OCHU

IN THE MATTER OF AN ARBITRATION PURSUANT TO THE HOSPITAL LABOUR DISPUTES ARBITRATION ACT BETWEEN:
Participating Hospitals
(The Hospital)
-and-
Canadian Union of Public Employees
(The Union)

And in the matter of the Local Issues addressed by the parties on a coordinated basis.

Board of Arbitration: Ken Petryshen – Chair
Joe Herbert – Union Nominee
John Kuhne – Hospital Nominee

APPEARANCES:

For the Union:

Gwen Hewitt
Margaret Evans

For the Hospitals:

Carolyn Kay
Arlene Papaioannou


The hearings on coordinated issues were held on October 20 and November 2, 2010,
at Toronto, followed by local hearings across the province and by executive sessions once the hearings on local issues were completed. The last executive session held thus far took place on October 15, 2011.
AWARD


[1] This is an interest arbitration under the Hospital Labour Disputes Arbitration Act (“HLDAA”) in respect of Local Issues for the Collective Agreement covering the period from September 29, 2009 to September 28, 2013. The Union represents service and clerical employees in bargaining units at hospitals across the province that participate in central bargaining. There are 54 hospitals identified in the Memorandum of Conditions for Joint Bargaining. The parties have been engaged in central bargaining for over thirty years. During this round of bargaining, the parties settled the central portion of the Collective Agreement without resort to interest arbitration. The settlement included general wage increases of 2% for each year of the four year term.

[2] The parties agreed to address some local issues on a coordinated basis. The issues addressed on this basis were Local Union proposals on Violence in the Workplace, Mentorship, Student Supervision and RPN Wage Adjustments. Apart from proposals on the RPN wage adjustment, the other issues were the subject of identical proposals at virtually all of the Hospitals that participated in local issues bargaining. This Award deals only with the Local Union proposals that were dealt with on a coordinated basis. Our decisions on the coordinated issues contained herein will be reflected in the subsequent award addressing the remaining outstanding local issues.

[3] We were called upon at the outset of this process to determine whether certain Local Union proposals, including those concerning Mentorship and Student Supervision, involved local issues. In a bottom line decision dated September 18, 2010, with reasons that followed, the majority (Mr. Kuhne dissenting) determined that Mentorship and Student Supervision were local premium payment issues that fell within our jurisdiction.

[4] In determining the coordinated issues, we have considered the material filed with us and the submissions of the parties on October 20 and November 2, 2010. Notwithstanding the commonality of the proposals, we recognize that we are dealing with local issues, not central issues. Accordingly, we have given particular consideration to the material and submissions we received concerning the coordinated issues at the local issues hearings across the province. We have considered the criteria set out in section 9 (1.1) of HLDAA, as well as the fact that we are dealing with a Collective Agreement with a four year term. We also have taken into account the submissions on economic issues that were made on behalf of the Hospitals and the Union at the hearing at Ottawa on December 16, 2010.

[5] The Union proposal concerning violence in the workplace reads as follows:

Union Proposal – Violence in the Workplace

The parties agree that a safe workplace, free of violence and harassment, is a fundamental principle of a healthy workplace. Commitment to a healthy workplace requires a high degree of cooperation between the Hospital, employees, physicians and the Union. Employees should feel empowered to report incidents of disruptive behavior, including physician behaviour, without fear of retaliation. The parties are both committed to a harassment free environment and recognize issues in a timely and effective manner as set out below:

1. Violence shall be defined as any incident in which an employee is abused,
threatened, or assaulted during the course of his/her employment. It includes
the application of force, threats with or without weapons and verbal abuse. The Hospital agrees that such incidents will not be condoned. Any employee who believes he/she has been subject to such incident shall report this to a supervisor who will make every reasonable effort to rectify the situation.

2. The Hospital agrees to develop formalized policies and procedures in
consultation with the Joint Health and Safety Committee to deal with workplace violence. The policy will address the prevention of violence and the management of violent situations and support to employees who have faced workplace violence. These policies and procedures shall be communicated to all employees.

3. In dealing with physician conduct, the Hospital may incorporate recommendations contained in the Guidebook for Managing Disruptive Physician Behaviour endorsed by the College of Physicians and Surgeons of Ontario and the Ontario Hospital Association.

4. The Hospital will report all incidents of violence to the Joint Health and Safety Committee for review.

5. The Hospital agrees to provide training and information on the prevention of violence to all employees who come into contact with potentially aggressive persons. This training will be done during a new employee’s orientation and updated as required.

