For the Union: Andrew Ward, IN THE MATTER OF AN ARBITRATION ESTABLISHED UNDER THE TERMS OF HOSPITAL LABOUR DISPUTES ARBITRATION ACT, RSO 1990, c.

Transcription

1 IN THE MATTER OF AN ARBITRATION ESTABLISHED UNDER THE TERMS OF HOSPITAL LABOUR DISPUTES ARBITRATION ACT, RSO 1990, c. H 14 BETWEEN RIVER GLEN HAVEN NURSING HOME And CANADIAN UNION OF PUBLIC EMPLOYEES, LOCAL , AWARD DOUGLAS C. STANLEY, CHAIR IRV KLEINER, EMPLOYER NOMINEE MENNO VORSTER, UNION NOMINEE Appearances: For the Employer: Paula M. Rusak Karen Ryan, Administrator Delphine Gay, Director of Care For the Union: Andrew Ward, Chris Sax, National Rep Wendy Pearce, President Bruce Langtree, VP Hearing held in Newmarket ON, November 14, 2014 Award issued on June 7, 2015

2 River Glen Haven Nursing Home is a for-profit long-term care home in Sutton. Sutton is part of the Town of Georgina on the shores of Lake Simcoe, the northern most part of York Region. River Glen has been in operation since 1981.lt receives provincial government funding and is regulated by the Long Term Care Homes Act. The facility is licensed for 120 beds. CUPE has represented the employees at River Glen since They are in two bargaining units, one for 41 full-time staff and one for 67 part-time staff. These employees are in one of eight different job classifications as follows: Registered Practical Nurse RPN Nurses Assistant* Laundry Aid Housekeeping Aid Dietary Aid Cook! Cook II Students FT PT *There are only 3 employees who do not have their PSW or Health Care Aid Certificate. The average length of service for full-time employees at River Glen is 12.1 years and for part-time it is 5.9 years. There are 7 Registered Nurses and 13 Managerial employees outside the two CUPE bargaining units. The most recent collective agreements expired on March 31, The parties were not able to agree on a term beyond two years, consequently this Award, in accordance with HLDAA is for a two year term April1, 2012 to March 31,2014. A collective agreement term that expires 9 months before being arbitrated. The expired collective agreement was the result of an Arbitration Award of Arbitrator Sheehan, dated june 22, The wage Award in that case was 2% on Arpril1, 2010 and another 2% onaprill, The parties were able to agree on a number of issues in negotiations. Those agreed items and they are incorporated into and form a part of this Award., As is usual in these cases, both parties referenced and relied on the statutory criteria for arbitral decisions found in the Hospital Labour Disputes Arbitration Act. In 2

3 addition they stressed Replication and Total Compensation as the most prominent guides relied on by Interest Arbitrators under HLDAA. The Union relied heavily on the fourth HLDAA statutory criteria: "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." In making this comparison the Union urged that we look to "for profit Nursing Homes" in the geographic area that bargain with CUPE. These they describe as the "primary comparator" group. They referred us to five Homes within km away from Sutton. These Homes were Bradford Valley, Good Samaritan Nursing Home, Mackenzie Place (Revera), Leisureworld Care Giving Centre Muskoka, and Leisureworld Creedan Valley. The Union's "secondary comparators" were CUPE charitable not-for-profit Nursing Homes and they used Municipal Homes for the Aged as a final comparator. The Employer of course looks to comparisons outside the realm of CUPE Homes and the Union responds by pointing to the fact they are the "predominant" Union in the health care sector in Ontario. They argue that CUPE sets its own direction in bargaining and are not a group that follows a pattern set by some other Union in the sector. They submit that Arbitrators under HLDAA have accepted this fact. In particular we were referred by the Union to comments of Arbitrator Sheehan, in the arbitration arising out of the last round of negotiations: The Board recognizes both parties have identified relevant comparators that support their respective positions. Collective bargaining for these parties would not take place in some impregnable silo whereby preexisting freely negotiated settlements or arbitrated Awards, especially central bargaining processes involving major participants in the sector, would not have a significant impact at the bargaining table. Yet at the same time, the Board recognizes there is merit to the view that bargaining agents may have different bargaining approaches and objectives, thus arguably, the most appropriate comparators may be those entities that most closely mirror these particular parties. The Employer's position is that the Union was seeking to avoid the two-year wage freeze pattern in negotiations. The Employer relies heavily on the general economic conditions prevailing in the town of Georgina, the York Region and Ontario generally. Counsel for the Employer submitted keeping "replication" in mind, it would be rare that changes to collective agreements or increases in benefit levels would take place without trade-offs, without a demonstrated need, or without evidence that the existing terms do not reflect labour market realities. 3

