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HomeMy WebLinkAboutUnion 04-05-06 In The Matter Of An Arbitration Between: Mental Health Services Hastings Prince Edward Corp. ("the employer") - and - Ontario Public Service Employees Union, Local 455 ("the union") And In The Matter Of Union Grievances dated November 18 and 19, 2003 Owen V. Gray - Sole Arbitrator Appearances: For the Union: Richard Blair, Counsel Martin Sarra, OPSEU Staff Representative Mark Kinach, Steward Laurie Hall For the Employer: Alan Whyte, Counsel Bob Cunningham, Executive Director Hearing conducted in Toronto, Ontario on May 3, 2004. AWARD [1] These two grievances together concern the classification - or, more precisely, the rates of pay - of nearly all of the employees of Mental Health Services Hastings Prince Edward Corp. ("the employer") in the bargaining unit represented by the union. This decision concerns the compensation of employees in positions described by the employer as "Community Mental Health Court Diversion Case Manager," "Case Manager," "Psychogeriatric Case Manager," "Community Support Worker," "Group Home Community Support Worker" and "Housing Coordinator." The parties have agreed that the arbitration of their dispute stands adjourned sine die with respect to positions described by the employer as "Recreationist" and "Intake Co-ordinator." [2] The employer is a product of the restructuring of mental health agencies. In 2003 it took over the provision of certain services previously provided by the Quinte Health Care Corporation ("QHCC"), a hospital that continued in existence for other purposes, and by two other facilities, which ceased to exist. [3] Employees engaged by the predecessor employers in the transferred programs fell into five different bargaining units represented by at least two trade unions. FolloWing a representation vote, in July 2003 the Ontario Labour Relations Board determined that employees of the successor employer would constitute a single bargaining unit represented by OPSEU. [4] Following that and a subsequent decision of the OLRB in October 2003, the parties agree that when these grievances were filed the parties were bound by the terms of a collective agreement between OPSEU and QHCC ("the collective agreement") which was to expire in March 31, 2004, and that the terms of that agreement are found in four documents. One is a collective agreement between OPSEU and QHCC for the period ending March 31, 2002. That document contains the provisions of a central agreement negotiated between OPSEU and certain participating hospitals (including QHCC) and the provisions of a local agreement negotiated between OPSEU and QHCC. The second of the documents that make up the collective agreement are a bundle of terms agreed upon in 2003 in central bargaining between OPSEU and participating hospitals. The other two documents that make up the collective agreement are two interest arbitration awards dated August 29, 2003 and September 25, 2003 arising out of central bargaining between OPSEU and those participating hospitals. [5] This grievance is filed under Article 25.01 of the collective agreement: ARTICLE 25 - COMPENSATION 25.01 When a new classification in the bargaining unit is established by the Hospital, or the Hospital makes a substantial change in the job content of an existing classification, the Hospital shall advise the Union of such new or substantially changed classification and the rate of pay which is established. If so requested within thirty (30) calendar days of such advice, the Hospital agrees to meet with the Union to permit the Union to make representations with respect to the appropriate rate of pay, providing any such meetings shall not delay the implementation of the new or substantially changed classification. Where the Union challenges the rate established by the Hospital and the matter is not resolved following the meeting with the Union, the matter may be referred to arbitration in accordance with the arbitration provisions contained in this collective agreement, it being understood that any arbitration board shall be limited to establishing an appropriate rate based on the relationship existing among other classifications wit.hin the Hospitals (which are covered by the O'Shea award) and the duties and responsibilities involved. It is further understood and agreed that when determining the appropriate rate, primacy must be given to the relationship between job classifications covered by this collective agreement and that such ' relativity must be maintained. Each change in the rate established by the Hospital either through meetings with the Union or by a Board of Arbitration shall be retroactive from the time at which the new or substantially changed classification was first filled. In an earlier award I rejected the employer's preliminary objection that this article does not apply in the circumstances. [6] The collective agreement contains two wage grids. The one for "Below Registered Technologists" has five levels: Technician I through Technician 5. Each of those levels has a s.tart rate and four increment levels. Notes to the "Below Registered Technologists" wage grid identify each of the "Technician" levels with certain job titles, none of which corresponds with the job title of any of the employees in this bargaining unit. [7] Before this employer took over from the three predecessor employers, QHCC had employees in "Counsellor/Therapist" positions that performed functions now performed by "Counsellor/Therapists" employed by the employer. QHCC paid the Counsellor/Therapists the Technician 5 rate under its agreement with OPSEU. After the present employer took over, it paid the Counsellor