6. The Hospital will inform the Union within three (3) days of any employee who has been subjected to violence while performing his/her work. Such information shall be submitted in writing to the Union as soon as possible.


[6] The Hospitals and the Union recognize that violence in the workplace is an
important issue. We were impressed by the efforts made by the Hospitals to comply with their obligations under the Occupational Health and Safety Act (“OHSA”) as amended by Bill 168 (effective June 15, 2010). In consultation with and the participation of the Joint Health and Safety Committee and the Local Union, each Hospital developed health and safety policies and practices which meet the objectives of the Union’s proposal and in some respects go further than the Union’s proposal. The Union did not refer us to an example of where a Hospital’s health and safety policy did not adequately address a health and safety issue. With one exception, we find that there is no demonstrated need for the proposal. The exception is with respect to paragraph 6 of the proposal. In our view, a requirement that the Hospital inform the Union of an incident of violence against an employee in the bargaining unit should be included in the Collective Agreement. Where such a provision does not exist, we direct that the following provision be included in the Hospital’s Appendix of Local Issues:
The Hospital will inform the Union within three (3) working days of any employee who has been subjected to violence while performing his/her work. Such information shall be submitted to the Union in writing as soon as possible.


[7] The Union proposal on mentorship put forward at virtually every Hospital is as follows:
Union Proposal – Mentorship

Employees who are covered under the Regulated Health Professions Act may, from time to time, be assigned a formal mentorship role for a designated employee. Mentorship is a formal supportive relationship between two employees which results in the professional growth and development of an individual practitioner to maximize her or his clinical practice. The relationship is time limited and focused on goal achievement. Orientation to the organization or general functioning on the unit does not constitute mentorship.

After consultation with the employee being mentored and the mentor, the Hospital will identify the experiences required to meet her or his learning needs, will determine the duration of the mentorship assignment and expectations of the mentor, and appropriate training. During the consultation process, the Hospital will review the mentor’s workload with the mentor and the employee being mentored to facilitate successful completion of the mentoring assignment.

The mentorship plan/arrangement for each mentoring relationship will be documented.

The Hospital will provide, on a quarterly basis, all employees with an opportunity to indicate their interest in assuming a mentorship role. The Hospital will select in order of seniority, from among those qualified within the appropriate classification, who have expressed an interest.

The Hospital will pay the employee for this assigned additional responsibility a
premium of seventy-five cents ($0.75) per hour, in addition to his/her regular
salary

See Appendix _ , Mentorship Guidelines

APPENDIX

MENTORSHIP GUIDELINES

These guidelines are intended to assist the parties in implementing mentorship arrangements in accordance with the requirements of the collective agreement.

Definition

. Mentorship is a formal supportive relationship between two employees, which enhances the occupational growth and development of an employee to maximize her/his work performance.

. Mentorship involves a three-way arrangement between the hospital, the employee being mentored and the employee doing the mentoring. The mentoring relationship is:

. time limited,
. focused on goal achievement, and
. unique to each mentorship experience.

. The hospital, the employee being mentored and the employee doing the mentoring are expected to clearly understand the goals/expectations of the mentorship relationship. Goals are individually determined based on the learning needs of the employee being mentored, and, as such, may not be consistent for all employees. The length of each mentorship arrangement will be individually defined dependent upon the goals for each nurse being mentored. Mentoring assignments will normally consist of full shifts, however, it is also possible that mentorship assignments can be for less than a full shift and/or scheduled on an intermittent or one-time basis. It is also possible that one mentor may be assigned to a mentee during the course of a mentorship arrangement.

. Mentorship does not include:

. Supervising the activities of students.

. Orientation to the organization or general functioning of the unit. This may include activities such as:

. WHIMIS training, the fire lecture, equipment location, generic hospital policies, introduction to staff and the general layout of the unit etc.

Key Elements

. A mentorship relationship includes the employee doing the mentoring to:

. plan the mentorship experience based on the learning needs of the employee being mentored, including the identification and co-ordination of learning opportunities with other employees;

. assess the ongoing competence/development of skills/competencies of the employee being mentored, including assessments of skill/competence gaps, risk management in relation to work performance/patient care, and co-ordination of learning experiences;

. assist the nurse being mentored to effectively meet patient care needs;

. be responsible for the management of learning for the employee being mentored;

. participate in direct skill transfer where there is responsibility for the management of learning for the employee being mentored;

. evaluate the learning experience of the employee being mentored throughout the duration of the mentorship relationship, including the provision of written and/or verbal reports to management regarding progress towards goal achievement.