4 Counsel for the Employer submitted that there is no staff retention or recruitment problem at this facility. They maintain that the Union is ignoring the trends in the sector, replication and the concept of "total compensation". The Employer submitted that in assessing the "reasonableness" of the Union's position we should look to other private Long-Term care Homes in the region. The Employer's list of comparator Homes is as follows: King City Lodge Nursing Home, King City Mackenzie Place, Newmarket Eagle Terrace, Newmarket Cedar Lodge (Specialty Care Inc.), Keswick Aurora Resthaven, Auroroa Bradfor Valley (Specialty Care Inc.), Bradford Willow Estate (Omni Health), Aurora CUPE CUPE CUPE CLAC CLAC CLAC CUPE ISSUES IN DISPUTE ISSUE #1 Hours ofwork (Part-Time) Assigning of Additional Hours A part-time employee's seniority on a rotating basis shall be the determining factor in the assignment of additional hours of work. Union Proposal: Add the following to 14:04 Call in Procedure:_ The Employer shall maintain a list of part-time Employees who wish to be available for replacement call-ins. Employees on the call-in list shall be called in order of seniority beginning with the most senior Employees on a rotating basis. Each call-in will be indicated on the part-time call-in sheet as "worked", //refused" or uno answer". Succeeding call-ins will commence with the person listed below the last person as noted as "worked", "refused" or "no answer". 4

5 All employees on the call-in list shall specify their shift preference and days of work preference. The Employer shall keep an accurate log of all replacement call-ins which will be made available to the Union immediately upon request. The Employer indicated their agreement at the hearing and the Unions proposal is Awarded. ISSUE #2 Article Full-time and Part-time Existing Provision: All employees who are required by the Employer to rotate over two or more shifts shall receive a shift premium of 35 cents for each hour worked for all the hours if majority of hours falls between 1500 hours and 0700 hours. Shift premium will not be paid for day hours in which an employee receives overtime premium and shift premiums will not form part of the employees straight time hourly rate. In no event shall there be any Union Proposal: The Union proposes to remove the requirement for employees to rotate shifts in order to qualify for a shift premium. Employer Response: The Employer submitted that this proposal has a cost of $19, /annum. This is a priority matter for the Union. Since the employees in this Home do not rotates shifts the premium mentioned in article of the collective agreement is not paid to anyone. There are other CUPE Homes in the same situation. However, CUPE employees in the majority of Nursing Homes and all Municipal Homes for the aged have a shift premium with no requirement to rotate. Arbitrator Sheehan dealt with this request in his Award and denied the change being sought. Given that no one actually receives a premium, and denying the union's proposal to remove the requirement to rotate perpetuates that result, one is 5

6 tempted to take the logical step of removing the premium article entirely. This would leave the parties with a new level playing field in their next round of negotiations. However, this level of unsolicited intervention might not serve the interests of the parties. Although the employees do not receive a benefit the article serves as a substantial disincentive to the Employer instituting a rotating shift schedule. We are mindful of what Arbitrator Sheehan said in his previous The Board additionally notes that in light of the uncertain economic picture, there has been a certain trend for interest arbitration awards to be narrower, rather than broader, in scope. In addition, we note that, although these employees do not receive a shift premium, their wage rates are above the norms. We reject the Union's proposal. ISSUE #3 Article Vacations: Full-time and Part-time Current Provision Employees shall receive an annual vacation with pay at current rates of pay on the payroll as the vacation is taken in accordance with credited seniority as of May 31 of the vacation year, as follows: less than one year per Employment Standards Act 1 year but less than 3 weeks 4% gross earnings not to exceed 2 calendar weeks 3 years but less than 8 6% gross earnings not to exceed 3 calendar weeks 8 years but less than 15 8% gross earnings not to exceed 4 calendar weeks 15 years but less than 24 10% gross earnings not to exceed 5 calendar weeks 6