Therapists at the Technician 5 rate. It assigned positions it described as "Community Mental Health Court Diversion Case Manager," "Case Manager," "Psychogeriatric Case Manager" and "Community Support Worker" the Technician 4 wage rate, and the positions of "Group Home Community Support Worker" and "Housing Coordinator" the Technician 3 rate. [8] The union says that the "clinical" positions in dispute - that is, Community Mental Health Court Diversion Case Manager, Case Manager, Psychogeriatric Case Manager, Community Support Worker and Group Home Community Support Worker - all have duties sufficiently similar to those of the Counsellor/Therapists that they should be paid the Technician 5 rate that is paid to the Counsellor/Therapists. Having regard to differences between the duties of the Housing Coordinator position and those of the clinical positions, the union says that that position should be paid at one level below the clinical positions - the Technician 4 rate. [9] Except with respect to the Group Home Community Support Worker position, the employer agrees with the union that clinical positions in dispute are similar to the Counsellor/Therapist position. Even so, it does not agree that Article 25.01 entitles the incumbents of those positions to the wage rate received by those in the Counsellor/Therapist positions. Its position is that the Technician 4 rate is justified have regard to the factors which it says must b~ taken into account under Article 25.01. The employer agrees with the union that the Housing Coordinator position should be at one level below the disputed clinical positions (other than Group Home Community Support Worker) - which on its - 4 - view would put that position at the Technician 3 pay level. The employer disagrees with the union's contention that the duties of the Group Home Community Support Worker position are sufficiently similar to the other clinical positions as to warrant the same wage rate. It says that the differences between the duties and responsibilities of that position and those of the other clinical positions warrant compensation at one level below that of the other clinical positions in dispute. [10] With respect to the Group Home Community Support Worker position, the material put before me by the employer ~liscloses the following differences between the duties and responsibilities of that position and those of the other clinical positions: The position has input into decisions to admit and remove group home residents, but does not make them. The other positions make the admission decisions in their programs. The position is responsible for monitoring and carrying out a rehabilitation plan for clients, but not for developing the plan. The other positions develop, monitor and carry out therapy plans. The position carries a case load of 8 to 10 clients - about half the caseload of other clinical positions. The housing stability of clients in the Group Home setting is significantly different than for other clients. Housing issues of the Agency's clients is an important factor in maintaining the stability of those clients, and the clients who reside in other community settings have a higher rate of housing instability than those in the group homes. The union does not dispute the existence of these differences, but notes that in addition to working with current residents of the group homes, this position is also involved in ongoing work with clients who are former residents of the homes. - 5 ° [11] The union's argument focuses on the principle that the purpose of a wage classification system is to provide uniformity and equality in payments for the same kind Of work. Union counsel argues that this principle is adopted in the fourth sentence of Article 25.01. He submits that the maintenance of relativity among job classifications mandated by that sentence requires that all of the clinical positions in dispute be assigned the same pay rate as the Counsellor/Therapist position to which, he notes, both this employer and the employer party to the predecessor collective agreement assigned the Technician 5 wage rate. Given the parties' agreement on relativity between clinical positions and the Housing Coordinator position, it would follow that that position should be assigned the Technician 4 rate. [12] The employer submits that the critical portion of Article 25.01 is the third sentence, which limits the arbitrator to "establishing an appropriate rate based on the relationship existing among other classifications within the Hospitals and the duties and responsibilities involved." Because the successor employer is a community mental health agency, not a hospital, employer counsel argues that the quoted phrase must be read as if the phrase "community mental health agencies" had been substituted for the word "Hospitals" in that sentence. On that view, he says, my task would be to examine the pay levels for comparable positions in other community mental health agencies in Eastern Ontario, so as to maintain relativity between those positions and the positions in dispute here. The employer's material includes information with respect to those matters. [13] With respect to the Group Home Community Support Worker position, the employer argues that the differences between the duties and responsibilities of that position and those of the other clinical positions in dispute warrant fixing compensation for that position one level below that of those positions. The union argues that the differences between this and the other clinical positions do not warrant a different pay rate. -6- Decision [14] I agree with the union that in making a determination under Article 25.01 the arbitrator must start