Implementation

. The Hospital may implement a mentorship relationship at any time during an employee’s employment when:

. the employee is experiencing difficulty in meeting performance standards;
. the employee has a skill/competency gap;
. one-on-one management of the learning from an expert/experienced
employee will be of assistance.

. Mentoring may be implements in various circumstances such as new hires to a department/unit; an employee returns from a layoff or leave of absence (including sick leave or long term disability) or for purposes of instruction or training. This list is not all-inclusive, and, as such, other circumstances may arise where the Hospital determines that an employee requires mentoring.


[8] The Union modeled its proposal on the mentorship provision in the collective
agreement between ONA and the Participating Hospitals. Absent the guidelines, the ONA provision is as follows:
9.08 (c) Mentorship
Nurses may, from time to time, be assigned a formal mentorship role for a designated nurse. Mentorship is a formal supportive relationship between two (2) nurses, which results in the professional growth and development of an individual practitioner to maximize her or his clinical practice. The relationship is time limited and focused on goal achievement. Orientation to the organization or general functioning of the unit does not constitute mentorship.

After consultation with the nurse being mentored and the mentor, the Hospital will identify the experiences required to meet her or his learning needs, will determine the duration of the mentorship assignment and expectations of the mentor, and appropriate training. During the consultation process, the Hospital will review the mentor’s workload with the mentor and the nurse being mentored to facilitate successful completion of the mentoring assignment.

The Hospital will provide, on a regular basis, all nurses with an opportunity to indicate their interest in assuming a mentorship role, through a mechanism determined by the local parties. The Hospital selects and assigns the mentor for a given mentorship relationship. At the request of any nurse, the Hospital will discuss with any unsuccessful applicant ways in which she or he may be successful for future opportunities.

The Hospital will pay the nurse for this assigned additional responsibility a premium of ($0.60) per hour, in addition to her or his regular salary and applicable premium allowance.


[9] As the Union noted, its proposal differs from the ONA provision. The three most striking differences are that it applies to all employees covered by the Regulated Health Professions Act, not just RPNs, the selection of the mentor is to be based on seniority and the premium is greater by 15 cents per hour. In the relatively few CUPE collective agreements which have a mentorship provision, those provisions more closely mirror the ONA provision in that they apply only to RPNs, the Hospital selects the
mentor without a requirement to consider seniority and the premium is 60 cents per hour.
The differences between the proposal before us and the ONA provision are significant. For example, we agree with the submission that the selection of the mentor is an important feature of the process and that a requirement to consider seniority could significantly hamper the Hospital in selecting the person best suited for a particular mentoring role. Is it likely that a Local Union would reasonably expect to achieve a 75 cent per hour mentorship premium at local bargaining when the ONA mentorship premium is 60 cents? We think not. In our view, the awarding of this proposal, with its significant differences from the ONA provision and the few existing CUPE provisions, would run counter to a number of principles of interest arbitration, including the replication principle.

[10] We are also not convinced that there is a demonstrated need for this proposal. A significant number of Hospitals do not have a formal mentorship program and, in cases where one exists, the need for the establishment of a mentoring relationship appears to be a relatively rare occurrence. The person selected to mentor an RPN is often a nurse educator or an RN, not someone from the CUPE bargaining unit.

[11] Finally, we are influenced by the fact that the SEIU was unsuccessful before arbitrator Burkett when it made a similar proposal in this round of bargaining with the Participating Hospitals. It is for these reasons that we decline to award the Union’s mentorship proposal.

[12] The Union proposal on student supervision is as follows:
Union Proposal – Student Supervision

Employees who are covered under the Regulated Health Professions Act may, as
part of their regular duties, supervise the activities of students, from accredited programs, who as part of that program have placement in the Hospital.

The Hospital will provide, on a quarterly basis, all employees with an opportunity to indicate their interest in assuming a student supervisory role. The Hospital will select in order of seniority, from among those qualified within the appropriate classification who have expressed interest.

Employees will be informed in writing of their responsibilities in relation to these students and will be provided with what the Hospital in consultation with the Union determines to be the appropriate training. Any information that is provided to the Hospital by the educational institution with respect to the skill level of the students will be made available to the employees recruited to supervise the students. The Hospital will review the employee’s workload with the employee to facilitate successful completion of the assignment.