7 24 years or more 12% gross earnings not to exceed 6 calendar weeks Effective 2008 vacation year, 28 14% gross earnings not to exceed 7 years or more calendar weeks Union Proposal: The Union proposes to move the 6-week threshold to 23 years from the current 24 years and to make editorial changes to the reference to 28 years qualification. Employer Response: The Employer submits that the cost of this proposal is $4, and will increase as more employees become eligible. :in the context of this Award that freezes wage rates we grant the Union's proposal to move the 6-week threshold to 23 years. ISSUE#4 Article 20- Leave of Absence Full-Time (Bereavement) 20.04Bereavement Leave (b) (c) In the case of the death of the employee's spouse or child, the employee shall be paid regular straight time hourly rate for shifts during which the employee otherwise would have worked, up to a maximum of four (4) consecutive days ending with the day following the funeral. In the case of immediate family which shall be defined as mother, father (including stepparents and adoptive parents), brother, sister or grandchild, the employee shall be paid regular straight time hourly rate for shifts during which the employee otherwise would have worked, up to a maximum of three (3) consecutive days ending with the day following the funeral. In the case of a spouse an additional two (2) days leave of absence without pay will be granted if necessary. 7

8 Union Proposal: The Union is seeking to increase the four (4) consecutive days in clause (b) to five (5) days. They further propose that "grandparent" be added to the definition of "immediate Family" for the purposes of clause (c). Employer Response: The Employer argued there was no demonstrated need for the proposed change. We reject the Union's proposal ISSUE #5 ARTICLE 21 RETROACTIVITY There is no retroactivity language in the current collective agreement. The Union seeks to add the following language as article Retroactive payments shall be made to all current and former employees by separate cheque within thirty (30) days of the award or ratification of the collective agreement as the case may be. Employer Response: The Employer maintains that the practice at this Home has been to pay retroactive wages to current employees only. Employees already pay a big price for the delays in settling collective agreements in this bargaining regime. Denying them retroactive wage increases when they cease their employment simply adds to that and creates a windfall for the Employer. Without amending the language of the collective agreement the retroactive wages awarded in this Award shall be paid to all current and former employees within sixty days of the date of this Award. 8

9 ISSUE #6 ARTICLE 22 BENEFITS The Union seeks the following improvements to the benefit package: Life Insurance is currently at $30,000; it increased from $20,000 in The Union seeks to change the specified dollar amount of insurance to "2 x salary". Vision care is currently at "$ per individual each twenty-four (24) months". The Union is seeking an increase to $ Employer Response: The Employer's cost estimate is that the Life Insurance proposal adds $12,315.36/annum, while the vision care improvement costs $1,200.00/annum. We Award improvement in vision care to $ ISSUE #7 WAGES The wage schedule currently in effect, from April 1, 20 II, results from the last 2% increase in the expired two year contract that provided increases of 2%- 2%. The rates are as follows: Effective April], 2011 start probation 1 year 2 years.. RPN $22.66 $23.24 $ r-$ Nurses Assistant $18.48 $19.04 $19.65 $20.51 Aid (Laundry, Housekeeping Dietary) $18.35 $18.52 $19.44 $20.00 Cook II - $18.83 $19.42 $20.00 $20.55 Cook I - $19.42 $20.00 $20.55 $ Student $13.42 $13.97 $14.45 Union Proposal on Wages: The Union is proposing increases of 3% in each year. In addition, to ensure that the collective agreement reflects that employees who have a HCA or PSW certificate will receive a $.40/hr. premium. The Union maintains that this was inadvertently dropped in the last iteration of the collective agreement. 9

10 Employer's Proposal on Wages Wage freeze with lump sum payments. April1, Oo/o Lump Sums: Full-Time $400.00, Part-Time $ Apri11, Oo/o Lump Sums: Full-Time $400.00, Part-Time $ EMPLOYER ISSUE #I GRIEVANCE PROCESS Article Settling of Grievances (full and Part-Time) The Employer proposes adding the bolded words in Step 4 of the Grievance Process as follows: Step 4 Failing satisfactory settlement being reached in Step 3, the Union may refer the dispute to arbitration, within fifteen (15) calendar days following the timelines set out in Step 3. The grievance will be deemed abandoned if the matter is not referred within this timeframe. The Employer maintains that they have experienced difficulty with grievances filed but only referred to arbitration at a much later time, resulting in evidentiary and administrative problems. We reject the Employer's proposal. EMPLOYER ISSUE #2 PROMOTIONS AND STAFF CHANGES Article Current language Role of Seniority In making staff changes, transfers or promotions under the provisions of this Article, appointment shall be made of the applicant with the greatest seniority who has the required qualifications and the ability to perform the work of the posted position. 10