by examining "the relationship between job classifications covered by this collective agreement." The job classifications referred to in that fourth sentence of the article are all of the job classifications covered by the collective agreement between the union and the employer party to the dispute, not just the job classifications named in the centrally bargained portions of the agreement. The Article's direction that the relativity between classifications be maintained requires that the arbitrator establish appropriate wage rate relativity between the existing classifications and the new classification or classifications in issue - that the wage rate assigned to the new classification be commensurate with the wages rates of other existing classifications, having regard to the similarities and differences between the duties and responsibilities of the existing and new classifications. [15] I do not accept the employer's argument that the third sentence of Articl'e 25.01 is to be read as though "community mental health agencies" had been substituted for the word "Hospitals." The parties have agreed that this employer became bound by this collective agreement as a result of decisions made by the OLRB under the successor employer provisions of the £(~/~o~r R¢lc~tions .4ct. In that context, this employer simply stands in the shoes of the predecessor employer party to that agreement. Differences between the range and nature of operations of the predecessor employer and those of the successor employer do not empower an arbitrator to amend the terms of the collective agreement by which the successor becomes bound. The impact of those differences and other consequences of the change in employer are matters to be resolved by the union and the successor employer during their first opportunity to bargain a collective agreement. [16] To the extent that Article 25.01 requires that the arbitrator look outside the immediate workplace for benchmarks, its requirement is that the arbitrator examine the classification and compensation of employees in hospitals that participated in central bargaining with OPSEU to ensure that the result is commensurate with those circumstances. The only evidence of that sort before me is of QHCC's having determined (without objection by OPSEU) that Counsellor/Therapists be compensated at the Technician 5 level. [17] Counsellor/Therapists were compensated at the Technician 5 level by QHCC under the processor of the collective agreement by which this employer is bound. This employer compensates Counsellor/Therapists at the Technician 5 level under this collective agreement. Having regard to the parties', agreement about the similarities between the duties and responsibilities of the Counsellor/Therapists and those of the Community Mental Health Court Diversion Case Manager, Case Manager, Psychogeriatric Case Manager and Community Support Worker positions, I find that the appropriate wage rate for those positions is the Technician 5 rate. [18] It follows from my finding concerning those clinical positions and the parties' agreement about the relativity between those positions and the Housing Coordinator position that the appropriate wage rate for the Housing Coordinator position is the Technician 4 rate. [19] The appropriate wage rate for Group Home Community Support Worker position is a difficult matter. Its duties and responsibilities, while important, are somewhat less demanding than those of the other clinical positions. The material before me does not provide a second "lower" point of comparison that could serve as the basis of an interpolation. The Group Home Community Support Worker position is not '%etween" the other clinical positions and the Housing Coordinator position on some two dimensional scale, as the Housing Coordinator position involves some skills, knowledge and responsibility not required to the same degree in the clinical positions. [20] I recognize that I am .not limited ·to a choice between the rate for other clinical positions and the rate one level down. Although neither party suggested that I do so, I do have the jurisdiction to strike a rate somewhere above (or, for that matter, below) the Technician 4 level to reflect the d~fferences between the Group Home Community Support Worker position and the other clinical positions. Article 25.01 does not expressly limit the arbitrator to adopting a rate contemplated by the wage structure of the agreement. An arbitrator should be cautious, though, about creating a compensation structure more finely granulated than that established in the pertinent collective agreement. [21] Bearing in mind that the Technician 4 wage rate is only about 5.6% less than the Technician 5 level (expressing the difference as a percentage of the higher rate), ! am persuaded that the differences between the other clinical positions and the Group Home Community Support Worker position warrant assigning it the Technician 4 wage rate. [22] It is important to note that this was not an interest arbitration. It did not involve an assessment of the likely outcome of collective bargaining for employees of a community mental health agency in Eastern Ontario. This decision only establishes the wage rates payable under the unexpired term of a collective agreement originally negotiated for hospitals. [23] I remain seised with any dispute the parties are not now able to resolve concerning the implementation of this decision, or with respect to the wage rate for "Recreationist" and "Intake Co-ordinator" positions for the period during ~vhich the compensation for those would be governed by the terms of the collective agreement under which these grievances were filed. May 6, 2004