Where the employee is assigned student supervision duties, the Hospital will pay the employee a premium of seventy-five cents ($0.75) per hour for all hours spent supervising students.


[13] The Union also modeled this proposal on the student supervision provision in the collective agreement between ONA and the Participating Hospitals. The ONA provision is as follows:
9.08 (a) Student Supervision
Nurses may be required, as part of their regular duties, to supervise activities of students in accordance with the current College of Nurses of Ontario Accountability Standards for RNs and RPNs Working with Students. Nurses will be informed in writing of their responsibilities in relation to these students and will be provided with what the Hospital determines to be appropriate training. Any information that is provided to the Hospital by the educational institution with respect to the skill level of the students will be made available to the nurses recruited to supervise the students. Upon request, the Hospital will review the nurse’s workload with the nurse and the student to facilitate successful
completion of the assignment.

Where a nurse is assigned nursing student supervision duties, the Hospital will pay the nurse a premium of sixty cents ($0.60) per hour for all hours spent supervising nursing students. This article will not apply to job classifications that are paid above the Registered Nurse Classification rates set out in Article 19.01 (a) where the higher rate of pay is, in part, based on nursing student supervision duties.


[14] We also decline to award the Union’s student supervision proposal. Our reasons for doing so are similar to our reasons for denying the mentorship proposal.

[15] This proposal also has significant differences from the student supervision provision in the ONA collective agreement with the Participating Hospitals. Similar to its mentorship proposal, the proposed provision would apply to all employees covered by the Regulated Health Professions Act, not just RPNs. As well, the selection of the student supervisor is to be based on seniority and the premium is greater by 15 cents per hour. The very few student supervision provisions in CUPE hospital collective agreements apply only to RPNs, the selection of the student supervisor is not based on seniority and no premium is provided for this supervisory role. It is again our view that awarding this proposal would run counter to a number of principles of interest arbitration, including the replication principle.

[16] We also question whether there is a demonstrated need for the proposal. In those Hospitals that take RPN student placements, the students are most often supervised by someone from the referring institution or another person from outside the CUPE bargaining unit, such as a manager or an RN. We are influenced in this instance as well by the fact that the SEIU was unsuccessful when it made a similar proposal in this round
of bargaining.

Union Proposals – RPN Wage Adjustment

[17] The Local Unions at most of the Hospitals before us have a proposal to
adjust the RPN hourly rate. The Union has not sought a standard RPN rate for all of the Hospitals in this round of local bargaining. Instead, it has focused on internal and external comparators at each Hospital to support its claim that an adjustment is necessary, effective from September 29, 2009. The Union also maintains that the spread of $2.01 which existed at the expiry of the previous collective agreement between the RPN minimum job rate established the Briggs local interest arbitration award and the highest CUPE hospital RPN rate is too great and should be narrowed. The Hospitals oppose an adjustment to the RPN rate for a variety of reasons. In particular, the Hospitals submit that the establishment of a minimum RPN end rate for all Hospitals would be inconsistent with our role as a Board dealing with local issues.

[18] As its history illustrates, RPN adjustments have been a contentious issue since at least 2001. The following brief reference to that history serves to explain how RPN rates of pay progressed to where they are today.

[19] By the late 1970s, RPN rates had essentially evolved into standardized rates following the development of a standardized wage grid for RNs. Prior to pay equity legislation, RN and RPN wage rates were derived from a comparison with each other. This relationship between the two nursing classifications began to break down in 1990
with the first phase of pay equity adjustments in the hospital sector. While pay equity for
RNs was implemented provincially, pay equity for CUPE service and clerical workers
was implemented locally. By 2001, the effect of comparing RPN jobs with male job classes within a hospital led to a 32 percent differential between the highest and lowest CUPE RPN job rate in the hospital sector. At the same time, the RPN rate in the hospital sector has been gradually eroding in comparison to the RN rate. The implementation of pay equity also has had an impact on collective bargaining in the sector. Once there was no longer a standardized RPN rate, the RPN rate issue moved from central to local bargaining. CUPE’s efforts to persuade the Hospitals to treat the RPN rate as a central issue have been unsuccessful.