11 Employer Proposal: Role of Seniority In all cases of job postings transfers or promotions under the provisions of this Article the following factors shall be considered : (a) (b) skill and ability seniority Where the factors in (a) are relatively equal, seniority shall govern. The Employer is seeking a "more robust skill and ability clause" in order to effectively run its operations. They cite the fact that in 2014 there were 7 instances of employees using their seniority to move from the Personal Support Worker classification to Housekeeping or Laundry while "more experienced" part-time workers in those classifications were available to fill the vacancy. The Employer cited the fact that they trained these employees only to have them return to their original classification soon after. We reject the Employer's proposal. EMPLOYERISSUE#3 PAlDHOLIDAYS (PART-TIMEONLY) Article Current language It is agreed that during the last two (2) weeks in December and the first (2) weeks in January, no float days, no lieu days and no vacation will be granted. It is also recognized that the regular work schedules may be required to be amended in order to enable to be granted. Employer Proposal: It is agreed that during the last two (2) weeks in December and the first (2) weeks in January, no float days, no lieu days and no vacation will be granted. It is also recognized that the regular work schedules may be required to be amended in order to enable to be granted. The Employer submitted that this is simply a housekeeping issue to keep the language consistent prior agreement of the parties in amending this language in the Part-Time agreement. 11

12 We award the Employer's proposal. EMPLOYERISSUE#4 ARTICLE 18 VACATIONS (FULLANDPART-TIME) Article Current language Preference in Vacations Employees shall submit requests for the vacation year (June 1" to May 31''), no later than April15''. Requests for vacation shall be granted in order of seniority, failing submission or time requested not available. The employer shall advise employees of their vacation schedule by June 1" of each year and unless mutually agreed upon by the employee and the employer, the vacation schedule shall not be changed. Requests for change shall not unreasonably be denied. Vacation requests made after April15 shall be done on a first come first serve basis. Employer Proposal: Preference in Vacations Employees shall submit requests for the vacation year (June 1" to May 31"), no later than January 15th. Requests fer Yacation These vacation requests shall be granted in order of seniority, failing SHbmission or time requested not ayailable. Thereafter, requests not made by that date shall be granted on a first come first serve basis. The employer shall advise employees of their vacation schedule by April 15th of each year and unless mutually agreed upon by the employee and the employer, the vacation schedule shall not be changed. Requests for change shall not unreasonably be denied. Vacation requests made after April15 shall be done on a first come first serve basis. We remit this matter back to the parties to resolve appropriate changes to the language. 12

13 EMPLOYER ISSUE #5 Sick Leave (Full-Time Agreement only) Current Article (a) An employee may be required to produce a certificate from a medical practitioner for any illness in excess of three (3) working days certifying that she is unable to carry out her duties due to illness. Employer Proposal: (b) The employer may request a medical certificate from an individual employee in circumstances where it is suspected that the sick leave is not valid or a pattern in the sick leave exists. The Employer proposes to add three more sub-clauses to article 19.04, as follows: (c) In order to be entitled to sick pay an employee must give a minimum of four (4) hours notice prior to the commencement of their shift. (d) Sick calls occurring immediately prior to the commencement of a vacation or regularly scheduled days off will not be paid out as sick leave. (e) Notwithstanding the provisions of Article 19, employees absent on short term illness of three days or less duration will be paid for the first two (2) such illnesses in any calendar year. However, for the third and succeeding illnesses of three (3) days or less duration We award clause (c) as follows: (c) In order to be entitled to sick pay an employee must give notice prior to the commencement of their shift. Where circumstances allow that notice shall be at least two (2) hours prior to the commencement of the shift. Conclusion: The Board directs that the parties incorporate this decision regarding the items in dispute, and any agreed-to items, within a new collective agreement to be signed by the parties. Unless otherwise specified all changes become effective as of the date of this Award. 13

