. The changes sought were considerably regressive for a long-term care facility where cooperative union/management relations have been in place for such a long time.

The employer suggested to the removal of the paid lunch that Cassellholme employees have enjoyed for many years. Management's only reason was to save money. In the same vein the employer proposed that the accumulation of paid sick days to be reduced from 1.5 days per

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month to one day per month. Further the employer asked this arbitration board to drastically lower the number of sick days that could be accumulated in the sick bank for each employee, thereby effectively removing the current benefit for the payment of wages during a long term illness. I side with the majority in the denial of these contractual takeaways.

Respectfully submitted,

~a)~ Menno Vorster

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BETWEEN:

IN THE MATTER OF AN INTEREST ARBITRATION UNDER THE COLLECTIVE AGREEMENT

Hospital Labour Disputes Arbitration Act

CASSELLHOLME FOR THE AGED FOR THE DISTRICT OF NIPISSING

AND

CANADIAN UNION OF PUBLIC EMPLOYEES And its LOCAL 146-00

Partial dissent of the Employer Nominee

("the Employer'')

("the Union")

While I can and do appreciate the principle of replication, there are circumstances, such as this, where the Employer's dire financial circumstances should take priority.

Cassellhome is in a very difficult financial situation particularly given its unique funding model. They are projecting large deficits (undisputed by the union) and this award not only does not relieve any of the extraordinary costs currently being borne by the Employer ( e.g. sick leave accumulation and paid lunch breaks ) but significantly increases costs.

When an employer is in difficult financial circumstances, Arbitration Boards have an obligation to consider ways to mitigate against those circumstances. To simply decide to replicate the high end of other agreements without considering reduction of the items that are in excess of the norms found in other agreements is, in my view, one of the fundamental flaws with Interest Arbitration. The belief that everything must go up regardless of the ability to pay, I believe is very damaging and does not replicate what might be achieved in the right to strike environment. There is limited opportunity for balance in the arbitration process given this approach.

Respectfully submitted

Greg Shaw

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