[20] In the 2001 round of bargaining, the SEIU and CUPE requested a standardized RPN rate before local issues boards of arbitration. They were unsuccessful in achieving this objective. However, both Unions succeeded in obtaining a minimum RPN job rate that narrowed of the gap between the highest and lowest RPN rates in their respective bargaining units. Addressing the SEIU situation, arbitrator Kaplan referred to the “extremely high degree of commonality in function of RPNs” and the Board reduced the gap from over $4.00 per hour to $1.37 per hour (representing a 6.4%gap) by the expiry of the collective agreement in October of 2004. In the CUPE award, arbitrator Carrier reduced the spread from over $5.00 per hour to $2.81 per hour (representing a 13.2% gap) by the expiry of the collective agreement in September of 2004.

[21] The SEIU and CUPE again attempted to secure a standard RPN rate during
the next round of local bargaining, but again without success. Having substantially reduced the spread in the previous round, arbitrator Kaplan was not inclined to make a further adjustment to the SEIU RPN rate. Although acknowledging that the CUPE RPN range of rates was larger than the SEIU range and may require an adjustment in the future, arbitrator Albertyn declined to narrow the gap for a number of reasons, one of
those being that there had been no adjustment in the SEIU RPN rate.

[22] In the 2006 round of bargaining, arbitrator Raymond declined to award a standard RPN rate for the SEIU, but did award a new minimum rate of $23.01, an increase of the minimum rate by 2.5%. The spread in RPN rates was then narrowed to 99 cents (representing a 3.95% gap). CUPE did not request a standard RPN rate in that round of bargaining. Finding the spread of CUPE RPN hospital rates to be too great, arbitrator Briggs awarded a 5% wage adjustment resulting in a minimum rate of $25.62 per hour, effective June 1, 2009, four months before the expiry of the collective agreement. This adjustment of $1.22 still left a spread of $2.01 (representing a gap of 7.8%).

[23] We have three related issues to address. Is an adjustment to the RPN rates warranted and, if the answer is yes, what is the appropriate adjustment and when should the adjustments be made?

[24] Having reviewed the material before us on this issue and having considered
the submissions we received at the hearing on November 2, 2010 and at the local hearings, we conclude that an adjustment to the RPN rates is warranted. Although arbitrator Briggs awarded a significant adjustment during a difficult economic environment, we are satisfied that the spread in RPN rates remains too great. The CUPE differential remains twice the SEIU differential. This continues to be too wide a spread for a group of professional employees that have a high degree of commonality in function. 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.

[25] We will adjust the RPN rate by increasing the minimum job rate. This is the approach taken by the Kaplan and Raymond SEIU boards of arbitration, and by the Carrier and Briggs CUPE boards of arbitration. We disagree with the submission on behalf of the Hospitals that by taking this approach we are addressing a local issue as if it were a central issue. What we are doing is simply comparing the rates paid to RPNs at hospitals that participate in central bargaining with CUPE. This is the common approach used by interest arbitrators in the hospital sector with respect to any outstanding issue. In addition to other factors, we have come to the conclusion that an adjustment to the RPN rate is warranted in those Hospitals where the RPN rate is lower than it is in other Hospitals. When arbitrators Kaplan and Albertyn declined to award a general increase to the minimum RPN rate in the same round of bargaining, they nonetheless did make an adjustment for RPNs which did not benefit from the previously established minimum rate. In making such an adjustment, they could only have been comparing RPN rates at the Hospitals where the minimum RPN rate was not in effect with the higher RPN rates at other Hospitals. Again, that is the nature of the exercise that we are engaging in here.

[26] Although we find that an adjustment is warranted, we are not prepared to adjust the RPN rates to the extent requested by the Union. In this regard we are influenced by the adjustment awarded by the Briggs board of arbitration in the previous round. The end result of our adjustment will not narrow the gap to the same extent arbitrator Raymond narrowed the gap in SEIU RPN rates, but it will narrow the spread more along the lines of arbitrator Kaplan’s SEIU award in the 2001 round. As noted previously, we have also taken into account the submissions on economic issues that we heard on December 16, 2010. There continue to be economic challenges confronting Ontario and the Hospital sector. Although these challenges have not caused us to decline to award an RPN adjustment, we have taken them into account in balancing the interests of the parties when deciding the amount and the timing of the adjustments. Similar to the approach taken by arbitrator Briggs, the adjustments will be effective in the last year of the Collective Agreement.

[27] Our final comment relates to the pay equity issue. We appreciate that an
adjustment to the RPN rate may have pay equity implications. However, the task before us has a focus that is much broader than a pay equity exercise. As interest arbitrators in this sector have noted previously, we are compelled to make a wage adjustment where
warranted even if there may be consequences to a Hospital’s pay equity plan.