14 Pursuant to Section 9 (2) of HLDAA, this Board remains seized and may deal with any matter in dispute between the parties until the new collective agreement is in effect. Dated this 9th Day of june, 2015 (Sgd) Douglas C. Stanley, Chair _dissent to follow Irv Kleiner, Employer Nominee dissent to follow Menno Vorster, Union Nominee 14

15 MAY 16,2013 Between: RIVER GLEN HAVEN NURSING HOME -and- CANADIAN UNION OF PUBLIC EMPLOYEES AND ITS LOCAL 2730 (FULL-TIME AND PART TIME) -Em19leyer's Prop~~~ Amend Article 9 as follows: ~s, 9.01 The parties agree that all matters not settled at Step 3, may be referred to a sole arbitrator. The parties may however agree to submit the matter to a Board of Arbitration, in which case Article 9.01 and Article 9.02 will apply (now to be called Articles 9.02 (a) and (b)). Articles 9.01 and 9.02 should be re-numbered as 9.02 (a) and (b) as follows: 9.02(a) Composition of Board of Arbitration When either party requests that a grievance be submitted to arbitration, the request shall be made by mail addressed to the other party of the Agreement indicating the name of its nominee on an arbitration board. Within fifteen (15) working days thereafter, the other party shall answer by registered mail, indicating the name and address of its nominee to an arbitration board. The two (2) nominees shall then meet to select an impartial chairman. 9.02(b) Decision of the Board The decision of the majority shall be the decision of the Board. Where there is no majority decision, the decision of the chairman shall be the decision of the Board. The decision of the Board of Arbitration shall be final and binding and enforceable on all parties Amend to read: The Arbitrator, or the Board of 'Arbitration, as the case may be, shall not have any power to alter or change any of the provisions of this agreement or to substitute any new provision for any existing provisions, nor to give any decision inconsistent with the terms and provisions of this Agreement Amend header to read Expenses of the Sole Arbitrator I Board of Arbitration as the case may be - otherwise no change No change No change. /

16 Between: RIVER GLEN HAVEN NURSING HOME -and- CANADIAN UNION OF PUBLIC EMPLOYEES AND ITS LOCAL 2730 (FULL-TIME) Agreed to Items as of May 1, Article c 0 Upon at least two (2) weeks' notice, the Employer shall allow a maximum of three (3) employees at any one time, leave of absence without pay in order that they may attend - union conventions, conferences or seminars. It is understood, however, that this leave shall be granted unless normal operations in the Nursing Home cannot be maintained.. Furthermore, it is understood that an aggregate maximum of leaves granted under this clause will be thirty (30) working days in any one calendar year. The Employer will continue to pay the employee's wages and benefits and invoice the Union for same. Repayment shall be made by the Union within thirty (30) calendar days. 2. Article The Employer shall pay wages bi-weekly in accordance with the rates provided under Schedule "A" which is attached hereto and forms part of this Agreement. On each pay day during working hours, each employee shall be provided with an itemized statement of wages, overtime, vacation, float and sick banks and supplementary pay deductions. 3. Article Should the Employer make an error in an employee's paycheque, they shall issue a cheque for the appropriate amount within three (3) working days (excluding Saturdays, Sundays and Statutory Holidays) of the employee bringing it to the Employer's attention. Dated at <)~ this \(, day of \{_ "'<s RIVER GLEN HAVEN NURSING HOME CANADIAN UNION OF PUBLIC EMI'LOYEES AND ITS LOCAL 2730 t u.. b:; c

17 Between: RIVER GLEN HAVEN NURSING HOME -and- CANADIAN UNION OF PUBLIC EMPLOYEES AND ITS LOCAL 2730 (PART-TIME) Agreed to Items as of May 1, Article The Employer shall pay wages bi-weekly in accordance with the rates provided under Schedule "A" which is attached hereto and forms part of this Agreement. On each pay day during working hours, each employee shall be provided with an itemized statement of wages, overtime, vacation, float and sick banks and supplementary pay deductions.,. 2. Article When an employee posts from a part-time position to a full time position, the employee shall continue to receive payment in lieu of fringe benefits as outlined in Article of the Part-Time agreement until such time as they are in receipt of Benefits under Article 22 of the Full-Time collective agreement. Dated at S Jft-w. this 16 day of 1\1\..~ RIVER GLEN HAYEN NlJRSING HOME CANADIAN UNION OF PUTILIC EMPLOYEES AND ITS LOCAL 2730