[28] Accordingly, we direct the Hospitals to make an adjustment to the RPN rates as follows. There are a number of Hospitals before us with a Local Union proposal to adjust the RPN job rate where RPNs are paid an hourly job rate that is below the minimum job rate established by the Briggs award. Effective September 29, 2012, we direct that the minimum job rate for RPNs at these Hospitals be increased to $27.72 per hour. This hourly rate is inclusive of the general wage increase. All other steps on the RPN wage grid shall be adjusted to maintain the previous percentage relationship to the job rate. The effect of this adjustment is that the RPNs at these Hospitals will be paid a rate of pay consistent with the Briggs adjustment commencing in the last year of the Collective Agreement. We also direct that the RPN minimum job rate for Hospitals be increased 3% effective June 1, 2013. This adjustment results in a minimum RPN job rate at that time of $28.55 per hour. All other steps on the RPN wage grid shall be adjusted to maintain the previous percentage relationship to the job rate. The spread between the highest Hospital RPN rate and this new minimum RPN job rate is $1.34 per hour, which as noted previously approximates the result of arbitrator Kaplan’s SEIU award for the 2001 round. For clarity, the June 1, 2013 adjustment to the RPN job rate will only apply to a Hospital where the Local Union requested an adjustment to the RPN job rate in this proceeding and where the RPN job rate as of June 1, 2013, is less than $28.55 per hour. We will remain seized to address any dispute concerning the implementation of this Award.


Dated at Toronto this 10th day of February 2012.


Ken Petryshen - Chair

“I dissent – see attached”
Joe Herbert - Union Nominee ¬

“I dissent – see attached”
John Kuhne – Hospital Nominee





PARTIAL DISSENT OF EMPLOYER NOMINEE

IN THE MATTER OF AN INTEREST ARBITRATION PURSUANT TO THE
HOSPITAL LABOUR DISPUTES ARBITRATION ACT

BETWEEN:
PARTICIPATING HOSPITALS

AND:
CANADIAN UNION OF PUBLIC EMPLOYEES


The Chair has taken what I acknowledge to be a rational and measured approach to the determination of the issues in dispute however; there is insufficient justification, in my respectful opinion, to warrant any adjustment to RPN wages at this time. While I appreciate the Chair’s attempt to mitigate the impact of the awarded wage increase by deferring adjustment to the last year of the contract, significant additional cost will nevertheless be imposed on a health system that can ill afford to absorb any further financial pressures.

As set out in the award, others have addressed the RPN wage at Local Issues arbitration through incremental increases to the minimum job rate, an approach the Chair has chosen to follow here. This broad-brush approach is problematic in that it treats the issue like a Central issue, providing increases where, as submitted by many of the Hospitals, there is no recruitment/retention issue to deal with and where the imposition of the additional cost will result in a reduction of services. These outcomes for the individual Hospitals affected are, in almost all cases, inconsistent with the arbitral principles of replication and demonstrated need.
In addition, this broad-brush approach has relied upon narrowing the focus of the issue to the gap or spread that exists at a point in time between the highest paid and the lowest paid RPNs in the province. The result is that each round of bargaining presents a new moving target based solely upon the bargaining strength or good fortune of the Union in achieving a negotiated rate at one location that is superior to others. This approach has not included reference to appropriate comparators outside of those negotiated by the Union in which the dispute arises. Had reference to relevant comparators occurred in this case, it would have been noted that at the same time CUPE’s minimum job rate for RPNs was raised to $25.62 by arbitrator Briggs, the corresponding rate for employees represented in Central bargaining by SEIU was $24.98. Based on this alone, there would be justification to do nothing further in the case of CUPE.

Furthermore, this focus on the “gap” between the highest and lowest paid fails to acknowledge where the majority of the Hospital’s rates actually lie. The RPN wage was an issue outstanding at 49 of the Hospitals that proceeded before this Board. The average job rate for RPNs at those 49 Hospitals on the expiry date of the previous collective agreement was $25.64 – nearly equivalent to the “Briggs rate.” Including six additional Hospitals where the RPN rate was not in dispute, the average rate was 25.73. These circumstances do not, I think, present a compelling case for intervention.

Notwithstanding agreement of the parties to make submissions on the RPN wage
adjustment as a coordinated issue, local submissions were made in each case and the principle that classification adjustments are a Local Issue remains should be respected – adjustment of the RPN wage at any Hospital is a Local Issue which should be subject to an appreciation of the impact of any proposed increase in each individual case.

The Chair concludes that “an adjustment to the RPN wage rate is warranted in those Hospitals where the RPN rate is lower than it is in other Hospitals.” If we accept this reasoning then it begs the question, “What is the rate at other Hospitals?” Surely “the rate at other Hospitals” is better represented by something closer to the average rate for all the Hospitals, rather than the highest rate paid by one of them. Using the “Briggs rate” as the target for adjustment would have resulted in adjustment to the rates at twelve Hospitals where the rate was below the “Briggs rate” due to not having proceeded to interest arbitration in the preceding round. This is the first-step adjustment made by the Chair to be effective September 12, 2012. I would not have gone any further than that if the objective was to make adjustment where the RPN rate is lower than it is at other Hospitals – an objective I feel was not necessary to meet in any event.

Respectfully submitted,
John G. Kuhne


DISSENT


Unfortunately, I am unable to agree with the manner in which three of the four co-coordinated local issues have been dealt with and I must dissent from the Chair’s decisions in respect of those issues.


STUDENT SUPERVISION AND MENTORSHIP

At all, or almost all, of the hospitals participating in these proceedings, Registered Nurses are covered by the central agreement with the ONA, and as a result receive a premium for both supervising student nurses, and for acting as mentors to their colleagues who the hospital determines require mentorship.

At a number of the hospitals covered by this award, Registered Practical Nurses are called upon to perform the same duties. At other hospitals, Registered Practical Nurses may not be asked to this point to perform those duties at this time, but could very well be asked in the future.

The Union’s coordinated proposal would have resulted, if successful, in premiums for the employees covered by these collective agreements when they perform duties of the same nature as are compensated under the central ONA agreement.

I wish first to deal with the Chair’s question about demonstrated need. The Chair notes that at many hospitals, the premium would be unnecessary in that there are presently no supervision or mentorship requirements for RPN’s. Assuming that is the case, then the provision would simply not apply in those hospitals where there is no present requirement to supervise or mentor, and there would be no prejudice to a hospital in that event. The real prejudice however, arises where these duties are indeed assigned to RPN’s, either at hospitals where the responsibilities are currently assigned or, where they are later assigned at hospitals where they are presently not, and, unlike when such assignments are made to RN’s the additional duties are performed without any compensation. The ‘demonstrated need’ for the proposal is to prevent against exactly that predictable result.

The primary focus of the Chair’s disagreement with the union proposal appears to be that it differs from the ONA provision in respect of both the quantum and the proposed seniority-based allocation of the duties. Those alleged ‘defects’ could have been easily rectified by an award which made the quantum the same as is received under the ONA agreement, and eliminated the seniority-based allocation element of the proposal. In that case, RPN’s who are asked to perform mentorship or supervision duties would be compensated in the same manner as RN’s.


RPN ADJUSTMENT

The Chair gives an accurate and thorough account of the issue’s history. The adjustment that is awarded in the end however, is in my view too little and falls too late into the collective agreement.

RPN’s employed in the Participating Hospitals perform within the same scope of practice and the commonality of their duties in this regard militates against a significant spread in wages. For other health sector professionals or para-professionals in Ontario hospitals, salaries are largely normalized through standardized wage grids. There is, for example, little or no variation in salaries received by RN’s covered by the ONA agreements, or Registered Technologists or technicians covered under the centrally negotiated OPSEU agreements. RPN salary rates are anomalous in the degree of variation that occurs.

In a recent round of bargaining between SEIU and Participating Hospitals, arbitrator Raymond reduced the spread in those rates to 3.9%, a range which may continue to be unwarranted in view of the commonality of duties. The result of the Chair’s award is to leave an even larger range of rates among the RPN’s covered by this award, a result which in my view is not justified.

Moreover, the Chair’s award fails to award any adjustment until the fourth year of the agreement. While it is true, as the Chair notes, that arbitrator Briggs awarded an adjustment three months from the end of the last agreement, that agreement covered three years rather than four, and was issued at the absolute trough of the economic downturn. In our case, the Chair has awarded less than was warranted and has awarded it later than deserved.

Dated this 6th day of February, 2012.


Joe Herbert

Nominee of the Ontario Council of Hospital Unions/CUPE